stowaways and ship deserters - 458 known illegal ship arrivals in 5 years

Stowaways and ship deserters: the other faces of illegal sea arrivals

Date

October 29, 2015

Nicole Hasham

Environment and immigration correspondent 

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Figures show 458 stowaways, ship deserters and illegal seaport arrivals came to Australia in the past five years.

• The two Australian girls living in 'jail'
• Thanks for your note, Nauru

Some swim out to a container ship and clamber aboard; others spend weeks in a dark cargo hold. A few slip away when the ship has docked, heading to big cities where they can melt into the crowd.

The federal government may have "stopped the boats" but stowaways, ship deserters and illegal seaport arrivals from cruise, cargo and other ships continue to test its tough border regime.

Figures show in the five years to June, 458 stowaways, ship deserters and illegal seaport arrivals were known to have come to Australia.

They either hid themselves on a ship, slipped away from the vessel or arrived at a seaport but were not cleared for entry.

Data supplied to Fairfax Media shows 95 such arrivals last financial year, 67 of which were taken into immigration detention.

Refugee and Immigration Legal Centre executive director David Manne has represented several stowaways and ship deserters, including a 15-year-old Ethiopian boy who stowed away on a cargo ship from Africa which docked at Gladstone, Queensland. After legal wrangling he was granted a protection visa last year.

Mr Manne said the current global humanitarian crisis involves "people in unprecedented numbers … taking desperate measures to get to safety".

Mr Manne said the Ethiopian boy was looked after on the ship, and now lives in Melbourne where he is "kicking a soccer ball as well as any of his peers".

But not all stowaways are so lucky. In 2005, two African stowaways were discovered in a cargo hold filled with phosphate in a Perth-bound bulk carrier. Two fellow stowaways had died.

After several weeks of sailing, the crew reported hearing muffled voices and scratching on the metal hull and investigated.

The four had boarded in Morocco with just a few days' worth of food and water, thinking they could sneak off in a European port. The two survivors were repatriated after reaching Australia.

Gladstone Mission to Seafarers chaplain Russell Cunningham said ship deserters were usually seeking "a better life free from oppression and exploitation … escaping persecution on board could also be a motivator for some".

"From my experience they always head for big cities where they can get help to blend in, but usually always end up just being exploited and used as cheap labour on a building site or in a restaurant," he said.

In August a Turkish crew member was reportedly caught on a bus heading to Brisbane after failing to return to his ship at Gladstone.

In April a Chinese man also reportedly deserted ship at the same port and made it to Sydney, before handing himself in to immigration officials.

An Immigration Department spokeswoman said it "remains alert to any manner of illegal maritime arrival" and penalties apply for those who fail to comply with the rules.

Mother's visa cancelled and moved to Villawood with her children

Salwa Abas stands out in the busy school drop off: she is the only child escorted by a guard. Classmates tease the five-year-old for living in a "jail" and when she returns home, each pocket of her bag is searched.

Salwa and her sister Yasmin, 3, are Australian citizens. But they have been living with their mother behind locked gates at Sydney's Villawood detention centre for almost a year, after the federal government cancelled their mother's visa.

In doing so, the government acknowledged the decision was not in the children's best interests. Their mother Zahra, who is pregnant with her third child, has begged Immigration Minister Peter Dutton to intervene.

"They were happy Australian kids, why [did the government] do this to them, they don't deserve to be here," she told Fairfax Media from inside the detention centre.

"[My children] are really upset inside and they are asking me 'What are we doing for Christmas, are we getting out? Why are we here?'".

Villawood detainee Zahra Abas and her Australian children Salwa, 5, and Yasmin, 3.

Ms Abas, originally from Iraq, arrived on a boat from Indonesia in 2009 with other family members. They were taken to Christmas Island then granted protection in Australia.

Her father, known as Captain Emad, arrived in Australia in 2010. He fled two years later, after ABC's Four Corners program alleged he was running a people-smuggling racket from Canberra.

The case cast a spotlight on his family, and the Department of Immigration determined Ms Abas, who was 19 when arriving in Australia, had falsified information on her visa application, including the reason why she needed protection.

Ms Abas said this week her father was "abusive, controlling and angry" and told the family to lie to immigration officials about their names and background.

"In Indonesia he wanted to break my legs because I wanted to run away from him, and he took a hammer and hit my leg and I got stitches from it," she said.

"He told us to tell un-genuine information and I did, but my intention wasn't anything bad, I just wanted to live [in] freedom without him abusing me any more."

Under the former Labor government, the department said while Ms Abas had breached her obligations under migration law, her visa would not be cancelled. 

But in December last year when the Coalition was in office, then Immigration Minister Scott Morrison personally intervened to cancel Ms Abas' visa. She was informed on Christmas Eve.

In a letter to Ms Abas, the veracity of which the department did not dispute, Mr Morrison wrote that she had been living in Malaysia for many years, rather than in Iraq where she claimed to have suffered persecution, and should not have been granted a protection visa.

He said there was no evidence she was under duress from her father when applying for a visa.

"Notwithstanding that the best interests of the dependent children would be served by a decision not to cancel the mother's visa, this is outweighed by the seriousness of the non-compliance," Mr Morrison wrote.

Ms Abas was taken into detention in January, and lives in residential-style housing. Her Australian citizen husband suffers medical problems and depression after an accident and cannot care for the children, forcing them to live with their mother at Villawood indefinitely.

Ms Abas' husband visits the family in detention and she is 21 weeks pregnant. She is also severely depressed and fears for the future of her unborn baby and young daughters.

Salwa, once a bubbly child with many friends who loved the film Frozen, is now lonely and suffers nightmares. Yasmin has become unhappy and clingy.

"Every day [Salwa] says 'I had a really bad day, I hate this school, I hate you, I hate this place', and then she goes in her room and cries. She doesn't want to go out, she doesn't want to eat," Ms Abas said.

"It's like a jail - you have no freedom, no control over your life or your children's life."

Mr Dutton and the Department of Immigration refused to answer questions regarding Ms Abas, or explain why she was the only family member being detained. A spokeswoman for Mr Dutton said his department was "managing" the case.

Constitutionality of the Australian run detention centre on Manus Island

The supreme court of Papua New Guinea has reserved judgment in a case brought before it contesting the constitutionality of the Australian-run detention centre on Manus.

The case challenges the memorandum of understanding between Australia and PNG that re-established offshore processing in PNG in 2012, arguing the detention of asylum seekers violates section 42 of the PNG constitution which protects personal liberty as a “right of all persons”.

Lawyer representing the detained asylum seekers Ben Lomai said the men could not be detained because they had not broken any laws in PNG, nor had they entered the country illegally.

“The court noted ... that all the asylum seekers were forcibly transferred against their will from Christmas Island to Manus Island,” he said outside court. “The court further noted that the asylum seekers have never committed criminal offences to warrant their detention.”

Lawyers for the PNG immigration department said administrative arrangements between Australia and PNG over refugees were ongoing.

The court retired on Thursday to consider its decision.

Food poisoning g at Manus Island Detention Centre

Food has been an ongoing issue for the men in detention, with some complaining it is “inedible”.

They allege when visitors arrive at the centre – department officials, ministers, human rights groups – the food temporarily improves, before reverting.

Men in detention also regularly post photos of out-of-date food they say they’ve been served, or question its provenance.

One man posted a photo of his meal on 6 October: “Today’s lunch. If someone finds out what kind of animal’s meat it is please let me know.”

In August, the ABC revealed the Australian Department of Immigration and Border Protection ordered centre manager Transfield not to distribute $30,000 worth of muesli bars inside the detention centre because they were branded with the logo of the company that made them: Freedom Foods.

Guardian Australia has approached Transfield for comment.

No Business in Abuse Report - Human rights abuse in Australia's offshore detention regimes section 7

7 Specific Human Rights Abuses within Australia’s offshore detention regime during Transfield’s provision of services
7.1 Asylum seekers are subjected to deprivation of liberty and arbitrary detention
“Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law.” Lord Nicholls of Birkenhead in his ruling of 16 December 2004cliii
The Australian Government policy under which asylum seekers are detained is in accordance with the Australian legal framework of mandatory detention of asylum seekers both on the Australian mainland and in the States of PNG and Nauru.
That Australia’s policy and practice of mandatory detention of asylum seekers violates the prohibition on arbitrary detention is incontrovertible. The UN Human Rights Committee has judged this practice to constitute arbitrary detention on at least seven occasions since the policy was implemented.cliv Acknowledging this long established consensus in its 2014 The Forgotten Children report, the Australian Human Rights Commission (AHRC) remarked, “[t]here is nothing new in the finding that mandatory immigration detention is contrary to Australia’s international obligations. The Australian Human Rights Commission and respective Presidents and Commissioners over the last 25 years have been unanimous in reporting that such detention, especially of children, breaches the right not to be detained arbitrarily”.clv
7.1.1 Relevant Rights
Article 9, UDHR
No one shall be subjected to arbitrary arrest, detention or exile.
Article 13(1) UDHR
Everyone has the right to freedom of movement and residence within the borders of each state.
Article 9, ICCPR
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
Article 37(b), CRC
States Parties shall ensure that: ...
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
7.1.2 General interpretation of the prohibition against arbitrary detention in immigration detention

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In order to be compatible with international law, detention must be reasonable, necessary and proportionate in the circumstances. In its Draft General Comment on Article 9 of the ICCPR, the UNHRC discussed the prohibition of arbitrary detention in the context of immigration detention:
Detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in light of the circumstances, and reassessed as it extends in time. Asylum-seekers who unlawfully enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims, and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary absent particular reasons specific to the individual, such as an individualized likelihood of absconding, danger of crimes against others, or risk of acts against national security. The decision must consider relevant factors case-by-case, and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties, or other conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial review. The decision must also take into account the needs of children and the mental health condition of those detained. Any necessary detention should take place in appropriate, sanitary, non-punitive facilities, and should not take place in prisons. Individuals must not be detained indefinitely on immigration control grounds if the State party is unable to carry out their expulsion.clvi
The detention guidelines of the UN High Commissioner for Refugees (UNHCR) provide the following:
Detention must not be arbitrary, and any decision to detain must be based on an assessment of the individual’s particular circumstances. Detention in the migration context is neither prohibited under international law per se, nor is the right to liberty of person absolute.
35 However, international law provides substantive safeguards against unlawful (see Guideline 3) as well as arbitrary detention. ‘Arbitrariness’ is to be interpreted broadly to include not only unlawfulness, but also elements of inappropriateness, injustice and lack of predictability.
36 To guard against arbitrariness, any detention needs to be necessary in the individual case, reasonable in all the circumstances and proportionate to a legitimate purpose (see Guidelines 4.1 and 4.2).
37 Further, failure to consider less coercive or intrusive means could also render detention arbitrary (Guideline 4.3). As a fundamental right, decisions to detain are to be based on a detailed and individualised assessment of the necessity to detain in line with a legitimate purpose. Appropriate screening or assessment tools can guide decision-makers in this regard, and should take into account the special circumstances or needs of particular categories of asylum-seekers (see Guideline 9). Factors to guide such decisions can include the stage of the asylum process, the intended final destination, family and/or community ties, past behaviour of compliance and character, and risk of absconding or articulation of a willingness and understanding of the need to comply. In relation to alternatives to detention (Guideline 4.3 and Annex A), the level and appropriateness of placement in the community need to balance the circumstances of the individual with any risks to the community. Matching an individual and/or his/her family to the appropriate community should also be part of any assessment, including the level of support services needed and available. Mandatory or automatic detention is arbitrary as it is not based on an examination of the necessity of the detention in the individual case.clvii
The UN Human Rights Committee (UNHRC) has made clear that an arrest or detention may be permissible under domestic law, but may nevertheless be arbitrary. The Committee has stated that 'arbitrariness' is not to be equated with 'against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. clviii
The UNHCR Detention Guidelines define immigration detention as:

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clix
7.1.3 Detention as Deterrence – a violation of international law
The consistent refrain from successive Australian Governments, as well as the Australian Department of Immigration and Border Protection is that the offshore detention regime is essential policy and practice to deter future asylum seekers from making risky boat journeys to Australia and people smugglers from facilitating that journey.
This intention is reflected in the foundational documents for the offshore detention regime, including in the 2013 Regional Resettlement Agreement with PNG, where the (then-ALP led) Australian Government states:
Existing cooperation between Australia and Papua New Guinea, in particular through the Manus Island Regional Processing Centre, represents a significant element of the regional response to people smuggling. Australia warmly welcomes Papua New Guinea’s offer to adopt additional measures which build on the Manus Island Regional Processing Centre. These measures will make a significant further contribution to encouraging potential unauthorized arrivals to avail themselves of lawful channels to seek asylum and to abandon the practice of perilous sea journeys which has led to the deaths of so many.clx [emphasis added]
In July 2013, the Coalition Party released its ‘Operation Sovereign Borders Policy’, which it subsequently enacted after its election to Government in September 2013. This document states:
For years the Coalition has advocated a strong and consistent policy stance that focuses single- mindedly on deterrence. These policies are well known and include.... third country offshore processing on Nauru and Manus Island.clxi
The Policy goes onto term the proposal a “Comprehensive ‘Regional Deterrence Framework’” which has 4 parts, with part 3 being the explicit “detention” of people at third country locations.clxii This rationale has continued to date, with the new Coalition Prime Minister Malcolm Turnbull remaining committed to Operation Sovereign Borders.clxiii
As pointed out by the International Detention Coalition in their report Captured Childhood, however, immigration detention for deterrence is clearly in contravention of international law.clxiv It thwarts claims that individuals have rights because of their individual circumstances (like asylum seekers) by suggesting they can be detained anyway, so as to send a message to others. As Michael Kagan writes:
“When a government argues that an asylum seeker should be detained in order to deter other asylum seekers, the detention becomes divorced from the conduct and characteristics of the person who is actually detained. The government may concede, explicitly or implicitly, that the detained person poses no threat to anyone. The government may even concede that she is likely to eventually be granted refugee status. The purpose of deterrence is not tied to the person detained, but rather to send a message to other people who are not even present. The more that government is able to claim that the arrival of asylum-seekers is a bad thing, the stronger will be its case for deterrence. But by the same taken, deterrence-based measures do not have a built

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the same as that contained in article 4(2) of OPCAT, which is applicable in the immigration context. This definition is “any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority”. As noted by the United Nations High Commissioner for Refugees, “detention can take place in a range of locations, including at land and sea borders, in the ‘international zones’ at airports, on islands, on boats, as well as in closed refugee camps, in one’s own

home (house arrest) and even extraterritorially”.

