How the UN found Australia responsible for human rights violations in the detention centre on Nauru
Australia’s obligations
Australia is a State party to the International Covenant on Civil and Political Rights (ICCPR), an international agreement between countries that aims to ensure the protection of a range of civil and political rights. These rights include:
Freedom from torture or cruel, inhuman or degrading treatment or punishment;
The right to liberty and security;
The right to humanity and dignity when detained;
Freedom of movement; and
Freedom from arbitrary or unlawful interference with privacy, family or home
Australia is also a State party to the Optional Protocol to the ICCPR, which sets out a process where a person or group of people can complain to the UN Human Rights Committee.
The Committee is a body of independent experts that monitors how the ICCPR is implemented and adhered to by its signatories. People can complain to the Human Rights Committee if they believe that a country has violated its ICCPR obligations.
The complaint
Nine years ago, RACS helped 24 unaccompanied children from Iran, Iraq, Afghanistan, Pakistan, Sri Lanka and Myanmar make a group complaint against the Australian government.
In fleeing persecution, these children had been intercepted by Australian authorities at sea. They were first taken to Christmas Island before being forcibly transferred to Australia’s Regional Processing Centre on Nauru.
On Nauru, the children were detained in unacceptable living conditions, uncertain about how long their detention would last. By September 2014, all but one complainant had been granted refugee status.
RACS, on behalf of the 24 children, argued that Australia, in transferring and detaining them on Nauru, had violated their rights under the ICCPR. They believed that:
Australia had violated the prohibition on torture or cruel, inhuman or degrading treatment or punishment due to the indefinite nature of their detention on Nauru and the uncertainty surrounding their fates;
Their detention was arbitrary given the mandatory nature of their transfer and detention, the absence of individual assessments of the appropriateness of their detention and consideration of alternatives, and the lack of appeal rights;
They had no opportunity to challenge the lawfulness of their detention;
The conditions at the detention centre violated their right to be treated with humanity and dignity, with inadequate accommodation, access to water and sanitation, and threats of emotional and physical harm;
Their freedom of movement was denied as they were practically incapable of leaving the detention centre and forced to remain inside. Even those who were recognised as refugees had to await transfer and resettlement to a third country or Nauru, and were unable to choose their place of settlement;
Their freedom of expression had been restricted;
They were not afforded the appropriate protection due to them as minors separated from their families
A full list of the complaints can be accessed here.
What the Human Rights Committee found
The Committee found that the complaints relating to the freedom from torture or cruel, inhuman or degrading treatment and punishment, the freedom from arbitrary arrest or detention and the right to take proceedings before a court to challenge the lawfulness of detention were admissible in the context of the children’s detention on Christmas Island and Nauru.
This decision was made in part because the children had been found to be under Australian jurisdiction at the time of their detention on Nauru. According to the Committee’s decision, Australia exercised “signification levels of control and influence... over the operation of the regional processing centre”.
Human rights violations on Christmas Island
Freedom from arbitrary detention (ICCPR Article 9[1])
The 24 children had been transferred to the Australian external territory of Christmas Island in 2013 and 2014. They spent between two and 12 months there, before being moved to Nauru. According to ICCPR general comment 35, children should not be deprived of liberty expect as a measure of last resort. The Committee found that Australia could not justify the children’s protracted detention and so found placing them in immigration detention on Christmas Island arbitrary and inconsistent with the Article 9 section 1 of the ICCPR
Entitlement to court proceedings (ICCPR Article 9[4])
The Committee also found Australia violated the children’s right to court proceedings, because Australia did not show that domestic courts had the authority to justify the detention of each of the children.
Human rights violations on Nauru
ICCPR Article 9[1] and [4]
When it came to Nauru, the Australian government insisted that the violations that had occurred were outside its jurisdiction. The Committee disputed this assertion, given that the only reason the children were on Nauru was because of their unauthorised entry into Australian territory.
The Committee found that the children had been detained arbitrarily in violation under Article 9[1] and [4] of the ICCPR, and that they were within Australia’s jurisdiction when these violations took place.
The Committee’s recommendations
The Committee stated that, as a State party to the ICCPR, Australia now has an obligation to provide the unaccompanied minors with an effective remedy in the form of adequate compensation for the violation of their rights.
It also emphasised that Australia has an obligation to take all necessary steps to prevent similar violations from happening in the future. This would entail reviewing and modifying migration legislation and policies and arrangements for offshore transfer, as well as ensuring that these updates conform with the ICCPR.
What next?
As the representatives of the 24 children who brought this complaint to the United Nations Human Rights Commission, RACS urges the government to:
Follow the UN’s recommendation to promptly and properly compensate the now young adults for violating their human rights
Provide permanent protection in Australia for the handful of unaccompanied children and others who are still, after many years, on bridging visas, many with no pathways to resettlement
Finally end offshore processing, a regime that has destroyed the lives of so many. All who remain impacted by it should be provided with safe, immediate and permanent protection
RACS’ commitment to human rights and to helping unaccompanied children
In the course of our work with asylum seekers, RACS can become aware of treatment which falls foul of the standards of human rights which Australia has agreed to uphold. We regularly raise these issues domestically with the Department of Immigration and the Human Rights Commission. Where this is not successful in resolving the issue, we remain prepared to raise complaints with the UN. We do this because of our commitment to our clients, and to human rights more generally.
We also continue to provide a dedicated program assisting children who have had to flee their home countries without their parents. RACS understands that these children are particularly vulnerable when they arrive to Australia. Our program for unaccompanied children provides long term legal support for children who arrived in Australia without their parents. Our program helps children find safety in Australia through permanent protection, access to health services and a safe community.
