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

CHIA, Dr Joyce, Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, University of New South Wales

DASTYARI, Dr Azadeh, Associate, Castan Centre for Human Rights Law

EMERY, Ms Xanthe, Solicitor and Registered Migration Agent, Immigration Advice and Rights Centre Inc.

HIGGINS, Dr Claire, Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, University of New South Wales

MURPHY, Mr Kerry, Board Member, Immigration Advice and Rights Centre Inc.

CHAIR: We will reconvene. I now welcome representatives from the Andrew & Renata Kaldor Centre for International Refugee Law at the University of New South Wales, the Castan Centre for Human Rights Law and the Immigration Advice and Rights Centre, who are here via teleconference. The committee has received your submissions as submission 9, submission 7 and submission 14 respectively.

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 any 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.

We will start with opening statements before going to questions.

Dr Dastyari : Thank you very much for the opportunity to appear here today. As you have pointed out, Senator Singh, numerous people have told the inquiry that they believe that Australia's Department of Immigration and Border Control is responsible for the day-to-day operation of the detention centre in Manus Island. This evidence corroborates what we already know about Australia's role in the detention facility. Australia's effective control in the offshore centre triggers its obligations under international law, including the International Covenant on Civil and Political Rights, or ICCPR, which Australia has voluntarily agreed to abide by.

Australia clearly violated certain obligations under the ICCPR during the incident at Manus Island Detention Centre in February. Australia was responsible for protecting the life of Mr Berati, and Australia breached its obligation under article 6 of the ICCPR when he lost his life. Australia was also in violation of its obligation to abstain from cruel, inhumane and degrading treatment or punishment under article 7 of the ICCPR, and the obligation to treat detainees humanely under article 10 of the ICCPR.

However, what I want to highlight is that Australia continues to breach international law right now. Australia is arbitrarily detaining asylum seekers on Manus Island, because there is no individualised assessment to ensure that in fact, detention is a suitable option for every person there. Australia also cannot guarantee the safety of asylum seekers. Part of Australia's obligation to protect the lives of asylum seekers is to refrain from sending people to or keeping people in a place where their life will be at risk.

The committee has also heard evidence of very poor conditions at the detention facility on Manus Island and the fact that people are living there in fear. This is evidence of continuing cruel, inhumane and degrading treatment of detainees in further violation of the ICCPR. Senator Wright, as you pointed out this morning, people are denied ordinary, everyday social intercourse and that is a clear violation of article 10 of the ICCPR.

I also want to comment briefly on evidence provided yesterday regarding status determinations in PNG. Whether it is Australia or PNG that ultimately decides on the status of asylum seekers was not clarified yesterday. As a matter of international law, Australia has an obligation to ensure that no refugees or people who are at risk of torture are returned to harm in their home countries, even if it is PNG who is doing the status determinations. Australia would remain in violation of its obligations not to return a refugee to persecution, if PNG failed to identify a refugee in need of protection. The same is true for anyone at risk of torture. This is because the refugees and the individuals at risk of torture were transferred to PNG by Australia, and Australia continues to have a non-refoulement obligation to them regardless of the actions of PNG.

Senator Singh, you asked this morning about the requirement of processing. Under international law, there is no specified right to processing; however, there is a non-refoulement obligation. If PNG were to provide a durable solution to everyone in the detention centre—and that solution is not indefinite mandatory detention in inhumane conditions, but a safe living standard and a life that is not in violation of international law—then that would be fine. But that is not what Australia and PNG have chosen to do. Under international law, in that kind of situation, processing is important to ensure that you identify who is in need of protection and who is given that durable solution so that you are not wrongfully returning anyone back to harm.

CHAIR: Thank you.

Dr Chia : Thank you for the opportunity to provide evidence to this important inquiry. Our submission addresses the Australian government's duty of care under domestic law; its obligations and responsibilities under international law; and issues relating to refugee status determination and resettlement arrangements in PNG. In particular, we note the inherent risks that the policy of offshore processing poses to ensuring that Australia meets its obligations under both domestic and international law.

In summary, it is our assessment that the Australian government may have breached its duty of care towards asylum seekers held in the detention centre at Manus Island. Australia may have violated its international legal obligations in respect of the rights to life, liberty and security and its obligation to ensure that no-one is subjected to torture or other cruel, inhumane or degrading treatment. The inadequacy of refugee status determination on Manus Island and the policy of resettlement in PNG create real risks that international legal obligations will be violated. Indeed, in our view a significant underlying cause of the incident on Manus Island was the inadequacy of refugee status determination processes which fall short of minimum international standards and Australian practice.

In addition, we would like to make three short points. Firstly, we emphasise the point made in the Cornall report that the best way to prevent similar incidents in the future is to address all of the underlying causes of the tension on Manus Island, which requires a reassessment of the policy of offshore processing. Secondly, the evidence we have seen so far, both in the Cornall report and before this inquiry, demonstrates that a lack of clear accountability increases the risks of violence and makes it more difficult to address these risks. Thirdly, while we welcome the increased focus in recent weeks on processing the claims of asylum seekers on Manus Island, we remain concerned about the quality and fairness of the refugee status determination process and, in particular, durable solutions for those found to be refugees. We would encourage this inquiry to make recommendations, for those who remain on Manus Island and are subject to the offshore processing regime, that address these future risks.

CHAIR: Ms Emery or Mr Murphy, do you want to say something?

Mr Murphy : Our experience at IARC is essentially in terms of dealing with cases—not specifically the Manus case load. So we would adopt the points that have already been made in the other submissions discussed today. Furthermore, our concern is particularly with the refugee status determination process and how adequate that is, given how difficult that process is. We know how difficult that process is from our own experience in the Australian context, particularly with people in detention. The more isolated the detention the more difficult it is to elicit these claims in a way which is meaningful and helpful in terms of presenting an accurate case.

Furthermore, we have a concern about the durable solutions, especially the options for family reunion—for spouses and dependent children of those who would be resettled in PNG or elsewhere. They would be our initial opening comments.

Senator HANSON-YOUNG: We have had a lot of evidence put to us over the last few days about the effective control. We have heard from staff directly that decisions that were being made about day-to-day operations in the centre came from the Department of Immigration and Border Protection officers located at the centre. We have heard that even things as simple as getting appropriate protective equipment for staff, in the case of unrest at the centre, had to be approved by the department.

The various case workers and the CAPs officers who were there said that they had been given their instructions as to what they would do on the island from somebody at the Australian immigration department before they flew to Manus Island. Very few of the people we have heard from had much interaction, to be honest, with the PNG officers located in the centre. I guess that goes, Dr Dastyari, to your points about effective control.

