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Legal and Constitutional Affairs References Committee
12/06/2014
Incident at the Manus Island Detention Centre from 16 to 18 February 2014

NICOLLE, Ms Sophie Kay, Government Relations Advisor, Amnesty International

SCHUETZE, Ms Kate, Pacific Researcher, Amnesty International

WEBB, Mr Daniel John, Director of Legal Advocacy, Human Rights Law Centre

[14:43]

CHAIR: Welcome. The committee has received Amnesty International's written submission as submission No. 22 and the Human Rights Law Centre's written submission as submission No. 17. Do you wish to make any amendments or alterations to your written submissions?

Ms Nicolle : No, thank you.

Mr Webb : No, thank you.

CHAIR: I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee. The committee emphasises, however, that parliamentary privilege does not extend outside of Australia and that Australian law cannot protect individuals in another country, whether they are Australian nationals or not. For this reason and so as not to prejudice ongoing criminal investigations and legal proceedings the committee urges witnesses to exercise caution with regard to naming or otherwise identifying individuals located outside Australia, including Papua New Guinean nationals alleged to have been involved in the incident at the Manus Island detention centre during 16 to 18 February. Would you like to make a short opening statement before we go to questions from the committee?

Ms Nicolle : Yes, we might both make opening statements on behalf of the two organisations.

CHAIR: That is fine, thank you.

Ms Nicolle : I would like to begin by acknowledging the traditional owners of the land on which we meet and pay our respects to their elders past and present. Obviously, I would like to thank the committee for inviting us to give evidence to the enquiry today. As I am sure you know, Amnesty International is a worldwide movement that promotes and defends all human rights. Protecting and advocating the rights of refugees is a primary component of Amnesty International's work globally.

Amnesty International, including our Pacific researcher Kate Schuetze, who appears with me today, has visited Manus Island offshore processing centre twice in the last seven months—first in November 2013, and again in March 2014, after the violence, with Daniel Webb, Director of Legal Advocacy at the Human Rights Law Centre. Amnesty found that the combination of detention practices and uncertainty around processing and resettlement amounts to cruel, degrading and inhuman treatment. The failure to afford protections to asylum seekers, including protecting the right to life, breaches international legal obligations, as well as the commitment by both PNG and Australia to treat all refugees with dignity and respect and in accordance with relevant human rights standards.

Following the organisation's November visit, we released the report, This is Breaking People. The report examined the full circumstances of offshore processing for those detained on Manus Island, from their journeys and their transfer from Australia to PNG to the conditions within the centre and the processing and resettlement plans for genuine refugees available at that time. Overall, Amnesty found that the lack of clear plans for processing and resettlement, combined with the harsh conditions, constitutes cruel, inhuman and degrading treatment; that Australia remains responsible for the detainees on Manus Island because it has effective power and control over the detainees; and that PNG is also responsible for the treatment of asylum seekers within its territory.

Amnesty International delivered the report to the Australian and PNG governments on 11 December last year, with numerous recommendations including many for urgent improvements to conditions. The organisation has not, to date, received a formal response to the report, although we were informed by the minister in April this year that a response would be compiled, along with the PNG government.

Amnesty International found the conditions at Manus, and the uncertainty, resulted in severe anxiety for asylum seekers. Some asylum seekers reported not feeling safe within the centre and that treatment by staff was at times inappropriate and discriminatory. The organisation foreshadowed in the December report that the policy of offshore detention, as well as the situation within the centre, including the uncertainty around processing and resettlement, was breaking those detained at the centre. This mirrored findings by the UNHCR which, further back in October last year, concluded:

…the longer asylum-seekers remain in detention—without any clarity or certainty regarding the RSD processes and procedures, the length of their detention and future options—the level of tension, anxiety, depression and community unrest are likely to rise.

Amnesty International received first-hand accounts of the violence in February from asylum seekers and staff. Evidence of the violence was also observed during a return visit to the Manus Island centre with the PNG National Court in March this year.

The events, as understood by the organisation, are set out in our written submission to this enquiry. Our sequence of events, supported by the findings of the Cornall report, demonstrates that asylum seekers, after weeks of protests, were violently attacked by private security guards, local police and other contractors working at the centre. Australia and PNG share responsibility for the situation at the centre and the failure to protect detainees. Amnesty International has concerns that the Cornall report, as well as the government response, fails to allocate any responsibility or address immediate safety concerns of asylum seekers. Further, the emphasis is placed on the protest behaviour of the detainees, which is seemingly blamed for the escalation of violence. The protests, even in the case of some violence on the part of asylum seekers, do not warrant the disproportionate and lethal use of force against them. The organisation holds that accountability for this incident must flow at both the individual and governmental level.

In relation to the violence, Amnesty found that asylum seekers were attacked, mostly by PNG nationals employed at the centre, with sticks, bats, machetes and poles. PNG police fired at asylum seekers, with one asylum seeker receiving a bullet wound. Bullet holes were clearly visible in a walk around the centre a month later. One hundred and twenty-seven people were injured in the violence, with more than a dozen requiring hospitalisation. Injuries included serious lacerations; broken bones, including facial fractures; bruising; concussion; loss of an eye; and a bullet wound.

Amnesty International has received testimony from asylum seekers and detainees at the centre, since the event, claiming that they do not feel safe and that they have not received adequate access to medical care. In relation to the conditions, processing and resettlement, Amnesty International found that little or no attempt had been made to address the concerns raised in the December 2013 report and that conditions had actually deteriorated. Further human rights violations are detailed in our submission. Amnesty International remains concerned for the immediate safety of the asylum seekers who witnessed or were injured in the violence. PNG has no witness protection programs in place and their safety cannot be guaranteed by either the Papua New Guinean or Australian authorities.

