Dissenting Report by Coalition Senators
Introduction
1.1
The Government Senators require to place the context and conduct of the
Committee on the record. It is their view the process and principles of due
process and procedural fairness have not been adhered to as a result of the
majority members of the committee being willing to accept untested and
unsubstantiated submissions as fact. Large and complex submissions were received
by committee late in the process preventing any proper testing as to veracity
of the allegations therein contained. Indeed on one occasion when such a submission
was tested it became very clear that many of allegations made were completely
lacking in credibility.[1]
1.2
The Government has a determined and successful policy of ending the
illegal trafficking of people into Australia and this policy is politically
unacceptable to some Senators. This inquiry has sought in many respects to
advance the political perspective of those opposing Senators should be viewed
in that context.
1.3
Responsibility for the operation of the Regional Processing Centre (RPC)
on Nauru lies with the Government of Nauru, with support provided by the
Australian Government through the Department of Immigration and Border
Protection (the department). The department works with the Nauruan Government
to deliver services:
Nauru owns and administers the Nauru Regional Processing
Centre, under Nauruan law. Australia provides capacity building and funding for
Government of Nauru’s operation of the centre and coordinates the contract
administration process.[2]
1.4
The Department is committed to working with Nauruan authorities to
ensure that people accommodated at the Nauru Regional Processing Centre are
provided with a safe and secure environment. The Department continues to work
closely with service providers and Nauruan authorities to ensure allegations of
criminal activity are fully investigated.[3]
1.5
The Secretary of the department, Mr Michael Pezzullo, told the committee
that the Nauruan Government has responsibilities towards those in the RPC:
The government of Nauru is specifically responsible for
security and good order and the care and welfare of persons residing in the
centre. On behalf of the Commonwealth, my department provides support services
and advice, pursuant to an agreement between our two governments.[4]
Moss Review
1.6
The Moss Review was instigated by the then Minister for Immigration and
Border Protection, the Hon Scott Morrison MP, to address allegations that had
been raised through letters to the minister and through the media. The Moss
Review was an independent review undertaken by the former Law Enforcement
Integrity Commissioner, Mr Philip Moss. The review was announced on 3 September
2014, one week after the allegations were received and publicised in the media.[5]
1.7
A progress report was given to the Secretary of the Department on 28
November 2014, and the final report was given to the Secretary on 9 February
2015. The Moss Review was published on the department's website on 20 March 2015.[6]
The Moss Review made 19 recommendations for improving the delivery of services
and addressing concerns within the Regional Processing Centre on Nauru.
1.8
The department advised that all 19 recommendations of the Moss Review
were accepted by the Australian Government:
The Moss report made 19 recommendations, the implementation
of which require significant participation and engagement between the
Government of Nauru, a range of Australian Government agencies including the
Department, the Australian Federal Police and the Attorney-General’s Department
as well as with service providers.
The Department, after consultation with the Government of
Nauru, has accepted all 19 of the recommendations. The Department has, in
conjunction with the Government of Nauru, developed a comprehensive action plan
identifying specific deliverables required to satisfy the recommendations.[7]
1.9
The 19 recommendations have either been completed or are in progress,
and include:
-
efforts to strengthen the delivery of services to transferees.
-
enhanced communication between stakeholders.
-
more robust frameworks to underpin operations at the centre,
including in the area of child protection.
-
enriching training opportunities and the capability of staff.[8]
1.10
The department advised that as at 19 May 2015, implementation of 13 of
the 19 recommendations were complete, with more to be completed in the weeks
following.[9]
The department provided a response to a question on notice concerning the
status of the recommendations made by the Moss Review.
1.11
The instigation of the independent Moss Review and the implementation of
all of its recommendations demonstrate the seriousness with which the
Australian Government takes the allegations of abuse of children and women. As
the implementation of the recommendations is in progress, it is far too early
to undertake an evaluation of the implementation.
1.12
In addition, the progress of implementation of the recommendations of
the Moss review is already putting in place enhanced and strengthened service
delivery, and better communications between stakeholders.[10]
The Commonwealth government has taken the opportunity to strengthen contractual
arrangements to ensure that service providers clearly understand and meet the
relevant standards.[11]
1.13
Of note, over and above the Moss recommendations, earlier this year the
Minister implemented the following:
1.14
The child protection panel. The Child Protection Panel provides
independent advice on child protection in immigration detention and regional
processing centres (RPCs). The Panel consists of three highly skilled and
independent individuals in the fields of law enforcement, child protection and
public sector accountability. The Panel will work to strengthen policies and
procedures to ensure the ongoing safety and welfare of children in immigration
detention and RPCs and will advise the Secretary on the response of the
Department and its service providers in relation to their child protection
frameworks. The Panel’s work will include reviewing allegations back to 2008 to
ensure they have been handled appropriately by the Department and service
providers.
