Australia’s opaque offshore asylum policy on Nauru

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Is the Commonwealth failing its duty to ensure basic human rights are met in Nauru? Joshua Dale lends a legal perspective.

ON 31 August 2015, a final report was issued following a Senate inquiry into the conditions and circumstances at Australia’s Regional Processing Centre in Nauru. 

Based on the recommendations made by the Senate Committee it certainly appears that, inter alia, the Commonwealth is failing to exercise its duty to ensure that basic human rights are met and, or, they are failing to engage competent contractors to carry out the management of detention centres in a way that is consistent with basic fundamental rights.

A non-delegable duty?

It is important to understand the framework in which regional offshore processing centres operate, particularly on Nauru. There exists a Memorandum of Understanding (MOU) signed on 3 August 2013, which represents the current agreement between the Commonwealth of Australia and Nauru. 

That MOU establishes a mandatory acceptance regime whereby Nauru will accept all transferees from Australia. In return, Australia will bear all costs incurred under and incidental to this MOU as agreed. The level of control exercised by Australia is relevant to consider in terms of characterising its duty of care.

The Australian Lawyers Alliance's assessment of the MOU was accepted in the Senate Committee report as follows:

'…it appears that while the Centre is on Nauruan soil, control is maintained by Australia, who continue to fund, have input into decisions and the final say about whether a person will be detained inside the Centre. Further, the 2013 MOU establishes a direct line of reporting to the Australian Department of Immigration.'

The Commonwealth then delegates its authority to certain contractors. On Nauru, the principal providers of staff and services are Transfield Services and its security sub-contractor, Wilson Security. International Health and Medical Services (IHMS) is then engaged for health and medical services. 

Curiously, despite this delegated authority, it is questionable as to whether such delegation is valid at law.

It is now well established in Australian case law that the Commonwealth owes a non-delegable duty of care to those held in detention.* 

Furthermore, while contractors are engaged to perform certain tasks in Nauru, it would certainly be well accepted either under the MOU, or alternatively the service contracts in place between the Commonwealth and its service providers, that the Commonwealth would always have input into decisions and indeed the final say, not only about individuals’ detention but also the standard of care, treatment and security at the centre throughout their incarceration.

Thus, the Commonwealth continues to maintain control over the operations of the Centre: this "common element of control" has been a feature of Australian case law regarding a non-delegable duty of care.

Accountability and transparency

Evidence provided by Wilson Security to the Senate inquiry was shown to be intentionally misleading when it initially denied the existence of video footage.

It was later revealed that the footage: 

'Appeared to show security personnel planning to use unreasonable force against asylum seekers, and those visible in the footage used derogatory language to refer to asylum seekers. The footage revealed a workplace culture which is inconsistent with Wilson Security’s role to provide safety and security to asylum seekers within the facility.'

This accordingly led to the Committee recommending that the Immigration Ombudsman undertake independent external reviews of all complaints involving the conduct of Australian-funded staff or contractors at Nauru.

The recommendations clearly indicated to the Commonwealth that greater transparency regarding the conditions and operations at Nauru is necessary. The Committee also found that the general standard of care and facilities were inadequate and recommended that the Australian government commit to and publicly release a medium to long-term plan for the completion of permanent infrastructure at Nauru.

These recommendations come in light of findings that there is 'evidence that mouldy or rotten food is provided' and significant concerns about instances of food poisoning and gastroenteritis. 

Of most concern,

'based on the evidence received by this inquiry, the Committee has reached the conclusion that … Nauru is not a safe environment for asylum seekers. This assessment is particularly acute in relation to women, children and other vulnerable persons.'

Given the significant concerns about the level of accountability and transparency at the Nauru centre, a recommendation has now been given by the Committee that the Legal and Constitutional Affairs References Committee be engaged to report by 31 December 2016, on matters including, but not limited to:

  1. conditions and treatment of asylum seekers and refugees at the Nauru Centre;
  2. transparency and accountability mechanisms that apply to regional processing;
  3. implementation of recommendations of the Moss Review; and
  4. the extent to which the Nauru centre, funded by Australia, is operating in compliance with Australian and international legal obligations. 

It remains to be seen which, if any, of the recommendations by the Senate Committee will be implemented by the Commonwealth government.

The Commonwealth’s responsibility and duty of care

It is trite to say that the current circumstances in which Australia manages asylum seekers would be anything other than the sole responsibility of the Commonwealth of Australia. The fact that Australia has entered into a number of contracts and, or, MOUs with other nations is irrelevant to the fact that the Commonwealth maintains sole jurisdiction, control and decision-making powers in respect of all detention centres, whether in Australia or offshore. 

