Chapter 1Introduction and key issues
1.1On 7 February 2023, the Migration Amendment (Evacuation to Safety) Bill 2023 (the Bill) was introduced in the Senate as a private senator’s Bill by Senator Nick McKim.
1.2On 9 February 2023, on the recommendation of the Senate Selection of Bills Committee, the Bill was referred to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 7 March 2023.
Conduct of the inquiry
1.3In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to relevant organisations and individuals inviting submissions by 24 February 2023.
1.4The committee received 144 responses to its call for submissions. Of those responses, 64 are listed at Appendix 1 and are available on the committee’s website. The committee received 41 form letters (with variations), six examples of which are available on the committee’s website. The committee also received 35 short statements, which are not published.
1.5The committee had the support of Senator McKim to conduct the inquiry on the papers meaning with reference to the Bill, information contained in the Explanatory Memorandum, and the submissions.
Purpose of the Bill
1.6The Bill would require the Australian government to offer people in offshore detention in Papua New Guinea (PNG) or Nauru the opportunity to transfer to Australia, provided they are not subject to an adverse security assessment.
1.7People who accept the offer would be placed in community detention until provided with a durable third-country solution with a State party to the United Nations’ 1951 Convention Relating to the Status of Refugees (1951 Refugee Convention) or its 1967 Protocol relating to the Status of Refugees (1967Protocol).
1.8In November 2016, Australia entered into a resettlement arrangement with the United States of America (US). Under the terms of the arrangement, up to 1250refugees may resettle in the US. To date, approximately 1080 refugees have been resettled in the US under this arrangement.
1.9On 24 March 2022, the Australian government also entered into a resettlement arrangement with New Zealand. Under the terms of that arrangement, up to 150refugees may resettle in New Zealand each year over a period of three years. Ten refugees have reportedly been resettled in New Zealand.
1.10Refugees are also pursuing private sponsorship in Canada and the Department of Home Affairs (the department) continues to assist Canada to help facilitate that process.
Background
1.11On 19 July 2013, the Australian government signed the Regional Resettlement Arrangement with PNG. On 3 August 2013, a Memorandum of Understanding (MOU) containing similar terms was announced with Nauru.
1.12Under those arrangements, all asylum seekers arriving in Australia by boat without valid visas (‘unauthorised maritime arrivals’) were transferred to either PNG or Nauru to undergo regional processing. According to the department, 4177 unauthorised maritime arrivals have been transferred to Nauru or PNG for processing since September 2012.
1.13On 2 March 2019, the medical transfer provisions contained in Schedule 6 of the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 came into operation. Those provisions created a legislative framework for the transfer of offshore detainees to Australia for medical or psychiatric assessment or treatment. On one estimate, 192 refugees and asylum seekers were transferred to Australia under this legislation while it was in operation.
1.14On 4 December 2019, the medical transfer provisions were repealed by the Migration Amendment (Repairing Medical Transfers) Act 2019.
1.15On 24 September 2021, a new MOU for the establishment of an ‘enduring’ regional processing capability in Nauru was signed and came into effect from 1July 2022.
1.16According to the department, as of 31 December 2021 there were 105 individuals remaining in PNG. At that time, the department was aware of approximately 75individuals in PNG who were pursuing third country resettlement pathways. The department no longer monitors or reports on the status of people remaining in PNG.
1.17On 1 January 2022, the management of regional processing services in PNG was transferred to the PNG government. Under that arrangement, PNG will provide a permanent migration pathway to people who want to settle in PNG and will support individuals pursuing third country migration options until they depart PNG.
1.18According to the department, as of 31 January 2023, there were 66 transitory persons remaining in Nauru. On 7 February 2023, the Australian government redesignated Nauru as a regional processing country.
1.19The department pointed out that the Australian government remains:
… committed to finding durable migration outcomes for all individuals under regional processing arrangements… [and that] Third country resettlement provides the best available opportunity for individuals to build a path to a new life.
1.20The Australian government has affirmed its view that the purpose of the regional processing arrangements is to deter people smugglers from exploiting and encouraging vulnerable people to risk their lives at sea.