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in limit. In fact, the theory of deterrence is that the more severe the measure, the better. Thus, it can be difficult to strike a balance that achieves proportionality. In short, how far can a government go to infringe the rights of person A in order to send a message to person B?”clxv
With this context, the following section outlines specific findings and evidence in relation to the ODCs under Transfield’s provision of services. For the background of readers, sources of findings and evidence outlined below include sources relating to the period of the Manus ODC before Transfield commenced providing services in March 2014. They are relayed here for background and context for later findings, but not relied upon to establish any violation.
7.1.4 Findings and Evidence of Violations - MODC

• October 2013: The UNHCR noted in its report on its monitoring visit to the Lombrum facility in Papua New Guinea: “While the ongoing development of excursions and activities available to asylum- seekers is welcomed, freedom of movement remains extremely limited.”
  
• The report concluded: “The current PNG policy and practice of detaining all asylum seekers at the closed RPC, on a mandatory and open-ended basis, without an individualized assessment as to the necessity, reasonableness and proportionality of the purpose of such detention, amounts to arbitrary detention that is inconsistent with international law.clxvi
  
• December 2013: In its visit to the Manus Island Offshore Detention Centre in December 2013, Amnesty International describes the centre as:
  
• “A closed detention centre, resembling a combination of a prison and a military camp. Detainees are prevented from leaving by locked gates and security guards at the exits to each compound and the main entrance to the facility.”clxvii
  
• July 2015: The Human Rights Law Centre (HRLC) and Human Rights Watch (HRW) reported that as at 15 July 2015, there were over 850 asylum seekers detained at the Lombrum RPC, 87 of whom had been found to be refugees.clxviii The fact of their status determination having taken place does not alter the fact of their detention. According to the HRLC/HRW report: ‘With refugees unable to leave the transit center [due to a lack of resettlement options], PNG has responded with a de facto “turn off the tap” policy, which prevents new refugees from moving to the center, officials said.’clxix
  
• July 2015: The HRLC/HRW report provides the following in relation to the Lorengau Transit Centre:
  

o Although refugees living in the transit center can move around the island, they cannot leave Manus. Since 2013, PNG immigration officials have only issued eight proper PNG identity documents to refugees in the transit center. The PNG certificate of identity states they are permitted to work in PNG, but PNG immigration has prevented one refugee from leaving Manus Island to pursue employment opportunities in Port Moresby, the capital. Several refugees have sought paid or volunteer opportunities on Manus Island, but PNG immigration denied their requests.clxx
o PNG immigration officials have told all refugees staying at the transit center they are not allowed to leave Manus Island. The prohibition on refugees moving within PNG violates their rights to freedom of movement under the International Covenant on Civil and Political Rights (article

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12(1)) and is inconsistent with freedom of movement protections in the Refugee Convention (articles 26 and 31(2)).
o One refugee said, “My main problem is this is still like being in detention, just a big island detention. I’m still stuck on this island. I want to start my real life.” He added, “The process is not clear. They need to clearly tell us what are the steps to resettlement, how can we move on with our lives?”
7.1.5 Findings and Evidence of Violations - NODC

• June 2013: Australia’s Parliamentary Joint Committee on Human Rights examined the offshore detention regime in 2013 and stated that the: “... failure to put in place such [adequate procedures for individualized assessment of refugee claims] for persons held in detention for such periods appears to the committee to constitute arbitrary detention of those who have been held for an extended period.”clxxi
  
• October 2013: The UNHCR reported that: “The current Nauru policy and practice of detaining all asylum seekers at the closed RPC, on a mandatory and open-ended basis, without an individualized assessment as to the necessity, reasonableness and proportionality of the purpose of such detention, amounts to arbitrary detention that is inconsistent with international law.”clxxii
  “When viewing the legal parameters and practical realities of the RPC in their totality, UNHCR is of the view that the mandatory detention of asylum-seekers in Nauru amounts to arbitrary detention. The absence of appropriate safeguards renders the detention arbitrary, which is inconsistent with international law. This is a very serious shortcoming that needs urgent attention by both Australia and Nauru.”clxxiii
  
• February 2014: The Physical and Mental Health Subcommittee of the Joint Advisory Committee for Nauru Regional Processing Arrangements found that the perimeter of the centre was fenced and there were security checkpoints at the entry.clxxiv
  
• April 2015: The UNHCR’s submission to the Select Committee on the Recent Allegations Relating to Conditions and Circumstances at the Regional Processing Centre in Nauru restated its earlier conclusion that the circumstances at the NODC constitutes arbitrary detention.clxxv
  
• August 2015: The Select Committee on the Recent Allegations Relating to Conditions and Circumstances at the Regional Processing Centre in Nauru reported that:
  [3.127] A number of submitters and witnesses offered the observation that the overall living conditions and environment at the RPC were analogous to those of a prison.
  [3.128] Ms Samantha Betts, who had some experience of working in prisons in Australia, told the committee that:
  From a standard prison experience of what I have experienced here in Australia, they are very similar. I found the points system used for the canteen strikingly similar to an incarceration, as was the physical nature of the standardised mealtimes and standardised shower times—that sort of regimented living, I guess you would call it.
  3.129 Ms Betts observed that the one key respect in which the RPC was unlike a prison was that the detainees had no knowledge of the length of their stay.
  3.130 In a similar vein, former Chief Justice Eames said that: 

  I have seen plenty of prisons and as much as they have physical constraints they have an atmosphere about them of control and removal of entitlements, and certainly in my walking around the camp, seeing the demeanour and the interaction between the security guards and the people detained in the centre, it just struck me like any number of prisons I have seen.clxxvi 

  

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7.1.6 ‘Open Centre’ arrangements at the NODC

On 4 October 2015, the Government of Nauru announced via Government Gazette that:
"Open Centre arrangements of the Regional Processing Centre will be expanded to allow for freedom of movement of asylum seekers 24 hours per day, seven days per week, It is the intent of the Government of Nauru that these arrangements are enshrined in legislation at the next sitting of Parliament."
In legal submissions filed on 6 October 2015 by the Human Rights Law Centre in M68/2015 v Commonwealth & Ors, the uncertain nature of the “expanded open centre arrangements” is taken up:
“As to the “open centre arrangements” three things should be said. First, the statutory basis for those arrangements is opaque. ... Secondly, it is by no means clear that it is a valid “exercise of discretion”: what is seemingly there involved is what has been described by the Nauruan authorities in as an “approval in a general way”, such that there will no longer be any eligibility criteria for participation in the arrangements. It it, at the least, highly doubtful that it would be a valid exercise of the power of “prior approval”... to prospectively declare that the prohibition on leaving or attempting to leave the RPC in fact apply to no-one. Thirdly, those “arrangements” are not the subject of legislation or delegated legislation, enacted or even in draft form. Nor has there been any written change to the Centre Rules... That a Government Gazette was issued stating that the Government of Nauru’s future intention to implement the expanded arrangements was issued does not detract from their transience or their fragility.”
“Given the diaphanous nature of the expanded open centre arrangements, it is entirely possible that there will be a reversion to the past arrangements or a version thereof.”clxxvii
In addition to the uncertain legal basis of the “expanded open centre arrangements”, several important practical questions are unable to be resolved on presently available, verifiable information. For example, it is not known:

• who holds asylum seekers’ identity documents;
  
• whether the Centre Rules continue to apply;
  
• whether asylum seekers can be returned by force to the RPC and, if so, who has decision-
  making power over such return; and
  
• whether there is any surveillance/monitoring of behaviour inside or outside the RPC.
  Additionally, arguably any ‘Open Centre’ arrangements on the tiny 21km2 island of Nauru, without any legal right to leave the island and with significant safety concerns still constitutes detention. For example the UNHCR Guidelines note that:
  “[d]etention can take place in a range of locations, including... on islands (Guzzardi v Italy (1980) ECtHR, App. No. 7367/76)... as well as in closed refugee camps,... and even extraterritorially.”
  The Guidelines equate “detention” with “deprivation of liberty,” as distinct from “restrictions on liberty,” the distinction between which is “one of degree or intensity, and not one of nature or substance.”clxxviii However without a clear legal basis for the practice of an ‘Open Centre’, any judgment is premature.
  

7.2 Asylum seekers are subjected to conditions in detention which violate international standards

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“As soon as people are locked up, whether for justified or less justified reasons, society loses interest in their fate.” UN Special Rapporteur on Torture, 2010clxxix
This section provides sources and evidence regarding the conditions in detention in reference to specific violations of international law. For the background of readers, sources of findings and evidence outlined below include sources relating to the period of the Manus ODC before Transfield commenced providing services in March 2014. They are relayed here for background and context for later findings, but not relied upon to establish any violation.
7.2.1 Relevant Rights
Torture and Cruel, Inhuman or Degrading Treatment or Punishment
Article 5, UDHR
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 2, CAT
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Article 16, CAT
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.
And: Article 7, ICCPR Article 15, CRPD
Article 37(a), CRC
Humane Treatment in Detention
Article 10(1), ICCPR
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
Article 11(1), ICESCR
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
7.2.2 General interpretation of torture, cruel inhuman and degrading treatment and inhumane treatment in detention

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The following section outlines the different bases for interpreting violations of the relevant rights relating to torture, cruel inhuman and degrading treatment and inhumane treatment in detention.
Torture and cruel inhuman and degrading treatment
The difference between torture and ‘cruel, inhuman and degrading’ treatment is one of intent. Torture is always a deliberate and purposeful act; ‘cruel, inhumane and degrading treatment’ may arise through neglect.
Article 1, CAT
For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Torture is predominantly inflicted on people in detention who are in a position of powerlessness.clxxx The findings and evidence of conditions in detention outlined below may also constitute torture as defined under CAT where the treatment in question:

1. a)  causes severe pain and suffering;
   
2. b)  is intentional;
   
3. c)  is engaged in for a specific purpose (i.e. is “related to the interests and policies of the
   State”); and
   
4. d)  the State is involved, or at least acquiesces, to the conduct.
   

Some of the harm inflicted on asylum seekers and refugees in Australia’s offshore centres may be characterised as intentional and instigated or acquiesced to by the Australian Government and its contractors for the purpose of:

1. a)  deterring asylum seekers from coming to Australia by boat; or
   
2. b)  coercing asylum seekers to return to their country of origin.
   

Further findings in relation to the issue of torture are outlined in the ‘Findings and Evidence of Violations’ below.
Cruel inhuman and degrading treatment
In October 2014, The Association for the Prevention of Torture provided a considered interpretation of the elements of cruel, inhuman and degrading treatment, as applied to Australia’s offshore detention regime. It is best quoted in full:
“It is our considered view that Australia’s offshore detention of asylum seekers is likely to constitute a prima facie regime of cruel, inhuman or degrading treatment, and may even constitute torture. This assessment is based on the deliberate provision of only extremely basic conditions as part of a systematic policy in order to deter others, and the severity of suffering caused to detainees. The suffering is aggravated by the mental anguish that asylum seekers face caused by lengthy delays in processing and assessing claims, and uncertainty as to their status or future prospects, including where they will be settled if their claims are successful. For those with family members that already legally reside in Australia, they have been told they will never be able to permanently live with these family members in Australia even if they are found to be genuine refugees. Off-shore immigration detainees also have to face severe challenges of an extreme tropical climate and the consequences of the remoteness of the camps, including lack of access to appropriate or specialist medical care, lack of access to lawyers and other support services.”clxxxi

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The right to humane treatment in detention
The right to humane treatment in detention requires that persons deprived of their liberty be treated humanely and with dignity. This right complements the prohibition on torture and cruel, inhuman or degrading treatment or punishment, but is engaged by a wider range of less serious mistreatment. Mistreatment may amount to a violation of Article 10 even if it does not rise to the level of torture or cruel, inhuman or degrading treatment or punishment.
7.2.3 Findings and Findings and Evidence of Violations at the MODC

• October 2013 (pre-Transfield): Following its visit to the Manus Island Offshore Detention Centre, the UNHRC findings concluded overall conditions at the centre remained “harsh and unsatisfactory, particularly when viewed against the mandatory detention environment, slowness of processing and lack of clarity and certainty surrounding the process as a whole”.clxxxii
  
