Committee views and recommendations
Matters documented in this report were referred to the committee on
12 September 2016, four months after the previous inquiry into these matters
lapsed with the dissolution of both houses of Parliament on 9 May 2016.
That inquiry was also preceded by two other inquiries into matters related to
the Nauru Regional Processing Centre (RPC), and with specific incidents at the
Throughout this inquiry, this committee has reflected on the findings
made during previous inquiries. Overall, those inquiries found that the RPC
environments were unsafe generally—particularly for children—and regarded the
mechanisms by which incidents were reported and investigated, to be inadequate.
In the committee's view, the Department of Immigration and Border
Protection (the department) bears the onus of demonstrating that issues of
concern identified by previous committees have been addressed. The committee
does not believe that the department has done this. Rather, the evidence
presented to this inquiry indicates that many of the problems identified during
previous inquiries continue today, and that the re-classification of the RPCs
as 'open centres' has in fact exposed refugees and asylum seekers to new risks.
The evidence has also clearly demonstrated that the department has failed to
implement a system of accountability among its contractors and sub-contractors.
The provision of information to this inquiry
As explained throughout this report, the normal processes by which this
committee would conduct its inquiry have been frustrated. The committee has
been charged with inquiring into matters which are taking place in foreign nations.
The committee does not have the power to meet as a committee outside Australia,
and was therefore unable to travel to the RPCs to make an assessment of the
conditions, and to meet with the refugees and asylum seekers being directly
affected by offshore processing.
The committee noted, as have previous committees, that individuals
located outside Australia do not enjoy the protection of parliamentary
privilege in relation to the provision of evidence. The effect of this was that
if the committee were to accept and publish information provided by a person
outside Australia, that person could be disadvantaged by that evidence, and the
Senate would be powerless to assist them.
These issues were compounded by the fact that other would-be scrutineers
including various UN rapporteurs, human rights organisations, journalists, and
advocates, likewise face a number of structural barriers to entering either
Nauru or PNG, and would then have to obtain permission to enter the RPCs themselves.
The result has been that any recent or current evidence from these other
sources, of which the committee could take note, was extremely limited. It also
led to criticism by the department of many such accounts by human rights
organisations about their failure to verify information, or the use of out of
The committee relied heavily on the willingness of the department (in
particular) to provide thorough and transparent evidence about the running of
Australia's RPCs. Viewed as a whole, this assistance was not provided. The
committee is disappointed at the standard of assistance provided by the
department through the course of this inquiry. This was particularly the case
in relation to responses provided to questions either taken by the department
on notice, or put on notice in writing. Many of these responses were obstructive.
Examples of such responses were outlined in Chapter 3 of this report.
The committee also noted that some of the information provided by the
department could itself be viewed as a misleading representation of the RPCs.
This was particularly evident in the case of images of the Nauru RPC, which the
department provided to the committee on 16 February 2017.
The department stated that it provided these images, taken in August 2016, 'in
light of some recent media reporting featuring outdated vision of defunct and
superseded facilities'. These included images of the 'Nauru Hard-Walled
Accommodation Anujo Settlement Site'. There were no images of any tented
accommodation at the Nauru RPC. The committee is aware, however, that when
those photographs were taken people were still living in vinyl tents on Nauru. The
department's own submission also acknowledges that tents are still being
utilised (because they need to be sprayed each month to assist in pest and
The department provided the committee with more than 100 images (still shots
taken from video footage), including 12 images of Nauru RPC staff accommodation,
but no footage showing the state of tent accommodation at that time. The
ongoing use of tented accommodation in Nauru has been a source of sustained
criticism over many years, particularly in relation to the lack of privacy, and
the unsuitability of these facilities in such a humid climate. The department's
omission is very concerning.