Amnesty International calls on the committee to examine this incident in the context of a flawed policy of offshore detention which has been poorly implemented. Amnesty International repeats its calls to the Australian and PNG governments to implement in full the recommendations of the report This is breaking people—in particular, to end offshore processing at Manus Island in order to guarantee the right to life and security of the person for asylum seekers there; to ensure that asylum seekers are not exposed to or put at risk of further violence or injury, including by immediately removing them to Australia, ensuring they have access to adequate medical assistance and legal advice; and to ensure that perpetrators of the violence face criminal prosecution in accordance with international laws and standards, without recourse to the death penalty.

CHAIR: Thank you, Ms Nicolle. Mr Webb?

Mr Webb : I thank the committee for the opportunity to appear today, and I endorse the opening remarks made by my colleagues. The violence on 16 to 18 February rose from the brutal suppression of protests within the centre, and it is vital that this inquiry examine the violent response to those protests, but it is also vital that the inquiry address the root causes of the unrest.

As part of our participation in the PNG National Court inquiry in March this year, we inspected the detention centre and heard evidence in court from asylum seekers detained there. What was clear from their evidence is that they did not know if or when they would be processed, or to where or on what terms they would ever be resettled. They were in limbo, and that uncertainty was taking its toll. I would like to share with the committee some examples of what asylum seekers told the court. One asylum seeker said: 'I'm in the dark as to when I will leave this detention centre. Even prisoners know the terms they will serve in prison. The suspense is mental torture to me.' Another told the court: 'Before we came here, we were in good health, but now we've lost our memories. We are sitting and thinking every day about why we are here and when we will get processed. It seems that Australia and Papua New Guinea have no plans for us.' Their uncertainty is clear and, in the circumstances, it is understandable. It has been official policy to not tell them how long their processing will take and how long they will be detained for.

In the 19 months since the first transfers to Manus Island took place, not one asylum seeker has received a final decision on their refugee status from the PNG foreign affairs and immigration minister—that is, the person with authority to determine someone to be a refugee under the PNG Migration Act. It also remains unclear exactly where those found to be refugees will be sent, when they will be sent there and what supports they will receive. It is not clear whether they will be able to sponsor their families or whether they will be permanently separated from them. So, while successive governments have described Manus as a processing centre and the agreement underpinning it as a regional resettlement agreement, the inescapable fact is that, in 19 months, more asylum seekers have been killed and injured on Manus than have been processed and resettled.

The distress caused by indefinite detention and uncertain resettlement prospects is being compounded by the harsh conditions inside the centre, which the UNHCR and Amnesty have repeatedly, and appropriately, described as inhumane. Leaving people languishing indefinitely in harsh conditions with no certainty about their future will inevitably cause harm and lead to unrest. It is done so with tragic consequences. Australia is both the architect and the underwriter of these arrangements; it retains effective control over their implementation and, as such, Australia retains at least joint responsibility for the consequences that the arrangements have produced.

The Human Rights Law Centre's position is that the Manus detention centre should be closed: conditions remain inhumane; mandatory and indefinite detention and penalising asylum seekers on account of their unauthorised arrival continue to be breaches of international law; and, perhaps most importantly, asylum seekers remain at risk of harm. In the event that the centre remains open, Australia should take urgent steps to ensure the safety of asylum seekers detained on Manus, and that individuals responsible for acts of violence are held to account. Australia should also address the inhumane conditions inside the centre and the inordinate delays in processing and resettlement which underpin the unrest. Put simply, there needs to be an urgent overhaul of the current arrangements, and the changes need to focus not just on increasing security but also on decreasing cruelty.

Senator IAN MACDONALD: Mr Webb, you mentioned that more were killed than processed; how many have been killed at Manus?

Mr Webb : One.

Senator IAN MACDONALD: So what you are saying, in a colourful way, is that no-one has been processed?

Mr Webb : Yes. They are the facts.

Senator IAN MACDONALD: It is a very colourful way of repeating the facts. What you are saying is that no-one has been processed. You talk about 'brutal suppression' and 'violent response'. Did either Amnesty or your organisation conduct their own investigations into what happened on the night?

Mr Webb : The Human Rights Law Centre has not.

Ms Schuetze : Amnesty International has researched the matter, and interviewed a number of people. Those details are outlined in our submission, as well as in our report This is still breaking people. So we did speak to a number of people about the incidents and the violence which took place; we also sought to return to the centre and interview a number of asylum seekers during the week we were there for the court proceedings, and we were refused access to the centre at that time.

Senator IAN MACDONALD: By whom were you refused access?

Ms Schuetze : We were refused access—that was communicated to us by the Australian department of immigration operations manager. We went through the same processes we went through when we visited in November, which was to submit our forms to the chief migration officer in Port Moresby. We submitted those forms; we did not get a response. On arrival we were told that we were not allowed to speak with anyone at the centre.

Senator IAN MACDONALD: So you accept that it is PNG jurisdiction there?

Ms Schuetze : I do not know what conversations happened with the PNG government, but we were informed that we were not allowed access by the Australian government.

Senator IAN MACDONALD: But you accept that PNG is a sovereign independent nation, and this facility is in that sovereign independent nation?

Ms Schuetze : As part of our research, we did find that the Australian government is in effective control over the centre, which includes day-to-day operations and management of that centre. We also say that in relation to human rights violations happening there, it is in PNG territory; therefore, there is also responsibility of the PNG government. But nothing in that changes the liability of the Australian government for transferring asylum seekers there and then detaining them over there.