• November 2013 (pre-Transfield): Following an inspection of the MODC, Amnesty International Australia
  released a report, “This is Breaking People,” and concluded that the poor conditions of detention at the
  Centre, combined with the mandatory and indefinite nature of that detention, amounted to ill-treatment
  under Article 7 of the ICCPR, and that conditions in the P-dorm were sufficiently bad in and of themselves
  to amount to violations of the prohibitions of ill-treatment under the Convention on Torture (CAT) and the ICCPR.clxxxiii
  In evidence useful to understand the existing infrastructure conditions prior to Transfield’s service provision period to MODC in February 2014, Amnesty also described the centre as ‘resembling a combination of a prison and a military camp' comprising: ...a network of single-storey buildings, staff facilities and "compounds" that house asylum seekers, all divided by fences of about 2.4 metres in height and connected by uneven dirt tracks. The structures are a combination of World War II-era buildings with concrete walls and corrugated iron roofs, temporary structures such as marquees and "demountables" (similar to shipping containers), and basic buildings used as offices by staff.”clxxxiv
  
• March 2014: Amnesty International released a follow-up report, ‘This is Still Breaking People’, which detailed the following concerns:
  “Amnesty International remains concerned about overcrowding, particularly in relation to sleeping areas which house more than 40 detainees, and the lack of space for activities, privacy and freedom of movement. During the March visit, Amnesty International observed that P Dorm (a WWII hangar-shaped dormitory containing 112 bunk beds with little or no space between them) is still being used to accommodate asylum seekers, even though conditions within the dormitory amount to ill treatment.
  Overcrowding and the number of detainees sleeping within confined spaces continue to be problems which were also acknowledged by Dr Crouch-Chivers, the Papua New Guinea National Court-appointed medical expert. Some living areas – including an area for mental health patients – no longer have beds, but just thin mattresses on the floor. Security officers claimed this was because some detainees ‘prefer to sleep on the floor.’ However, there are some reports that suggest bunk beds were dismantled by either guards or asylum seekers and used as weapons against asylum seekers in the February violence.
  Further shade for Oscar compound has not been provided. In fact, the shaded area outside the dining area, where detainees complained in November 2013 that they wait up to three hours in the direct sun for meals, has been reduced in size. No explanation was offered by officials for this alteration.
  Since the violence on 16 and 17 February 2014, Papua New Guinean nationals no longer enter the compounds for catering or cleaning purposes. Asylum seekers are delivered meals in take-away packs for self-distribution and also bear sole responsibility for cleaning the ablution blocks. It is not clear if asylum seekers have been given appropriate cleaning equipment and products for this purpose. At the time of our site visit on 21 March 2014,ablution blocks in all compounds were dilapidated, dirty, mouldy, and several were broken or did not have running water.
  Delta compound was by far the worst, with many latrines broken and without running water. Katrina Nuess, the centre’s Operations Manager from DIBP, claimed that Australian nationals are currently being recruited as cleaners to clean and maintain ablution blocks.
  

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Likewise, other aspects of the detention centre have not improved. It is not clear whether asylum seekers have appropriate access to shoes and sufficient clothing. For example, as we walked around the compound, some asylum seekers called out that they do not have more than one shirt. Amnesty International reported in December 2013 that detainees were provided with little more than one or two pairs of shorts and t-shirts and a pair of flip flops. Personal possessions were generally confiscated prior to transfer to Manus Island and not returned. The DIBP’s Katrina Nuess said that detainees now have access to shoes. When asked for clarification, she said, “I have seen where they keep all the shoes. There are plenty there.” Consistent with our previous findings, detainees confirmed that shoes continue to be a ‘special request’ which is not always granted. Moreover, asylum seekers continued to complain about the poor quality of the food, and Dr Crouch-Chivers noted that basic hygiene standards in the kitchens, such as wearing gloves, are not consistently applied.”clxxxv

• June 2014: The Australian Government wrote a letter to Amnesty International entitled “Australian Government’s Response to Amnesty International Reports arising from visits to Manus Offshore Processing Centre.” In this letter, the Australian Government states the following: [in relation to Amnesty International’s recommendation to cease the use of P Dorm as Housing] “While there are no plans to cease using P Block, there are plans to update the block and improve the air circulation.”
  
• November 2014: The UN Committee Against Torture issues its Concluding Observations on Australia, including the following paragraph on Australia’s offshore detention regime:
  “The Committee is concerned at the State party’s policy of transferring asylum seekers to the regional processing centres located in Papua New Guinea (Manus Island) and Nauru for the processing of their claims, despite reports on the harsh conditions prevailing at the centres, including mandatory detention, including for children; overcrowding, inadequate health care; and even allegations of sexual abuse and ill- treatment. The combination of these harsh conditions, the protracted periods of closed detention and the uncertainty about the future reportedly created serious physical and mental pain and suffering.”clxxxvi
  
• December 2014: The Legal and Constitutional Affairs Committee’s Report into the violence at the MODC stated:
  “The conditions and facilities at Manus Island RPC were variously described to the committee as harsh, inadequate and inhumane. Submitters and witnesses who had been employed at the RPC identified numerous concerns, and in some cases expressed their shock, about the poor living conditions including cramped and over-heated sleeping quarters, exposure to the weather, poor sanitation and sewage blockages, unhygienic meals and poorly managed service of meals.”clxxxvii
  
• March 2015: the Special Rapporteur on Torture, Juan Mendez, found that:
  ... the Government of Australia, by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the Regional Processing Centre, has violated the right of the asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment, as provided by Articles 1 and 16 of the CAT.clxxxviii
  
• In May 2015 UN High Commissioner on Human Rights, Mr Zeid Ra’ad Al Hussein expressed ‘dismay’ that in Australia, people on boats intercepted at sea are sent to detention centres where conditions are inadequate.clxxxix
  

7.2.4 Findings and Evidence of Violations at the NODC
• October 2013: The UNHCR reported following its visit to the NODC:
“Viewed as a whole, UNHCR considers that the conditions at the [Nauru] RPC, coupled with the protracted period spent there by some asylum-seekers, raise serious issues about their compatibility with international human rights law, including the prohibition against torture and cruel, inhuman or degrading treatment (article 7, ICCPR), the right to humane conditions in detention (article 10, ICCPR) and the right to family life and privacy (article 17, ICCPR). These are matters that fall to the consideration of expert human rights bodies for closer assessment.
In light of UNHCR’s findings, UNHCR notes with serious concern the intention to expand the [Nauru] RPC’s capacity to 2,000. UNHCR is of the view that the Governments of Australia and Nauru should not expand capacity at the RPC, given the harsh conditions at the RPC and the failure to meet international law standards.”cxc

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• October 2013: Following its visit to the centre in October 2013, the UNHCR reported concerns about the adequacy of toilets and showers:
  UNHCR observed with concern that Alpha compound contains only eight toilets and two urinals for 411 asylum-seekers. Ten outdoor showers, without doors, are available. Water restrictions mean that showers are limited to four minutes per day. UNHCR was informed that water is trucked to the RPC daily.cxci
  
• November 2014: The AHRC reported in ‘Forgotten Children:
  “Nearly every first-hand account of Nauru makes reference to its overwhelming heat. The average temperature on Nauru is 31 degrees Celsius. Inside the detention centre tents, temperatures regularly reach 45–50 degrees Celsius.cxcii One child living in detention reports that “the weather here is so hot that if you sit outside in the sun for a period of time you lose consciousness”.cxciii
  “Nauruan climate is also distinctly tropical. Humidity ranges between 75–90 per cent. Rainfall is irregular and annual figures vary from less than 300 mm to more than 4000 mm per year.cxciv This means that for most of the year the environment is sparse, dusty and without grass or greenery. When it rains it pours, with flooding and leaking roofs common.”cxcv
  “Offshore Processing Centre 3 is the name of the camp where children and families are housed on Nauru. It is a gravel construction site. The tent accommodation is situated on loose and uneven rocks. Parents expressed concern that thongs wear out “almost immediately on the gravel” and children described walking and running in the centre as ‘painful’.cxcvi A former doctor who worked at the Regional Processing Centre said she could barely walk from her car to the detention centre without risking a sprained ankle.cxcvii These rocks also reflect the harsh glare of the sun. According to a former employee of Save the Children, staff need to wear strong eye protection and hats. Neither of these are readily available for children on Nauru.”cxcviii
  
• “The Island of Nauru is the site of heavy open-pit mining for phosphate. Paediatrician, Professor Elizabeth Elliott, expressed concerns about the ‘causal effect of atmospheric phosphate’ on “recurrent asthma and irritation of the eyes and skin”.”cxcix
  
• November 2014: The UN Committee Against Torture issues its Concluding Observations on Australia, including the following paragraph on Australia’s offshore detention regime:
  “The Committee is concerned at the State party’s policy of transferring asylum seekers to the regional processing centres located in Papua New Guinea (Manus Island) and Nauru for the processing of their claims, despite reports on the harsh conditions prevailing at the centres, including mandatory detention, including for children; overcrowding, inadequate health care; and even allegations of sexual abuse and ill- treatment. The combination of these harsh conditions, the protracted periods of closed detention and the uncertainty about the future reportedly created serious physical and mental pain and suffering.”cc
  
• March 2015: the Special Rapporteur on Torture, Juan Mendez, found that:
  ... the Government of Australia, by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the Regional Processing Centre, has violated the right of the asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment, as provided by Articles 1 and 16 of the CAT.cci
  
• May 2015: UN High Commissioner on Human Rights, Mr Zeid Ra’ad Al Hussein expressed ‘dismay’ that in Australia, people on boats intercepted at sea are sent to detention centres where conditions are inadequate.ccii
  
• June 2015: According to evidence given by Transfield Services to the Select Committee investigating conditions on Nauru, all the marquees on Nauru have been affected by mould. Mould was not present in the previous army-issued canvas tents.cciii At the time of evidence, 91 marquees had been treated for mould and declared mould free, leaving an unknown number still mouldy. Transfield services admitted that there was a potential for mould to return. The tents were sourced by Transfield Services, in accordance with specifications provided by the Australian Government. In submission to the Select Committee Transfield Services state that they do not have specific instructions as to whether the “marquees were recommended to be used as dwellings”.cciv
  
• July 2015: The following exchange took place in the public hearings of the Select Committee on Circumstances and Conditions in the NODC:
  

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Senator HANSON-YOUNG: What would be the response if you said, 'This child needs new shoes'?
Ms Blucher: 'We will put them on the list for an appointment. It could take several weeks.' Then they might
get to that appointment in several weeks and they might be issued with a pair of shoes that do not fit them again.
Ms Betts: My understanding was, as well, that we had to fill in a request form or assist the asylum seeker to complete a request form for Transfield to obtain these items. On several occasions—and this is just the feeling that I got from the situation—it seemed to be that they did not want to be seen to be giving preferential treatment to certain asylum seekers, so, if there was a pair of shoes that were able to fit, they were hesitant to hand them out because—
Ms Blucher: Unless they had 10 of them.
Ms Betts: Yes, unless they had 10 of them—unless they had a full amount of shoes or well-fitting clothes. It was all or none.
CHAIR: For goodness sake! How many children were on Nauru?
Ms Betts: While I was there, the capacity reached 129 children.
CHAIR: So you are saying that there was expenditure of $1.2 billion in logistics services and we could not get 120 pairs of shoes to fit those children on Nauru?
Ms Betts: Yes.
CHAIR: That it took months and appointments and requisitions for 120 pairs of shoes?
Ms Betts: Yes.
Ms Blucher: And that is when there were planes arriving frequently during the week. Why couldn't they put a bunch of shoes on a plane? This is what I do not understand.ccv

• July 2015: Geoffrey Eames, former Chief Justice of Nauru provided evidence to the Senate Committee inquiry into circumstances and conditions at the Nauru RRC:ccvi
  Senator KIM CARR: How would you describe conditions?
  Mr Eames: I thought they were absolutely appalling. I said so in very emphatic terms to the secretary of justice, who went to the camps with me, and I said so to President Waqa when I saw him in late November. I was particularly concerned about the children. It has been described by witnesses you have just heard and others. The conditions there were really quite intolerable. The heat in Nauru was unbearable at the best of times, and certainly everyone who can uses air conditioning. In the camps, the heat was just overwhelming, and I was struck by seeing small children. There was so little shade. As the day wore on, a shadow would fall from the tents, so there would be a little triangle of shade alongside the tents, and I saw all these children huddling in the shade. That was apparently the only shady place that they could find. There seemed to be no facilities for playing. Most of the kids seemed to be in thongs, and it was a rock-hard, stony surface which was really quite difficult to walk on. I would hate to be trying to walk on it in thongs. I just came away thoroughly depressed and thinking, 'Really, is that the best we can do?'
  Senator KIM CARR: Do you think it is the best we can do? Are the conditions part of the so-called deterrent of the policy?
  Mr Eames: I heard you ask the question of the previous witnesses, Senator, and I must say I was drawn to that conclusion. If you ask what hard evidence is there for that, well, it is difficult to point to it, except to say: why else would you not correct this? There are hundreds of air conditioners brought into Nauru. There were huts going up everywhere for the workers who were working on Nauru. Everyone had air conditioning. They were spending billions of dollars on this detention centre. Why would you not have air conditioning?
  
