Madeline Gleeson, Senior Research Fellow, Kaldor Centre for International Refugee Law, UNSW Sydney, and Natasha Yacoub, Visiting Research Fellow, Refugee Studies Centre, Oxford Department of International Development, University of Oxford
As political debates on the ‘externalization’ of asylum spread throughout Europe and beyond, there has been growing interest in the Australian ‘model’ of offshore processing. For more than two decades, Australia has experimented with this method of border control, which involves intercepting asylum seekers at sea and forcibly transferring them to Pacific Island nations for processing. However, much of this international interest is based on misunderstandings or misinformation about the implementation and effectiveness of offshore processing in Australia. This paper clarifies some of the key details of the policy. It then critically assesses Australia’s experience with offshore processing against its stated policy objective (deterring irregular maritime migration) and other indicators of success or failure, including its cost, lawfulness and humanitarian impact. It concludes that offshore processing has not ‘worked’ in Australia. Instead, it has been a cruel and expensive policy failure which violates fundamental principles of international law.
Introduction
For more than two decades, Australia has pursued ‘offshore processing’ in various forms in an effort to deter asylum seekers trying to reach Australia by sea. Offshore processing is a method of border control which involves Australia rescuing or intercepting asylum seekers at sea, bringing them to Australia, and then forcibly transferring them to the Pacific Island nations of Nauru and Papua New Guinea (PNG) to have their asylum claims processed there.[1]
Offshore processing is not a new phenomenon.[2] However, whereas offshore processing was previously viewed as ‘a significant exception to the normal practice’,[3] Australia’s policies have now generated considerable political interest elsewhere, with other countries exploring the potential of replicating it. Much of this international interest is based on misunderstandings or misinformation about the implementation and effectiveness of offshore processing in Australia.
Contrary to some public claims, there is no evidence that offshore processing had any deterrent effect on asylum seekers trying to reach Australia by boat. In fact, the number of arrivals increased under the peak period of offshore processing. Despite claims that the policy ‘worked’ to keep asylum seekers from entering Australia, the vast majority of the people who were sent offshore since 2012 and have not already been resettled or repatriated are in fact now back in Australia.
In light of international interest and confusion about the policy, this paper draws on Australian government data, United Nations reports and other relevant sources to clarify some of its key details. It critically assesses Australia’s experience of offshore processing against its stated policy objectives and other indicators of success or failure, including its cost, lawfulness and humanitarian impact. It argues that the stated policy objectives, including deterrence, were never met.
Description of the Australian policy
Offshore processing has been implemented in Australia in two separate periods.
Offshore processing was first introduced in 2001 by a conservative Coalition government. Known as the ‘Pacific solution’, asylum claims at this time were processed by either the UN High Commissioner for Refugees (UNHCR) or Australian immigration officials in Nauru and PNG, and people found to be in need of international protection were settled back in Australia or elsewhere.[4] This policy was dismantled in 2008 by the new Labor government on the basis that it had been ‘a cynical, costly and ultimately unsuccessful exercise’.[5]
Four years later, amid political impasse in Parliament about how to respond to an increase in the number of people trying to reach Australia by boat, the Labor government reintroduced offshore processing in August 2012. It is this second period of offshore processing which has attracted recent international attention, and on which this paper focuses.
Key to assessing the effectiveness of the policy in this second phase is an understanding of the relevant changes in policy settings. Five distinct phases can be identified.
First, between 13 August 2012 and 18 July 2013, all asylum seekers arriving in Australia by boat were liable to transfer to Nauru or PNG. However, of the more than 24,000 people who arrived in this period, only around 1,050 were ever transferred offshore,[6] while the balance remained in Australia. Asylum seekers sent offshore at this time were detained on arrival in highly securitised, closed detention centres (operated and serviced by private companies, which were contracted and overseen by the Australian government), in cruel, inhuman and degrading conditions.[7] Their asylum claims were supposed to be processed by Nauru and PNG, but neither country had the relevant experience or legal frameworks to conduct refugee status determination (RSD), resulting in lengthy delays, uncertainty, and indefinite, arbitrary detention.[8]
Second, on 19 July 2013, the Labor government announced a significant policy change. All asylum seekers currently offshore would be transferred back to Australia, and the detention centres would be refilled with new asylum seekers arriving from that day forward. Crucially, anyone in this second cohort found to be entitled to international protection would be subject to a new ban on settlement in Australia. Instead, it was anticipated that refugees would integrate locally in Nauru and PNG, or be resettled elsewhere. UNHCR immediately raised concerns with this proposal, noting that neither country had the conditions necessary for effective and large-scale settlement of refugees.[9]
Offshore processing entered a third phase following the election of a new Coalition government in September 2013. Within days of taking office, the government launched Operation Sovereign Borders (OSB) – a military-led border security operation described as ‘the government’s response to stopping the flow of illegal boat arrivals to Australia’.[10] Intercepting and turning back boats became the primary mechanism for deterring irregular maritime migration, while offshore processing was initially retained as part of a ‘broad chain of measures end to end … designed to deter, to disrupt, to prevent’ asylum seekers travelling by boat from obtaining protection in Australia.[11] The bar on refugee settlement in Australia continued.