Having said that, we continue to hear from the immigration department that they are just helping, they are just giving guidance. They are the ones with the expertise and PNG has not done this before so they are just helping. If Australia is funding the centre—if we negotiate and hold all the contracts, if we fund the subcontracts and if we fund the legal challenges that the PNG government has mounted in opposition to cases taken against the centre—it seems a pretty thin argument that the Australian government is making.

Dr Dastyari : There is an incredibly strong case that Australia exercises effective control. You mentioned that PNG has not done this before. PNG would not be doing this, this time, were it not for the Australian government. Everything rests on decisions made the Australian government. All the transferees are chosen by the Australian government. As you said, the centre is being paid for by the Australian government. But for the Australian government we would not have detention and we would not have the asylum seekers in the detention centre on Manus Island. So I think that Australian government's claims that it is not exercising control over the centre are very weak.

Senator HANSON-YOUNG: What effect does that have? We have all the evidence that we need to suggest that Australia does have effective control.

Dr Dastyari : Yes.

Senator HANSON-YOUNG: What is the practicality of that? What does that mean? Why is that helpful?

Dr Dastyari : It is helpful because it tells us that Australia does have responsibility under international law. We are in clear violation of a lot of our obligations under international law. The difficulty with international law is that it is very difficult to enforce. So, whilst it may be true that we have all these obligations under international law, unless it has been put into a domestic system, it is very difficult to litigate on.

But that does not mean that it is not law. Just because you cannot enforce it does not mean it is not law. If you have a red light that everyone goes through because they know there is no camera it does not mean that it is lawful to go through that red light. It is the same with international law. Just because there is no enforcement mechanism that is effective it does not mean that these obligations are not legal obligations and that we are not breaking the law by not abiding by them. But I would endorse what was said this morning about the need to incorporate some of our legal obligations into the Migration Act to ensure that these violations are enforceable under our domestic law and can be litigated in Australian courts.

Senator HANSON-YOUNG: I guess the issue there is that this is the whole point: the arguments of political motivation versus motivations under perhaps what the normal course of the rule of law should be. The parliament here had that debate two years ago and both major parties ruled to delete those obligations—

Dr Dastyari : Yes.

Senator HANSON-YOUNG: the safety net, effectively, for people to be able to take recourse if need be.

Dr Dastyari : Yes.

Senator HANSON-YOUNG: Dr Chia, did you have something to add?

Dr Chia : Yes. We have read most of the legal submissions and there is an overwhelming consensus, I think, that Australia does have legal responsibility at international law for Manus Island. Effective control is useful but I don't think we need to be diverted to that debate. We would certainly agree with the UNHCR that at any event there is clearly shared and joint responsibility. In that respect I think the exact details of who funds what is less relevant. Clearly there is sufficient to trigger our international obligations under the state responsibility doctrine.

Senator HANSON-YOUNG: Can I go to some more specific things that we have touched on over the last few days of the inquiry. Obviously it is really difficult to get access to the asylum seekers inside the camp. Part of this whole mess, shall I say—and I think borne out by the evidence we have had presented to us—is partly due to the fact that people are so remote, that there is this secrecy that surrounds the centre where even staff cannot speak out which allows for things to go on unseen, unhurt until it blows up. That is effectively what has happened. As a result of the events on the nights of 16 and 17 February a number of people were seriously injured and a number of them were flown to the Australian mainland. Some still remain here. What is the opportunity for them and what rights do they have now being on Australian soil? Is it any different or should it be?

Dr Dastyari : I cannot comment on that. Do you guys on the phone want to take this one on?

Mr Murphy : Assuming they have been found to be persons that are covered by section 46A—namely, unlawful maritime arrivals—they are therefore excluded from being able to make any protection application within Australia unless the minister personally intervenes and allows them to make that application.

Senator HANSON-YOUNG: So he would have to lift the bar?

Mr Murphy : Exactly, yes.

Senator HANSON-YOUNG: There is one person who remains in hospital. February, March, April, May, June—it is almost four months later and one man remains in hospital in Australia. It would only be up to the federal minister to ever lift the bar and allow him to apply for protection here in Australia—there is no legal way around that?

Mr Murphy : As far as we can see, that is correct. I haven't seen any of the people from Manus, but I have seen people from Nauru who have been brought to Australia and they have been granted a temporary safe haven visa, the subclass 786, for one day, which effectively creates yet another bar under section 91K of the act similar to the section 46A bar. Either way there is a legal barrier to them being able to make their application in the first place.

Senator HANSON-YOUNG: So this guy might stay in hospital for months and months—years in fact—and never be granted protection under Australian law.

Mr Murphy : Senator, I think it is probably worse than that: there is no mechanism at all for someone in that situation to even have their claims considered until the minister lifts the bar.

Senator HANSON-YOUNG: So it would have to be a personal intervention by the minister.

Mr Murphy : As far as we can see, yes.

Senator HANSON-YOUNG: Could I go the issue of the non-refoulement obligations and how they intersect with this notion of voluntary return. We have had evidence submitted to us that the conditions are harsh, cruel and dehumanising where people are contemplating suicide; yet the government maintains that, if people want to home, they can find a way to send them home. Where is the legal obligation in relation to voluntary return versus non-refoulement?

Dr Dastyari : If people are choosing between two evils, it doesn't mean that we don't have an obligation to them. Conditions on Manus Island may be so horrendous that, in order to escape those human rights abuses in Manus Island, they are choosing to go back to a place where they have a well-founded fear of being persecuted because of their race, religion, nationality or membership of a particular social group or political opinion or they may be going back to a place where they are at risk of torture. If that is happening, then we are in violation of our non-refoulement obligation even if it is voluntary because, in that kind of situation, we don't lose our obligation to them.

Dr Chia : Obviously, the voluntary would not be truly voluntary. The question of course is if it is coerced voluntary return then the obligation still applies, so I absolutely agree with Dr Dastyari's comments there.

Senator HANSON-YOUNG: One of the comments made to this committee yesterday was that people were choosing between having their human rights violated on Manus Island or back in their home country. What we saw unfold on Manus Island where individuals were beaten and attacked by people employed to look after them strikes me as not just an act of violence but a total abuse of them. Surely that is in itself an abuse of human rights: to have somebody incarcerated and then beaten by the very people who are keeping them incarcerated.

Dr Dastyari : I think it is cruel, inhumane and degrading treatment or punishment and it is inhumane treatment of detainees. They are very clear violations of international law but, as you have pointed out, it is also denying people their dignity and placing them in a very dangerous situation when we have a duty of care to them. I would agree with you.

