Dissenting report from the Australian Greens

There is a fundamental contradiction in saving people at sea, only to mistreat and neglect them on land (2017, UN High Commissioner for Refugees Filippo Grandi).[1]

1.1This dissenting report is written from the perspective of both a member of the Legal and Constitutional Affairs Committee inquiry into the Migration Amendment (Evacuation to Safety) Bill 2023 (the Bill), and as the Senator responsible for tabling the Bill on behalf of the Australian Greens.

1.2It is unconscionable that this Committee, with a Labor Party chair, has recommended that the Bill not be passed. This recommendation means that the harm caused to so many people by Labor’s decision to exile them to Manus Island and Nauru in 2013 will be continued for those who remain in exile after nearly 10 years.

1.3Having designed and implemented a system that was created to brutalise and dehumanise innocent people, Labor has a moral responsibility to act. This is particularly so as the Bill is consistent with Labor’s policy and election commitments. We can never bring back those who died, or fully repair the countless lives destroyed. But we can offer help to some of those who survived, and that is what supporting this Bill would do.

1.4In 2019, when in Opposition, the Labor Party supported the Medevac amendment moved by the Australian Greens, which was a massive step forward for many people in offshore detention. It now seems that the Labor Party in government is choosing not to work in the same spirit of cooperation to finish the job.

1.5The Australian Greens thank everyone who made a public submission to this inquiry. We note the short timeframe of the inquiry, and appreciate the work that went into providing written submissions in such a short time, on such a complex matter with a lengthy history. We particularly thank those people who shared their lived experience as refugees and detainees with the committee, and acknowledge the courage they displayed in doing so.

1.6The Australian Greens note that of the 144 public submissions to this inquiry received from the refugee and human rights sectors, academia, the general public, and people with lived experience, only the submission from the Department of Home Affairs did not support the Bill being passed by the Parliament.

Overview of the Bill

1.7The Bill will require the Minister to:

make an immediate offer of evacuation to all refugees and people seeking asylum in Papua New Guinea (PNG) and Nauru (referred to in this dissenting report as the offshore processing cohort) without an adverse security assessment made against them by the Australian Security Intelligence Organisation (ASIO);[2]

place all refugees and people seeking asylum who accept the offer in the Australian community, and not into held detention;[3]

make available to those refugees and people seeking asylum any medical assessments and treatments they require upon their arrival in Australia;[4]

allow those refugees and people seeking asylum to remain in Australia until they are provided with a durable solution to their displacement with a third-country that is a signatory to the 1951 Refugee Convention or 1967 Refugee Protocol;[5] and

provide oversight and accountability by ensuring all offers will be reported to the Parliament, including offers made by the Minister, persons deemed ineligible for an offer, and detail regarding any potential delay to the evacuation of people who have accepted the offer.[6]

Dissenting Arguments

1.8In their public submissions to the inquiry, expert witnesses argued the need for this Bill for three fundamental reasons: the current system being not fit-for-purpose; the humanitarian interests of the current cohort exiled in PNG and Nauru; and international law and obligations.

1.9Several submissions welcomed the Bill’s provisions which explicitly cover people from the offshore processing cohort still in PNG, despite Australia ending its agreement with PNG to process refugees held there.[7] As at 1January2023 there were around 159 people from the offshore processing cohort still stranded indefinitely in a regional processing country: 92 in PNG, and 67 in Nauru.[8]

1.10As submitted by the Office of the United Nations High Commissioner for Refugees (UNHCR) and others, Australia has always had a primary power to transfer people from that cohort to, from, and between regional processing countries.[9] This is a power that has, and continues to be, exercised by the Australian Government.