Under the second and third phases, just over 3,100 asylum seekers who arrived in Australia by boat on or after 19 July 2013 were transferred offshore in an 18-month period. Certain groups were exempted from transfer, primarily as a result of political deals done to ensure the passage of key legislation.[12] Beyond these limited cases, the policy made no exception for children (including unaccompanied minors), other vulnerable groups, or people who had close family members in Australia. By 2014, however, the offshore detention centres had reached capacity, and the viability of offshore processing as an effective and sustainable policy was questionable.
In the fourth phase, from late 2014 to late 2023, Australia stopped transferring new arrivals offshore entirely, and fully reoriented its border protection policies to maritime interception.[13] Australia began to go to extraordinary lengths to pursue maritime pushbacks despite the availability of offshore processing.[14] While at first this policy shift was evident more in practice than in official statements, the government became increasingly explicit about distancing itself from offshore processing.[15]
The people transferred offshore between July 2013 to December 2014 continued to be detained there for several years as they waited to be processed. Slowly, some people began to be recognised as refugees and released into the community, where they began the long wait for resettlement options. Spiralling mental and physical health crises eventually forced Australia to medically evacuate almost all asylum seekers and refugees back to Australia from 2018 onwards.[16] Australia’s arrangements with PNG formally concluded at the end of 2021 (although a number of refugees remained there, awaiting a durable solution).[17] Also in 2021, as evacuations to Australia continued and the number of people left on Nauru gradually dwindled, Nauru and Australia reached a new agreement establishing an ‘enduring regional processing capability’.[18] By mid-2023, all refugees had been removed from Nauru and either resettled in third countries or transferred back to Australia.[19]
While the removal of refugees from Nauru in mid-2023 appeared to signal the end of an active offshore processing policy, Australia began to transfer a small number of new arrivals offshore again in a fifth phase, in late 2023 and early 2024. These transfers marked the first time that new asylum seekers had been sent offshore, rather than intercepted at sea and summarily returned, in almost nine years. At the time of writing, little is known about the arrangements for processing their claims in Nauru, or the durable solutions which will be available to those found to be entitled to international protection.
Offshore processing does not deter irregular maritime migration to Australia
In recent years, Australia’s offshore processing policies have been marketed internationally as an effective way to deter asylum seekers from travelling to host States by irregular means – either on their own, or as an integral part of a ‘suite’ of border policies, including maritime interception and pushbacks.[20]
However, Australian government data on boat arrivals does not support the claim that offshore processing is, in fact, an effective deterrent to irregular maritime migration.
The best way to assess the effectiveness of offshore processing as a standalone policy is by looking at its first year of operation, between August 2012 and September 2013 (phases one and two described above), when it existed independently of maritime interception and boat pushback policies.
In the eleven months from 13 August 2012 and 18 July 2013, when offshore processing was implemented with the possibility of settlement in Australia for people found to be refugees, more than 24,000 asylum seekers arrived in Australia by boat.[21] This number was considerably higher than at any other time since the 1970s, when boats of asylum seekers were first recorded in Australia.[22] Throughout this period, boats carrying varying numbers of people (from two to more than 200) continued to arrive on average several times per week.
Boats then continued to arrive after the new ban on settlement in Australia was announced on 19 July 2013. More than 1,500 people on at least 21 boats arrived in the first 16 days of the policy change.[23] Throughout this time, deaths at sea – both in international and Australian waters – continued at broadly comparable rates to those seen since 2009.[24]
The number of people arriving by boat did not begin to drop until Australia began intercepting and turning back boats at sea with the launch of Operation Sovereign Borders in September 2013. By the end of 2014, Australia had stopped transferring asylum seekers offshore completely, and instead had pivoted to this boat ‘push back’ policy.[25] No new asylum seekers were transferred offshore for nine years, until small numbers of people began to arrive in Australia and be sent to Nauru from late 2023.
Finally, there is no evidentiary basis for the claim that offshore processing needed to be retained as part of a ‘suite’ of deterrence measures after the introduction of maritime interception. Importantly, there were no spikes or increases in boat arrivals while offshore processing was progressively wound down.[26]
Offshore processing does not shift the ‘problem’ of irregular maritime migration elsewhere
As noted above, most asylum seekers arriving in Australia between 13 August 2012 and 18 July 2013 never went offshore, and those who did were brought back to Australia to reapply for asylum through the Australian system.
Despite the subsequent ban on settlement in Australia for asylum seekers who arrived after this time, many in this second group also ended up back in Australia. After sustained exposure to extreme harm offshore, the Australian government was eventually forced to medically evacuate back to Australia almost everyone still in Nauru and PNG by 2019. A special legislative scheme was established to facilitate those evacuations.[27] By 2023, the vast majority of those who had not already been resettled or returned to their countries of origin were back in Australia, receiving or awaiting treatment for physical and mental health concerns that arose during their time offshore.[28]
Offshore processing is extraordinarily expensive
The Australian government has only ever provided a high-level and incomplete indication of the financial costs of establishing and maintaining offshore processing in Nauru and PNG. The available information shows that these costs are extraordinarily high – particularly for a policy that has not met its stated aim of deterrence.