Senator IAN MACDONALD: Did you make Mr Rudd aware of these issues when he decided to send them there?

Ms Nicolle : Yes, we wrote at the time of the announcement. Amnesty responded with a media statement and we were in touch with both the Prime Minister and Minister Burke at the time with our serious concerns about the regional resettlement agreement.

Senator IAN MACDONALD: Did you get a response?

Ms Nicolle : No, not that I am aware of. If I am incorrect there, I can correct the record.

Senator IAN MACDONALD: You have made an issue about putting in a report on 11 November, not long after the new government took over. You have had no response to that—you have made an issue of that. Do you have the same issue with Mr Rudd not responding?

Ms Nicolle : At the time that we responded to the announcement of the regional resettlement agreement—that was in July—we had not been to Manus Island. At the time we delivered the This is Breaking People response, we had a meeting with the Australian minister, after which we corresponded with him, seeking a formal response also. We received correspondence back from the minister in April this year outlining, as I said in my opening statement, that—

Senator IAN MACDONALD: That a response is coming?

Ms Nicolle : a response is coming. Obviously, we then responded to the minister expressing our concern and disappointment that that had not happened up until this point, particularly given that a number of the recommendations we made were for urgent improvements to the conditions.

Senator IAN MACDONALD: You have read Mr Cornall's report. Do you agree with his recommendations?

Ms Nicolle : We certainly agree with the recommendation which says that they should implement the full recommendations of our report, This is Breaking People. We were really pleased to see that the report reflected that. In general, Amnesty International does not have significant concerns with the report as it documents the events. Our concerns around the Cornall report, particularly in relation to the conclusions of that report, are that it appears not to apportion any accountability. In fact, it says that it is not possible to do so.

Senator IAN MACDONALD: Accountability for what?

Ms Nicolle : For the events that occurred and for the situation within the centre.

Senator IAN MACDONALD: I thought he did, actually, at some length. Pages 8 and 9 of his summary indicate what he thought. It all stems back to, first of all, people unlawfully trying to enter Australia, which you will be pleased to note does not happen anymore. I am sure you would be pleased with that, wouldn't you?

Ms Nicolle : I do not think it is fair to say that they do not try any more. It is certainly true to say that there has not been a successful venture to Australia. It is very unclear, given the policy of turn-backs—

Senator IAN MACDONALD: There will be no more people going to Manus Island and Nauru, so you would be happy with that.

Ms Nicolle : There are several people in the Christmas Island centre who are—

Senator IAN MACDONALD: There are no new ones going, so you would be happy about that.

Ms Schuetze : Can you confirm that people who have received medical treatment in Australia will not be sent back to Manus Island? Is that what you are saying?

Senator IAN MACDONALD: No. I cannot confirm anything.

Ms Schuetze : So you do not know that people will not be sent to Manus Island in the future.

Senator IAN MACDONALD: I have no idea. I am a member of a Senate committee. I am in one of the government parties but I am not a government person.

Ms Nicolle : Certainly Amnesty International has concerns with respect to the code of conduct which applies to all asylum seekers within Australia. With any breach of that, asylum seekers have a threat over their heads that they may be sent to offshore processing centres. We are also aware that there are asylum seekers in detention centres around Australia may well be returned.

Senator IAN MACDONALD: I did not ask you that question. When Amnesty International investigated this thing, what sort of people did it? Were they trained investigators?

Ms Schuetze : The trip that we did was conducted with three trained Amnesty International researchers. We visited the centre with—

Senator IAN MACDONALD: Researchers?

Ms Schuetze : Researchers, yes. We have a very defined research methodology, and training that comes with that.

Senator IAN MACDONALD: Thanks for that.

Ms Schuetze : We travelled with the senior law and policy director for Amnesty International. He has inspected a number of detention centres throughout the world. We interviewed a wide range of people. We had more than 58 one-on-one interviews with asylum seekers at the centre. We spoke to Australian immigration—

Senator IAN MACDONALD: I did ask you if you had trained investigators. You have answered that, thank you. Time is limited in these things, unfortunately.

Ms Schuetze : Yes!

Senator IAN MACDONALD: Although my colleague laughs, it helps if you answer the questions rather than to go on to—

CHAIR: Senator Macdonald, I think it is only fair. You have been engaging in politicisation and comments. You are not really wanting to give the witnesses an opportunity to respond to that. If you are going to do that then it is only fair to allow them an opportunity to respond—

Senator IAN MACDONALD: My question was: were there trained investigators?

CHAIR: You have asked other questions and then tried to cut them short. If you are prepared to ask those sorts of questions then I think you have to be prepared to accept the response.

Senator IAN MACDONALD: Thank you for your fairness in ruling, as always.

CHAIR: I think it is fair.

Senator IAN MACDONALD: Your rulings are typical of the terms of reference and the set-up of this committee.

CHAIR: I am interested in being fair to witnesses as well as to committee members. That is my role, I think. Thank you.

Senator IAN MACDONALD: You have used up half of my time, thanks, Chair. It helps if you answer the questions I ask.

Senator HANSON-YOUNG: We will call you Senator Grouch, from now on, I suggest.

CHAIR: Just ask the question, Senator Macdonald. You have five more minutes. You have a bit longer than 10 minutes, anyway, so get going. You will have had longer, if you like to keep going.

Senator IAN MACDONALD: So are you finished?

Senator HANSON-YOUNG: We are waiting for you.

Senator SINGH: I thought you said you did not have many questions for this panel.

Senator IAN MACDONALD: You can tell that I do not.

Senator HANSON-YOUNG: Don't know much, is what we can tell.

