Offshore processing of asylum seekers breaches international human rights law

In light of recent findings from the Parliament’s Joint Committee on Human Rights that Australia’s regional processing legislation violates many of our human rights obligations, I thought it would be worthwhile posting my essay on the same topic up here. Note that this essay was written one month after the Expert Panel released its report and as such contains some now outdated information. Nevertheless it is still relevant and shows how Australia is breaching its human rights obligation by sending asylum seekers to Nauru and Manus Island.

Is Australia’s new policy of offshore processing compliant with its international human rights obligations?

I                  Introduction

While Australia is a signatory to many human rights conventions, it does not hold a very good track record of following these obligations, especially in regards to asylum seeker and refugee issues.[1] Australia has had a strained relationship with asylum seekers and human rights, with many arguing that Australia’s policies breach international human rights obligations. The Australian government has continually reaffirmed its position to deter asylum seekers from traveling to Australia by boat in order to apply for refugee protection. Despite many policies established by the Government, asylum seekers still seek refuge in Australia through onshore processes.

In order to address this, an Expert Panel on Asylum Seekers was established to advise the Government on ‘policy positions available to prevent asylum seekers risking their lives on dangerous boat journeys to Australia’.[2] Of the 22 recommendations, the panel recommended that ‘legislation to support the transfer of people to regional processing arrangements be introduced into the Australian Parliament as a matter of urgency,’[3] In response to the panel, the Australian Government accepted the recommendations and introduced the Migration Legislation Amendment (Regional Processing and Other Measures) Act.[4] Subsequently, the Australian Government has reintroduced ‘regional processing centres’ in Nauru and Manus Island, Papua New Guinea. However, many Human Rights organisations have condemned the decision, arguing that it ‘flagrantly violates human rights’.[5]

This essay will examine the Australian Government’s new policy of offshore processing to establish if the policy is compliant with Australia’s human rights obligations. Before analysing Australia’s obligations under international law, the background of the asylum seeker debate will be provided in order to give context to the Government’s new polices. The Expert Panel Recommendations and subsequent Migration Act Amendment will then be examined according to international human rights law. In particular, the Universal Declaration of Human Rights (UDHR), International Convention of Civil and Political Rights (ICCPR), and the Convention Against Torture (CAT) will be drawn upon in the critique of the new policies. While other conventions and treaties, especially the Refugee Convention, are also relevant to this issue, they are outside of the scope of this essay, as this essay will focus only on human rights law proper. Through an examination of relevant human rights law it will be shown that Australia’s new off shore policy is indeed in violation of its human rights obligations under these conventions.

II                  Background of Asylum Seeker Issues in Australia

Throughout the 20th century Australia has received ‘hundreds of thousands of refugees’[6] seeking protection from persecution. While the majority of refugees in Australia have been brought over from refugee camps around the world through Australia’s offshore humanitarian program,[7] there is also a growing number who apply for asylum once they arrive on Australian soil. According to international law, asylum seekers are required to reach a nation’s territory in order to apply for asylum. Thus those wishing to apply for asylum in Australia have two options, either travel by air with a valid visa and travel documents, or take an often dangerous journey by boat. However, those who are unable to obtain valid travel documents have no other option of seeking asylum in Australia than by boat. The first boat of asylum seekers was carrying Vietnamese refugees that landed in Darwin on April 1976.[8] Since then, tens of thousands of asylum seekers have travelled to Australia by boat in order to seek asylum.[9] The issue of asylum seekers travelling by boat to Australia has been a highly debated topic in both the public media and in the Parliament,[10] with many differing views presented, ranging from ‘turning the boats back’[11] to an ‘open boarders approach’.[12] Of one important concern to many in Australia are the hundreds of lives lost during the voyage to Australia. As the Expert Panel point out:

From late 2001 to June 2012 there have been 964 asylum seekers and crew lost at sea from known incidents concerning boats carrying asylum seekers to Australia. Of these, 604 people have lost their lives since October 2009.[13]

As such, this issue was one of the key terms of reference the expert panel was asked to advise on was policies to ‘prevent asylum seekers risking their lives on dangerous boat journeys to Australia’.[14] Throughout the past 30 years both sides of government have adopted policies designed to deter people from travelling by boat to Australia. The effectiveness of such policies is still heavily debated. Some argue that such policies do not affect what is entirely a push factor of forced migration, while others argue that Australia’s migration policies provide a pull factor in attracting asylum seekers.[15] In an attempt to stop boat arrivals in 2001, the Howard government established the controversial policy of offshore processing in Nauru and Papua New Guinea (PNG), known as the ‘Pacific Solution’.[16]

A     The Original Pacific Solution

Australia first introduced the policy of offshore processing following the Tampa incident in which a Norwegian freighter ship was instructed by Australia to rescue 433 asylum seekers attempting to reach Australian territory.[17] However, once the Tampa rescued the asylum seekers, the ship was instructed not to enter Australian waters so as to prevent the asylum seekers claiming asylum in Australia.[18]

Following the Tampa incident, the Australian government enacted six pieces[19] of legislation to ‘create a secondary tier of Refugee Status Determination (RSD) procedures which were intended to operate outside the domestic rule of law.’[20] As such, these RSDs provided a narrower process than available to those on mainland Australia, thus providing asylum seekers less rights to apply for asylum. As Susan Kneebone explains, the legislation was to provide the Australian government with greater control over who crosses its maritime borders:[21]

First, it legislated to excise certain remote islands from Australia’s ‘migration zone’, so as to prevent the making of valid claims in those places…Then in an extension of the notion of safe third country, it provided that asylum seekers could be taken to a ‘declared country’ for processing. Such declared countries were to become the sites of the Pacific Strategy detention arrangements. Simultaneously, the government also legislated to create wider ‘border protection’ powers by granting greater interdiction powers, including the power to intercept, turn-around, search and detain asylum seekers who were attempting to enter Australia without authorisation.[22]

Arrangements were made with PNG and Nauru to establish processing centres in the region, in return for ‘millions of dollars in aid’.[23] However, offshore processing in PNG and Nauru was heavily criticised by human rights organisations, who argued that many rights of asylum seekers were ignored by this policy.[24] Caroline Fleay argues that the processing centre on Nauru lacked many basic essentials:

Asylum seekers faced living conditions that failed to provide adequate shelter, water, food and sanitation…Asylum seekers were also denied access to outside information and any means of communication…making it impossible to find out news on their own countries and families, or even to let their families know where they were. In addition, the assessment processing of refugee claims denied natural justice for many, and those whose claims were rejected through this flawed process were placed under great pressure to return to their own countries.[25]

In 2008 the Rudd government announced it was ending the Pacific Solution, closing down the processing centre in Nauru.[26] The Immigration Minister called the Pacific Solution ‘a cynical, costly and ultimately unsuccessful exercise’.[27] However, the Government did not repeal the amendments made to Migration Act. Instead, the existing amendments were used for the Government’s new policy of detaining asylum seekers in the expanded Christmas Island detention centre. Using the same amendments of the Pacific Solution, the Government established an offshore RSD process that was to be outside of the domestic legal requirements, thus still denying asylum seekers from making a full claim under domestic legislation.[28] However, this policy still failed to deter asylum seekers from travelling by boat. Thus, under political pressure, the Gillard Government sought to establish a new Malaysian Solution.

