Terms of reference and conduct of the inquiry
On 12 October 2015 the Senate, 'noting the sovereignty of the Republic
of Nauru and Papua New Guinea, and within the limits of Australia's sovereignty',
referred the following matter to the Senate Legal and Constitutional Affairs
References Committee (the committee) for inquiry and report by 31 December
conditions and treatment of asylum seekers and refugees at the regional
processing centres in the Republic of Nauru and Papua New Guinea;
and accountability mechanisms that apply to the regional processing centres in
the Republic of Nauru and Papua New Guinea;
of recommendations of the Moss Review in relation to the regional processing
centre in the Republic of Nauru;
extent to which the Australian-funded regional processing centres in the
Republic of Nauru and Papua New Guinea are operating in compliance with
Australian and international legal obligations;
extent to which contracts associated with the operation of offshore processing
value for money consistent with the definition contained in the Commonwealth
the terms of their contracts, and
- delivering services which meet Australian standards; and
other related matter.
In accordance with usual practice the committee advertised the inquiry
on its website, and also wrote to various organisations and individuals inviting
Bearing in mind the long duration of the inquiry, the committee set an
initial submission deadline of 31 March 2016, with a view to obtaining a first
tranche of evidence, while leaving open the possibility of accepting further
submissions at a later stage of the inquiry.
At the date of this interim report, the committee had accepted 30
submissions. Certain submissions were accepted wholly or partly in camera.
A list of submissions received is at Appendix 1.
This interim report
As of May 2016, the committee has not yet had the opportunity to conduct
any public hearings for this inquiry, nor to consider any further investigation
of the matters before it. This interim report therefore summarises some of the
key issues raised in the submissions received to date, but does not seek to
draw any conclusions or to offer substantive recommendations.
The committee intends to continue its inquiry, but recognises that the
impending national election may interrupt that effort before the committee is
able to conclude. Should this occur, the committee recommends to the new Senate
that it refer this matter anew, and hopes that a future committee may find this
interim report helpful in moving forward.
The history of the Australian Government's policy of 'offshore
processing' in Nauru and Papua New Guinea (sometimes known as the 'Pacific
solution') dates back to 2001, and has been recounted in detail elsewhere,
including in various publications by the Parliamentary Library.
After a hiatus between 2008 and 2012, the present Regional Processing Centres
(RPC) in the Republic of Nauru and on Manus Island in Papua New Guinea (PNG)
began operation in September and November 2012, respectively.
There have been two other significant Senate committee inquiries in the
44th Parliament relating to the RPCs on Manus and Nauru. In 2014,
this committee conducted an inquiry into the incident at the Manus RPC in
February that year which resulted in the death of Mr Reza Barati.
In considering that incident, the committee examined and reported on a broad
range of issues related to the governance and management, legal obligations,
physical conditions, refugee status determination and resettlement arrangements
at the Manus RPC.
In 2015, the Senate established a select committee to inquire into
conditions and circumstances at the RPC in Nauru, particularly in response to
allegations of sexual and other abuse, including of children, that had emerged
in late 2014. That committee's report was also broad in scope, covering a range
of issues including questions of legal jurisdiction and Australia's
responsibilities; management and governance of the RPC; living conditions,
services and facilities; and the protection of detainees at the RPC from abuse
At the time of this report, the most recent statistics published by the
Department of Immigration and Border Protection (the department) indicated that
as at 31 March 2016, there were 468 asylum seekers and refugees (363 men, 55
women and 50 children) in the Nauru RPC, and 905 asylum seekers and refugees
(all men) in the Manus RPC.
The committee notes that in October 2015, the Government of Nauru
announced that the RPC had been made a fully 'open centre', with residents able
to move to and from the RPC, within Nauru, at will. The position of the
governments of Nauru and Australia has been that since that time, those
resident in the RPC Nauru are no longer 'detained'. It is noted that many
submitters did not accept that proposition, and have continued to use the
terminology of 'detention' in describing the Nauru RPC and its residents,
sometimes reflected in this report.
