Blog post by Maria O’Sullivan, Monash University, and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
The UK government’s New Plan for Immigration sets out proposals which have distinct parallels to the Australian asylum system. Australian migration law is focused on penalising irregular arrivals through the use offshore processing, temporary visas and fast-tracked procedures. The New Plan also incorporates these features (albeit with slightly different requirements). Due to these similarities, it is essential that UK policy makers are fully aware of the difficulties and complexities which have been caused by the deterrent model utilised by Australia.
UK policy makers may be attracted to the ‘Australian Model’ because the Australian government has portrayed the ‘Stopping the Boats’ policy (via the penalisation of unauthorised arrivals) as a success story. However, this is far too simplistic a picture. In this blog post I strongly argue against the use of the proposed measures in light of the experiences in Australia – not only due to the human rights concerns they raise, but also because of their high cost, the legal and bureaucratic confusion they have caused, and the diplomatic relations controversies they have occasioned.
Features of the Australian asylum system – Complexities and Concerns
The central feature of the Australian model is that it is designed to inhibit the operations of people smugglers by stopping people arriving by boat. As part of this, Australia has transferred responsibility for processing and protection to Nauru and Papua New Guinea and has outsourced detention, security and medical services to multinational companies contracted to operate in those offshore places. This is done via bilateral arrangements between Australian and those countries and by contracts between Australia and the relevant corporations. These arrangements have caused much legal confusion and complexity (and attendant litigation).
In particular, Australia lacks proper control over what happens to asylum seekers and refugees in these offshore areas and, as a result, it has been implicated in human rights breaches carried out there. Furthermore, Australia has been required to pay compensation to asylum seekers and refugees held in these centres in response to class actions lodged in Australia alleging a breach of the duty of care owed to those persons (see, for example, Kamasaee v Commonwealth of Australia & Ors, a class action lodged in Australia on behalf of a group of asylum seekers and refugees held in Papua New Guinea, which was settled in 2017 for AUD$70 million).
I therefore argue here that the Australian example clearly demonstrates that extraterritorial processing is not a sustainable, long-term solution for the UK. I set out below some of the primary examples illustrating this point below.
Human Rights Concerns with Offshore Processing
Australia first adopted extraterritorial processing and detention of refugees in 2001 when its former protectorates of Nauru and Papua New Guinea (PNG) agreed to host such facilities in exchange for significant increases in aid. Since then, the centres have been the subject of controversy and litigation. One problem has been the human rights abuses and deaths which have occurred at them. For instance, in 2014, an asylum seeker – Reza Barati – died of head injuries on the way to hospital following protests at the Manus Island Immigration Detention Centre in PNG. The riot prompted an Australian Senate inquiry which concluded that ‘the Australian Government failed in its duty to protect asylum seekers including Mr Barati from harm’.
Due to these significant problems, the UN and many human rights groups have argued that offshore processing as undertaken by Australia breaches a number of human rights laws. For instance, in 2015, the UN Special Rapporteur Against Torture found that numerous aspects of Australia’s policies in PNG violate the right of detainees to be free from torture or ‘cruel, inhuman or degrading treatment’ under arts 1 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:
[T]he Rapporteur concludes that there is substance in the allegations presented in the initial communication, reiterated above, and thus, that the Government of Australia, by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the Regional Processing Centre, has violated the right of the asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment.
The UN High Commissioner for Refugees also stated in 2016 that ‘[t]here is no doubt that the current policy of offshore processing and prolonged detention is immensely harmful’.
This criticism has continued more recently, with the UN High Commissioner for Human Rights Michelle Bachelet raising serious concerns about Australia’s offshore processing regime whilst on a visit to Australia in 2019. In addition, a 2021 report by the Human Rights Law Centre, which focuses on family separation practices, noted that splitting families between Australia and offshore detention locations is not only extremely harmful, but also violates human rights law. It is also worth noting that Objective 13 of the Global Compact on Safe, Orderly and Regular Migration (Marrakesh Compact) calls on states to ‘use immigration detention only as a measure of last resort and work towards alternatives.’
Legal Difficulties and Complexities
To illustrate the problems with establishing and maintaining offshore processing regimes, I wish to examine the legal confusion and complexities which arose in relation to the detention of asylum seekers on Manus Island in PNG. The legal difficulties with establishing offshore processing systems is demonstrated by the 2016 decision of the PNG Supreme Court in Namah v Pato where the viability of a key component of the PNG offshore processing regime was called into question. The case also created further litigation, confusion and tension between Australia and PNG. Moreover, this is an important case to examine because it dealt with a provision of the PNG Constitution which is very similar to the European Convention on Human Rights. As such, it serves as an important reminder to the UK that it will also be subject to constraints in establishing offshore processing.