Mr Murphy : I think also when people are in detention there is a greater duty of care, because they are not in a situation where they can deal with many things themselves. They are totally reliant on those who are detaining them for their day-to-day circumstances. We find that the inability to make application exacerbates the deterioration in mental health. One of the cases that my colleague Xanthe has come across is an example of that. I think she would like to talk about that.

Ms Emery : As Kerry said at the beginning, we don't work on Manus. We haven't had a Manus caseload as such, so our clients are in the community and many of them arrived in Australia by boat. In terms of this voluntary return concept, I have an Iraqi man who just last week has said to me that he has not been able to make an application because of these bars that we referred to. He asked me, 'Is it better if I go back? Should I just go back to Baghdad, because nothing is happening here in my case?' He has been in Australia for over a year on the mainland. This is the problem that we are having.

Senator HANSON-YOUNG: He is saying he should go back to where?

Ms Emery : He asked, 'Would it be better for me to return to Iraq than to just wait in Australia?' It is sad to think that applying for RSD, even within Australia, is worse than living in Baghdad.

Senator HANSON-YOUNG: Meanwhile, half a million people have been internally displaced within 48 hours in Iraq.

Ms Emery : That is right.

Senator HANSON-YOUNG: Can I take that point, because one of the concerns that have been raised with this committee in evidence involves a number of Syrian refugees. There are records of conversations with departmental officers who are discussing with these refugees their removal and return to Syria. What is our obligation for non-refoulement in that case? And is that an obligation of the Australian government, or is it an obligation of the PNG government?

Mr Murphy : As one of the previous speakers said, there are joint and several obligations involved in this in terms of responsibility. Clearly, the Papua New Guinea government is not in a strong position to be able to assess and provide resettlement. Australia is paying all the bills. It is effective control by Australia. We would take the view that that leads to responsibility for the Australian government.

In relation to the Syrian cases—and I have had a few Syrian cases—the situation in Syria is catastrophic, to say the least, and to have the situation where they are determining whether it is safe to go back to parts of Syria, which are under daily bombardment, rather than wait out on an island off Papua New Guinea is a serious indictment of the process that the Australian government is funding.

Senator HANSON-YOUNG: This might be a long bow to draw, but when we get to the point of non-refoulement, . Australia's obligation under the refugee convention is not just about the threat of sending someone back to their home country. Is that correct? It is an obligation not to send somebody into further harm, wherever that is.

Dr Chia : That is correct.

Senator HANSON-YOUNG: People have come into Australia's territorial waters, they have been picked up and they have been put on Christmas Island for a number of months. My understanding is that the most recent group of people sent to Manus Island, which is since the events in February, was as early as this week. Those people would have been detained on Christmas Island for quite some time in Australia's care. We have now sent them to a place where we have heard evidence this week of degrading, inhumane and cruel treatment. One person has been killed at the hands of somebody who was employed to look after them while they were incarcerated. What are our obligations? Have we breached our own obligations in respect of non-refoulement?

Dr Dastyari : Are you asking if we are now a refugee producing country?

Senator HANSON-YOUNG: Yes.

Dr Chia : I would say that our obligations in both cases are not to refoule refugees. It is just a more direct responsibility, obviously, if we are then sending them back to a country that is a place of torture or other inhumane and degrading punishment. In both cases, Australia's international legal obligations are still triggered, but it is a more direct relationship if it is the case that those conditions apply in Papua New Guinea. In that case, it would apply to all of the detainees rather than a particular groups of detainees, I suppose.

Dr Dastyari : If they have a well-founded fear of being persecuted because of their status, and their status is that of an asylum seeker transferred to—

Dr Chia : Or if they have a well-founded fear of being persecuted for other reasons.

Senator HANSON-YOUNG: They sound like they are being persecuted inside the Manus Island detention centre.

Dr Dastyari : There may be an argument that Australia is a refugee producing country, but I think the stronger case is the risk of chain refoulement—that we send someone to PNG and then they get sent back to harm.

Senator HANSON-YOUNG: Let me ask you, then, about asylum seekers. A number of pieces of evidence have been given to us in relation to asylum seekers who are gay. Homosexuality is illegal in PNG. In fact, if you are caught in the act it could come down to the death penalty, which has been recently reintroduced in Papua New Guinea. Asylum seekers inside the camp are told that homosexuality is illegal in PNG and that they could be punished severely for it. How are those asylum seekers ever going to be safely resettled in PNG? If Australia were to allow that to happen, would we be breaching our non-refoulement obligation?

Dr Chia : I would probably say that that is the strongest case for that direct obligation. Certainly we express concerns in our submission about that particularly vulnerable group of asylum seekers. It has been raised several times. We have not heard any further news about what will be done.

Senator HANSON-YOUNG: If someone fled Iran because they are a gay man and have now been sent by Australia to PNG, it seems to me that we have not made sure that that person is safe.

Dr Dastyari : No, we would be violating our international obligations if we were resettling a person in a country where they would be persecuted because of their homosexuality and status as a gay man.

Senator SESELJA: I want to come back to this issue of control or 'effective control', as has been stated. Can you just explain it to me in a little more detail. It seems to me a difficult case to make that somehow a sovereign nation like PNG are not in control of what happens on their territory. They make assessments as to who gets settled there. Are you saying that the sovereign government of PNG have no ability to control what goes on in their own territory?

Dr Dastyari : No. As has been repeatedly said this morning, we have joint responsibility for ensuring control of that centre. In my brief discussion this morning I focused on Australia simply because the duty of care of Australia is what we are discussing today, but we both have responsibility there. Just because PNG also has responsibility for the detention centre does not mean that Australia does not. We cannot say, simply because they are a sovereign nation, that we can do anything we want in someone else's country. If that were the case, we would have all sorts of vacuums in international law—and we cannot have that. The way to understand it is that PNG and Australia are exercising control. Because of that, both PNG and Australia are liable under international law for what happens there.

Senator SESELJA: But, surely, ultimate control goes to the sovereign nation where it is happening and it is the sovereign nation of PNG that make decisions on who gets settled in their nation? It is all well and good to talk about joint responsibility, but effective control and ultimate control is surely the PNG government's.

Dr Dastyari : But that is irrelevant under international law. What is relevant in considering Australia's obligation is effective control. We do not need to be ultimately in control to have these obligations.

Dr Chia : I think it is important to reiterate that point. We are talking about joint and civil responsibility, so it is not particularly useful to try to divide the two countries in that legal doctrine. What is important is that both countries have that responsibility. It is important to note that, while PNG is a sovereign nation, the question of human rights is one of looking at the facts. The effective control point looks at what is actually going on in substance not just in law. It is not a legal formality; it is a question of what is actually going on and who is in control. So all those factors are relevant to that ultimate test. But we would say, ultimately, the debate about effective control is not all that helpful because, at the end of the day, as every legal expert has said, there is at least joint and civil responsibility in that—

Senator SESELJA: Going to your definition, are you concluding that Australia can have effective control even though we do not have ultimate control? Even though ultimate decision making is made by another country, we are still—

Dr Chia : Just to clarify, we have not come to a conclusion on effective control one way or another. We think it is simply sufficient to say that we have the joint and civil responsibility, and so—

Senator SESELJA: Sorry, I thought I heard someone say that we do have effective control.

