This is not a new phenomenon; HRP reported in January 2013 that there had already been several water shortages, and the problem continues today.
For more on water at Manus Island, follow the tags on our blog or read our January 2013 report here.
Asylum seekers have reported that there are again water shortages at the Manus Island detention centre. One asylum seeker claimed that there was no water on 9/12/2013 or 10/12/2013, however HRP has reason to believe there is some bottled water available for drinking.
This is not a new phenomenon; HRP reported in January 2013 that there had already been several water shortages, and the problem continues today.
For more on water at Manus Island, follow the tags on our blog or read our January 2013 report here.
The request: documents regarding advice provided to the Government relating to the compliance of asylum seeker policy with the Refugees Convention, limited to the period between July 2012 and August 2013.
Note: an appeal has been lodged regarding redacted documents and documents withheld.
Document Bundle 1
Document Bundle 2
On Friday I received a release of around 160 pages of advice provided by the Attorney General’s Department (AGD) to the Gillard and Rudd Governments regarding whether Australia’s policy of sending asylum seekers to Manus Island and Nauru complies with Australia’s obligations under the Refugees Convention.
This advice, redacted of all of the juiciest details, provides a solid basis to understand the Government’s strategy for justifying its brutal offshore processing policy’s compliance with international human rights law. The foundations of the government’s argument rest on a single premise; that being a party to various international conventions creates a binding obligation on a state to implement the terms and conditions of the treaty. Australia says that PNG and Nauru being a party to the Convention absolves us of all of our obligations.
This could not be a more hypocritical or incorrect statement.
You see Australia has always maintained that we are a transformational system, whereby the usual steps of signing and ratifying a treaty only bind Australia to refrain from violating the object and purpose of the treaty. We are only bound by the terms and conditions of the treaty if the parliament passes an act of domestic law to transform the character of those terms and conditions, from an international obligation to a legally enforceable domestic one. PNG and Nauru have similar systems, and they haven't made any domestic legal changes in this regard as yet.
As Australia has not transformed the Refugee Convention, the AGD says we are only bound to ensure that refugees are not refouled (sent back) to a country where they have a legitimate fear of persecution based on their race, religion, nationality, membership of a particular social group or political opinion.
This is only partly true. The real object of the Refugees Convention is to provide effective protection for people who have a legitimate fear of persecution based on the above factors, and to ensure they are not sent back to a place where that fear exists.
The key phrase here is effective protection. Protection not just from the country they’re fleeing, but physical protection too. This is where the boats come in and the government’s arguments fall painfully short of making any actual logical sense.
See, the Government maintains that because both PNG and Nauru have signed the Convention, it must ensure all of the rights afforded under it (even though that’s definitely not something Australia is doing despite being a signatory). PNG has promised to withdraw its reservations to the Refugee Convention (it hasn’t); both PNG and Nauru have ‘guaranteed’ they will ensure humane conditions of processing (they haven’t); and international inspectors continue describe conditions as inhumane, and bemoan the complete lack of processing over a year after the centres were re-established. It doesn’t really seem to matter whether PNG or Nauru have sought to enact substantive human rights guarantees (which they haven’t) because conditions on the ground are so bad. Not very effective protection so far.
In the spirit of the Refugees Convention, the Laws of the Sea and human rights, some might well argue that Australia has an obligation, moral if not legal, to prevent drownings at sea along established routes to asylum on its shores. However, any people rescued should have a right to claim asylum of their rescuers. This comes from a well-established principle that states asylum can be claimed from any official of the receiving state. Under international law, you can simply turn up the border and ask for protection from anyone in a uniform, and that country would be obliged to assess your claim.
This in turn comes from the even more established rule that there is no queue for refugee resettlement, and that protection should be provided wherever the refugee happens to be. Thousands of Syrians alone are being granted asylum every day in countries like Jordan, Iraq, Iran, Lebanon and Turkey, yet they’ve only been fleeing persecution a short time. This doesn’t mean they’re any more or less in need of protection than someone who has been languishing in a refugee camp for decades. In countries like Jordan and Lebanon, there are millions of long-term refugees too. The core obligation of the Refugees Convention is being fulfilled by those countries, which are providing protection to any person with a legitimate fear of persecution who presents themselves to a national or UNHCR official.
