Treatment of refugees

Australia systematically detains asylum seekers in offshore detention facilities in Nauru and Papua New Guinea, often for lengthy periods of time. Committee members remarked that the duration of the detention had to be necessary and proportionate to the risk, while it seems now that Australia is detaining in order to deter others. Children, and in particular unaccompanied minors, are also detained in these facilities. Australia has a practice of mandatory detention without assessing the concrete security threat posed by the individual. The Committee asked clarification on the standard of review of the detention and whether the review takes place periodically.

The conditions in these centers are deplorable. Moreover, the State attempts to create a veil of secrecy about the conditions in these centers.

Also, the use of physical restraints against migrants is widespread, for example by using handcuffs. In this regard, a Committee member asked how Australia can justify treating migrants as criminals.

Australia says these centers do not fall under their jurisdiction, but under the responsibility of the respective governments, Nauru and Papua New Guinea. The Committee strongly disagrees with this in view of General Comment 31, which contains the effective control standard.

Non-refoulement

The Committee was very concerned about violations to the principle of non-refoulement in Australia. Asylum seekers arriving by sea are transferred to regional processing countries like Nauru, and the Committee asked whether they can be sent back to their countries without an adequate assessment of their situation, since the Migration Act was amended.

Moreover, for the persons intercepted at sea, assessment is conducted at sea without access to counsel or appeal. It is a very speedy process that only contains 4 questions. The Committee remarked that this should be done within the territory of the State and that the legal regime in place is disturbing and shocking, in particular for a State that claims to have an exemplary human rights record.

Furthermore, the punitive conditions in the detention centers of the offshore facilities are a risk of involuntary non-refoulement: conditions are so deplorable that asylum seekers prefer to voluntarily return to their country of origin without any protection.

The delegation replied that Australia has no plans to change its policies in this regard and believes it complies with the principle of non-refoulement. 

Indigenous peoples

Indigenous peoples in Australia, in particular the Aboriginal and Torres Strait Islander peoples, face several issues. Firstly, they are overrepresented in the penitentiary system. The Committee wondered what the underlying causes were and whether greater political participation can be part of the solution. The delegation replied that drivers for violence include alcohol abuse, poverty, unemployment and poor education. The State is looking into developing a new youth care model with indigenous experts. It also referred to their ‘Closing the Gap Strategy’, which contains measures to improve education, health and employment outcomes.

Secondly, indigenous communities live in very remote places. Australia said to be developing an innovative solution to address their needs and deliver services. This can be through the use of new technology, like tele-health services or school via internet. GPS will be used to monitor community safety. Australia also does an effort to create employment opportunities through for example community night patrols which address safety issues in the neighborhoods.

Thirdly, land rights of indigenous peoples remain a serious concern. The Land Reform Commission issued recommendations and the Committee asked whether Australia had any plans to implement these and whether a national reparation mechanism for victims was established. It also asked whether the State had the intention to amend the Native Title Act and if so, to plan consultations with indigenous peoples, because the threshold of proof for indigenous land use agreements is high. Australia replied by saying that indigenous affairs are a priority for the government and that it has several strategies in place to tackle these issues, including a reform of the Native Title Act.

Another problem is the prevalence of domestic violence against indigenous women. The Committee asked what measures the State would take to reduce the level of violence, and the State replied it was planning to expand its campaign to combat domestic violence. Several assistance deals are specifically designed for indigenous women, focusing on police response, access to remote communities, training packages for nurses, counseling and legal support. These measures were developed in consultation with indigenous communities. 

Recommendations of the Human Rights Committee

Within two years, the State party should provide information on the following recommendations from the Committee’s Concluding Observations:

Non-refoulement

• Ensure that the non-refoulement principle is secured in law and strictly adhered to in practice, and that all asylum-seekers regardless of their mode of arrival have access to fair and efficient refugee status determination procedures and non-refoulement determinations, including by:
• Repealing section 197C of the Migration Act 1958 (Cth) and introducing a legal obligation to ensure that the removal of an individual must always be consistent with the State party’s non-refoulement obligations.
• Reviewing the policy and practices during interceptions at sea, including on-water assessments, to ensure that all persons under the State party’s jurisdiction who are in need of international protection have access to fair and efficient asylum procedures within the territory of the State, including access to legal representation where appropriate, and to legal remedies.
• Allowing monitoring of the processing of intercepted persons by international observers, including UNHCR.
• Considering repealing the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth).

Offshore immigration processing facilities and Christmas Island

• End its offshore transfer arrangements and cease any further transfers of refugees or asylum-seekers to Nauru, Papua New Guinea or any other ‘regional processing country’.
• Take all measures necessary to protect the rights of refugees and asylum- seekers affected by the closure of processing centres, including against non- refoulement, ensure their transfer to Australia or their relocation to other appropriate safe countries, and monitor closely their situation after the closure of the centres.
• Consider closing down the Christmas Island detention centre.

Mandatory immigration detention

• Bring its legislation and practices related to immigration detention into compliance with article 9 of the Covenant, taking into account the Committee’s general comment No. 35 (2014) on liberty and security of person (in particular para. 18).
• Reduce significantly the period of initial mandatory detention and ensure that any detention beyond that initial period is justified as reasonable, necessary and proportionate in the light of individuals circumstances and is subject to periodic judicial review.
• Expand the use of alternatives to detention.
• Consider introducing a time limit on the overall duration of immigration detention.
• Provide for a meaningful right to appeal against the indefinite detention of individuals with ASIO adverse security assessments, including a fair opportunity to refute the claims against them.
• Ensure that children and unaccompanied minors are not detained except as a measure of last resort and for the shortest appropriate period of time, taking into account their best interests as a primary consideration with regard to the duration and conditions of detention and their special need for care.
• Address the conditions of detention in immigration facilities, provide adequate mental healthcare, refrain from applying force or physical restraints against migrants
• Ensure that all allegations of use of force against them are promptly investigated, that perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, and that victims are offered reparation. 

Australia's next periodic report is due on 10 November 2023.