Key issues raised in submissions
A range of issues have been raised in the 29 submissions made to the
inquiry so far. With the exception of submissions from the department and
Broadspectrum (the primary private contractor which services both RPCs on the
government's behalf, formerly named Transfield Services), the submissions were
overwhelmingly critical of the government's offshore detention policies and
The following highlights some of the key issues raised for the
The legal issues
The committee received a number of submissions from legal experts and
organisations, maintaining the view previously placed on record by many, that
Australia retained significant legal responsibilities in relation to the asylum
seekers held at the RPCs on Manus and Nauru.
The Law Council of Australia (LCA) said that Australian responsibility
for the health and safety of those in the RPCs stemmed from:
the Commonwealth's potential duty of care at common law; and
two principles of international law: that of 'joint and several
responsibility' for intentionally wrongful acts, and Australia's 'effective
control' over the RPCs.
The 'Plaintiff M68' judgment
A number of legal experts submitted that, while the High Court's
February 2016 judgment in the 'Plaintiff M68' case
found that detention of asylum seekers at the Nauru RPC was authorised under
Australian law, the legality of Australia's role in the RPCs was not fully
Some were critical of the Australian Parliament's enactment of
retrospective legislation following commencement of the case, and the
Government of Nauru's enactment of 'open centre' arrangements just days before
the High Court heard the matter—both of which were key elements in the court's
ruling of legality. Labor for Refugees NSW said 'it's un-Australian to change
the goalposts during the game'.
As for the judgment itself, LCA assessed that:
While the High Court...upheld the validity of offshore
detention on Nauru, the different approaches of the four separate judgments
demonstrates there are some unresolved issues in respect of the question of who
was detaining the plaintiff, and the question of the scope of the
Commonwealth's power in circumstances where there is no statutory authorisation
of that power.
Law Students for Refugees (LSFR) said the court had found that the
Commonwealth's involvement in the offshore processing regime was
'indisputable', and believed that 'the legal character of this situation is
Similarly, the Refugee Council of Australia (RCOA) advised that 'a majority of
the judges did not accept the proposition that the offshore processing regime
in Nauru was solely Nauru's responsibility'.
SHS Law and RCOA pointed out that the judgment did not give permission
for indefinite detention, only for detention for as long as it served the
purpose of processing, and that this may lead to future legal action
challenging the lengthy periods for which people were detained in the RPCs.
UNSW Law Society said that 'the question of whether the Commonwealth
owes a duty of care to asylum seekers in the regional processing centres on
Nauru and Manus Island has not been answered by the High Court', agreeing with
LCA that the Commonwealth still owed a non-delegable duty of care to the asylum
seekers under Australian common law.
LCA and others also noted that the High Court decision 'does not affect
Australia's obligations under international law'.
Some remained of the view that Australia exercised 'effective control' over the
RPCs and thereby attracted responsibility for ensuring the rights of the people
More broadly, UnitingJustice Australia and others argued on the basis of
various Conventions and principles, that Australia's transfer of asylum seekers
to RPCs, and their treatment there, placed this country in continued breach of
The department disagreed, rejecting the argument of 'effective control'
and reiterating the government's view that Australia's international
obligations were limited to, and fulfilled by, its pre-transfer assessment of
Australia complies with its non-refoulement obligations by
conducting pre-transfer assessments in relation to all persons liable for
transfer to a regional processing country. This assessment is used to consider
whether appropriate support and services are available in the regional
processing country and to confirm that there are no barriers to the transfer
Once a person is transferred to a regional processing
country, the assessment of whether or not protection obligations are engaged by
the regional processing country is a matter for the Government of that country,
having regard to their international legal obligations. Australia’s
international obligations apply only to those who are subject to its
The security, good order and management of the RPCs,
including the care and welfare of persons residing in the centres, remain the
responsibility of the respective regional processing countries although
Australia supports each country in relation to such matters through the
provision of services by contracted service providers.
Some argued that, whatever the legal situation, Australia remained
morally and ethically responsible for its conduct in relation to the RPCs, and
the conditions and treatment of the people held there.
Living conditions in the RPCs
Building upon the evidence provided in earlier reports of Senate
committees and other bodies, as well as media reports, many submitters were
damning about the conditions in which people were being held in the RPCs in
Nauru and Manus.
