Nationality and Borders Bill

Written evidence submitted by Associate Professor Maria O’Sullivan, Deputy Director, Castan Centre for Human Rights Law, Faculty of Law, Monash University, Australia (NBB32)

Expertise of the author

I am an Associate Professor in the Faculty of Law, Monash University (Australia) and a Deputy Director of the Castan Centre for Human Rights Law. I have completed a PhD thesis on cessation of refugee status under the 1951 Refugee Convention and I am the author of a number of academic publications and policy papers on the subject of refugee law. These include an edited volume on access to refugee protection and procedures, [1] several journal articles and parliamentary submissions on offshore processing [2] and a book on temporary protection and the durability of protection. [3] My research has been cited in a judgment in the High Court of Australia, [4] by the Advocate General of the Court of Justice of the European Union [5]  and in reports of parliamentary inquiries and law reform commissions in Australia. My full profile can be viewed at https://research.monash.edu/en/persons/maria-osullivan .

My submission

This submission addresses two aspects of the Bill which fall within my particular expertise:

· Clause 12 which will permit offshore processing of asylum claims; and

· Clause 31 which permits the recognition of non-state actors of protection.

Clause 12 – Offshore Transfers and Processing

1. Introduction

The UK government’s Nationality and Borders Bill sets out proposals which have distinct parallels to the Australian asylum system. Due to these similarities, it is essential that UK policy makers are fully aware of the difficulties and complexities which have been caused by the offshore regime utilised by Australia.

UK policy makers may be attracted to the ‘Australian Model’ because the Australian government has portrayed the ‘Stopping the Boats’ policy and the penalisation of unauthorised arrivals as a success story. However, this is far too simplistic a picture. In reality, the situation is far more complex and difficult.

Therefore, I would recommend against adopting offshore processing measures in light of the experiences in Australia – not only due to the human rights concerns they raise, but also because of their high cost, the legal and bureaucratic confusion they have caused, and the diplomatic relations controversies they have occasioned.

2. Features of the Australian asylum system – Complexities and Concerns

The central feature of the Australian model is that it transfers responsibility for processing and protection to Nauru and Papua New Guinea and outsources detention, security and medical services to the multinational companies contracted to operate in those offshore places. This is done via bilateral arrangements between Australian and the offshore countries and by contracts between Australia and the relevant corporations. These arrangements are very costly to organise and operate and have caused legal confusion, complexity and costly litigation. In particular, Australia lacks proper control over what happens to asylum seekers and refugees in these offshore areas and, as a result, it has been implicated in human rights breaches carried out at the centres.

2.1 Economic Costs

The costs of offshore processing are extraordinarily high. In 2019 the Asylum Seeker Resource Centre, Save the Children and GetUp! published a report titled "At What Cost?", outlining the human and financial cost of Australia's offshore system. The report found that offshore detention and processing cost around $AUD 9 billion over the period 2016 to 2020. [6]  

2.2 Human Rights Concerns with Offshore Processing

A significant issue has been the human rights abuses and deaths which have occurred in the offshore processing centres. For instance, in 2014, an asylum seeker - Reza Barati - died of head injuries on the way hospital following protests at the Manus Island Immigration Detention Centre in Papua New Guinea. The riot prompted an Australian Senate inquiry which concluded that ‘the Australian Government failed in its duty to protect asylum seekers including Mr Barati from harm’. [7]

Due to these significant problems, the UN and many human rights groups have argued that offshore processing as undertaken by Australia breaches a number of human rights laws. For instance, in 2015, the UN Special Rapporteur Against Torture found that numerous aspects of Australia’s policies in PNG violate the right of detainees to be free from torture or ‘cruel, inhuman or degrading treatment’ under arts 1 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:

[T]he Rapporteur concludes that there is substance in the allegations presented in the initial communication, reiterated above, and thus, that the Government of Australia, by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the Regional Processing Centre, has violated the right of the asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment. [8]

This criticism has continued more recently, with the UN High Commissioner for Human Rights Michelle Bachelet raising serious concerns about Australia's offshore processing regime whilst on a visit to Australia in 2019. [9]

In addition, a 2021 report by the Human Rights Law Centre in Australia , notes that splitting families between Australia and offshore detention is not only extremely harmful, but also violates human rights law. [10]

2.3 Legal Difficulties and Complexities

To illustrate the problems with establishing and maintaining offshore processing regimes, I wish to examine the legal confusion and complexities which arose in relation to the detention of asylum seekers on Manus Island in Papua New Guinea. There are two aspects to this – litigation based on the right to liberty which was launched in Papua New Guinea and a series of class actions which have been lodged in Australian courts.

