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Created before Nov 2016
Last update: 2016-11-01 14:56:26 BankTrack
Ryan Brightwell, Human Rights Researcher | Editor at BankTrack
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Australia's system of privatised, offshore detention centres (ODCs) for asylum seekers, on remote Pacific islands, is an ongoing human rights catastrophe. Spanish company Ferrovial SA, the company that operates Heathrow Airport, toll roads in North America and security services, operates the ODCs through its subsidiary Broadspectrum, exposing Ferrovial to complicity in gross human rights abuses and attendant material legal, financial and reputational risk.
As of May 2016 around 847 people are being held in Manus Island ODC (in northern Papua New Guinea) and 466 people in Nauru ODC. Most of these people are asylum seekers from Iran, Afghanistan, Iraq, Pakistan, Sri Lanka, Bangladesh or are stateless. They include children, women (including pregnant women), the elderly and victims of torture. All have been in the ODCs for extended periods. The men currently held in the Manus Island ODC have all been there for more than two years.
People are arbitrarily and indefinitely warehoused in the ODCs on Nauru and Manus Island in inhumane conditions and without hope for safe resettlement. In April 2016 the PNG Supreme Court found that the detention of asylum seekers and refugees on Manus Island breached the right to personal liberty in the PNG constitution, rendering their detention unlawful. The ODCs have also been decisively and repeatedly condemned by expert human rights bodies and by the international community. Rates of mental illness and self-harm by people detained at the ODCs are alarmingly high. Both centres are now tinderboxes in which people endure well-documented trauma, neglect and despair.
Following an extended period of increasing boat arrivals and deaths at sea, in May 2011 it was announced that Australia and Malaysia were "finalising" an arrangement to exchange asylum seekers for processed refugees (the plan was dubbed the "Malaysia Solution").
On 31 August the High Court ruled that the agreement to transfer refugees from Australia to Malaysia was invalid, and ordered that it not proceed on the basis that it contravened human rights protections established under existing laws. The Government was unable to secure the support of the Greens or Opposition in the Senate for modifications to enable the Malaysia Solution to proceed and instead reverted to expanding onshore processing arrangements. Continued deaths at sea and ongoing boat arrivals kept the issue at the fore of policy debate during the term of the Gillard Government, leading to a major Parliamentary debate on the issue in June 2012, as news reports reached Canberra of another fatal sinking off Christmas Island.
The government sought changes to the Migration Act, to allow asylum seekers to be processed in Malaysia. The Greens opposed the Bill outright and called for greater opening up of Australia's borders. The Opposition opposed the Bill on human rights grounds and called for restoration of the Howard Government's policies. The government allowed the possibility of returning processing to Nauru, on the condition that Malaysia was also permitted.
Unable to secure passage of the Bill through Parliament following the emotional debate, the government convened a panel chaired by Angus Houston to consider options. The Houston Report found that "onshore processing encourages people to jump into boats" and called for the re-opening of offshore processing at Nauru and Manus Island. Gillard endorsed the plan in August 2012.
What must happen
Given the severity of the impacts and the impossibility of meaningful mitigation of the abuses, Ferrovial must cease and remediate abuses within the ODCs, by: a) immediately releasing all people held in the ODCs to humane conditions in Australia or, with their consent, an equivalent situation with adequate support and services in accordance with UNHCR's recommendation; and b) immediately ending all involvement in the ODCs.
Given the overwhelming evidence of severe and systemic human rights violations in the ODCs, and the limited capacity of financiers or Ferrovial to mitigate the harm, Ferrovial's financiers that have provided direct finance to support the Broadspectrum takeover, or that have provided general corporate loans, should exit their relationship with Ferrovial and make a public statement recording that decision.
Human rights abuses in the ODCs. Under Australia's Migration Act, asylum seekers arriving by boat are subject to mandatory, indefinite and non-reviewable detention. The possibility of release by a court is expressly precluded. All asylum seekers arriving after 19 July 2013 are subject to mandatory removal to ODCs on Nauru or Manus Island.The only exception to these mandatory detention and removal provisions is the personal, non-compellable and non-reviewable discretion of the Immigration Minister.