B     The Malaysian Solution

On 7 May 2011 the Gillard Government announced the Malaysian Solution, in which a deal was made where Malaysia agreed to accept 800 asylum seekers who had arrived by boat in Australia in exchange for Australia accepting 4000 refugees from Malaysia.[29] Malaysia agreed to facilitate ‘…[t]ransferees’ lawful presence [in Malaysia]’, treat transferees ‘with dignity and respect and in accordance with human rights standards’ and ‘respect the principle of non-refoulement’.[30] However, Malaysia is not a signatory to the Refugee Convention, ICCPR or CAT, and has a terrible record of abuse against asylum seekers and refugees. As an Amnesty International report points out, asylum seekers

face the daily prospect of being arrested, detained in squalid conditions, and tortured and otherwise ill-treated, including by caning. They face the constant fear of being forced to return to a country where they may be stripped of their rights or even killed.[31]

Thus in response to the Malaysian Solution policy, plaintiffs M70 and M106, who were about to be deported to Malaysia under this agreement, commenced proceedings in the High Court of Australia the case of Plaintiff M70/2011 v Minister for Immigration and Citizenship.[32] They argued that under the Migration Act s 198A the Minister for Immigration was required to make a declaration that certain human rights requirements were met before the transfer of asylum seekers could occur. While the Minister did make a declaration that Malaysia would improve its treatment of asylum seekers, the High Court found that:

The declaration must be a declaration about continuing circumstances in the specified country. It cannot therefore be a declaration based upon, and therefore a declaration of, a hope or belief or expectation that the specified country will meet the criteria at some time in the future even if that time be imminent.[33]

Thus it was found that because Malaysia did not guarantee adequate safety guarantees of asylum seekers, including human rights assurances, the Minister could in good faith not make a declaration under section 198A, and thus the agreement with Malaysia was considered invalid. Hence the Malaysian Solution was ended before it started. However, the Government still faced attacks on the continuing boat arrivals, thus leading it to commission the Expert Panel Report on Asylum Seekers

III                  Asylum seeker expert panel recommendations

On 28 June 2012 the Prime Minister and the Minister for Immigration and Citizenship announced that the Government had invited Air Chief Marshal Angus Houston, the former chief of Australia’s defence force, to lead an Expert panel to provide a report on ‘how best to prevent asylum seekers risking their lives by travelling to Australia by boat’.[34] The Panel also included Paris Aristotle, the Director of the Victorian Foundation for Survivors of Torture Inc and Professor Michael L’Estrange, the Director of the National Security College at the Australian National University. The panel found 22 key recommendations, including: increasing Australia’s humanitarian program, building a regional solution in cooperation with Indonesia and Malaysia, and re-establishing offshore processing centres, including in Nauru and PNG. The Expert Panel also advised for the reestablishment of the Malaysian solution, thus opening up the possibility again that asylum seekers will not be guaranteed protection under human rights law.

The panel continually stressed that the report was an ‘integrated package’[35] of 22 recommendations, and that the Government should not separate recommendations but seek to implement them as a whole. However, when questioned at a Q&A session at the Castan Centre for Human Rights Law, Paris Aristotle failed to state that he would withdraw his support for the recommendations if the Government only implemented part of the recommendations.[36] Thus while the Government has committed to implementing all 22 recommendations, due to the processes of Parliament there is no guarantee that all 22 recommendations will be met.[37] As such, while there are many positive recommendations of the Expert Panel, there are also many issues that must be critiqued, independently of the entire integrated package.

The Panel argued that establishing a regional framework to assist refugees in the area, as well as ‘disincentives’ to ‘discourage irregular and dangerous maritime voyages’,[38] would work towards reducing the number of lives lost at sea. In addition to offshore processing in Nauru and Manus Island, PNG, key disincentives also included the ‘no advantage policy’[39] and also the option of turning back boats of asylum seekers.[40] The no advantage policy argued that those who do come to Australia and are processed in offshore centres will not have their RSD and subsequent visa granted any quicker than if ‘had they availed themselves of assessment by UNHCR within the regional processing arrangement.’[41] The legal issues of these policies, including arbitrary detention and non-refoulement will be examined below.

While the Government has accepted all 22 recommendations in principle,[42] only the recommendations of offshore processing and the increase in the humanitarian program has been implemented so far. As will be shown, these policies create many issues in regards to Australia’s human rights obligation. In addition, the Government has also made changes to the Migration Act under the Migration Legislation Amendment (Regional Processing and Other Measures) Act. [43] These amendments were essential for the Government to implement the recommendations of offshore processing, due to the previous successful legal challenges in the High Court.

IV                  Migration Legislation Amendment

On 27 June 2012, one day after the Expert Panel released its recommendations,[44] the Government introduced legislation in order to implement the offshore processing recommendations of the Expert Panel. The Migration Legislation Amendment (Regional Processing and Other Measures) Act[45] made changes to the Migration Act[46] needed in order to reverse the effects of Plaintiff M70/2011 v Minister for Immigration and Citizenship[47] so that the Government could continue with offshore processing without another legal challenge. The new legislation amends Section 198A which the High Court relied upon in its decision in M70. Thus the Amendment strips the Migration Act of Human Rights protections when the Government is deciding upon an offshore processing centre. As such, the ‘designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country’.[48] As Tania Penovic points out, ‘the criteria in section 198A have been replaced with the sole condition that the Minister thinks that it is in the national interest to designate the country.’[49] As such, the Minister can declare any country as a regional processing centre, even if that country clearly violates human rights.

Furthermore, the Amendment does not include any safeguards set out in the Expert Panel Recommendations, such as ‘treatment consistent with human rights standards (including no arbitrary detention); appropriate accommodation; appropriate physical and mental health services’[50] and others. As such, without these safeguards there is a great risk of inhumane treatment and inadequate facilities. Thus many argue that these new amendments are contrary to Australia’s human rights obligations, as will be shown below.