CHAIR: Can we just keep going with questions, please.

Senator IAN MACDONALD: How many of the people on Manus or Nauru are you aware of now want to go back to where they came from?

Ms Schuetze : The findings in our report were that Manus Island is a prison-like and return oriented environment and that there is enormous pressure on asylum seekers to return.

Senator IAN MACDONALD: My question was how many?

Ms Schuetze : We do not know the exact number of people now. That would be a question for IOM, who facilitate those returns, not for us.

Senator IAN MACDONALD: You sound like you are very well informed on it. Would it be a dozen that you have heard of or have read of?

Ms Schuetze : All I can say on that is that a number of people told us of horrific journeys, escaping torture and trauma in their own countries, saying that there is no life on Manus because of the uncertainty and the pressure that puts on them.

Senator IAN MACDONALD: The question was: how many want to go back home?

Ms Nicolle : It would not be possible or reasonable for us to try and answer that with any specifics.

Senator IAN MACDONALD: You are answering many other questions. It is reported that there are several that want to go back home. How do you treat that with their claims that they were under threat back home and that that is why they have claimed refugee status?

Mr Webb : I might answer that. We need to be careful when we speak of voluntary returns from Manus Island, because the word voluntary in that context is a bit of a misnomer. You have people who are detained in conditions that the UNHCR has assessed as falling short of international standards. Their detention is arbitrary, which breaches the international covenant on civil and political rights—

Senator IAN MACDONALD: But, again, you are not answering my question.

Mr Webb : I am getting to the answer. Some give up and up to return home, but to call—

Senator IAN MACDONALD: That was my point. If they are returning home, how do you assess that against their claim that they left home because they are under physical or some other sort of threat?

Mr Webb : It may just be that we are forcing them to choose between where they would like to suffer their human rights violations, and some say they can no longer take the uncertainty of Manus anymore and so return home. But it is a mistake in my opinion to call that return voluntary.

Senator IAN MACDONALD: I did not call it voluntary return. I had so many are wanting to go back home?

Mr Webb : We do not know how many 'want' to go home. I think the department would have up-to-date statistics. Some have returned. The other point to note is that although some do choose to return home and no doubt not every person on Manus will have strong refugee claims, many will. The fact that some will not be refugees—

Senator IAN MACDONALD: You aware that the obligation of any country to people who ask for refugee status is to find them somewhere in the world that is safe; is that right?

Mr Webb : Our obligation is to treat people in accordance with the commitments we have made under international law.

Senator IAN MACDONALD: Which is what I briefly said.

Mr Webb : We are not doing that. We are sending people into conditions that violate their human rights, and for that reason alone our current policies and the manner of their implementation are unlawful.

Senator IAN MACDONALD: Sending them to someplace where they are safe, isn't that the principal aim of the whole refugee convention?

Mr Webb : There are many principles in the refugee convention. One is the principle of nonrefoulment—we cannot return people to a territory where they will face persecution. Another principle in the refugee convention is that you cannot penalise asylum seekers because their entry is unauthorised. That is precisely what we do.

Senator IAN MACDONALD: But isn't the main thing to find them somewhere safe to live? Not somewhere in an economic—

Senator HANSON-YOUNG: Safe isn't being chopped to bit with machetes, I would suggest.

Senator IAN MACDONALD: Who got chopped to bits with machetes?

Senator HANSON-YOUNG: A number of people had their throats slit with machetes. That is what happened. That is not keeping people safe.

Senator IAN MACDONALD: It is a pity, Senator Hanson-Young, that you did not make Mr Rudd aware of this when you propped up his government—

Senator HANSON-YOUNG: I did, Senator Macdonald. I did—

Senator IAN MACDONALD: and when his government made these decisions that we are now complaining about.

Senator HANSON-YOUNG: You want to have an argument about how many times I have—

Senator IAN MACDONALD: We are now setting up committees.

Senator Hanson-Young interjecting

Senator IAN MACDONALD: How many committees did you set up under the Labor government?

Senator HANSON-YOUNG: versus how many times you have openly boasted that you sent people to—

Senator IAN MACDONALD: Yes, how many did you?

Senator HANSON-YOUNG: where they were shot, whipped and cut with machetes, Senator Macdonald?

CHAIR: Order!

Senator HANSON-YOUNG: That is on your head.

CHAIR: Senator Singh has a point of order.

Senator SINGH: On a point of order, Chair: this is unseemly.

CHAIR: It is unseemly; I agree with you, and I am going to come back. Senator Macdonald, you have one more—

Senator IAN MACDONALD: Chair, if you might stop Senator Hanson-Young—

CHAIR: Would you like one more—

Senator IAN MACDONALD: interrupting all the time and making—

CHAIR: Well, you are interrupting as well.

Senator IAN MACDONALD: snide comments that relate to a government that she kept in power.

CHAIR: I will not have the pot calling the kettle black here; I am sorry. I think there is a lot of interruption happening both ways, and I think you will acknowledge that. You have one more question, if you have it. If you do not have another question, I will go now—

Senator IAN MACDONALD: I will go back to my—

Mr Webb : Chair, may I answer the question that was asked? The question that was asked was about the central principle under the refugee convention. The refugee convention is a law and, like all laws, it contains many principles. One of those principles is not to send people to a place where they will face a violation of their human rights. Another is to not penalise them on the basis of their mode of arrival. We are flagrantly breaching the latter.

Senator IAN MACDONALD: Well, I will pass that on to Mr Rudd for you. I am sure you—

Mr Webb : As did we, Senator.

Senator IAN MACDONALD: You did, did you? That is good.

