Speech delivered to the Refugee Advice and Casework Service
I acknowledge the traditional owners of the land on which we meet, the Gadigal People of the Eora Nation, and I pay my respects to their elders past and present.
I would like to thank RACS for their invitation to speak this evening about the Australian Human Rights Commission’s legal concerns about the Government’s third country processing regime. I have a high regard for the work of RACS and PILCH and have been pleased that they continue to be active partners in the Social Justice/Clinical Legal Education programme run by the Law School at the University of Sydney.
Before I discuss the international human rights that inform the Commission’s concerns about offshore processing of asylum seekers, I will begin with some broad statistics to give us a sense of the dimension of the issue. At the beginning of June this year, there were about 8,000 ‘irregular maritime arrivals’ in closed immigration detention in Australia (including Christmas Island). This number includes 1,700 children. An additional 3,000 ‘irregular maritime arrivals’ are in community or open detention, almost half of them being children. 7,500 more ‘irregular maritime arrivals’ are free in the community on bridging visas which have been granted on condition that the holder has no legal right to work. In addition to those in detention in Australia, there are 428 asylum seekers on Nauru, all adult males, and 302 on Manus Island, including 26 accompanied children. In short, while offshore processing raises unique legal issues, the overwhelming humanitarian impact is felt by those 8,000 who are in closed detention, and by those who are in the community, but who are not permitted to work to meet their basic needs.
For the moment, let us concentrate on third country processing. This is of course not a new legal challenge. The ‘Pacific Solution’ initiated by the Howard Government in 2001 prompted significant community unease. The Australian Human Rights Commission repeatedly raised concerns that the ‘Pacific Solution’ breached international human rights standards. People subjected to that policy did not have access to an adequate system for the processing of their protection claims and experienced long periods of detention in poor and isolated conditions, with inadequate access to health and mental health care.
We are now raising almost identical human rights concerns with the Australian Government’s current third country processing regime.
In this incarnation of the regime, over 730 asylum seekers have been transferred to Nauru and Manus Island, some having been detained for around eight months.
As you are no doubt aware, these transfers follow:
- the report of the Expert Panel on Asylum Seekers, released on 13 August 2012
- subsequent amendments to the Migration Act, and
- the designations of Nauru and Papua New Guinea as ‘regional processing countries’.
You also undoubtedly know that the current system of third country processing is based on the principle of ‘no advantage’ – the idea that asylum seekers should gain no benefit by engaging people smugglers to arrange their passage to Australia by boat.
The Government has also recently passed the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2012 (Cth). This extends the system of third country processing to all asylum seekers who arrive by boat anywhere in Australia. It effectively prevents those people from having their refugee claims assessed in Australia, unless the Minister for Immigration makes a personal decision to exempt them from transfer to a third country.
Australian Human Rights Commission mandate
Before I discuss the Commission’s human rights concerns with the third country processing regime, I will briefly describe the Commission’s statutory mandate.
The Commission is Australia’s National Human Rights Institution, established in 1986 by the Commonwealth Government to be an independent monitor to assess whether Australia meets its international human rights obligations.
In assessing Australian law and practice, the Commission’s bench mark for human rights is set out in our legislation as “the rights and freedoms recognised” in the ICCPR, declared by several declarations or otherwise recognised or declared by any relevant international instruments.
In practice, this means that human rights are those articulated by the ICCPR, the Convention on the Rights of the Child (CRC) and various declarations regarding Religion, the Disabled, and Discrimination in Employment.
It is important to understand that many of the international human rights treaties to which Australia is a party are not part of Australian law, as they have not been implemented by legislation under the principle of parliamentary sovereignty. The relevant result is that the Refugees Convention, for example, is not as such part of Australian law other than through some sections of the Migration Act. For this reason the Commission has one hand tied behind its back. We monitor human rights as they apply to offshore processing, but must couch our legal analysis in provisions of treaties that are not directly part of Australian law.
Jurisdictional reach of the Australian Human Rights Commission
Now let me come to some specific issues. The first concerns the jurisdictional reach of the Commission. In recent months there has been some speculation on what role the Commission might have in relation to asylum seekers transferred to Nauru and Manus Island by Australia.
