Is Australia responsible for asylum seekers detained on Manus Island?

Updated

Questions about Australia's legal responsibility to asylum seekers detained on Manus Island have arisen after one asylum seeker was killed and others were critically injured during a violent overnight confrontation in the detention centre on February 17.

The centre, in Papua New Guinea, is home to over 1,300 asylum seekers who were intercepted by Australian authorities while trying to reach Australian shores by boat.

In an interview with ABC radio on February 19, the president of the Australian Human Rights Commission, Gillian Triggs, was asked by host Fran Kelly whether the people in the detention centre were Australia's responsibility.

"Bottom line is they definitely are and the reasons for that is firstly, Australia has the primary responsibility and secondly, we cannot abdicate that responsibility by sending them off to a third country," Professor Triggs said.

She went on to say, "Also as practical matter, there is a great deal of evidence to suggest that Australia is in effect in control of activities and the management of these detention centres, so frankly from the point of view of international legal standards and international law there's very little doubt that Australia remains responsible..."

A spokesperson for Immigration and Border Protection Minister Scott Morrison told ABC Fact Check: "As the individuals and the centre are located in PNG territory, it has primary responsibility."

The claim: Gillian Triggs says asylum seekers in the Manus Island detention centre are Australia's primary responsibility.

Gillian Triggs says asylum seekers in the Manus Island detention centre are Australia's primary responsibility. The verdict: Under international law, Australia and Papua New Guinea both have responsibilities for the asylum seekers.

Obligations to refugees

In her ABC radio interview, Professor Triggs said Australia's "basic obligation" was "to protect these people and to ensure their safety".

A central document on the protection of refugees is Article 33 of the United Nations' Convention and Protocol relating to the Status of Refugees, ratified by Australia in 1973. It says a contracting state has an obligation to not return a refugee to a place where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

A central document on ensuring the safety of refugees is the International Covenant on Civil and Political Rights ratified by Australia in 1980. Article 9 of the covenant says: "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." Article 6 says: "Every human being has the inherent right to life. This right shall be protected by law."

The recent debate has concentrated on this covenant because the death of Iranian asylum seeker Reza Berati and the injuries occurred while the asylum seekers were waiting for their claims to be processed by PNG.

The Manus Island detention centre

In August 2012, the Migration Legislation Amendment Act 2012 was passed allowing the federal government to move asylum seekers to a regional country for their refugee claims to be processed. The first group of asylum seekers was sent to Nauru in September 2012. A detention facility on Manus Island opened later.

The Rudd Labor government signed a Regional Resettlement Arrangement between Australia and Papua New Guinea on July 19, 2013, and the following month the governments of Australia and PNG entered into a new Memorandum of Understanding.

The Australian government has engaged contractors to provide key services such as healthcare, security and construction on Manus Island.

Fact Check asked the Australian and PNG governments for details about the arrangements between them, but did not receive copies of the documents.

Transferring asylum seekers to another country

Before the Migration Act was changed in August 2012, former prime minister Julia Gillard appointed an expert panel for guidance on policy issues. It received more than 500 submissions and consulted widely with experts and parliamentarians before handing down its report.

The expert panel's report says: "There is no rule under international law that an asylum seeker must seek protection in the first state in which effective protection might be available. However, a refugee does not have an entitlement, under international law, to have his or her status determined in a particular place."

In 2011, the High Court of Australia found Australia could not validly process asylum seekers in a third country unless that country was bound under law to provide effective protection for them while their refugee status was determined. This put an end to a proposed policy to have asylum seekers intercepted by Australian authorities transferred for processing to Malaysia, which was not a signatory to the Refugees Convention. Papua New Guinea however is a signatory.

Responsibility when asylum seekers are not on Australian soil

In a statement to the Papua New Guinea parliament in September last year, the country's minister for foreign affairs and immigration Rimbink Pato said: "Let there be no doubt that the resettlement of refugees from third countries will present numerous challenges. It is an area of public policy that is entirely new to PNG. Close consultation with all relevant Government Departments in PNG, various Departments in Australia, the [United Nations High Commissioner for Refugees], International Organisation on Migration, international organisations and non-government organisations are necessary and will be nurtured".

The August 2012 report by the Australian government's expert panel on asylum seekers says there is a range of views within the international community on where the Refugee Convention applies. "The position of successive Australian Governments has been that the Refugees Convention only applies to persons within Australia's territorial boundaries (that is, landward of the outer limits of the territorial sea)," the report said.

However, it says the Gillard government accepted "at least in relation to the International Covenant on Civil and Political Rights" that Australia's obligations under international human rights law might apply outside those boundaries. This applied "where it is exercising 'effective control' over territory abroad (this includes exercising the power to proscribe and enforce laws)".

"International bodies, including the UN Human Rights Committee and the European Court of Human Rights, have held that, in certain circumstances, a person will be subject to a state's jurisdiction where the state exercises "effective control" over a person extraterritorially – in which case, relevant human rights obligations will apply," it said.

The expert panel recommended that Australia begin offshore processing in Nauru and on Manus Island.

"Asylum seekers who have their claims processed in Nauru would be provided with protection and welfare arrangements consistent with Australian and Nauruan responsibilities under international law, including the Refugees Convention," the report said. Similar arrangements would apply on Manus Island, it said.