1.15
AFP Assistance. The Minister announced the deployment of four
additional Australian Federal Police (AFP) officers to Nauru to advise local
police. Two AFP investigators with extensive experience in investigating
allegations of sexual assault will provide valuable advice to the Nauru Police
Force (NPF) in the management of sexual assault investigations and the other
two AFP members, at the request of the NPF, will provide guidance and advice in
relation to the allegations of public disorder occurring in February and March
2015. In agreement with the Government of Nauru, the four additional AFP
officers will deploy as advisors to the NPF only and will not exercise Nauruan
policing powers. The total AFP commitment in support of the NPF now totals six
officers.
Evidence presented to this committee
1.16
All members of the committee appreciate the seriousness of the
allegations put to the committee; however it is important to note that the
veracity of many of the allegations made was not able to be tested. In fact, a
number of witnesses and submitters had spent very little time actually on Nauru
and therefore were only able to provide limited anecdotal evidence. Some
provided no time line of their visit at all, and others did not provide
first-hand evidence, instead relying on unsubstantiated hearsay.
1.17
Government senators note that the allegations of mistreatment and abuse
put to the committee are substantially similar to those considered by the Moss
Review. On this basis Coalition Senators are confident that the Commonwealth
Government has responded appropriately and provides a range of avenues for
people to report allegations, and to have these allegations properly
investigated:
The Department and service providers have taken ongoing
incremental steps to improve a number of areas in relation to service delivery
since the Moss Review. A number of actions have been implemented in relation to
infrastructure and enhanced accessibility to assistance for transferees.
A recent example is the establishment of a drop-in
centre/shopfront at the Regional Processing Centre Three (RPC3) site that is
operated by culturally appropriate service provider staff, to provide a
non-confrontational channel through which transferees can raise concerns and
issues for prompt attention and action where possible. Additional programmes
and activities are also being provided to transferees at RPC3. These
initiatives have been well received.[12]
1.18
Coalition senators also note that the new allegations considered by this
inquiry appear to be limited to allegations made by Mr Jon Nichols relating to
waterboarding, 'zipping' and the inappropriate use of cable ties.[13]
1.19
Coalition senators note Mr Nichols' evidence to the committee in
relation to his allegation of 'zipping', where he stated: 'I did not actually
see the action occur...'[14],
and in relation to waterboarding, he stated: 'I have not personally witnessed
the actual event...'.[15]
1.20
When questioned whether he had actually seen waterboarding and other
actions that would amount to torture occurring in the RPC, Mr Nichols advised
the committee that he had not personally witnessed these actions, however he
had:
...seen members of the ERT exit [tents] and later I have seen
asylum seekers come out of the tents covered in water and coughing. I have
heard members of the ERT boast and brag about how they have water-boarded
people, and it has never come out up until now.[16]
1.21
Coalition senators regard it as implausible that in an environment like
the RPC, that asylum seekers can come out of tents in full view of many other
asylum seekers and staff 'covered in water and coughing', and for this not to
be reported. Mr Nichols appears to be first and only person making this
allegation. Initially Mr Nichols suggested to the committee that waterboarding
was occurring 'throughout the facility' but later clarified for the committee
that his allegation related only to one out of eight or nine areas of the RPC,
being Bravo compound.
Senator JOHNSTON: ...You have said 'Water boarding of asylum
seekers throughout the facility'—that is clearly not true, is it?
Mr Nichols: In the sense of every single compound in that
facility?
Senator JOHNSTON: That is right.
Mr Nichols: No, it would not be true...[17]
1.22
Coalition senators find it improbable that the events as alleged by Mr
Nichols could have occurred. If events did take place as Mr Nichols alleges,
Coalition senators question why Mr Nichols has waited until now to raise them,
and questions why he did not make them known during the Moss Review, or report
them via several other available avenues.