(a) Litigation in the Supreme Court of Papua New Guinea – Namah v Pato

The legal difficulties with establishing offshore processing systems is demonstrated by the 2016 decision of the PNG Supreme Court in Namah v Pato where the viability of a key component of the PNG offshore processing regime was called into question. [11] The case also created further litigation, confusion and tension between Australia and PNG.

Moreover, this is an important case to examine because that dealt with a provision of the PNG Constitution which is very similar to the European Convention on Human Rights. As such, it serves as an important reminder to the UK that it will also be subject to constraints in establishing offshore processing.

The Court, in a unanimous decision of five judges, held that detention of refugees and asylum seekers in the Australian-funded centres in that country was unconstitutional under the right to liberty set out in the PNG Constitution. [12]   The Court ordered, inter alia, that both the Australian and PNG governments ‘take all steps necessary to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers or transferees … on Manus Island ’. [13]

It is important to note that the Supreme Court did not simply focus on the fact of detention in rendering the detention unconstitutional, it also considered the conditions of detention to be relevant. For instance, in considering the restriction of liberty pursuant to s 38, the Court noted that an additional consideration was whether ‘the conditions of detention are such as to damage the rights and dignity of the detainees or, worse, causes physical or mental suffering’. [14]

This case provides a very good reason for the UK government to reconsider establishing any sort of offshore processing system as similar protections to that of s 42 of the PNG Constitution are set out in article 5 of the European Convention on Human Rights.

The case also illustrates the problems with allocation of responsibility between countries who seek to set up offshore processing arrangements. The PNG Supreme Court confirmed in its ruling in Namah that in its opinion both PNG and Australia were jointly responsible for complying with the ruling. [15] However, the Australian Minister for Immigration argued that the court decision was not binding on Australia and the asylum seekers and refugees in the centre were solely PNG ’s responsibility. [16] Therefore, there was a great deal of uncertainty and confusion as to which country was in fact responsible. Ultimately, the detention centre on Manus Island was shut down in October 2017 and refugees transferred to a transit centre.

More recently, the offshore regime has caused significant diplomatic tensions between Australia and PNG, with the PNG Prime Minister calling on Australia to act urgently to remove the remaining refugees from the island. [17]

Therefore, the PNG Supreme Court’s finding as to the unlawfulness of the detention centre and the aftermath demonstrates the legal and political failure of the extraterritorial detention and processing regime in PNG.

In addition to the uncertainty and confusion this litigation created, the costs associated with litigation have been significant.

(b) Class Actions in Australia

Australia has been required to pay compensation to asylum seekers and refugees held in these centres in response to class actions lodged in Australia alleging a breach of the duty of care to those persons. For example, the Australian government settled a class action lodged on behalf of a group of asylum seekers and refugees held in Papua New Guinea for AUD$70 million in 2017 (Kamasaee v Commonwealth of Australia & Ors). [18] This compensated 1,905 asylum seekers and refugees on Manus for being illegally detained and for negligence in the Australian Government’s involvement in their care. Other class actions have been lodged in Australia for compensation relating to the offshore centres . [19]

(c) Medical concerns in offshore centres – legal complexity and uncertainty

A further complication of establishing an offshore processing regime is that consideration must be given to the medical treatment of persons subject to this arrangement. This has caused controversy and much litigation in Australia because the lines of responsibility for medical treatment have been blurred due to the offshore arrangements and problems with health care in the offshore centres. For instance, in Nauru and PNG, there have been 14 known deaths in offshore detention (or of people affected by offshore processing) since February 2014, including 7 by known or suspected suicide. [20]

As a result, the issue of medical transfers from Nauru and PNG to Australia has caused a great deal of litigation. For instance, in Federal Court proceedings in the case FRM17 in 2018, an expert medical professional, Dr Martin [21] gave evidence that the medical transfer process would inadequate to deal with a deterioration in the applicant’s mental health. He said:

In my role as senior medical officer I gained… a detailed understanding of the process for referral and consideration of patients requiring transfer to an offshore medical facility for treatment.… It is… my professional view that there are not proper processes in place within the offshore detention system, both on Nauru and in Port Moresby, to efficiently escalate [the applicant’s] care or provide an emergency medical evacuation should her condition deteriorate.