The committee noted with particular concern that some of the most
instructive evidence in relation to these matters came from other sources, and
merely happened to be released publicly during or around the time of this
inquiry. This included the release of leaked incident reports known as 'the
and two major audits of the department by the Australian National Audit Office
The allegations of abuse, self-harm and neglect
As the Select Committee into recent allegations relating to conditions
and circumstances at the Regional Processing Centre in Nauru (select committee)
previously noted when charged with inquiries into these matters,
Senate committees are not in a position to investigate the veracity of
individual claims of abuse. A Senate committee is not a judicial or law
enforcement body, nor does it have official powers of inquiry which extend outside
This committee has, however, had the benefit of reference to the
findings of previous inquiries, as well as all the evidence presented to this
committee during previous inquiries, and all evidence published by other committees
inquiring into these and related matters. In this way, the committee's inquiry
into the actual allegations of abuse, self-harm and neglect has examined both
historical allegations, and current circumstances at the RPCs and the local PNG
and Nauruan communities.
Some of the evidence to which the committee had regard (including from
secondary sources, and the Nauru files), are historical in nature. The incident
reports included in the Nauru files, numbering more than 2000, date only to
October 2015. The committee has taken into account the department's assertion
that many of these incident reports were 'allegations', and not statements of
fact. The committee also identified, however, that many of these reports were
records made by a staff member who had witnessed an event first hand. In the
committee's view, these are first-hand accounts, and represent the closest
insight into day-to-day events at the Nauru RPC that this committee has had. As
this report has demonstrated, many of the incident reports reflect and build on
the evidence presented by secondary sources, including former RPC workers. Taken
together, these incident reports paint a grim picture of life within the Nauru
Unfortunately, the committee did not have access to such detailed
information in relation to the PNG RPC.
This committee agrees with the findings of previous committees in
relation to the allegations of abuse, self-harm and neglect among refugees and
asylum seekers in Nauru and PNG. The allegations of abuse and neglect (which
have been made publicly available) are prevalent and sustained. They indicate
that refugees and asylum seekers in RPCs are living in an unsafe environment. The
causal nexus between this unsafe living environment, including instances of abuse
and neglect, and corresponding widespread mental health problems and self-harm,
is indisputable. Furthermore, the allegations of which this and previous
committees are aware are unlikely to represent the true prevalence of incidents
of abuse, self-harm and neglect. This is deeply concerning.
There is also strong evidence indicating that when the RPCs became open
centres, the damaging living environment has not improved, and that refugees
and asylum seekers became exposed to new risks. Refugees and asylum seekers in
Nauru now make up a substantial percentage of the island population. Their
presence, and that of the RPC, has altered the character of Nauru. It is clear
that many refugees and asylum seekers feel unwelcome and unsafe, and do not
want to remain on Nauru. The committee noted in particular the extremely
disturbing allegations of women being raped in Nauru, and of children being
bullied and ostracised after being required to attend local schools. There are
also similar accounts of abuse and bullying in the PNG community, including the
well-known case of Mr Longham Sawari who was settled in Lae (PNG's second
largest city) at just 21 years old, and eventually tried to break back into the
RPC because of his inability to live in the community.
The committee also noted concerns about the risks of exposure to
phosphate mining and cadmium in Nauru. The committee recognises that prolonged
exposure to phosphate mining, and to cadmium, can harm human health. The
department was alerted to the need to conduct further studies about cadmium on
Nauru in 2012,
as well as the need to maximise separation between sources of phosphate dust,
and habitable areas.
The department was also alerted to concerns about cadmium exposure on Nauru by
its health services provider, International Health and Medical Services (IHMS).
The department told the committee that the management of cadmium risks on Nauru
is a matter for the Government of Nauru.
The committee disagrees. Asylum seekers and refugees are detained on Nauru
because of the Government's policy and as such, the management of cadmium risks
to these refugees and asylum seekers is the responsibility of the department.
Given that Nauru is very small, any further research commissioned by the
department into cadmium levels and phosphate exposure on Nauru would
undoubtedly be relevant to the entire island population.
Factors contributing to this abuse, self-harm and neglect
The evidence indicates that a combination of factors have contributed to
the allegation of abuse, self-harm and neglect among refugees and asylum
seekers in the Nauru and Manus RPCs (and the respective local communities).