A former Transfield employee, who worked at the Nauru RPC during 2014-15
and had also worked in Australian immigration detention centres, described very
poor living conditions at the RPCs and submitted that 'the standard of
accommodation and health facilities at the RPC in Nauru do not meet the same
standard of those provided in Australian immigration detention facilities'.
The Royal Children's Hospital (RCH) Melbourne, which provides health
services to children and families sent for treatment from the Nauru RPC, said
that families described the facilities at the RPC as hot, humid, dirty, lacking
privacy and 'prison-like', as well as posing a number of specific hardships for
children including lack of easy access to toilets and laundry facilities,
inadequate eating arrangements for toddlers and children, and insufficient
clothing, footwear and baby supplies.
Australian Lawyers for Human Rights (ALHR) believed that the harm to
asylum seekers and refugees in the RPCs had worsened.
The Refugee Advice & Casework Service (RACS) said that its clients'
accounts of the conditions at the RPCs, including their fears about safety and
security, were sometimes 'akin to the fears of persecution experienced in their
On the other hand, Broadspectrum described the services it provided in
the two RPCs as a 'fully integrated, welfare led model' and said that it had
made recent improvements to services including new and improved educational
vocational and other programs and activities.
In its submission to the inquiry, the department provided detailed information
relating to the infrastructure and services provided at the RPCs, and
highlighted recent improvements made to the accommodations and other services.
Danger, abuse and harm
LSFR made a large submission to the inquiry, drawing upon a project
under which it had sought information about incidents of assault, self-harm,
use of force and other significant disturbances at the RPCs under the Freedom
of Information Act 1982 (FOI Act). LSFR provided the committee with
'summaries of incident report logs' provided by the department in response in
January 2016, recording incidents between June 2014 and July 2015.
LSFR summarised that information, revealing that during the 13-month
period reported, the department had recorded:
134 incidents of actual self-harm, many amounting to attempted
suicide and including some by children;
75 instances of the use of force against asylum seekers, by other
asylum seekers and by RPC Staff—LSFR described a 'seemingly customary' use of
force by Wilson Security and other contracted staff, demanding greater
26 'major disturbances' of various kinds, all serious in nature
and posing risks to the safety of asylum seekers and staff;
34 instances of serious assault requiring medical treatment;
16 serious accidents or injuries and 23 public health risks.
These included reports of electrocution and the outbreak of contagious diseases
including malaria and hand, foot and mouth disease. LSFR also believed that
some incidents classified as 'accidents' may have been misreported, and in fact
involved deliberate infliction of harm.
Responding to reported incidents involving its staff and subcontractors at
the Manus RPC, Broadspectrum submitted that:
We acknowledge that the environment at the Manus RPC can be
complex and challenging and that despite our commitment and our best efforts,
some incidents and allegations of misconduct have arisen. Where this has
occurred we have worked hard to respond promptly, sensitively and transparently
and have worked closely with the Department, [the PNG Immigration and
Citizenship Service Authority], and (where relevant) other service providers
and the Provincial Police Force on Manus Island (Manus Police) to report,
investigate and resolve incidents, allegations and concerns. In a small number
of instances where our staff or contractor’s staff have acted inappropriately,
we have acted firmly and decisively to eliminate any risk and to ensure that it
is understood that misconduct will not be tolerated.
The department outlined the mechanisms and procedures in place for
management of complaints and incidents in the RPCs, and that while responding
to criminal matters remained the responsibility of the host countries, the
department received and maintained records of all incidents reported by service
providers, and reported them to local authorities where required. The
department said it 'will continue to closely monitor incidents in RPCs to
implement continuous improvements to minimise reported incidents, where
Timeframes and uncertainty
A number of submitters referred to the long and indefinite timeline of
detention for people in the RPCs, left in a state of long-term uncertainty
about their future, as a key factor in both the abuse of their rights, and the
damage to their physical and mental health.
ALHR noted the department's own figures stating that the average time in
detention in early 2016 was over 450 days, and steadily increasing.
Labor for Refugees NSW said that '[m]any asylum seekers fleeing torture or
trauma are subjected to a second injury in the form of apparently indefinite
detention in dangerous and unsafe places'.