The Right to Liberty in the PNG Constitution and the European Convention on Human Rights
In the Namah case, The PNG Supreme Court, in a unanimous decision of five judges, held that detention of refugees and asylum seekers in the Australian-funded centres there was in breach of the right to liberty as set out in section 42 of the country’s Constitution, which provides that ‘[n]o person shall be deprived of his personal liberty’, except in defined, limited circumstances.
It is important to note that the Supreme Court did not simply focus on the fact of detention in rendering the detention unconstitutional, it also considered the conditions of detention to be relevant. For instance, in considering the restriction of liberty pursuant to s 38, the Court noted that an additional consideration was whether ‘the conditions of detention are such as to damage the rights and dignity of the detainees or, worse, causes physical or mental suffering.’ Given the similarities between s 42 of the PNG Constitution and article 5 of the European Convention on Human Rights, the UK government has good reason to reconsider any proposal including offshore processing.
The case also illustrates the problems with allocation of responsibility between countries who seek to set up offshore processing arrangements. In Namah, the PNG Supreme Court expressed its opinion that both PNG and Australia were jointly responsible for complying with the ruling. However, the Australian Minister for Immigration argued that the court decision was not binding on Australia and the asylum seekers and refugees in the centre were solely PNG’s responsibility. This created a great deal of uncertainty as to which country was in fact responsible. Ultimately, the detention centre on Manus Island was shut down in October 2017 and refugees transferred to a transit centre. However, the process was extremely concerning with some refugees being removed by force by PNG police. The result has undoubtedly been a rise in diplomatic tensions between the two partners, more recently, the PNG Prime Minister called on Australia to act urgently to remove the remaining refugees from the island.
In addition to the uncertainty and confusion this litigation created, the associated costs have been significant. As mentioned above, class action lodged in Australia on behalf of a group of asylum seekers and refugees held in PNG – Kamasaee v Commonwealth of Australia & Ors – was settled in 2017 for AUD$70 million. This compensated 1,905 asylum seekers and refugees on Manus for being illegally detained and for negligence in the Australian Government’s involvement in their care. Other class actions have been lodged.
Overall, the PNG Supreme Court’s finding as to the unlawfulness of the detention centre and the aftermath demonstrate the legal and political failures of the extraterritorial detention and processing regime in PNG.
Medical concerns in offshore centres – legal complexity and uncertainty
A further complication of establishing an offshore processing regime is that consideration must be given to the medical treatment of persons subject to the arrangement. This has caused controversy and much litigation in Australia because of a blurring of the lines of responsibility for medical treatment and problems with the provision of health care in the offshore centres. For instance, in Nauru and PNG, there have been 14 known deaths in offshore detention (or of people affected by offshore processing) since February 2014, including 7 by known or suspected suicide (see also here). As a result, the issue of medical transfers from Nauru and PNG to Australia has caused a great deal of litigation.
For instance, in Federal Court proceedings in the case FRM17 in 2018, an expert medical professional, Dr Martin gave evidence that the medical transfer process would be inadequate to deal with a deterioration in the applicant’s mental health. He said:
It is… my professional view that there are not proper processes in place within the offshore detention system, both on Nauru and in Port Moresby, to efficiently escalate [the applicant’s] care or provide an emergency medical evacuation should her condition deteriorate.
Because the clinic and hospital on Nauru are not equipped to deal with complex cases, a system has been put in place by the Australian Government for the transfer or, in urgent cases, evacuation of asylum seekers requiring urgent medical treatment. Under this system IHMS [International Health and Medical Services – the multinational contracted to coordinate medical service in Nauru] staff would make medical recommendations using a “request for medical movement” form. This form would describe the patients’ conditions and give medical deadlines by which to fly the patients out.
… I have formed the view that the IHMS medical transfer system is inefficient and driven by political and not medical concerns. While on Nauru, evacuation deadlines which either my staff or I recommended were frequently not met and at times appeared to be ignored by the Australian government and patients were often in constant pain as their conditions worsened. Follow-up requests by myself or my staff would also not be met with substantive responses.