• August 2015: The Senate Committee Report on Circumstances and Conditions in the NODC found that:
  3.1 The committee received substantial evidence during its inquiry concerning living conditions in the RPC. Asylum seekers presently or formerly in the RPC related their concerns at the low standard of conditions afforded to them. Submissions received from former contractors also detailed concerns over the living conditions.
  3.5 A series of questions asked of the department regarding the facilities, amenities and accommodation at the RPC failed to elicit informative responses. The committee considers the answers provided to these questions to be inadequate.
  3.6 For example, the department was asked by the committee to provide information on the accommodation at the RPC, including specific data relating to type and size. The department's response
  

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did not provide any information to the committee: Asked: Please provide the following information: The accommodation capacity at the Nauru Detention Centre and any subsequent changes to that capacity since 1 January 2014, including accommodation type and average square metre allocation for each asylum seeker. Answer: There is sufficient accommodation capacity at the Regional Processing Centre on Nauru.
3.18 Much of the evidence received by the committee related to the conditions in RPC 3, which currently houses families and single adult female asylum seekers in white vinyl marquees measuring 10m x 12m in six compounds. The marquees are divided using vinyl walls. Families with children under the age of four are accommodated in air-conditioned marquees. According to a submission received by the committee, RPC 3 is located in a depression “much lower in elevation than any of the surrounding areas”. Ms Natasha Blucher, a former Save the Children Australia employee, described the physical environment of RPC 3: The effect of the topography of the area is such that heat is contained in the depressed area where the client accommodation is located. There is limited wind and breeze due to surrounding raised pinnacled areas. The result is a very intense and persistent heat with little reprieve.
3.19 The committee sought clarification as to why children over the age of four were not able to be placed in accommodation with air-conditioning. The department provided the following response: “With advice from service providers, the Government of Nauru determines operational matters”. The committee considers this to be an entirely inadequate response to the question.
3.20 The committee received a large volume of evidence that the living conditions in the RPC on Nauru were of a lower standard than would be accepted in Australia, and had an unacceptable lack of privacy and poor hygiene. For example, letters written by asylum seekers which were received by the committee referred to respiratory complaints arising from exposure to high levels of phosphate dust.
3.21 The living conditions were noted by a number of submitters to be hot, humid and crowded. The Darwin Asylum Seeker Support and Advocacy Network (DASSAN) informed the committee that asylum seekers were concerned about high levels of heat inside the marquees, and a lack of privacy and cleanliness. The presence of mice, rats and other pests such as mosquitos was also noted by submitters.
3.22 Transfield Services administers both scheduled and responsive cleaning programs. They noted that the maintenance of the vinyl marquees and monitoring of mosquitoes is challenging owing to the tropical conditions experienced on the island.
3.23 Several submitters raised concerns that low standards of maintenance and hygiene in the accommodation areas were having a detrimental impact on physical and mental wellbeing. The Refugee Action Collective of Queensland (RAC-Q) told the committee that substandard living conditions, stress and anxiety were leading to poor health, with high rates of “diarrhoea, mosquito related illnesses, vaginal fungal infections, coughs [and] dizziness”.
3.24 Mr Lee Gordon, Head of Nauru Programs from Save the Children Australia, told the committee that the environment was a factor for physical and mental health: “I think it would be fair to say that, in the regional processing centre, we are dealing with a range of incredibly traumatised people who are often extremely stressed. I think conditions of hardship where tent conditions are hot, where there is a lack of privacy and where you may not be able to sleep contribute to stress and I think makes a situation where self-harm or other types of antisocial behaviours are very possible. So I do think it is a contributing factor”.
• Presence of mould
3.27 The presence of mould on the inside of the white vinyl marquees used for accommodation was raised by submitters, some of whom linked its presence with eye infections and skin complaints. One submitter said that: Throughout the time that I was employed at the Nauru RPC, I observed large quantities of mould on tents, including the tents that asylum seekers lived in. The mould was black and so pronounced that people would actually write things on the outside of the tent in the mould, similar to the manner that some people write on dusty cars in Australia.
3.28 Transfield Services advised the committee that all marquees in the RPC are affected by mould to varying degrees, which for a period was treated with 'bleach wash downs': This improved the situation for a period though mould typically reappeared within a few months. In or about May–June 2014, it became clear that bleach wash downs were not a viable permanent solution.
3.29 Installation of air-conditioning units, improvements to ventilation and a more thorough cleaning regime are being carried out by Transfield Services and the department.

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...
5.64 The committee is nevertheless deeply concerned at the evidence provided which suggests that standards of living for asylum seekers in the Regional Processing Centre (RPC) are unacceptably low in a range of areas, including exposure to the elements, lack of privacy, poor hygiene and insufficient access to water and sanitation.
5.65 These matters are of concern in and of themselves, but the committee is also cognisant of the connection drawn by many submitters, including health and welfare workers with direct experience of the RPC, between the very poor living conditions at the RPC and the high level of physical and mental health problems experienced by the asylum seekers resident there.
• August 2015: In relation to access to water, the Select Committee on the Recent Allegations Relating to Conditions and Circumstances at the Regional Processing Centre in Nauru found that:
“3.31 Access to water was raised as an area of concern by submitters, who noted that there is no running water in the accommodation marquees and that obtaining water was difficult for some asylum seekers. 3.32 The Nauruan Government have said that access to water and sanitation on the island is 'challenging', and noted that most households rely on rainwater storage. The Ministry for Commerce, Industry and Environment in Nauru said that the ability to sustain water demand during times of drought is an important goal. 3.33 The department advised that RPC 2 and RPC 3 are self-sufficient in water storage, and that a major upgrade of water infrastructure on Nauru has been funded by the department: In June 2014 the Department and the Government of Nauru reached agreement to enable the upgrade of the Nauruan Utilities Corporation water production infrastructure. The Department committed significant capital costs to upgrade the Nauru water supply to ensure water security for the Regional Processing Centre. The arrangement includes the upgrade of infrastructure and the ongoing payment of all operational costs for the new units. As part of the scope, two new reverse osmosis water production units, a decant standpipe, new sea water intake pumps and backup generators were installed. 3.34 Submissions from asylum seekers formerly or presently in the RPC on Nauru referred to water restrictions impacting on their health and wellbeing through restricting access to drinking water and water for showers. The committee received letters from asylum seekers formerly or currently in the RPC which referred to short shower times of two minutes or less, water restrictions, and a lack of warm water. 3.35 A submission from Ms Alanna Maycock and Professor David Isaacs highlighted the health risks involved when drinking water cannot be accessed: Gastroenteritis is common and potentially dangerous. Parents complain they have been unable to access water at night when their children have vomiting and diarrhoea. They are rightly concerned about the risks of dehydration. 3.36 Ms Cindy Briscoe, Deputy Secretary, Immigration Status Resolution Group, Department of Immigration and Border Protection, acknowledged that restrictions on water had happened when machine maintenance was occurring: There are occasions where restrictions are placed on the water when maintenance is happening with those machines. At all times, there is ample bottled water made available... We have recently upgraded the water capacity from 300 kilolitres to 2.2 megalitres per day. 3.37 While the committee heard that bottled water was not allowed or provided inside the RPC, the department has advised that bottled water is available every day to asylum seekers.”
7.2.5 Relevant Rights
Rights to Education and Recreation
Article 13 (1) and (2), ICESCR
1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to all;

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(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;
(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.
Article 26(1), UDHR
Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
7.2.6 Findings and Evidence of Violations MODC
• December 2013 (Pre-Transfield): Amnesty International Australia reported:

•

In one bedroom in the Oscar compound we were led by an asylum seeker to the back of the room. He jumped over a bed into a small space covered by sheets between two sets of bunk beds. On the inside of the sheet the two men had drawn a large television, DVD player and games console. Using strips of bed sheet, they had made two mock electrical cords, at the end of which were two mock games controllers made from cardboard, with buttons drawn on them. “We use this to pass the time. It is no laughing matter. We pretend to play and it brings back memories of home. We sit here and cry for three hours every day.” ccvii

7.2.7 Findings and Evidence of Violations NODC

• October 2013: Following its visit to the NODC, the UNHCR reported: Recreational areas within Alpha compound include some vacant, uncovered spaces, and at least one marquee-style roof covering an area with two backgammon tables and a table tennis table. A television is brought into the compound periodically by The Salvation Army staff in order to screen films.
  UNHCR notes with concern that Alpha compound provides no opportunity for solitude and very little privacy. UNHCR did not observe any other sporting or recreational equipment in use by asylum-seekers at the time of the visit.ccviii
  
• August 2015: The Select Committee on the
Recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru reported that:
  3.91 The department advised that various recreation facilities are available in the three RPC sites. RPC 2 has “multi-use recreational facilities such as multi-faith rooms, telecommunications, education spaces, a gymnasium and volleyball areas”. RPC 3 includes: [a] children’s playground and multi-use recreation facilities including multi-faith rooms, telecommunications, education spaces, gymnasium and synthetic playing field (soccer).
  3.92 Transfield Services advised that a range of programs and activities were being developed and run: Since being engaged to provide welfare services, we have undertaken a number of enhancements to programs and activities including an increase in frequency, incorporation of asylum seeker feedback in the design and delivery of programs and activities, new educational curriculums, the introduction of asylum seeker led activities (including, for example, 'open mic' poetry night) and more vocationally relevant programs and activities.
  3.96 However, submitters told the committee that recreation activities had been conducted in unsafe levels of heat, with Mr Tobias Gunn, a former Save the Children Australia employee, telling the committee: “The heat inside the recreation tent was of an unsafe level, this was brought to the attention of managers who then, according to Senior SCA management in Melbourne took the issue to Canberra, however it was rejected”. 3.97 Mr Gunn further submitted that “the department were knowingly putting children at extreme risk of heat related illness” and that “no follow up to further investigate...the primary evidence the recreation team put forward was ever requested”. Another submitter also told the
  

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committee that “[t]his was reported to DIBP and recommendations were made to DIBP to install air- conditioning in the tent however this was never resolved and air-conditioning [was] never installed”. The effect of heat on the ability of asylum seekers to participate in recreation activities was noted by Save the Children Australia. that single adult female asylum seekers were not able to access recreation space.ccix
7.2.8 Relevant rights
Right to Privacy
Article 17, ICCPR
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
Article 16, CRC
1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks.
7.2.9 Findings and Evidence of Violations – MODC

• October 2013 (pre-Transfield): The UNHCR reported that: ‘UNHCR also observed that in the compounds at the RPC, the only real opportunity for privacy for asylum-seekers is in the ablution blocks, many of which were, according to asylum-seekers and supported by UNHCR’s first hand observations, not cleaned and maintained regularly enough.ccx
  
• December 2013 (pre-Transfield): Amnesty reported in ‘This is Breaking People’ ‘The cramped conditions result in a lack of privacy or private space. Several detainees interviewed cited privacy as a problem, particularly in the dormitories, many of which have 50 beds in one room with no partitions. Mental health staff at the facility also expressed concern at the lack of privacy, stating that the men find it difficult to find time and space to be alone. This lack of privacy and personal space can also exacerbate symptoms of anxiety or Post-Traumatic Stress Disorder’ccxi
  
• March 2014 (pre-Transfield): Amnesty reported in ‘This is Still Breaking People’ ‘Amnesty International remains concerned about overcrowding, particularly in relation to sleeping areas which house more than 40 detainees, and the lack of space for activities, privacy and freedom of movement.ccxii
  

7.2.10 Findings and Evidence of Violations – NODC

• October 2013: The UNHRC reported: ‘Viewed as a whole, UNHCR considers that the conditions at the [Nauru] RPC, coupled with the protracted period spent there by some asylum-seekers, raise serious issues about their compatibility with international human rights law, including the prohibition against torture and cruel, inhuman or degrading treatment (article 7, ICCPR), the right to humane conditions in detention (article 10, ICCPR) and the right to family life and privacy (article 17, ICCPR)’. 23
  
• March 2015: The Moss Review found that ‘there were both reported and unreported allegations of sexual and other physical assault’ in relation to children. It also found that the ‘marquee accommodation’ in Nauru presents ‘significant personal safety and privacy issues’ and the ‘lack of privacy may be a factor in the sexualised behaviours of some children in the Centre through observing adult sexual activity.’ccxiii
  
• April 2015 : The UNCHR made a submission to the Senate Select Committee Inquiry. The submission states that, “UNHCR has conducted subsequent visits to the Centre and although there have been some improvements, the harsh conditions, lack of privacy for individuals, uncertainty regarding durable solutions remain largely unchanged...Indeed, UNHCR shared its view, which it maintains, that due to the significant shortcomings at the Centre, no child, whether unaccompanied/separated or accompanied, should be transferred to Nauru from Australia.ccxiv
  
• August 2015: The Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru found that ‘The committee is nevertheless deeply concerned at the evidence provided which suggests that standards of living for asylum seekers in the Regional
  

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Processing Centre are unacceptably low in a range of areas, including exposure to the elements, lack of privacy, poor hygiene and insufficient access to water and sanitation.’ccxv (at 5.64)
7.3 Asylum seeker children are subjected to child abuse and other violations of their rights as a child
Outlined in this section are the relevant rights, and sources of findings and evidence establishing the violations of child asylum seekers’ rights under the provisions of the UN Convention on the Rights of the Child (CRC). For the background of readers, sources of findings and evidence outlined below include sources relating to the period of the Manus ODC before Transfield commenced providing services in March 2014. They are relayed here for background and context for later findings, but not relied upon to establish any violation.
Australia is unique in its treatment of asylum seeker children. No other country allows asylum seeker children to be detained indefinitely and arbitrarily.ccxvi Successive inquiries by the Australian Human Rights Commission has found that the indefinite and arbitrary detention of asylum seeker children is inconsistent with Australia’s human rights obligations under the Convention on the Rights of the Child.ccxvii
7.3.1 Relevant rights
Article 3, CRC
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
Article 6, CRC
1. States Parties recognize that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
Article 16, CRC
1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.
Article 19, CRC
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
Article 20, CRC
A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
Article 24, CRC

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1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
Article 27, CRC
1. States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.
3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.
Article 28, CRC
1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every appropriate means;
(d) Make educational and vocational information and guidance available and accessible to all children;
(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
Article 31, CRC
States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.
Evidence of violations – MODC