During its peak operational years (2012 – 2021), offshore processing cost on average at least A$1 billion per year, and reached upwards of A$1.49 billion in 2017–18. This figure is significantly more than it would have cost to accommodate asylum seekers in Australia while their claims were processed.[29]
The cost of supporting refugees who remained in PNG after the formal termination of the arrangement with Australia at the end of 2021 is subject of a ‘confidential bilateral agreement’ between the two States.[30] After a dispute between Australia and PNG in 2023 about these costs, Australian media reported that Australia may have paid PNG A$80 million, but the true and full costs of the agreement have not been publicly confirmed.[31]
Meanwhile in Nauru, after the last refugees from the 2013-2014 cohort of arrivals were brought back to Australia in mid-2023, the Australian government announced that it would cost A$350 million per year to keep the empty processing centre open as a ‘contingency’, even though no asylum seekers were expected to be transferred there.[32] That cost is likely to have increased since the transfer of a new cohort of asylum seekers since late 2023.
While the reported cost of offshore processing is very high, the true cost may be even higher. This is because a range of other significant expenses associated with the policy may not be included in the reported figures. These include costs of aid and development assistance to Nauru and PNG to secure their ongoing agreement to offshore processing; defending and settling legal claims with respect to offshore processing in Australian, Nauruan and PNG courts; and an agreement between Australia and Cambodia for the ‘resettlement’ of seven refugees who were held on Nauru (estimated to have cost up to A$55 million).[33]
Offshore processing is inhumane and involves systemic cruelty
The profoundly destructive effect of offshore processing on the physical and mental health of people subject to it has been consistently and extensively documented.[34]
Since its reintroduction in 2012, 21 people have died offshore (or in Australia, following medical evacuation).[35] Of these, at least six reportedly committed suicide,[36] at least one was murdered,[37] and at least two died from medical conditions after access to appropriate treatment was delayed or denied by Australia.[38] In at least one case, an Australian coroner found that the death was ‘preventable’, and that the deceased would have survived had he been promptly evacuated to Australia for treatment.[39]
Medical experts working with UNHCR found the rates of mental illness offshore to be among the highest recorded in any surveyed population,[40] and Médecins Sans Frontières (MSF) similarly reported that suffering on Nauru was some of the worst it had ever encountered, including in victims of torture.[41] The UN Special Rapporteur on the Human Rights of Migrants observed in 2017 that mental health issues were ‘rife’ in Nauru, where ‘many refugees and asylum seekers [we]re on a constant diet of sleeping tablets and antidepressants’.[42] As the UN High Commissioner for Refugees, Filippo Grandi, observed: ‘there is a fundamental contradiction in saving people at sea, only to mistreat and neglect them on land.’[43]
Paediatricians reported that children transferred to Nauru were among the most traumatised they had ever seen.[44] Children as young as five reportedly attempted to kill themselves.[45] By 2018, children on Nauru were so traumatised that several began to present with a rare psychiatric condition known as traumatic withdrawal syndrome (or ‘resignation syndrome’), involving progressive social withdrawal and reluctance to engage in usual activities. The most serious stage of the disorder is when the child enters a profound withdrawal and is unconscious or in a comatose state, at which stage many were evacuated to Australia.[46]
Women and girls exposed to rape and sexual assault in Nauru were denied appropriate medical treatment, had no access to justice and were exposed to repeated attacks because Australia refused to move them to places of safety.[47]
The cruelty to which asylum seekers and refugees were exposed offshore appeared to be deliberate and systemic. Australia had been on notice about the significant and escalating harm resulting from offshore processing since 2012. UNHCR, in particular, ‘consistently and repeatedly warn[ed] of the severe, negative health impacts of “offshore processing” which are as acute as they are predictable’,[48] and a team of medical experts warned as early as 2014 that there was ‘a significant and ongoing risk of child abuse, including physical and sexual abuse, in the detention environment [in Nauru] where large numbers of children and adults are held in crowded conditions without normal social structure or meaningful activities’.[49]
A senior trauma counsellor described ‘demoralisation’ as ‘the paramount feature of offshore detention’.[50] The UN Special Rapporteur on the Human Rights of Migrants concluded after his visit to Australia and Nauru in 2017 that ‘Australia’s responsibility for the physical and psychological damage suffered by these asylum seekers and refugees is clear and undeniable’, and it is a ‘situation [that is] is purposely engineered by Australian authorities to serve as a deterrent for potential future unauthorized maritime arrivals’.[51]
Offshore processing violates international law
Every UN body, committee and special procedure that reviewed Australia’s offshore processing regime expressed concern that Australia is contravening its obligations under international law.[52] The Office of the Prosecutor of the ICC determined that the conditions of detention offshore ‘appear to have constituted cruel, inhuman, or degrading treatment … and the gravity of the alleged conduct thus appears to have been such that it was in violation of fundamental rules of international law’.[53]
The bilateral agreements underpinning Australia’s offshore processing regime provided that each government would undertake all activities in accordance with their respective international obligations, and treat people transferred offshore ‘with dignity and respect and in accordance with relevant human rights standards’.[54]
In practice, however, Australia’s offshore processing policies posed threats to life, involved torture or cruel, inhuman or degrading treatment or punishment, exposed people to prolonged, indefinite and arbitrary detention, constituted an unlawful interference in family and private life, exposed women to gender-based violence and discrimination, and violated many obligations owed to children.
