UN Rules Australia Breached Human Rights Obligations With Offshore Detention of Asylum Seekers

A general view during a panel on Childrens Rights and the Digital Environment to mark the annual Day of the Child, at the 52nd UN Human Rights Council in Geneva, on March 10, 2023. Fabrice Coffrini/AFP via Getty Images

The U.N. Human Rights Committee has declared Australia legally responsible for the arbitrary detention of asylum seekers in offshore processing facilities.

The two cases relate to agreements signed between Australia and Nauru in 2012 and 2013, with the Pacific nation hosting detainees in return for payments.

Committee member Mahjoub El Haiba emphasised that outsourcing detention does not exempt Australia from its human rights responsibilities.

“Where a state exercises effective control over an area, its obligations remain firmly in place and cannot be transferred,” El Haiba stated.

The Committee has urged Australia to compensate the victims, and reform migration legislation to prevent future violations.

It also called for enhanced alignment with international human rights obligations, stressing that such rulings reinforce the importance of safeguarding human dignity.

Cases of Arbitrary Detention

The first case involved 24 unaccompanied minors from countries including Iraq, Iran, and Myanmar, intercepted by Australia between 2013 and 2014 while fleeing persecution.

Initially detained on Christmas Island for up to a year, they were transferred to Nauru’s overcrowded Regional Processing Centre.

The centre, plagued by inadequate water supply, poor sanitation, and extreme heat, took a toll on their physical and mental health.

Despite being granted refugee status in 2014, the minors were detained for years, enduring depression, self-harm, and other health issues.

The second case concerned an Iranian asylum seeker who arrived with her family on Christmas Island in 2013.

Seven months later, she was sent to Nauru, where she was detained even after being recognised as a refugee in 2017.

Her detention continued for 13 months before she was relocated to mainland Australia for medical reasons, only to face further detention in various facilities.

Government Says Detainees Are Not Its Responsibility

In response to the U.N. Human Rights Committee’s decision, the Department of Home Affairs maintained that Australia did not exercise effective control over the regional processing centres.

“The Australian government engages in good faith with the United Nations Human Rights Committee in relation to any complaint received and is considering the committee’s views on each matter and will provide its responses in due course,” a spokeswoman said.

“Transferees who are outside of Australia’s territory or its effective control do not engage Australia’s international obligations.”

Violations of International Law

Both cases were brought before the Human Rights Committee, alleging breaches of the International Covenant on Civil and Political Rights (ICCPR), specifically Article 9, which prohibits arbitrary detention.

Australia had argued that the alleged violations occurred outside its jurisdiction.

However, the Committee found that Australia had significant control over Nauru’s processing centres, including their financing, construction, and management. This “effective control” placed the asylum seekers within Australia’s jurisdiction under the ICCPR.

In the minors’ case, the Committee criticised Australia for failing to consider alternatives like community detention on the mainland, concluding it had violated human rights by denying the children the right to challenge their detention in court.

Similarly, the detention of the Iranian asylum seeker was deemed unjustified and prolonged.