A damaging living environment and a
lack of autonomy
As set out above, asylum seekers and refugees still living in the Nauru
and PNG RPCs live in an unsafe environment, whether due to physical harm or
health (including mental health) concerns. There is also very strong evidence
to indicate that although the RPCs are now 'open', and residents may leave the
facilities, they continue to live in a detention-like environment. RPC
residents live behind high fences, under the authority of security guards, and
in overcrowded shared accommodation. RPC residents have little autonomy over
their lives. They are prohibited from possessing certain items, must pass
through security to re-enter the RPC; they are restricted in their access to
the internet and computer facilities; and are restricted in when and what they
can eat and drink. Furthermore, due to the lack of fresh water on Nauru, and
the reliance on desalinated water, Nauru RPC residents have very restricted use
of showers. Parents have evidently faced serious challenges in maintaining a
semblance of normal family life and parental authority, as well as the daily
challenge of trying to keep their children safe.
As set out above, the people who choose to leave the RPCs, or who have
been housed in the local communities, also live in a challenging environment,
and have limited control over their lives. This is starkly apparent in Nauru.
The Nauru atoll is tiny, at just 21 square kilometres. It is an isolated island
surrounded by ocean. The only way a refugee or asylum seeker can leave the
island is by agreeing to be resettled in Cambodia, indicating their interest in
being resettled in the USA (and then being found eligible to do so), or by agreeing
to return to their country of origin. Refugees may also live in Nauru on a 20
year visa. Employment opportunities on Nauru are extremely limited (with the
RPC itself being the biggest source of employment); and the health, education
and child protection systems are still developing. The presence of refugees and
asylum seekers in the Nauruan community has clearly not been well‑received.
Refugee and asylum seekers have alleged that they have been the victims of
assaults, sexual assaults, theft, and property damage. Children at local
Nauruan schools have likewise reported bullying, and it has been suggested that
few refugee and asylum seeker children have remained at school. It has also
been alleged that local authorities (especially the police), despite capacity-building
efforts by Australian authorities, have not demonstrated either the capacity or
propensity to investigate allegations of abuse made by refugees and asylum
seekers. The evidence considered by the committee strongly indicates that refugees
and asylum seekers in Nauru feel unwelcome, and live in fear of their personal
safety. On such a small island, and with limited confidence in local
authorities to protect them, this is an unacceptable situation.
In the case of PNG, refugees who have left the RPC can only settle in PNG,
express interest in the US resettlement arrangement, or agree to return to
their country of origin. Very few refugees have agreed to settle in PNG, and
the committee notes that some of those few have been reported to have faced
serious challenges, with some becoming homeless.
A complicated and inadequate health
care delivery system
The mechanisms by which health care services are provided to refugees
and asylum seekers in the Nauru RPC, the Nauru community, the PNG RPC, and the
PNG community, are extremely complicated. The manner in which an individual can
access medical services will depend on their location and their status as
either a refugee or asylum seeker. The health care services which are
immediately available to refugees and asylum seekers in Nauru and PNG are
limited: IHMS is contracted to provide only a particular range of medical
services; and both Nauru and PNG have developing health care systems and
limited health care infrastructure.
Complex medical transfer approvals
The process by which an individual may be transferred for medical
treatment is complex and confusing. The department's evidence in relation to
the numbers of medical transfers, while limited, indicates that medical
transfers are not uncommon. The department explained that from 1 July 2015 to
30 September 2016, 171 medical transfers from Nauru to Port Moresby had taken
It advised that from 1 January to 30 September 2016, five children had
been transferred to Australia, and four to PNG, for health reasons.
At 28 March 2017, the department advised that four people had been evacuated to
Australia as a result of contracting Dengue Fever.
The department stated that the decision to transfer asylum seekers or
refugees settled in the community of either Nauru or PNG for medical reasons is
undertaken in consultation with either the Government of Nauru or PNG.
The department explained that in the case of asylum seekers IHMS will also be
consulted. In the case of refugees settled in a local community the relevant
local hospital or health services provider will be consulted.