ALHR noted that a number of other countries in the world placed
mandatory time limits on detention, and was one of several submitters who
argued that Australia should similarly implement such standards.
The department advised that it continued to provide support to the
refugee status determination processes for those at the RPCs, noting progress
in this regard and the commitments of the governments of both Nauru and PNG to
complete remaining determinations as soon as possible.
Deterrence as policy
Some submitters expressed the belief that the harsh and indefinite conditions
of detention at the RPCs represented a deliberate policy on the part of the
Australian Government to deter others from the attempt to come to Australia by
The Edmund Rice Centre referred to Australia's policies as a form of
'backdoor refoulement', making the conditions and choices facing refugees so
intolerable that they were effectively forced to return to their countries of
RCOA submitted that:
The threat of being sent to an offshore processing centre can
only "work" as a deterrent if people seeking asylum believe that what
they are seeking in Australia—safety, humane treatment, a fair hearing, an
opportunity to rebuild their lives and a secure future—will not be available to
them in Nauru and Papua New Guinea. In RCOA's view, this creates a perverse incentive
to maintain inhumane conditions. Efforts to limit detention, expedite
processing of claims, improve physical conditions and provide durable solutions
would in fact work against the policy's intention, as offshore processing
operates most effectively as a deterrent when detention is prolonged,
processing is slow, physical conditions are harsh and the future is uncertain.
In essence, the success of offshore processing depends on human suffering.
The department argued, on the other hand, that:
Regional processing under the current legislative framework
(from August 2012) has had a significant impact on the flow of illegal maritime
arrivals to Australia. It has been instrumental in stopping unnecessary deaths
at sea and provides persons in need of international protection with durable
Offshore processing and health: the
The committee received seven submissions from eight medical
organisations, providing evidence of growing concern within the medical
community about the health impacts of prolonged offshore detention.
The Australian Medical Association (AMA) and the Royal Australian &
New Zealand College of Psychiatrists (RANZCP) both expressed the strong view
that prolonged and indefinite detention of asylum seekers in immigration
detention centres violated their basic human rights and contributed adversely
to their health.
The AMA referred the committee to its position statement on 'Health Care of
Asylum Seekers and Refugees', updated in 2015, which outlined particular
physical and mental health risks faced by asylum seekers and refugees.
The medical organisations were consistently of the view that the health
risks of detention were likely to be heightened in offshore processing centres
due to their remoteness, limited facilities and services.
The Australian Psychological Society (APS) expressed its particular concern
about the 'history of escalating mental health issues resulting from offshore
detention', including suicide attempts and serious self-harm, and the lack of
community resources and services in Nauru and PNG to support these people,
particularly vulnerable groups such as children and those with a history of
torture and trauma.
Occupational Therapy Australia (OTA) provided the committee with a
detailed submission about 'occupational deprivation', arising from the
inability of those in the RPCs to engage in meaningful occupations for an
extended period of time, and the resulting serious impact on their mental
While the quality of support and services at the RPCs was a point of
concern, the Royal Australian College of General Practitioners (RACGP) and the
Australian College for Emergency Medicine (ACEM), supported by the APS, argued
that 'the health issues caused by detention cannot be addressed while people
remain in detention, regardless of the extent or quality of the services
ALHR agreed, noting the documented medical view that 'it is often the
detention environment itself that causes mental illness', as well as the
'contagion effect' of bringing together groups of people in similar mental
health situations, leading to increased risk of problems including self-harm.
RANZCP added that:
There is clear evidence that the risk and severity of mental
illness increases the longer a person is in detention. Prolonged immigration
detention has been shown to worsen mental illness in those already suffering
when detained and to result in the development of completely new conditions in
those without mental illness on arrival.
The AMA argued that 'solutions to prolonged and indeterminate detention
must be sought as a matter of urgency', with detention used 'only as a last
resort, and for the shortest practical time'.
The AMA's position statement proposes that:
In order that asylum seekers do not spend a prolonged,
indeterminate period of time in detention, the Government must set in law an
absolute maximum duration that an asylum seeker can spend in detention. After
such time, the asylum seeker should be allowed to live in the community while their
visa application continues to be assessed.