• [Pre-Transfield] October 2013: The UNHCR reported that “the pre-transfer assessments that are conducted in Australia within a targeted ‘48 hour’ timeframe do not permit an adequate individualized assessment of health concerns or vulnerabilities (particularly for torture and trauma survivors), nor a considered assessment as to whether the nature of the facilities and services available at the RPC would be appropriate for the individual concerned or whether transfer should occur at all. At the time of UNHCR’s visit, it was particularly concerned by the presence of at least two unaccompanied children and, subsequent to the visit, more recent reports of others who claim to be under 18 years of age. This highlights the need for, and importance of, accurate and effective pre-transfer assessments.”ccxviii
  
• [Pre-Transfield] November 2013: Amnesty International in This is Breaking People reported that they: “interviewed three other asylum seekers who gave their ages as between 15 and 17. When we raised their cases with Australian senior immigration officials, they told us that each had been determined to be above the age of 18. The treatment of their cases raises serious concerns about the age assessment procedures employed by Australia’s Department of Immigration and Border Protection (DIBP). Particularly since early September, with the introduction of a new rule that asylum seekers must be transferred to Papua New Guinea within 48 hours of arrival on Christmas Island, initial assessments are made within a short time frame and thus appear to rely heavily on observations of physical appearance. Additionally, age determination interviews on Manus Island are carried out by teleconference with age determination officers in Australia. DIBP officials on Manus Island take part in those interviews even though they are not themselves trained in age assessment procedures. Manus Island - based DIBP officials may in practice weigh discrepancies in children’s accounts heavily against them and appear to treat proffered identity documents as presumptively fraudulent. As a consequence, in practice DIBP may not give children the benefit of the doubt, as required by its own procedures and international standards.”ccxix
  
• May 2014: ADIBP reported that as of 4th April 2014 “there were 15 transferees accommodated at the Manus OPC who had personally raised claims they were under the age of 18. In each case, transferees were given the opportunity to provide further information or documentation to support their age related claims.”ccxx
  

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Evidence of violations – NODC

• October 2013: the UNHCR reported that children at the Nauru detention centre “do not have access to adequate educational and recreational facilities” ... ““with a lack of a durable solution within a reasonable timeframe”.ccxxi
  
• October 2013: the UNHCR concluded that “children have been transferred [to the Nauru Offshore Detention Centre] without an assessment of their best interests and without adequate services in place to ensure their mental and physical wellbeing.” It also stated: [T]he harsh and unsuitable environment at the closed RPC is particularly inappropriate for the care and support of child asylum-seekers. [...] UNHCR is of the view that no child, whether an unaccompanied child or within a family group, should be transferred from Australia to Nauru.ccxxii
  
• February 2014: the Physical and Mental Health Subcommittee of the Joint Advisory Committee for Nauru Regional Processing Arrangements reported that: “There are no toys, including no soccer or volleyballs; parents reported all they can play with is the white stones and running, there is nothing to do. Excursions are limited, they do not have freedom of movement, and so are not able to engage or play in the natural environment. Crowded living conditions are of significant concern from a public health perspective, particularly if there are concerns over sanitation and water, and where individuals have not had adequate health screening or vaccination. Children are particularly vulnerable to the negative consequences of detention on mental health, and detention adversely affects families and parenting. Many children will have been exposed to cumulative risk factors in their countries of origin and during their migration journey, and will have physical and mental health issues making them more vulnerable to the effects of detention. The length of detention is an additive factor. Children are likely to have adverse developmental and mental health outcomes, but as there is currently no developmental surveillance, it will not be possible to quantify the impact.”ccxxiii
  
• February 2014: the Physical and Mental Health Subcommittee of the Joint Advisory Committee for Nauru Regional Processing Arrangements reported that: “There is a significant and ongoing risk of child abuse, including physical and sexual abuse, in the detention environment where large numbers of children and adults are held in crowded conditions without normal social structure or meaningful activities. There is a lack of staff experience in child protection and there is a lack of clarity on the IHMS, stakeholder, and local processes for managing and investigating child protection issues. Nauru does not currently have a child protection framework.”ccxxiv
  
• November 2014: the Australian Human Rights Commission reported in The Forgotten Children, that:
  Current detention law, policy and practice does not address the particular vulnerabilities of asylum seeker children nor does it afford them special assistance and protection. Mandatory detention does not consider the individual circumstances of children nor does it address the best interests of the child as a primary consideration (article 3(1)). Detention for a period that is longer than is strictly necessary to conduct health, identity and security checks breaches Australia’s obligations to:
  

o detain children as a measure of last resort and for the shortest appropriate period of time (article 37(b))
o ensure that children are not arbitrarily detained (article 37(b))
o ensure prompt and effective review of the legality of their detention (article 37(d)).
Given the profound negative impacts on the mental and emotional health of children which result from prolonged detention, the mandatory and prolonged detention of children breaches Australia’s obligation under article 24(1) of the Convention on the Rights of the Child.
At various times children in immigration detention were not in a position to fully enjoy their rights under articles 6(2), 19(1), 24(1), 27 and 37(c) of the Convention on the Rights of the Child.ccxxv
• November 2014: the Australian Human Rights Commission reported in The Forgotten Children, that:
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The failure of the Commonwealth to remove unaccompanied children from detention environments which inhibit recovery from past trauma is a breach of the Convention on the Rights of the Child, article: 39: States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
The failure of the Minister for Immigration and Border Protection to release unaccompanied children from detention breaches the Convention on the Rights of the Child, articles 3(1) and 18(1): ...Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
Current guardianship arrangements do not afford unaccompanied children special protection and assistance as required by the Convention on the Rights of the Child. This breaches article: 20(1): A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 20(2): States Parties shall in accordance with their national laws ensure alternative care for such a child.
The failure of the Commonwealth to appoint an independent guardian for unaccompanied children in immigration detention breaches the Convention on the Rights of the Child, article 20(1).ccxxvi

• November 2014: the Australian Human Rights Commission reported in The Forgotten Children, that:
  The Commission finds that the inevitable and foreseeable consequence of Australia’s transfer of children to Nauru is that they would be detained in breach of article 37(b) of the Convention on the Rights of the Child.
  The Commission finds that Australia transferred children to Nauru regardless of whether this was in their best interests, in breach of article 3(1) of the Convention on the Rights of the Child.
  The Commission has serious concerns that the conditions in which children are detained on Nauru are in breach of the Convention on the Rights of the Child, articles 19(1), 20(1), 24(1), 27(1), 27(3), 28, 31 and:
  16(1): No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
  34: States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.
  37(a): No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.ccxxvii
  
• November 2014: the Australian Human Rights Commission reported in The Forgotten Children, found a failure to: “document any individualised assessment of the unaccompanied child’s educational, care, welfare and service related needs. There is also no information provided about the quality of the facilities and services on Nauru to support the findings that these facilities and services are appropriate to support that child’s needs”.ccxxviii
  
• March 2015: The Moss Review reported an “absence of a specific child protection framework or mandatory reporting requirements of all abuse allegations involving minors under Nauruan law. As such, the Review notes that once the avenues in the Centre have been exhausted, issues involving child protection may not be escalated or actioned appropriately or in a timely manner and that there is limited expertise to conduct investigations into child protection issues.”ccxxix
  
• March 2015: the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stated that: “by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the Regional Processing Centre, [Australia] has violated the right of the asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment”.ccxxx
  

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• August 2015: the AHRC told the Senate Select Committee that “the pre-transfer assessments which are undertaken by the department before asylum seekers are transferred were 'inadequate': The Commission reviewed a number of the pre-transfer assessments conducted in relation to children as part of the Inquiry. The Commission concluded that Departmental officers do not assess the care and welfare needs of an individual child and consider whether those needs can be met in the RPC in Nauru before recommending the child’s transfer.”ccxxxi
  
• August 2015: the Senate Select Inquiry reported that: “More than one submission provided the example of an incident reported in April 2014 in which two adolescent female asylum seekers had been subjected to sexual innuendo and harassment from male security guards, including attempts to hug and kiss them and inviting them to a “sexy party”. Wilson Security responded that the incident was “thoroughly investigated”, but the matter was closed in the absence of further evidence when the asylum seekers declined to make a formal complaint.”ccxxxii
  
• August 2015: the Senate Select Inquiry relayed the evidence of a former Save the Children staffer Samantha Betts who said that: “The issue of clothing is absolutely horrendous. There were parents who actually had to cut holes in their children's sneakers because their feet were growing too much and the shoes were too small. Children would often ask us to help fix their thongs, which we tried to do on several occasions—we got a bit ingenious with bread ties and bits of string.”ccxxxiii
  
• August 2015: the Senate Select Inquiry reported that: “The committee was provided with letters written by asylum seekers formerly or currently in the RPC on Nauru which detailed the effect of extreme stress and mental health issues on parenting. One asylum seeker wrote that they had attempted suicide because they were not fully able to care for their two children in the RPC.”ccxxxiv
  
• August 2015: the Senate Select Inquiry stated: “Based on the evidence received by this inquiry, the committee has reached the conclusion that the RPC in Nauru is not a safe environment for asylum seekers. This assessment is particularly acute in relation to women, children and other vulnerable persons. Children 5.72 The committee is particularly disturbed by the evidence it has received about abuse of children, traumatisation and mental illness among children, and the impact of the persistent, indefinite detention of children in the poor conditions which prevail at the RPC. These children are not only denied a reasonable approximation of childhood in the RPC, but often do not feel safe, and in fact often are not safe. Their extreme vulnerability is further exacerbated by their location in a country which lacks an adequate legal or policy framework for their protection. 5.73 The committee accepts the evidence provided by legal experts that the continued transfer of children to Nauru, and detention of them in the RPC, is likely to breach Australia's obligations under the Convention on the Rights of the Child.”ccxxxv The Inquiry then “concludes that the RPC Nauru is neither a safe nor an appropriate environment for children and that they should no longer be held there. Recommendation 5.76 The committee recommends that the government extend its current policy commitment to remove children from immigration detention to the maximum extent possible, to include the removal of children from the Regional Processing Centre in Nauru. The government should develop a plan for the removal of children from the Nauru RPC as soon as possible, with their families where they have them, to appropriate arrangements in the community.”ccxxxvi
  

7.4 Asylum seekers are denied their right to health
Outlined in this section are the relevant rights, and sources of findings and evidence establishing the violations of the right to health, and specifically the right to health of women and children. For the background of readers, sources of findings and evidence outlined below include sources relating to the period of the Manus ODC before Transfield commenced providing services in March 2014. They are relayed here for background and context for later findings, but not relied upon to establish any violation.
7.4.1 Relevant rights
Right to Health

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ICESCR
Article 12
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
7.4.2 Findings and Evidence of Violations - MODC
[Pre-Transfield]

• August 2012, the Human Rights Law Centre reported the absence of adequate mental health care facilities in offshore detention centres, and the harsh conditions in excised off-shore detention centres which may exacerbate pre-existing trauma, distress and mental illness. ccxxxvii
  
• [Month unknown] 2013, the AHRC reported that “between January 2011 and February 2013 there were 4,313 incidents of actual, threatened and attempted serious self-harm recorded in immigration detention facilities in Australia ... Between 1 July 2010 and 20 June 2013, there were 12 deaths in immigration detention facilities. Coroners have found that six of those deaths were suicides”.ccxxxviii
  
• [Month unknown] 2013, the AHRC noted that the UNHCR has condemned the Australian Government for continuing to detain people in the knowledge that it was contributing to mental illness.ccxxxix
  
• [Month unknown] 2013, the AHRC noted “the strong link between prolonged detention and the development (or exacerbation) of mental health problems”.ccxl
  
• [Month unknown] 2013, the AHRC reported that the mental health impacts of detention are a combination of “remote, climatically harsh, overcrowded” living conditions in detention centres, inadequate health care services, and the effects of “bringing together groups of people in the same situation, experiencing frustration, distress and/or mental illness”, which can lead to “a ‘contagion’ effect”. ccxli The AHRC stated that “[i]t has been clearly established that detention for prolonged and uncertain periods of time both causes and exacerbates mental illness”.ccxlii
  
• July 2013, UNHCR found that medical services at MODC were limited, that asylum seekers were forced to wait for a long time for treatment, that supplies of medication were restricted and resources for specialised medical treatment were inadequate.ccxliii A further UNHCR report in October 2013 found many of those concerns persisting, and worsening. The October report stated that detainee numbers at the Offshore Detention Centre had increased from 302 in June to 1,093 in October, with almost no increase in accommodation or site area for the Offshore Detention Centre.
  