So the solution, if the problem really is saving lives at sea (as the government mentioned on average once every ten pages of this FOI release) is simple: let’s buy asylum seekers EPIRBs. EPIRBs are electronic maritime safety beacons that send a distress signal via satellite to the Australian Maritime Safety Authority, whose purpose is to ensure safety and come to the aid of stricken ships.
EPIRBs also have inbuilt UHF marine radios that blast a distress signal over the airwaves to nearby vessels. They last two days once activated, and cost between $200 and $600. It’s the law in Australia that all vessels more than 2 nautical miles offshore must carry a 406MHz distress beacon (an EPIRB is such a beacon).
It’s crazy, when you think about it, that we’re locking men, women and children up in atrocious facilities in places with endemic malaria and a distinct lack of fresh water, at a cost of $570,000 per person per year (over $1bn for 1728 people). Why not save $28.5m (assuming 80 passengers) by investing in one EPIRB per asylum seeker boat that leaves Indonesia instead of paying for cruel and unnecessary detention?
Better yet, the government could create legitimate pathways to asylum, but I won’t dwell on that distant possibility - I’m depressed enough about this policy as it is and couldn’t bear the disappointment.
So that’s exactly what I propose to do. Along with one other measure: a Facebook app that allows asylum seekers to register a dangerous journey. It might be Tripoli to Malta, Tunisia to Lampedusa or Indonesia to Christmas Island, or even along a perilous border. Users will tell the app where they are, where they’re going and when they intend to get there. They will have an option to leave a voice or text message, and an emergency contact’s phone number and email address.
If they don’t check in within three days, we’ll send the user a reminder. The user then has four more days to check in. If they still haven’t done so, a message will be sent to the emergency contact informing them of the intended travel plans and stating that they should try to make contact with the person immediately. If a message has been left, that will also be supplied.
We’re also aiming to develop a ‘go’ button a user can activate when they actually leave on their dangerous trip. If they know how long the journey will take, they will have the option to alert authorities to a possible emergency if they don’t make it on time. For established asylum routes, the app will pre-fill a minimum time in which a person can alert authorities to ensure the system is not abused.
Two simple measures. If we were to have given one EPIRB to every asylum boat that has arrived in the last six months (around 50), it would have cost $15,000 (at $300 per unit) and could have saved over a hundred lives.
Altogether the app will cost about $15,000 to create, but it could save countless lives and help reunite families separated by wars and disasters.
So far we’re at around a $999,970,000 dollar saving for the year in offshore detention alone, and we’re actually saving lives at sea.
My interpretation of the problem is simple: asylum seekers will always try their absolute hardest to get effective protection and the chance at a decent life, and will do anything in their power to make it happen. Including getting on an unsafe boat. Even mandatory offshore detention, an incredibly harsh deterrent, has failed to prevent the boats.
If we accept that asylum seekers will do anything to get to a place where they can claim asylum, why not make the journey safer?
I don’t condone people smuggling, in fact I think those who put vulnerable people on a leaky boat knowing it probably won’t arrive at its destination are despicable murderers and profiteers. But they provide a service that doesn’t otherwise exist. There is one, very limited pathway through the UNHCR, which resettles under 100,000 refugees per year out of a total of over 25 million people under its protection. So really, there is no queue; it’s a lottery.
My only problem is this: s73.3A of the Commonwealth Criminal Code prohibits “supporting the offence of people smuggling.” If you provide support or resources to a people smuggler, or any other person (i.e. an asylum seeker) or organisation, to engage in conduct constituting the offence of people smuggling.
I’m concerned that this hare-brained scheme to improve the safety of journeys to asylum would fit this description, even though that is not at all my purpose. My intention to crowd-fund the program could also make people who support the plan financially guilty of supporting people smuggling.
Kinda ridiculous right?
Advice is being sought from the Attorney General’s Department and refugee lawyers. If there is no real chance of being prosecuted for supporting people smuggling, Humanitarian Research Partners will be launching these campaigns next year.
This was one FOI request we simply couldn't follow through with. We requested access to documents regarding advice provided to the government on compliance of asylum seeker policy with the Convention on the Rights of the Child between July 2012 and October 2013.
The response: this would involve over a thousand documents containing 16,000 pages of advice.