The Royal Australasian College of Physicians (RACP) and APS went
further, calling for the complete cessation of offshore immigration detention.
The impact of the government's policies of offshore processing on
children was a particular focus of concern for many submitters to the inquiry.
The AMA drew the committee's attention to its position on children in
detention, describing detention facilities as 'unacceptable for children'
because of the particular risks to their development, physical and mental
Other organisations also expressed strong concerns about the physical and
mental health of children at the RPCs, as well as child protection concerns
created by the duration and environment of detention.
The Royal Children's Hospital Melbourne offered a damning analysis of
the mental health situation for the children it had treated from the Nauru RPC:
We have seen evidence of mental health pathology in all
of our patients who have been on Nauru. Symptoms include features of
post-traumatic stress disorder (PTSD), depression, anxiety, learning
difficulties, bedwetting in previously continent children, nightmares,
behavioural regression, memory loss, separation issues, and/or somatization in
the form of stomach aches and/or headaches. We have seen suicidal ideation and
thoughts of self-harm expressed by young children, which is extremely rare
clinically. Infants are dysthymic and withdrawn, with severely disordered
attachment, and we have seen developmental delay and multifactorial learning
problems in older children. Our patients, who are often young children, report
witnessing adults express suicidal thoughts and selfharming, sometimes through
violent means such as attempted hanging or through lacerations with significant
blood spill. These accounts, and other descriptions by children and families
suggest the Nauru RPC is an environment characterised by insecurity and fear.
These children are the most traumatised cohort of patients with whom we have
In addition, citing continued reports of physical and sexual abuse at
the Nauru RPC, ChilOut submitted that 'there is a direct and ongoing threat to
the safety of children detained there'.
ChilOut added that the harm to children 'has not been alleviated by the recent
"open" nature of the centre', and believed that the open centre terminology
was misleading, with substantive restrictions still in place.
RCH Melbourne and ChilOut also expressed concern about inadequate basic
health care being provided to children at the Nauru RPC.
RCH Melbourne said that in its experience children at the RPC had received
limited health screening, incomplete immunisations, and minimal or no monitoring
of their development. RCH Melbourne also expressed particular concern for
children and adolescents with disabilities on Nauru, where limited support
services were available to them.
ChilOut and RACS further detailed concerns about the standard of
education provided to children on Nauru, including refugee children, and a lack
of play and recreational opportunities.
RACS was particularly concerned about the safety and welfare of unaccompanied
child refugees now living in the Nauru community.
ChilOut believed that detention of children should only be 'a measure of
absolute last resort', and then, only within Australia.
The AMA advocated that unaccompanied children should never be placed in
immigration detention facilities, and accompanied children should only be
detained for the shortest possible time, and no longer than one month, after
which 'a suitable placement for the child with at least one adult family member
must be identified'.
Others agreed that statutory time limits on detention of children should be
ChilOut also recommended the establishment of 'an independent body of
medical and legal experts' specifically to assess the welfare of children and
respond to allegations of harm.
The department noted in its submission the establishment in May 2015 and
ongoing work of a 'child protection panel', which provided independent advice
to the government on child protection issues including in relation to the RPCs,
and was presently reviewing the responses of the department and its service
providers to reported incidents at the RPCs between 2008 and 2015.
LGBTI asylum seekers
The committee received some evidence focused on the situation of
lesbian, gay, bisexual, transgender and intersex (LGBTI) people held in the
Mr Alastair Lawrie noted that male homosexual conduct remained a criminal
offence in both Nauru and PNG, and expressed the view that 'the Australian
Government inflicts serious harm on LGBTI people seeking asylum by detaining,
processing and resettling them in countries that continue to criminalise
Mr Lawrie cited reports of abuse, assault and marginalisation of homosexual
asylum seekers in the RPCs, and the lack of appropriate health and community
services in the two countries.
ALHR shared these concerns, citing Amnesty International's reporting about gay
refugees and resettlement in PNG.
The NSW Gay & Lesbian Rights Lobby highlighted that 'LGBTI refugees
are some of the most vulnerable individuals held in detention around the
and submitted that they were subject to 'severe discrimination' in the RPCs and
their host countries, as well as in refugee status determination processes.