The Solicitor-General of Australia has provided advice on the jurisdiction of the Commission in relation to complaints from asylum seekers detained on Nauru and Manus Island. Under the Australian Human Rights Commission Act 1986 (Cth) the Commission will inquire into complaints received from asylum seekers detained on Nauru and Manus Island. However, I will not travel to Nauru or Manus Island for this purpose, as the powers of the Commission in relation to complaints cannot be exercised outside of Australia. The complaints we receive will, however, be dealt with in the same manner as if they had been brought to the Commission in Australia.
Extraterritorial application of Australia’s human rights obligations
The question of the Commission’s jurisdiction is different from the international law question of Australia’s responsibility for the treatment of asylum seekers who are transferred to third countries for processing.
The International Court of Justice (ICJ) considered the extraterritorial application of the ICCPR, ICESCR and the CRC in its advisory opinion dealing with the building of a wall by Israel in the Occupied Palestinian Territory. The ICJ held that these international covenants are applicable to acts done by a State in the exercise of its jurisdiction outside its own territory (emphasis added).
As a matter of international law, Australia’s human rights obligations extend to its acts and activities, even if they occur outside Australian territory, if it has ‘effective control’ over the situation. This principle was recently affirmed by the European Court of Human Rights in Al-Skeini v United Kingdom. The applicants were relatives of Iraqis killed by UK armed forces in Iraq. They claimed that the UK had failed to comply with its duty properly to investigate the deaths, in breach of article 2 of the European Convention on Human Rights. The Court held that the UK had assumed authority and responsibility for the maintenance of security in South East Iraq. Further, in the course of security operations in Basrah, the UK exercised authority and control over individuals killed in the course of those operations. This was sufficient to establish a jurisdictional link between the deceased and the UK for the purposes of the Convention.
If Australia has ‘effective control’ over those asylum seekers it has transferred to another country, it must treat them consistently with its human rights obligations. The question of whether Australia has ‘effective control’ over arrangements in Nauru or on Manus Island is yet to be determined. It will depend on factors such as the extent to which Australia has powers of control and supervision over the operation of the facilities, and the refugee status determination processes that are adopted by Nauru and PNG.
It is also clear that States cannot avoid their international law obligations by transferring asylum seekers to a third country. For example, Australia will be in breach of its obligations under the ICCPR if it removes a person to another country in circumstances where there is a ‘real risk’ that their rights under the ICCPR will be violated. So the Australian Government needs to carefully to assess and monitor the situation in Nauru and PNG to determine whether there is a real risk of violations of rights under the ICCPR, the Convention against Torture or the CRC.
Human rights concerns raised by the third country processing regime
So what is the Commission’s position on the third country processing regime?
International law does not prohibit an agreement between sovereign states jointly to process asylum seekers, so long as the conditions are appropriate and assessment is speedy and subject to independent review. It has been the failure to meet these basic conditions that underpins the Commission’s opposition to the transfer by Australia of asylum seekers to Nauru and PNG. It is our long-held view that all asylum seekers who arrive in Australia should have their refugee claims assessed on the mainland through the refugee status determination system that applies under the Migration Act. The greatest possible use should be made of community arrangements for asylum seekers while their claims are being assessed.
I recognise the importance of effective border management and acknowledge that Australia has a right as a sovereign State to exclude non-citizens from its territory. However, Australia also has international obligations in relation to asylum seekers who come to Australia, including those who arrive by boat, which must be observed in its border management and migration practices.
The Commission has a number of human rights concerns with Australia’s system of third country processing and we have made several submissions to Parliamentary inquiries on this topic, in particular to the Joint Committee on Human Rights. If you would like more detail than I can give here, please look those submissions up online.
The principle of non-refoulement
A particular concern of the Commission is the risk that third country processing may not respect the core legal obligation to ensure that a refugee is not returned to a country where he or she will be subject to persecution or torture (in accordance with Australia’s obligations under the ICCPR, CRC, the Convention against Torture and the Refugee Convention). Australia’s non-refoulement obligations prohibit the removal of anyone from Australia to a country where they are in danger of death, torture or other mistreatment, including arbitrary detention.