Given these sixteen thousand pages, and the other 80,000 or so pages of advice we learned about earlier this year (regarding the compatibility of asylum seeker policy with international human rights law), we have one more question: Exactly how much time and money is the government spending trying to justify the lawfulness of its detention policy that all human rights advocates agree is as illegal as it is inhumane?
I had lunch with some of my first asylum seeker clients today. They’re a lovely family. I'll call them Cathy, Sam and Simon (not their real names). Sam came out to Australia first, by plane, for a conference. His younger brother, Simon, came second and by boat and was in detention on Christmas Island for about seven months. Their mum, Cathy, came by plane after Simon had left their home country but before he was released from detention. For the three months she was in Australia before Simon arrived in Canberra, she worried about him beyond belief.
I was back in Canberra for the national refugee rights convergence last Monday, and was wearing a shirt with ‘It is legal to seek asylum’ plastered over the front in vibrant orange. When Simon’s fiancée and her sister arrived (gorgeous, intelligent, well spoken ladies who are also refugees), I was introduced. The ladies noticed my shirt, and during the ensuing conversation Simon remarked that he thought I work with refugees because I 'feel sorry for them'.
While this is true, I and the thousand-odd others who turned up to protest outside parliament on Monday weren't there because we feel sorry for refugees. We showed up because we're angry, and we feel it is our duty act on behalf of those who are expelled from their homes by necessity and removed from our society through no fault of their own, but by a mere political fancy.
Indulge me while I first look at this from a high level of abstraction. I believe the world as we know it simply exists. There is no rhyme or reason for our existence, and human beings happen to have evolved and conquered the elements and our environment to build contemporary society. As I stare out the window on the 'perpetual sunset special' (there's about a month a year where the direct flight from Canberra to Perth chases the sunset for close to four hours), I have been pondering what this fortuitous existence means. In the absence of a higher power dedicated to humans that pre-determines our paths in life or favours one side or another in any given conflict (which I find highly improbable) the resounding conclusion to be drawn is that there is nothing separating one human being from another apart from circumstance and language.
Following this logic, nation states have evolved not as a necessary consequence of our pre-determined existence, but purely as a construct of human organisation. Although it is convenient to organise society in such a way, it is important to recognise that as a construct that is inherently exclusive, the nation state should seek to be at harmony with other nation states to ensure our fellow human beings don't fall through the cracks.
This being said, I don't understand the need for one state to conquer another. I find it troubling that states would want to fight each other, and don't really understand why, in this age of enlightenment, anyone would volunteer to fight on behalf of one state against another. War for the sake of anything is, in every instance and without exception, a senseless waste of human life. Perhaps in a post-state era we will recognise that all that separates us is our minds. Everything else we share.
To come back to my point, I'm not a refugee advocate because I feel sorry for refugees, although I certainly feel sorry for those whom we imprison without due cause or process. I am outraged that our government differentiates between human beings based on their mode of travel. I am even more outraged that we incarcerate innocent men, women and children who have fled conflict, persecution and natural disaster in search of safety and a better life.
Cathy, Sam and Simon are upstanding permanent residents of Australia,. Their English has improved beyond belief since I last saw them, and their optimism and zeal for living life to its fullest is inspirational. Simon has a job; he got one within days of arriving in the community. Sam has serious mental health problems due to torture and trauma in his home country, and Cathy takes care of him. They all participate in community activities and volunteer their time for those less fortunate than themselves.
They invited me over for lunch as soon as they heard I would be in town, and it was a great pleasure to see them and indulge in Cathy's amazing cooking. We laughed together over a glass of wine as we caught up on the last year's events.
After a while the conversation circled back to refugee politics. Simon heard that I had been banned from detention for a while, and asked about the conditions in Darwin facilities. I explained what I had seen, and he was aghast. He told me more about the conditions at Christmas Island, and paused as he re-lived his memories. He had hoped that in the two years since he was in detention things might have changed. He was disappointed to hear asylum seekers are still being addressed by number, and wasn't surprised that young children continue to witness attempted suicides behind bars.
Simon is one of the lucky 20% of asylum seekers who have spent more than six months in detention and do not suffer chronic mental health problems, although his elder brother Sam has not been so fortunate; he is plagued by depression, anxiety and post-traumatic stress disorder. I was happy to see him doing better when I saw him on this occasion.
