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«Legal and Constitutional Affairs References Committee Incident at the Manus Island Detention Centre from 16 February to 18 February 2014 December ...»

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The Senate

Legal and Constitutional Affairs

References Committee

Incident at the Manus Island Detention Centre

from 16 February to 18 February 2014

December 2014

 Commonwealth of Australia 2014

ISBN 978-1-76010-103-9

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0

Australia License.

The details of this licence are available on the Creative Commons website:

http://creativecommons.org/licenses/by-nc-nd/3.0/au/.

This document was produced by the Senate Legal and Constitutional Affairs Committee secretariat and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

ii Members of the committee Members Senator Penny Wright (AG, SA) (Chair) Senator the Hon Ian Macdonald (LP, QLD) (Deputy Chair from 10.07.2014) Senator Catryna Bilyk (ALP, TAS) (from 01.07.2014) Senator Jacinta Collins (ALP, VIC) (from 01.07.2014) Senator the Hon Joe Ludwig (ALP, QLD) Senator Linda Reynolds (LP, WA) (from 01.07.2014) Former members Senator Zed Seselja (LP, ACT) (Deputy Chair until 30.06.2014) Senator Gavin Marshall (ALP, VIC) (until 30.06.2014) Senator the Hon Lisa Singh (ALP, TAS) (until 30.06.2014) Participating members Senator Sarah Hanson-Young (AG, SA) Secretariat Ms Sophie Dunstone, Committee Secretary Mr Matthew Corrigan, Principal Research Officer Ms Zoe Hutchinson, Principal Research Officer Mr CJ Sautelle, Acting Principal Research Officer Mr Jarrod Jolly, Senior Research Officer Mr Josh Wrest, Research Officer Ms Jo-Anne Holmes, Administrative Officer Suite S1.61 Telephone: (02) 6277 3560 Parliament House Fax: (02) 6277 5794 CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au iii iv Table of Contents Members of the committee

List of abbreviations

Recommendations

Chapter 1 Introduction and background

Referral of the inquiry

Conduct of the inquiry

Acknowledgements

A note on terminology

Report structure

Background

Other relevant inquiries and investigations

Chapter 2 Administrative arrangements at the Manus Island Regional Processing Centre

Role of PNG authorities in relation to the centre

Contractual arrangements between the department and service providers.......... 21 Role of Australian departmental officials at the centre

Employment of local workers by contracted service providers

Adequacy of staff training for service provider employees

Chapter 3 Conditions and service provision at the Manus Island RPC

Size and composition of the population of asylum seekers

v Physical facilities and environment at the RPC

Concerns relating to the adequacy of healthcare services

Security infrastructure at the centre and related issues

Tension between PNG locals and asylum seekers

Chapter 4 Refugee status determination processing and resettlement arrangements...... 55 Introduction

Refugee status determination processes in Australia

Current agreement between Australia and Papua New Guinea

Refugee status determination processes in PNG

Encouragement of asylum seekers to return their country of origin

Resettlement arrangements for refugees

Chapter 5 Sequence of events leading up to and during the incident of 16 February to 18 February 2014

Introduction

Overview of events leading up to and during the incident from 16 to 18 February 2014

Events leading up to 16 February 2014

Meeting on the afternoon of 16 February 2014

Protests and breakout of asylum seekers on 16 February 2014

Events of 17 and 18 February 2014

Conclusion

Chapter 6 Response to the incident and subsequent developments

Response of service providers and immediately after the incident

vi PNG criminal investigation

Response of the department and the minister following the incident................ 107 Transition to Transfield Services and subsequent developments

Other developments in operations at the Manus Island RPC

Chapter 7 Australia's human rights obligations and duty of care responsibilities.......... 127 Introduction

Australia's international human rights obligations

Scope of Australia's human rights obligations in relation to individuals detained at Manus Island

Human rights assessment of the incident at the MIDC between 16 February and 18 February 2014