Dr Dastyari : Yes, I feel that we do have effective control.

Senator SESELJA: These are two different views from different witnesses—

Dr Chia : I would like to clarify that. We are cautious simply because we do not know the facts on the ground and we are trying to steer away, I suppose, from assessing that. The question of effective control, as I have stated, is a factual one, essentially, and it is one that has been quite contested. So we are reserving our right not to make a conclusive call. But, on the other hand, we simply say that there is no inconsistency in our positions; it is simply more lawyerly caution on our part.

Senator SESELJA: So you are not drawing that conclusion, necessarily.

Dr Chia : We say that it is not necessary to come to that conclusion simply because there is clearly joint and several responsibility and that disposes of the argument, I think.

Senator SESELJA: I want to go to the broader human rights question. If I understand your position, Dr Dastyari and I assume this is shared by other witnesses here—and I have not heard all the evidence; I was not here at the beginning, and I apologise for that—that obviously there are a number of criticisms of particular issues on Manus at the moment, but yours is a broader criticism as well. You do not agree with the concept of offshore processing, but notwithstanding that, if you were to deal with many of the issues you would not accept that offshore processing is the right way to go. Is that a fair assessment of your position?

Dr Dastyari : I do not accept violations of the rights of asylum seekers. From what we have seen both in the new arrangements with offshore processing and what we have seen in the past, it seems to me that we are unable to provide offshore processing in a way that does not violate the right of asylum seekers. Until we can provide a system where asylum seekers' rights are not violated, then, yes, I would be opposed to offshore processing.

Senator SESELJA: Explain to me then what that means in practice. You are saying that none of the offshore processing you have seen either in the past or now is something that you support. So what kind of offshore processing would you support?

Dr Dastyari : I would support offshore processing where we do not have arbitrary detention, where people are not treated cruelly and inhumanely, where we have effective refugee status determination, where we can effectively identify who is in need of protection and who is not and where asylum seekers are in a safe place and are not at risk of further persecution because of their status or for any other reason. All of those things have not been there either in Nauru or PNG last time or this time around.

Senator SESELJA: You are critical of the current policies and, really, the policies of both sides of politics broadly now. But do you accept that the situation that eventually the Labor Party decided to respond to, and we are responding to now in government, was a situation that was untenable where more and more people were taking the dangerous journey, where we had more people arriving on boats than our annual quota for the humanitarian intake? Do you accept that was not a sustainable position and that the alternative in place before we went back to offshore processing was not sustainable either?

Dr Dastyari : My argument would be that the processing we have now is not sustainable. We are spending billions of dollars violating the rights of asylum seekers and endangering our relationship with some of our neighbours in order to stop the boats, and we are not processing people, leading to the deterioration in the health of human beings for the idea of stopping the boats. But the persecution and the violations of human rights happening in these other countries has not stopped.

So this is not a permanent solution. A permanent solution, something that is sustainable, will be to have effective processing in Australia where we have the ability to provide greater rights to asylum seekers. No-one is saying that Australia has to accept everybody, but if people are refugees or if they are fleeing torture then we have a responsibility to provide them with a safe option and protection.

Senator SESELJA: When you saying that no-one is saying that Australia has the responsibility to accept everybody, that is true, and no-one would argue that we do not have the capacity to take all displaced people or all those who are worthy of protection. We simply do not have that capacity. Going back to the earlier question, do you accept that what we had in place—and what you are pointing to that you would prefer to see in place is effectively what was in place before we went back to offshore processing—was not working? Do you accept that we were in a situation where we had more people arriving in Australia unlawfully by boat than we had a quota to accept in any given year? Surely that is not a sustainable position.

Dr Dastyari : Our legal obligation is not a quota. Our legal obligation is that, if someone is in our jurisdiction, we have a responsibility not to return them to persecution or torture.

Senator SESELJA: Effectively that is saying that there is no limit in terms of what we would accept, provided people can meet the criteria. Is that the position?

Dr Dastyari : No, that is not the position. I think you are taking things much further than I am actually saying. All I am saying is that we have certain legal obligations and we are not meeting those legal obligations. What might happen if we have a legal processing regime, I do not know—neither of us can speculate about what might happen—but what I do know is that what we have right now is unlawful.

Senator SESELJA: Going back to the point—because I do not think I was misrepresenting what you were saying—is it your position that if 50,000 people arrived in Australia tomorrow, we should accept all who had a claim to asylum? If it was 100,000 the following year, are you saying that we should accept it regardless of the numbers?

Dr Dastyari : We do not have a responsibility to accept everybody. We do have a responsibility to ensure that there is a durable solution for people who are fleeing persecution because they are refugees or individuals who are at risk of torture. If we can provide a durable solution to those people, then we are meeting our international obligation.

Senator SESELJA: Given that we do not have a responsibility to accept everybody, which you have repeated, do you not think it is reasonable for a government to make judgements to say that we will accept people—and we do—but, where we have a situation where the main test for getting accepted as a refugee in Australia is to arrive here, do you not see that that actually discriminates against people who are just as worthy who do not have the opportunity to arrive in Australia for whatever reason?

Dr Dastyari : Senator, we have signed onto the Refugee Convention voluntarily. Under the Refugee Convention, we have an obligation to refugees. That is a obligation that we took on, again, voluntarily. Under the Refugee Convention, our obligation is not to return people to harm. We do not have an obligation to go out and pick people up and bring them to Australia. That is a humanitarian act, and it is a wonderful thing that we do as a country, but we have a legal obligation—it is law for us—to ensure that refugees are protected from harm and that people at risk of torture are protected from harm.

What that might look like, I do not know. In this inquiry about the incident at Manus Island, I am not sure it is the best place for you and I to be debating Australia's asylum policies, but I can tell you that, as an expert in international human rights law—

Senator SESELJA: It is not a bad place to be debating it, and we have been debating it.

Dr Dastyari : —the policies we have in place at the moment violate our international obligation on Manus Island.

Senator SESELJA: I am just putting to you the practicalities. Given that you have accepted—and I think almost all Australians would accept—that we are not in a position to take every person who is worthy of protection or who may seek out protection, I am asking whether you agree that governments do have to make choices and that there will be no perfect choice in this space. Would you not agree that governments have to make choices in this, and that, if we do not, we could have a situation where we do lose control?