The department explained that, upon receipt of a request for the
transfer of an individual for medical treatment, the department would need to
establish where the required treatment could occur, whether this be in Port
Moresby, another third country or Australia.
The department stated that the Government of Nauru does not provide it with
clinical timeframes for the treatment of refugees, but that it would advise the
department of 'urgent cases'.
The department explained that where IHMS has requested that an asylum
seeker be transferred to Australia for medical treatment it will, in
consultation with the local government,
put this request to the department, which will then review the request to check
whether the advice from IHMS is supported by 'appropriate specialist opinion',
and that the relevant medical services would not be available offshore.
The department explained that if it did decide to transfer an individual to
Australia it would also have to locate an Australian hospital to accept them.
The department's evidence in relation to the decision to permit a patient
to travel to Australia was confusing. The department advised the committee that
a department staff member would never override a clinician's recommendation,
and characterised the medical transfer process as one in which the clinician
makes a 'decision' about medical treatment, and the department would merely
'effect that transfer'.
However, the department also characterised a request for medical transfer of a
patient to Australia as a request which would be considered by the department
in a 'committee-style format'; and the committee would put a recommendation to
the Assistant Commissioner of Detention, Compliance and Removals, who would
decide whether that person could come to Australia.
The committee noted the serious concerns from medical organisations in
Australia about this non-medical interference in medical decision-making about
refugees and asylum seekers.
While the department did not provide the committee with information
about individual cases, the committee is very concerned that some clinical
recommendations for medical transfer have not been actioned within a clinically
recommended timeframe. This frustrates the work of health care providers in PNG
and Nauru, which cannot override or bypass that departmental approval process.
In some instances it may even compromise their professional medical ethics.
The death of Mr Hamid Khazaei in 2014 is a clear example of the
department's medical approval process failing patients. The publicly available
evidence presented to the Queensland Coroner in the investigation of this
death, to date, suggests that the department did not respond to the request for
medical transfer of Mr Khazaei fast enough, and that the department's
five-layer internal bureaucratic approvals process (of staff members with no medical
training) exacerbated the delay in evacuating Mr Khazaei to a hospital. The
evidence presented to the coroner also indicates that the hospital in Port
Moresby was not prepared for
Mr Khazaei's arrival, and did not provide him with sufficient care.
More recently, the death of Mr Faysal Ishak Ahmed, of the Manus RPC,
indicates that the provision of health care services within RPCs is also
problematic. While the department advised that Mr Ishak Ahmed was evacuated
from Manus Island swiftly, the fall which appears to have contributed to his
death took place after Mr Ishak Ahmed had attended the Manus RPC IHMS
clinic multiple times over the previous weeks. The committee is not in a
position to form any specific conclusions in relation to Mr Ishak Ahmed's death,
and notes that his death is currently a matter before the Queensland Coroner.
What is readily apparent is that Mr Ishak Ahmed died following ongoing health
concerns, in relation to which he repeatedly sought assistance from IHMS.
While it appears that the department has, following the death of Mr
Khazaei in 2014, made some improvements in speeding up the medical transfer
process for refugees and asylum seekers, the processes around determining the
provision of health care services to refugees and asylum seekers in Nauru and
PNG, and whether medical transfer is required, remain inordinately complex.
The committee recommends that the Department of Immigration and Border
Protection, as a matter of urgency, commission an external review of its
medical transfer procedures in offshore processing centres.
Inadequate health care services
The committee was very concerned by the evidence of serious concerns from
Australian medical organisations about the provision of health care services to
refugees and asylum seekers in Nauru and PNG. A number of medical organisations
suggested that the capacity of medical personnel to provide appropriate care in
Nauru and PNG is severely affected by the remote locations of the RPCs, the limited
health infrastructure, the delays in transferring people for medical treatment,
and the requirement to seek departmental approval to transfer a patient.
