Chapter 10 - Pacific Solution: Negotiations
and Agreements
‘We are currently exploring
a number of offshore sites. An
assessment team has gone to Kiribati today but will be unlikely to report in under a
week given transit times. We have had
some interest from Palau who have sought further information but again
this will be unlikely to generate any options in the short term. Fiji also remains an option...’ [1095]
Introduction
10.1
When the Prime Minister
announced[1096] on 1 September 2001
that an agreement had been reached that all of the people rescued by the MV Tampa would be processed in third
countries rather than in Australia or Australian territories, it marked a
substantial shift in Australia’s arrangements for the reception of asylum
seekers arriving by boat.
10.2
The issue of ‘boat people’ is
one about which many Australians hold strong views. The idea that Australia
may have international protection obligations to people who arrive uninvited
and without authorisation is often challenging and unwelcome.[1097]
Boat arrivals are seen as ‘breaking the rules’ and ‘jumping the queue’,
or as not being genuine refugees, even though the Department of Immigration and
Multicultural and Indigenous Affairs’ own figures show that a significant
proportion are subsequently found to be genuinely in need of protection.[1098]
10.3
The number of people who arrive
in Australia without authority is small both in international terms and compared
to the number of visa overstayers.[1099]
However, various factors conspired in 2001 to fuel a fear of a greater influx.
These included a recent rise in the number of unauthorised boat arrivals (from
921 in 1998/99 to 4175 in 1999/00 and 4137 in 2000/01[1100]), reports of several thousand more
asylum seekers waiting in Indonesia to make the trip and a view that Australia
was being targeted by organised people smugglers because our refugee
determination outcomes were overly generous.[1101]
10.4
The timing of the Tampa incident in the lead up to the Federal election provided an
opportunity for a hardline political response which reflected popular
sentiment. The terrorist attacks in the USA on 11
September further fed fears concerning unauthorised boat arrivals, many of whom
were Muslims from Iraq or Afghanistan, through a loose linking of the asylum seeker issue with national
security concerns.[1102]
10.5
The Tampa incident was presented by the Government as a metaphor for the
threat posed by unauthorised arrivals to Australia’s
right to control its borders.[1103] In
a move which was well received in the polls,[1104]
the government initially refused permission for the vessel to enter Australian
territorial waters, and when this instruction was not complied with sent SAS
troops to take control of the vessel.
10.6
On 29 August 2001 the Prime Minister told Parliament:
It remains our very strong determination not to allow this
vessel or its occupants, save and excepting humanitarian circumstances clearly
demonstrated, to land in Australia...[1105]
10.7
The impasse between the Captain
of the Tampa and the
Australian Government was resolved when Australia
reached an agreement with Nauru and
New Zealand to take all of the people aboard the vessel for initial processing.
10.8
New Zealand indicated that
those amongst the up to 150 people it had offered to accept who were assessed
as being refugees would be allowed to remain in that country.[1106]
10.9
The arrangement with Nauru was
substantially different. Australia
would establish and operate a processing centre on the island, and provide
additional development aid to Nauru as
part of the arrangement. Those assessed as refugees on Nauru
would have to seek resettlement in Australia
or other countries.
10.10
On 10 October 2001, the Prime Minister made a further announcement that the Government
of Papua New Guinea had also agreed to establish a processing centre for
unauthorised boat arrivals.[1107]
10.11
The agreements reached between Australia
and Nauru and Papua New Guinea (PNG) were the outcomes of a suite of
negotiations with Pacific nations undertaken in an effort to ensure that
unauthorised boat arrivals were not taken to Australia
for processing. In this chapter the committee outlines the nature of those
approaches and the agreements reached in relation to the so-called Pacific
Solution.
Initial Approaches
10.12
In the initial
deliberations concerning options for offshore processing sites East Timor was considered as a
possible trans-shipment point or temporary processing centre.[1108] Approaches, which coincided with
the election period in East Timor, were made to the UN administration and to East Timorese leaders.
The East Timorese leadership was quoted expressing a willingness to assist Australia,[1109] however there were substantial
concerns over the capacity of the new nation and the UN administration was not
supportive of the proposal.
