Offshore processing regime breaches fundamental human rights, HRLC tells parliamentary inquiry

Australia’s offshore processing laws and policy are fundamentally incompatible with Australia’s obligations under international law, the Human Rights Law Centre told the federal Parliamentary Joint Committee on Human Rights today. The Committee is conducting an inquiry into the offshore processing regime following requests from the HRLC, together with the Asylum Seeker Resource Centre and the Australian Human Rights Commission.

Giving evidence to the inquiry, the HRLC said that while Australia has an obligation under the Protocol against the Smuggling of Migrants by Land, Sea and Air to “combat the smuggling of migrants”, that Protocol explicitly provides that it must do so in a way that doesn’t violate human rights.

“Too many have lost their lives at sea when seeking asylum. However, punishing those who survive is not a necessary, humane or lawful policy response,” said HRLC Executive Director Phil Lynch. “Instead of punishing victims of persecution so as to send a message to others, policies should instead focus on alleviating poverty and promoting human rights and security in source countries and offering vulnerable people safer pathways to protection.”

The HRLC told the Committee that the offshore processing regime breaches Australia’s human rights obligations in at least six ways.

• First, the reforms subject asylum seekers to punitive treatment on account of their mode of arrival, contrary to article 31 of the Refugee Convention. Although the objective of the reforms may be to deter people from coming to Australia by boat, their effect is to punish those who have already arrived.
• Second, under the regime, asylum seekers are transferred offshore, where they are subject to mandatory, prolonged, indefinite and unreviewable detention in breach of article 9 of the International Covenant on Civil and Political Rights.
• Third, under the regime, asylum seekers are transferred to conditions which, according to the UN refugee agency, are “below international standards” and, together with significant processing delays, are “likely to have a significant and detrimental impact on the mental and physical health of asylum-seekers”. Further, low quality refugee status determination processes increase the risk of refugees being denied the protection to which they are entitled and instead being subject to refoulemement. These circumstances give rise to likely violations of article 3 of the Convention against Torture, articles 7 and 10 of the ICCPR and article 12 of the International Covenant on Economic, Social and Cultural Rights.
• Fourth, the reforms provide for the removal of unaccompanied children to offshore processing locations without any obligation on the part of the Minister to consider the best interests of the child. This places Australia in breach of article 3 of the Convention on the Rights of the Child to ensure that the best interests of a child are a primary consideration in all actions concerning them.
• Fifth, the reforms confer the Minister with the discretion to determine whether an asylum seeker should be sent offshore without any regard to the rules of natural justice. This breaches Australia’s obligations under article 14 of the ICCPR to ensure that, in the determination of rights and obligations, a person must have access to the courts and is entitled to a full and fair hearing.
• Sixth, the offshore processing act enables the Minister 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. That is, there is a statutory power to disregard international human rights protections in designating regional processing countries and, in the case of both Nauru and PNG, the Minister has expressly acknowledged that he has disregarded human rights. This fundamentally undermines the international rule of law.

Responding to assertions by Australian Government officials that Australia is not responsible for respecting and protecting the rights of asylum seekers transferred offshore, the HRLC told the Committee that Australia’s human rights obligations apply extraterritorially.

“Australia’s human rights obligations do not end at our borders. We can’t just contract out of our human rights obligations,” said Mr Lynch.

Citing the UN Human Rights Committee, Mr Lynch told the inquiry that, “As a principle of international law, Australia has an extraterritorial obligation to protect the human rights of persons over whom it exercises effective jurisdiction or control. That is manifestly the case where asylum seekers are detained in offshore facilities that are funded and effectively managed by Australia in order to give effect to Australian government policy.”

In closing, the HRLC called on the Committee to strongly recommend to the Government that, in the event it persists with offshore processing policies, “the legislation must be amended to better safeguard human rights.”

According to Mr Lynch, “The recognition and protection of human rights should be a mandatory, relevant consideration for the Minister in determining whether to designate a country, in making an individualized assessment as to whether a person should be sent offshore, and in determining where they are sent. Further, in accordance with principles of the rule of law and executive accountability, these ministerial decisions should be fully reviewable in Australian courts.”

Response to Question on Notice

On 24 January 2013, the HRLC provided further written submissions on whether Australia’s human rights obligations are engaged extraterritorially in Nauru and Manus islands.