Doctors for Refugees (DFR) provided the committee with a number of
medical case studies for patients in Nauru and PNG, which identified serious
shortcomings in the medical care provided to them. The case studies involving
children are extremely concerning. DFR highlighted the examples of a child who
was identified as potentially having a sexually transmitted disease and
recommended for medical transfer, but was not transferred;
a young boy who was not transferred for inpatient mental health care for three
months after a psychiatrist had identified a risk of suicide and the need for
a child with a possible developmental delay who was identified by a doctor as
needing specialist services but who was never transferred;
and a child who broke their arm and, despite a medical officer having
recommended that the child be seen by a physiotherapist, was never referred and
suffered from impaired function of his dominant hand.
DFR also explained that an Australian neurosurgeon had advised that a man being
held in PNG, who suffered from chronic back pain, required surgery in Australia
but the man did not receive this surgery.
In a further example, a former Nauru RPC worker alleged that a woman in the
RPC, having suffered from tooth aches for more than a year, was referred to a
dentist who extracted the wrong tooth.
The Australian Medical Association (AMA) also provided extremely
concerning examples of inadequate medical treatment among refugees and asylum
seekers on Manus Island. It highlighted the case of an elderly Rohingya asylum
seeker who was in the Port Moresby Hospital for seven months being treated for
a condition which prevented him from standing or walking for more than a few
minutes, and who subsequently had to wait 20 days for a medical appointment
upon being returned to the Manus RPC.
The committee is extremely concerned by allegations that refugees and
asylum seekers who had been transferred for medical treatment had been
transferred back to either Nauru or PNG too quickly. The committee noted, in
particular, the allegation by Amnesty International that a man who had suffered
a heart attack in Nauru and was sent to Australia for treatment, was sent back
to Nauru after four months and advised by on-site medical staff that he should
not have been returned because he required specialist treatment which they
could not provide.
Amnesty International alleged that the man suffered a further heart attack on
The committee noted concerns about mental health treatment in Nauru and
PNG. The committee recognised that mental health concerns among refugees and
asylum seekers in Nauru and PNG are widespread, and that effective treatment
options are critical. The committee noted concerns from Australian medical
organisations about the provision of medication to treat mental health
as well as concerns about the capacity of local medical services to address the
levels of poor mental health among refugees and asylum seekers when the health care
needs of local residents differ so significantly.
The evidence outlined above indicates clearly that the health care
services being provided to refugees and asylum seekers in Nauru and PNG,
including within the RPCs, need to be reviewed.
The committee recommends that the Australian Government undertake
to seek advice in relation to whether improvements are required to the medical
treatment options available to asylum seekers and refugees in the Republic of
Nauru and Papua New Guinea, particularly mental health services.
A number of medical organisations submitted that mental health
conditions would be unlikely to improve while patients were continually exposed
and re‑exposed to stress and uncertainty, and that ongoing detention is a
significant causal factor in poor mental health. Dr Kym Jenkins of the Royal
Australian and New Zealand College of Psychiatrists (RANZCP) explained that
trying to treat mental illness while somebody is in this situation, 'is like
trying to fill the bath with the plug out'.
She explained that health care practitioners cannot provide effective mental
health care in a setting where people are continuously being re-traumatised and
exposed to things which have poor mental health outcomes.
The committee finds long term immigration detention can be seen to have
a negative impact on both physical and mental health. This situation
underscores the urgency of finding suitable long term resettlement arrangements
for asylum seekers. The committee believes that there needs to be a greater
recognition of the long term effects of immigration detention in Manus Island
The committee recommends that the Australian Government recognise the
impacts of long-term immigration detention, including by commissioning an
independent assessment of its impacts on physical and mental health.
The department's responsibility in
the provision of health care services
The department's evidence indicates that it has the final say in any
decision to arrange for all medical transfers, including urgent medical
evacuations. The department's repeated assertions that it merely facilitates
the provision of medical services to refugees and asylum seekers is untrue. Pursuant
to the Memoranda of Understanding between the Australian Government and the
Governments of Nauru and PNG, Australia has agreed to bear all costs associated
with the presence of the RPCs. The department makes the final decisions in
relation to the provision of critical medical services. The department
contracts the health care service providers at both the Manus and Nauru RPC
(although the ongoing provision of services by IHMS at the Manus RPC is currently
uncertain). If health care workers believe that a patient needs to be medically
evacuated for treatment elsewhere, that request must be put to the department
for approval. It is the department which arranges the provision of an Air
Ambulance, and covers the costs. If health care workers assess that a patient
requires specialist treatment (either on or off-site), that request has to go
to the department for approval. It is the department which would facilitate the
procurement of specialist services, and pay for the cost of providing any
specialist services on-site. As a result, the department bears the ultimate
responsibility for the provision of health care services to refugees and asylum
seekers in Nauru and PNG.