1.11The UNHCR also submitted that Australia has a duty of care for the offshore processing cohort, is responsible for ensuring that this cohort has its fundamental human rights protected as provided for by domestic and international law, and that this primary responsibility cannot be outsourced to other countries. As submitted by the UNHCR, relevant conventions include, but are not limited to, the Convention relating to the Status of Refugees, the Convention Against Torture and the International Covenant on Civil and Political Rights.[10]

1.12As submitted by the Kaldor Centre for International Refugee Law, UNSW Sydney (Kaldor Centre):

As with obligations under domestic law, Australia’s jurisdiction did not end, and therefore its international legal obligations were not extinguished, with the removal of asylum seekers from its territory. Instead, Australia’s human rights obligations extended to their treatment in Nauru and PNG.[11]

1.13Supporting this evidence, the UNHCR submitted:

… the Government of Australia cannot seek to divest itself of responsibility or limit jurisdiction and responsibility under international law for those taken to Nauru or Papua New Guinea.[12]

1.14In regards to the Convention relating to the Status of Refugees, to which Australia is a signatory, the Refugee Advice & Casework Service (RACS) submitted:

Article 31 prevents state parties from punishing people who are forced to seek asylum undocumented or through unlawful entry. Punishing those who have arrived in Australia by boat, is a direct contravention of this Article.[13]

1.15With Australia's primary responsibility for the offshore cohort still detained in regional processing counties established, submitters to the inquiry then argued that the welfare and humanitarian needs of this cohort were not currently being met, nor could the Australian Government presume that under current policy settings they would be met in the future.[14]

1.16In particular, many expert witnesses expressed concern for the mental and physical welfare of the offshore cohort under current policy settings. As submitted by the UNHCR:

UNHCR has observed, firsthand, how the physical and psychological health of asylum-seekers and refugees subject to transfer by Australia to Papua New Guinea or Nauru, has deteriorated over the last decade. Such harm has been caused by a range of factors including the absence of critical safeguards needed to ensure adherence to international legal standards and respect for human rights law, and the absence or limited availability of timely durable solutions. The latter has not only caused continued suffering for many, but also led to family separation, and in some cases loss of agency and disengagement.[15]

1.17As submitted by many expert witnesses, these conditions have in some instances led to deaths in Australia’s offshore processing system.[16] The RACS submitted that ‘Ultimately, there has been 14 deaths as a result of offshore processing since 2013’.[17]

1.18As noted by Human Rights for All (HR4A):

In 2016, “UNHCR medical experts found cumulative rates of depression, anxiety and PTSD among refugees forcibly transferred to Papua New Guinea and Nauru to be the highest recorded in the medical literature to date at over 80% in both locations”.[18]

1.19Médecins Sans Frontières/Doctors Without Borders (MSF), which previously worked with the offshore processing cohort in Nauru under a Memorandum of Understanding with the Government of Nauru, submitted that:

The degree and severity of mental conditions among MSF patients in Nauru was among the worst the organisation has ever observed globally, including in MSF programs providing care for torture victims and victims of human trafficking.[19]

1.20Many witnesses noted that under current legislation, the Australian government has powers to transfer persons in the offshore cohort to Australia for medical purposes. However, those witnesses also argued that these existing powers are not fit-for-purpose, and are failing those people, and do not meet Australia’s obligations to them under our duty of care.[20]

1.21HR4A submitted that ‘After 10 years, the medical transfer process continues to fail to respond to expertly-documented and increasingly-urgent needs’.[21]

1.22The Asylum Seeker Resource Centre (ASRC) expanded on this argument, submitting:

… despite the change in government in May 2022, there have been no significant improvements to the transfer process, the advisory panel has not been established, and transfer requests are routinely delayed or ignored … There are numerous examples of refugees not being medically evacuated despite the advice of International Health and Medical Services (IHMS) medical professionals in Nauru, or people who have received approval by the Australian Border Force (ABF) and via the OMR [Overseas Medical Referral] process in Nauru … sick refugees were waiting an average of at least two years, and some for up to five years, for medical transfer after it had been recommended by Australian government-appointed doctors. These protracted delays exacerbated people’s medical conditions.[22]

1.23The ASRC also argued that it is not just people in the offshore processing cohort that suffer under current policy settings, but also their families. Many of these families are from the offshore processing cohort but have been transferred to Australia, meaning the families have been split between PNG, Nauru and Australia. As submitted by the ASRC:

The opacity and ambiguity regarding people’s detention on arrival to Australia has caused distress to refugees and people seeking asylum, as well as their families and friends in the community.[23]