…

From my time working within this system, I have formed the view that the IHMS medical transfer system is inefficient and driven by political and not medical concerns. While on Nauru, evacuation deadlines which either my staff or I recommended were frequently not met and at times appeared to be ignored by the Australian government and patients were often in constant pain as their conditions worsened. Follow-up requests by myself or my staff would also not be met with substantive responses. [22]

Federal court judges have also expressed concerns about the bureaucratic complexities and delays associated with the previous system . [23]

Other bodies have also raised concerns with the bureaucratic delays caused by the previous transfer regime. For instance, the UN High Commissioner for Human Rights has stated :

… information received since 2014 suggest several reported cases of death resulting from the lack of access to health care including medical treatment at the offshore facilities. Many migrants suffer from deteriorating physical and mental health, which seem to have been the result of a lack of appropriate health care, exacerbated by the indefinite and prolonged confinement. A number of migrants also suffer from serious or chronic medical illnesses that require immediate medical attention but have been left untreated for months or even years. Among the myriad of actors that provide services to the migrants, private security and other service providers have reportedly failed to facilitate access to health care in a number of instances .

This is another illustration of the serious problems caused by the establishment of offshore processing and demonstrates that the Australian model is not a successful one.

Conclusions: The UK should not emulate the Australian Offshore System

What does this mean for the UK proposal to introduce offshore processing?

The above analysis should discourage UK authorities from emulating the ‘Australian model’. I would counsel UK policy makers to look more deeply at the Australian model and the costs, both human and financial, of offshore processing.

Despite the fact that the Australian model is held up as a success because it has ‘stopped the boats’, the true story is far more complex than this. Whilst it is true that there are very few boat arrivals on Australian territory, the Australian navy regularly intercepts and pushes back vessels into Indonesian territory.

Thus, in light of all these aspects, the Australian example is not a model to be copied. The complexity of the legal arrangements and significant legal challenges that have been made in relation to the offshore system ; the criticism of the extraterritorial processing regime from numerous national and international bodies; and the political tensions caused in PNG and Australia are illustrative of the unsustainability of extraterritorial models as a means of addressing refugee flows.

CLAUSE 31: NON STATE ACTORS OF PROTECTION

Clause 31 of the Borders Bill permitting the recognition of non-state actors as protectors for the purpose of refugee law is similar to Section 5LA of the Migration Act (Cth)(Australia).

Section 5LA of the Australian Migration Act sets out circumstances where ‘effective protection measures’ are available for the purpose of refugee status and, in effect, establish a presumption of protection in certain circumstances.

Section 5LA(1) provides that effective protection measures are available to a person in a receiving country if:

(a) protection against persecution could be provided to the person by:

(i) the relevant State; or

(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

However, there is a significant difference between the UK proposal and the Australian Migration Act equivalent: recognition that international organisations and other non-state actors can provide protection is s complemented by s 5LA(2). This provides that a relevant state, party or organisation is taken to be able to offer protection against persecution where:

(a) the person can access the protection; and

(b) the protection is durable; and

(c) in the case of protection provided by the relevant State-the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system

I wish to make two brief points about clause 31 against this background:

1. Firstly, consideration should be given to the context in which such a clause will operate. This type of clause has permitted some asylum host states to send refugees back to fragile states, such as Iraq and Afghanistan, on the basis that protection from persecution will be provided by statal or quasi-statal authorities with the assistance of multinational troops. As we have seen all too vividly in recent weeks in Afghanistan, the assumption made by some refugee status decision-makers that protection would be provided by multinational forces in Afghanistan has proven illusory. I would therefore counsel against introducing such a clause into UK legislation.

2. Secondly, as I have argued in a journal article and book on this issue, the mere fact that a body or group may be able to provide protection in a region or country is not sufficient to constitute ‘protection’ under the Refugee Convention. We must also consider notions of legitimacy and durability of presence. That means only states and state-like bodies can provide ‘protection’ under refugee law. [24]

This means that if a non-state actor of protection provision is to be implemented in UK law, it should be worded so as to:

(a) provide a requirement for durability of presence and protection and

(b) that only organisations that are acting as a de facto state are included in the provision.

Therefore, clause 31 if retained, should be amended so it applies only to those international organizations and quasi-state authorities which ‘control a clearly defined territory of significant size and stability’ and ‘who are able and willing to give effect to rights and to protect an individual from harm in a manner similar to an internationally recognized State’.

I hope the above comments are useful to the Committee and note that I can be contacted via email should any committee member have any questions arising from my submission.

Kind regards

Associate Professor Maria O’Sullivan

Deputy Director of the Castan Centre for Human Rights Law, Monash University, Australia

16 October 2021