Senator SINGH: This question is to Amnesty International. In your submission, you put forward a few recommendations, and one of those recommendations is about access—to ensure access to the detention centre. What has the access been like to go to other detention centres—like to go to Nauru or Christmas Island? Has there been the same level of difficulty as there has been with Manus?

Ms Schuetze : Yes, we have noticed the change this year in our requests for access. Last year, we were given quite complete access to the facility when we went to Manus Island. We were allowed to go to every place we asked to visit. We were allowed to speak to whoever we asked to speak with, essentially. And we appreciate the support of the Australian and PNG governments with that visit.

This time, there were a number of factors, one of them being that visas were delayed. We were attending for the court proceedings. We submitted our forms on a couple of days notice, which may have been short notice, but at the same time we had been there before, we knew how the centre operated, and we were quite surprised to be refused. We had also received reports when we were over there that lawyers, even under court orders in Papua New Guinea, had difficulty accessing the centre and were turned away. That includes the Public Solicitor's office and it also includes Australian lawyers. Recently we have twice requested access to Nauru, and we have been refused that access. We last visited Nauru in 2012.

Senator SINGH: This change of access availability—from what date are you saying that this kind of policy change has come forward?

Ms Schuetze : I do not have any information on when there might have been some sort of policy shift. All I know is that in November last year we were granted quite full access; this time round it was not the same scenario. I do not know if factors following the violence played a role in that or what the reasons behind it are. The response we got from the Nauru government was, 'Not at this time; it would be premature,' with no further explanation, so we cannot really say where that decision is coming from, who made the decision and when that was in fact communicated to those centres.

Mr Webb : Can I add something. I think it is fair to observe that access to the centres has been restricted under successive governments. The simple fact is that on only one occasion has an Australian journalist been able to enter Nauru and take a picture, and he was only able to do so pursuant to forceful orders from the national court of another country.

Senator SINGH: Can I then ask you what you have found to be the contributing factors that led to the events of 16 to 18 February?

Ms Schuetze : From our perspective, there are a combination of factors in the detention centre and the way it is operated: the lack of clear plans for processing and resettlement, the arbitrary and prolonged nature of the detention, and the uncertainty—and when I say that I mean there is a lack of information given to asylum seekers and a lack of information given to Papua New Guinean nationals about what their government intends to do with resettlement plans. There are aspects of conditions, including the lack of meaningful activities to engage asylum seekers, the lack of freedom of movement, overcrowding, unsuitable accommodation and sanitary issues. There are other factors, like calling people by their boat IDs, the prison-like environment and the returns orientated focus. We say all of that, in conjunction with the recent violence, has led to a situation where there is distress and anxiety on the part of asylum seekers. That will not be addressed until there is some kind of accountability for what happened over there with the violence.

As we saw in the Cornall report, there is no information to show that security contractors or other service providers have not re-employed those who may have been implicated in the violence, which adds to the ongoing sense of fear for people's safety. These are all factors which contributed to the situation on the ground, but we heard nothing about the way that asylum seekers were behaving or protesting which warranted the response against them, which was excessive and quite violent use of force. On all reports we received, there were some protests. They had been quite vocal at times and disruptive, but there is very little evidence to suggest that asylum seekers engaged in any violence. Many asylum seekers told us that the incident started when people outside the centre started throwing rocks at them, not the other way around.

So we have this situation where there was an excessive and violent response to those protests which has led to this violence, but we say that the broader systemic issues around the detention there also need to be addressed.

Senator SINGH: We have heard a lot of evidence thus far about these various contributing factors and the ongoing tension that was brewing in the facility, but there seems to have been something that actually triggered the events in February. Do you regard one particular factor as triggering what took place on that occasion?

Ms Schuetze : No. To us, it seems like there was a meeting held by senior management on the afternoon of the Sunday and that there were a number of outstanding questions that asylum seekers had been putting to management for a number of months. They had not been getting answers. They were calling for their freedom. They were calling for some clear idea of when they would be processed and what would happen to them next. They did not get very many answers out of that meeting and I think that added to frustrations and tensions at that point. So I think the uncertainty around all of this was a major part of what happened.

Senator SINGH: The summary of findings in your December report states:

Asylum seekers are pressured to sign statements that they are undertaking the journey to Papua New Guinea voluntarily, although this is patently not the case.

What was this statement? Do you have a copy?

Ms Schuetze : We did not have a copy, but the people we interviewed said they received a statement. Some people said that that was not translated for them. It was written in English and they refused to sign it because they did not know what it said. Others said that they were told that it was regarding permission and that they should sign it when they were quarantined at Christmas Island. Some people did sign it because they felt that they had no choice, and they expressed that to us. Other people said they refused to sign it.

Senator SINGH: It was not a statement of which the asylum seeker was given a copy?

Ms Schuetze : No.

Senator SINGH: So it is a statement that now rests with the department?

Ms Schuetze : That is my understanding, yes.

Senator SINGH: Who do you regard as being in charge of the Manus Island facility?

Ms Schuetze : The department. We asked everyone there who they thought was in control. Even medical professionals told us that decisions to transfer people off Manus Island for medical reasons went to Canberra for a decision. The only interaction people outside the centre had with the centre was with a single department official who had recently been appointed for community liaison. That was an Australian department official.

But of course the official line from the department was that the PNG government was in control. We also had meetings with the PNG authorities, but it just seemed that there were no clear plans around resettlement, that there were not the laws, the policy and the framework in place to carry this through without substantial support, technical support and financial support from the Australian government. It appeared that they leaned very heavily on Australia for those decisions.