Federal court judges have also expressed concerns about the bureaucratic complexities and delays associated with the previous system. For instance, in the 2018 case EWR v Minister for Home Affairs  FCA 1460, Justice Thawley noted that:
the applicants had no choice but to commence proceedings seeking the relief they did [in the Federal Court] in light of the fact that the Minister did not respond to a single letter that had been written requesting the urgent transfer of the applicants from Nauru and indicating that proceedings would be commenced. As has been noted earlier, those letters included detailed accounts of the conditions of the applicants and was [sic] supported by substantial medical evidence from treating doctors. The Minister also had access to the medical records kept by IHMS which contained extensive records in respect of the medical conditions of the applicants, some of which have been set out above. […] the failure by the Minister to respond to the letters written on behalf of the applicants over an extended period was left unexplained. The failure to communicate any substantive response to these letters fell short of what is expected of a model litigant.
Other bodies have also raised concerns with the bureaucratic delays caused by the previous transfer regime. For instance, the UN High Commissioner for Human Rights has stated:
… information received since 2014 suggest several reported cases of death resulting from the lack of access to health care including medical treatment at the offshore facilities. Many migrants suffer from deteriorating physical and mental health, which seem to have been the result of a lack of appropriate health care, exacerbated by the indefinite and prolonged confinement. A number of migrants also suffer from serious or chronic medical illnesses that require immediate medical attention but have been left untreated for months or even years. Among the myriad of actors that provide services to the migrants, private security and other service providers have reportedly failed to facilitate access to health care in a number of instances.
This is another illustration of the serious problems caused by the establishment of offshore processing and demonstrates that the Australian model is far from a successful one.
Against this background, it is worth noting that the Marrakesh Compact requires states to ‘[r]educe the negative and potentially lasting effects of detention on migrants by guaranteeing due process and proportionality, that it is for the shortest period of time, safeguards physical and mental integrity, and that, as a minimum, access to food, basic healthcare, legal orientation and assistance, information and communication, as well as adequate accommodation is granted, in accordance with international human rights law’ (para 29 f).
Conclusions: The UK should not emulate the Australian Offshore System
What does this mean for the UK proposal to introduce offshore processing?
The above analysis should discourage UK authorities from emulating the ‘Australian model’. I would counsel UK policy makers to look more deeply at the Australian model and the costs, both human and financial, of offshore processing. Indeed, it is important to emphasise that the costs of offshore processing are extraordinarily high. In 2019 the Asylum Seeker Resource Centre, Save the Children and GetUp! published a report titled “At What Cost?”, outlining the human and financial cost of Australia’s offshore system. The report found that offshore detention and processing cost around $AUD 9 billion over the period 2016 to 2020. This means that offshore detention costs Australia approximately $573,000 a person each year.
Despite these costs, the Australian model is held up as a success because it has ‘stopped the boats’, however, the true story is far more complex than this. It is true that there are very few boat arrivals on Australian territory, however, the Australian navy regularly intercepts and pushes back vessels into Indonesian territory.
In light of all these aspects, it must be stressed that the Australian model should not be copied. As myself and Azadeh Dastyari have argued about the PNG situation:
‘the number of legal challenges; the criticism of the extraterritorial processing regime from numerous national and international bodies; and the political tensions caused in PNG and Australia are illustrative of the unsustainability of extraterritorial models more generally as a means of addressing refugee flows. Australia’s approach is no solution to the growing displacement of people globally and should not be seen as an attractive option by any state tackling large numbers of people seeking its protection’.
I would reiterate those concerns and restate this argument: that in 2021, these problems with the Australian offshore regime have not been resolved and, therefore, the Australian ‘solution’ is no solution at all.
 For instance, Australian law firm Maurice Blackburn has commenced a class action in the Australian Federal Court. The class action alleges that people seeking asylum who arrived after 12 August 2012 could not be lawfully taken to an offshore processing centre. In regard to children, women who were over 30 weeks’ pregnant or individuals carrying a blood borne virus, the case argues that transfer to Papua New Guinea and Nauru was not possible because these countries lacked the facilities to accommodate these particular groups of people. Further, it is alleged that it was not reasonably practicable to transfer persons seeking asylum on Manus Island or Nauru, as these individuals would be at risk of harm if transferred there’. See: https://www.mauriceblackburn.com.au/class-actions/current-class-actions/unlawful-detention-of-people-seeking-asylum-class-action/ .
 Dr Nick Martin is an Australian doctor who formerly practiced on Nauru including by directly providing services to patients through IHMS.
 FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection  FCA 63 (9 February 2018) at . See also concerns expressed by Dr Martin in BAF18 as litigation representative for BAG18 v Minister for Home Affairs  FCA 1060 (11 July 2018).
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