• October 2013, the UNHCR reported from Manus Island Offshore Detention Centre that all asylum seeker groups “expressed deep anxiety” and that their mental health was “deteriorating”.ccxliv The UNHCR made various recommendations as a matter of urgency to address this problem.ccxlv In a follow up report in October 2013, the UNHCR found some improvements, but that the policy settings and the physical environment on Manus Island continued to contribute to mental and physical health risks.ccxlvi The October report stated “the conditions of detention are already aggravating symptoms caused from pre- existing torture and trauma” and “[i]t can reasonably be anticipated that the mental health of asylum- seekers will deteriorate rapidly if these underlying factors are not addressed as a matter of priority. Experience with processing in PNG, Nauru and Australia in earlier years lends weight to this as a factor that will require very close attention”.ccxlvii
  
• October 2013, the UNHCR observed at the Manus Island Offshore Detention Centre: “The pre-transfer assessments that are conducted within Australia within a targeted ‘48-hour’ timeframe do not permit an adequate individualized assessment of health concerns or vulnerabilities (particularly for torture and
  

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trauma survivors), nor a considered assessment as to whether the nature of the facilities and services available at the Offshore Detention Centre would be appropriate for the individual concerned or whether transfer should occur at all.”ccxlviii The AHRC also said that“[t]he pre-transfer assessments do appear to include procedures to identify vulnerable individuals, including unaccompanied minors, families with children, pregnant women, people with serious health issues, and survivors of torture and trauma”. ccxlix

• October 2013, the UNHCR observed on Manus Island that “the ablution blocks, many of which were ... not cleaned and maintained regularly enough. In the Delta compound, UNHCR was particularly concerned to observe one of the blocks that smelt putrid and had blocked shower drains with several inches of filthy water flooding the floor, was badly lit and not adequately ventilated”. ccl
  
• October 2013, the UNHCR found in Manus Island Offshore Detention Centre that population density had increased, and that recreational space had been lost to more accommodation for increased numbers. UNHCR described the conditions as “cramped, hot and confined”.ccli
  
• October 2013, UNHCR observed that there was limited dental care on Manus Island, which was being provided by the local dentist in Lorengau. The dentist had recently acquired a drill, meaning that he would be able to do fillings rather than just extractions of teeth. Asylum-seekers’ teeth were extracted when less invasive procedures may have been performed, perhaps if more adequate equipment had been available. UNHCR reported that asylum-seekers were very distressed at having had their teeth extracted, rather than receiving fillings.cclii
  
• On 4 November 2013, the APNA stated:
  conditions in off-shore detention centres do not promote adequate health care: “Main concerns surrounding the provision of adequate health services, particularly on Nauru and Manus Island, include a lack of mental health care and engaging activity, increased risks of communicable diseases, the threat of malaria (particularly on PNG, where there is a 94 per cent risk of infection), inadequate supply of vaccinations, lack of medical accountability and measurement of the standards of care, and the inability of professionals to act autonomously.” ccliii
  conditions in remote detention centres are unacceptable, noting their concerns about the “lack of mental healthcare and engaging activity” on Manus Island and Nauru Offshore Detention Centres. ccliv
  that “[e]xperience shows us that off-shore detention and regional processing facilities expose asylum seekers to environmental and infrastructure deficiencies. Having detainees live in such close proximity presents significant risks to health, particularly the transference of disease and infection”. cclv
  
• May 2014, Daniel Webb, Director of the HRLC, gave evidence to the parliamentary inquiry that: “[w]e were also taken to one area where security staff advised ‘psych patients’ were kept. The area included two shipping containers split into four rooms, each room containing one mattress on the floor, and was sealed off from the rest of the centre by a tall fence. The men detained therein were visibly distressed.”cclvi
  
• In May 2014, the Human Rights Law Centre described sanitation conditions on Manus Island as follows: “[w]ater is limited, health care and sanitation facilities are grossly inadequate, and asylum seekers are exposed to the elements.”cclvii
  [Post-Transfield]
  

• In September 2014, in Manus Island Offshore Detention Centre , Hamid Kehazaei contracted cellulitis after cutting his foot. The 24-year-old asylum seeker from Iran made several requests for treatment which were denied. Within days, the cellulitis developed into septicaemia. He was transferred back to Australia, but died soon after his arrival. Mr Kehazaei was reportedly kept on Manus Island for a week waiting for approval to be medically transferred to Port Moresby, despite showing signs of septicaemia. Dr Peter Young, the former director of mental health services at detention centre service provider International Health and Mental Services (IHMS) has explained: “whenever people are placed in a remote place like this, where there aren’t access to local services on the ground, it inevitably creates a situation in which there are going to be delays when people have deteriorating conditions and when higher level, tertiary care is required.” cclviii
  
• October 2014, psychiatrist, Dr Peter Young, the former director of mental health services with IHMS, the organisation which was contracted to provide health care services in immigration detention centres, gave
  

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evidence to the AHRC The Forgotten Children inquiry stating that the immigration detention environment is ‘inherently toxic’ and akin to torture.cclix

• The UN’s Committee Against Torture (CAT) observed in December 2014 “harsh conditions prevailing in [Australia’s offshore detention] centres, including ... inadequate health care”. The CAT found that in many places of detention mental health care services are inadequate. The CAT also found that Australia “should strengthen its efforts to bring the conditions of detention in all places of deprivation of liberty in line with relevant international norms and standards, including the Standard Minimum Rules for the Treatment of Prisoners and the Bangkok rules, in particular by: a) continuing to reduce overcrowding, particularly through the wider application of non-custodial measures as an alternative to imprisonment, in the light of the Tokyo Rules; and b) ensuring that adequate somatic and mental health care is provided for all persons deprived of their liberty, including those in immigration detention”.cclx
  
• In 2015, Transfield submitted, in questions on notice that between the period September 2012 – 30 April 2015 the outline of all critical or major incidents which required Transfield or its subcontractors to report the incident to the Department;cclxi (note: excluding incidents which were reported by Save or IHMS)
  There were 253 cases of Actual Self-Harm (with 10 deemed critical), and 10 cases of attempted serious self-harm (an incident of Actual self-harm every four days serious enough to require reporting to the Department)
  

7.4.3 Findings and Evidence of Violations - NODC

• August 2012, the Human Rights Law Centre reported the absence of adequate mental health care facilities in offshore detention centres, and the harsh conditions in excised off-shore detention centres which may exacerbate pre-existing trauma, distress and mental illness. cclxii
  
• [month unknown] 2013, the AHRC, citing an investigation by Amnesty International, reported “the capacity of essential services in Nauru such as specialist health care, and law enforcement to ensure safety, will not be able to cope with the needs of asylum seekers on the island, especially if 1500 are placed there. There are currently 56 beds in the Nauruan hospital and it relies heavily on specialists that fly in several times a year.”cclxiii
  
• [month unknown] 2013, AHRC reported that “between January 2011 and February 2013 there were 4,313 incidents of actual, threatened and attempted serious self-harm recorded in immigration detention facilities in Australia ... Between 1 July 2010 and 20 June 2013, there were 12 deaths in immigration detention facilities. Coroners have found that six of those deaths were suicides”.cclxiv
  
• [month unknown] 2013 AHRC noted in 2013, that the UNHCR has condemned the Australian Government for continuing to detain people in the knowledge that it was contributing to mental illness.cclxv
  
• [month unknown] 2013, the AHRC reported that the mental health impacts of detention are a combination of “remote, climatically harsh, overcrowded” living conditions in detention centres, inadequate health care services, and the effects of “bringing together groups of people in the same situation, experiencing frustration, distress and/or mental illness”, which can lead to “a ‘contagion’ effect”. cclxvi The AHRC stated that “[i]t has been clearly established that detention for prolonged and uncertain periods of time both causes and exacerbates mental illness”.cclxvii
  
• October 2013, the UNHCR reported from Nauru: cclxviii
  the majority of asylum seekers were living in cramped, overcrowded and oppressive conditions; recreational space had been built over; and ablution blocks were unhygienic, with blocked drains, dim lighting, a putrid smell and “several inches of filthy water flooding the floor”. Extreme heat and humidity, as well as insects and parasites (especially malaria from mosquitoes) created health concerns, and there were food hygiene issues. The UNHCR found that conditions in the Offshore Detention Centre were “harsh and unsatisfactory”.cclxix On Nauru, the UNHCR identified a range of health and hygiene issues including skin and other infections, and lice infestations.
  “the harsh and unsuitable environment at the closed [Centre on Nauru] is particularly inappropriate for the care and support of child asylum-seekers...no child, whether an unaccompanied child or within a family group, should be transferred from Australia to Nauru”. The UNHCR noted, in particular, lack of
  

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access to “adequate educational and recreational facilities”. UNHCR made similar findings in Manus Island Offshore Detention Centre . The UNHCR noted “deteriorating mental health of children in the RPC, which was impacting on their ability to engage in educational activities” and “unsuitability of the terrain for children to play (including areas of rocky ground, with glass shards and other debris)”, along with other general health risks including exposure to trauma and diseases such as malaria.

• November 2013, the Australian Primary Health Care Nurses Association stated: cclxx
  conditions in off-shore detention centres do not promote adequate health care: “Main concerns surrounding the provision of adequate health services, particularly on Nauru and Manus Island, include a lack of mental health care and engaging activity, increased risks of communicable diseases, the threat of malaria (particularly on PNG, where there is a 94 per cent risk of infection), inadequate supply of vaccinations, lack of medical accountability and measurement of the standards of care, and the inability of professionals to act autonomously.”
  “[e]xperience shows us that off-shore detention and regional processing facilities expose asylum seekers to environmental and infrastructure deficiencies. Having detainees live in such close proximity presents significant risks to health, particularly the transference of disease and infection”.
  
• February 2014, The Physical and Mental Health Subcommittee reported the following:
  that there are limited health care services in Nauru. One hospital serves the local population of 10,000 people. There is a two-bed emergency room, a two bed high dependency unit, 12 acute adult beds, four acute paediatric beds, 16 long stay beds, two delivery rooms, six maternity beds and a single operating theatre. It also has an additional renovated four-bed ward for the use of International Health and Medical Services.cclxxi Referrals may be made from the Nauru Offshore Detention Centre to the local hospital for acute clinical care, though there was not (as at February 2014) a Memorandum of Understanding (MOU) between the hospital and the Offshore Detention Centre as to how referrals are handled. cclxxii The Physical and Mental Health Subcommittee raised concerns that “conditions at the hospital are difficult, particularly following the 2013 fire”.cclxxiii There is a shortage of the most basic equipment: “There is no bed linen (patients families usually provide this when they are admitted), there are limitations with infection control procedures, the medical incinerator has not been functioning for some time, and the buildings have structural issues, including the use of asbestos sheeting. Visiting medical specialists are asked to bring their own equipment and supplies, including drapes.”cclxxiv
  Certain hospital services are not offered in Nauru, partly due to shortages in resources. As of February 2014, there was no obstetrician at the Nauru hospital and hospital maternity services were provided by midwives.cclxxv
  there was no blood bank on Nauru. In situations requiring a transfusion, relatives are needed to donate blood at the hospital. There is no facility for antibody testing or blood borne virus screening.cclxxvi
  provision of medical services at NODC was inadequate in many respects. Gaps in health service access, and system inefficiencies, which may delay presentation and proactive health and mental health care. The IHMS failure to attend appointment rate is 25% to 30% suggesting inefficiency in the appointment booking and support process. There were consistent reports across both Offshore Detention Centres of long waiting times for appointments, and of having to make multiple requests for appointments. There have been 53 medical transfers for mental and physical health issues over the 12 months of November 2012 to November 2013, representing significant cost. Dental service access is identified as an area of particular concern, with 240 people on a waiting list. Other risks include the differential health screening for children and adults, challenges with data management, and that only basic pathology tests are available on Nauru, blood cultures are not available, and any complex tests are sent to Australia.cclxxvii
  the absence of specialist medical professionals to cater to particular needs, including paediatricians and psychiatrists. There are no staff with acute paediatric life support training, a lack of resuscitation support for infants and children, and no facility for advanced paediatric life support at the Republic of Nauru hospital. The Subcommittee reported that “[c]hildren deteriorate quickly when they are unwell, and the 24–36 hour timeframe for medical evacuation will not allow support during the critical early period of a severe illness ... One baby in 37 dies in the neonatal period in Nauru.” cclxxviii
  there were various areas in which health services in Nauru were insufficient. IHMS staff interviewed by the Subcommittee “identified the need for optometry/ ophthalmology services, dental services, minor
  

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theatre facilities, a short-stay type ward area, an ambulance with improved resuscitation facilities, improved quality ultrasound and a mental health clubhouse/drop in room.”cclxxix
gaps in physical health screening systems including a lack of health screening in children - there are inefficiencies in adult health screening with “rapid turnaround” policies resulting in people being returned to Australia, and there is a lack of health screening in children, which is not appropriate in the situation of transfer to an offshore processing environment” ... It also observed that “there are critical issues with the lack of health screening for children in held detention, including those transferred for offshore processing.” cclxxx
people in the Nauru Offshore Detention Centre were not being screened for illnesses like tuberculosis and hepatitis, nor for parasite infections (like Giardia and Strongyloides stercoralis), known to be common among refugee cohorts. The Subcommittee noted that the immigration department protocols for screening are sound, but that they are not implemented. There was also no child developmental surveillance, which is an important component of mental health monitoring. Failure to properly screen means that asylum seekers may not being delivered health care that meets their particular needs, and that health and disability issues can arise after transfer. cclxxxi
“[c]rowded living conditions” which create public health risks. This is especially so given concerns over sanitation and water, and the fact that many people had not been properly screened or vaccinated.cclxxxii Detainees on Nauru also reported problems with vermin, pests and the tent accommodations in which they live, to the Subcommittee: “the tents leaked with rain (wetting bedding), mosquitoes prevented sleep at night, and that there were spiders, rats and scorpions.”cclxxxiii
immunisation programs were not being comprehensively delivered on Nauru, generating particular risks for children.cclxxxiv There is only a limited history and examination of children under 11 years, no blood screening under 15 years. The Subcommittee on Physical and Mental Health says that these practices are not sufficient to detect hepatitis B and latent tuberculosis, nor for parasite infections (like Giardia and Strongyloides stercoralis), known to be common among refugee cohorts. The Subcommittee also found that immunisation programs were not being comprehensively delivered.cclxxxv The Subcommittee also noted that “[i]ncomplete immunisation is an avoidable risk factor for outbreaks of vaccine preventable diseases such as measles, mumps, rubella, chicken pox, pertussis and influenza, which are more likely in close living conditions.”cclxxxvi
“[b]ased on current prevalence data, there are likely to be multiple children with undiagnosed blood borne virus infections such as hepatitis B, and up to 50 per cent of children will have latent tuberculosis infection with their risk of developing active tuberculosis increased by young age, recent migration and social stressors, all of which are relevant in this setting. Currently there is no child developmental surveillance, which is also an important form of mental health monitoring. The lack of child health screening means health issues and disability are likely to arise after transfer.” cclxxxvii
crowded living conditions and the environment of the Nauru Offshore Detention Centre would be likely to lead to outbreaks of communicable diseases.cclxxxviii The Subcommittee made a number of risk management recommendations including comprehensive vaccination, education about hand washing, access to hand sanitisers, and mosquito control and surveillance.
conditions in the Nauru Offshore Detention Centre are likely contributing to poor mental health: “[c]rowded, hot and humid living conditions in an enclosed detention environment with minimal access to meaningful activities, for prolonged periods, with uncertain endpoints. Adults described boredom, hopelessness and helplessness, and very limited access to activities. Many people described an overwhelming sense of uncertainty about progress, and information dissemination was repeatedly identified as an issue ... People spoke of extreme difficulties sleeping due to the heat, and mosquitoes, exacerbating mental health issues.” cclxxxix
identified the particular mental health risk factors that apply to asylum seeker populations: “people in held detention have a number of significant risk factors for adverse mental health outcomes, including past trauma and sometimes torture, family separations and loss, disruption of community, education and employment, prolonged uncertainty, a sense of being trapped, a lack of understanding or trust in the RSD process, and feelings of hopelessness.” ccxc
reported its concerns about the absence of a full time psychiatrist in Nauru Offshore Detention Centre. ccxci

