DOES WHAT HAPPENS OFFSHORE, STAY OFFSHORE?
Asher Hirsch
March 2016
Australia leads the world in outsourcing and offshoring its human rights obligations. It is the only nation to subcontract the management of its entire detention centre network to private for-profit corporations. It is also the only nation that mandatorily detains those who arrive without a visa, and sends those who come by boat to third countries for processing. Between 2001 and 2007, and again from 2012, the Australian government has attempted to avoid both moral and legal responsibility for asylum seekers by sending them to offshore detention centres in the Pacific.
Australia maintains that responsibility for the management of these centres, and for the numerous abuses that have taken place there, rests solely with the host countries of Papua New Guinea and Nauru. The secretary of the Department of Immigration and Border Protection, Mr Michael Pezzullo, asserted during the 2015 Senate inquiry into conditions at the detention centre on Nauru that:
‘The Australian government does not run the Nauru Regional Processing Centre, or RPC. It is managed by the government of Nauru, under Nauruan law, with support from the Australian government. The government of Nauru operates the RPC, assesses asylum claims and, where persons are found to be in need of protection, arranges settlement. The government of Nauru is specifically responsible for security and good order and the care and welfare of persons residing in the centre.’ (emphasis added)
If this claim were accurate, Australia would be able to wash its hands of the numerous human rights violations taking place inside these centres. However, despite the government’s assertions to the contrary, Australia cannot escape its moral and legal obligations simply by outsourcing them to other countries. Some brief reference to the current state of Australian and international law as it relates to the offshore detention of asylum seekers is sufficient to show as much.
National law
In the recent high profile case of M68/2015 the plaintiff argued that her detention on Nauru was ‘funded, authorised, caused, procured and effectively controlled by, and was at the will of, the [Australian] Commonwealth’. While the case was dismissed, the High Court made a number of interesting findings about Australia’s involvement in offshore detention. The Court agreed with the plaintiff that Australia secured, funded and participated in her detention on Nauru. However, Justices Bell, Gageler and Gordon went further, finding that Australia caused and controlled the detention.
Thus, while the majority found that it was Nauru, not Australia, that detained the plaintiff, it is interesting to note the High Court’s recognition of Australia’s involvement in offshore detention centres. As Justice Bell put it:
'The Commonwealth funded the RPC and exercised effective control over the detention of the transferees through the contractual obligations it imposed on Transfield. The first premise of the plaintiff’s … challenge, that her detention in Nauru was, as a matter of substance, caused and effectively controlled by the Commonwealth parties, may be accepted.'
Academics have also noted that Australia has a ‘non-delegable duty of care’ for those detained in centres operated and managed by Broadspectrum (formerly Transfield) and Wilson Security. Australia cannot simply contract out of that duty, as the High Court has found that the ‘duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor.’
This argument lay at the heart of the settled case of an asylum seeker who lost an eye while detained in Manus Island, and underpins the ongoing class action on behalf of asylum seekers injured on Manus Island. Similarly, the Australian Lawyers Alliance recently argued that that the health and safety regulator must investigate breaches of the Work Health and Safety Act in offshore centres, as Australia’s workplace laws extend to Australia’s operation of offshore detention centres.
International law
International law expressly provides that a State's jurisdiction extends beyond its territory, to wherever the State exercises effective control. As the United Nations Human Rights Committee notes:
'The enjoyment of [International covenant on civil and political] rights is not limited to citizens of State Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained.'
So long as asylum seekers are under the effective control of Australia or its delegates, they are owed the obligations that Australia has assumed under international law, even if they are beyond Australian borders. Australia therefore has an international obligation to ensure that human rights are upheld on Nauru and Manus Island, where it has effective control.
The two recent Senate Inquiries into Manus Island and Nauru demonstrate that Australia maintains effective control over the RPCs on those islands, even if a majority of the High Court found such circumstances insufficient to establish that Australia has legal responsibility for detainees. In particular:
Australia funds the entire cost of both centres;
operational, maintenance, security and welfare support services are provided by companies under contracts with the Australian government;
the Australian government, through the immigration department, controls the delivery of services and infrastructure at the RPCs through its management of the service provider contracts;
Australia alone selects, detains and forcibly transfers asylum seekers to these centres;
the centres were established at Australia's instigation;
any local staff or authorities in the centres are under the direction of Australian officials;
the Australia government has an extensive knowledge and awareness of the risks and dangers posed by immigration detention.
Australia continues to attempt to avoid responsibility by outsourcing its human rights obligations. Despite assertions by governments from across the political spectrum, it is clear that what happens in offshore detention is Australia’s responsibility. It is time that Australia accepts that fact and brings all asylum seekers and refugees to Australia to be processed fairly and humanely.
Asher Hirsch is a Policy Officer with the Refugee Council of Australia, the national umbrella body for refugees and the organisations and individuals who support them. He is currently completing a PhD at Monash University in refugee and human rights law.
Learn more about the detention of asylum seekers on Nauru and Manus Island.