Mr Lawrie argued that LGBTI asylum seekers (whether or not their claims
for refugee status were based on their sexuality) should be housed and
processed in Australia.
The NSW Gay & Lesbian Rights Lobby agreed, and also offered a number of
recommendations for specific training and education of relevant officials and
service providers, as well as improved services, to better address the specific
needs and vulnerabilities of LGBTI asylum seekers.
Transparency and accountability: management
and contracting at the RPCs
Certain submitters were concerned about the accountability of private
contractors providing services at the RPCs. UNSW Law Society argued that 'the
outsourcing of the exercise of public power to private corporations
significantly distorts the transparency and accountability mechanisms that
would apply if asylum seekers were processed within Australian borders'.
UnitingJustice described the transparency and accountability mechanisms in
relation to the management of the RPCs as 'woefully inadequate', observing that:
A significant consequence of Government outsourcing these
functions is that it reduces the accountability of both the Australian
Government and the subcontractors. Privately contracted companies, for example,
are beyond the scope of Australia's freedom of information laws. Contractors
can decline to be questioned in Senate Estimates...while public servants are
subject to an APS Code of Conduct, private contractors face no such
requirements. We believe that the Australian Government should impose the same
accountability mechanisms on subcontractors as it would apply to public
The Edmund Rice Centre queried whether Australian-funded contractors'
works and products at and related to the RPCs needed to comply with Australian
One former contractor on Nauru submitted serious allegations to the
inquiry about procurement and contracting practices in relation to the RPC and
related Australian-funded projects on Nauru. The submitter claimed to have
witnessed widespread price-gouging, corruption and fraudulent procurement
processes, as well as substandard construction at the RPC including inadequate
fire protection. The submitter urged an independent audit of the construction
works and procurement and supply practices related to Australian-funded
projects on Nauru.
Broadspectrum submitted that it had 'extensive reporting obligations' to
the department, and that it had 'been involved and provided assistance in
various independent inquiries and investigations into matters relating to the
adding that 'almost without exception Broadspectrum meets or exceeds our
In relation to the standards applied to its work at the RPCs,
Broadspectrum advised that 'in some cases the Contract specifically requires
that we comply with Australian Standards and in other cases it acknowledges
that we are not required to comply'.
The department and Broadspectrum advised that the company's contract required
it to provide services that were the 'best available in the circumstances' and
where possible, 'broadly comparable with services available within the
The department noted that the Australian National Audit Office (ANAO)
was presently completing an audit of contracting and procurement in the RPCs,
expected to report to Parliament in June 2016.
The intense secrecy surrounding the operation of the RPCs was raised for
comment by many submitters.
RCOA expressed the view that since publication of the Senate Select
Committee report on the Nauru RPC in 2015, which made a number of
recommendations about greater transparency, 'the climate of secrecy has only
and believed that 'the ever increasing climate of secrecy concerning these
centres makes it highly likely that there remains much else that we do not yet
Liberty Victoria agreed, decrying the 'abject lack of any accountability or
transparency' in relation to the RPCs and that 'without access to any
independent, third party information, Liberty Victoria's ability to contribute
to this issue is extremely limited'.
Although it was able to provide over 100 pages of summary information
obtained through its use of the FOI Act, LSFR described in its submission how
the department had refused subsequent attempts to gain more detail about the most
serious incidents uncovered. LSFR assessed the department's justifications for
the refusal as 'demonstrably contrary to the objectives of the [FOI Act]' and
demonstrating 'a concerning trend toward opacity'.
RACS also expressed concerns about the government's refusal to disclose
documents needed to provide accountable legal redress for its clients, when
requested under the FOI Act.
The Josephite Justice Office submitted that:
...political leaders in Australia refuse to disclose what is
happening in these detention centres...the Australian community is left in
ignorance regarding the realities being experienced by asylum seekers. Secrecy
and lack of transparency, as a consequence, cloud the views of ordinary
Australians about what is being done in our name to some of the most vulnerable
people in the world today—people fleeing violence, torture and death from
places such as Iraq and Syria.