V                  Off shore processing violates Australia’s international human rights obligations

As many human rights advocates have pointed out, the use of offshore processing as recommended by Expert Panel clearly violate Australia’s human rights obligations.[51] While there are many positives of the Expert Panel Recommendations, there are many issues that the Expert Panel fails to address. While the Panel was asked to provide policy advice on ‘relevant international obligations’,[52] their recommendations clearly fail to address these issues, and rather go against many essential human rights treaties to which Australia has signed.

A     The Right to Seek Asylum

The right to seek asylum is an essential part of human rights law, and ensures those who are fleeing persecution are provided with protection from a host country. Australia is a signatory to a number of human rights laws that provide obligations to protect those seeking asylum. While the Refugee Convention[53] contains the comprehensive guidelines for those seeking asylum, the Universal Declaration of Human Rights also outlines the right to seek and enjoy asylum.

1               The Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is declaration adopted by the United Nations General Assembly on 10 December 1948. Australia, as a member of the United Nations General Assembly voted in favour of declaration. As such, Australia has pledged, under the declaration, ‘to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.’[54] The UDHR provides many expressions of the ‘inherent dignity and of the equal and inalienable rights of all members of the human family’.[55] However, it is important to note that the UDHR is not a binding treaty, and is what is known as soft law. Nevertheless, it plays an important role in establishing the groundwork for later subsequent treaties. Together with the International Covenant for Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), the UDHR makes up the International Bill of Rights. As such, the UDHR plays a significant role in interpreting international human rights principles.

a)    Universal Declaration of Human Rights Article 14(1)

Of these universal human rights, Article 14(1) states that everyone ‘has the right to seek and to enjoy in other countries asylum from persecution.’[56] Article 14(1) contains a twofold right for asylum seekers, the right to seek asylum and the right to enjoy asylum, and thus provides an obligation for Australia to provide the means to exercise such rights.

(i)    Right to seek asylum

The first right is the right to seek asylum from persecution. As mentioned above, this right is a right provided to all members of the human family. Such a right also demands responsibility of the State, in order to facilitate the exercising of that right. Thus Australia has an obligation to facilitate to right to seek asylum. While it can be argued that ‘there is no right to be “granted” asylum de jure, there may exist an implied right to asylum de facto, or, at the very least, a right to apply for it.’[57]

However, by removing asylum seekers from Australian territory or stopping them reaching Australian soil in order to apply for asylum, Australia is directly infringing on the right to apply for asylum. While it can be argued that Australia is providing alternative means for asylum seekers to apply for asylum in Nauru or PNG, it is in essence stopping asylum seekers exercising their right to apply for asylum in the country they reach. Such asylum seekers did not apply for asylum in Indonesia (who do not grant asylum) or Nauru, but travelled to Australia in order to apply for asylum. Furthermore, even if Australia chooses to process asylum seekers in an offshore territory, there is still a responsibility for Australia to do such processing.

However, recent changes to the offshore processing policy shows that Nauru will now be processing asylum seekers themselves under Nauruan law,[58] thus preventing asylum seekers from applying for asylum, and subsequent judicial reviews, in Australia. While other legal ramifications for this will be outlined below, at the very least it is denying asylum seekers rights to apply for asylum in Australia. Thus by removing asylum seekers from Australia, the Australian Government is denying the right to seek asylum, and outsourcing this obligation to other countries.

(ii)  Right to enjoy asylum

The second right contained in Article 14(1) is the right to enjoy asylum. As Alice Edwards argues:

In contrast to the right to seek asylum, the right to enjoy asylum suggests at a minimum a right ‘to benefit from’ asylum. While a State is not obligated to grant asylum, an individual, once admitted to the territory, is entitled ‘to enjoy’ it. According to a UN report, ‘asylum’ consists of several elements: to admit a person to the territory of a State, to allow the person to remain there, to refuse to expel, to refuse to extradite and not to prosecute, punish or otherwise restrict the person’s liberty.

Thus even if Australia does outsource its responsibility to process asylum seekers itself, it still has an obligation to provide means for asylum seekers to enjoy asylum in Australia once asylum has been granted. Asylum seekers who are sent to offshore processing centres are not guaranteed resettlement in Australia, as the Expert Panel recommends.[59] As such, they are also denied the right to enjoy asylum in Australia. In addition, asylum seekers who have been found to be refugees may still be detained while waiting for resettlement or security checks. If this occurs, as currently happens in Christmas Island and other detention centres in Australia, their enjoyment of asylum may be restricted, thus further denying them the rights under Article 14(1).

Thus by processing asylum seekers offshore, Australia is failing in its responsibility to provide the right to seek and enjoy asylum. Furthermore, the UDHR plays a significant role in the interpretation of other relevant principles, such as the non-refoulement principle, arbitrary detention and principle of humane treatment, as further elaborated by subsequent treaties.

B              Human Rights in Detention

While the Government has been clear to avoid the use of detention in its press releases about the new policy, it is clear that these new offshore processing facilities are a form of detention. As such, there are numerous international human rights laws that apply to people who are detained. The International Covenant for Civil and Political Rights (ICCPR) is a multilateral treaty adopted on December 16, 1966 by the UN General Assembly.[60] The ICCPR contains many core provisions focusing on individual rights, civil liberties and political rights that further elaborate on the UDHR. Australia signed the ICCPR on 18 December 1972 and ratified it on the 13th of August 1980.[61] However, while Australia is yet to fully implement the ICCPR into its domestic legislation, the ICCPR still plays an important role in keeping Australia accountable in its human rights obligations.

It is worth noting that some may attempt to argue that because Nauru or PNG have accepted legal responsibility for asylum seekers sent there, Australia is no longer liable for human rights violations against such asylum seekers. However, the Australian Human Rights Committee affirms that

a state will contravene its obligations under the ICCPR if it removes a person to another country in circumstances where there is a real risk that their rights under the ICCPR – including those relating to arbitrary detention – will be violated.[62]

Thus Australia is still responsible for its human rights obligations towards asylum seekers, even if it sends them to an offshore processing facility. Indeed, Australia has a responsibility to ensure it only sends asylum seekers to other countries where their rights will be protected.

1      Arbitrary Detention

While detention itself is not illegal under international law, there are many restrictions on the use of detention. One important issue is the right against arbitrary detention, as outlined in both the ICCPR Article 9(1) and UDHR Article 9. While the UDHR directly states that ‘no one shall be subjected to arbitrary arrest, detention or exile’, as shown above, the UDHR is considered soft law and provides no direct obligation to Australia. However, the ICCPR further elaborates on the UDHR, setting out more concrete obligations.