10.13
By 31 August 2001, the same day as he approached President Harris of Nauru, the Minister for Foreign Affairs was acknowledging that processing
in East Timor was unlikely.[1110]
10.14
The
notes of the People Smuggling Taskforce show that other offshore sites
continued to be investigated during September and October, although locations
have been deleted in the version provided to the Committee ‘because its
publication could reasonably be expected to cause damage to defence or
international relations’.[1111]
10.15
The
Department of Foreign Affairs and Trade has advised the Committee that formal
consultations were held with Kiribati, Fiji and Palau, and ‘informal soundings’ were taken of
officials of the governments of Tuvalu, Tonga and France (in relation to French Polynesia).[1112]
10.16
The Minister for Foreign
Affairs made public statements in September that discussions were being held
with President Tito of Kiribati
about the possibility of using one of Kiribati’s
islands as a processing site.[1113] In
October President Tito is reported
as saying:
When Australia
was already asking Kiribati
whether there was a possibility of our helping, it naturally occurred to me
that if Nauru
was in a position to provide some help to Australia
with only one island, I thought Kiribati
logically should be in a better position to provide some help. It was in response to what we considered to be
a need, a genuine need of a good friend of Kiribati
reaching out to a good friend in the Pacific.[1114]
10.17
On 7
October an inspection team of Australian officials departed for Kiribati.[1115]
Kanton Island, in the Phoenix group of islands, was under consideration as a
potential location but presented considerable logistical difficulties.[1116] Kanton is very isolated and
without regular shipping or air services and no arrangement with Kiribati was proceeded with. By this time the community
of Kiribati was also expressing some concern at being
involved with people from Afghanistan.[1117]
10.18
Australia also approached the
small island states of Palau and Tuvalu. Initial discussions
were held with Palau in October, and it was
visited in late November or early December by an Australian delegation looking
at possible processing centre sites.[1118]
10.19
In their evidence to the inquiry, Oxfam Community Aid abroad indicated
that the Secretary to the Government of Tuvalu, Mr Panapa Nelson, had stated that his
country received a verbal request from Canberra to process asylum
seekers, but no official approach followed.[1119]
10.20
An approach by Australia
to Fiji in October was the subject of considerable discussion, much of it
critical, within Fiji itself. Strong opposition came
from many quarters including the Great Council of Chiefs and the Fiji Muslim
League.[1120]
10.21
Fiji’s
Labor Party leader, Mr Mahendra Chaudry, has been quoted as describing the
offer of money to the country in return for hosting a detention centre as ‘a
shameful display of cheque book diplomacy’ and as ‘tantamount to offering a
bribe’.[1121] Mr Downer noted the
widespread debate that the approach had created, and withdrew the request in
December.[1122]
10.22
The opposition within Fiji was
characteristic of concerns expressed by others within the region that Australia
was using its economic power to further its domestic policy agenda by exporting
its problems to its poorer neighbours.[1123]
Mr Noel Levi, Secretary General of the Pacific
Islands Forum Secretariat, expressed serious reservations over the impact of
the Australian government’s refugee policy. In October 2001 he said:
The emerging refugees market in the region where Forum Island
Countries lease out their territories for quarantine and processing services
carries unknown risks. Yet it is evolving rapidly without the necessary legal
and policy framework to ensure its proper and equitable regulation. Such a
substantial population influx places extreme pressure on our already very
limited resources, exposing our small and vulnerable economies to further
social and economic problems which we can ill afford.[1124]
10.23
This sentiment was reiterated
in a Joint Statement by the Pacific Council of Churches and a number of Pacific
non-government organisations, on 26 October 2001:
We also appeal to Pacific Island Governments to carefully
consider the long-term impact and consequences of accepting Australian aid
deals in connection to the refugees. To welcome and accommodate Australian
refugees for the sale of money will add more problems and will have adverse
impacts on our communal life as Pacific communities, as well as our
sovereignty.[1125]
The Agreement with Nauru
10.24
On 31 August, the Minister for
Foreign Affairs, the Hon Alexander Downer MP, approached President Rene Harris of Nauru to consider the possibility of hosting a facility on Nauru for
processing asylum seekers. On 1 September 2001 President Harris announced that Nauru was
interested in Australia’s proposal.[1126]
10.25
On 2 September, an Australian
delegation including representatives from the Department of Foreign Affairs and
Trade, Department of Defence, Department of Immigration and Multicultural and
Indigenous Affairs, and the Australian Federal Police arrived in Nauru.
The Australian officials conducted a number of meetings with Nauruan government
members and senior officials between 2 and 7 September to negotiate issues
concerning the establishment and operation of the processing centres, and Nauru’s
economic and development assistance priorities.[1127]
10.26
The then Minister for Defence, Mr Reith, arrived
in Nauru on 9 September to conclude negotiations and a 13 point Statement of
Principles and First Administrative Arrangement (FAA) was signed by President Harris and Mr Reith on 10 September 2001.
10.27
The First Administrative
Arrangement committed Australia to:
-
ensure fuel supplies for power generation on
Nauru to 1 May 2002;
-
organise the replacement of some generation
equipment;
-
meet outstanding Australian hospital accounts to
approximately A$1 million;
-
double the number of educational scholarships
offered by Australia;
-
broaden its program of maritime surveillance to
enhance coverage of Nauru’s exclusive economic zone, although Defence
subsequently advised that this matter could not be actioned until global
commitments diminished;[1128]
-
mitigate the temporary loss of the Topside
Sports Oval by the provision of alternative sporting facilities and/or
equipment, the gifting of infrastructure provided at the Topside Sports Oval to
Nauru as permanent improvement to the site, and the provision of sports
scholarships over and above those already provided; and
-
review ‘options to provide advice or assistance
on, but not limited to, telecommunications and aviation infrastructure, the
protection of economic resources and any other matters as jointly determined
through administrative arrangements’. [1129]
10.28
Nauru undertook to accept those persons at that time on the HMAS Manoora, not including those to go to New Zealand. Nauru also agreed to accept additional persons from time to time as
mutually determined with Australia
in the period to 1 May 2002, with further Australian
funding also to be determined.