1.24Many expert witnesses argued that the failures of existing medical transfer processes would be overcome or made redundant with the Bill. As submitted by the ASRC, the Bill:

… will remove the uncertainty and chaos around the current transfers, preventing conflicting information and unclear approvals from various bodies like IHMS, SMOs [Senior Medical Officer], OMR and ABF.[24]

1.25The Kaldor Centre submitted:

The new transfer mechanism proposed by the Bill would constitute an important step in Australia meeting its obligations under domestic and international law with respect to people who were transferred to, and remain in, Nauru and PNG.[25]

1.26The Bill was also commended by expert witnesses for compelling the government to automatically place persons from the offshore processing cohort into community detention on their arrival, as opposed to held detention (i.e. an immigration detention centre or alternative place of detention). As submitted by Associate Professor Caroline Fleay et al.:

It is clear from the experiences of those who were brought to Australia under the Medevac legislation … that being released from long term detention into community detention and receiving medical care in Australia is critical for people to be able to commence mental and physical health healing processes.[26]

1.27Many expert witnesses noted in their submissions that the Bill only provides for the temporary purpose of seeking permanent resettlement in a third country, and called for permanent resettlement of the offshore processing cohort in Australia.[27] This will be discussed in more detail later in this dissenting report. However, for the purposes of the Bill, as noted in the Bill’s explanatory memorandum:

A transfer to Australia will be for a temporary purpose, which is to seek a durable solution for their displacement with a third country that is a state party to the United Nations’ 1951 Convention Relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.[28]

1.28The second reading speech for the Bill further explains the need to transfer persons in the offshore processing cohort to Australia, noting:

… it is estimated that around 500 of the offshore cohort will be left without a durable solution. This will include many of the 159 people who, as at 1January2023, still remained in PNG (92) or Nauru (67).[29]

1.29This means that for 500 vulnerable people who came to Australia seeking asylum, and have been detained without a durable solution both onshore and offshore for nearly ten years, there is no end in sight for their safe resettlement. Noting this situation, several expert witnesses gave evidence commending the Bill’s provision that once transferred to Australia, people would automatically be placed in community detention, not held detention. Given it is the Australian Government’s policy to have the offshore processing cohort resettled in a third-country, expert witnesses argued this objective would be best achieved with the cohort onshore in community detention.[30] As submitted by the ASRC:

… many of the people offshore face difficult living conditions and safety concerns in Nauru and PNG, which make them unsuitable places for people to await resettlement to a third country … The Evacuation to Safety Bill is also necessary to ensure people can effectively engage in resettlement processes and prepare for their resettlement journey … Providing access to medical treatment and a safe environment in Australia will provide people with the best possible chance for recovery and to be in a frame of mind to engage with the resettlement process. The Bill will allow people who were subjected to offshore processing to regain hope and prepare and plan for their resettlement journey.[31]

1.30In regards to Australia’s obligations under domestic and international laws, the Kaldor Centre submitted that:

… Australia has a duty to cease any ongoing violations and ensure that any person who has suffered past violations has an effective remedy. For the people who remain in Nauru and PNG, an important first step in providing this remedy is offering them the option of transfer to Australia where they will be accommodated in an appropriate residential setting and provided with timely medical and psychiatric assessment or treatment as needed.[32]

1.31In its submission, the Department of Home Affairs (the department) claimed the Bill would split families, and therefore be contrary to the best interests of children under the Convention on the Rights of the Child.[33]

1.32How dare they. This is a rampantly hypocritical argument from a department that has credibly been accused of torturing children in its offshore detention regime. The department has frequently and blatantly breached the Convention on the Rights of the Child, and many other conventions to which Australia is a signatory including the Refugee Convention. Under current policy settings administered by the department, families within the offshore processing cohort have already been split. It is beyond belief that the department could with a straight face attempt to position itself as some kind of guardian of the Convention on the Rights of the Child. The Australian Greens reject the department’s assertion.