Duty of care responsibilities under domestic law

Chapter 8 Conclusions and Recommendations

Contributing factors leading to the violence of 16-18 February 2014............... 146 The events of 16 to 18 February 2014

Responses to the incidents by Australian and PNG authorities

Responsibility of the Australian Government in relation to the centre.............. 151 Ongoing issues in relation to the Manus Island RPC

Dissenting report from Government Members of the Committee............. 157 Additional Comments from the Australian Greens

Appendix 1 - Public submissions

Appendix 2 - Public hearings and witnesses

Appendix 3 - Tabled documents, answers to questions on notice and additional information

–  –  –

ALA Australian Lawyers' Alliance CAPS Claims Assistance Provider Scheme CCTV Closed Circuit Television CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CRC Convention on the Rights of the Child DIBP Department of Immigration and Border Protection DIAC Department of Immigration and Citizenship ECO Emergency Control Organisation HRP Humanitarian Research Partners HRLC Human Rights Law Centre ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICSA Papua New Guinea's Immigration and Citizenship Service Authority IHMS International Health and Medical Service IMA Irregular Maritime Arrival IOM International Organization for Migration IRT Incident Response Team JATF Joint Agency Task Force MOU Memorandum of Understanding OSB Operation Sovereign Borders

–  –  –





SSO Safety and Security Officer (job title of G4S's general security officers) STTARS Survivors of Torture and Trauma Assistance and Rehabilitation Service

–  –  –

8.26 The committee recommends that the Australian Government ensure an adequate and effective investigation into the criminal assaults perpetrated against individuals detained at the Manus Island Regional Processing Centre during the events of 16 to 18 February 2014, including by assisting the Papua New Guinea authorities in any ongoing investigations and facilitating the taking of witness testimony from individuals present at the incident who are now in Australian territory.

Recommendation 2

8.35 The committee recommends that the Australian Government acknowledge its responsibility to respect, protect and fulfil the human rights of individuals detained at the Manus Island Regional Processing Centre.

Recommendation 3

8.39 The committee recommends that, in accordance with the right to an effective remedy and right to health in international human rights law, the

Australian Government:

• acknowledge and take responsibility for violations of human rights in relation to the incident at the Manus Island Regional Processing Centre from 16 to 18 February 2014; and

• provide compensation to those who have suffered human rights violations, including to Mr Reza Barati's family and to asylum seekers who were injured during the incident.

Recommendation 4

8.40 The committee recommends that the Australian Government ensure that all asylum seekers injured in the violence at the Manus Island Regional Processing Centre from 16 to 18 February 2014 receive adequate professional assistance, including medical treatment, full rehabilitation and mental health services, as well as independent legal advice.

Recommendation 5

8.49 The committee recommends that, in the interests of transparency and accountability, the governments of Australia and Papua New Guinea take measures to facilitate appropriate access to the Manus Island Regional

Processing Centre, including:

–  –  –

• permitting qualified lawyers, including lawyers certified to practice in Australia, access to the centre in order to meet with transferees and provide legal assistance;

• allowing the Australian Human Rights Commission to regularly inspect the centre and meet with centre staff and transferees; and

• permitting journalists to visit the centre and speak freely with centre staff and transferees.

Recommendation 6

8.52 The committee recommends that Transfield Services and the Australian Government ensure that service provider staff employed at the Manus Island Regional Processing Centre be provided with sufficient workplace training to perform their roles, in line with the standards applicable to employees working in detention environments in Australia, and accounting for the particular difficulties associated with working in remote conditions.

–  –  –

1 Journals of the Senate, 26 June 2014, p. 1017; Journals of the Senate, 2 September 2014, p. 1390; Journals of the Senate, 28 October 2014, p. 1629; Journals of the Senate, 3 December 2014, p. 1965.