10.29
Under
the First Administrative Arrangement an additional $16.5 million was allocated
in development assistance to Nauru including power and water generation,
education and health.[1130]
10.30
AusAID
estimated the breakup of aid funding under the FAA as fuel $9.50 million, power
and desalination $4.70 million, in-Australia hospital bills $1.06 million,
aviation $150,000, kit homes $110,000, educational scholarships $100,000,
sporting facilities and scholarships $60,000, telecommunications $50,000,
economic reforms $70,000, and Departmental administrative expenses $700,000.[1131]
10.31
The Statement of Principles and
First Administrative Arrangement was terminated by the signing on 11 December 2001 of a Memorandum of Understanding between the Republic of Nauru and the
Commonwealth of Australia for Cooperation in the Administration of Asylum
Seekers and Related Issues (MOU).[1132] President Harris and the Minister for Foreign Affairs, Mr Downer, signed
the MOU.
10.32
The terms of the MOU were
negotiated by an Australian delegation from the Departments of Foreign Affairs
and Trade, AusAID and Immigration and Multicultural and Indigenous Affairs
between 4 and 6
December 2001.
10.33
Under the MOU, Nauru
agreed to accept ‘certain persons’ on behalf of Australia
‘with the understanding that each individual will be processed within six
months of their arrival in Nauru, or
as short a time as is reasonably necessary for the implementation of this
Memorandum.’[1133]
10.34
The MOU includes the commitment
that Australia will ensure that all persons will depart within this six month
period, or ‘as short a time as is reasonably necessary for the implementation
of this Memorandum’, with no person to be left behind in Nauru.
10.35
The MOU provides for a maximum
of 1,200 people to be accommodated at two sites, known as Topside and Former
State House. As of 12 June 2002 long-term lease
arrangements for the sites had not been signed.[1134]
10.36
Under the MOU Australia fully
finances the activities in Nauru and
agrees to reasonably compensate Nauru for
its assistance and any losses it incurs.
10.37
Australia also agreed to work with Nauru and
multilateral partners, including the United Nations and Asian Development Bank,
to develop a medium-term sustainable development strategy for Nauru,
with an estimated completion date of mid-2002.[1135] Specific priority activities in
support of the strategy, above and beyond commitments in the Statement of First
Principles and Administrative Arrangement, were estimated to cost A$10 million.
The A$10 million figure comprised $4.5 million for health services including $1
million for outstanding Australian medical bills, $3.45 million for education,
$1 million for waste management infrastructure, $200,000 for water tank
repairs, $150,000 for police training, and $700,000 for technical assistance
across a range of activities,[1136]
including $200,000 for training of media staff.[1137]
10.38
Australia’s commitment to Nauru for
extra development assistance under the FAA and MOU totals $26.5m.[1138] $19.5m was allocated for 2001-2002[1139] and $7 million in 2002-2003.[1140]
10.39
The MOU continues until
terminated by either party, with the understanding that the parties ‘will
attempt to mutually determine the date of termination in order to allow orderly
termination of activities’.[1141]
10.40
The approach to Nauru and
subsequent agreements have not been without criticism, with a perception that
Australia was taking advantage of the desperate state of the Nauruan economy,
and in the process undermining its own regional aid priorities of good
governance, sustainable development and poverty alleviation.