1.33As submitted by the ASRC, with supporting case studies of lived experience (case studies 2 and 3):

… several family units have been split between PNG, Nauru and Australia and separated from each other for years on end, which has exacerbated people’s mental health conditions. A government with a genuine concern for family unity would choose the obvious solution - to bring remaining family members to safety in Australia in order for families to explore resettlement options together.[34]

1.34Community detention in Australia for the offshore cohort was also supported in evidence provided by Human Rights Watch, which submitted:

Community-based alternatives to immigration detention have been successfully used in Bulgaria, Cyprus, and Poland, where refugees and non-citizens' are provided with casework support in the community while their cases are progressing. Alternatives have proven not only more humane than detention, but effective in achieving immigration enforcement goals at a lower cost.[35]

1.35The cost benefit of community detention over held detention was also argued by other expert witnesses. The ASRC in its submission noted that the department, in its October 2022-23 Portfolio Budget Statements, had allocated $632 million to Unauthorised Maritime Arrivals Offshore Management for the 2022-23 financial year.[36]

1.36The ASRC also noted that since the October 2023 Budget, in January 2023, the Australian Government announced a $422 million tender to the Management Training Corporation for the provision of “facilities, garrison, reception services in Nauru” over three years.[37] With 67 people from the offshore processing cohort currently on Nauru, this breaks down to a contract worth roughly $2.1 million per person, per year. However, as submitted by the ASRC, according to information provided to the Committee during the 2022-23 Budget estimates: ‘… the annual average cost of a person seeking asylum living in the community with support services was $54,798’.[38]

1.37As such, the cost to taxpayers of keeping someone in community detention is roughly 2.6 per cent of what it costs to keep them in Nauru.

1.38Many expert witnesses also provided evidence in support of the Bill's transparency and accountability measures.[39] As submitted by the Jesuit Refugee Service:

We also welcome the rigorous Ministerial reporting provisions set out in the Bill as an important mechanism for ensuring accountability and transparency, particularly in light of the extreme limitations on public accountability in this area of policy to date.[40]

Consistency with ALP Policies

1.39Reflecting on the Bill’s provision that transfers to Australia were only for the temporary purpose of seeking permanent resettlement in a third country, and will not capture future offshore processing cohorts, many witnesses submitted that the provisions do not go far enough, and that persons from the offshore processing cohort transferred here under these powers should be afforded permanent protection, as should those who arrive by boat seeking asylum in the future.[41] As submitted by the Kaldor Centre:

… we note that the Bill leaves the architecture of offshore processing in place and does not guarantee a permanent settlement solution in Australia for anyone found to be a refugee, address the ongoing human rights concerns of people previously transferred back to Australia, or provide protection against the same harms to any person who arrives in Australia and is transferred to Nauru or PNG in the future.[42]

1.40Such provisions would be consistent with Australian Greens policy. However, they would be inconsistent with Australian Labor Party policy and as such may have reduced the likelihood that the Bill would be accepted by the parliament.

1.41Many expert witnesses, while supporting the Bill, urgently called for greater legislative reforms to Australia’s immigration system and its treatment of people seeking asylum in the future.[43] As submitted by the UNHCR, it will continue to:

… urge the Government of Australia to repeal the statutory basis for its offshore transfer arrangements and to regularize the status of all those brought to Australia living in continued uncertainty and without access to the international human rights and refugee law rights to which they are entitled by virtue of their status.[44]

1.42The Australian Greens welcome this commitment from the UNHCR, and thank them for their advocacy to date on this issue.

1.43Some expert witnesses also raised concerns with the Bill’s provision that the Minister cannot make an offer to a person who is the subject of an adverse security assessment by ASIO. As submitted by the UNHCR:

… in the absence of procedural safeguards and processes that adhere to international refugee law, such assessments should not alone operate as grounds to deny a person international protection nor relieve Australia of responsibility for those transferred to Nauru or Papua New Guinea who are ineligible for transfer under the proposed amendments.[45]

1.44The Australian Greens agree with the UNHCR’s position on this matter, but note that transferring persons with an adverse security assessment by ASIO to Australia would be contrary to Labor’s long-standing bipartisanship with the Liberal-National coalition on this issue.