Detention of vulnerable people who have committed no crime, most of whom have suffered torture or trauma, is traumatising in and of itself. Some doctors in offshore facilities, including the former head of psychology at Nauru during the first pacific solution, have refused to take administer care to asylum seekers as they feel it would make them complicit in human rights abuses.
In a recent report in the Journal of Medical Ethics (D Holmes and A Perron, Violating ethics: unlawful combatants, national security and health professionals), international experts concluded that medical personnel at the infamous Camp X-ray at Guantanamo Bay have been complicit in acts of torture. Although they didn't actually waterboard, electrocute, beat or humiliate the prisoners themselves, they facilitated these heinous acts by treating the victims and keeping them fit enough to be detained at the facility.
I'm not accusing the Australian government of such acts of brutality, but I am confident in my claim that the mental abuse inflicted by detention amounts to cruel, inhuman and degrading treatment (the international definition of torture). I am also confident in my claims of gross medical negligence, collective punishment, arbitrary detention, and other violations of Australia's core human rights obligations. I make these claims because have seen the effects. The UN High Commission for Refugees agrees [Manus Island and Nauru].
If we accept my earlier position that we humans fortuitously exist on our blue planet without cause or guidance, we must conclude that the only thing that defines us as human beings is our shared humanity. If we cannot work together to protect each other from harm, what are we?
If we tolerate a politic that purposely excludes vulnerable human beings based on arbitrary distinctions of place of birth or mode of travel, are we any better than those who order or carry out torture in the name of Border Protection? Or are we just as complicit as the doctors who enable it to continue?
Note: This piece was written on Tuesday 19 November 2013 and posted a week later.
Please sign our petition to the Government of Western Australia to allow asylum seeker kids to attend public schools, as they do across the country:
Listen to the ABC Radio National PM broadcast Fight for Asylum Seeker Children to Attend Public Schools in WA to hear about some of the problems facing these vulnerable children in our community.
UPDATE 22 November 2013:
The West Australian Government has signed a deal with the Department of Immigration to allow asylum seeker children on Temporary Protection Visas (TPVs) to attend public schools. Unfortunately, no progress has been made for the vast majority of asylum seeker children in Western Australia who are either in community detention or on bridging visas. These children will continue to be excluded from the public education system altogether.
WA is the only State in the country denying asylum seeker children access to public schools. All other States and Territories have allowed asylum seekers to attend public schools for at least the past 12 months.
We wrote to State Minister for Education, Hon. Peter Collier MLC, on the 15th of January 2013 to let him know about the problem. At that time we knew of several 16 year olds who weren't attending school. Minister Collier said his government was under no obligation to to provide education to these children because there was no deal between WA and the federal government. Therefore, he was not going to arrange any eduation for them. The real reason Minister Collier hasn’t progressed this issue is because WA is holding out for a better funding deal under Gonski (Better Schools) reforms. So, it was all about the money and not about the right to education.
This is unacceptable politicisation of the fundamental human right to education.
There was a chance of getting a deal between WA and the federal government before the recent federal election. Now it’s been dropped, and this state government is hoping nobody notices.
We notice the Minister’s silence on this issue. We also notice that some kids are attending TAFE, while others have to travel long distances to get to school. And then some have to change to a public school when their permanent visa arrives. Some aren’t going to school at all.
In the meantime, some asylum seeker children (including unaccompanied minors) are going to private schools, paid for either by the federal government or the generosity of individual schools themselves.
It is mandatory for every child in WA to attend school or vocational training up to the age of 18. So why is the government preventing some asylum seekers of school age from getting an education?
Minister Collier, we can do better.
We need your support. In signing this petition, you are sending a clear message to Minister Collier and the State Government of WA, that we all support every child's right to education. It’s about time we signed up to the same deal as the rest of the States and Territories.
All Western Australians value a fair education system, and human rights must come before money and politics.
Minister Peter Collier, we petition you to allow asylum seeker children to attend public schools before the start of the 2014 school year.
It's not about money. It's about these vulnerable children's future.
If you’d like to understand more about this issue - here are more details of what the absence of a public school funding deal means for asylum seeker children in WA:
1. Despite the government's claims, several refugee advocates and social workers have come in contact with asylum seeker children who are under 18 and are not attending school. While most kids are in full time school, some are attending part time TAFE english courses, and some aren't getting an education at all.