The department owes all refugees and asylum seekers within the Nauru and
PNG RPCs (and living in the Nauru and PNG communities) a duty of care in
relation to the provision of medical services.
Inadequate investigation of
notifications of abuse and self-harm
Assessing the adequacy of investigations relating to notifications of
abuse and self-harm is difficult. Many of the individual allegations to which
the committee had regard (particularly those contained within 'the Nauru
files') are historical. The department's only advice to the committee in
relation to the allegations contained within those leaked incident reports was
a vague assurance that it had reviewed more than 2000 incidents reported between
May 2013 and March 2016, and that 'immediate and appropriate' action had been
taken in the majority of cases.
Given the many shortcomings identified by the Australian National Audit
Office in relation to the department's management of contracts, its own
record-keeping, and its oversight of RPC incident reports,
it would not be prudent for the committee to accept this assurance. The
committee believes that an external audit and investigation specifically in
relation to incident reporting at the PNG and Nauru RPCs, should be undertaken.
The committee recommends that an external audit and investigation be
conducted into all incident reports over the life of the Transfield Pty Ltd and
Broadspectrum Australia Pty Ltd contracts at the Manus Island and Nauru
Regional Processing Centres, including an analysis of:
- incidents which were downgraded in severity; and
any inconsistencies in relation to incidents being downgraded in
evidence of follow-up activities in relation to reported
Barriers to scrutiny
The committee recognises that there are a number of significant barriers
to the scrutiny of RPC operations. In light of the concerns which have been
raised in relation to the running of the RPCs themselves, and in relation to
the resettlement of refugees in Nauru and PNG, external and independent
scrutiny of policies and procedures is critical.
External scrutiny, including from non-government organisations (NGOs)
and the media helps to bring problems to light, as well as better enable those
with the responsibility for the health and welfare of refugees and asylum
seekers to meet those responsibilities.
The department should, together with the Governments of Nauru and PNG,
facilitate greater access to the RPCs for media and NGOs to generate greater
public confidence in the operation of the RPCs.
The committee is very troubled by the evidence of inadequate medical
treatment in relation to children, as well as concerns about the safety of
children within the Nauru RPC and the wider community. The committee believes
that an independent children's advocate would be well placed to advocate for
the rights of those children, and advise the Government in relation to
improving their care and protection. The committee recognises the difficulties
in relation to jurisdiction and authority, as the relevant children are being
held in a foreign jurisdiction. However, the committee believes that the Australian
Government should work with the Government of Nauru to establish such an
advocate, and ensure that any such advocate would have the requisite
independence, jurisdiction and authority to be effective in that position.
The committee recommends that the Australian Government undertake to
work with the Government of the Republic of Nauru to establish an independent children's
advocate who would have both the jurisdiction and authority to advocate for the
rights of children being held in the Republic of Nauru.
Third country resettlement
The committee recognises that third country resettlement negotiations
involve sensitive diplomatic discussions, and that the evidence provided to the
committee in relation to this has necessarily been limited.
The department advised the committee that 'resettlement will always be
between the relevant jurisdiction—either Nauru or PNG—and the receiving
The committee disagrees with this assessment. The responsibility lies with
Australia. The only third country resettlement agreement which has (to date)
resulted in the resettlement of Nauru-determined refugees, is an agreement
between the Australian Government and the Government of the Kingdom of
Cambodia. It is an agreement under which the Government of Australia agrees to
'bear the direct costs of the settlement agreements as mutually determined
between the Participants'.