The fact is that most Australians do not like to see
vulnerable people being wilfully mistreated. The oppressive secrecy surrounding
the detention system suggests that the government understands this.
Mrs Louise Edwards believed that through lack of transparency and
restrictions on reporting, '[t]he current government has taken away the rights
of citizens to make informed opinions'.
LSFR similarly argued that:
Lacking clear facts, organised policy debate is hampered and
the risk of misinformation increases. Without adequate information about the
operation of the offshore detention policy, neither its opponents nor its
advocates are able to have a free and informed debate about its merits. This
fundamentally detracts from the validity of the democratic process in
The Border Force Act
A number of submitters raised specific concerns in relation to the
secrecy and disclosure provisions enacted in the Australian Border Force Act
2015 (ABF Act).
LCA submitted that in preventing consultants and contractors of the
department from making public interest disclosures about conditions in
immigration detention facilities, 'these provisions threaten the rule of law',
and that the exceptions within the Act were insufficient to redress that
RCOA said that within its work, it had observed that the ABF Act 'has already
had a "chilling effect" on the capacity and willingness of people to
LCA argued that there should be a specific public interest exception to
the prohibitions on disclosure, and an express requirement that, for an offence
to be committed, there must be harm or intention to cause harm to 'an
identified essential public interest'.
RACGP and ACEM said that the ABF Act was 'deeply concerning to our
profession', and argued for specific exclusion of health care providers from
the disclosure offences.
Governance and oversight
A number of submitters offered recommendations for strengthening
accountability through independent oversight of immigration detention centres,
including the RPCs. Based on the mechanisms in existence to provide oversight
on national security issues, LCA proposed the creation of an independent
'visitor' or 'inspector' of Australian and offshore detention centres, and also
the establishment of an 'Independent Monitor for Migration Laws' to review
UnitingJustice Australia and ALHR also called for the establishment of
an independent authority to 'monitor and report publicly on the conditions
under which asylum seekers are held' as well as assured access for independent
monitoring by existing independent bodies such as the UN High Commissioner for
Refugees (UNHCR), Australian Human Rights Commission (AHRC) and Red Cross.
The Edmund Rice Centre argued for 'an independent investigation, possibly a Royal
Commission' into allegations about conditions and treatment at the RPCs.
The department stated that 'Australia welcomes independent scrutiny of
regional processing centres', but maintained that access to the RPCs was a
matter for their host governments.
Transparency and oversight of
asylum seekers' health
In addition, medical bodies argued for restored or improved independent
oversight of health and welfare services provided to asylum seekers and
refugees. Some referred specifically to the government's abolition of the
Immigration Health Advisory Group (IHAG) in December 2013, leaving a lacuna in
independent monitoring and oversight of the health care conditions and
treatment of asylum seekers and refugees in the immigration detention network.
The AMA argued that '[a] national statutory body of clinical experts
independent of government should be established with the power to investigate
and advise on the health and welfare of asylum seekers and refugees'.
RANZCP similarly advocated the establishment of an independent health advisory
body to oversee health service provision to asylum seekers, including in RPCs.
RACGP and ACEM joined the call for an independent health oversight body,
expressing particular concerns about the lack of monitoring of long-term health
outcomes for refugees, and unclear reporting and complaints mechanisms for
health providers working at the RPCs.
The government's progress on
implementing the Moss Review
A number of submitters were critical of what was regarded as a lack of
action by the government to implement the recommendations of the 2015 review by
Mr Philp Moss into allegations relating to conditions and circumstances at the
RPC in Nauru (the Moss Review). Some observed that the status of implementation
was not clear: RCH Melbourne advised that families in its care who had
contributed information to the Moss Review 'remain unaware of the progress of
investigations in relation to their allegations'.
Submitters called on the government to work immediately, as a priority, on
fully implementing all of the recommendations of the Moss review.
The department advised that as of 15 March 2016, 16 of the Moss Review's
19 recommendations and 35 of its 38 action items had been implemented, noting
work undertaken to improve physical accommodations and privacy, fencing and
lighting, as well as supporting the Government of Nauru to develop a child
protection framework and to progress refugee status determinations.
Broadspectrum also provided the committee with a summary of action taken toward
implementation of various of the recommendations of the Moss Review.