Dr Dastyari : Senator, our refugee policies are extreme to say the least. I have done some work on US asylum policy and I have done some work on European asylum policy, and they are receiving much, much, much higher numbers of asylum seekers than we could dream about receiving, and yet, whilst they are violating certain international obligations as well, what we are doing in an offshore processing centre is unprecedented. It may be true that governments need to make choices, but governments also need to act lawfully.

The refugee convention was signed after the Second World War to ensure what happened to the Jewish refugees who were fleeing persecution never happens again. If we signed that convention knowing this and committed ourselves to protecting vulnerable people fleeing harm then the choices we make must be in line with the obligation that we have under the convention.

Senator SESELJA: I know you do not agree with the policy change. You have made that very, very clear. But do you accept that one of the positives of the current policy has been that we are seeing less people drowning? Would you accept that that is a positive outcome?

Dr Dastyari : Senator, another consequence may be that people are remaining in persecution and remaining in harm. Whilst they might not be making it to Australia they may be being harmed where they are or they may be in these transit countries. We do not know what is happening at sea.

Senator SESELJA: With respect, I might just get you to answer the question. Would you see it as a positive outcome that, it seems, we are not seeing people drowning trying to get to Australia as a result of this policy?

Dr Dastyari : It is very difficult to know what is happening at sea because this government does not tell us what is happening at sea.

Senator SESELJA: You wouldn't accept that we are seeing less people drowning?

Dr Dastyari : I think any policy that leads to less people drowning is wonderful, but it needs to be lawful. Our interception practices, our offshore processing practices, our detention practices are unlawful.

CHAIR: Mr Murphy or Ms Emery, were you wanting to say something there? It is a bit hard when we cannot make eye contact with you. I just heard some noise and I thought that might be your way of letting us know you wanted to say something.

Mr Murphy : I agree with the senator there is a balancing act in politics in terms of how these various competing interests and tensions need to be dealt with. However, the current policy does not actually balance the human rights and non-refoulement obligations. The aim of the policy is to stop the boats; it is not dealing with our obligations. I think that is one of the critical issues. It is like saying you could solve the problem of drink-driving by banning the sale of alcohol for everyone. That is true, it solves the problem of drink-driving, but it is an overreaction to the circumstances. I think that is one of the issues there. There is a compromise in terms of the political side; however, I think the parliament when it is exercising its legislative power needs to understand there are certain legal obligations that come with that as well.

Senator SESELJA: Dr Dastyari, you are not accepting that less people are drowning, although this seems to be a lot of evidence that that is the case—

CHAIR: Dr Dastyari, do you want to respond to that? You have been asked if you accept that and I would like to give you an opportunity to answer that.

Dr Dastyari : No, I do not accept that. We do not know what is happening at sea. There is a lot of secrecy around what is happening at sea, everything is considered an operational matter and we do not know what is happening. If there are less people drowning, of course that is a wonderful thing—no human being is going to say, 'We want more people drowning'—but, if that is the case, why the secrecy?

Senator SESELJA: Wouldn't you accept, though, that we are not hearing reports of people drowning in recent months—

Dr Dastyari : We are not hearing anything, Senator.

Senator SESELJA: and that must be a positive. You would expect that if there were a lot of people drowning at sea we would be hearing some reports of that occurring. There would be some evidence that people—

Dr Dastyari : We are not hearing anything about what is happening at sea. We are not hearing reports of people drowning, but we are not hearing reports of how many boats are being turned back, we are not hearing reports about what this government is actually doing during operations at sea. The fact that there is silence around the issue should not be confirmation that there is nothing happening because, clearly—

Senator SESELJA: You think there may still be a lot of boats setting out on the journey and not making it and we are just not hearing anything about that?

Dr Dastyari : I am not saying that.

Senator HANSON-YOUNG: There is a prison ship holding 300 people off the coast of Christmas Island.

Senator SESELJA: Thanks, you've had a lot of time to ask a lot of questions!

Senator HANSON-YOUNG: I have been here too!

Senator SESELJA: That's wonderful! Dr Dastyari, you are saying that, despite all of the evidence, you think there may still be many people setting out on boats for Australia and not making it and we are just not getting any reports of it?

Dr Dastyari : I cannot speculate about how many boats are coming or not coming. I cannot speculate about what is happening at sea, because we are not being told what is happening at sea. You keep asking me what I know and what I can tell you. I am repeatedly telling you I do not know because your government will not tell us what is happening at sea. It is a bit hard for me to make assumptions when we are not provided with the information.

Senator SESELJA: Sure. I will move on to another aspect that I see as a potential positive of the current policy. Would you agree that being able to go to refugee camps in other countries and resettle people from those camps in Australia is positive? I know you said there is nothing in international law, but given we do have a quota, and both sides of politics agree there should be a quota—we can debate how high that quota should be at various times—would you agree that one of the positives of this policy is that we can go to some of the most vulnerable people, people who would probably never ever have the means to get anywhere near Australia, and resettle them here? Isn't that a good outcome of the current policy?

Dr Dastyari : This government drastically cut the quota of how many people are—

Senator SESELJA: But, with respect, that is not answering the question.

Dr Dastyari : If you guys are so concerned—

Senator SESELJA: That is not answering the question. It really isn't.

Dr Dastyari : May I respond? I would like to respond as to why it is answering the question.

CHAIR: I want to allow the witness to answer. She thinks she is answering the question. Then you can ask a follow-up question, Senator Seselja.

Senator SESELJA: Chair, we do have to have the same rules when coalition senators interrogate witnesses versus when Senator Hanson-Young does.

CHAIR: We do.

Senator SESELJA: Senator Hanson-Young interrupts witnesses on a constant basis.

CHAIR: My view is—

Senator SESELJA: I would like the actual question to be answered.

CHAIR: I am giving Dr Dastyari an opportunity to answer the question. If you think she has not answered it, you can do a follow-up question.

Dr Dastyari : Your question to me is: isn't it wonderful that we get to bring in more people because we have stopped the boats? What this government has shown us with its own policy is that the two—

Senator SESELJA: That was not my question.

Dr Dastyari : Okay. Maybe I misunderstood the question.

Senator SESELJA: My question was: isn't it a good outcome that we can go to other countries and take people from refugee camps who would never have the opportunity to come to Australia and who are vulnerable and bring them here? When we have more than the quota arriving, whether it is 20,000 or 13,000, we cannot do that. Wouldn't you see that as a positive outcome when we can settle people who otherwise would not have—

Dr Dastyari : What is it an outcome of? Why wouldn't you be able to have it otherwise? Could you explain that, sorry?