1.45Several expert witnesses specifically noted that the provisions of the Bill were consistent with Australian Labor Party policies, and with its most recent National Platform, as adopted at the 2021 Special Platform Conference.[46] This included a submission made by HR4A, which drew specific attention to a statement in detail in its platform on Australia’s border and immigration detention that (p. 126) ‘[Labor] will ensure asylum seekers who arrive by irregular means will not be punished for their mode of arrival’.[47]

1.46This observation is consistent with the assertion made by the ASRC in its public submission that ‘the Bill is entirely in line with the Australian Labor Party’s (ALP) current policy platform’.[48]

1.47Whilst arguing the Bill accords with numerous policies from the 2021 ALP National Platform, Rural Australians for Refugees went one step further, asserting support for the Bill from the Albanese Labor Government would:

… reflect the Australian people’s democratic decision to elect a Labor government at the last election, and which, with regard to this policy, we understand Australians still uphold. We refer specifically to the now repealed Med-evac legislation which was supported by the ALP.[49]

1.48The Australian Greens acknowledge that this Bill does not entirely reflect Greens policy, nor does it achieve the much-needed outcome of ending Australia’s shameful offshore detention regime. We also acknowledge that it is shaped more by the government's policies than our own. It has been designed in this way to provide an opportunity for all sides of politics to sidestep the toxic refugee politics of the last decade which have destroyed so many lives.

1.49The Australian Greens agree with the submission made by the RACS, which argued:

Australia’s Offshore Processing regime has been an abject failure of policy. It has failed to process nor resettle people expeditiously, at an insurmountable financial cost, and most critically has left those impacted by this system in perpetual trauma and suffering.[50]

1.50The Australian Greens recommend that the Senate pass the Bill.

1.51The Australian Greens recommend that the Parliament repeals the statutory basis for the government’s offshore processing regime, and that the government terminates all agreements and tenders for regional processing, and dismantles Operation Sovereign Borders.

I came to Australia for safety, but I have never seen any safety. The Australian government has failed to give safety … I am not hopeful about my future, my future depends on someone else’s decision. Once I get my treatment I might be able to think about my future.[51]

Senator Nick McKim

Greens Senator for Tasmania

Footnotes

[1]Refugee Advice & Casework Service (RACS), Submission 32, p. 5.

[2]Proposed sections 199A and 199B, Migration Amendment (Evacuation to Safety) Bill 2023.

[3]Proposed paragraph 199C(1)(b), Migration Amendment (Evacuation to Safety) Bill 2023.

[4]Proposed paragraph 199C(1)(c), Migration Amendment (Evacuation to Safety) Bill 2023.

[5]Proposed subsection 199B(1), Migration Amendment (Evacuation to Safety) Bill 2023.

[6]Proposed sections 199E, 199F, and 199G, Migration Amendment (Evacuation to Safety) Bill 2023.

[7]See, for example: Kaldor Centre for International Refugee Law, UNSW Sydney (Kaldor Centre), Submission 18, p. 1; Refugee Council of Australia (Refugee Council), Submission 19, p. 3; Justice for Refugees SA Inc., Submission 20, p. 1; and Joint Submission from Dr Sara Dehm, Dr Claire Loughnan, Ms Samantha O’Donnell and Dr Jordana Silverstein, Submission 23, p. 1.

[8]Senator Nick McKim, Senate Proof Hansard, 7 February 2023, p. 52.

[9]Office of the United Nations High Commissioner for Refugees (UNHCR), Submission 24, p. 6.

[10]UNHCR, Submission 24.

[11]Kaldor Centre, Submission 18, p. 1.

[12]UNHCR, Submission 24, pp. 2-3.

[13]RACS, Submission 32, p. 4.

[14]See, for example: Médecins Sans Frontières/Doctors Without Borders (MSF), Submission 11, p. 2; Refugee Council, Submission 19, p.2; and Joint Submission from Dr Sara Dehm, Dr Claire Loughnan, Ms Samantha O’Donnell and Dr Jordana Silverstein, Submission 23, p. 4.

[15]UNHCR, Submission 24, p. 2.