10.41
Nauru, with a surface area of 21 sq km and a population of just 12,000,
has serious cash flow problems, an economy dependent on declining phosphate
reserves, and a political system plagued by instability, with nine changes of
government since 1996.[1142]
10.42
Statistics on the Nauruan
economy are scarce. However, according to the Asian Development Bank, the
medium-term outlook for the economy is weak. Per capita income is estimated to
have fallen from A$9,000 in fiscal year 1988 to around A$4,600 in fiscal year
1998. The provision of basic public services is regularly disrupted and is at
serious risk over the medium term.[1143]
The country is also one of 15 jurisdictions named in June 2000 by the Financial
Action Task Force on Money Laundering as having serious systematic problems in
regard to money laundering,[1144] and
continues to have problems in this regard.[1145]
10.43
Nauruan
Member of Parliament, Mr Anthony Audoa, expressed his concern about the
Australian offer:
I don’t know
what is behind the mentality of the Australian leaders but I don’t think it is
right. A country that is desperate with its economy, and you try to dangle a
carrot in front of them, of course, just like a prostitute...if you dangle
money in front of her, you think she will not accept it. Of course she will,
because she’s desperate.[1146]
10.44
There have been also been
concerns expressed in Nauru over the impact of the establishment of the
detention facility in terms of the provision of basic services for the Nauruan
community, particularly potable water which is a scarce commodity.[1147] The Presidential Counsel and the
Senior Medical Officer in Nauru
reportedly received letters of suspension without pay from their positions as
public servants after they expressed such concerns.[1148]
The Agreement with Papua New Guinea
10.45
The Secretary of the Department
of the Prime Minister and Cabinet, Mr Max Moore-Wilton, raised the possibility
of Papua New Guinea hosting an offshore asylum claims processing facility in a
meeting with PNG’s Chief Secretary, Mr Robert Igara, in Sydney on the morning
of 8 October 2001. Present at the meeting were Mr Michael Potts, First
Assistant Secretary, Department of the Prime Minister and Cabinet, Mr Nicholas
Warner, Australian High Commissioner to Papua New Guinea, Dr Allan Hawke,
Secretary of the Department of Defence, and Mr Ken Baxter, Treasury Adviser to
the Papua New Guinea government.[1149]
10.46
The 8 October meeting also
addressed the
first tranche of Australian assistance for the reform of the Papua New Guinea Defence Force,
totalling $20 million.[1150]
10.47
The timing of the meeting is
significant in that the ‘caretaker conventions’ relating to the forthcoming
election came into effect at midday 8 October. Mr Potts[1151] and Dr Hawke[1152] have indicated that the meeting
concluded at approximately 11.30am, just short of the
caretaker convention period during which it would have been necessary to
consult the Opposition concerning such a substantial new policy initiative.
10.48
The Committee concedes the
strict legitimacy of the decision in terms of its occurring prior to the 12 noon deadline. The perception, however, that it was contrived so as to
avoid the inconvenience of consultation is not easily set aside.
10.49
The terms of a Memorandum of
Understanding between Australia and Papua
New Guinea
establishing an asylum seeker processing centre in PNG were negotiated in
meetings between PNG and Australian officials in Port Moresby on 9 and 10 October.[1153]
10.50
The MOU was signed by Australia’s
High Commissioner to Papua
New Guinea, Mr Nicholas Warner, and Papua New Guinea’s Secretary of the Department of Foreign Affairs, Mr Evoa Lalatute, on 11
October.
10.51
The objective of the MOU is
stated as:
The parties agree that combating people smuggling and illegal
migration in the Asia-Pacific region is a shared objective. The establishment
of an immigration processing centre as a visible deterrent to people smugglers
will enable joint co-operation, including the development of enhanced capacity
in Papua New Guinea,
to address these issues.[1154]
10.52
Australia bears all costs of establishing and operating the immigration
processing centre. A trust fund of A$1 million for the purpose is jointly
administered, and replenished by Australia
as required. The trust fund is funded by the Department of Immigration and
Multicultural and Indigenous Affairs and funds are released on the joint
authority of the Papua
New Guinea Secretary
of Foreign Affairs, the PNG Secretary of Finance, and the Australian High
Commissioner.[1155]
10.53
The offshore processing centre
was established on 21 October 2001 and is located in the Lombrum Naval Patrol
Boat Base on Los Negros Island, Manus Province.[1156] The facility is commonly referred
to as the Manus Island centre.
10.54
There is no additional
development aid provided to PNG under the MOU, and in this respect it differs
from the arrangement reached with Nauru. However the PNG Minister for Foreign
Affairs, Hon Professor John Waiko, noted in February 2002 that the
establishment of the facility had ‘resulted in the fast tracking of important
AusAid projects for Manus, such as the Papitalia High School, Police Housing
and upgrading of the Momote airport.’[1157]
10.55
The establishment of the centre
has also required the upgrading of infrastructure on the island, including
electricity, sewerage and water systems, and improvements have been made to the
base hospital and PNG Defence Force Buildings. The camp has also become a major
source of local employment.[1158]
10.56
The MOU also committed
Australia to support PNG, through advice and technical and financial
assistance, in its management of nationals from third countries who are
illegally entering the country. The Manus centre will be returned to the PNG
government in a condition that would enable a similar use in future if
required.
10.57
Under the MOU, the Government
of Papua New Guinea permitted entry to the 223 persons taken on board HMAS Adelaide on 8 October 2001, and two
persons taken on board HMAS Bendigo
on 10 October 2001, to enable processing in accordance with the arrangement.
Extension of the agreement to additional persons was possible by joint
agreement.
10.58
It was initially agreed that
all persons entering Papua New Guinea under the agreement would have left after
six months of entering PNG, or as short a time as was reasonably necessary for
the implementation of the MOU.[1159]
10.59
On 18 January 2002, Minister
Downer announced that the Government of Papua New Guinea had agreed to an
expansion of the asylum seeker processing facility operating at Lombrum to
accommodate up to 1,000 people, and to permit persons processed in the centre
to stay in Papua New Guinea for up to 12 months.[1160]
10.60
An earlier October 2001 request
to expand the capacity of the centre to 1,000, and extend the length of the
agreement, had been rejected by Foreign Affairs Minister John Pundari. In their submission to the
Committee, Oxfam Community Aid Abroad stated that Sir Mekere Morauta sacked
Minister Pundari on 26 October for publicly leaking and rejecting Australia’s
request.[1161]
10.61
The Memorandum of Understanding
between Australia and Papua New Guinea concludes on 21 October
2002, [1162]and negotiations are
reportedly underway to extend the agreement.[1163]
Lawfulness
10.62
The Memoranda of Understanding
entered into with Papua New Guinea and Nauru oblige both countries to conduct
all activities under the MOU arrangements in accordance with their own
constitutions and relevant laws.
