Leiden Law Blog

Australia’s Offshore Processing of Refugees and Asylum Seekers: A National Shame

Posted on by Nadeshda Jayakody in Public Law , 2
Australia’s Offshore Processing of Refugees and Asylum Seekers: A National Shame

Australia is known for its high standard of living, democratic values and is often respected by the international community. However in August 2012 the Australian government introduced a policy that would see the country’s reputation dwindle significantly. In response to the arrival of a significant number of boats carrying asylum seekers and refugees onto its shores, as well as hundred of deaths at sea, Australia introduced its mandatory offshore “processing” policy.

Rather than efficiently processing and settling genuine refugees in Australia, the policy stipulates that anyone who arrives in the country by boat seeking asylum cannot resettle in Australia. They are instead transported to Nauru, a small island nation, or Manus Island in Papua New Guinea.  There, asylum seekers are kept in indefinite detention until their claims are processed. If found to be genuine refugees, the detained men, women and children are either resettled in their country of detention or a third-party country. Even those officially recognised as refugees by UNHCR are detained until they can be resettled.

While Australia has insisted that detention is meant to be temporary, many are languishing inside centres with no certainty of their futures. Some have been kept there for up to three years and counting.

Conditions in detention are deplorable, demoralising and shrouded in secrecy. In fact, Australia’s Border Force Act prevents most staff members, except doctors from speaking publicly about the conditions in the centres. If they do so, they face up to two years in prison.  Leaked documents published by Guardian Australia in August 2016 reveal accounts of children being sexually and physically abused and experiencing severe physiological distress on Nauru. The Nauru files contain 59 reports of assault on children, seven reports of sexual assault of children and 30 incidents of children inflicting self-harm. In one case a young girl had sewn her lips together. There have also been reports of men setting themselves on fire in protest and desperation. A recent documentary by ABC’s Four Corners, aired in October 2016, corroborate these harrowing stories.

Conditions on Manus Island are not much better. However, a sense of hope was ignited in April of this year when Papua New Guinea’s Supreme Court ruled that the detention centre on Manus Island was unconstitutional and illegal. The court ruled that the centre must close. Unfortunately, six months after the judgment the centre remains open.

The Australian government insists that its strict policy is aimed at stopping deaths at sea and the people smugglers’ business model. The rationale behind the policy is this: if people arriving by boat have no hope of building a life in Australia, it is anticipated that there will be less demand to come to Australia and therefore people smugglers will be out of business. While deaths at sea have ceased, this cannot justify a policy that has legitimised abuse and is aimed at  “breaking people” who are fleeing war or persecution.

The United Nations, Amnesty International, Human Rights Watch and other notable NGOs have called Australia’s treatment of asylum seekers and refugees inhumane. Amnesty International’s most recent report on Nauru, entitled “Island of Despair” considers the treatment that asylum seekers and refugees are subjected to in Nauru as amounting to torture.  The combination of people’s mental anguish, in conjunction with a policy intended to intentionally harm in order to deter people from seeking asylum in Australia by boat, fits the definition of torture under international law.

Australia’s Prime Minister, Malcolm Turnbull rejects the claim and has deflected responsibility. He insists that the Nauruan government is responsible for what happens to asylum seekers and refugees there.

In reality, Australia is clearly accountable. It is Australia that transports people to offshore detention, funds the centres and continues to employ a policy that is harmful and in breach of international law. Australia is a signatory to the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention Against Torture (CAT) and must fulfil its obligations under them, including abolishing policies that propagate torture.

So in light of this grim picture, what can be done moving forward?

International pressure has not produced significant results so it is incumbent upon Australian civil society to demand more humane policies. Continued peaceful protests and legal challenges in Australia, together with international pressure will hopefully encourage the government to close offshore centres and treat people seeking asylum with more dignity and respect. The fact that offshore processing costs Australian taxpayers approximately AUD $573 000 per year for each person in detention should also raise concerns. Processing and resettling people in Australia is cheaper. Moreover, the economic and social contribution that migrants make to the Australian community is well documented and invaluable.

It is imperative that we do not shake our heads in despair and remain silent and inactive. The plight of asylum seekers and refugees must not be placed in the “too hard basket.” This is true not only for the 2000 plus individuals on Nauru and Manus Island but for the millions of asylum seekers and refugees worldwide. 

2 Comments

Nadeshda Jayakody
Posted by Nadeshda Jayakody on November 3, 2016 at 16:48

Hello Mark, thanks for your question!

To my knowledge there hasn’t been any recent cases, particularly in relation to the situation on Nauru and Manus Island.

The Human Rights Committee has in the past said that Australia’s non-reviewable detention of refugees on security grounds is arbitrary.

See: http://hrlc.org.au/australias-indefinite-non-reviewable-detention-of-refugees-on-security-grounds-violates-international-law/

Mark Klaassen
Posted by Mark Klaassen on November 2, 2016 at 10:54

Thank you Nadeshda for your interesting blog. Do you know whether any complaints are made at the Human Rights Committee or the Committee against Torture?

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