The Manus Island Regional Processing Centre – one of the two key sites of Australia’s offshore immigration detention regime – will close. A date is not set, nor any arrangement confirmed for resettling the 854 men still detained there.
In April 2016, the Papua New Guinea Supreme Court found the detention arrangement on Manus Island was unconstitutional. PNG Prime Minister Peter O'Neill immediately asked Australia to make alternative arrangements for the detainees, implying Australia is responsible for what happens to them.
It has taken more than three months for the two governments to jointly announce the centre will close. But the detainees’ fate is now even more uncertain.
Where will the detainees go?
Australia’s immigration minister, Peter Dutton, confirmed “no-one” detained on Manus Island “will ever be settled in Australia”. Instead, the Australian government says the detainees must either resettle in PNG or return to their countries of origin.
Australia’s continued insistence that it will never resettle asylum seekers arriving by boat ignores practical realities. PNG is unable to provide a safe environment for refugees. Australia has not made any suitable third-party arrangement. The “Cambodia solution” has been a costly failure: that impoverished country has been unable to provide social protections for refugees.
Australia’s argument that refugees and asylum seekers can go back to their country of origin risks their return to persecution. The prohibition on refoulement – the return of refugees to the site of persecution – is the fundamental principle of international refugee law.
What does human rights law demand?
Asylum seekers arriving by boat are often characterised as “queue-jumpers”, trying to enter through “the back door”. It bears repetition that, in fleeing persecution in their home countries, refugees are asserting their legal right to seek asylum.
International law does not give asylum seekers or refugees standing to hold countries accountable for human rights violations. Australia exploits this impunity to maintain practices that violate international law.
Yet despite their incapacity to bring claims against Australia, asylum seekers detained offshore are entitled to a range of universal rights and freedoms. These include:
freedom from torture and inhuman or degrading treatment;
freedom from punitive detention;
judicial oversight of their detention;
freedom from forced deportation;
access to quality health care, education and work; and
special protection for the rights of children and families.
Australia has demonstrated its willingness to ignore or reject international criticism of its violation of these rights.
A reorientation in asylum seeker policy?
Only hours before the Manus centre closure was announced, protesters interrupted Prime Minister Malcolm Turnbull’s speech to CEDA. They demanded:
For God’s sake, Malcolm, close the fucking camps.
Rallies are planned around Australia this month to call for an end to mandatory detention.
Pressure on the government is building from all quarters. Risking prosecution under anti-whistleblower legislation, 103 current and former Manus Island and Nauru staff have publicly demanded closure of the centres. They argue the evidence is clear: Australia’s practice is systematically breaking those subject to it.
Following the leaking of the Nauru files this month, the UN High Commissioner for Refugees (UNHCR) has called for the removal of all detainees to humane conditions. Migration experts argue the only humane option is to close the centres and process asylum claims in Australia.
Critics have noted the gulf between political responses to the abuse scandal in Northern Territory youth detention facilities – which immediately triggered a royal commission – and the 2,116 reports detailing abuse, assault, self-harm and inadequate living standards suffered by detainees on Nauru.
Key NGOs argue the royal commission into institutional child sexual abuse must extend its inquiry to Nauru.
Is the government searching for an alternative to offshore detention as public outrage grows? If so, it seems certain it will never admit as much.AAP/Eoin Blackwell
What the Manus closure should mean for Nauru
It is essential that Australia comes to acknowledge the harms it has inflicted on thousands of vulnerable people who have committed no crime. In the short term, though, the most urgent priority must be the proper processing and appropriate resettlement of those still detained on Manus Island and Nauru.
The Manus closure was perhaps inevitable once the Supreme Court found PNG lacked authority to detain asylum seekers transferred there by Australia. No such judgment has been forthcoming in Nauru, but evidence reveals the suffering of people detained there under Australia’s authority.
It will be impossible for Australia to maintain its hardline approach to refugees indefinitely while representing itself as a responsible international citizen.
The first step in a reorientation of asylum policy must be the abandonment of offshore processing. Until this occurs, Australia cannot take responsibility for a process that it has shaped, or its consequences.
The major parties are largely united on refugee policy, although cracks are appearing. They are locked into practices that assume, despite a lack of evidence, offshore processing of some asylum seekers deters others others from attempting the journey.
The government also refuses to acknowledge that onshore processing of asylum claims is not a guaranteed path to permanent settlement in Australia. Regionally focused alternative strategies have been proposed. These ought to be negotiated among regional partners with the support of the UNHCR.
The announcement that the Manus centre will close provides an opportunity for Australia to assess alternatives. Political leaders could choose to open a new public dialogue to bring about reform. Whether they have the will to pursue such a process or not, they have the power to bring Australian law and practice into line with our international legal obligations.
Authors: Amy Maguire, Senior Lecturer in International Law, University of Newcastle