Senator SINGH: I have asked that question of just about every witness and I am pretty sure that just about every witness has said, 'The department,' other than the department, which has said 'The PNG government.' Mr Webb, in your submission, the Human Rights Law Centre submission, you talk about the breaches of international law. Obviously, we are focused on the events that occurred between 16 and 18 February. In that context, what were the breaches of international law that occurred surrounding that particular event?

Mr Webb : Because I was not there, I do not have firsthand information on exactly what happened on those nights. I do have information on what contributed to the unrest that underpinned those incidents. What contributed to that unrest were some human rights violations that are inherent in the arrangements. The arrangements involve the mandatory and indefinite detention of people and that is a breach of the protection against arbitrary detention under the International Covenant on Civil and Political Rights. The combination of mandatory indefinite detention in austere, physical conditions amounts to inhumane treatment, which is a breach of articles 7 and 10 of the International Covenant on Civil and Political Rights.

Senator SINGH: Which Australia has ratified?

Mr Webb : Which Australia and Papua New Guinea have ratified. Also, as I have previously said, the refugee convention, article 31, provides: 'States cannot impose penalties on asylum seekers on account of their unauthorised entry.' But that is precisely what Australian law does. It says that if you come without permission by boat, then you must be detained and you must be sent offshore as soon as possible.' So we do precisely what article 31 of the refugee convention says we cannot do. Those, I think, are three pretty clear examples of Australia breaching the international treaties that we voluntarily signed up to. And those human rights violations are pretty intimately connected to the unrest that led to the events from 16 to 18 February.

Senator SINGH: When you mentioned there 'indefinite detention,' is it your understanding that these transferees are in a state of indefinite detention because there have been no refugee status determinations processed?

Mr Webb : That is one indicator of the indeterminacy of their detention.

Senator SINGH: What are the other indicators?

Mr Webb : The requirement is that we do not detain people arbitrarily, not that we do not detain people indefinitely. The fact that they are detained indefinitely, the fact that that detention is mandatory and the fact that there is no individualised consideration of whether detention is necessary for each person that we lock up—those factors combined make the detention arbitrary.

Senator SINGH: Thank you.

Senator HANSON-YOUNG: Can I just clarify, Mr Webb, were you part of the legal delegation that went into the centre in the days following, as part of the Cannings inquiry?

Mr Webb : Yes, it was in March.

Senator HANSON-YOUNG: It followed the events in February that is the subject of this inquiry. Ms Nicolle, was Amnesty there?

Ms Nicolle : Yes, Kate was there.

Ms Schuetze : Yes, I was there with Daniel at the time. So Amnesty intervened in the court inquiry and the Human Rights Law Centre was assisting us with legal advice.

Senator HANSON-YOUNG: . So when you went into the facility, can you describe to us what it was like?

Mr Webb : The first thing that I noticed was the security presence—it was overwhelming—and the atmosphere was clearly very tense and prisonlike. That was an observation made by Justice Cannings himself after the inspection. Another thing you notice is the extent of the overcrowding, and there was one particular dorm, I think it was P dorm, that had about 120 beds crammed in so close together that you could not move between them. And there was no air-conditioning, just a couple of industrial fans. We were not allowed to interview any asylum seekers but everywhere we went we were swamped with people who were desperate to tell us their stories and to get some assistance. So the harshness of the physical conditions and the sheer nothingness of it all were pretty clear.

There were also some little signs of the toll that that was taking on people. One thing that I remember quite clearly was that there was a sign on one of the fences that said all guards must carry their Hoffman knives with them at all times. A Hoffman knife is a hooked blade that is used to cut people down who are attempting to hang themselves. I think signs like that demonstrate that you are talking about conditions that are not just a bit tough; they are conditions that affect people so deeply that they create a risk of self-harm that is so ever-present that all guards at all times must remember to have these knives on them.

Senator HANSON-YOUNG: Did you see physical impacts from the two nights in question, from the riots?

Mr Webb : Yes. Like I said, we were not allowed to speak with asylum seekers but they were shouting at us to go and have a look at the bullet holes, and it was quite clear to see that shots had been fired. They had not been fired in the air because some of the bullet holes were below waist height, and there were broken windows and things like that.

Ms Schuetze : There were also a number of places we went into where the asylum seekers had mattresses on the floor and no bed and when we asked security guards about this there did not seem to have been any attempt to replace or repair damaged equipment and things like that from what had happened. The shaded area that used to be outside the dining area to Oscar compound had reduced in size significantly and that was one of the major concerns we raised last time. I think for me coming back the biggest shock was the tension between asylum seekers and the people running the centre. There was a clear sense of anxiety and distress that we witnessed. There is a new psychiatric area where there were four patients, and there was one person there who was visibly shaking. I am not just saying small movements, his whole body was shaking, and he said to us that he had been like that since the violence three weeks earlier. There is no fulltime psychiatrist on Manus Island and I think it is alarming that we have people at such a high psychiatric level that they need to be constantly monitored but there is not any suitable medical care for them on Manus right now.

Senator HANSON-YOUNG: In relation to those who gave evidence in the court, was it a session of court held inside the detention centre? How did that work?

Mr Webb : The court inspected the detention centre. Also as a part of the process of gathering evidence, asylum seekers were brought to the courthouse and gave evidence in court.

Senator HANSON-YOUNG: Did the G4S security guards remain in the court while the asylum seekers gave their evidence?

Mr Webb : Yes. And we were not able to speak with asylum seekers once they had finished giving their evidence.

Senator HANSON-YOUNG: Who determined that?

Ms Schuetze : The security guards escorting them.

Senator HANSON-YOUNG: That is, the G4S security guards who were with them?