The physical transfer of asylum seekers from Australia to PNG, as an arrangement agreed by two 1951 Refugee Convention states, does not extinguish the legal responsibility of Australia for the protection of the asylum seekers affected by the transfer arrangements. UNHCR

A UNHCR report on Manus Island published in October says "the physical transfer of asylum seekers from Australia to PNG, as an arrangement agreed by two 1951 Refugee Convention states, does not extinguish the legal responsibility of Australia for the protection of the asylum seekers affected by the transfer arrangements".

"In short, both Australia and PNG have shared and joint responsibility to ensure that the treatment of all transferred asylum seekers is fully compatible with their respective obligations under the 1951 Refugee Convention and other applicable international instruments," the report added.

Professor David Kinley, chair in human rights law at the University of Sydney, says, "from the moment that Australian authorities intersect with boat-bound asylum seekers, whether inside or outside Australia territorial seas, they are responsible for the welfare of these people".

Professor Kinley says his opinion rests on Article 33 of the Refugee Convention and a state's extraterritorial obligations under international human rights treaties, which include the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, and Convention on the Elimination of All Forms of Discrimination against Women.

Professor Jane McAdam from the University of New South Wales' law school says Australia has responsibility, but not necessarily primary responsibility, for the residents of the detention centre under international law.

She told Fact Check that obligations under international law can be "joint and several". This means a human rights violation in a regional processing country would be the responsibility of Australia and the processing country such as Papua New Guinea or Nauru.

In a 2013 submission to a Parliamentary Joint Committee on Human Rights, Professor McAdam wrote: "Any State that aids or assists, directs or controls, or coerces another State to commit an internationally wrongful act is also responsible if it knows the circumstances of the wrongful act, and the act would be wrongful if that State committed it itself."

She says the Articles of Responsibility of States or Internationally Wrongful Acts" adopted by the United Nations in 2001 show that a country can contract out the processing of refugees but cannot contract its international obligation.

A Human Rights Commission report from November 2012 says, "under international law, Australia will be in breach of its obligations under the International Covenant on Civil and Political Rights if it removes a person to another country in circumstances where there is a 'real risk' that their rights will be violated".

The Abbott Government's view

Mr Morrison's spokesperson said: "The extent to which Australia's own international human rights obligations are engaged extraterritorially in relation to individuals is a complex issue which has regard to the level of control that Australia has over the individuals concerned.

"The consistent position taken by the government is that while we are assisting PNG in the management of the centre and the processing of any claims by the individuals, this does not constitute the level of control required under international law."

Who is in control of the centre?

I can guarantee their safety when they remain in the centre and act co–operatively with those who are trying to provide them with support and accommodation. Scott Morrison

The Memorandum of Understanding signed in 2013 by the PNG government and Australian government says "the Government of Australia will bear all costs incurred" under the detention of the asylum seekers.

It also says: "Communications concerning the day-to-day operation of activities undertaken in accordance with this MOU will be between the Office of the Chief Migration Officer of Papua New Guinea (who is also the Administrator of the Manus Regional Processing Centre) and the Australian Department of Immigration and Citizenship."

Mr Morrison's spokesperson told Fact Check that under Section 15D of the PNG Migration Act, the chief migration officer, Mataio Rabura, has been designated as the administrator of the centre "and is required to exercise control and management of the centre".

The Australian government has numerous contracts with service providers, including the British security company G4S, which recently lost its contract to provide security to the centre.

The contract says: "The site needs to provide a safe and secure environment for Transferees, Service Provider Personnel, Department Personnel and other people at the site, ensuring that each individual's human rights, dignity and well-being is preserved."

It also says the service provider must comply with all applicable laws, which many include both Papua New Guinea and Australian laws, and comply with Australian standards for workplaces.

Mr Morrison has referred several times to the Australian Government's role in providing a safe environment.

On February 18 he was asked whether he could guarantee the safety of the asylum seekers on Manus Island. "I can guarantee their safety when they remain in the centre and act co–operatively with those who are trying to provide them with support and accommodation," he said.

"When people engage in violent acts and in disorderly behaviour and breach fences and get involved in that sort of behaviour and go to the other side of the fence, well they will be subject to law enforcement as applies in Papua New Guinea. But when people co–operate and conduct themselves appropriately within the centre then yes I can."

On February 22, when Mr Morrison said he had been told that most of the riot had taken place inside the centre, he said: "When people co–operate and conduct themselves appropriately within the centre then we are able to provide for their safety. This is the most effective way to ensure the security of these facilities and safety of all those who are accommodated and work within the centre."

The verdict

Mr Morrison's comments indicate Australia has strong powers inside the detention centre's perimeters. However, the PNG government also has a level of control over the facility. Without access to the full set of documents signed between PNG and Australia, it is impossible to know the division of responsibilities.

Experts contacted by Fact Check say when it comes to obligations under international law, Australia has responsibilities which sit alongside responsibilities PNG has to the asylum seekers.

Professor Triggs is close to the mark.

Sources

Topics: federal-government, rights, law-crime-and-justice, immigration, refugees, australia, papua-new-guinea

First posted