1.23
In the time available since this late submission was made, the committee
sought to interrogate the new evidence and establish whether these very serious
allegations could be proven or disproven. However, the committee was provided
with several responses to the allegations provided by Mr Nichols by former and
current employees of Wilson Security, who refute the claims.[18]
1.24
Further to this, Mr Nichols confirmed he was in dispute with his former
employer which substantiated an ulterior motive in the nature and reliability
of his evidence to the committee. Indeed given the wide range and number of
agencies attending and providing services to the people held on Nauru over the
period and that none of them mentioned "waterboarding" suggests that this
witness was completely lacking in credibility. So much so that his testimony
tends to cast a shadow upon the evidence of some of the other witnesses, who
are also represented by the same legal counsel.
1.25
The Coalition Senators also found it curious that Mr Nichols declined to
answer any questions as to whether he had been in contact with any members of
the Committee, leaving the clear inference that he had been in contact with one
or more of the Committee members and discussed his evidence and submission
prior to it being received by the Committee.
1.26
Other examples of witnesses to the inquiry who had either not spent long
on Nauru, or did not have firsthand knowledge or had witnessed events prior to
the present Government taking office in September 2013 included:
-
Professor David Isaacs, who states that he was on Nauru for a
'short time'[20]
and Ms Alanna Maycock, who was in Nauru for five days.[21]
1.27
Some witnesses to this inquiry did not take the opportunity to provide
evidence to the Moss Review.[22]
1.28
One clear theme of evidence given by many of the witnesses was that during
and prior to 2013 the management and practices in the detention centre on Nauru
were of concern but that they began to improve in 2014. This is no doubt due to
the greater interest taken by the Ministers Morrison and Dutton in instigation
and then seeking to implement the recommendations of the Moss Review.
1.29
The committee was presented with evidence which clearly sets out steps
that the Commonwealth Government has been taking to deliver improved facilities
and infrastructure:
In recent months, additional lighting has been installed in
common areas and an amount of fencing has been removed from RPC3, allowing
greater use of space for families and children. Some additional fencing has
been installed to more clearly delineate areas and to provide greater security
to cohorts.
Additional privacy screening has been installed in
accommodation areas, and the accommodation density has been lowered, providing
more space to transferees.
The Australian Government is also delivering further
infrastructures projects to support transferees, refugees and Nauruans
including, a school building and teacher’s accommodation.[23]
1.30
Similarly with respect to the number of children in detention, this
situation has improved markedly since the change of Government.
Nauru is taking steps to improve
governance
1.31
The President of the Republic of Nauru, HE Baron Waqa MP, stated that
Nauru is taking steps to improve governance and address past issues:
Nauru is progressing. In the last two years, as well as
reforming the legal system and government-run companies, we have established a
future fund with international oversight so that corruption can never again
ruin our country. We have improved the economy and have established a new bank
agency, offering Nauruans an opportunity to bank locally for the first time in
over a decade.
The processing centre for asylum seekers is world class and
far exceeds the standard of many refugee camps across the world. Asylum seekers
enjoy an "open centre" policy and are regularly seen swimming, dining
out and enjoying a lifestyle that is safe, far safer than the lands they left.
These stories are ignored by agenda-driven media.
We value the contribution and co-operation of Australia, and
there is no doubt that the regional processing centres have assisted our economy.[24]
1.32
Mr Waqa noted the strong regional relationship Australia has shared with
Nauru.
Recommendation 1
1.33
The Government Senators support
this recommendation in principle, however we note that all recommendations to
this intent were captured in the Moss review and are being implemented.
Recommendation 2
1.34
The Government Senators do not
support this recommendation as determinations of matters around the process of
resettlement are matters solely for the Nauruan government.
Recommendation 3
1.35
The Government Senators do not
support this recommendation as it is redundant. The intent of this
recommendation is already satisfied by the Commonwealth through the Commonwealth
Ombudsman who currently has oversight responsibilities and also through an
existing reporting process that satisfies the intent of the recommendation. Current
contractual arrangements between Australian and the service providers impose an
obligation on all contractors to report assaults, of any kind, to the Department.
The Department then provides this information to the relevant police force.
1.36
Additionally, the regional
processing centre in Nauru is not run by the Australian Government. The RPC is
run by the government of Nauru under its laws. To impose a mandatory reporting
scheme in Nauru would require Nauru to legislate such laws. As Nauru is a
sovereign nation, Australian laws are not applicable.