Senator SESELJA: When you have a quota and more people than the quota arrive on boats, it is very difficult—

Dr Dastyari : But the quota is government policy.

Senator SESELJA: I am accepting that there is a quota. Are you saying that there is not a quota?

Dr Dastyari : No, I accept there is a quota, but it is a quota that you guys set yourself.

Senator SESELJA: Both sides of politics set a quota.

Dr Dastyari : Yes, both sides of politics.

Senator SESELJA: Whatever that quota is, we set a quota. Given we have a quota, don't you think it is a positive when we have a situation where people are not arriving unlawfully and we can actually fill that quota from people who would not otherwise have the means to make it to Australia? Surely that has to be a good and compassionate thing to be able to do as a result of that policy.

Dr Dastyari : The linking of offshore and onshore refugees was a policy that was introduced under the Howard government. It is not something that is universal. It is something that we introduced as a government policy. As I have mentioned before, we have a legal obligation to people who come here. It is a wonderful policy and I am not in any way questioning the wonderfulness of the fact that we go out and select refugees and bring them here. That is why a lot of us were devastated when this government cut the quota of refugees that we select from the camps and bring over here. But the two are not linked. The very fact that, at the same time as you are claiming you are stopping the boats, you are also cutting the quota shows that they are not linked and that you are—

Senator SESELJA: No, I disagree. Do you know how many in the last year of the Labor government, when they lost control, were settled from camps overseas? Under your logic, there should have been 21,000, but there were not, because it was only people arriving unlawfully.

Dr Dastyari : Do you think that your government does not have the power to lift the quota in the same way that it reduced the quota?

Senator SESELJA: Of course we do.

Dr Dastyari : Then, if you think it is such a wonderful policy, why aren't you increasing the quota? Why did you cut it?

Senator SESELJA: I would have no problem over time with us increasing the quota, but what is most important is that the quota is being filled not from people arriving unlawfully but from people overseas. That is at the heart of the policy.

Dr Dastyari : Do you accept that Australia has a legal obligation to refugees?

Senator SESELJA: That is what I am getting to with the question. I am getting to the question: do you see it as a positive? In the last year of the Labor government we did not take any from offshore because the quota was filled by people arriving unlawfully. Do you see it as a positive outcome if we can take at least some if not all of those 13,000, from overseas—people who otherwise would have no chance of ever coming to Australia because they simply do not have the capacity?

Dr Dastyari : What you are doing is pitting vulnerable groups against each other—

Senator SESELJA: No, I am asking a very simple question.

Dr Dastyari : and telling us to choose who needs protection the most.

Senator SESELJA: But we are always making choices. That is the point. The heart of our policy is that we have to make choices.

Dr Dastyari : You can make better choices, as the government.

Senator SESELJA: You have accepted that we cannot take everyone.

Dr Dastyari : No, I have not accepted that.

CHAIR: Dr Chia, do you want to say something?

Dr Chia : We do not want to be drawn on the merits of government choices, but we would say that the choices are constrained by our international legal obligations. So the choices are not unlimited and we have already made that choice by signing up to and adhering to the refugee convention. There is no easy way of choosing between the two; we have already made the choice to accept people under the refugee convention and the existing government's choices are constrained by that international legal obligation. We would emphasise the point that the question of resettlement is a distinctive question and it does not come to our international legal obligations and it does not justify us violating those obligations.

Senator SESELJA: No-one wants to answer the question of whether it is a positive outcome.

Dr Dastyari : Senator, my answer to that question is that it is a choice that this government made to cut the refugee quota, and that is not a positive outcome.

Senator SESELJA: Being able to settle more people who would not otherwise come—

Dr Dastyari : You can settle more people and meet our international obligations.

Senator SESELJA: You do not see as any sort of positive outcome the fact that in some years there were none—

Dr Dastyari : You are not resettling more people, Senator.

Senator SESELJA: In some years there were none and now there are more. You don't see that—

CHAIR: I think the witness's answer can stand, as can your questions.

Senator SESELJA: She seems to prefer to ask questions than to answer them.

CHAIR: I do not think that is right.

Senator SINGH: We need to focus on what this inquiry is about from the questions—

CHAIR: Our questions do roam widely.

Senator SESELJA: Are you now saying they are irrelevant?

CHAIR: This is not a dialogue.

Senator SINGH: This is not a dialogue between us; this is an inquiry of witnesses—

CHAIR: I am allowing the questions, but I am also allowing the answers and I am not going to allow verballing. You have a few more minutes, Senator Seselja.

Senator SESELJA: I do not know how many more ways I can ask the question. It seems to be one that the witness does not want to answer.

CHAIR: Senator Singh, would you like to proceed?

Senator SINGH: I would like to ask some questions in relation to the submissions that you have provided to the committee that are relevant to this inquiry, which has to do with incidents that occurred between 16 and 18 February on Manus Island at the detention centre.

Senator SESELJA: The mess you left is very relevant.

Senator SINGH: Senator Seselja, it is not necessary—

Senator SESELJA: You interrupted me.

Senator SINGH: This is not the Senate chamber.

Senator SESELJA: You interrupted me, and I am just making the point that it is very relevant.

Senator SINGH: Save it for the chamber. Dr Dastyari and perhaps you, Dr Chia, I wanted to go back to some comments that were made in the opening statements about indefinite detention. The issue is: how does one know it is indefinite? We know from evidence put before us that a stop had been put to the processing of refugee status determination applications and that would give the appearance of indefinite detention. How do you determine what is indefinite detention? What legal breaches has the Australian government, which has a duty of care for these transferees, opened itself to?

Dr Dastyari : The question of indefinite detention goes to the arbitrary nature of the detention, but you do not necessarily need to satisfy the fact that it is indefinite detention in order for that detention to be unlawful. Even if we cannot establish indefinite detention, it is still clear that that detention is unlawful. One of the significant factors about why detention is unlawful is that assessment is not made of every individual detainee to see whether detention is a suitable option for them. Australia's policy of mandatory immigration detention in Australia itself has been found to violate international legal obligations for the very same reasons: no assessment is made of every individual person. It is really the mandatory nature of the detention in this case.

Dr Chia : The obligation is not to put people in arbitrary detention, not indefinite detention. Certainly, what we are seeing on Manus Island is a very protracted length of detention. It is obviously difficult to comment specifically on how indefinite any detention is. That is the nature of indefinite detention: we do not know when it will end. But we would say that both onshore and offshore detention violates our international legal obligations and has already been found numerous times to violate our international legal obligations.

Senator SINGH: Dr Chia, in your submission you talk about indefinite detention at 7(a) and you talk about this no advantage principle.

Dr Higgins : Could you clarify which section you are referring to?