10.63
In evidence to the Committee,
DIMIA advised that the governments of both Nauru and Papua New Guinea have
issued temporary entry permits which provide for the legal entry of the asylum
seekers into those countries.
The entry permits provide certain conditions which essentially
means that the person has to be available for processing during the time that
they are in the countries and that means that they are to remain within the
sites of the processing centres that have been established. In a legal sense,
the entry permits provide for a legal status while they are in the country and
ensures that they are available for processing and they remain within the
address of the processing centre. [1164]
10.64
Submissions to the inquiry have
argued that the status of the asylum seekers in Nauru is in breach of Article 5
of that country’s Constitution. The group Australian Lawyers for Human Rights
contend that:
The asylum seekers are being detained in apparent breach of
Nauru's Constitution, which provides that there shall be no detention without
trial except on the basis of public health concerns, unlawful entry into Nauru
and for deportation, and allows for the right to be informed of reason for
detention and of choice of a legal representative.[1165]
10.65
Similar concerns have been
expressed in regard to the lawfulness of the arrangements in PNG.[1166] The Committee notes DIMIA’s advice
that the requirement that the asylum seekers remain within the processing
centres is, in the context of the immigration legislation that is being applied
by Nauru and Papua New Guinea, not legally defined formally as detention.[1167] The Committee, however, is not in
a position to provide an opinion on Nauruan or PNG law in this regard.
10.66
Other concerns about the
lawfulness of the agreements draw on the 1951 Refugee Convention and related Executive Committee of the United Nations High
Commissioner for Refugees (EXCOM) Conclusions, the International
Covenant on Civil and Political Rights, the Convention on the Rights of the Child, and
the United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.[1168]
Arguments put forward in relation to the broader mandatory detention policy are
beyond the scope of this report.
10.67
The primary source of
Australia’s international obligations to refugees is the 1951 Convention
Relating to the Status of Refugees and the subsequent 1967 Protocol. By signing
and ratifying both instruments Australia has assumed certain obligations to
those who come within the Convention definition of refugee.[1169] The right to seek asylum and enjoy
asylum from persecution is set out in the Universal Declaration on Human
Rights, Article 14 (1).
10.68
The core obligation under the
Refugee Convention is one of non-refoulement, or not returning refugees to a
territory where they could face persecution, or the threat of persecution, on
one of the five refugee grounds: race, religion, nationality, membership of a
particular social group or political opinion. The obligation does not extend to
a refugee whom there are reasonable grounds
for regarding as a danger to national security, or who, having been convicted
by a final judgment of a particularly serious crime, constitutes a danger to
the community.[1170]
10.69
The Executive Committee of the
UNHCR has concluded that non-refoulement also includes an obligation not to
reject a refugee at the frontier (EXCOM Conclusion 22). States which are not
prepared to grant asylum must adopt a course which does not amount to
refoulement.[1171]
10.70
In evidence to the Committee,
Amnesty International argued that Australia’s actions under the Pacific
Solution breach non-rejection at the frontier, inappropriately apply the ‘safe
third country’ doctrine, and breach Article 31 of the Convention that a state shall not
impose penalties for illegal entry.[1172]
10.71
In a submission to the Senate
Legal and Constitutional Reference Committee’s Inquiry into the Migration
Legislation Amendment (Further Border Protection Measures) Bill 2002, the UNHCR
stated that international law does not seem to bar a country from negotiating
with another country the admission of asylum seekers for asylum purposes,
including but not confined to the processing of asylum requests.[1173] However, the submission further
notes that in such circumstances the right to protection from refoulement from
third countries must be addressed in an admission agreement.
10.72
The UNHCR also raises issues
concerning the ongoing detention of persons recognised as refugees, which is
held to be a restriction of freedom of movement in breach of Article 26 of the
1951 Convention, and inconsistent with Article 31(2).[1174]
10.73
The Migration Legislation Amendment (Excision from the Migration Zone)
(Consequential Provisions) Act 2001 establishes the basis for the Pacific
Solution by inserting an amendment into the Migration
Act 1958 allowing ‘offshore entry persons’ to be taken to declared
countries.
10.74
A declared country is one which the Minister declares in writing:
-
provides access to effective procedures for
assessing the refugee status of persons;
-
provides protection to these persons pending
determination of their refugee status;
-
provides protection to refugees pending
voluntary return to their country of origin or resettlement in another country;
and
-
meets relevant human rights standards in
providing that protection.