In order to meet these obligations, there must be proper processes in place to determine refugee status and protection needs. I am concerned that this may not be the case in Nauru and PNG. Processing of refugee claims has recently begun on Nauru, and it is still not clear when it will begin for those on Manus Island.
In addition to the risk of refoulement, here is a significant risk that the third country processing regime may lead to arbitrary detention, in violation of the ICCPR and the CRC.
To avoid being arbitrary, detention must be necessary and proportionate to a legitimate aim. A person should only be held in a detention facility if they are individually assessed as posing an unacceptable risk to the community and if that risk cannot be managed in a less restrictive way. Otherwise, they should be allowed to live in community-based alternatives while their immigration status is resolved.
Currently, individual assessments are not happening – asylum seekers are detained firstly in Australia, and then on Nauru and Manus Island, on a mandatory basis.
The consequence of the application of the ‘no advantage’ principle for some asylum seekers and recognised refugees might be very long periods of time in detention, which might amount to arbitrary detention.
And we know how damaging long periods of detention can be.
It was knowledge of that damage which resulted in the Commission welcoming the Government’s decisions over the past few years to move increasing numbers of people detained on the Australian mainland into community-based alternatives.
These were welcome changes which made Australia’s treatment of those asylum seekers and refugees more compliant with human rights law.
The move towards a community based approach to people seeking asylum is also more in accordance with the approach of many nations around the world.
Many countries comparable to Australia have been taking a community based approach for some time. For example, in Canada, people may be released from immigration detention on bail or bond and incur financial consequences if they breach its conditions. In Spain, asylum seekers are released into the community or accommodated in open reception centres from which they are free to come and go. Sweden uses a ‘reception program’ under which asylum seekers spend around a week in a transit centre and are then issued with identification documents which they can use to access some basic services.
So there are viable and effective alternatives to detention. And the use of alternatives is required under Australia’s international obligations.
Conditions of detention
Another key concern with the third country processing regime is the conditions of detention.
Detaining asylum seekers in temporary facilities where some of them must live in tents, are subjected to harsh weather, have very little privacy, and access to only very basic facilities, for a prolonged period of time may lead to human rights breaches. The right of people deprived of their liberty to be treated with humanity and respect for the inherent dignity of the person is particularly relevant here.
Inadequate conditions of detention and access to services may also lead to breaches of other human rights, such as rights to an adequate level of health care and to education.
The Parliamentary Committee on Public Works has recently considered and approved the Australian Government’s proposal for the development of a more permanent processing centre on Manus Island.
In the Commission’s submission to that Committee’s inquiry, we opposed the third country processing regime, but noted that if asylum seekers are to remain on Manus Island and further transfers are to take place, better facilities are urgently needed. In particular, we recommended that any processing centre be an open centre rather than a closed detention facility. We also drew attention to the need for that facility to be developed in line with the Commission’s recently published Human Rights Standards for Immigration Detention.
However, even if the conditions on Manus Island are improved by permanent buildings offering less crowded accommodation, more freedom of movement, and decent recreation and communication facilities, there remain serious concerns regarding the climatic conditions, remoteness and limited access to health care which would seem very difficult to mitigate.
Children in detention
The fourth major area of concern is children in detention.
You will all be aware that holding children in immigration detention has been the source of controversy for many years.
In 2004 the Commission released A last resort?, the report of the National Inquiry into Children in Immigration Detention, which documented serious breaches of the human rights of a large number of children held in Australia’s detention centres between 1999 and 2002.
Under the CRC the best interests of the child must be a primary consideration in all decisions concerning them. I am concerned that the Government’s current approach does not reflect the prominence which should be given to each individual child’s best interests.
The detention of these children, which is mandatory and indefinite in nature, leads to breaches of Australia’s obligations under the CRC to only detain children as a measure of last resort and for the shortest appropriate period of time.
The conditions of detention for children detained on Manus Island may also lead to breaches of other rights, for example to the highest attainable standard of health.
I am particularly concerned that unaccompanied children who have arrived in Australia by boat since 13 August 2012 remain liable for transfer to third countries.
As the legal guardian of unaccompanied children who arrive in Australia seeking asylum, the child’s best interests should be not only a primary consideration but the primary consideration for the Minister for Immigration when making decisions affecting those children.