Offshore processing also risked violating the principle of non-refoulement in various ways. First, there was inadequate screening for individual protection concerns in the country to which transfer was proposed.[55] Second, the transfer of asylum seekers to countries with non-existent or ineffective asylum systems created a risk of chain refoulement to their countries of origin. Third, the creation offshore of a ‘return-oriented environment’ placed considerable pressure on people to return to their countries of origin, even if they continued to fear persecution or other serious harm there, amounting to ‘constructive refoulement’.[56] Finally, the denial of durable solutions and family reunion to people recognised as refugees, may have compelled them to return to serious harm in order to reunite with or rescue family members still in danger.[57]
Offshore processing creates domestic and international legal challenges
Australia sought to distance itself from the legal consequences of offshore processing by emphasising the fact that it was implemented within the territories of other sovereign States. However, as the UN Human Rights Committee affirmed in 2017, ‘the significant levels of control and influence exercised by [Australia] over the operation of the offshore regional processing centres, including over their establishment, funding and service provided therein’ amount to effective control such as to establish Australia’s jurisdiction and engage its obligations.[58] The Special Rapporteur on the Human Rights of Migrants also concluded that ‘the Government of Australia is ultimately accountable for any human rights violations that occur in the regional processing centres’ in Nauru and PNG.[59] Other UN bodies have likewise raised concerns with Australia about its policy.[60]
Australia has faced the prospect of international criminal law challenges to offshore processing, with at least six communications made to the ICC between 2014 and 2017 by eminent international legal scholars, practitioners and others.[61] These communications argued that offshore processing constitutes multiple crimes against humanity.[62]
At the domestic level, Australia has been forced to defend a series of legal challenges.[63] In marked distinction from other liberal democracies, Australia does not have a bill or charter of rights, and most of Australia’s obligations under international human rights and refugee law are not enshrined in federal legislation. As a result, it has not been possible to challenge offshore processing on the basis that the policy violates fundamental rules of international law. Instead, domestic challenges have largely involved questions of constitutional law.[64] Additionally, Australia and the private companies which have been involved in offshore processing have been sued for exposing asylum seekers and refugees to physical and psychological harm offshore and for false imprisonment,[65] as well as for wrongful death.[66] One class action resulted in a settlement figure of A$70 million, plus almost A$20 million in legal costs.[67] Former staff have also sued the Australian government and/or the private contractors that employed them, alleging that they suffered harm (particularly trauma and other psychological harm) as a result of their unsafe working environments.[68]
Conclusion
The ‘Australian model’ of offshore processing has been a cruel and expensive policy failure. There is no evidence that it has achieved its stated policy objective of deterring irregular maritime migration. It has incurred enormous financial costs for Australia, been implemented contrary to fundamental rules of international law, triggered numerous legal challenges, and involved systemic cruelty. The ‘Australian model’ of offshore processing should not be replicated by other countries; instead, it should serve as a warning to other States against becoming mired in similar policies.
Footnotes
[1] Offshore processing is factually and legally distinct from the transfer of asylum seekers to remote parts of a State’s territory, such as from the Australian mainland to Christmas Island, since the latter involves neither the removal of people from a State’s territory nor the transfer of people between States. In both instances, Australia has obligations under international law with respect to transferred asylum seekers.
[2] See, e.g., Jane McAdam, ‘Extraterritorial processing in Europe: Is ‘regional protection’ the answer, and if not, what is?’ (Policy Brief 1, Kaldor Centre for International Refugee Law, May 2015) <https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Kaldor%20Centre_Policy%20Brief%201_2015_McAdam_Extraterritorial%20processing_0.pdf>.
[3] Letters from UN High Commissioner for Refugees António Guterres to Australian Minister for Immigration and Citizenship Chris Bowen (5 September 2012 and 9 October 2012) available at <https://humanrights.gov.au/sites/default/files/Docs%20tabled%20with%20Instrument%20of%20Designation.Nauru_.pdf> and <https://humanrights.gov.au/sites/default/files/Docs%20tabled%20with%20Instrument%20of%20Designation.PNG_.pdf>.
[4] Janet Philips, ‘The ‘Pacific Solution’ revisited: a statistical guide to the asylum seeker caseloads on Nauru and Manus Island’ (Parliament of Australia, 4 September 2012) <https://parlinfo.aph.gov.au/parlInfo/download/library/prspub/1893669/upload_binary/1893669.pdf> 2-4, 16.
[5] Chris Evans, ‘Last refugees leave Nauru’ (Press release, 8 February 2008) <https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FYUNP6%22;src1=sm1>.
[6] Madeline Gleeson and Natasha Yacoub, Cruel, Costly and Ineffective: The Failure of Offshore Processing in Australia (Policy Brief 11, Kaldor Centre for International Refugee Law, 2021) 2 <https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Policy_Brief_11_Offshore_Processing.pdf>.