1.21As stated by the Minister for Home Affairs (the Minister), theHonClareO’NeilMP:
At the last election, the Prime Minister spoke of the need to be strong on borders without being weak on humanity. Regional processing is about both.
…
Regional processing is integral to us being strong on borders because it breaks the business model of people smugglers who seek to market an outcome amongst some of the world’s most vulnerable people. In doing so, it ultimately saves the lives, thousands of lives, of vulnerable people who would otherwise be exploited and tricked onto leaky boats to attempt a dangerous voyage at sea. That’s something that also risks the lives of Defence and Border Force officers who have to deal with the often incredibly tragic consequences of these ventures.
I appreciate that there are people in this place who think very differently about this issue, but I would point out that regional processing has been settled policy on both sides of politics for over a decade, for precisely the issues that I have described. Regional processing was a policy formulation that was carefully formed, through a robust and very well done policy process. It was recommended in a report led by the former Chief of the Defence Force Air Chief Marshal Angus Houston, along with Professor Michael L’Estrange, the then director the National Security College at ANU, and refugee expert Paris Aristotle. That panel was charged with making recommendations on how best to prevent asylum seekers from travelling to Australia by boat.
…
The government has been very transparent in its position on regional processing. We implemented this policy when we were in government previously. We remained firmly committed to it while we were in opposition, and we went to the election on it. That is because, fundamentally, regional processing breaks the business model for people smugglers. It takes away the product that they are trying to sell and, in doing so, it stops vulnerable people risking their lives on dangerous voyages on leaky boats. It stops death at sea. It is absolutely as simple as that. It is tough. It sends a message that persons who attempt to take a journey by boat will not settle in Australia. It is part of a wider framework in Operation Sovereign Borders [OSB] that means persons trying to enter Australia without a valid visa will be returned to their port or country of origin.
1.22Specifically in relation to offshore detention, the Assistant Treasurer, the Hon Stephen Jones MP, announced that the government’s intention is to:
… ensure that there continues to be an offshore processing facility as a part of our border protection policies, but it is our objective to ensure that there’s nobody there…or if anybody is there, they’re there for a very short period of time until a third-country settlement arrangement can be put in place.
Key issues
1.23Overwhelmingly, submitters supported the Bill. They agreed that the Minister should be required to offer certain persons held in offshore detention transfer to Australia to enable them to seek a durable solution for their permanent settlement in a third country, which is a party to the 1951 Refugee Convention and its 1967 Protocol.
1.24This section of the report outlines submitters’ views, covering the following four topics:
Physical and mental health concerns;
International human rights obligations;
Financial costs associated with regional processing; and
Community detention.
Physical and mental health concerns
1.25Most submitters argued that transfer to Australia would enable asylum seekers to access appropriate medical and mental health care. Several submitters raised concerns about how those needs are met or not met in Nauru and PNG.
1.26Médecins Sans Frontières/Doctors Without Borders-Australia (MSF) queried the level of healthcare available to offshore detainees in Nauru:
The medical facilities on Nauru ensure that detainees are unable to access the quality of care to the standard that a person in Australia might expect to receive, and are grossly ill-equipped to address the complex physical and mental health needs that plague the ASR [asylum seekers and refugees] population. Preventable health conditions, like poor nutritional health, are widespread and compounded by already exacerbated and uncontrolled pre‑existing physical and mental conditions.
1.27In 2016, Human Rights Watch investigated the medical care provided to these detainees and similarly concluded:
… medical equipment was rudimentary, specialist medical attention was not regularly available, and dental services were largely limited to tooth extraction. Refugees and asylum seekers described being transferred to medical facilities outside Nauru for care not available there, without their family members in most cases.