2. Private schools, as a general rule, do not have the same capacity to help vulnerable kids. Nor do they have the same systems in place to assist with English as a Second Language training, although some run excellent programs.
3. Unlike in the public system, there is no 'catchment rule' for private schools. This means that you can live anywhere (say Beechboro) and attend a school anywhere else (i.e. Swanbourne or Applecross). As asylum seeker housing is completely dependent on what's available on the open market, there is no guarantee that kids will be close to their school. Some kids are travelling alone over an hour each way on public transport to reach their schools.
4. Denying asylum seeker kids the right to attend public schools like all other children is a discriminatory measure that further isolates them from society.
Help us petition the State Government of WA to agree on a funding deal with the Commonwealth and allow asylum seeker children access to public education.
For more information about asylum seeker access to public schools in Western Australia, check out the Humanitarian Research Partners website.
Our original letters to the WA Minister for Education Hon. Peter Collier MLC, including his response, are below.
This petition is in partnership with Amnesty International Australia, the WA Refugee Rights Action Network, the State School Teachers' Union of Western Australia and other organisations.
Send us an email to register your organisation's support.
On 17 October, we posted about a freedom of information request regarding pre-transfer screening procedures that apply to help a DIBP officer determine whether an asylum seeker can be sent to Manus Island or Nauru for 'processing'. The original release is available here.
At that time, DIBP released a 99 page folio that had 70 out of 99 pages redacted. We appealed the result, and the Department reviewed the level of redaction. This time, only 12 pages have been redacted. The decision maker found that the information should not have been redacted to begin with.
We think it's strange that we have to appeal to get a reasonable release of documents under the FOI procedure, especially when most appeals are successful. We are concerned that the government has directed DIBP to obfuscate the release of all documents requested under FOI regarding asylum seekers.
This conclusion is not a baseless accusation; it is drawn from a register of 23 requests made over the past eight months, and the results and communications we have received about those requests. It is also based on our Director being banned from detention visits after exposing human rights abuses that have still not been addressed by the government. We also talk to other human rights advocates, informally with departmental officials and with third party contractor staff (i.e. Serco, Transfield, G4S, IHMS, Salvation Army, Save the Children...). They all say a lid has been firmly shut on the release of information, despite the Freedom of Information Act creating a binding obligation on the government to do the exact opposite.
All of this begs a question: why? Why is the government clamping down on the release of information?
Quite simply, because it's damaging for Australians to know how the government is directing asylum seekers be treated.
Serco has finally responded to a formal complaint lodged in August 2013 regarding conditions at the Wickham Point Immigration Detention Centre. A report was published with the New Matilda and on the HRP website, for which HRP's Director of Human Rights Advocacy was banned from visiting detention.
Serco conducted an investigation, and found that the report was accurate in some ways. It is concerning that the investigation does not seem to have extended to all parts of the complaint, but only the 'verified' part that some Serco officers were calling asylum seekers (including children) by serial number, not by name. As shown by this investigation, policy and practice do not always coincide.
It is extremely disappointing that the only action taken against the officer who was found to have breached human rights standards by addressing asylum seekers by number and not name was given an official warning. No advice was given regarding any institutional action to arrest this dehumanising practice that several human rights advocates have pointed out is a systemic problem at Wickham Point IDC.
HRP has requested a copy of the internal investigation's findings.
HRP submitted a freedom of information request regarding the compliance of offshore asylum seeker processing policy with s4AA of the Migration Act 1958 (Cth), which reads as follows:
Detention of minors a last resort (1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.
(2) For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination.
The Government has not sought advice from the Attorney-General's department regarding whether offshore processing violates this principle - see attached FOI release.
112 Fire Extinguishers were ordered in February 2013, and weren't delivered until April. This is in spite of Australia knowing fire suppression systems were inadequate when the centre was re-opened in 2012.
Treated water reserves were as low as 30,000L and were often at 40,000L for the day at Nauru RPC. In a previous FOI release obtained by Humanitarian Research Partners, it was revealed that the government has set a target of having 200L of water available per person, per day. 30,000L of treated water between 1000 asylum seekers and hundreds of staff falls well short of this target.
Former Immigration Minister Tony Burke's office sent us this letter in September 2013 saying there were no water shortages at RPCs. This FOI release proves that statement was inaccurate, and explains why the Minister's office said that bottled drinking water was always available to asylum seekers and staff.