[7] Letter from the Office of the Prosecutor of the ICC to Andrew Wilkie MP (12 February 2020) 2 <https://andrewwilkie.org/wp-content/uploads/2022/12/200213-Andrew-Wilkie-Response-from-International-Criminal-Court-Australian-Government-treatment-of-asylum-seekers.pdf>. See also the experts and reports referred to in Appendices 1 and 3 of the Kaldor Centre’s submission on the Nationality and Borders Bill 2021 to the UK Public Bill Committee (15 October 2021) <https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/House_Commons_Nationality_Borders_Bill_October_2021_1.pdf>.
[8] Madeline Gleeson, ‘Protection Deficit: The Failure of Australia’s Offshore Processing Arrangements to Guarantee “Protection Elsewhere” in the Pacific’ (2019) 31(4) International Journal of Refugee Law 415.
[9] UNHCR, UNHCR Monitoring Visit to the Republic of Nauru: 7 to 9 October 2013 (26 November 2013) 22-24 <https://www.unhcr.org/au/sites/en-au/files/legacy-pdf/58117b931.pdf>; UNHCR, UNHCR Monitoring Visit to Manus Island, Papua New Guinea: 23 to 25 October 2013 (26 November 2013) 25-26 <https://www.unhcr.org/au/media/unhcr-monitoring-visit-manus-island-papua-new-guinea-23-25-october-2013>.
[10] Scott Morrison, ‘Operation Sovereign Borders’ (Press conference, 23 September 2013) <https://webarchive.nla.gov.au/awa/20131003014546/http://pandora.nla.gov.au/pan/143035/20131003-1143/www.minister.immi.gov.au/media/sm/2013/sm208387.htm>.
[11] Ibid.
[12] Gleeson and Yacoub (above note 6) 3.
[13] Elibritt Karlsen, ‘Australia’s offshore processing of asylum seekers in Nauru and PNG: a quick guide to statistics and resources’ (Parliament of Australia, 19 December 2016) 8–9 <https://parlinfo.aph.gov.au/parlInfo/download/library/prspub/4129606/ upload_binary/4129606.pdf>. Australia’s practice of returning people seeking protection by sea also risks violating fundamental rules of international law: Violeta Moreno-Lax, ‘The Interdiction of Asylum Seekers by Sea: Law and (mal)practice in Europe and Australia’ (Policy Brief 4, Kaldor Centre for International Refugee Law, May 2017) <https://www.kaldorcentre.unsw.edu.au/sites/ kaldorcentre.unsw.edu.au/files/Policy_Brief4_Interdiction_of_asylum_seekers_at_sea.pdf>.
[14] In one case in mid-2014, Australian officers intercepted 157 asylum seekers in Australia’s contiguous zone and detained them on an Australian vessel for more than three weeks, while it sailed them back to and attempted to disembark them in India, rather than transferring them to an offshore processing country. This case was subject to a legal challenge in the High Court of Australia, during which the Australian government gave undertakings not to transfer the detained asylum seekers to Sri Lanka (their country of origin), India, or anywhere else, without notice. See Transcript of Proceedings, JARK v Minister for Immigration and Border Protection [2014] HCATrans 148-150; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514. Australia has also been accused of paying people smugglers to return to Indonesia with their passengers, and has admitted to making unauthorised incursions into Indonesian sovereign waters, in its efforts to push asylum seekers back to their places of departure rather than transfer them offshore.
[15] Gleeson and Yacoub (above note 6) 5.
[16] Anna Talbot and George Newhouse, ‘Strategic Litigation, Offshore Detention and the Medevac Bill’ (2019) 13 Courts of Conscience 85.
[17] Karen Andrews MP, ‘Finalisation of the Regional Resettlement Arrangement’ (6 October 2021) <https://minister.homeaffairs.gov.au/KarenAndrews/Pages/finalisation-of-the-regional-resettlement-arrangement.aspx>.
[18] Memorandum of Understanding between the Republic of Nauru and Australia on the Enduring Regional Processing Capability in Republic of Nauru (24 September and 20 October 2021) <https://www.dfat.gov.au/sites/default/files/mou-nauru-enduring-regional-processing-capability-sep-2021.pdf>.
[19] Ben Doherty and Eden Gillespie, ‘Last refugee on Nauru evacuated as Australian government says offshore processing policy remains’ (The Guardian, 25 June 2023) <https://www.theguardian.com/australia-news/2023/jun/25/last-refugee-on-nauru-evacuated-as-australian-government-says-offshore-processing-policy-remains>.
[20] See, for example, evidence of George Brandis, High Commissioner for Australia to the United Kingdom, to the UK Public Bill Committee hearing on the Nationality and Borders Bill (23 September 2021) <https://hansard.parliament.uk/commons/2021-09-23/debates/7ca593db-c83d-48c0-98ff-300ed88e15ce/NationalityAndBordersBill(ThirdSitting)>. See also the Kaldor Centre response to errors and misrepresentations in this evidence (above note 7).