The department further advised that it was preparing for a visit to
Nauru to examine and report on the progress of implementation of all the Moss
Alternatives to detention
Some submissions sought to counter the government's claims that offshore
processing was necessary to maintain border security and effectively deal with
the problem of boat arrivals, by proposing alternatives to the RPC regime.
The Edmund Rice Centre proposed a 'six-point alternative' to offshore
processing, consisting of:
ending Operation Sovereign Borders and offshore detention;
reforming the onshore processing regime, with imposition of time
limits and use of a risk-based approach;
increasing and improving Australia's humanitarian refugee intake
to at least 30,000 people per year, with a focus on expediting family reunion;
building a 'genuine regional cooperation framework';
increasing transparency; and
improving public debate and discourse.
ALHR argued that 'there are many alternatives to detention' including
community-based and supervised release programs, submitting that these were
'clearly more in line with Australia's human rights obligations than the
current system of mandatory detention'.
Several submitters also drew attention to the extremely high costs of
the offshore detention program, as reported elsewhere. RACGP and ACEM observed,
for example, that the daily cost of detaining a person in an RPC 'is more than
the average daily cost of an acute hospital admission'.
The Josephite Justice Office cited reported costs of some $400,000 per year to
detain each asylum seeker at an RPC, compared to $239,000 for detention in
Australia and just $12,000 per year for community arrangements, saying that
'[t]his enormous sum could be more valuably allocated to reverse government
cuts and boost spending on critical areas such as health and education'.
A note on recent developments relating to the Manus RPC
Just days prior to the committee's finalisation of this report, on 26
April 2016, the Supreme Court of Papua New Guinea, PNG's highest court, held
that the detention of the asylum seekers at the Manus RPC was 'unconstitutional
and illegal', and ordered that the Australian and PNG governments 'forthwith
take all steps necessary to cease and prevent' their continued detention there.
The following day, PNG Prime Minister the Hon Peter O'Neill announced
that the Manus RPC would be closed, and that the PNG Government would
'immediately ask the Australian Government to make alternative arrangements for
the asylum seekers currently held' there. The Prime Minister said that those in
the RPC who had been determined to be refugees were invited to remain in PNG,
but 'that is their decision'.
At the time of this report discussions between the governments of
Australia and PNG were ongoing, and there was not yet any resolution as to when
the Manus RPC would close and where the asylum seekers and refugees housed
there would be sent.
The committee regards this inquiry as an important mechanism in the
Senate's ongoing attempts to scrutinise the situation at the RPCs in Nauru and
Papua New Guinea—established, funded and serviced by the Australian
Government—and to ensure that appropriate responsibility is taken for the
welfare and human rights of the people sent to them.
The committee is cognisant of the evidence provided to the inquiry so
far, as summarised above, and the many unresolved and ongoing issues which
remain to be investigated. The committee regards the policies and practices of
the Commonwealth Government in relation to offshore processing as issues of
major national importance, worthy of continued vigilant scrutiny by the Senate.
The committee notes that an important element of this inquiry was to
provide a forum in which persons involved with the RPCs could provide evidence
of conditions and treatment there under the protection of parliamentary
privilege. Given the policy of offshore processing will continue after the
upcoming election, and legislation such as the Australian Border Force Act will
remain in effect, there will continue to be pressing reasons to restore the
The committee intends to continue its inquiry, but recognises that this
year's election is likely to cut that work short. The committee therefore recommends
that the Senate refer this matter again for committee inquiry in the next
Finally, the committee notes the relevance of developments in recent
days with regard to the Manus RPC. The committee was not in a position to
consider these matters prior to issuing this report, but recognises that the
potential closure of the Manus RPC, and the decisions taken by PNG and
Australia about what happens to the people detained there, will have
implications for its inquiry going forward. The committee is of the view that
whether or not there is still a Manus RPC as envisaged in the original terms of
reference, matters relating to it, including the fate of the former detainees,
should form part of any further Senate inquiry.
The committee recommends that, should it be unable to complete its
inquiry prior to the 2016 national election, the Senate refer this matter for committee
consideration, in similar terms as appropriate, in the 45th Parliament.
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