Senator SINGH: I am sorry. I am looking at Mr Pynt's submission. I am way ahead of myself.

Dr Chia : I had a feeling it was not our submission.

Senator SINGH: I will hold that for Mr Pynt's views in about an hour's time. I am sorry about that. Indefinite detention is used, though, isn't it? It is used a lot. I raised earlier with Mr Barns the fact that inmates incarcerated in correctional facilities are there for a period of detention. They are aware of the length of their punishment. It is a sentence that is obviously determined by courts. For these transferees, there is no legal process for them to get that kind of length of stay, is there?

Dr Dastyari : No, that is correct.

Senator SINGH: Nothing at all, and that is breaching our international law obligations.

Dr Dastyari : It is contributing to the arbitrary nature of the detention, which then violates that obligation.

Dr Chia : It potentially contributes to any cruel, inhuman or degrading treatment as well.

Senator SINGH: I now want to ask about this issue of the non-refoulement obligation. You were talking with Senator Hanson-Young about that earlier. Australia does have clear obligations to not return people to a country where they may be harmed, in fear of their life and so forth. But it seems to me from all the evidence we have heard that the government is trying to make the conditions and the situation for transferees on Manus Island detention centre so bad that that they are in a position of having to choose whether to stay there indefinitely, without any clear time frame, or return to their country of origin, where they could be in fear of their life. Some have done that, I understand.

Isn't making the conditions so bad that they are then 'voluntarily' returning breaching our non-refoulement obligations by stealth? The Australian government is basically saying: 'Well, you are voluntarily returning. We're not forcing you to return. You're doing it voluntarily, so we're fine—we're not in breach of our non-refoulement obligations.' But the fact is they are doing it by stealth, by making the conditions so bad, by punishing these people on Manus Island detention centre so that they have to make this choice between the bad and the worse option—whether to stay or return. How does refugee law deal with this, and how do you and your expertise deal with this? That, to me, seems to be what is going on.

Dr Dastyari : We would say it is not voluntary. In that case, you are still engaging in refoulement because it is not really voluntary when there is not a real choice there.

Dr Chia : The obligation remains. The question is really one of whether you are being returned to that country. If you are returned to that country and you are persecuted but you have signed something voluntarily—it is not a formality of some kind. It is not some kind of defence to say that they signed a form. The obligation is a substantive obligation to not return that person. We would certainly say that the obligation is not affected by that.

I do not want to comment on whether there was a deliberate policy to make those conditions particularly bad, but the question of how we comply with those non-refoulement obligations is clearly a live one in that situation. The coercion of voluntary returns would certainly be something we would be concerned about and it would certainly undermine the international refugee protection regime. The difficulty, of course, is that these are all quite new developments in international law and therefore there is not a great deal of international law governing the question of coerced voluntary returns.

Senator SINGH: Are you aware of anywhere else in the world where there is a comparable situation occurring of detainees in this position?

Dr Dastyari : I have done a study of refugees in the US and there was a period when Haitian refugees were being returned to Haiti from Guantanamo Bay—they had an offshore processing centre in Guantanamo Bay, and they still do—and people were being returned from there. The argument was made that it was not necessarily voluntary. Unfortunately, the refugees had already been sent back by the time the court case happened. So it has happened before and I am sure there are a lot of cases of it happening.

Dr Chia : Obviously by its nature it is not one that comes to light frequently. Clearly these kinds of things happen in situations where there are usually no lawyers and it is difficult to really assess whether it is happening because of the secrecy that tends to accompany any kind of voluntariness.

Dr Dastyari : Of course it happened in Australia with Nauru in the past as well. There have been studies where people have been traced back and been found to have been persecuted or even killed upon return from Australia's jurisdiction. So even in our own country there is a history of us voluntarily sending people back as well.

Dr Higgins : Can I just add something. One of the reasons we are talking about this issue of refoulment is because it has been observed repeatedly by UNHCR, by Amnesty, by many of the submissions to this inquiry that there is very little capacity for a fair, expeditious, rigorous system of status determination in PNG. That is what we have underscored in our submission and would like to highlight in our evidence today. One of the components of that kind of system is to be conducted along principles of procedural fairness, which means that detainees have a sense of the time frame to be expected in the resolution of their claims, along with having a reasonable chance to prepare their case and other elements of procedural fairness in the sense that they would have an unbiased decision maker and a fair and transparent process, which, again, is why we are talking about this issue of refoulement.

Senator SINGH: On the issue of Guantanamo Bay, that is still being used as an offshore processing centre?

Dr Dastyari : Yes, there is an immigration detention centre on a section of Guantanamo Bay that is very different from the one being used for the enemy combatants—it is mostly for Haitians and Cubans, actually mostly Cubans at the moment. It is still being used, but the numbers there are very, very small.

Senator SINGH: But it was originally set up to be an immigration detention centre?

Dr Dastyari : Yes, it was.

Senator SINGH: Are there cases of detainees there that were in periods of indefinite detention?

Dr Dastyari : Yes. They were there for prolonged periods of detention—they were there for a couple of years. We have had indefinite detention in Australia, of course. It has never been as long as we have had in Australia.

Senator SINGH: Sorry, there has never been a detainee in Guantanamo Bay detained for as long as detainees in detention centres in Australia?

Dr Dastyari : No. I believe six years is the longest that a detainee has been detained in Australia. No detainee was detained for that period of time in Guantanamo Bay. The longest anyone was detained in Guantanamo Bay was a Haitian family and they were there for four years. That was very unusual to have such a long period of detention.

Senator SINGH: What about on Manus and Nauru, though? Obviously they have not been—

Dr Dastyari : How long have people been detained on Manus and Nauru?

Senator SINGH: Yes.

Dr Dastyari : I would not know.

Senator SINGH: I am just thinking of the offshore detention—

Dr Dastyari : And how long people were there? I do not know.

Dr Chia : We would like to express some concern about the particular groups on Manus Island which we imagine will be very difficult to remove if they are not recognised as refugees. There are a large number of stateless people, for example. We can certainly foresee a risk of very prolonged detention if those people are not able to be removed and cannot be resettled in PNG, but that is clearly in the future.

Senator SINGH: Where do you see that this leaves Australia on the international stage? Obviously we are signatories to a number of treaties. We are on the UN Security Council at the moment. We engage in that multilateral space and engage with our neighbours and like-minded states where we have shared interests. Where does this policy leave Australia? I remember around 2005, during the Howard period, there was a large amount of embarrassment for Australia in relation to immigration policy then. Where are we now? Are you aware of how we are perceived internationally?