[21] Gleeson and Yacoub (above note 6) 2.
[22] Janet Phillips, ‘Boat arrivals and boat “turnbacks” in Australia since 1976: a quick guide to the statistics’ (Parliament of Australia, 27 January 2017) <https://parlinfo.aph.gov.au/parlInfo/download/library/prspub/4068239/upload_
[23] Information about boat arrivals in this period was reported until 5 August 2013 when Caretaker Conventions came into effect ahead of the federal election: see Jason Clare, Media Releases (webpage, undated) <https://webarchive.nla.gov.au/awa/20130902 035623/http://pandora.nla.gov.au/pan/122803/20130902-1346/www.ministerhomeaffairs. gov.au/Mediareleases/Pages/default.html>.
[24] According to the Australian Border Deaths Database, there were 131, 164, 231, 418 and 231 deaths en route to and in Australian waters in 2009 to 2013 inclusive: Australian Border Deaths Database, ‘Annual report on border-related deaths, 2020’ (Research Brief 18, Border Crossing Observatory, March 2021) <https://www.monash.edu/__data/assets/pdf_file/0018/2523141/BOB-Research-Brief-18-_border-deaths-annual-report-2020_Final.pdf>.
[25] Karlsen (above note 13) 8.
[26] Kaldor Centre (above note 7) 5-6; Australian Department of Home Affairs, Answer to Question AE24-686 on Notice from the Senate Standing Committee on Legal and Constitutional Affairs (February 2024) <https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId23-PortfolioId20-QuestionNumber686>.
[27] Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Cth) sch 6.
[28] Australian Department of Home Affairs, Answer to Question AE24-732 on Notice from the Senate Standing Committee on Legal and Constitutional Affairs (February 2024) <https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId23-PortfolioId20-QuestionNumber732>.
[29] A 2016 report determined that Australia would have saved A$400,000 per person per year by issuing asylum seekers visas and permitting them to remain in the community in Australia rather than detaining them offshore: Save the Children Australia and UNICEF Australia, At What Cost? The Human, Economic and Strategic Cost of Australia’s Asylum Seeker Policies and the Alternatives (Report, 2016) 43 <https://www.unicef.org.au/Upload/UNICEF/Media/Documents/At-What-Cost-Report.pdf>.
[30] Ben Doherty, ‘Morrison government struck secret deal to pay PNG to take refugees and asylum seekers’ (The Guardian, 22 July 2023) <https://www.theguardian.com/australia-news/2023/jul/22/morrison-government-png-asylum-seeker-deal-refugee>.
[31] Michael Bachelard and Nick McKenzie, ‘Where did all the money go? Tens of millions for PNG refugees disappear in months’ (Sydney Morning Herald, 16 November 2023) <https://www.smh.com.au/national/where-did-all-the-money-go-tens-of-millions-for-png-refugees-disappear-in-months-20231116-p5ekjt.html>.
[32] Paul Karp and Tory Shepherd, ‘Nauru offshore processing to cost Australian taxpayers $485m despite only 22 asylum seekers remaining’ (The Guardian, 23 May 2023) <https://www.theguardian.com/australia-news/2023/may/23/nauru-offshore-detention-immigration-processing-to-cost-australia-485m-22-asylum-seekers>.
[33] Madeline Gleeson, ‘The Australia-Cambodia refugee deal’ (Research Brief, Kaldor Centre for International Refugee Law, October 2019) <https://www.kaldorcentre.unsw.edu.au/sites/kaldor centre.unsw.edu.au/files/Research Brief_Cambodia_Oct2019.pdf>.
[34] Seven years of reports documenting the progressive mental health deterioration of people offshore were summarised for an Australian Senate Committee in 2019: Kaldor Centre for International Refugee Law, Submission No 53.1 to the Senate Standing Committee on Legal and Constitutional Affairs, Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions] (10 September 2019) <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/ Legal_and_Constitutional_Affairs/RepairMedicaltransfers/Submissions>. See also the leaked cache of more than 2,000 incident reports from Nauru known as the ‘Nauru Files’: ‘The Nauru Files’, Guardian (online, 10 August 2016) <https://www.theguardian.com/news/series/nauru-files>.
[35] Australian Department of Home Affairs (above note 28); Australian Department of Home Affairs, Answer to Question AE24-731 on Notice from the Senate Standing Committee on Legal and Constitutional Affairs (February 2024) <https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId23-PortfolioId20-QuestionNumber731>.
[36] Ben Doherty, Nick Evershed and Andy Ball, ‘Deaths in offshore detention: the faces of the people who have died in Australia’s care,’ Guardian (online, 20 June 2018) <https://www.the guardian.com/australia-news/ng-interactive/2018/jun/20/deaths-in-offshore-detention-the-faces-of-the-people-who-have-died-in-australias-care>; Helen Davidson, ‘Afghan man dies in Brisbane two years after medical transfer from Manus Island’, Guardian (online, 17 October 2019) <https://www.theguardian.com/australia-news/2019/oct/17/afghan-man-dies-in-brisbane-two-years-after-medical-transfer-from-manus-island>; Mel Vujikovic, ‘Inquest into death of Iranian refugee Omid Masoumali considers medical treatment delay’, ABC News (online, 25 February 2019) <https://www.abc.net.au/news/2019-02-25/omid-masoumali-refugee-inquest/10845120>.