[16]See, for example: Grandmothers for Refugees, Submission 9, p. 3; Human Rights Watch (HRW), Submission 21, p. 2; Joint Submission from Dr Sara Dehm, Dr Claire Loughnan, Ms Samantha O’Donnell and Dr Jordana Silverstein, Submission 23, p. 4; Human Rights for All (HR4A), Submission 27, p.1; and RACS, Submission 32, p. 7.

[17]RACS, Submission 32, p. 7.

[18]HR4A, Submission 27, p. 1.

[19]MSF, Submission 11, p. 2.

[20]See, for example: Refugee Council, Submission 19, p. 3 and Joint Submission from Dr Sara Dehm, Dr Claire Loughnan, Ms Samantha O’Donnell and Dr Jordana Silverstein, Submission 23, pp. 3-5.

[21]HR4A, Submission 27, p. 2.

[22]Asylum Seeker Resource Centre (ASRC), Submission 26, pp. 2-3, 9.

[23]ASRC, Submission 26, p. 6.

[24]ASRC, Submission 26, p. 3.

[25]Kaldor Centre, Submission 18, p. 1.

[26]Joint Submission of Professor Caroline Fleay, Professor Mary Anne Kenny and Professor Lisa Hartley, Submission 14, p. 1.

[27]See, for example: MSF, Submission 11 – Attachment 1, p. 4; Catholic Alliance for People Seeking Asylum (CAPSA), Submission 17, p. 1; Joint Submission from Dr Sara Dehm, Dr Claire Loughnan, Ms Samantha O’Donnell and Dr Jordana Silverstein, Submission 23, p. 6; and RACS, Submission 32, p. 9.

[28]Explanatory memorandum to the Migration Amendment (Evacuation to Safety) Bill 2023, p. 3.

[29]Senator Nick McKim, Proof Senate Hansard, 7 February 2023, p. 52.

[30]See, for example: Joint submission from Professor Caroline Fleay, Professor Mary Anne Kenny and Professor Lisa Hartley, Submission 14, pp. 1-2; CAPSA, Submission 17, p. 1; Justice for Refugees SA Inc., Submission 20, p. 2; and Darwin Amnesty Group, Submission 28, p. 2.

[31]ASRC, Submission 26, pp. 5 and 11.

[32]Kaldor Centre, Submission 18, p.1.

[33]Department of Home Affairs, Submission 39, p. 5.

[34]ASRC, Submission 26, p. 4.

[35]HRW, Submission 21, p. 5.

[36]ASRC, Submission 26, p. 12.

[37]ASRC, Submission 26, p. 12.

[38]ASRC, Submission 26, p. 13.

[39]See, for example: Grandmothers for Refugees, Submission 9, p. 2; CAPSA, Submission 17, p. 1; Joint Submission from Dr Sara Dehm, Dr Claire Loughnan, Ms Samantha O’Donnell and Dr Jordana Silverstein, Submission 23, p. 6; UNHCR, Submission 24, p. 5; and Jesuit Refugee Service Australia (JRSA), Submission 33, p. 2.

[40]JRSA, Submission 33, p. 2.

[41]See, for example: New South Wales Council for Civil Liberties, Submission 15, p. 9; CAPSA, Submission 17, p. 1; Kaldor Centre, Submission 18, p. 2; and JRSA, Submission 33, p. 2.

[42]Kaldor Centre, Submission 18, p. 2.

[43]See, for example: New South Wales Council for Civil Liberties, Submission 15, p. 9 and Joint Submission from Dr Sara Dehm, Dr Claire Loughnan, Ms Samantha O’Donnell and Dr Jordana Silverstein, Submission 23, p. 6.

[44]UNHCR, Submission 24, p. 7.

[45]UNHCR, Submission 24, pp. 4-5.

[46]See, for example: Rural Australians for Refugees (RAR), Submission 8, p. 2; MSF, Submission 11, p. 3; Amnesty International Bendigo Group, Submission 12, p. 1; Refugee Council, Submission 19, p. 4; and HR4A, Submission 27, p. 2.

[47]HR4A, Submission 27, p. 2.

[48]ASRC, Submission 26, p. 2.

[49]RAR, Submission 8, p. 2.

[50]RACS, Submission 32, p. 9.

[51]ASRC, Submission 26, p. 12.