Australia is a signatory to the First Optional Protocol, thus providing individuals in Australia the chance for complaints to be reviewed by The United Nations Human Rights Committee. The Committee, under the First Optional Protocol, has the jurisdiction to examine individual complaints in regards to the ICCPR, and provides findings of Australia’s actions. As such, these reviews provide a good example of Australia’s obligations under the ICCPR.

Article 9(1) of the ICCPR states that ‘everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.’[63] Furthermore, Paragraph 4 states that ‘anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court’.[64] As such, it needs to be questioned if Australia’s policy of offshore processing constitutes arbitrary detention, as set out in the ICCPR. The ICCPR itself does not define the term arbitrary, and as such the definition needs to be found within subsequent reviews of the Committee.

The United Nations Human Rights Committee has provided subsequent definitions of arbitrary detention in its decisions of individual complaints against Australia, showing that arbitrary detention takes a broader view than just unlawful:

Whilst agreeing with Australia that it is not per se arbitrary to detain individuals requesting asylum, the Human Rights Committee emphasised two key points: first, that justification for detention must be advanced on grounds specific to the individual; and second, that this individual justification for detention should be subject to periodic review.[65]

This view that arbitrary detention be specifically necessary to the individual and must also be subject to review is also shown in the following cases.

a)    C v Australia

In the case of C v Australia, the United Nations Human Rights Committee held that an Iranian national who had been detained for two years was subjected to arbitrary detention under Article 9 of the ICCPR, because the ongoing detention lacked justification.[66] In defining the meaning of arbitrary, the Committee found that

whatever the reasons for the original detention, continuance of immigration detention for over two years without individual justification and without any chance of substantive judicial review was, in the Committee’s view, arbitrary.[67]

Thus the Committee found that the Australian government had failed to regularly reassess the necessity for continual detention, in light of other ‘less invasive means of achieving the same ends… for example, the imposition of reporting obligations, sureties or other conditions.’[68] Thus while initial detention for processing may be required, continual detention may be disproportionate to the aims of detention. This view is also reiterated in the case of A v Australia.

b)    A v Australia

In the case of A v Australia, the United Nations Human Rights Committee heard the communication of a Cambodian asylum seeker who had been detained in immigration detention for over four years.[69] The Committee found that Australia had breached its human rights obligations under Article 9 of the ICCPR. In particular, the Committee found that the detention was arbitrary because Australia failed to provide adequate review of the necessity of detention, in accordance with Paragraph 4:

Every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification…Without such factors detention may be considered arbitrary.[70]

Thus, the use of detention must be necessary, based upon the individual needs,[71] and also open to continual review to ensure it does not become arbitrary. In addition, the Australian Human Rights Committee argues that

Detention may be found to be arbitrary where it is prolonged or indefinite in circumstances which are inappropriate, are unjust or lack predictability or proportionality. The United Nations Human Rights Committee has found that prolonged detention for immigration purposes was not justifiable and amounted to arbitrary detention in breach of Australia’s international human rights obligations.[72]

This reiterates the position that the United Nations Human Rights Committee took in the case of Alphen v The Netherlands, in which it stated that:

The drafting history of article 9, paragraph 1, confirms that ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability… Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.[73]

Thus it is clear that arbitrary detention is not just unlawful detention, but also includes detention that is inappropriate, unnecessary, disproportionate, unpredictable and not open to ongoing review.

c)      Australia’s offshore processing is in breach of Article 9

Australia’s new offshore processing in Nauru and PNG breach the prohibition on arbitrary detention in a number of significant ways.

First, it can be argued that sending asylum seekers to an offshore processing facility is disproportionate, unnecessary and inappropriate, as it is not required for Australia to adequately process asylum claims in another country. Australia has been processing asylum claims effectively in Australia through the use of community detention, [74] and as such there is no need for Australia to detain people in order to process their asylum claim, let alone send them to an offshore facility. Furthermore, when a need to detain an asylum seeker is justified, Australia has many onshore detention centres available.

While Expert Panel may argue that offshore processing is necessary to discourage further boat arrivals, this policy is clearly unjust. As shown above, human rights are individual rights that demand the circumstances of each person be considered. As such, Australia has an obligation to assess the needs of every individual in deciding about the necessity of offshore processing. It defies logic to argue that one individual needs to be processed in Nauru or PNG so that another hypothetical and potential individual is persuaded not travel to Australia by boat. Thus as each individual needs to be assessed on their own requirements, there will never be a requirement for an individual to be processed offshore providing that there is adequate processing facilities in Australia, including community detention.

Furthermore, community detention is also much a cheaper option than offshore processing, with Christmas Island costing $1,830 per detainee per day. In contrast, supporting asylum seekers living in the community rather than in detention costs just $63 a day.[75] The cost for offshore processing in Nauru, which will hold up to 2100 asylum seekers, is said to be $530 million to establish the centre, and further $1.8 Billion to run the centre for the next 5 years.[76] Thus sending asylum seekers offshore is arbitrary because it is unnecessary and disproportionate, especially in light of other options such as community detention.

Second, offshore processing is arbitrary because it does not contain a time limit or expectation. The Expert Panel recommendation of the ‘no advantage’[77] policy provides that an asylum seeker will not be resettled any quicker than if that person had stayed in a UNHCR processing facility. However, the Government has refused to specify how long this is. Refugees in UNHCR facilities can spend up to 14 years waiting to be resettled to another country.[78] However, others estimate that the time in offshore centres is likely to be around 5 years. [79] As such, the lack of a time restraints and the likely hood of asylum seekers spending over 5 years in offshore processing facilities clearly constitute the grounds for arbitrary detention.

Finally, the lack of review is also a major issue in regards to arbitrary detention. As mentioned above, asylum seekers will be under Nauru law and will be processed by their system.[80] Thus there is very limited scope for judicial review of the necessity of detention. As many law experts, including Julian Burnside, have argued, Nauru does not have an adequate legal system to process asylum seeker reviews. Furthermore, there will be no means of asylum seekers having their cases reviewed by Australian courts. Thus, under Article 9(4), asylum seekers must have the chance for their detention to be regularly reviewed to ensure that detention is still appropriate and proportionate. The lack of access to legal review means that detention is therefore arbitrary.