The Government of Nauru is not a party to the agreement. Similarly, the United
States (US) refugee resettlement arrangement is also between the governments of
the US and Australia. The Australian Government must acknowledge that it has
the responsibility for resettling refugees located in Nauru and PNG.
It is vital that any asylum seeker or refugee who has been transferred
to Australia for medical or other reasons, or who remains in Australia pursuant
to domestic legal action, be able to apply to participate in the US refugee resettlement
arrangement. If individuals have been transferred for medical treatment their
health could be put at risk by being transferred back to a location with less
or no capacity to treat them.
The committee recommends that the Department of Immigration and Border
Protection confirm publicly that any asylum seeker or refugee who has been
transferred to Australia for medical or other reasons, or who remains in
Australia pursuant to domestic legal action, can apply to participate in the US
refugee resettlement arrangement, and that they will not need to return to
either the Republic of Nauru or Papua New Guinea to do so.
The Government of New Zealand has indicated that it is prepared to
resettle refugees from Manus Island and Nauru. While the Australian Government
is currently negotiating a resettlement deal with the US Government, it is unclear
whether this arrangement will result in the successful resettlement of any
refugees. The Australian Government has a clear offer from the Government of
New Zealand to facilitate resettlement. The Australian Government should give
consideration to all resettlement offers. If the Government considers
particular resettlement options unsuitable, it should clearly outline why this
is the case.
The committee recommends that the Australian Government give serious
consideration to all resettlement offers it receives, including the Government
of New Zealand’s offer to resettle refugees from Papua New Guinea and the
Republic of Nauru. Further, if particular resettlement offers are considered
unsuitable, the Government should clearly outline the reasons.
It is important that family members are able to pursue resettlement
together. Not only is the preservation of family life critical to successful
resettlement, it is a basic right.
This exact scenario of family separation is one currently facing refugees and
asylum seekers in Nauru and PNG. These individuals deserve to have certainty
about their future together. The Australian Government needs to assure refugees
and asylum seekers in this situation that they will be supported to pursue
options to reunite with family members.
The committee recommends that the Australian Government give
consideration to supporting refugee and asylum seeker family members to pursue
options to resettle together.
The committee recommends that the Australian Government increase
Australian funding to the United Nations High Commissioner for Refugees.
The committee recommends that the Australian Government commit to
increasing Australia's annual refugee intake.
The committee believes that Australia must address its role in the
current refugee crisis from a regional perspective. The Australian Government
should undertake to work further with countries in the Asia-Pacific region to
establish a regional framework for processing claims for asylum. The Bali
Declaration on People Smuggling, Trafficking in Persons and Related
Transnational Crime, set down in March 2016, while related, is focused
primarily on addressing the criminal element of people smuggling. It is not
directed towards the needs of asylum seekers, and the question of where and how
their claims for asylum can be processed.
A regional framework which does focus on assisting asylum seekers could
help to address both the needs of asylum seekers in the region and beyond. An
effective framework could also consequently reduce the business of people
smuggling by ensuring that asylum seekers do not need to attempt to reach
Australia in order to have their claim for asylum processed in a safe location.
The committee recommends that the Australian Government undertake to
work with Australia's Asia-Pacific neighbours to establish a regional framework
for the processing of claims for asylum.
Obligations of the Australian Government
The web of services provided to asylum seekers and refugees is extremely
complex and confusing. The evidence presented to this inquiry indicates to the
the Australian Government has an agreement with the Government of
Nauru in relation to the establishment and management of the Nauru RPC;
the Australian Government has a separate agreement with the
Government of Papua New Guinea in relation to the management of the Manus
pursuant to these agreements, the Australian Government is
responsible for all costs associated with the running of these RPCs;
the department has established contractual relationships with the
major service providers charged with the running of the PNG and Nauru RPCs
(including Broadspectrum and IHMS);
Broadspectrum has subsequently engaged Wilson Security as a
sub-contractor, to provide security services at both the Nauru and Manus RPCs;
Wilson Security subsequently subcontracted three local security
companies in each location;
the department provides a number of 'capacity building' services
to the Government of Nauru and PNG in relation to security, health care and Refugee
the department is the final decision maker in any decisions to
medically transfer a refugee or asylum seeker patient from either Nauru or PNG.