2

1.3 On 5 December 2014, the committee tabled a short interim report stating its intention to present a final report by 11 December 2014.2 Conduct of the inquiry

1.4 In accordance with usual practice, the committee advertised the inquiry on its website. The committee also wrote to relevant organisations inviting submissions due by 2 May 2014. The committee received 37 submissions. These are listed at Appendix 1.

1.5 The committee held public hearings in Canberra on 10, 11, 12 and 13 June and 11 July 2014. Details of these public hearings are at Appendix 2.

Site visit to Manus Island Regional Processing Centre

1.6 Early in the inquiry, the committee formed the view that making a site visit to Manus Island Regional Processing Centre would greatly benefit the inquiry by enabling senators to inspect the centre and gain a firsthand appreciation for conditions and other factors that may have contributed to the incident in February 2014.

1.7 Overseas travel is not standard practice for Senate committees both in terms of available resources but more specifically because an Australian Senate committee does not have any powers to conduct proceedings outside of Australia. Given the incident that was the subject of this inquiry, this committee was also particularly sensitive to the limitations of parliamentary privilege outside of Australia and the lack of any protection for witnesses located and evidence given extraterritorially.3

1.8 On account of the committee's inability to make a site visit to the centre under its own powers, the committee sought the support and assistance of the Commonwealth Government to do so. On 28 April 2014, the committee wrote to the Prime Minister, the Hon Tony Abbott MP, as well as the Minister for Immigration and Border Protection, the Hon Scott Morrison MP, and the Minister for Foreign Affairs, the Hon Julie Bishop MP, seeking the government's approval and assistance.

1.9 The committee did not receive any response.

Acknowledgements

1.10 The committee would like to thank the organisations and individuals who contributed to this inquiry. The committee appreciates that for many witnesses who were present at Manus Island Regional Processing Centre at the time of the incident it was difficult, and at times distressing, to recount their experiences for the committee.

The committee has benefited from their willingness to do so and expresses its particular gratitude to them.

–  –  –

A note on terminology

1.11 The Australian Government refers to the immigration detention facility on Manus Island as the Manus Island Regional Processing Centre (Manus Island RPC).

The facility is also commonly referred to as Manus Island detention centre, or the Manus Island Offshore Processing Centre (OPC). This report generally uses the term Manus Island RPC, except where directly quoting from submissions and witnesses and these have referred to the centre by another name.

1.12 Individuals held at the Manus Island RPC have been described by stakeholders to the inquiry as 'transferees', 'detainees' and 'asylum seekers', with these terms sometimes used interchangeably. All three usages appear in this report, but ultimately describe the same groups of individuals; those who have arrived in Australia by boat without a visa, and who have been subsequently flown to Papua New Guinea (PNG) and detained at the Manus Island RPC.

Report structure

1.13 The remainder of this chapter provides background on the policies of mandatory detention in Australia and offshore processing as well as a summary and timeline of the incident which occurred at Manus Island RPC between 16 and 18 February 2014.

1.14 Chapter 2 outlines the administrative arrangements in place at the Manus Island RPC, including the role of PNG authorities, Australian authorities and service providers at the centre.

1.15 Chapter 3 examines evidence received about the physical conditions for transferees at the Manus Island RPC and the services provided at the centre.

1.16 Chapter 4 explores the arrangements in place for refugee status determination and resettlement for individuals at the Manus Island RPC.

1.17 Chapter 5 describes the sequence of events that led to the violent unrest at the Manus Island RPC, and canvasses the chronology of what occurred during the events of 16 to 18 February 2014.

1.18 Chapter 6 outlines the responses to the incident at the Manus Island RPC, including the response of the department and the minister, and criminal investigations in PNG. Subsequent developments at the centre in the months since the events occurred are also discussed.

1.19 Chapter 7 discusses the human rights and duty of care obligations of the Australian Government in relation to the Manus Island RPC.

1.20 Chapter 8 contains the committee's conclusions and recommendations in relation to the incident itself and the ongoing operation of the Manus Island RPC.



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