The clear findings of the Senate’s inquiries show that the Commonwealth is failing its duty not only to asylum seekers, but also to the Australian people, who continue to fund the misdirected activities presented under a guise of national security.

To date, there is no evidence, either through the Senate inquiry, or evidence put forth by the Commonwealth, that suggests that maintaining a high security environment in which basic medical and fundamental needs are not met is appropriate. 

In fact,

'The Committee considers that the emphasis of creating and maintaining a high security environment is both unnecessary and counter productive to the wellbeing of the people housed within it. They are not criminals, and they do not pose such a threat to the people of Nauru as to justify conditions of large scale security and confinement.' 

While it appears that the Australian and Nauruan governments have made a decision to move towards an open-centre model, which commenced in February 2015, there is little evidence to suggest that this is being employed across the entire detention centre framework operated by the Commonwealth, or whether these measures are adequate to ensure individuals’ safety on Nauru.

Furthermore, the Australian Government yesterday welcomed a statement issued by the Nauru government that it will process all existing detainees on Nauru 'within the next week', which indicates a more proactive move by the Turnbull government to the open-centre model.

However, the word “processing” should not be confused with “release”. Whilst detainees will be processed and allowed to move around the island of Nauru freely, they will not be released from the Nauru detention facility, nor will they be re-settled. They will continue to remain in political limbo until formal visa applications are considered. 

The need for greater transparency

What is clear on the findings of the Senate Committee is that little review, scrutiny or investigations take place when there are significant breaches of security or the general rights of asylum seekers on Nauru. 

In fact, the Senate inquiry stated:

'It appears to the Committee that the Regional Processing Centre on Nauru is not run well, nor are Wilson Security and Transfield Services properly accountable to the Commonwealth despite the significant investment in their services. The Committee has found that the Department of Immigration and Border Protection does not have full knowledge of incidents occurring in Nauru, owing to their inability to scrutinise their contracted service providers.’

The Committee subsequently recommended an improvement of the direct relationship between the department and its service providers, in order to facilitate stronger accountability and transparency. Respectfully, it is arguable that independent bodies should also be allowed access to detention facilities in order to provide independent scrutiny and hold the Commonwealth’s service providers accountable, to both the Commonwealth and the Australian public.

The suggestion that a stronger relationship between the Commonwealth and its service providers may solve the issues and address failures to date, does not accurately reflect the complexity of the problems that have been presented to the Senate inquiry. 

For example, the Senate inquiry heard evidence that asylum seekers were not aware of the full extent of their rights to lodge complaints with independent bodies such as the Immigration Ombudsman, the Australian Human Rights Commission and the International Committee of the Red Cross. 

The concept of greater transparency calls not for a stronger relationship between the Commonwealth and its providers, but dismantling what the Senate inquiry refers to as ‘the current culture of secrecy which surrounds offshore processing’, and which,

‘only serves to increase the risk of wrongdoing and abuse, and contribute to fear among asylum seekers that no one will protect them, and that misconduct by staff will go unpunished.’ 

The clear message that should now be sent to the Commonwealth is that, in order to properly manage the rights of asylum seekers, the conduct of the Commonwealth’s service providers and indeed the accountability of the Commonwealth to the Australian public, it must consult not only with its service providers, but also with independent NGOs and/or independent government organisations, such as the Human Rights Commission.

In addition to gaining access to the workings and goings on at the detention facilities, these independent or non-government bodies should have access to the asylum seekers themselves, who may convey their complaints and concerns about their experiences in detention.

In order to address the failings of the past, the Commonwealth Government must allow itself to be properly scrutinised in order to ensure that any future breaches of duty, whether or not by Commonwealth personnel and, or, its contractors, are brought to the attention of the public forum, the political forum and even the courts. 

To take a proactive stand in removing the veil of secrecy over the management of Australia’s detention facilities would be to take a step in the direction of removing the risk of future unnecessary litigation or future inquiries. Australia has the opportunity to present itself to the world as a leader in the recognition, protection and scrutiny of human rights. Its failure to do so will affect not only our reputation on a global scale today, but also in generations to come.

* See AS v Minister for Immigration and Border Protection [2014] VSC 593; Anastasios Kondis v State Transport Authority (1984) CLR 672; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Northern Sandblasting v Harris (1997) 188 CLR 313.

Joshua Dale is an associate at Carroll & O’Dea Lawyers and Chair of the NSW Human Rights Committee of the Australian Lawyers Alliance. 

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