It is not
a requirement that the declared country be a signatory to the 1951 Refugee
Convention or 1967 Protocol.[1175]
10.75
Both Nauru and Papua New Guinea
are declared countries under the Act. Nauru is not a signatory to the Refugee
Convention. Papua New Guinea is a party but does not accept a number of
Convention obligations in respect to paid employment, housing, public
education, freedom of movement, non-discrimination against refugees who enter
illegally, expulsion and naturalisation.[1176]
10.76
Removing asylum seekers to a
safe third country where refugee status processes are available is not, in the
Committee’s view, a formal breach of the obligations conferred by the
Convention, although it is arguably contrary to its humanitarian spirit.
10.77
Article 3 of the Convention
against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
also contains a non-refoulement provision. As a party to the convention
Australia is obligated not to return a person to a State where there are
substantial grounds for believing that he or she would be in danger of being
subject to torture.[1177]
10.78
The torture convention
non-refoulement obligation is not confined to persons found to be refugees. It
is not clear to the Committee the extent to which processes employed by the
UNHCR and Australian officials on Nauru and Manus give due weight to this
obligation for persons not determined to be refugees, although evidence given
by DIMIA to the Senate Inquiry into the Migration Legislation Amendment
(Further Border Protection Measures) Bill 2002 indicates that the need for
protection under other conventions, including the Convention against Torture,
is considered in their review process.[1178]
10.79
A further relevant convention
to which Australia is a party is the Convention on the Rights of the Child.
Article 22 explicitly extends to asylum seeker children the obligations under
the refugee and human rights conventions, and also imposes a number of more
specific obligations in respect to children. In particular, the best interests
of the child must be a primary consideration, unaccompanied asylum seeker children
must be afforded special protection and assurance, and no child shall be
deprived of his or her liberty unlawfully or arbitrarily.
Number of Asylum Seekers
10.80
As of 16 April 2001, a total of
1511[1179] people were accommodated in
the PNG and Nauru centres, down from the original total of 1515.[1180] One thousand one hundred and fifty
five people were being housed on Nauru, of whom 525 were being processed by the
UNHCR. Table 10.1 provides further details. As of 1 October 2002, 1062 people
remained in the offshore processing centres, comprising 960 people remaining on
Nauru and 102 on Manus.[1181]
Operational Arrangements
10.81
The International Organisation
for Migration (IOM) provides reception and processing centre services,
including management of accommodation, on both Nauru and Manus under a service
agreement with the Department of Immigration and Multicultural and Indigenous
Affairs.[1182] The IOM is a leading
international organisation of member states which works with migrants and
governments on a variety of migration issues worldwide.
10.82
The IOM provides staff to
manage the facilities and sub-contracts other functions such as catering and
security. Major contractors include Eurest Support Services, Chubb Security Pty
Ltd in Nauru and Protect Security at Manus.[1183]
Other tasks, such as small construction work, are contracted locally.[1184]
10.83
Australian Protective Services
(APS) staff provide ‘the more active security within the centres in conjunction
with the respective police forces’.[1185] For example, inside the Nauru processing
centres the security is provided by Chubb, under contract to the IOM. Outside
of the perimeter Nauruan constabulary and APS officers provide security at the
entrance checkpoints.[1186] Public
safety and security arrangements in regard to the Nauru centre are governed by
a protocol between the Nauru police force, IOM, and the APS.[1187]
Table 10.1[1188]
Numbers at Nauru and Manus
16 April 2002
|
Nauru
|
|
|
Number
|
Gender and age
|
Claimed nationality
|
|
UNHCR asylum claims
process
|
|
MV Tampa
& SIEV 1
|
525
|
397 adult males
51 adult females
41 male minors
40 female minors
|
292 Afghans
203 Iraqis
25 Palestinians
1 Sri Lankan
|
|
Australian asylum claims
process – Topside processing centre
|
|
SIEV 2 &
SIEV 3
|
271
|
151 adult males
51 adult females
34 male minors
35 female minors
|
133 Afghans
5 Iranians
131 Iraqis
1 Pakistani (claimed
Afghan)
1 Palestinian
|
|
Australian asylum claims
process – State House processing centre
|
|
SIEV6, SIEV 9
& SIEV10
|
359
|
243 adult males
23 adult females
32 male minors
31 female minors
30 unaccompanied male
minors
|
351 Afghans
8 Iranians
|
|
Total
Nauru
|
1155
|
|
|
|
Manus
|
|
|
Number
|
Gender and age
|
Claimed nationality
|
|
SIEV 4
|
216
|
96 adult males
46 adult females
38 minor males
36 minor females
|
213 Iraqis
1 Palestinian
2 Syrians
|
|
Transferred from Christmas Island 26-27 January
|
140
|
70 adult males
19 adult females
31 male minors
20 female minors
|
6 Bangladeshis
4 Iranians
117 Iraqis
2 Pakistanis
1 Palestinian
10 Turks
|
|
Total Manus
|
356
|
|
|
10.84
Eighteen APS personnel[1189] were stationed at the Nauru
facility as of May 2002, increased from 9 in February 2002,[1190] and a further 25 were on stand-by
to go to the island. A smaller number of APS personnel are stationed at Manus,
only one in February 2002. APS costs are met by the Department of Immigration
and Multicultural and Indigenous Affairs.