It is difficult to see how transferring unaccompanied children to third countries such as Nauru or PNG for assessment of their refugee claims could be in their best interests.
Mental health impacts
Finally, I hold grave concerns about reports of the deteriorating mental health of some asylum seekers detained on Nauru and Manus Island and reports of self-harm and attempted suicide.
It is well established that holding people in immigration detention, particularly for prolonged and indefinite periods, can have devastating impacts on their mental and physical health. It is also widely acknowledged that detention in remote, climatically harsh and overcrowded conditions can be particularly harmful.
The impacts on asylum seekers detained on Nauru and Manus Island when these facilities were last used are well-documented. Some were diagnosed with a range of mental illnesses including depression, anxiety, post-traumatic stress disorder, adjustment disorder and acute stress reaction. There were also high levels of actual and threatened self-harm.
The United Nations Human Rights Committee has found that Australia’s lengthy detention of a man to whom Australia owed protection obligations, despite knowing that the detention was contributing to his psychiatric illness, breached article 7 of the ICCPR. This article requires that no one be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
In my opinion, as the evidence regarding the health impacts of lengthy periods of detention in Nauru, PNG and Australia is well-documented, the Australian Government can be considered to be ‘on notice’ as to the real health risks of prolonged detention.
The Commission’s role in relation to the third country processing regime
Towards the end of last year I visited the immigration detention facilities on Christmas Island. While I was there I met with some of the nearly 2000 people who were then in detention on the island – men, women and children, who had come to Australia to seek asylum. Having arrived after 13 August 2012, they were liable to third country transfer.
The people I met with were understandably anxious about their situation. Many of them reported that their mental health had deteriorated since they arrived in Australia as a consequence of this anxiety. During the visit my staff and I also met some people who appeared to have significant vulnerabilities – families including children with serious disabilities, pregnant women, and people with serious health issues. I had significant concerns about what the future might hold for these people.
So, given our human rights concerns, what is the Commission doing in relation to the third country processing regime?
A large part of the Commission’s work in this area involves high level, behind-the-scenes advocacy with the Department of Immigration and Citizenship and the Minister for Immigration and Citizenship. I have raised my concerns about the third country processing regime, in particular in relation to the mental health of asylum seekers, with both the Minister and the Department.
We have been active in making submissions to parliamentary inquiries, as I have mentioned. For example, we made a comprehensive submission to the Parliamentary Joint Committee on Human Rights in its examination of the regional processing package. Most recently we made a submission to the Committee on Public Works regarding its consideration of the Manus Island Regional Processing Centre Proposal.
As I have already mentioned, the Commission also has the role of investigating individual complaints of alleged breaches of human rights by the Commonwealth or its agents. The Commission will inquire into complaints received from asylum seekers detained on Nauru and Manus Island.
I will finish by saying that I do not underestimate the challenge facing the government in responding to what is, in the Australian context, a significant number of boat arrivals. But as you all know, Australia is a part of much a bigger, global picture. In the global context, it must not be forgotten that we have legal obligations under the international treaties that Australian governments over time have voluntarily agreed to be bound by, including the Refugee Convention.
To meet today’s challenges in ways which comply with human rights obligations, rather than setting up systems which aim to deter people from seeking protection in Australia, we should focus on increasing access to safe pathways to protection for asylum seekers in our region. This topic could of course be the start of a whole speech of its own. Suffice to say, it is essential that Australia focuses its efforts towards genuine regional cooperation within a clear human rights framework.
There are no easy solutions, but there are some clear human rights obligations and we can do better to meet them.
 Migration Act 1958 (Cth).
 Scheduled to the Australian Human Rights Commission Act 1986 (Cth) are: the Convention concerning Discrimination in respect of Employment and Occupation, the ICCPR, the Declaration on the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons, and the Declaration on the Rights of Disabled Persons.
 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion  ICJ Rep 136.
 Ibid at .
 Application 55721/07, 7 July 2011.
 See the decisions of the European Court of Human Rights in Banković v Belgium and others (dec.) [GC]  ECHR 890 and Al-Skeini v United Kingdom [GC]  ECHR 1093.
