UN human rights committee says mandatory detention policy is unlawful and Australia cannot ‘pick and choose’ which international laws it follows

This article is more than 2 years old

This article is more than 2 years old

Australia remains responsible for the people held in its offshore detention regimes on Manus Island and Nauru, and should immediately close the centres and bring refugees and asylum seekers to Australia or another safe country, the United Nations human rights committee has told the government.

In an excoriating report, the expert committee said it was concerned about the conditions in the offshore immigration processing facilities in Manus Island and Nauru, which also holds children, “including inadequate mental health services, serious safety concerns and instances of assault, sexual abuse, self-harm and suspicious deaths; and about reports that harsh conditions compelled some asylum seekers to return to their country of origin despite the risks that they face there”.

Instances of refugees and asylum seekers being encouraged to return to places where they might face danger – a breach of Australia’s non-refoulement obligations under international law - have previously been reported by the Guardian.

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At the height of the Myanmarese military’s “ethnic cleansing” operation against the minority Muslim Rohingya population, Rohingya held in Australia’s offshore regime were being encouraged to return to Myanmar with offers of up to $25,000 in cash if they abandoned their claim for protection.

The human rights committee – an 18-member expert panel – said Australia exercised “effective control” over the offshore regime and should close it immediately.

Australia should end the practice of “offshore processing”, immediately close Nauru and Manus Island, and “take all measures necessary to protect the rights of refugees and asylum seekers affected ... ensure their transfer to Australia or their relocation to other appropriate safe countries”.

The committee said Australia’s policy of mandatory – and in some cases indefinite – detention of asylum seekers was unlawful. Mandatory detention, including of children, was instituted by the Keating Labor government in 1992 as a temporary measure. A 273-day time limit on detention was abandoned in 1994.

During hearings last month, Australia was castigated for its routine refusals to implement the findings of the committee.

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Prof Yuval Shany, the committee’s vice-chair, said it was “unacceptable” for Australia to “routinely reject” the committee’s views or “self-judge” international human rights treaties, telling Australia it could not “pick and choose” which laws it followed and which rights it wanted to uphold.

The committee also condemned Australia’s “marginalising and stigmatising” postal survey on marriage equality, saying it was “not an acceptable decision-making method”; the low age (as young as 10) of criminal responsibility in some states; and the persistently high rates of Indigenous incarceration, in particular mandatory sentencing laws, and allowing imprisonment for fine defaults.

Australia’s confronting appraisal comes as its asylum policies reach new domestic and international attention.

Australia was last month elected – in an uncontested “clean slate” poll – to the powerful UN human rights council, but the ascension brought criticism of its sustained breaches of international human rights laws.

And refugees and asylum seekers in the Manus Island detention centre are currently embroiled in a standoff with Australian and Papua New Guinea authorities who are attempting to force them to move to new accommodation in the Manus community.

Men have been living more than a week without food, running water, electricity or medicine. The UN high commissioner for refugees has described the situation as a “humanitarian emergency”.

Play Video 0:31 Refugees struggle with no electricity, depleting food and water on Manus Island – video

Several attacks and incidents have marred recent months and the 600 men refusing to leave say they are not safe in the local community. Independent observers say the proposed new housing is inadequate and unfinished.

PNG immigration has given the men until Saturday to accede to moving, or face being forcibly removed.

The Australian prime minister, Malcolm Turnbull, blamed refugee advocates for the impasse, saying they were “encouraging these people not to move”.

“I think that the responsible course of action is to encourage them to comply with the lawful requests and requirements of the PNG authorities,” he said.

Facebook Twitter Pinterest Men store water in bins at the Manus Island detention centre. Photograph: GetUp

GetUp’s human rights co-director Shen Narayanasamy, who spent time inside the now-closed detention centre, said death or serious illness was inevitable in coming days.

“The conditions are appalling and it’s obvious you wouldn’t choose to stay here if you thought you could be safer elsewhere.

“There is a great threat of violence from the PNG army, and the Manus island community has made it very clear it doesn’t want the men to move into accommodation closer to town.”

The executive director of the Human Rights Law Centre, Hugh de Kretser, said Manus remained on a knife edge, and Australia was responsible for protecting those held there.

“Instead, the Australian government has cut food, power and water. These innocent men are in great danger but they have nowhere safe to go. They’re terrified of violence if they stay. They’re terrified of violence if they leave. These men deserve a future, but instead of bringing them to safety, our government is trying to bludgeon them into returning to persecution or moving from one dead-end camp to another.”