1.28Several submitters noted the repeal of the provisions contained in Schedule 6 of the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019, which provided for medical evacuations from 2 March 2019. The Asylum Seeker Resource Centre (ASRC) submitted, for example, that, if the Bill is not enacted, there will be no clear and effective pathway to evacuate offshore detainees from regional processing countries:
Without a transparent and efficient evacuation process, both the mental and physical health of refugees will continue to deteriorate... While critically ill refugees and even those approved for evacuation are still held offshore, despondency over the transfer system will persist. Incidents of self-harm, hunger strikes and protests are a result of the toxic offshore conditions and ineffective medical evacuation process. The Evacuation to Safety Bill will provide a clear and effective pathway to evacuate refugees and people seeking asylum.
1.29Legal experts, Dr Sara Dehm, Dr Claire Loughnan, Ms Samantha O’Donnell and Dr Jordana Silverstein, argued that Australia has an ongoing responsibility to offshore detainees that is recognised in the Bill:
The Bill’s provisions are important in implicitly recognising Australia’s ongoing responsibility towards people subject to Australia’s extraterritorial asylum regime, all of whom have been living in a protracted state of legal limbo for nearly a decade. In this time, they have been denied effective access to asylum and to rebuild their lives in safety and dignity. The Bill provides them with a feasible evacuation option from Australia’s extraterritorial asylum regime in Nauru and PNG that will facilitate their access to decent healthcare.
1.30Many submitters focussed on the mental health of offshore detainees, arguing that this is a critical issue that has not been addressed and which continues to deteriorate with significant consequences for the detainees.
1.31Over an 11-month period, MSF provided psychological and psychiatric treatment to 208 offshore detainees in Nauru. MSF reported medical data ‘illustrative of an uncontrolled mental health crisis that was reaching a critical juncture’.
1.32Of the 208 patients treated, MSF advised that 62 per cent were diagnosed with moderate to severe depression, 25 per cent suffered anxiety disorder, and 18 per cent were experiencing post-traumatic stress disorder. There were 12 patients diagnosed with resignation syndrome—a rare psychiatric condition that requires constant medical care to keep the patient alive.
1.33MSF submitted:
The degree and severity of mental conditions among MSF patients in Nauru was among the worst the organisation has ever observed globally, including in MSF programs providing care for torture victims and victims of human trafficking.
1.34Many submitters commented on the high rate of suicidal ideation and self-harm among offshore detainees. With respect to its patients, MSF advised:
Almost two thirds of patients had suicidal ideation and/or engaged in self‑harm or suicidal acts, with one third having attempted suicide. Children as young as nine were found to have self-harmed, experienced suicidal ideation, or attempted suicide.
1.35By way of comparison, Doctors for Refugees submitted:
Rates of self-harm ranged from 5 per 1000 asylum seekers in community-based arrangements to 260 per 1000 asylum seekers in offshore detention on Nauru. Rates were highest among asylum seekers in offshore and onshore detention facilities, and lowest among asylum seekers in community-based arrangements and community detention... [R]ates of self-harm in the Australian community between 2012 and 2013 were 1.2 per 1000 people, meaning rates of self-harm in onshore and offshore detention were up to 216 times higher.
1.36Grandmothers for Refugees argued that quality medical and mental health services ‘are urgently required after [offshore detainees] have spent nearly 10 years trapped indefinitely in inhumane conditions, separated from family, and without hope for the future’.
1.37MSF agreed that ‘the indefinite nature of the Australian Government’s policy was consistently reported [by its patients] as a primary stressor on their lives and mental wellbeing’.
1.38The Refugee Council of Australia (Refugee Council) submitted that the lack of adequate medical and mental health services has adversely affected offshore detainees ability to make informed choices about their future:
Many of those who remain are too unwell to be able to make informed decisions about settlement in a third country as a result of witnessing and being subject to the persistent violence of the offshore processing system for over nine years. Evacuating them to Australia where they can access urgent support is necessary to end this violence and enable them to make future‑focused decisions.
1.39In light of the above considerations, the Lismore Presentation Sisters concluded:
… the human rights of these people have been ignored. They have been subjected to cruel, inhumane and degrading treatment. Their mental, emotional and physical health has deteriorated. It is past time to bring them to Australia where they can begin to rebuild their shattered lives.
