Australia’s ‘offshore’ detention regime

The following text has been written by Sara Dehm, Faculty of Law, University of Technology Sydney, AU.

Offshore regional detention

Australia has had a legal framework of ‘offshore’ regional detention for asylum seekers that arrive unauthorised by boat since 2001. Introduced first in October 2001 in the wake of the so-called Tampa affair, Australia’s offshore detention regime has undergone two distinct phases of operation: first 2001-2008 (Phase I); and again 2012-ongoing (Phase II).

In both periods, successive Australian governments have justified the policy and practice of offshore detention as a necessary deterrence measure to stop ‘people smuggling’ and unauthorised migration, arguing that it functions as a way of ‘securing’ Australia’s borders and, more recently, to deter people from ‘risking’ or losing their lives at sea.

In both phases, Australia built and operated immigration detention prisons on two Pacific Island states, Nauru and Papua New Guinea (PNG), both states with a shared history of Australian colonisation.

Refugees and asylum seekers

Since 2001, over 5,800 refugees and asylum seekers, including young or unaccompanied children, have been detained under Australia’s offshore detention regime (and over 3,100 people since 2013). As of 31 March 2021, around 240 people remain in Nauru and PNG subject to Australia’s offshore detention regime.

Many of these people have been officially recognised as refugees and have spent the previous eight years in a mixture of unhygienic, overcrowded tents or other primitive structures, closed immigration detention or temporary supported accommodation.

In addition, since 2012, around 950 people have returned to their states of origin from Australia’s offshore detention regime, amounting to a kind of ‘self-deportation’ as a result of conditions pushing refugees, in the words of Kurdish journalist and former Manus detainee, Behrouz Boochani, to a ‘point of hopelessness’.

Burden-sharing arrangements

Australia’s offshore detention regime is, in part, the product of international legal arrangements. International refugee law controversially allows for so-called ‘refugee burden-sharing arrangements, including safe third-country processing agreements.

However, the ‘lack of precision and clarity’ around what exactly such arrangements entail has allowed states in the Global North, like Australia, to exploit the concept as a way of attempting to outsource and externalise their obligations under the Refugees Convention to poorer states at their peripheries.

In both phases of Australia’s offshore detention regime, Australia concluded Memorandums of Understanding with Nauru and PNG as well as with international institutions such as the UNHCR (in Phase I) and the International Organization for Migration (IOM) (in Phase II).

The running of offshore detention facilities

Australia also awarded lucrative contracts to multinational for-profit corporations such as Transfield and G4S for the day-to-day running of the offshore detention facilities.

During Phase I, Australian departmental officers together with UNHCR officials conducted refugee status determination on Nauru and PNG, whereas, during Phase II, this process has been outsourced to PNG and Nauruan state authorities.

This latter arrangement has allowed the Australian Government to project and deflect responsibility and accountability for processing refugee claims onto the Nauruan and PNG states as ‘self-governing and responsible Pacific state[s]’, while nonetheless still exercising ultimate control over the arrangements as a whole through facilitating transfers, directing the sub-contractors, and funding the overall operations.

Ongoing and systematic breaches of human rights

Australia’s offshore detention regime has been routinely criticised for ongoing and systematic breaches of the human rights of refugees and asylum seekers, including on children.

The UN Human Rights Committee, for example, has repeatedly stated that Australia’s general policy of mandatory indefinite detention of asylum seekers who have arrived unauthorised by boat was ‘cumulatively inflicting serious, irreversible psychological harm’.

The legitimacy and viability of Australia’s offshore detention regime have also come under sustained political attack from the refugees and asylum seekers incarcerated there through a range of creative means as well as Australian civil society organisations.

Refugees on Manus island

This occurred most visibly in 2017 when refugees on Manus Island were engaged in a brutal and protracted 3-week standoff with PNG authorities after refusing to be transferred to different temporary accommodation.

This standoff led the UNHCR to declare that Australia’s policy and practice of offshore detention, in particular, has created a ‘looming humanitarian emergency’ and an unprecedented mental health crisis among refugees and asylum seekers detained in PNG and Nauru.

While hundreds of people have since been transferred to Australia for medical reasons or formally resettled in the U.S., the refugees who remain in PNG and Nauru, as well as the refugees who are now in Australia on temporary visas, continue to have drastically inadequate access to healthcare – arguably in violation of Australia’s obligation under article 12 of the International Covenant on Economic, Social and Cultural Rights – while enduring legal limbo, precarity and insecurity.

The legality of Australia’s offshore detention regime

The legality of Australia’s offshore detention regime remains contested.

While Australian High Court cases brought on behalf of refugee plaintiffs to challenge the legality of such detention regime have largely failed to declare it illegal under Australian law (see examples here and here), in 2016, the PNG Supreme Court declared the Manus Island Regional Processing Centre to be unconstitutional under PNG law, in part as it breached the constitutional right to freedom of movement.

Since then, Australia’s offshore detention regime has been the subject of written communications on numerous occasions to the International Criminal Court (ICC) for alleged crimes against humanity.

The alleged criminal conduct includes ‘deportation, imprisonment or other severe deprivation of physical liberty, torture, other inhumane acts and persecution’.

Conditions of the offshore detention regime

In 2020, the ICC Office of the Prosecutor decided that the matters fell outside of the ICC’s jurisdiction, even though they recognised that the conditions under Australia’s offshore detention regime ‘appear to have constituted cruel, inhuman, or degrading treatment and be a ‘violation of fundamental rules of international law’.

In the words of Behrouz Boochani – Kurdish-Iranian journalist, human rights defender, and detainee in the Manus Island detention centre in Papua New Guinea from 2013 until its closure in 2017 – the experience of indefinite detention is soul-destroying:

Prison maintains its power over time; the power to keep people in line. Fenced enclosures dominate and can pacify even the most violent person – those imprisoned on Manus are themselves sacrificial subjects of violence. We are a bunch of ordinary humans locked up simply for seeking refuge.