Ms Schuetze : Yes. At that time there was a transition between G4S and Wilson. So some were accompanied by G4S and some by Wilson, in very different uniforms. But they made clear that we were not able to speak to them and the concerning thing was that, on the last day, there were two people who came to the court, waited a few hours to give evidence and were never heard. So they had been waiting for hours outside the court, wanting to give their testimony, and did not have that opportunity. One of the things that struck me out of the court case is that someone said, 'Today I feel human for the first time,' because he was able to give evidence in his name and have this public process where he was able to talk about what it was like there.

Senator HANSON-YOUNG: You have been in an interesting position, being able to go to the centre twice. There are not many people from the federal parliament, for example, who have been inside the Manus Island detention centre. Are you telling us today that the conditions in there in March—the most recent time you visited—were worse than they were when you were there in December?

Ms Schuetze : Yes. From what we have seen, observed and followed up from our last report there do not appear to have been any substantive changes. There might have been smaller individualised attempts to address that. But with respect to the state of the centre, Mike compound had opened, so there was some attempt to alleviate overcrowding in other areas. There are plans to expand the facility, so it was not made clear to us whether more people would be sent there or not. The state of the ablution box was much worse, because asylum seekers, since the violence, were expected to clean their compounds themselves, because PNG cleaning staff were not allowed into those compounds. They were also self-administering food and things like that. So it was being operated very differently in March as opposed to in November. I would say that there has definitely been a change in that atmosphere and that sense of despair amongst the people there. They were very fearful for their safety there, given the recent violence.

Senator HANSON-YOUNG: What was the attitude towards you of staff who worked there as you were inspecting the centre?

Ms Schuetze : There were people who were quite happy to approach us and talk to us last time who would not talk to us at all this time around. Again, we did not have the same access to talk to some of the people that we did last time. So I would say the reaction was very different and people did not want to engage with us. Our main observation and interaction was whilst we were there with the court proceedings, so I guess we did not have much opportunity for involved interaction.

Senator HANSON-YOUNG: For the sake of the committee, can you tell us where the Cannings inquiry is up to? What has happened with that?

Mr Webb : The state of Papua New Guinea has appealed against the judge's refusal to disqualify himself. At the beginning of the inquiry the government of PNG made an application that Justice Cannings step aside on grounds of apprehended bias.

Senator HANSON-YOUNG: This was the case that was funded, as confirmed in Senate estimates a couple of weeks ago, by the Australian government?

Mr Webb : That is right. The Australian government, as we understand it, was paying the PNG government's legal bills in respect of the inquiry and also in respect of the appeals to halt it.

Senator HANSON-YOUNG: So it is just at a stalemate, effectively, at the moment?

Mr Webb : We are waiting for the appeal to be heard and determined.

Ms Schuetze : Separate to that, there has also been a new Supreme Court challenge under section 57 of the Constitution, which, in a sense, allows for a court-initiated human rights inquiry. So now there is a challenge to the powers at all for a judge to initiate any form of inquiry under the bill of rights.

Senator HANSON-YOUNG: Both of you have used the words 'effective control' a number of times in your testimony today and also in the written submissions that we have. A number of other witnesses have as well. What do you mean by 'effective control'? Why are you using that terminology? Why is that significant?

Mr Webb : The point is that Australia's human rights obligations do not end at its borders. It would defeat significantly the purpose of international human rights law if states could just do offshore things that it could not legally do onshore. So for that reason international law is concerned with what states actually do, not just where they do it. Australia will be responsible for events on Manus if it can be shown that the arrangements are within Australia's effective control. The test has been described as being met where a state is a link in the causal chain that allows human rights violations to take place. In the context of Manus, Australia designed the arrangements, Australia built and funds the detention centre, Australia contracts service providers to provide services at the centre and Australia is involved in the processing of claims within the centre. So not only is Australia a link in the causal chain, Australia built the chain and underwrites the chain and is involved very closely in every link of that chain. So quite clearly Australia has sufficient control to be regarded as having effective control, and for that reason Australia is responsible for any human rights violations that take place.

Senator HANSON-YOUNG: And you are submitting to us today that there are significant human rights violations occurring as we speak on Manus Island.

Mr Webb : Yes, and that is not just the conclusion of the Human Rights Law Centre, that is something that the United Nations Refugee Agency has said its reports, that it is concerned that the detention is arbitrary detention and that the conditions are inhumane. It is something that Amnesty makes quite clear in its reports too.

Ms Schuetze : In relation to that, the risk of those asylum seekers on Manus Island remains. Those who were witnesses to or involved in that violence potentially remain at very serious risk on Manus Island the longer they stay there. There are no witness protection programs in Papua New Guinea, so I am very concerned that some of the submissions made to this committee or other reports have passed on information to the local police there without any consideration as to what protections might be in place. To my knowledge there are none. So in that sense we go further and say that there is that immediate risk to people there and they should be pulled off because that is the only way to address things. If someone is charged with wilful murder over Reza Berati's death and that person is a national, there is certainly culture around payback that his family would have an obligation to take revenge on the person who made that complaint or their wantoks or their community in the sense. There is still an ongoing risk that I do not think we should underestimate at this time on Manus Island and we should not by any means downplay the generalised violence takes place every day in Papua New Guinea, because that is very real.

Senator HANSON-YOUNG: Perhaps, Mr Webb, this is a question for you from a legal perspective. Do you believe there is negligence on behalf of the Australian government in relation to what happened on the night of 17 February?