[37] Reza Berati, a 24-year-old Iranian man, was murdered inside the Manus Island detention centre during a riot in February 2014 when contractors, police and locals stormed the centre. He was attacked with a wooden pole spiked with nails and then, while prone, had a rock dropped on his head. Staff and other refugees present at the time continue to be affected by the trauma of witnessing this event. In December 2014 an Australian Senate Committee recommended that Australia provide compensation to Berati’s family and other asylum seekers injured during the incident: Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Incident at the Manus Island Detention Centre from 16 February to 18 February 2014 (Report, December 2014) xi. In 2021, Berati’s family commenced legal action against Australia and a private contractor over the death (see n 104).
[38] Hamid Kehazai, a 24-year-old Iranian man, died after a minor infection in his leg was not effectively treated on Manus Island and Australian officials resisted medical requests to medically evacuate him. He became septic, suffered a massive heart attack, and was subsequently declared brain dead. Faysal Ishak Ahmed, a 27-year-old Sudanese man, suffered repeated seizures on Manus Island but was denied medical treatment and eventually fell and sustained a fatal head injury during a seizure: Doherty, Evershed and Ball (n 46).
[39] Coroners Court of Queensland, Inquest into the death of Hamid Khazaei (30 July 2018) [14] <https://www.courts.qld.gov.au/__data/assets/pdf_file/0005/577607/cif-khazaei-h-20180730.pdf>.
[40] UNHCR, Submission No 43 to the Senate Legal and Constitutional Affairs Committee, Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre 2016’ (12 November 2016) <https://www.unhcr.org/en-au/publications/legal/58362da34/submission -to-the-senate-legal-and-constitutional-affairs-committee-serious.html>.
[41] MSF, Indefinite despair: The tragic mental health consequences of offshore processing on Nauru (Report, December 2018), 4 <https://msf.org.au/sites/default/files/attachments/indefinite_ despair_3.pdf>.
[42] UN Human Rights Council, Report of the Special Rapporteur on the human rights of migrants on his mission to Australia and the regional processing centres in Nauru (UN Doc A/HRC/35/25/Add.3, 24 April 2017) para 77.
[43] UNHCR, ‘UNHCR chief Filippo Grandi calls on Australia to end harmful practice of offshore processing’ (Press release, 24 July 2017) <https://www.unhcr.org/en-au/news/press/2017/7/597217484/unhcr-chief-filippo-grandi-calls-australia-end-harmful-practice-offshore.html>.
[44] Elizabeth Elliott and Hasantha Gunasekera, The health and well-being of children in immigration detention: Report to the Australian Human Rights Commission, Monitoring Visit to Wickham Point Detention Centre, Darwin, NT, October 16th – 18th 2015 (Report, 4 February 2016) 18 <https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/health-and-well-being-children-immigration>.
[45] Felicity Ogilvie, ‘Five-year-old girl attempted suicide in fear of going back to Nauru, father says’, ABC News (online, 28 March 2015) <https://www.abc.net.au/news/2015-03-28/father-says-5yo-girl-attempted-suicide-in-fear-of-going-to-nauru/6355566>.
[46] In 2018, the Guardian documented several cases, including one girl who, ‘[b]efore she got sick … was the best-performing student… She had a dream to be a doctor in Australia and to help others. Now, she is on food-and-fluid refusal and begging to die as death is better than Nauru’: Ben Doherty, ‘Begging to die’: succession of critically ill children moved off Nauru’, Guardian (online, 25 August 2018) <https://www.theguardian.com/australia-news/2018/aug/25/begging-to-die-succession-of-critically-ill-children-moved-off-nauru>. See also Louise Newman, ‘What is resignation syndrome and why is it affecting refugee children?’ The Conversation (online, 22 August 2018) <https://theconversation.com/explainer-what-is-resignation-syndrome-and-why-is-it-affecting-refugee-children-101670>.
[47] Refugee Council of Australia and Asylum Seeker Resource Centre, Australia’s Man-Made Crisis on Nauru: Six Years On (Report, September 2018), 9–10 <https://www.refugeecouncil.org.au/nauru-report/2/>.
[48] UNHCR, ‘UNHCR urges Australia to evacuate off-shore facilities as health situation deteriorates’ (Briefing note, 12 October 2018) <https://www.unhcr.org/en-au/news/briefing/ 2018/10/5bc059d24/unhcr-urges-australia-evacuate-off-shore-facilities-health-situation-deteriorates.html>.
[49] Physical and Mental Health Subcommittee of the Joint Advisory Committee for Nauru Regional Processing Arrangements, ‘Nauru site visit report: 16-19 February 2014’ (Report, 2014) 3 <https://s3.documentcloud.org/documents/1175048/hmhsc-jac-site-visit-report-final-1.pdf>.