The issue of arbitrary detention not only applies to those in offshore processing facilities, but also to those awaiting transfer to offshore facilities and awaiting resettlement pending a positive RSD. As the Australian Human Rights Commission points out:

The detention of people awaiting transfer under the arrangement may have become arbitrary as the conditions of detention under which those who were held pending transfer may have been unnecessarily restrictive.[81]

Thus Australia’s policy of offshore processing clearly violates Article 9 of the ICCPR. Offshore processing is clearly arbitrary detention because it is disproportionate, unnecessary, unpredictable in its time limits, and may not provide adequate legal review. However, offshore processing also violates a number of other international human rights obligations.

2               Humane treatment in Detention

Another significant obligation that Australia has under international law is the right of humane treatment as defined in Articles 7 and 10 of the ICCPR. Article 7 of the ICCPR states that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’[82] Furthermore, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also contains provisions against inhumane treatment in Article 16:

Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment…when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.[83]

Detention can be in contrary to these rights when it becomes extended that it causes mental health problems, or when it is unnecessary or unjust. The Australian Human Rights Committee point out that:

Prolonged and indefinite detention may also amount to cruel, inhuman or degrading treatment, in breach of Australia’s obligations under articles 7 and 10(1) of the ICCPR…because it can cause serious psychological harm. Australia has been found to be in breach of its obligations relating to cruel, inhuman or degrading treatment by subjecting people to prolonged indefinite immigration detention. For example, in C v Australia, the United Nations Human Rights Committee held that mandatory immigration detention amounted to cruel, inhuman or degrading treatment in circumstances where it was prolonged, arbitrary and contributed to a detainee’s mental health problems, when the authorities were aware of this but they delayed releasing the person from immigration detention.

Thus, as shown above, asylum seekers may be detained in offshore processing centres for over 5 years, resulting in significant mental health issues. As many medical studies show, the impacts of detention have significant effects on mental health.[84] As Lynda Crowley-Cyr explains,

The link between indefinite and protracted immigration detention and the deterioration of the mental health and wellbeing of detainees is well documented in Australia’s mental health and human rights literature, reports and case law. This is particularly so for detainees who are already vulnerable, ‘especially children, or those with pre-existing trauma or mental illness’.

The original Pacific Solution resulted in many significant mental health issues due to the extended period of time and the lack of basic facilities. Many asylum seekers experienced ‘despair…hopelessness…distress…sleeping difficulties, constant worrying…social withdrawal, not enjoying life anymore and being easily irritated or upset’.[85] Many also had episodes of ‘self harm’, [86] in which adequate mental health care was not provided. The Expert Panel recommended that ‘appropriate physical and mental health services’ be established. However, these provisions were not set out in the Migration Legislation Amendment,[87] or subsequent agreements between Australia and Nauru or PNG. As such, the new offshore processing seems likely to also have a negative effect on the mental health of asylum seekers, especially if detention is prolonged. If such mental health issues arise, and especially if there are no safeguards to prevent them, Australia will likely be in breach of its human rights obligations of humane treatment.

In addition, asylum seekers may be also subject to inhumane treatment due to lack of adequate facilities. Currently, asylum seekers are being housed in temporary tents,[88] mirroring the first Pacific Solution. Furthermore, little is known about the access to health services, running water, or access to outside information or communication. However, if the previous processing centres are any indication, there will be little access to such things. As Caroline Fleay recalls the Pacific Solution:

Fresh food was in short supply in the detention camps and there were reports that the food was often stale and sometimes insects were found in it. There was also little drinkable water in the detention camps, and the situation worsened as the number of those detained on Nauru increased…Often there would be no water for washing clothes, flushing the toilet or for taking a shower, creating unsanitary conditions.[89]

In addition, these unsanitary conditions led to significant health issues, which Nauru was unequipped to address:

The unsanitary conditions in the detention camps led to medical problems, including incidences of diarrhoea and other gastro-intestinal diseases, skin and eye infections, and dengue fever. The lack of adequate medical care on Nauru meant that asylum seekers with conditions requiring specialist attention had to wait lengthy periods for it, with some finally being flown to Australian hospitals to receive it. The consequences for these asylum seekers meant months of pain and suffering that could have been averted or at least minimised should they have been in Australia near appropriate medical facilities.

As such, if conditions are not improved since the last Pacific Solution, there are strong arguments that the conditions in these facilities may constitute cruel, inhumane and degrading treatment as outlined in the ICCPR and CAT. Thus the issues such as mental health and lack of basic facilities may mean that Australia is in breach of its human rights obligations under international law.

C              The right against refoulment

The right for an individual not to be returned to a country which may persecute or torture them is an important right under international human rights law. This right, known as non-refoulment, is outlined in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Australia signed the convention on 10 December 1985, and ratified it on 8 August 1989. However, it has not been fully implemented into domestic legislation. CAT ensures in Article 3 that ‘no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’[90] Furthermore, the right to non-refoulement is also referred to in the ICCPR and the UDHR,[91] which prevent the removal of anyone from Australia to a country where they are in danger of death, torture or other mistreatment including arbitrary detention. In addition, these treaties also prohibit Australia to return individuals to countries that may then subsequently return them to further countries in which they may face harm.[92]

While the case of Plaintiff M70/2011 v Minister for Immigration and Citizenship upheld the view that Australia cannot send an individual to a country where they may face harm, the subsequent Migration Legislation Amendment sought to reverse this decision,[93] leaving the decision about which countries can be used for offshore processing merely under the discretion of the Immigration Minister. As such, as the Human Rights Law Centre argue, the

Act breaches Australia’s international human rights obligations…It enables the government of the day to designate any country as a regional processing country, regardless of the human rights protections afforded in that country either under international or domestic law. This is likely to give rise to violations of Australia’s non- refoulement obligations under…the International Covenant on Civil and Political Rights and the Convention against Torture, [both] of which have been ratified by Australia.[94]

Thus, under the Migration Legislation Amendment, Australia can send asylum seekers to any country it chooses, even it this decision breaches its non-refoulement obligations, either directly or subsequently by further removals.

While at first glance sending asylum seekers to Nauru or PNG does not breach the non-refoulement obligation directly, Australia may be in violation of this principle if Nauru or PNG return any asylum seekers. Nauru has only ratified CAT on the 26th of September, two months after the Migration Legislation Amendment was passed. As such, many argue that it has not had enough time to implement CAT into domestic processes, let alone legislation. PNG on the other hand has not even signed CAT. In addition, Nauru hasn’t ratified the ICCPR, while PNG ratified the ICCPR on 21 July 2008. Thus there are many missing protections for asylum seekers in Nauru and PNG, leaving Australia responsible if the rights of asylum seekers are breached.