Dr Chia : Certainly there has been quite a lot of international media coverage of Australia's policies. We have personally been contacted by people in Europe, China and the US. There has been international coverage of these policies and questions asked about why this is happening in Australia given our relatively low numbers of asylum seekers and the extremeness of our particular policies. We as people invested in international human rights law would say any time a state violates its international legal obligations it undermines the protections of human rights for everyone. Certainly it is a concerning development for Australia to violate legal obligations and feel that is something it can do. It makes it very difficult then for Australia to advance its own human rights agenda in other countries, particularly in the Asia-Pacific.

Mr Murphy : Just picking up on a few of the points that have been raised there, the UNHCR refers to a 'return oriented environment'. We think that, whilst there may be an issue about constructive non-refoulement, there is a concern that the conditions on the ground could amount to inhumane treatment, which would be a more direct breach of the relevant international obligations that we have. That is one of the major concerns as well.

The other aspect which perhaps flows back into what was being asked about before is that not every refugee is in a camp overseas. This is a myth. We must understand that many refugees live in urban environments and are not in camps. We should not focus on saying, 'We are pulling people out of camps.' In a sense that is true but there are thousands and thousands more in possibly more vulnerable situations in urban settings. So it is not a simple equation of the camps being better than people coming on boats. It is not that simple.

The other aspect is that the people offshore who we do bring in are subject to more rigorous health assessments. I have had cases of people with a child with Down syndrome who have been refused on health grounds because of the child. That would be an example of where a truly vulnerable family has been refused resettlement in Australia simply on health grounds. I think there is a lot of misunderstanding about the reality of the arbitrariness of the offshore assessment process compared to the more rigorous process that is undertaken in the onshore system.

Senator SINGH: Finally, there has been a lot of discussion this week about who is in charge of the Manus Island detention centre and therefore in charge of the processing of transferees. I notice, Mr Murphy, in your submission you contend that the obligations of Australia towards asylum seekers, who come within Australia's territorial waters of which these transferees did, cannot be subcontracted to other countries. Clearly, what we have heard from the department of immigration is that they have subcontracted this to the PNG government but we have heard from service providers that the department of immigration have been very much in control of the processing or the nonprocessing of refugee status determination of these transferees. One thing is taking place in policy but another thing in action. Do you think the reason that the Australian government through the department of immigration are playing such an active role on the ground at the Manus Island detention centre through trying to ensure that service providers do not pursue processing with migration service providers and that information is controlled through the department of immigration and so on is because, as you say, the Australian government realises that it has a responsibility, a duty of care, to these particular transferees because they did come within Australian territorial waters? It is a long premised question but either Mr Murphy or Dr Dastyari.

Mr Murphy : Our comment about the subcontracting is the reality of what is happening. If you took all the money away, the Papua New Guinea government is not able or capable of doing this. It just does not have the resources or the capacity and therefore Australia has effective control in that sense as it has control of the purse. Having that control provides with it certain responsibilities and obligations that flow from that, which is what we have been saying. I hope that answers your question; I wasn't quite sure.

Senator SINGH: That is another take on it about the funding that has obviously been provided and therefore they want to have control, because they are putting some money forward. I am actually asking whether or not they realise they have a legal obligation, because the transferees were asylum seekers that came into Australian territorial waters in the first place.

Dr Dastyari : They do not even have to come here. Even if we get them in international waters, once we exercise jurisdiction, then we have a non-refoulement obligation to them. Territory would lead to other obligations but the non-refoulement obligation is such that anywhere we exercise jurisdiction—in another country, in international waters—and power over people, we have to protect them from being returned to harm.

CHAIR: You were being asked extensive questions about stopping the boats policy and whether that was a good or a bad thing, Dr Dastyari, and there were some questions about how relevant that was to the terms of reference of the inquiry—certainly, in Senate committees we ask wide-ranging questions—and I had no difficulty with those questions. I think the assumption behind Senator Seselja's question on relevancy was that, while there has been a lot of evidence throughout the course of this inquiry about the breach of human rights that some witnesses have put to us, the inhumane conditions at Manus Island and the concerning factors that accumulated to lead to the incident on 16 to 18 February, these things have occurred but the alternative would be for the boats to keep coming.

The question I am asking you is: to what extent do any of you have a view that these inhumane and arguably unlawful conditions that transferees are being subject to are part of a policy designed to lead to stopping the boats? You are being asked to weigh up the virtues of both systems. To what extent are you of the view that, in a sense, this is a situation that has been designed to make it less desirable for people to get into a boat and come to Australia? The proof can be, 'Well, this is bad but it has stopped the boats; that's justification.' Do you understand what I am asking?

Ms Emery : I can provide comments on the things that clients say to us in Australia. I am referring to people who have come to Australia by boat but have been transferred to the mainland. There is a sense, in the things that they say to us, that they feel they are not welcome in Australia, that they should not have come here, and that their families will not be welcome here. I have had clients ask me things like, 'Why am I not treated like a human being? Why does the government not think that I am a human?'

So in terms of a policy of deterrence I think that is absolutely what is being pursued. In terms of the wellbeing of asylum seekers in Australia it is having a very negative impact on their mental health and their sense of hopelessness and desperation. I am only talking about people in Australia, so I cannot imagine what it is like on the islands.

CHAIR: Thank you. Any other comments?

Dr Chia : I think the governments—both the previous government and this government—have been quite clear that deterrence is the aim of the offshore processing policy. The fact that there is potentially inhuman, cruel treatment would not necessarily detract from their overarching policy, which is one of deterring people.

CHAIR: If deterrence is the desirable outcome, would having conditions like this, that no-one would willingly sign up for, actually enhance the outcome? Would that make it more likely that that deterrence outcome is achieved?

Dr Chia : I think the previous witness testified that people are being deterred by that. You could suggest that that is certainly a plausible outcome—that people would be deterred by these reports of conditions.

Dr Dastyari : But the fact that people are being deterred does not make it any less illegal or any less cruel or inhumane.

Dr Higgins : And it does not, obviously, reduce their need for protection, even if they are not coming to our shores.

CHAIR: In a sense, the previous questions you were being asked were drawing a link between the conditions and the lack of processing that we have been hearing about, and an outcome of stopping the boats. That was the link that was being drawn.

Dr Dastyari : We are not the only country being faced with these choices. Australia tends to think of itself as being unique—that we are the only country that asylum seekers are coming to, when, in fact, relatively very few asylum seekers are coming to us compared to many other places in the world. So for us to be making the choices that we are making—choices that are this extreme and this unlawful—is something that we need to tackle. We are not alone in this; this is not exceptional, but what we are doing is exceptional.

CHAIR: If there are no more comments and no more questions we will finish there. Thank you very much for giving evidence today.

Proceedings suspended from 12:03 to 12 : 22