International human rights obligations
1.40Some submitters argued that the Australian government is legally responsible for offshore detainees and is violating its international human rights obligations by subjecting these people to uncertain and difficult conditions.
1.41The New South Wales Council for Civil Liberties expressed its view that the ‘Australian asylum seeker policy is a gross breach of human rights and decency and is inconsistent with its obligations under international law’.
1.42The Kaldor Centre for International Refugee Law (Kaldor Centre) agreed that Australia has a duty of care toward the people that were forcibly transferred to Nauru and PNG, which is not absolved through regional processing arrangements:
If Australia seeks to shift the obligations under its duty of care to other States or entities, it is obliged to take all reasonable steps to ensure that the duty will be fulfilled. Failure to do so may cause any breaches by those States or entities to be attributable to Australia.
1.43Amnesty International Australia concurred that citing arguments of sovereignty to justify the denial of a person’s right to seek asylum is contrary to both the objects and intention of the international human rights and the refugee law framework. Its submission concluded:
In furtherance of a policy to deter refugees and people seeking asylum, the Australian Government has made a calculation in which intolerable cruelty and the destruction of the physical and mental integrity of hundreds of children, men and women, have been chosen as a tool of government policy. In doing so the Australian Government is in breach of international human rights law and international refugee law.
1.44The Kaldor Centre highlighted that there are also international law obligations relating to pre-existing human rights violations:
Australia has a duty to cease any ongoing violations and ensure that any person who has suffered past violations has an effective remedy. For the people who remain in Nauru and PNG, an important first step in providing this remedy is offering them the option of transfer to Australia where they will be accommodated in an appropriate residential setting and provided with timely medical and psychiatric assessment or treatment as needed.
1.45The Office of the United Nations High Commissioner for Refugees (UNHCR) informed the committee that the UNHCR and other United Nations human rights monitoring mechanisms share these concerns.
1.46Further to the comments made by Dr Dehm and her colleagues, some submitters indicated that the Bill would better align Australia with its international law human rights obligations. The Kaldor Centre considered:
The new transfer mechanism proposed by the Bill would constitute an important step in Australia meeting its obligations under domestic and international law with respect to people who were transferred to, and remain in, Nauru and PNG.
1.47Similarly, the New South Wales Council for Civil Liberties suggested:
The Bill offers the chance to reform the law to bring Australia’s immigration policies in line with our international obligations under the Refugee Convention, by bringing all refugees and people seeking asylum to Australia while determinations are made about durable solutions.
1.48Amnesty International Australia submitted that, 10 years after its introduction, there is greater awareness of the damage caused by offshore processing and the consequent need for change: ‘there is an obvious need to find a better balance between Australia’s border security and the rights and responsibilities towards people seeking asylum’.
1.49The department acknowledged concerns regarding regional processing but maintained that the arrangements do not breach Australia’s international human rights obligations:
Regional processing is a complex and sensitive policy setting that attracts significant criticism from refugee advocates, the public and international organisation [sic], notably in UN bodies, raising concerns over externalisation, human rights and conditions and standards of care. Australia strongly contests claims that regional processing arrangements breach Australia’s international human rights obligations.
1.50The department added that ‘in implementing the Government’s border security policies, all activities under OSB are conducted in compliance with all domestic and international law obligations’.
Financial costs associated with regional processing
1.51Some submitters highlighted the costs associated with regional processing, which they argued cannot be justified. The Refugee Council submitted, for example:
Australia has spent over $9.5 Billion dollars in the past decade to warehouse people in remote islands, removed from our sight but not from the hearts of millions of Australians.
1.52The Refugee Council indicated that the $9.5 Billion figure is likely to be conservative as:
… it only counts costs that the government directly attributes to the offshore processing policy and not, for example, aid and development assistance that was promised to Nauru and PNG to secure the arrangements, or to Cambodia to resettle seven refugees.