For example, if PNG finds an asylum seeker to not be a refugee, it may wish to send the individual back to their country of origin. However, as for many who seek asylum but subsequently are denied refugee status, they may still face significant torture back in their country of origin.  CAT requires that a State not send a person to another State where they may face torture. However, as PNG has not signed CAT, they may still send such a person back, thus placing them at the risk of torture on return. If such a situation arises, Australia will be held accountable for breaching the principle of non-refoulement.

In another possible situation, Nauru may inadequately process asylum claims. As Nauru is likely to process RSDs themselves,[95] the process in which Nauru makes a RSD may be inadequate, especially as Nauru is new to the RSD process. As such, there is a risk that Nauru may make an incomplete assessment, meaning that they may return an asylum seeker who may have been a genuine refugee, something that happens all to often.[96] Thus again, Australia could be found to be responsible for breaching its obligations under CAT if a genuine refugee is returned.

Furthermore, in direct violation of the non-refoulement obligations, the Expert Panel recommended that asylum seeker boats be turned back to the State in which they came from.[97] As such, asylum seekers may be sent back to Indonesia or Sri Lanka, where they face torture, arbitrary detention or inhumane treatment.[98] This is a clear violation of the non-refoulment principle and would put Australia directly in violations of human rights law.

Thus the Migration Legislation Amendment opens up many risks of Australia breaching its human rights obligations under CAT. Firstly, it allows any country to be declared an offshore processing centre, irrelevant of human rights standards there. Second, if Nauru or PNG return an asylum seeker to a country where they face torture or inhumane treatment, Australia will be in breach of its obligations of non-refoulement. And finally, the Expert Panel recommends turning back asylum seekers, directly breaching Australia’s non-refoulement obligations.

VI                  Conclusion

It is therefore clear that the Expert Panel Recommendations and the subsequent Migration Act Amendment breaches human rights law. Firstly, by sending asylum seekers to an offshore processing centre, Australia breaches the principles of the right to seek and enjoy asylum as set out by the Universal Declaration of Human Rights. Second, Australia breaches Article 9 of the International Covenant of Civil and Political Rights[99] by placing asylum seekers in unnecessary detention without time limits or periodic review, thus creating conditions of arbitrary detention. Third, there is a great risk that the conditions of these offshore processing centres will constitute inhumane treatment if they lack basic facilities, including food, water, shelter and medical services. Prolonged detention also has a significant impact on mental health, thus also constituting inhumane treatment. Forth, Australia will be in violation of its non-refoulment obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, if it turns back any asylum seeker boats. In addition, Australia may breach this obligation if Nauru or PNG subsequently return any asylum seekers. Further research is needed to assess if Australia is also in breach of other international laws, such as the Refugee Convention[100] or the Convention of the Rights of the Child[101].

Thus it is clear that Australia is in breach of its international human rights obligations. While the Expert Panel was asked to recommend approaches to save lives at sea in light of ‘relevant international obligations’,[102] unfortunately it has failed to do so. As such, the Expert Panel Recommendations contain advice that is contrary to human rights law. While it does provide many positive recommendations, such as an increase of Australia’s humanitarian intake and establishing regional solutions, its recommendations to return to the days of the Pacific Solution is unfortunately a misguided solution. In order to save lives at sea, Australia needs to find a more humane approach consistent with international human rights law.


[1] Hillary Charlesworth, Human rights: Australia versus the UN (Discussion paper 22/06 Democratic Audit of Australia Australian National University, August 2006) 8; J. Corrin, ‘Australia: Country Report on Human Rights’ (2009) 40 Victoria University Wellington Law Review 54–5; Phil Lynch, ‘Australia’s duplicitous approach to the UN’ABC News (online), 13 August 2012 <http://www.abc.net.au/unleashed/4190968.html&gt;.

[2] Tanya Cleary, ‘Report of the Expert Panel on Asylum Seekers Released’, Expert Panel on Asylum Seekers Press Release (online), 13 August 2012 <http://expertpanelonasylumseekers.dpmc.gov.au/sites/default/files/media_releases/120813_media_release_final_report_recommendations.pdf&gt;.

[3] Angus Houston, Paris Aristotle and Michael L’Estrange, Report of the Expert panel on Asylum Seekers, August 2012.

[4] Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).

[5] Human Rights Law Centre, ‘New offshore processing law flagrantly violates human rights’, 17 August 2012 <http://www.hrlc.org.au/content/new-offshore-processing-law-flagrantly-violates-human-rights/&gt;; Open letter from human rights groups to the Prime Minister against the Migration Legislation Amendments, August 15, 2012 <http://www.hrlc.org.au/files/united-opposition-migration-legislation-amendments.pdf&gt;; ‘Migration Act stripped of human rights protections’, 17 August 2012, Australia Human Rights Commission <http://www.humanrights.gov.au/about/media/media_releases/2012/64_12.html&gt;; Alison Rourke, ‘Australian refugee plan criticised by human rights groups’, The Guardian (online), 13 August 2012 <http://www.guardian.co.uk/world/2012/aug/13/australian-refugee-plan-criticised&gt;.

[6] Andreas Schloenhardt, ‘To deter, detain and deny: Protection of onshore asylum seekers in Australia’ (2002) 14 International Journal of Refugee Law 302.

[7] Ibid 304.

[8]  Janet Phillips and Harriet Spinks, ‘Boat arrivals in Australia since 1976’ [2010] Australian Parliamentary Library <http://sievx.com/articles/psdp/20120124BoatArrivals1976-2011.pdf&gt; at 3 October 2012.

[9] Ibid 19.

[10] Ibid 6–7.

[11] Adam Fletcher, ‘Turning back the boats – back to the future on asylum policy’, On Line Opinion (online),  <http://www.onlineopinion.com.au/view.asp?article=13190&gt;.

[12] Phillips and Spinks, ‘Boat arrivals in Australia since 1976’, above n 8, 6.

[13] Angus Houston, Paris Aristotle, and Michael L’Estrange, ‘Report of the Expert panel on Asylum Seekers’, above n 3, 19.

[14] Ibid 9.

[15] Ibid 26–8.

[16] Tara Magner, ‘A Less than Pacific Solution for Asylum Seekers in Australia’ (2004) 16(1) International journal of refugee law 56; Sasha Lowes, ‘The Legality of Extraterritorial Processing of Asylum Claims: The Judgment of the High Court of Australia in the “Malaysian Solution” Case’ (2012) 12(1) Human Rights Law Review 171.

[17] Magner, ‘A Less than Pacific Solution for Asylum Seekers in Australia’, above n 16, 53; Lowes, ‘The Legality of Extraterritorial Processing of Asylum Claims’, above n 16, 169.