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identified particular concerns regarding children’s mental health, given “limited meaningful play and reduced hours of schooling in difficult conditions without monitoring systems”. ccxcii The Subcommittee found that these conditions are likely to “cause and maintain mental health problems and more generally, lead to widespread hopelessness and boredom with the potential for unrest.”
that conditions in the Nauru Offshore Detention Centre were likely to contribute to mental health problems, and that there were low numbers of people in the Psychological Support Program (PSP) despite critical issues with self-harm and suicide.ccxciii Between 30 September 2012 and 20 November 2013, there were 102 incidents of self-harm. ccxciv These numbers do not include voluntary starvation.

• -  18 people tried to hang or asphyxiate themselves on 28 occasions
  
• -  Five people cut their own neck or throat
  
• -  Nine people sewed their lips together
  
• -  Many others took drug overdoses, burned themselves with cigarettes and cut themselves
  
• -  12 people had made more than one self-harm attempt
  
• -  Nine people had made more than four self-harm attemptsccxcv
  
• -  One detainee stabbed themself in the abdomen and trachea, requiring complex surgery. This
  incident was not recorded as self-harm. ccxcvi
  
• -  There was no obstetrician available on Nauru at the time of the Physical and Mental Health Subcommittee’s visit in early 2014.ccxcvii
  
• -  Very high rates of depression amongst pregnant women and women in the post-partum period. ccxcviii
  

• February 2014, the AMA noted high and rising incidences of psychological illness in detention “almost 45 per cent of detainees were diagnosed with psychological problems in the September 2013 quarter”.ccxcix
  
• December 2014, The United Nations Committee Against Torture stated that there were “harsh conditions prevailing in [Australia’s offshore detention] centres, including ... inadequate health care”. ccc
  
• The AHRC observed the following in its 2014 The Forgotten Children inquiry:
  “[Immigration department] officers do not assess the care and welfare needs of an individual child and consider whether those needs can be met in the Centre in Nauru before recommending the child’s transfer. The [AHRC] found that Australia transferred children to Nauru regardless of whether the transfer was in those children’s best interests, in breach of Australia’s obligations under international law The Commission also found that some asylum seekers, including children, were sent to Nauru despite having physical and mental health problems.”ccci
  many problems with sanitation on Nauru, especially in relation to the toilets and showers. Showers were sometimes restricted to 30 seconds per day. cccii At other times, there was no water available for showers. A doctor who had worked on Nauru gave evidence that the state of the toilets contributed to dehydration as many women and children “didn’t want to drink water during the day because they didn’t want to use the shared toileting facilities”.ccciii
  
• December 2014, The UN’s Committee Against Torture (CAT) observed that in many places of detention mental health care services are inadequate. The CAT found that Australia “should strengthen its efforts to bring the conditions of detention in all places of deprivation of liberty in line with relevant international norms and standards, including the Standard Minimum Rules for the Treatment of Prisoners and the Bangkok rules, in particular by: a) continuing to reduce overcrowding, particularly through the wider application of non-custodial measures as an alternative to imprisonment, in the light of the Tokyo Rules; and b) ensuring that adequate somatic and mental health care is provided for all persons deprived of their liberty, including those in immigration detention”.ccciv
  
• April 2015, Transfield submitted, in questions on notice that between the period September 2012 – 30 April 2015 the outline of all critical or major incidents which required Transfield or its subcontractors to report the incident to the Department;cccv (note: excluding incidents which were reported by Save or IHMS)
  

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There were 253 cases of Actual Self-Harm (with 10 deemed critical), and 10 cases of attempted serious self-harm
• Aug 2015, the Senate Select Committee on Nauru related: “Ms Alanna Maycock and Professor David Isaacs provided the committee with comments and recommendations made by them to IHMS after their visit to Nauru. In their submission, they referred to a culture of scepticism and mistrust of patients, lack of respect shown to patients, and use of a boat number ID to refer to patients instead of the patient's name.”cccvi
Women’s and Children’s Right to Health
CEDAW
Article 12
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
Article 24, CRC
1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
7.4.4 Findings of evidence and violations – NODC
• February 2014, AHRC The Forgotten Children report
includes an assessment of conditions for mothers and newborn babies. The AHRC explains that “[p]regnant women and women who have recently given birth are especially vulnerable to their physical and emotional environment ... birthing often occurs in isolation from familiar people, with limited access to interpreters”.cccviiMothers have talked about the challenges of supporting and caring for their newborn babies.
“... three women who have terminated their pregnancy because they believed that their babies would die in detention....” cccviii ... at least four requests and that two terminations (at least) have been carried out – all four families were transferred from Nauru to the Australian mainland. In all cases, the motivating factor for exploring the termination option has been that the family cannot perceive how they can raise a baby on Nauru. In all four cases, the women have expressed that if it were not for their immigration detention on Nauru, they would very much want to have these babies. cccix
a “pattern of fear” amongst pregnant women about the conditions of detention on Nauru. Dr Sue Packer, a Paediatrician reported that parents of newborns were terrified of being taken to Nauru and that they particularly feared for their babies there. One woman who had recently given birth in Melbourne Detention Centre, had been suicidal on Nauru and since the birth of her baby she had hardly left her room. Serco officers had threatened to separate her from her baby with the words: “Not getting out of the room won’t stop you from going back to Nauru”.cccx Dr Sanggaran, a General Practitioner gave evidence of seemingly punitive practices concerning pregnant women with particular health needs: “[s]o this is the lady who came to Christmas Island and due to the lack of capabilities in terms of antenatal care we were unable to determine whether or not she had twins. She believed that she had twins and thinking that she did have twins she was sent to Nauru. In the context of a conversation with the medical director about the capabilities of Nauru, the discussion progressed and I was told that she was sent to Nauru as an ‘example’ of how this was to show that even [though] you’re pregnant with twins there will be no advantage and you [will] still be sent to Nauru.” cccxi

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February 2014, AHRC The Royal Australasian College of Physicians (RACP) has noted a lack of available weaning foods and lack of flexibility in meals for toddlers and infants, while also having been provided with expired baby food.cccxii
Another man tells the story of his son’s anger and frustration at abandonment. His mother was transferred from Nauru to Darwin to give birth to another baby. The five -year-old son hated his mother for abandoning him. The boy has serious mental health issues after being abducted in Iran, which have been compounded by his experiences in detention and his separation from his mother.cccxiii
Dr Jon Jureidini, Child Psychiatrist said to the AHRC The Forgotten Children Inquiry: “[a] primary function of a parenting relationship is to protect a child from harm and parents in immigration detention are repeatedly being reminded of their failure to do that”. cccxiv
Elizabeth Elliot, Professor of Pediatrics and Child Health said to the 2014 AHRC The Forgotten Children Inquiry: “[f]rom a pediatrician’s perspective these delays in treatment – for children with delayed speech, poor hearing, rotten teeth, sleep apnoea and infection – are unacceptable and may have lifelong consequences”. cccxv
• children describing the impact of detention on their mental health:cccxvi
o “I’ve changed a lot. I’m not fun anymore. I’m just thinking about bad stuff now... I was thinking of
become a doctor but not anymore” – 15 year old child, Nauru, May 2014
o “We are getting crazy in here” - Unaccompanied child, Nauru, May 2014
o “It affects the people’s mind and the children too. They have 10 months on the detention that means they get crazier and upset.” - Unaccompanied child, Nauru, May 2014
o “I have many problems in the camp. I cannot find peace. If I am released from the camp that would be good, if not, I will go crazy in this camp.” - Unaccompanied 17 year old, Nauru, May 2014
Parental mental health is crucial in shaping the experience of children. High rates of mental disorder amongst parents is causing distress, anxiety and depression in asylum seeker children. cccxvii
“Enough is enough. I have had enough torture in my life. I have escaped from my country. Now, I prefer to die, just so my children might have some relief. I have reached the point I want to hand over my kids”cccxviii – a mother of three in detention.
Dr Sue Packer, paediatrician, gave evidence to the 2014 AHRC The Forgotten Children inquiry: “Without exception, every adult, young person and older child I saw was distressed, with a feeling of deep hopelessness”.cccxix

• Elizabeth Elliot, Professor of Paediatrics and Child Health said to the 2014 AHRC The Forgotten Children Inquiry: “[f]rom a paediatrician’s perspective these delays in treatment – for children with delayed speech, poor hearing, rotten teeth, sleep apnoea and infection – are unacceptable and may have lifelong consequences”. cccxx
  
• The 2014 AHRC The Forgotten Children Inquiry heard from pediatricians who also commented on the motor, sensory and language development of babies and children. Detention centres were described as “harsh and uninviting to exploration”, with “very little space for a child to walk around and play”, and “concrete and stone and unsuitable for babies to crawl”.cccxxi One mother said: “There is no space for my baby, no place to put him down. There are centipedes, insects, worms in the room. Rats run through. We have no eggs, no fruit. We get out of date food. I don’t want a visa, I just want somewhere safe and clean for my child.”cccxxii
  
• February 2014, Physical and Mental Health Subcommittee site visit:cccxxiii
  

o There was no obstetrician available on Nauru at the time of the Physical and Mental Health
Subcommittee’s visit in early 2014.cccxxiv
o Very high rates of depression amongst pregnant women and women in the post-partum period. cccxxv
In 2014, the Moss Review reported that between October 2013 and October 2014, 17 children in the Nauru Offshore Detention Centre engaged in self-harm (including one attempted hanging). Ten of the 17

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• •
7.5

incidents took place between 24 and 27 September 2014. They involved three cases of lip-stitching, six cases of lacerations to arms, and one boy who swallowed detergent. The youngest child involved in self- harm was an 11 year old who swallowed a metal bolt and a rock.cccxxvi
July 2015, AHRC stated that “[C]hildren detained indefinitely in Nauru are suffering from extreme levels of physical, emotional, psychological and developmental distress”cccxxvii.
In 2015, UNHCR stated its concern that Nauru Offshore Detention Centre does not provide “a safe and humane environment for asylum-seekers or refugees”. cccxxviii UNHCR has said “that the harsh conditions and lack of privacy, particularly for vulnerable people within the Centre such as women, children and persons with mental and physical health issues, were of grave concern”.cccxxix
Asylum seekers are denied their rights to security of their person in unsafe conditions and suffer all forms of violence including sexual violence

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The right to security requires the provision of reasonable and appropriate measures, within the scope of those available to public authorities, to protect a person's physical security, whether or not the person is in detention. This obligation arises when public authorities know or ought to know of the existence of a real and imminent risk to the physical security of an identified individual or group of individuals from the criminal acts of another party.
7.5.1 Relevant Rights
art 3, UDHR
Everyone has the right to life, liberty and security of person.
art 6 (1), ICCPR
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
7.5.2 Findings and Evidence of Violations – MODC
• Whilst media reports of rape and sexual assault have occurred at the MODC since Transfield’s provision of service, as they do not fit within NBIA’s strict criteria for inclusion, they have not been included here. Previous to Transfield’s provision of services, two issues , the riots and death of Reza Berati, and a September 2013 investigation into sexual and other serious assaults conducted by Robert Cornall, occurred but they are not discussed here.
7.5.3 Findings and Evidence of Violations – NODC

• March 2015, the Moss Review found evidence of rape, threats of rape, indecent assault, sexual harassment and physical assault, including by contract service providers.cccxxx
  
• The Moss Review concluded that:cccxxxi
  The Review considered the allegation that ‘on occasions women have been forced to expose themselves to sexual exploitation in exchange for access to showers and other facilities’ and concludes that it is likely to be based on one particular incident, which the transferee related to four Save the Children staff members, who all reported it in accordance with Centre guidelines.
  The Review became aware of two specific allegations on rape two adult female transferees occurring at the Centre. One allegation has already been reported to the Nauruan Police Force. The other allegation, according to the transferee concerned, was made only to the Review and involved a contract service provider staff member. The transferee requested that, for family and cultural reasons, the Review not reveal her identity or refer the matter to the relevant authorities.
  