Recommendation 4
1.37
The Government Senators do not
support this recommendation as it is redundant. It is redundant because multiple
mechanisms through multiple agencies are already in place to lodge and action complaints.
Asylum-seekers have access to phones, email, social media and a range of
agencies, The agencies include, but not limited to, Transfield Services, IHMS,
the DIBP, Save the Children, advocacy groups, the International Red Cross, the
UN Commissioner for Refugees, Amnesty International, the Commonwealth
Ombudsman, members of the Senate and the Moss Review.
Recommendation 5
1.38
The Government Senators do not
support this recommendation as it is redundant. It is redundant because a range
of independent agencies already have access, which includes the International
Committee for the Red Cross, UNHCR, the Commonwealth Ombudsman, the Joint
Advisory Committee, COMCARE, the Ministers Committee on Asylum Seekers and
Detention, the IOM and the Australian Red Cross. All visit requests are subject
to approval by the Government of Nauru.
Recommendation 6
1.39
The Government Senators support
the intent of this recommendation however it is redundant. It is redundant
because Wilson Security have confirmed that drug and alcohol testing is
occurring at RPC Nauru.[25]
Recommendation 7
1.40
The Government Senators do not support this recommendation because it is
redundant. It is redundant because the Government already provides detailed
disclosure of expenditure for all contract and support services related to RPC
Nauru.
Recommendation 8
1.41
The Government Senators do not support this recommendation because it is
redundant. It is redundant because Senators already have the opportunity to
seek this information through the Estimates processes.
Recommendation 9
1.42
The Government Senators do not
support this recommendation as it is redundant. It is redundant because the
government is currently negotiating the expansion of the open centre
arrangements with the government of Nauru, whilst also ensuring adequate
support services are available for these expanded arrangements. The Department
is also in the process of implementing, in conjunction with the government of
Nauru, all applicable Moss Review recommendations.
Recommendation 10
1.43
The Government Senators do not
support this recommendation as it is redundant. It is redundant because the
cited facility enhancements are already planned, underway or completed. Additionally,
the cited services are already provided at RPC Nauru, through independent
organisations including Save the Children.
Recommendation 11
1.44
The Government Senators do not
support this recommendation as it is redundant. It is redundant because the
process of expanding open centre arrangements, as outlined in recommendation 9,
is already underway. Additionally, the ongoing hand-down of refugee
determinations as outlined in Recommendation 2, is ongoing, as is the
construction of additional community infrastructure to support both children
and parents, found to be refugees.
Recommendation 12
1.45
The Government Senators support
the intent of this recommendation; however we do not support the substance, as
it is redundant. It is redundant because in conjunction with the Nauruan
Government, the Australian government is in the process of substantially
upgrading the educational infrastructure and services provided to refugees and to
the Nauruan community.
Recommendation 13
1.46
The Government Senators do not
support this recommendation as it is redundant. It is redundant because a Child
Protection Panel has already been established, which consists of three people drawn
from the Australian community and selected because their skills, experience and
standing is relevant and appropriate to such work. The Panel provides
independent advice on child protection in immigration detention and in relation
to Australia’s involvement in regional processing.
Recommendation 14
1.47
The Government Senators do not
support this recommendation as it is redundant. It is redundant because, in
conjunction with the Government of Nauru, the Australian government has already
implemented reporting requirements.
Recommendation 15
1.48
The Government Senators do not
support this recommendation as not only is it redundant, it will be waste of
Senate and Government resources. The issues proposed for this additional inquiry
have already been extensively canvassed and addressed in this inquiry. No new
issues, substantiated by evidence, have arisen in the course of this inquiry
that cannot be addressed by the multiple complaint and oversight organisations
that current exist.
1.49
Additionally, these issues have all
been extensively reviewed by the Moss Review which is being fully implemented
by the Australian Government and many are also now subject to review by the Child
Protection Panel and the Nauruan authorities.
1.50
Implementation of another Senate
Inquiry on the back of this inquiry makes as much sense as this current inquiry
did, coming in at the start of implementation of the Moss Review
recommendations. None.
Concluding Remarks
1.51
The Government Senators wish to
thank and acknowledge the professionalism of the Committee Secretariat for the
manner in which these difficult terms of reference have been administered.
Senator Linda Reynolds
CSC Senator the Hon.
David Johnston
Liberal Party Senator for Western Australia Liberal
Party Senator for Western Australia
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