[18] Lowes, ‘The Legality of Extraterritorial Processing of Asylum Claims’, above n 16, 170.

[19] Border Protection (Validation and Enforcement Powers) Act 2001 (Cth), Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth); Migration Legislation Amendment Act (No 1) 2001 (Cth); Migration Legislation Amendment Act (No 5) 2001 (Cth); and Migration Legislation Amendment Act (No 6) 2001 (Cth).

[20] Lowes, ‘The Legality of Extraterritorial Processing of Asylum Claims’, above n 16, 170.

[21] Ibid 170.

[22] Susan Kneebone, ‘The Pacific Plan: The Provision of “Effective Protection”?’ (2006) 18(3-4) International Journal of Refugee Law, 697.

[23] Magner, ‘A Less than Pacific Solution for Asylum Seekers in Australia’, above n 16, 56.

[24] Australia-Pacific: Offending human dignity – the ‘Pacific Solution’ Amnesty International, 26 August 2002 <http://www.amnesty.org/en/library/asset/ASA12/009/2002/en/f737f5c1-d7f2-11dd-9df8-936c90684588/asa120092002en.pdf&gt;; Kazimierz Bem et al, A price too high: the cost of Australia’s approach to asylum seekers (2007) <http://www.ajustaustralia.com/resources/53c93e62aebb725295fc6c95f0b19604_a%20price%20too%20high%20-%20email.pdf&gt;; Lowes, ‘The Legality of Extraterritorial Processing of Asylum Claims’, above n 16, 171.

[25] Caroline Fleay, ‘Repeating Despair on Nauru: The Impacts of Offshore Processing on Asylum Seekers’ [2012], Centre for Human Rights Education, Curtin University, 3 <http://blogs.curtin.edu.au/human-rights-education/files/2012/09/Nauru-report-12-Sept-2012.pdf&gt;.

[26] Senator Chris Evans, Minister for Immigration and Citizenship, ‘Last refugees leave Nauru – Immigration Media Release ce014/2008’ (8 February 2008) <http://www.minister.immi.gov.au/media/media-releases/2008/ce08014.htm&gt;.

[27] Ibid.

[28] Lowes, ‘The Legality of Extraterritorial Processing of Asylum Claims’, above n 16, 172.

[29] ‘Australia and Malaysia sign transfer deal’ (25 July 2011), Australia Minister for Immigration and Citizenship, <http://www.minister.immi.gov.au/media/cb/2011/cb168739.htm&gt;.

[30] ‘Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement’, Australia Minister for Immigration and Citizenship, 6–7 <http://www.minister.immi.gov.au/media/media-releases/_pdf/20110725-arrangement-malaysia-aust.pdf&gt;.

[31] Amnesty International, Abused and Abandoned: Refugees Denied Rights in Malaysia (16 June 2010) <http://www.unhcr.org/refworld/docid/4c19d1aa2.html&gt;.

[32] Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144.

[33] Ibid 181.

[34] Angus Houston, Paris Aristotle, and Michael L’Estrange, ‘Report of the Expert panel on Asylum Seekers’, above n 3, 9.

[35] Adam Fletcher, ‘Paris Aristotle talks asylum seekers at the Castan Centre’, The Conversation (online), 6 September 2012 <http://theconversation.edu.au/guest-post-paris-aristotle-talks-asylum-seekers-at-the-castan-centre-9382&gt;.

[36] Michael Gordon, Interview with Paris Aristotle (Castan Centre for Human Rights Law, 5 September 2012) <http://www.law.monash.edu.au/castancentre/events/2012/paris-aristotle.html&gt;.

[37] Australia Minister for Immigration and Citizenship, ‘Expert panel report, boat arrivals, offshore processing legislation, Nauru, Papua New Guinea, Malaysia, humanitarian program, turning back boats’ (15 August 2012) <http://www.minister.immi.gov.au/media/cb/2012/cb189259.htm&gt; at 6 October 2012.

[38] Angus Houston, Paris Aristotle, and Michael L’Estrange, ‘Report of the Expert panel on Asylum Seekers’, above n 3, 47.

[39] Ibid 9.

[40] Ibid 53.

[41] Ibid 48.

[42] Minister for Immigration and Citizenship, ‘Expert panel report, boat arrivals, offshore processing legislation, Nauru, Papua New Guinea, Malaysia, humanitarian program, turning back boats’, above n 37.

[43] Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).

[44] Asylum seekers to be processed under Nauruan law, ABC News (online) 14 September 2012 <http://www.abc.net.au/news/2012-09-14/asylum-seekers-to-be-processed-under-nauruan-law/4262458&gt;.

[45] Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).

[46] Migration Act 1958 (Cth)

[47] Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144

[48] Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 2012 (An Act to amend the law relating to migration, and for other purposes), s 198AA(b).

[49] Tania Penovic, Expert Panel on Asylum Seekers’ Report (2): Changes to Migration Act sideline human rights (August 17, 2012) Castan Centre for Human Rights Law  <http://castancentre.com/2012/08/17/expert-panel-on-asylum-seekers-report-2-changes-to-migration-act-sideline-human-rights/&gt;.

[50] Angus Houston, Paris Aristotle, and Michael L’Estrange, ‘Report of the Expert panel on Asylum Seekers’, above n 3, 48.

[51] Tania Penovic, ‘Expert Panel on Asylum Seekers’ Report (2)’, above n 49; Caroline Fleay, ‘Repeating Despair on Nauru: The Impacts of Offshore Processing on Asylum Seekers’, above n 25; Human Rights Law Centre, ‘New offshore processing law flagrantly violates human rights’, 17 August 2012 <http://www.hrlc.org.au/content/new-offshore-processing-law-flagrantly-violates-human-rights/&gt;; Open letter from human rights groups to the Prime Minister against the Migration Legislation Amendments, August 15, 2012 <http://www.hrlc.org.au/files/united-opposition-migration-legislation-amendments.pdf&gt;; Alexandra Kirk, ‘Human rights watchdog warns over Nauru’, Pacific Beat, 13 September 2012 (Gillian Triggs)  <http://www.radioaustralia.net.au/international/radio/program/pacific-beat/human-rights-watchdog-warns-over-nauru/1015036&gt;.

[52] Angus Houston, Paris Aristotle, and Michael L’Estrange, ‘Report of the Expert panel on Asylum Seekers’, above n 3, 9.

[53] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

[54] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)

[55] Ibid.

[56] Ibid.

[57] A. Edwards, ‘Human Rights, Refugees, and The Right “To Enjoy” Asylum’ (2005) 17(2) International Journal of Refugee Law 300.