Accommodation
10.85
Due to the short time frame for
establishment of the asylum seeker processing facility on Nauru, the Australian
Defence Force was deployed in the construction of the facility and provided
substantial engineering and air transport assistance. An ADF team numbering 81
personnel at its peak was deployed to Nauru on 13 September 2001, and withdrew
by 29 September.[1191]
10.86
The ADF team, which included an
Army engineering element from 21 Construction Squadron, RAAF personnel and
construction equipment, erected a temporary processing facility including
accommodation, kitchen and common areas at the Topside site. A police detention
centre was also refurbished for use as a temporary segregation facility if
required.
10.87
The accommodation at Nauru initially consisted
of ‘long, barrack style accommodation. Some private accommodation has
subsequently been provided.’[1192] In an
attachment to their submission to the inquiry, Oxfam Community Aid Abroad note
that ‘the asylum
seekers were originally to be housed in modern air-conditioned housing built
for the games of the International Weightlifting Federation, but landowners
refused to allow the property to be used, after requests for extra compensation
were rejected.’[1193]
10.88
Conditions at Nauru have been
represented to the Committee as more difficult than either Australian detention
centres, or the Manus facility. In this regard the Committee has been limited
in its ability to assess conditions at both Nauru and Manus by the isolation of
the centres, restrictions on access by third parties including NGOs, and a
scarcity of eyewitness accounts. A number of submissions to the inquiry have
mentioned restrictions on access and difficulty in obtaining visas, and lack of
transparency is a commonly raised concern. [1194]
10.89
One submission to the Committee
expressed these difficulties thus:
Caritas Australia’s efforts to investigate conditions in Nauru
and Manus Islands has revealed a fundamental fear of independent scrutiny.
There appear to be no regular independent visitors to either place. There
appears to be no source of independent legal advice available to detainees.
Regulations adopted appear to be completely ad hoc and there is no clear source
of authority.[1195]
10.90
Mr John Hodges, Chairman of the
Government’s Immigration Detention Advisory Group, which examines conditions at
mainland immigration processing and detention centres, was one witness before
the Committee who had first hand experience of both Nauru and Manus. Mr Hodges
visited the Nauru facilities privately at the request of the Minister for
Immigration and Multicultural and Indigenous Affairs on 25 and 26 March 2002.
In evidence before the Committee he said:
...there are some deficiencies on Nauru. The department know of
them. They are moving to rectify some of those deficiencies. For instance,
fresh water is a problem on Nauru. Their desalination plant breaks down. Their
power breaks down too frequently. They are using a mixture of brackish water
and fresh water. There is a plan—I do not know whether it is to be implemented;
it was going to cost a lot of money—to supplement the freshwater supply with a
further desalination plant. They have installed primary treatment for sewerage
at the Topside camp in Nauru. Nauru is by far the worst of the detention
centres; it is hot. Both camps are built on areas that have been extensively
mined, many years ago, and the facilities are just not as good as they are in
Australia.[1196]
10.91
Oxfam Community Aid Abroad also
comment:
The Topside
site was originally a bleak environment lacking water, sanitation or
electricity. The asylum seekers are now housed in ‘blocks’, with a corrugated
iron roof, sides of plastic sheeting and green nylon mesh. An independent
visitor to the camp has noted: ‘Conditions are harsh, with the heat and
humidity consistently in the upper thirties and health facilities are basic.’[1197]
10.92
In contrast to the situation on
Nauru, much of the accommodation at the PNG facility located at the Lombrum
Naval Patrol Boat Base was in place prior to the establishment of the
processing centre.[1198] Accommodation
consists of Nissen huts, previously used by naval personnel, supplemented with
converted shipping containers.[1199]
According to DIMIA, facilities include separate ablution blocks for men and
women, a separate dining area and sporting and recreational facilities.[1200]
10.93
Mr John Hodges visited the
Manus facility privately at the request of the Minister from 28 February to 2
March 2002. He described the accommodation as
...not as good as the accommodation that we have in Australia in
the mainland detention centres, but it is adequate. They are very pleasant surroundings, because
it has the water on one side and the jungle on the other. They are pleasant
surroundings in that there is no barbed wire or razor wire.[1201]
This
contrasts with the comments of Caritas Australia, which also visited Manus and
describe it as ‘tightly secured behind barbed wire.’[1202]
10.94
The Committee was unable to
make any independent determination concerning conditions at the Manus Island
facility, notwithstanding that it accommodated the passengers from SIEV 4. The
Committee wrote to the SIEV 4 refugees at Manus Island, but they were unwilling
to provide evidence to the Committee for fear of adversely affecting the
outcome of their applications for refugee status.
