Australia’s current policies allow human rights abuse of children, women and men in detention facilities located offshore under private contract. This breaches international law as Australia is a signatory to the United Nations Declaration of Human Rights under The Refugee Convention. Therefore, there are specific acts, Australia, as a state, must abide by to uphold this contract (McAdam, Appleby & Higgins, 2015). The definition of a refugee under the Refugee Convention states:

A person who is outside their country of nationality or their usual country of residence, is unable or unwilling to return or to seek the protection of that country due to a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group, or political opinion, is not a war criminal and has not committed any serious non-political crimes or acts contrary to the purposes and principles of the United Nations (Healey, 2013, p. XXX).

Under the Australian government’s current policies, the Border Force Act 2015 (Cth) enables asylum seekers and refugees, who enter Australian waters, to be arrested and confined in arbitrary detention offshore. Children, women and men are detained without legal assistance to determine their status as refugees. These actions by the Australian government breach Article 9 (1) The International Covenant on Civil and Political Rights (ICCPR), which states, “Everyone has the right to liberty and security of person. No-one shall be subjected to arbitrary arrest or detention” (Office of the High Commissioner of Human Rights, 1996-2005).

The Immigration and Detention and Community Statistics Summary of July 2015 reveals the length of time asylum seekers and refugees are imprisoned within immigration detention facilities. Nineteen point six percent spend seven hundred and thirty days. Eleven point eight percent spend five hundred and forty eight to seven hundred and thirty days and seventeen point three percent are held in arbitrary prison for one hundred and eighty three to three hundred and sixty-five days (Department of Immigration and Border Protection, 2015).

Due to the extensive period of arbitrary imprisonment, evidence determines thirty-four percent of children during the first half of 2012 have mental health disorders, which in comparison to two percent within Australia is alarming. The health of children should be of primary concern, yet Australia’s policies are consistent in allowing children’s mental and emotional health to deteriorate (Australian Human Rights Commission [AHRC], 2014). A report by the Australian Human Rights Commission three years prior found children diagnosed with post-traumatic stress and severe psychological damage was accountable for their suicidal ideation and actual self-harm (AHRC, 2012). Therefore, Australia is in breach of Article 37(b), Conventions of the Rights of a Child. The United Nations Human Rights committee found in August 2013, the fragility of asylum seekers and refugees wellbeing living in arbitrary imprisonment caused psychological damage that is irreversible. This combined with previous trauma suffered in their country of origin breaches Article 7, Prohibition on Cruel, Inhuman or Degrading Treatment. The allegations of sexual and physical assault within offshore detention centers against staff by children and women who were detained in the Nauru Detention Centre indicate breaches within Article 10: Persons deprived of their liberty to be treated with humanity and respect for their inherent dignity, and Article 7: Torture or cruel, inhuman and degrading treatment or punishment (Department of Immigration and Border Protection, 2015).

There is grave concern for the current Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, as the bill advocates the use of force to be used on docile people within detention who are demonstrating silent action, sitting on the ground without moving or speaking. Section 197BA(1), Immigration Detention Facilities, states: “an authorized officer may use such reasonable force against any person or thing as the authorized officer reasonably believes is necessary to (b) maintain the good order, peace or security of an immigration detention facility” 197BA(2) “Without limiting subsection (1) an authorized officer may use reasonable force as the authorized officer reasonably believes is necessary under that subsection.” 197BA(e)“ to move a detainee within an immigration detention facility” or 197BA (f) “to prevent action in an immigration detention facility by that person that” 197 BA(f) (ii) “disturbs the good order, peace or security of the facility”, therefore Section 197BA (1) and (2) violates acts within Article 21 (ICCPR) Right of peaceful assembly, Article 7 (ICCPR) Torture or cruel, inhuman or degrading treatment or punishment, Article 1 The convention against torture and Article Six (ICCPR ) The Right to Life as the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 authorizes prison guards the right to kill. Section 197BA Maintaining the good order etc. of immigration detention facilities (1) states “An authorized officer may use such reasonable force against any person or thing, as the authorized officer reasonably believes is necessary” 197BA(5(b) “do anything likely to cause a person grievous bodily harm unless the authorized officer reasonably believes that doing the thing is necessary”. The Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, therefore, violates Article 6 (ICCPR) The Right to Life. There are rules under the United Nations Refugee Convention, which determine Australia’s obligations to protect asylum seekers and refugees.

As Australia is signatory to the United Nations Refugee Convention, there are rules, to which the Australian government must adhere:

Rule 1: “The state must not send a person to any place where s/he will face a real chance of persecution or significant harm. Refoulement is the legal term for this action. States, also have human rights obligations towards persons outside their territories who are under ‘effective control’ and therefore within jurisdiction” (Gleeson, 2015. P. XX).

Rule 2: “States may be responsible for wrongful acts under international law of they are involved in or assist with misconduct by another state” (Gleeson, 2015. P. XX).

Rule 3: “A state will be responsible for the wrongful act under international law, even if the act was authorized by its domestic law” (Gleeson, 2015. P. XX).

Therefore, the Australian government is guilty of refoulement regarding policies to process asylum seekers and refugees offshore. If a state is found guilty of international wrongful conduct, a group of people or an individual person whose human rights have been violated due to the breach may present these violations to the United Nations as a claim against the state. (McAdam, Appleby & Higgins, 2015). A group of individuals or an individual may bring a claim against Australia before The United Nations Committee against Torture due to their experience in offshore detention.

The weight of evidence implicates the Australian Governments policies pertaining to offshore detention allow human rights abuses of children, women and men, therefore, breaching International Law. Until offshore detention centers on Nauru and Papua New Guinea close indefinitely, families held within remain so without their basic human rights. As offshore detention centers continue to be studied at saturation point, evidence indicates that the psychological damage of arbitrary detention may become permanent.

Reference List:

Department of Immigration and Border Protection. (2015). Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, Final Report [Moss Review]. Retrieved from https://www.border.gov.au/ReportsandPublications/Documents/reviews-and-inquiries/review-conditions-circumstances-nauru.pdf

Australian Human Rights Commission. (2012). Immigration detention on Christmas Island: Observations from visit to Immigration detention facilities on Christmas Island. Retrieved from https://www.humanrights.gov.au/sites/default/files/document/publication/idc2012_christmas_island.pdf

Australian Human Rights Commission. (2014). Forgotten Children: National Inquiry in Immigration Detention, 2014. Retrieved from https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf

Department of Immigration and Border Protection. (2015). Immigration Detention and Community Statistics Summary, 31 July 2015. Retrieved from http://reliefweb.int/sites/reliefweb.int/files/resources/immigration-detention-statistics-31July2015.pdf

Gleeson, Madeline. (2015). Factsheet: Offshore processing: Australia’s responsibilities for asylum seekers and refugees in Nauru and Papua New Guinea. Retrieved from http://www.kaldorcentre.unsw.edu.au/publication/offshore-processing-australia-responsibility

Healey, J. (Ed.) (2013). Asylum Seekers and Immigration Detention. Thirroul, Australia: Spinney Press, 2013.

McAdam, J., Appleby, G., & Higgins, C. (2015, April 1). Submission to Senate Legal and Constitutional Affairs Committee Inquiry into the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities Bill 2015 (Cth).

Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 (Cth). Retrieved from http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5415

Office of the High Commissioner of Human Rights. (1996-2005). International Covenant on Civil and Political Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49. Retrieved from http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx