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LAW STUDENTS FOR REFUGEES: Submission to the ‘Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru’ Submission to the Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru About LSFR: Law Students for Refugees was founded at the beginning of 2015 by current law students of the University of Melbourne.
The group is dedicated to taking an educated stance against the unjust legal treatment of individuals seeking asylum in Australia.

Interpretation of these submissions ‘the MOU’ means the Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues signed by leaders of the Republic of the Nauru and the Commonwealth of Australia on 3rd August 2013.

Submissions 1.
Submissions 1.

We write to express serious concerns regarding the previous and current conditions at the Regional Processing Centre in Nauru (‘the Centre’).

2.

Specifically, we are concerned with: A. the inability of current reporting systems to prevent incidents of sexual assault and harassment as outlined in the Moss Review; B. the manifest unwillingness of the Australian Government to intervene effectively in these inadequate reporting systems; C. Australia’s contravention of clause 12 of the MOU.

A.
A.

The inability of current reporting systems to prevent incidents of sexual assault and harassment as outlined in the Moss Review Problems with a lack of reporting 3.

The Moss Review found that incidents of sexual assault or harassment are frequently not reported by transferees for family and cultural reasons, and under the apprehension that doing so could affect the resolution of asylum claims [Moss Review, 3.157-8].

4.
4.

This lack of support is likely to exacerbate the prevalence and personal impacts of assaults and harassment.

The inability of authorities to properly investigate existing incidents means that past instances of criminal behaviour cannot be verified or penalised.
Further, these factors are likely to encourage perpetrators to 1 Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre inNauruSubmission 23 LAW STUDENTS FOR REFUGEES: Submission to the ‘Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru’ continue their behaviours in future.

The absence of safe reporting mechanisms is also likely to exacerbate the impact on victims.
Problems within the complaints process 5.

It appears that even where complaints are made by transferees, underreporting is also present at the staff level.

According to one interview with a Save the Children staff member, it was only when a story of abuse arose involving a child that they ‘felt very uneasy’.

However, the staff member indicated reluctance to report, apparently distancing themselves from reporting it as an ‘allegation’.
The main factor in reporting appeared not to be as a result of ordinary due process, but because they were at risk of losing their job if they did not [Moss Review 3.10].

6.

Complaints by centre staff appear to be further hindered by the authorities.

Centres are run such that all serious allegations (including allegations of rape and sexual assault) are directed to the local Nauruan Police Force.
There is an incapability or unwillingness of the Nauruan authorities to deal with these allegations [3.157-8].

7.

These two factors reveal a worrying ‘gap’ in the chain of accountability regarding the welfare of transferees, for which the Australian government may be ultimately responsible.
The Australian government has chosen to delegate its obligations to transferees under the Refugees Convention (as amended by the Refugees Protocol), to the Nauruan police and government as a designated alternative authority.

However, if that alternative authority is incapable of properly ensuring that transferees are receiving sufficient protection, it is the responsibility of the Australian Government to either meet these obligations itself or ensure that structures in Nauru are capable of doing so.

8.
8.

As called for in the Moss Review, there is a need for far greater oversight by Australian authorities in the complaints process to ensure the welfare of transferees.

B.

The manifest unwillingness of the Australian Government to intervene effectively in these inadequate reporting systems Government response to the Moss Review 9.

The timing of the Moss Review’s publication is questionable.
Whilst the Moss Review was submitted to the Australian Government in early February, it was not released to the public until late March.

This does not appear to be consistent with the general public interest, given that the report investigated serious allegations concerning government facilities and especially vulnerable people (including children).

Further, the day selected for its publication was a ‘heavy news day’, following the death of former Prime Minister Malcolm Fraser.

10.
10.

The Australian Minister for Immigration and Border Protection Peter Dutton has remained almost silent on the findings in the Review.

2 Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre inNauruSubmission 23 LAW STUDENTS FOR REFUGEES: Submission to the ‘Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru’ 11.
The Moss Review found no evidence to support allegations that Save the Children staff members fabricated stories of sexual abuse and encouraged self-harm by transferees.

The decision by the former Minister for Immigration and Border Protection Scott Morrison to remove 10 staff members thus appears to have been politically motivated.
Whilst the government has agreed to the recommendation that it review the decision to remove these staff members, we submit that this action comes too late – the removal has already served to undermine the legitimacy of these staff members’ claims in the light of negative media attention.

This is heightened by the fact that the Government has steadfastly refused to apologise to either Save the Children or the particular individuals involved.

12.
12.

This suggests the Government is evading the full and frank disclosure of the conditions at the Regional Processing Centre on Nauru.

The Review appears to have been released in a manner to draw minimal media attention.

The unsubstantiated and unresolved removal of the Save the Children workers also appears to have been motivated by a desire to prevent the full and transparent disclosure of the conditions present in Nauru as reported by those staff.
The lack of government comment on such serious allegations and apparent systematic failures at the Processing Centre is also seriously concerning.

Problems which were out of the scope of the Moss Review but remain unaddressed by the Australian Government 13.

The Moss Review did not investigate the implications of hiring local staff on the complaints process.

As stated in the Report, contracted staff providers are required to recruit a certain quota of local staff members.
It is not unlikely that this stipulation could lead to an insufficient measure of disciplinary action being taken against Nauruan staff responsible for incidents reported by transferees.

This is reflected in the Report’s concerns regarding the training and ‘proper respect’ to be accorded to local staff.

14.

The Moss Review is also limited in its focus on contractors and local police, without giving having regard to underlying issues of Nauruan capacity or interest in law enforcement.
An interview (external to the Review) with a former Save the Children officer revealed that Nauruan authorities are often unwilling to intervene in affairs at the Centre.

It was stated that this has resulted in contractor Wilson Security policing themselves.1 We submit that that this unveils an accountability deficit, whereby the reluctance of the Australian authorities present in Nauru to make demands of Nauruan stakeholders results in transferees’ complaints being overlooked or dealt with summarily.

15.
15.

These issues reflect an overall general unwillingness to deal with underlying causes of the mistreatment of detainees at the Centre.

By limiting the scope of the Moss Review to two sets of specific allegations, underlying systematic factors that are strongly implied in the report have not been sufficiently addressed by the government.
1 Martin McKenzie-Murray, ‘Nauru abuse goes further than the Moss review’ (March 28, 2015) The Saturday Paper, <http://www.thesaturdaypaper.com.au/news/politics/2015/03/28/nauru-abuse-goes- further-than-the-moss-review/14274612001684#.VTw4Abpqlsg>.
3 Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre inNauruSubmission 23 LAW STUDENTS FOR REFUGEES: Submission to the ‘Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru’ C. Australia’s resulting contravention of terms in the MOU.

16.

It appears that the terms of the MOU have not been complied with.

17.
17.

Clause 12 of the MOU states that: ‘The Participants will treat Transferees with dignity and respect and in accordance with relevant human rights standards.’ 18.

Whilst the terms of the MOU are to be interpreted by the participating parties (cl.

24), and may thus be given subjective content, their ordinary meaning should be adopted until otherwise determined.

19.

The words ‘dignity’ and ‘respect’ are, in a legal context, words used to protect people’s humanity and identity.
As such, they are commonly used in a Human Rights context.

They embrace notions of equality of treatment and are counterposed with the degradation of self-worth.

20.

It is submitted that the conditions in Nauru, as outlined in the Moss Review, are such that Transferees are not treated with dignity and respect.

The Australian Government is complicit in this situation by failing to ensure effective methods of oversight and accountability in the Centre.
As such, it is submitted to be in breach of clause 12 of the MOU.

4 Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre inNauruSubmission 23