 G Goodwin-Gill and J McAdam, The Refugee in International Law (3rd ed, 2007), pp 408-411.
 See Human Rights Committee, General Comment No 31  Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), para 12. At http://www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f (viewed 11 January 2013), and the following decisions of the Human Rights Committee: Kindler v Canada, Communication No. 470/1991, UN Doc CCPR/C/48/D/470/1991 (1993), paras 13.1-13.2. At http://www.unhcr.org/refworld/publisher,CAN_SC,,USA,3ae6b6ed0,0.html (viewed 11 January 2013); Ng v Canada, Communication No. 469/1991, UN Doc CCPR/C/49/D/469/1991 (1993), paras 14.1-14.2. At http://www1.umn.edu/humanrts/undocs/html/dec469.htm (viewed 11 January 2013); Cox v Canada, Communication No. 539/1993, UN Doc CCPR/C/52/D/539/1993 (1994), paras 16.1-16.2. At http://www.unhcr.org/refworld/publisher,HRC,,USA,4028ba144,0.html (viewed 11 January 2013); ARJ v Australia, Communication No. 692/1996, UN Doc CCPR/C/60/D/692/1996 (1997), paras 6.6 - 6.14. At http://www.unhcr.org/refworld/country,,HRC,,AUS,,4028adfa7,0.html (viewed 11 January 2013); Judge v Canada, Communication No. 829/1998, UN Doc CCPR/C/78/D/829/1998 (2003), paras 10.2-10.7. At http://www.unhcr.org/refworld/docid/404887ef3.html (viewed 11 January 2013); GT v Australia, Communication No. 706/1996, UN Doc CCPR/C/61/D/706/1996 (2007), para 8.1. At http://www.unhcr.org/refworld/country,,HRC,,AUS,,4ae9acbfd,0.html (viewed 11 January 2013); Nakrash and Qifen v Sweden, Communication No. 1540/2007, UN Doc CCPR/C/94/D/1540/2007 (2008), para 7.3. At http://www.unhcr.org/refworld/country,,HRC,,CHN,,4a93a2362,0.html (viewed 11 January 2013); Bauetdinov v Uzbekistan, Communication No. 1205/2003, CCPR/C/92/D/1205/2003 (2008), para 6.3. At http://www.worldcourts.com/hrc/eng/decisions/2008.04.04_Yakupova_v_Uzbekistan.htm (viewed 11 January 2013); Munaf v Romania, Communication No. 1539/2006, UN Doc CCPR/C/96/D/1539/2006 (2009), para 14.2. At http://www.unhcr.org/refworld/publisher,HRC,,ROM,4acf500d2,0.html (viewed 11 January 2013).
 See Department of Immigration and Citizenship, Fact Sheet 83a – Community Detention, http://www.immi.gov.au/media/fact-sheets/83acommunity-detention.htm (viewed 16 May 2013); Minister for Immigration and Citizenship, ‘Bridging visas for boat arrivals, asylum seeker processing, Malaysia Agreement’ (media release, 25 November 2011). At http://www.minister.immi.gov.au/media/cb/2011/cb180619.htm (viewed 16 May 2013); Australian Human Rights Commission, Community arrangements for asylum seekers, refugees and stateless persons (2012). At http://www.humanrights.gov.au/publications/community-arrangements-asylum-seekers-refugees-and-stateless-persons-2012 (viewed 16 May 2013).
 Articles 24 and 28 of the CRC.
 See Article 18(1) of the CRC and Immigration (Guardianship of Children) Act 1946 (Cth), s 6(1). See also Australian Human Rights Commission, Submission to the Joint Committee on Human Rights’ Examination of the Migration (Regional Processing) package of legislation (January 2013), section 13.1. At http://www.humanrights.gov.au/submissions/examination-migration-regional-processing-package-legislation (viewed 16 May 2013).
 See, for example, Joint Select Committee on Australia’s Immigration Detention Network, Joint Select Committee on Australia’s Immigration Detention Network: Final Report (2012), chapter 5. At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=immigration_detention_ctte/immigration_detention/report/index.htm (viewed 17 January 2013).
 Human Rights Committee, C v Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), para 10. At http://www.unhcr.org/refworld/docid/3f588ef00.html (viewed 20 December 2012).