The Opening of Offshore Processing Facilities in Nauru and Papua New

25

3. Critics from International Human Rights Organizations

The Refugees Convention and the ICCPR questioned the „Pacific Solution‟ as it might harm three legal obligations of: 1 „the prohibitions on refoulement; 2 discrimination due to illegal entry; and 3 detention.‟ 88 The ICCPR has clearly stated its non-acceptance of refoulement of refugees at a state‟s frontier. 89 However Australia‟s policy of sending refugees to excised territories imply otherwise. While the Refugee Convention has declared that refugees may not be penalized despite their legality coming on a territory, 90 in actuality, „boat people‟ were detained in inhumane offshore facilities for uncertain lengths of time as the result of Australian policy. Moreover, Australia has been applying detention system for arriving „boat people‟ since 1992. Unlike Australia, PNG and Nauru are not familiar and inexperienced to implement the detention system. 91 Therefore, the offshore processing arrangement stands in stark contrast to the standard of lawfulness in the ICCPR. In response, Philip Ruddock, Howard‟s Immigration Minister responded that he would like to reevaluate Australia‟s obligations under the United Nations Refugee Convention on Refugee Status. 92 He argued that the structure of the UN Refugee Convention was no more suitable to the present 88 Australia International Obligations. Parliament House of Australia. Available at: http:expertpanelonasylumseekers.dpmc.gov.ausitesdefaultfilesreportattachment_3_australia_internationa l_obligations, accessed in the 17 th of September 2014. 89 Ibid. 90 Convention Relating to the Status of Refugees and its 1967 Protocol. UNHCR. 28 July, 2951. Available at: http:www.unhcr.org496365eb2.pdf. accessed in the 25th of September 2014. 91 Fact sheet 82 - Immigration detention. Australian Department of Immigration and Border Protection. Available at: https:www.immi.gov.aumediafact-sheets82detention.htm, accessed in the 25th of September 2014. 92 The Conversation. July 18, 2013. Available at: http:theconversation.comexplainer-australias-obligations- under-the-un-refugee-convention-16195, accessed in the 17 th of September 2014. 26 condition of refugees who seek asylum through countries in search of „preferred countries.‟ 93 More he said: „There are something of the order of 14 million, I think, people who are found to be refugees by the United Nations and they‟re right around the world. We can‟t take them all. We are one of the largest per capita re-settlers of refugees and what is happening is our capacity to re-settle and help is being d iminished because we‟re being now very close to overrun by those who are in a position to pay people smugglers and are coming here... Humane policy is about protecting our borders and maintaining our capacity to help those who need it most.‟ 94 Human rights groups, legal scholars, and United Nations bodies have criticized the treatment of refugees as incompatible with the international treaties. 95 Australia‟s offshore processing laws in Nauru and Manus Island were not considered as suitable with fundamental human rights principles. 93 The Australian. July 16, 2012. Availablet at: http:www.theaustralian.com.aunational- affairsimmigrationpost-war-refugee-convention-short-changes-australiastory-fn9hm1gu- 1226426694966?nk=7c5b6b7bd33002fce712e0e890eb8d30, accessed in the 10 th of September 2014. 94 Transcript: Afternoons with Tim Webster 2UE Interview with the Hon Philip Ruddock MP. Parliament House Canberra. Available at: http:www.ruddockmp.com.auBerowraElectorateSpeechestabid78articleTypeArticleViewarticleId1549 Transcript-Afternoons-with-Tim-Webster-2UE-Interview-with-the-Hon-Philip-Ruddock-MP.aspx, accessed in the 18 th of October 2014. 95 Australia: Pacific solution one year on -- punishing the refugees. Amnesty International Press Release. August 25, 2002. Available at:http:web.amnesty.org.ai.nsfrecentasa120092002 accessed in the 24th of September 2014. 27

C. The evaluation of Offshore Processing Facilities under Kevin Rudd in

2008 1. The Australian Labor Party Position on the Offshore Processing Facilities Issue The controversy of the offshore processing implementation developed among Australians politicians in 2004. 96 The Australia Labor Party ALP as a major political party in the country began itself to oppose the policy. Actually, at the beginning, it agreed on the establishment of Pacific Solution. As Australia‟s Official explained on the Parliamentary Document: 97 „Both of the major parties believe that tough deterrence measures are necessary to stem the flow of asylum seeker boats to Australia. In particular, both parties currently support the practice of transferring asylum seekers who have arrived by boat to offshore processing centres in Papua New Guinea PNG and Nauru; the practice of mandatorily detaining all unauthorised maritime arrivals; and the need to maintain tough anti-people smuggling and border protection measures in c ooperation with neighbouring countries in the region.‟ Later on in 2004, Julia Gillard, the prominent member of the Australian Labor Party denounced the Nauru and Manus Island facilities, acknowledge it were „too costly‟ and the Pacific Solution was „unsustainable.‟ 98 A joint report called A Price Too High: The cost of Australia’s approach to Asylum Seekers by Oxfam and A Just Australia, explained since 2001 offshore processing facilities in Nauru and PNG have cost the Australian taxpayer more than 500,000 per person 96 The Gillard‟s Government Offshore Dumping Policy. Available at: http:www.safecom.org.auoffshore- dumping.htm, accessed in the 2 nd of August 2014. 97 A comparison of Coalition and Labor government asylum policies in Australia since 2001. Parliament of Australia. February 28, 2014. Available at: http:www.aph.gov.auAbout_ParliamentParliamentary_DepartmentsParliamentary_Librarypubsrprp1314 AsylumPolicies_Toc381358238, accessed in the 18th of October 2014. 98 Ibid. 28 to process fewer than 1,700 asylum seekers in Nauru, Manus and Christmas Island. 99 In 2006, the Labor Party leader, Kevin Rudd, and his deputy Julia Gillard, shared the same opinion on the issue. They both were eager to bring the „Pacific Solution‟ to an end and find a regional offshore center with Timor Leste instead. The parliament of Australia highlights the Report of the Inquiry into a Certain Maritime Incident outlined that asylum seekers endured a lots of difficulties in Nauru and Manus Island such as limited access to water, sanitation and electricity. 100 On the contrary, the ruling government was led by John Howard, the leader of the Liberal- National Party Coalition, which priors the policy of „Pacific Solution.‟ Therefore, since the establishment of „Pacific Solution‟ in 2001, „boat people‟ became of the most important issues of competition between the two political parties. The Labor Party and Liberal-National Party Coalition were in disagreement on the method to stop the „boat people‟. 101 This included the question of whether „boat people‟ should be given temporary visa instead of permanent protection.‟ 102 The Coalition has argued that the abolition of Temporary Protection Visa TPV 99 The Pacific Solution: A 1 billion “living hell”? Oxfam. 23 August, 2007. Available at: https:www.oxfam.org.aumedia200708the-pacific-solution-a-1-billion-living-hell Accessed in the 24th of September 2014. 100 Asylum Seekers and Refugees What are the Facts. Parliament of Australia. February 11, 2013. Available at:http:www.aph.gov.auAbout_ParliamentParliamentary_DepartmentsParliamentary_LibrarypubsBN20 122013PacificSolution_Toc334509636, accessed in the 23th of September 2014. 101 Back to the Future: Australian Border Policing Under Labor, 2007 –2013. State Crime Journal, Vol. 3, No. 1 Spring 2014, pp. 102-125. Available at: http:www.kaldorcentre.unsw.edu.ausiteskaldorcentre.unsw.edu.aufilesback_to_the_future_published_ver sion.pdf. Accessed in the 24th of September 2014. 102 Ibid.