As of May 2016 around 847 people are being held in Manus Island ODC and 466 people in Nauru ODC. Most of the asylum seekers in the ODCs are from Iran, Afghanistan, Iraq, Pakistan, Sri Lanka, Bangladesh or are stateless. They include 50 children, 56 women (including pregnant women), the elderly and victims of torture. All have been in the ODCs for extended periods. The men currently held in the Manus Island ODC have all been there for more than two years.The ODCs have been criticised repeatedly since their inception in 2012, including by the UN High Commissioner for Human Rights, the Committee Against Torture, the UN Special Rapporteur on Torture, the Australian Human Rights Commission, the Human Rights Law Centre, Amnesty International and Human Rights Watch, among others.
In Australia's recent review before the Human Rights Council, the Australian Government received at least 60 recommendations criticising these policies on asylum seekers and refugees. Of additional concern is the increasing lack of independent and public oversight of the ODCs. Public inspections of the ODCs by independent authorities including United Nations experts and the Australian Human Rights Commission have been regularly refused since 2013. The Australian Border Force Act (2015) has further hampered transparency regarding the ODCs by criminalising unauthorised disclosures of information by anyone who undertakes work in the OCDs.
Child abuse and other violations of the children's rights. Australia is unique in its treatment of asylum seeker children. No other country allows asylum seeker children to be detained indefinitely and arbitrarily. Successive inquiries by the Australian Human Rights Commission have 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.
In 2014, the Medical Journal of Australia published a report stating that the vast majority of Australian paediatricians believe this practice of mandatory detention of asylum seeker children constitutes child abuse, a position since supported by the Australian Medical Association (AMA). The AMA also called for a moratorium on any child being transferred to Nauru after doctors at Brisbane's Lady Cilento Children's Hospital refused to discharge a one-year old asylum seeker child for fear the child would be returned to Nauru following medical treatment in Australia.
For more information on human rights abuses in the ODCs read the report Association with abuse.
Corporate responsibility for human rights abuses in the ODCs. While the Australian Government is the architect and funder of the offshore detention regime, the indefinite warehousing of asylum seekers and refugees in inhumane conditions would not be possible without the participation of Ferrovial. Ferrovial provides services central to maintaining a system that violates human rights standards, placing both the company and its stakeholders in the financial sector in breach of the corporate responsibility to respect human rights contained in the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises.
Applicable norms and standards
Australia confirms Manus Island immigration detention centre will close
According to The Guardian: Australia and Papua New Guinea have confirmed that the Manus Island detention centre will be closed but offered no detail on the future of the 854 men held there - except that Australia remains adamant it will accept none of the detainees for resettlement.
The Nauru files: cache of 2,000 leaked reports reveal scale of abuse of children in Australian offshore detention
The devastating trauma and abuse inflicted on children held by Australia in offshore detention has been laid bare in the largest cache of leaked documents released from inside its immigration regime (source: The Guardian). More than 2,000 leaked incident reports from Australia's detention camp for asylum seekers on the remote Pacific island of Nauru - totalling more than 8,000 pages - are published by the Guardian. The Nauru files set out as never before the assaults, sexual abuse, self-harm attempts, child abuse and living conditions endured by asylum seekers held by the Australian government, painting a picture of routine dysfunction and cruelty.
Report 'Association with abuse' is published
Getup! and The Human Rights Law Centre published their report on the financial sector's association with gross human rights abuses of people seeking asylum in Australia. It states how people are arbitrarily and indefinitely warehoused in the ODCs on Nauru and Manus Island in inhumane conditions and without hope for safe resettlement. To read the full report click here.
Ferrovial 'liable for crimes against humanity'
Spanish infrastructure corporation Ferrovial, which is owned by one of the world's richest families and the major stakeholder in Heathrow airport, has been warned by professors at Stanford Law School that its directors and employees risk prosecution under international law for supplying services to Australia's camps on Nauru and Manus Island in Papua New Guinea (source: The Guardian).
On 26 February 2016 a consortium of 22 banks financed a loan to Ferrovial, the company running the ODCs, of EUR 1.25 billion, for general corporate purposes. Each of the banks involved in this deal made a EUR 56.82 million line of finance available to Ferrovial. Source: report Association with abuse.