Guest post by Louise Boon-Kuo, Lecturer at the University of Sydney Law School. Louise researches in the areas of border policing, race and criminal justice, is the author of Policing Undocumented Migrants in Australia (Routledge, forthcoming 2017), and can be found on Twitter @boonkuo. This is the ninth instalment of Border Criminologies’ themed series on Current Legal Issues on Migration organised by Ana Aliverti and Celia Rooney.​

Australia has been heavily criticised for its harsh immigration detention practices. It is the only country in the world that has legislated mandatory indefinite and arbitrary immigration detention for those present without a visa. It has also established offshore detention centres in Nauru and Papua New Guinea’s Manus Island for asylum processing, the conditions of which are, as Amnesty International explains, tantamount to torture. From mid-2013, in the second and current phase of Australia’s offshore processing, children have been sent solely to Nauru. Initially children were held in closed detention conditions in Nauru. In October 2015 the detention centre became ‘open’, although those inside the camp continue to face curfews, monitoring and other restrictions. Those recognised as refugees are released into the Nauru community but no durable solution for their resettlement has been found. The practices and conditions of offshore processing, which has operated for a total of 13 years, have been shrouded in secrecy. A recent raft of leaked official incident reports  (‘the Nauru files’) concerning the detention centre in Nauru has confirmed the damaging impact of these arrangements particularly on children.

http://edition.cnn.com/2016/01/27/asia/australia-nauru-children-detention/

More than enough evidence of harm

In August 2016 the Guardian newspaper released over 2,000 leaked official incident records from inside Australia’s offshore processing centre on Nauru which report numerous cases of physical and sexual assault on children and adults. These incidents are alleged to have had a negative impact on  detainees’ mental health and increased incidents of self-harm. More than half of the reports made by staff of the detention centre between May 2013 and October 2015 involved children, although children accounted for only 18 per cent of those in detention at the time.

This is not the first time the harm detention causes to children has been recorded. As far back as 2004 the Australian Human Rights Commission claimed that detention centres are traumatising places which subject children to enormous mental distress. More recent reports have described children’s experience of detention and abuse under the current offshore processing regime on Nauru, as well as inadequate medical care, poor sanitation and unhygienic living conditions.

http://secondnexus.com/politics-and-economics/the-neglected-children-of-nauru/

These reports concur that detention and uncertainty about resettlement have profound negative impacts on the mental and emotional health and development of children. For example, in 2014, the Australian Human Rights Commission found that 34 per cent of children in detention suffered from mental health disorders of a seriousness that would require psychiatric referral if the children were in the Australian population. Reported incidents of self-harm involving children indicate the dangers of the detention environment; the self-immolation by young refugees Omid Masoumali, 23, and Hodan Yasin, 19, are but two examples. Masoumali, who died in early 2016, 26 hours after he self-harmed, had said ‘This is how tired we are. This action will prove how exhausted we are. I cannot take it anymore’. Shamin, 17, the subject of at least seven incident reports in the leaked Nauru files that record her talking about suicide and self-harm, told ABC 4 Corners program that she self-harmed because ‘I want to feel the pain I am having in my heart’.

In 2015 Transfield Services (Australia) Pty Ltd (now Broadspectrum (Australia) Pty Limited, owned by the Ferrovial Services Australia Pty Limited), the company which runs the detention centre at Nauru, reported it had received 67 allegations of child abuse, 30 against staff and 37 against asylum seekers. In one of the leaked incident reports, a guard at Nauru admitted to throwing rocks at children. In the period covered by the Nauru files, 14 cases of violence and sexual assault (including eight cases involving children) had been referred to the Nauru police, but on 17 October 2016 only one case (an assault charge) was brought before the court in Nauru. An Australian Parliamentary Inquiry into allegations of abuse, self-harm and neglect in relation to the Nauru and Manus processing centres is due to come out in March 2017. Yet, the documentation of the harm of detention and of offshore processing on children and adults is already overwhelming.

Responsibility for the Abuse of Children on Nauru

The Australian government has consistently argued that the government of Nauru and private detention contractors hold sole responsibility for the treatment of children and adults in detention. On the contrary, legal and international human rights law experts, including the United Nations Refugee Agency (UNHCR), have claimed that Australia has clear international human rights law obligations to asylum seekers, including children in Nauru. The Australian government obligations emerge from the government’s extent of control over the offshore processing arrangements. Under the agreement between the Nauru and Australian government, Australia may transfer unauthorised maritime arrivals to Nauru, bear all costs, and play a critical role in the operation of regional processing on Nauru. Australia also provides a range of staff including detention personnel (sourced by Broadspectrum), and welfare, health and legal service staff. Thus, while Nauru determines the refugee status of those people transferred by Australia and hosts the offshore processing centre, in effect, the Nauru detention centre is an Australian-run facility.

Legal advocacy and litigation have been important in attempts to enforce Australia’s responsibility for the harm suffered from the conditions of immigration detention and offshore processing.

S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) FCA 549 provided a crucial foundation for claims that the Australian government owes a duty of care to children subject to offshore processing. This case concerned immigration detention within Australia and established that the Australian Government cannot avoid a duty of care towards those detained by outsourcing detention management to private companies.

smh.com.au

No case claiming the Australian government has breached a duty of care towards children subject to offshore processing on Nauru has gone to trial yet. Given that many of the lawsuits brought against the government have been resolved by settlement rather than trial, an upcoming trial involving almost 2,000 men detained on Manus since 2012 is promising. Not only will the case, due to commence in May 2017, be the largest action concerning Australian immigration detention to date, it is also expected to reveal information about offshore processing that has not yet come to light. The men detained on Manus Island seek compensation for physical and psychological injuries and have also made claims of false imprisonment. The court’s determination of whether Australia and private detention contractors have breached their duty of care obligations will have significant ramifications for children and adults who have been detained in abusive conditions on Nauru.

Furthermore, the Australian Lawyers Alliance has taken a novel approach by arguing that workplace safety laws apply to the regional processing centres in Nauru (and Manus) and on that basis Australia owes a duty of care to asylum seekers entering the workplace. Workplace investigations conducted by the regulatory body Comcare at the Manus Island processing centre found that the Australian immigration department is in control of the workplace and thus has an obligation to protect the health and safety of workers, contractors and asylum seekers in their care. However, it has not yet initiated prosecutions.

At this stage however, legal strategies have been unsuccessful in preventing harm. It has been political pressure in particular cases that has driven the Australian government to act. In 2015 for example, a specialist medical team was sent to Nauru to perform corrective surgery on Erfan, an 11 year old refugee boy living in the community on Nauru who had broken his arm. He had been in pain for over a month but did not receive appropriate medical care until a concerted campaign by Doctors for Refugees made his case Australian national news. The campaign group had obtained the opinion of 11 Australian doctors who had reviewed Erfan’s X-rays and warned that urgent medical care was required as he risked being permanently disabled. Yet Erfan still suffers from loss of movement in his wrist and fingers. The necessary response to the most recent confirmation of the systemic abuse of children subject to offshore processing on Nauru is very simple, and has been called for by several bodies of the United Nations - an immediate end to the offshore processing regime itself.

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How to cite this blog post (Harvard style)

Boon-Kuo, L. (2017) Institutional child abuse in offshore processing on Nauru. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/03/institutional (Accessed [date]).