[58]  ‘Asylum seekers to be processed under Nauruan law’, above n 44; Nauru says Australia has handed over legal responsibility for asylum seekers, ABC News (online) 14 September 2012 <http://www.abc.net.au/news/2012-09-14/nauru-says-australia-has-handed-over-legal/4262394&gt;.

[59] Angus Houston, Paris Aristotle, and Michael L’Estrange, ‘Report of the Expert panel on Asylum Seekers’, above n 3, 49.

[60] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[61] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[62] Australian Human Rights Commission, Inquiry into Australias agreement with Malaysia in relation to asylum seekers (2011), 8 <http://www.humanrights.gov.au/legal/submissions/2011/20110914_asylum_seekers.pdf&gt;.

[63] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[64] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[65] M. T. Stubbs, ‘Arbitrary Detention in Australia: Detention of Unlawful Non-Citizens under the Migration Act 1958 (Cth)’ (2006) 25 Australian Year Book of International Law 273, 294.

[66] United Nations Human Rights Committee, C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002)

[67] Ibid.

[68] Ibid.

[69] United Nations Human Rights Committee, A v Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997)

[70] Ibid.

[71] Cathryn Costello, ‘Human rights and the elusive universal subject: immigration detention under international human rights and EU law’ (2012) 19(1) Indiana Journal of Global Legal Studies 274.

[72] Australian Human Rights Commission, Submission to the Joint Select Committee on Australia’s Immigration Detention Network (2011) 19 <http://www.humanrights.gov.au/legal/submissions/2011/201108_immigration.pdf&gt;.

[73] United Nations Human Rights Committee, Van Alphen v The Netherlands, Communication No 305/1988, UN Doc CCPR/C/39/D/305/1988 (1990)

[74] Community Processing Fact Sheet: The alternative to the inhumanity of mandatory detention, Asylum Seeker Resource Centre, November 2011 <http://www.asrc.org.au/media/documents/community-processing-fact-sheet_.pdf&gt;.

[75]  Kazimierz Bem et al ‘A price too high’, above n 25, 32–3.

[76] Gemma Jones and Phillip Hudson, ‘Offshore processing of asylum seekers could begin within months, PM says’, The Herald Sun (online),  <http://www.heraldsun.com.au/news/tent-cities-for-new-refugees/story-e6frf7jo-1226449752006&gt;.

[77] Angus Houston, Paris Aristotle, and Michael L’Estrange, ‘Report of the Expert panel on Asylum Seekers’, above n 3, 49.

[78] Adam Fletcher, ‘Expert Panel on Asylum Seekers’ Report (1): The Good, the Bad and the Ugly’, Castan Centre for Human Rights Law, 16 August 2012, <http://castancentre.com/2012/08/16/expert-panel-on-asylum-seekers-report-the-good-the-bad-and-the-ugly/&gt;.

[79] Letter from Philip Lynch to the Parliamentary Joint Committee on Human Rights, 21 August 2012, 2 <http://www.hrlc.org.au/files/Letter-to-PJCHR-requesting-inquiry.pdf&gt;.

[80]  ‘Asylum seekers to be processed under Nauruan law’, above n 44; Nauru responsible for asylum-seekers: Minister, ABC News (online), 15 September 2012 <http://www.abc.net.au/news/2012-09-15/an-nauru-arrival/4263370&gt;;  ‘Nauru says Australia has handed over legal responsibility for asylum seekers’, above n 58; What legal rights for asylum seekers on Nauru? SBS News (online), <http://www.sbs.com.au/news/radio/episode/233371/What-legal-rights-for-asylum-seekers-on-Nauru&gt;.

[81] Australian Human Rights Commission, Submission to the Expert Panel on Asylum Seekers (2012) 5 <http://www.humanrights.gov.au/legal/submissions/2012/20120720_asylum_seekers.pdf&gt;.

[82] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[83] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).

[84] See; Z. Steel et al., ‘Psychiatric status of asylum seeker families held for a protracted period in a remote detention centre in Australia’ (2004) 28(6) Australian and New Zealand journal of public health 527–536; Z Steel, ‘The mental health implications of detaining asylum seekers.’ (2001) 175(11-12) Medical journal of Australia 596–9.

[85] Caroline Fleay, ‘Repeating Despair on Nauru: The Impacts of Offshore Processing on Asylum Seekers’, above n 25, 8–9.

[86] Ibid 8.

[87] Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).

[88] Asylum seekers get first taste of life in tents on Nauru, The Age (online), 15 September 2012, <http://www.theage.com.au/national/asylum-seekers-get-first-taste-of-life-in-tents-on-nauru-20120914-25xz9.html&gt;; Tents on the island of Nauru, ABC News (online), 22 September 2012 <http://www.abc.net.au/news/2012-09-22/tents-on-the-island-of-nauru/4275404&gt;.

[89] Caroline Fleay, ‘Repeating Despair on Nauru: The Impacts of Offshore Processing on Asylum Seekers’, above n 25, 4.

[90] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984.

[91] S. Kneebone, ‘The Legal and Ethical Implications of Extraterritorial Processing of Asylum Seekers: The “Safe Third Country” Concept.’ [2008] Studies in International Law: Forced Migration, Human Rights and Security, 14; Australian Human Rights Commission, ‘Submission to the Expert Panel on Asylum Seekers’, above n 82, 11.

[92] Australian Human Rights Commission, ‘Inquiry into Australia’s agreement with Malaysia in relation to asylum seekers’, above n 62, 7.

[93] Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).

[94] Letter from Philip Lynch to the PJCHR, above n 80.

[95]  ‘Asylum seekers to be processed under Nauruan law’, above n 44.

[96] Caroline Fleay, ‘Repeating Despair on Nauru: The Impacts of Offshore Processing on Asylum Seekers’, above n 25, 12.

[97] Angus Houston, Paris Aristotle, and Michael L’Estrange, ‘Report of the Expert panel on Asylum Seekers’, above n 3, 53–4.

[98] ‘Indonesia: Asylum-seeker tortured to death in detention’, Amnesty International, 3 March 2012; Ben Doherty, ‘Sent home to “arrest, torture”’, The Sydney Morning Herald (online), 24 July 2012; Savitri Taylor, ‘Asylum seekers in Indonesia: why do they get on boats?’, The Conversation (online), 20 July 2012.

[99] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[100] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

[101] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[102] Angus Houston, Paris Aristotle, and Michael L’Estrange, ‘Report of the Expert panel on Asylum Seekers’, above n 3, 9.

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