1.53The New South Wales Council for Civil Liberties agreed that regional processing incurs a wide range of costs:
The legal and administrative costs associated with visa fees also contribute to the economic costs of offshore processing. While reported costs have not been updated since the last refugees were released into community detention, it is estimated that the Australian government paid $87 million in visa fees to the Nauruan government from when the policy commenced in 2012 to 30 September 2018. Australia pays Nauru a visa fee of $2000 a month for each refugee, and $1000 a month for each person seeking asylum, as well as an additional $1050 annually for each service provider. In addition to visa fees and administrative costs, Australia has also spent $38.5 million upgrading the Nauru hospital and $23.1 million building the Bomana immigration detention centre in PNG.
1.54The New South Wales Council for Civil Liberties suggested that the ‘exorbitant’ costs would be better money spent on community detention:
… offshore processing is extraordinarily expensive, costing more than $1 Billion per year, and it is estimated that it has cost the Australian Government $9.65 Billion since July 2013. Contrastingly, it is far more cost effective to allow a refugee or asylum seeker to live in the Australian community.
1.55According to the ASRC, ‘the annual average cost of a person seeking asylum living in the community with support services was $54,798’.
Community detention
1.56Some submitters highlighted the importance of community detention in preference to alternative places of detention (such as hotel-style accommodation, hospitals, aged care facilities, and other locations suitable for detainees requiring specialised services).
1.57Legal experts, Professors Caroline Fleay, Mary Anne Kenny and Lisa Hartley, argued that release from long-term detention into community detention is critical to commence the physical and mental healing process. They further noted that community detention is not a long-term solution:
Reports highlight the negative psychological impact of people being in long-term community detention, as well as the challenging transition process for unaccompanied children in community detention who reach the age of 18. Community detention should only be used as a short-term solution.
1.58Amnesty International Australia submitted that community detention has often been implemented arbitrarily, while also being used to restrict the rights of asylum seekers and refugees. Its submission argued that people who are placed into community detention:
… should be afforded basic rights and entitlements, including the right to employment and education. While CD may be appropriate for some, there must be flexibility in this designation to ensure an appropriate decision can be made around the circumstances of individuals.
…
While waiting for third country options, restrictions on basic rights such as the right to study is also deeply harmful as well as counter productive. If refugees are to successfully settle in counties such as New Zealand, who are assisting Australia by offering resettlement places, then all efforts should be made to allow these refugees to access basic rights that will result in improved integration while waiting for these outcomes.
1.59The Darwin Amnesty Group supported people being placed in community detention where they ca access basic rights and entitlements, including accommodation and a living allowance but excluding work and study rights.
1.60Justice for Refugees SA submitted:
[We have] seen many examples of refugees arriving, living in the community, obtaining work, going on to build their own successful businesses, and contributing to the Australian society and economy. Those currently held offshore should be given the same opportunities.
1.61In a similar vein, HRW pointed out that, internationally, community-based alternatives to immigration detention have been successfully implemented in a number of other jurisdictions:
… where refugees and non-citizens’ [sic] are provided with casework support in the community while their cases are progressing. Alternatives have proven not only more human than detention, but effective in achieving immigration enforcement goals at a lower cost.
Committee view
1.62The Migration Amendment (Evacuation to Safety) Bill 2023 would require the Australian government to offer transfer to Australia to asylum seekers and refugees currently in offshore detention.
1.63The committee acknowledges that a number of asylum seekers and refugees have been in offshore detention far longer than can reasonably be expected. The committee recognises that this has resulted in significant personal costs, including physical and mental health costs, that cannot be allowed to continue.
1.64The Australian government has recently affirmed its commitment to regional processing as an effective means to deter people smuggling and save lives at sea. However, the government has also taken the view that unauthorised maritime arrivals only be placed in offshore detention for ‘a very short period of time until a third-country settlement arrangement can be put in place’.
1.65The committee notes that the Australian government is not currently reviewing regional processing and Operation Sovereign Borders. In this context, and consistent with its stated intention, the committee urges the government to urgently consider all available options to effect the removal of asylum seekers and refugees currently in offshore detention.
1.66The committee recommends that the Senate does not pass the Bill.
Senator Nita Green
Chair