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The Review also became aware of allegations of indecent assault, sexual harassment and physical assault occurring in the Centre. Some of these allegations had been reported and the relevant authorities are investigating or have investigated. Contract service provider staff members are/were the subject of some of these allegations.
In relation to ‘access to cigarettes being traded for sexual favours’, the review concludes that this allegation appears to relate to a time when cigarettes were not openly available in the Centre. The Review was unable to obtain any specific information to substantiate this allegation.
In relation to the allegation “Nauruan guards have been trading marijuana with detainees in exchange for sexual favours”, the Review concludes that this activity is possibly occurring. The Review was unable to obtain many specific details because transferees were not prepared to provide them. The details obtained about transferees who allegedly deal in marijuana were referred to the Department for referral to the relevant authorities.
The Review concludes that many transferees are apprehensive about their personal safety and have concerns about their privacy in the Centre. Some transferees expressed their apprehension about other transferees and some about contract service provider staff members. Several married couple transferees raised concerns about their privacy. The perception of a lack of personal safety and privacy is heightened by high density accommodation in mostly un-air-conditioned, soft-walled marquees in a tropical climate.
The Review also concludes that ensuring transferees are, and feel, safe is important and requires consideration of such factors as infrastructure, policing and staffing.
The Review further concludes that the training and supervision of contract service provider staff members, particularly locally engages Nauruans, need to be improved and should focus on the personal safety and privacy of transferees.
Some allegations of sexual and other physical assault of transferees have been formally reported and others, disclosed only to the Review, had not been formally reported. The Review concludes that there is a level of under-reporting by transferees of sexual and other physical assault.
This under-reporting is generally for family or cultural reasons. Transferees also told the Review that they were concerned that making a complaint could result in a negative impact on the resolution of their asylum claims. In some cases, transferees told the Review that they had not reported particular incidents because they had lost confidence that anything would be done about their complaints.
Despite this lack of confidence, the Review concludes that, when formal reports or complaints have been made, contract service providers, in the most part, have acted appropriately in dealing with them and have, when required, referred matters to the Nauruan Police Force. In some instances, the lack of timeliness in reporting and referral or inadequate or inconsistent information have hampered the ability of contract service providers and/or the Nauruan Police Force to investigate. This situation is particularly true in relation to allegations relating to sexual assault.
The Review concludes that the arrangements for identifying, reporting, responding to, mitigating and preventing incidents of sexual and other physical assault at the Centre could be improved. For instance, there are limited resources for sexual assault to be investigated by Nauruan authorities. Work also needs to be done to improve the existing arrangements at the Centre.
The Review became aware of claims that some allegations of abuse have been fabricated or exaggerated by transferees. The Review cannot discount this possibility. The transferees who were interviewed were generally credible and their accounts convincing. Yet, the Review could not establish the veracity of allegations. For this reason, information about some reported incidents was sent to the Department for referral to the relevant authorities for further investigation.
The protection of minors in the Centre is of the highest importance and priority. The Review found that, in relation to this group, there were both reported and unreported allegation of sexual and other physical assault. When the Review obtained information that would assist relevant authorities to investigate these allegations, it was provided to the Department.
• July 2015, during the public hearing of the Senate Inquiry into Nauru (whose focus was on issues of violence and abuse), Transfield Services was questioned in relation to the listed 30 cases of child abuse involving staff:cccxxxii

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Senator HANSON-YOUNG: Out of the 30 cases of child abuse as outlined in the table given by your own answers to questions, how many incidents involving staff — those 30 cases — have been referred to the police?
Mrs Munnings: I will ask Erin via the phone to provide the data. As I said, Save the Children, the lead service provider in the family accommodation, are responsible under the child safeguarding protocol for investigating all matters involving minors. Erin, can you please work through our records as to how many have been referred to the police?
Ms O'Sullivan: I can confirm that of the 67 allegations that have been received a total of 12 have been referred to the NPF. I can confirm that 31 have been referred to Save the Children in accordance with the child safeguarding protocol. And a further nine complaints have been withdrawn subsequently. Senator HANSON-YOUNG: Could you tell me whether any Transfield staff members or subcontracted staff members inside the detention centre have been charged for any of these matters?
Ms O'Sullivan: I can confirm that, as a result of that, there have been six staff dismissals, two staff removed from sight and one staff member suspended in relation to all 30 of those allegations.
Senator HANSON-YOUNG: That is dismissal from working within the facility. Have they been charged with any criminal offence as a result of their abuse of children?
Ms O'Sullivan: I am unaware of any charges being laid in relation to those 30 incidents, no.

• Transfield submitted, in questions on notice that between the period September 2012 – 30 April 2015 an outline of all critical or major incidents which required Transfield or its subcontractors to report the incident to the Departmentcccxxxiii ( excluding incidents which were reported by Save or IHMS):
  There were 211 incidents of assault of which 2 were deemed critical by Transfield, with 34 of those incidents referred to police
  There were 9 cases of sexual assault with 2 deemed critical by Transfield, 4 were referred to police and were 4 are still ongoing
  
• Aug 2015, the Senate Committee Report states:
  “Access and distance to toilet facilities 4.108 During the course of the inquiry, the toilet facilities in the RPC were continually noted by submitters as being unsafe and unhygienic. The toilets were said to be the frequent scene of harassment and assault, as well as a source of concerns over hygiene. In particular, the distance between the accommodation and toilet facilities was raised by submitters as being unsafe. Professor David Isaacs told the committee that the safety and security of asylum seekers was impacted by the distance between accommodation and toilet facilities, which could be between 30 and 120 metres and would mean that '[t]o go to the toilet at night involves crossing dark, open land, often under the gaze of large male guards'.”
  “4.111 The committee received evidence in several submissions that toilet facilities were often the scene of harassment and abuse. Inadequate lighting of the exterior of the toilet facilities was also noted. Transfield Services advised the committee that additional lighting was being installed in the toilet facilities. 4.112 The committee heard from Ms Alanna Maycock and Professor David Isaacs that the stress associated with using the toilets in the RPC was having an effect on mental and physical health: Many children had nocturnal enuresis (wetting their beds at night), partly stress-induced and partly due to fear of walking to and from the toilets. Some of the mothers also suffered from nocturnal enuresis rather than run the gauntlet of a night-time visit to the toilets.”
  5.29 Despite the likelihood of significant under-reporting of incidents and concerns, which was remarked upon in the Moss Review and endorsed by witnesses before this committee, the internal complaints mechanism managed by Transfield Services recorded 725 complaints about service provider staff over a 14-month period to April 2015.2 The incidents and complaints recorded by Transfield since 2012 included some 45 allegations of child abuse and sexual assault. The committee is very deeply concerned about a situation in which this level of reported misconduct can occur and, at least until brought to light by the Moss Review, apparently be accepted.
  5.32 The evidence provided by Wilson Security representatives regarding the recording of footage of the riot of 19 July 2013 was shown to be incorrect. Wilson Security representatives initially denied the existence of footage and told the committee that body-worn cameras were not in use during that time. Footage which contradicted that statement was, however, provided to the media and reported during the
  

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7.6

ABC's 7.30 program on 13 August 2015. At the committee's public hearing on 20 August 2015, after the release of the footage, Mr John Rogers, Executive General Manager, Wilson Security, acknowledged that his earlier evidence was incorrect. The committee is concerned that this error was not brought to the committee's attention earlier and was revealed only during questioning. The committee was also concerned that a representative present at the hearing who knew that the cameras were used during that time said he had not heard the evidence being given. The footage appeared to show security personnel planning to use unreasonable force against asylum seekers, and those visible in the footage used derogatory language to refer to asylum seekers. The footage revealed a workplace culture which is inconsistent with Wilson Security's role to provide safety and security to asylum seekers within the facility.
Asylum seekers are subjected to abuse violating their special circumstances and needs to which protection is owed

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According to UNHCR Guidelines on detentioncccxxxiv the AHRC Standards on Immigration Detentioncccxxxv particularly vulnerable groups require special attention (and sometimes different treatment) to ensure that they are able to access their rights. While this group may be quite large (including the elderly, women etc.), this report limits the assessment to only those individuals or groups for whom our narrow evidence base established their presence in the ODCs. For example, often a particular group that requires special attention is persons with disabilities. However, the only published example NBIA could find was person with a disability that predated Transfield’s provision of services in MODC, therefore the relevant rights for persons with disabilities have not been included in this particular review.
Therefore, in this review, these groups include:

• -  survivors of torture or trauma
  
• -  women; and
  
• -  lesbian, gay, bisexual, transgender or intersex asylum seekers (LGBTI).
  Prior to the review of rights, findings and evidence, it is worthwhile noting that sources have indicated that the ODCs are particularly unsuitable for vulnerable groups as a whole. As illustrated by the two quotes below, these concerns were raised by the UNHCR prior to the opening of the centres on Nauru and Manus, and reiterated following the death of Reza Barati in February 2014.
  ... that arrangements to transfer asylum seekers to another country are a ‘significant exception’ to normal practice, should only be pursued as part of a burden-sharing arrangement to more fairly distribute responsibilities, and should involve countries with appropriate protection safeguards, including [...] special procedures for vulnerable individuals.cccxxxvi
  UNHCR considered that, within the policy settings and physical environment at the Centre, the situation of vulnerable people, particularly survivors of torture and trauma, was likely to be an issue of growing concern and that these concerns were heightened due to the uncertainty and delays of RSD [refugee status determination] processing and the arbitrary and mandatory detention framework.cccxxxvii
  

7.6.1 Relevant Rights
Survivors of Torture and Trauma
Guideline 9.1 UNHCR Guidelines on Detention
Victims of torture and other serious physical, psychological or sexual violence also need special attention and should generally not be detained.
7.6.2 Findings and Evidence of Violations – MODC
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• June 2013 quarter: the last quarter that ADIBP published health statistics on their website, there were 123 detainees on Manus Island who had disclosed that they were a victim of Torture and Traumacccxxxviii
  
• October 2013, the UNHCR stated: ... a two-person torture and trauma counselling team from STTARS had been at the RPC for about three weeks. There is an intention to expand the number of trauma and torture counsellors to four by 1 December 2013. UNHCR was advised that asylum-seekers identified by IHMS staff as being survivors of torture and trauma are referred to STTARS. Although currently the STTARS counsellors are able to meet the demands for torture and trauma counselling, both IHMS and STTARS advised that there is a real concern that as the numbers of transferred asylum-seekers at the RPC continue to rise, this may not be possible. UNHCR was advised by some service providers that the conditions of detention are already aggravating symptoms caused from pre-existing torture and trauma. In this regard, UNHCR notes expert advice received that following an altercation that occurred between the PNG police and the PNG army outside of the RPC (but in view of asylum-seekers in the Foxtrot compound) on 18 October 2013, there was a reported increase in post-trauma symptoms. However well-founded that may be, and UNHCR makes no finding on this incident, the majority of asylum-seekers with whom UNHCR met expressed fear for their safety because of the incident. Overall, and despite the current reasonable mental health of the detainees, UNHCR and many of the RPC staff that UNHCR met with agreed that there was no room for complacency.cccxxxix
  
• February 2014, a case worker deployed to Manus Island reported that: “... there was only one psychologist or mental health nurse available to the 1300 detainees and one STTARS (torture and trauma) counsellor. Given the numbers of traumatised men this was totally inadequate.”cccxl
  [post-Transfield]
  

• November 2014, the Senate Inquiry into the incidents of February 2014 noted that as of 21 November 2014 there were two subcontracted torture and trauma counselors and one visiting psychiatrist, and an additional 13 mental health clinicians employed through International Health and Medical Services (IHMS)cccxli
7.6.3 Findings and Evidence of Violations – NODC

• June 2013 quarter: the last quarter that ADIBP published health statistics on their website, there were 115 detainees on Nauru who had disclosed that they were a victim of Torture and Traumacccxlii
  
• February 2014, the Physical and Mental Health Subcommittee reported: “The pre-transfer assessments that are conducted within Australia within a targeted ‘48-hour’ timeframe do not permit an adequate individualized assessment of health concerns or vulnerabilities (particularly for torture and trauma survivors), nor a considered assessment as to whether the nature of the facilities and services available at the RPC would be appropriate for the individual concerned or whether transfer should occur at all.”cccxliii
  

7.6.4 Relevant Rights
Women
Art 2, CEDAW
States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women.
7.6.5 Findings and Evidence of Violations – NODC

• Note: see section 7.5 above for findings and evidence of sexual abuse to women and safety concerns
  
• April 2015, Submissions to the Senate Select Committee on Nauru report that until mid-2014 female
  asylum seekers had insufficient access to sanitary products for menstruation. Until that time, sanitary
  pads were only available from guards, who would provided them to women ‘as needed’, often only two at a time.cccxliv
  
• July 2015, Nurse Alanna Maycock gave evidence to the Senate Inquiry into Naura stating: “Another woman had been menstruating for over two months; she was using clothes and pieces of material from her tent to hold the bleeding as she had no access to sanitary towels. The bleeding was so bad that one
  

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night she had to brave the journey to the toilet to clean herself. As she walked past the male guards a blood clot fell to the ground. A continual trail of blood followed her all the way to the toilet. She wept as she told me this story.cccxlv
There were several occasions where the asylum seekers, particularly the women, would come and ask me or another female worker who was in the camp at the time to go and ask the guards on their behalf because they did not feel comfortable asking a male for such items. [...] I was [able to do that], but I would have to bring the person with me so that the guard could witness me handing it over.”cccxlvi