Mr Webb : The first point is that the Australian government owes a non-delegable duty of care to asylum seekers detained by and on behalf of it, and contracts and territorial borders do not sever that duty of care. I think that in the circumstances unrest on Manus was foreseeable. The Australian government has failed to take reasonable steps to prevent it and therefore is quite possibly responsible for the consequences that have flowed therefrom.

Senator HANSON-YOUNG: What about the issue of compensation for those who have been injured and have to suffer as a result of those actions?

Mr Webb : Ultimately I can have an opinion on that, and my opinion is that it is highly likely that Australia would be held responsible under the common law for the harm that has been suffered as a result of these incidents. Ultimately that will be a matter for the courts and I hope one day they have the opportunity to consider those questions.

CHAIR: Senator Seselja has a question and I have a question too.

Senator SESELJA: I have a quick couple. You talked about visiting in November of last year. Was that the first visit since the reopening of Manus detention centre?

Ms Schuetze : Yes, the first visit that Amnesty did since it reopened.

Senator SESELJA: Why the sort of 12-month gap from when it reopened? Did you make requests during that time in the early part of 2013?

Ms Schuetze : We had been attempting to go to Manus Island earlier in the year, but of course with arranging for three different people from different parts of the world to get their timeframes and to make the request to government and things like that, there were certain delays that were outside of our control. So that meant that we did not get there until November.

Senator SESELJA: When did you first make the request?

Ms Schuetze : I think we made the request in July.

Ms Nicolle : I think that is right, but we can check that.

CHAIR: Could you take that on notice and confirm that date. Mr Webb, if I could come back to your final response, what forum would you foresee that a legal claim for negligence could be made?

Mr Webb : Potentially both or either of the courts of Papua New Guinea or the courts of Australia.

CHAIR: Some of the evidence that was given by Mr Stephen Kilburn several days ago was really about the ambiguous status of—we will call them transferees, because that is the terminology that has been used a bit—people who have been transferred to Manus Island by the Australian government. He was saying that one of the difficulties he and the security staff with G4S saw was that it was not clear whether the transferees were prisoners, people in detention or people being processed in a facility offshore from Australia. As a result, he said there was a real ambivalence about their rights, about the degree to which they could be searched, the degree to which they had a right to have their own personal property, the degree to which their freedom could be restricted and so on. It seemed like it is very unclear what their status and their rights are. I would be interested to hear your comments on that—whether you can shed any light on that, or whether that was indeed an ambiguity that you saw when you were there. What brought it to mind for me was the fact that you were saying that after these people gave evidence in court, they were not able to converse with you freely; that you were prevented from doing that by the security staff. Clearly, their right to speak to other persons in that situation was severely limited. Do you agree that there is an ambivalence, or an ambiguity, there?

Mr Webb : It is certainly ambiguous. There are lots of ambiguities. The environment is prison-like in that people are deprived of their liberty; they are not free to come and go. The key differences, though, are that they do not know how long they are going to be there for, whereas prisoners do; and also, obviously, they have committed no crime.

The other ambiguity is that it is called a 'processing centre', but that has not been happening with any efficacy. I think section 15A of the Papua New Guinea migration act gives a PNG minister the power to determine that someone is a refugee. Previously there were some regulations that set out a bit of a framework about how the processing would take place, but those regulations related to an old MOU that has now been superseded. So there is not even a clear legal framework for these people to be processed and, as I understand it, there is not any provision for a particular visa category that they will be eligible for. Another source of ambiguity is that it is called a processing centre and they are described as resettlement arrangements, but there is no clear framework for either of those two things to take place.

Ms Schuetze : If I could just add to that, one of our observations from talking to people working at the centre and to asylum seekers was that there is also ambiguity in terms of what laws are in place; what the local PNG laws are—we were given some misinformation about that in relation to whether they needed to report people for same sexual activity; what guidelines, if any, apply to medical staff operating in Papua New Guinea—whether they were still subject to the responsibilities in Australia as Australian practising medical officers overseas. There are a lot of ambiguities over there. In relation to their rights, these people are not even being told that they may have rights under the PNG constitution, or that they may be able to access lawyers over there, and in fact are being discouraged from doing so in a number of ways. Some people do not have phone access until 2.00 or 3.00 am in the morning, so logistically the ability for them to get legal advice in Papua New Guinea, or even in Australia, at those times is entirely impractical. That is what we talk about when we say this access is a problem, because then it just adds to that confusion, that isolation and that uncertainty for people detained there.

Mr Webb : One more thing, if I may, that relates to both the question of potential negligence and also to the ambiguity about what the purpose of these arrangements is. I think one thing that is clear is that, when it comes to transferring asylum seekers to Manus, the cart has been put a very long way before the horse in that over a 19-month period you have had more than 1,300 people sent to a processing centre without clear arrangements in place for their processing, under a resettlement agreement without clear arrangements in place for their resettlement. I understand the committee has heard ambiguities about subcontracts and things like that, and the common theme in all of this is that these people were sent into arrangements that were not clearly defined and had not yet been completed. For that reason there is great ambiguity about what the real purpose of sending them there is.

CHAIR: Just to be very clear, that is the situation that occurred from the period that these transferees were initially transferred there last year, and it continues.

Mr Webb : That is right. The failure to ensure that there are clear legal frameworks for processing and resettlement with respect to people Australia sends to Manus Island is a failure of successive governments.

CHAIR: Thank you for that. I will draw the hearing to a close for today. Thank you very much for attending and giving evidence today. That concludes today's proceedings. The committee has agreed that answers to questions on notice are due by 1 July 2014. I thank all witnesses who have given evidence to the committee today; thanks also to Hansard, Broadcasting the secretariat. I declare the hearing adjourned.

Committee adjourned at 15 : 46