The Dangers of Offshore Processing – Questioning the Australian Model

The ‘Australian Solution’ of offshore processing has been in the news recently due to the leaking of a report which shows that the UK Home Office is proposing to process migrants off the UK mainland. Unsurprisingly, this has led to concerns from human rights groups and other commentators. For instance, Amnesty International has called the proposal ‘entirely immoral and inhumane’.

In this paper I strongly argue against the use of offshore processing in light of the experiences in Australia.

The hallmarks of the Australian model are that it is designed to inhibit the operations of people smugglers by stopping people arriving by boat and it is based on outsourcing protection and processing obligations to a third state.

But this comes with complications. In particular, Australia lacks proper control over what happens to refugees in these offshore areas and, as a result, it has been implicated in human rights breaches carried out at the centres. 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 to those persons.

I therefore argue here that the Australian example clearly demonstrates that extraterritorial processing is not a sustainable, long term solution for the UK.

Human Rights Concerns with Offshore Processing

Australia first adopted extraterritorial processing and detention of refugees in 2001 when its former protectorates of Nauru and 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 in the offshore processing centres. 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 (PDF 720KB) 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.

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 that dealt with a provision of the PNG Constitution which is very similar to the European Convention on Human Rights (PDF 1.3MB). 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 in that country was unconstitutional under the right to liberty set out in section 42 of the PNG Constitution. This 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.’

This case provides a very good reason for the UK government to reconsider establishing any sort of offshore processing system as similar protections to that of s 42 of the PNG Constitution are set out in article 5 of the European Convention on Human Rights.

The case also illustrates the problems with the allocation of responsibility between countries who seek to set up offshore processing arrangements. The PNG Supreme Court confirmed in its ruling in Namah that in its opinion 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. Therefore, there was a great deal of uncertainty and confusion 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. Some were removed by force by PNG police.

More recently, the offshore regime has caused significant diplomatic tensions between Australia and PNG, with the PNG Prime Minister calling on Australia to act urgently to remove the remaining refugees from the island.

Therefore, the PNG Supreme Court’s finding as to the unlawfulness of the detention centre and the aftermath demonstrates the legal and political failure of the extraterritorial detention and processing regime in PNG.

In addition to the uncertainty and confusion that this litigation created, the costs associated with litigation have been significant. A 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.

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.

Despite the fact that the Australian model is held up as a success because it has ‘stopped the boats’, the true story is far more complex than this. Whilst it is true that there are very few boat arrivals on Australian territory, the Australian navy regularly intercepts and pushes back vessels into Indonesian territory.

Furthermore, 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?' (PDF 3.8MB), 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.

Thus, in light of all these aspects, the Australian example is not a model to be copied. As myself and Azadeh Dastyari argued in a journal article 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 2020, these problems with the Australian offshore regime have not been solved and therefore the Australian ‘solution’ is no solution at all and should not be replicated in the UK or elsewhere.

Short biography

Maria is a Senior Lecturer in the Faculty of Law, Monash University and a member of the Castan Centre for Human Rights Law. Maria has completed a PhD thesis on cessation of refugee status under Article 1C(5) of the 1951 Refugee Convention and is the author of a number of international and national publications on the subject of refugee law. These include an edited volume on access to refugee protection and procedures: ‘States, the Law and Access to Refugee Protection - Fortresses and Fairness’ (Hart, 2017), co-authored with Dallal Stevens, University of Warwick, and a monograph on the durability of protection:  Refugee Law and Durability of Protection: Temporary Residence and Cessation of Status (Routledge, 2019). Maria is also a regular media commentator on refugee law and policy and has been published by The Conversation, Refugees Deeply and Asylum Insight