10.95
The provisions of parliamentary
privilege do not extend beyond the boundaries of Australia’s jurisdiction, but
the Committee sought from DIMIA a guarantee that anything said to the Committee
by the SIEV 4 asylum seekers would not be taken into consideration for the
purpose of assessing their refugee status.
10.96
DIMIA declared that no such
guarantee could be given because third parties might bring to DIMIA’s attention
matters aired by people before the Committee, and that officials determining
the outcomes of applications would be obliged to take these reports into
account.
10.97
DIMIA’s approach was challenged
at some length during the appearance of DIMIA officials before the Committee.[1203] The Committee considers it a
matter of grave regret that DIMIA insisted on its view that it could not
provide the necessary guarantee, thereby impeding the effective examination of
important aspects of the Senate inquiry’s remit.
Facilities
10.98
The IOM provides medical
treatment facilities on both islands. As of July 2002, six general
practitioners, two psychiatrists, four clinical nurses, a public health coordinator
and three medical interpreters staffed the Nauru facility.[1204]
10.99
At the Manus centre, DIMIA
advised that the doctor to asylum seeker ratio was 1:85 as of 12 June 2002. At
that time the medical staff comprised four international doctors (two of whom had
tropical medical experience), a psychiatrist, and three medical support staff.[1205]
10.100
There have been some reports
that when the first group of asylum seekers arrived at Manus the medical
facilities were run down, and anti-malarial medication was not immediately
provided.[1206] In
answers to questions on notice DIMIA have advised the Committee that all asylum
seekers at Manus underwent health checks on arrival and commenced anti-malarial
medication.
10.101
Several people in the first
group of arrivals at Manus developed malaria symptoms soon after arrival but
are believed to have contracted the disease prior to reaching PNG. Two more
cases, however, were diagnosed in February 2002. The risk of infection appears
to be a significant ongoing concern for both asylum seekers and staff. A range
of measures have been introduced to reduce this risk, including improved drug
regimes, personal insect repellent, fogging of the centre and enclosed
accommodation.[1207] Malaria is not a
risk on Nauru.[1208]
10.102
The IOM has conducted a
psychiatric review of mental health within the asylum seeker populations at the
Manus and Nauru centres. DIMIA has advised that as a result of this assessment
two minors were identified as being at risk and requiring special attention at
Manus. [1209]
10.103
At the Nauru facility, which in
May 2002 accommodated 30 unaccompanied minors,[1210] a program for the adolescent
population was implemented by a psychiatrist assigned by the IOM. DIMIA does
not have reports of minors identified as requiring special attention on Nauru.[1211]
10.104
DIMIA further advised the
Committee that schooling, including English language tuition, is provided on a
daily basis at both locations on Nauru with Nauruan teachers conducting
‘rudimentary English, math and science classes’.[1212] At Manus, a school is established
and the IOM has contracted a teacher to provide lessons in both English and
Arabic. English lessons and kindergarten are also provided. Satellite
television is available on both islands, and there is a range of sporting and
cultural activities.
10.105
While
DIMIA advised the Committee that prayer and meditation activities are available
daily on Manus, Caritas Australia raised a particular concern in relation to
Christian services:
There is no source of
religious service available to the detainees on Manus. The local priest has
been turned away twice and there is no chaplain at the Naval base. Detainees
have great need of religious guidance. The number of Christians is small
(estimated at 20-30) and they are unable to participate in worship. Islamic
religious guidance appears to be entirely a matter for the asylum seekers’ own
self-organisation.[1213]
Conclusions
10.106
The development and initial
implementation of the Pacific Solution policy was on the evidence undertaken in
great haste and, while providing financial benefit to the islands involved, has
projected a negative image of Australia in the region.
10.107
The Committee does not consider
that the processing arrangements entered into are a formal breach of
Australia’s obligations under the 1951 Convention Relating to the Status of
Refugees. However the Committee appreciates concerns raised in regard to other
Conventions to which Australia is a party, including the International
Convention against Torture and the Convention on the Rights of the Child, and
in respect of the ongoing detention of people who have been found to be
refugees.
10.108
In relation to conditions
within the processing centres, the Committee accepts that early inadequacies
caused by the short implementation pathway appear to have now been largely
addressed, but notes the lack of independent oversight of the facilities as
making a certain determination in this respect difficult. The issue of
religious observance, particularly for minority religions within the centres,
is one point potentially requiring attention. The ongoing risk of exposure to
tropical diseases such as malaria on Manus is of continuing concern.
10.109
Common concerns raised in
submissions to the inquiry have been a lack of transparency and accountability
in Pacific Solution arrangements, uncertainty as to the future resettlement
prospects for those determined to be refugees, and the fate of those determined
not to be so.
10.110
In regard to the issue of
transparency, the Committee notes that the directive to Departments by the
Government that submissions not be provided to this Committee has potentially
exacerbated that concern. It is hoped that the information outlined in this
Chapter has been of some assistance in this regard. Refugee status
determination and resettlement are considered in the next chapter.