Such a transfer cannot take place without departmental approval, noting that
the Australian Government has agreed to bear all costs associated with the
running of the RPCs;
the Australian Government has broader aid commitments to the
Government of Nauru and PNG, which involve the provision of both financial
support and capacity-building and development measures; and
the Australian Government is responsible for the negotiation of
third country resettlement agreements.
The committee rejects the department's assertion that it does not bear
ultimate responsibility for all aspects of the operation of RPCs (and the
health and welfare of the asylum seeker and refugees in PNG and Nauru) and
merely funds their operation. The department has ultimate decision making power
as the contracting agency, makes final decisions in relation to the provision
of specialist and emergency medical treatment, and (largely as a result of its
capacity building measures) is the primary source of guidance and expertise to
the Governments of Nauru and PNG in relation to the management of all matters
associated with the presence of refugees and asylum seekers.
The committee is concerned that the department's failure to acknowledge
this control (and the duty of care flowing therefrom), and failure to implement
adequate controls over the provision of services, may have exposed the
department to the risk of legal action for breach of this duty of care.
It is also clear that by having located RPCs outside Australia, the
Australian laws relevant to regulation of those facilities are very complicated
to apply. This was most starkly apparent in the case of the Work Health and
Safety Act 2011 (WHS Act). Comcare explained clearly that, although
the WHS Act does apply to the department's undertakings in Nauru and PNG (to
run the RPCs), Comcare is unable to exercise its regulatory responsibilities in
the manner in which it does in Australia. While offences under the Act include
offences outside Australia, Comcare inspectors who could actually investigate
those alleged offences cannot exercise their powers outside Australia in the
absence of the consent of the department. The department has previously given
this consent to Comcare, and Comcare inspectors have attended the RPCs a number
of times, however it is not appropriate that a regulator should have to rely on
the goodwill of the department.
The committee believes that the WHS Act should be reviewed to examine
whether extraterritorial application may be applied to further sections of the
Act, particularly the powers of Comcare inspectors. Comcare has explained that
it is currently required to devote significant time and resources to simply
establishing whether or not it has the requisite jurisdiction to investigate
particular incidents. Comcare has the capacity to investigate very serious
incidents, which could include suicides and serious assaults. It is vital that
the WHS Act can be applied in a straightforward manner in relation to incidents
within the Nauru and Manus RPCs. The lack of clarity, to date, has led to
significant time delays in Comcare's investigation of such incidents. This is
highly undesirable for a Commonwealth regulator.
The committee recommends that the Australian Government review the Work
Health and Safety Act 2011 to ensure that Comcare can exercise its
regulatory powers in relation to Australian workplaces outside Australia's
geographical jurisdiction, in a timely and straightforward manner.
As this report has found, the current policy of offshore processing has
proven to be deeply affected by structural complexity and shortcomings in how
the centres have been managed and operated. The department, its contractors and
subcontractors, and other related stakeholders, have not been able to
administer the policy in a safe and transparent manner. The structure of the
policy is too complex, and it relies too heavily on the private sector to
administer the day-to-day management of the scheme. This structural complexity
has led to an unacceptable lack of accountability and transparency, and a
failure to clearly acknowledge where the duty of care in relation to those
asylum seekers and refugees lies. It has also contributed to the many
allegations of abuse, self-harm and neglect among refugees and asylum seekers
in Nauru and PNG. The culture of secrecy surrounding Australia's RPCs has also
contributed to this lack of accountability and scrutiny. For a policy which
represents such a significant investment of Australian public funds, this lack
of accountability is unacceptable. The Committee notes that the centres were
never intended to become long term centres of detention, but this has been the
result of the Government’s inability to negotiate viable third country
For Australia to continue facilitating the processing of claims for
asylum offshore, the major faults in the policy of offshore processing must be
acknowledged and rectified as a matter of urgency.
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