[50] Ben Doherty and David Marr, ‘The worst I’ve seen – trauma expert lifts lid on “atrocity” of Australia’s detention regime’, (The Guardian, 20 June 2016) <https://www.theguardian.com/australia-news/2016/jun/20/the-worst-ive-seen-trauma-expert-liftslid-on-atrocity-of-australias-detention-regime>.
[51] UN Human Rights Council (above note 42) [79].
[52] For a list of UN reports on offshore processing from 2012 to 2019, see: UNHCR, ‘United Nations Observations: Australia’s transfer arrangements with Nauru and Papua New Guinea (2012–present)’ (webpage, undated) <https://www.unhcr.org/en-au/united-nations-observations.html>.
[53] Letter from the Office of the Prosecutor (above note 7) 2.
[54] See Memorandum of Understanding Between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues, Nauru and Australia (signed and entered into force 29 August 2012) [12]; Memorandum of Understanding Between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues, Nauru and Australia (signed and entered into force 3 August 2013) [17]; Memorandum of Understanding Between the Government of the Independent State of Papua New Guinea and the Government of Australia, Relating to the Transfer to and Assessment of Persons in Papua New Guinea, and Related Issues, Papua New Guinea and Australia (signed and entered into force 8 September 2012) [15]; Memorandum of Understanding Between the Government of the Independent State of Papua New Guinea and the Government of Australia, Relating to the Transfer to, and Assessment and Settlement in, Papua New Guinea of Certain Persons, and Related Issues, Papua New Guinea and Australia (signed and entered into force 6 August 2013) [17].
[55] For example, men who fled persecution on the basis of their sexual orientation in their home countries were knowingly sent to PNG, where consensual same-sex acts between men are criminalised: Amnesty International, This is Breaking People: Human Rights Violations at Australia’s Asylum Seeker Processing Centre on Manus Island, Papua New Guinea (December 2013) 73–74 <https://www.amnesty.org/en/documents/asa12/002/2013/en/>.
[56] See, e.g., UNHCR Monitoring Visit to the Republic of Nauru (above note 9) para 140; UNHCR Monitoring Visit to Manus Island (above note 9) para 119; UNHCR, ‘Australia should not coerce vulnerable people to return to harm’ (Press release, 29 August 2017) <https://www.unhcr.org/en-au/news/press/2017/8/59a558104/australia-coerce-vulnerable-people-return-harm.html>; UN Human Rights Committee, Concluding observations on the sixth periodic report of Australia, UN Doc CCPR/C/AUS/CO/6 (1 December 2017) para 35(a).
[57] Ben Doherty, ‘Afghan refugee sues Australian government, saying detention prevents him saving his family from Taliban’, Guardian (online, 22 July 2021) <https://www.theguardian.com/australia-news/2021/jul/22/afghan-refugee-sues-australian-government-saying-detention-prevents-him-saving-his-family-from-taliban>.
[58] UN Human Rights Committee (above note 56) para 35.
[59] UN Human Rights Council (above note 42) para 73.
[60] See above note 52.
[61] Natalie Hodgson, ‘International criminal law and civil society resistance to offshore detention’ (2020) 26(3) Australian Journal of Human Rights 449.
[62] Despite finding that the conditions of detention appeared to be cruel, inhuman or degrading treatment contrary to fundamental rules of international law, the Office of the Prosecutor declined to formally open a preliminary examination to examine crimes against humanity. Irrespective of the outcome, the communications ‘demonstrate the illegality of Australia’s offshore detention of asylum seekers, hold government officials criminally responsible for their conduct, and exert pressure on the government to cease offshore detention’: Ibid, 450-451.
[63] For a full discussion of these domestic and other international legal challenges, see Kaldor Centre (above note 7) 9-16. See also, Gabrielle Holly, ‘Challenges to Australia’s Offshore Detention Regime and the Limits of Strategic Tort Litigation’ (2020) 21(3) German Law Journal 549.
[64] Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42.
[65] Kamasaee v Commonwealth of Australia & Ors, S CI 2014 6770.
[66] Human Rights Law Centre, ‘Settlement reached over the murder of asylum seeker Reza Berati on Manus Island’ (14 August 2023) <https://www.hrlc.org.au/news/2023/8/11/settlement-reached-over-the-murder-of-asylum-seeker-reza-berati-on-manus-island>.
[67] Supreme Court of Victoria, ‘Manus Island Detention Centre class action: Court approves $70M settlement’ (6 September 2017) <https://www.supremecourt.vic.gov.au/news/manus-island-detention-centre-class-action>; ‘Australia agrees to pay A$70m to Manus Island detainees’, BBC News (14 June 2017) <https://www.bbc.com/news/world-australia-40269543>.
[68] The details of most of these proceedings are confidential and/or otherwise not on the public record. However, these claims are consistent with the well-documented risks of vicarious trauma for staff working with traumatised people, and statements made on the public record by present and former staff to government inquiries and the media. See, e.g. Nicole Hasham, ‘Detention centre workers suffering their own trauma in dealing with asylum seekers’, Sydney Morning Herald (online, 26 February 2016) <https://www.smh.com.au/politics/federal/detention-centre-workers–suffering-their-own-trauma-in-dealing-with-asylum-seekers-20160225-gn3buk.html>.