Australia’s Legal Responsibility for the Refugees and Asylum Seekers it has left Languishing in Offshore Detention

by | Mar 15, 2018

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About Emilie McDonnell

Emilie McDonnell is a DPhil in Law candidate at Hertford College and the 2016 Tasmanian Rhodes Scholar. Her research focuses on protecting the right to leave and related human rights of asylum seekers, refugees and other migrants during externalised migration control, specifically when it is conducted extraterritorially and has been outsourced to states of origin and transit, private actors, and international organisations. She holds a Hertford College Senior Scholarship in support of her studies. Prior to the DPhil, she completed the BCL with Distinction and MPhil in Law at Oxford University. She holds a Bachelor of Arts (Criminology) and a Bachelor of Laws with First Class Honours in Law from the University of Tasmania. Emilie has also completed her Graduate Diploma of Legal Practice and has been admitted to the Tasmanian Supreme Court as an Australian lawyer. In 2013, she co-founded and was a Director until 2016 of Tasmania’s first community legal centre for refugees, asylum seekers and humanitarian entrants, the Tasmanian Refugee Legal Service. Emilie is an Adjunct Researcher at the University of Tasmania School of Law, Research Affiliate at the Refugee Law Initiative, and Member of the Asia-Pacific research group and Emerging Scholars Network at the Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Sydney. She is the Graduate Teaching Assistant for Human Rights Law at the Oxford Law Faculty and has lectured and tutored for Human Rights Law (FHS). She has held various other teaching roles at the Oxford Law Faculty, on summer schools, the Stanford University Program in Oxford and the University of Tasmania. Emilie has been a regular contributor to the Oxford Human Rights Hub blog and researcher for Oxford Pro Bono Publico.


Emilie McDonnell, “Australia’s Legal Responsibility for the Refugees and Asylum Seekers it has left Languishing in Offshore Detention” (OxHRH Blog, 15 March 2018), <>[date of access]

With Australia’s recent election to the UN Human Rights Council, it is important that the international community supports and advocates for those Australia has left languishing in offshore detention.

Approximately 336 asylum seekers remain detained on Nauru, including 36 children, and 801 in transition centres on Manus Island, Papua New Guinea (PNG) under Australia’s harsh and dehumanising offshore detention regime. These asylum seekers, many of whom have been found to be genuine refugees, have been detained for almost 5 years. This policy of indefinite and arbitrary detention forms part of Australia’s ‘No Way’ campaign: ‘If you come to Australia illegally by boat, there is no way you will ever make Australia home’.

Under Australia’s ‘Pacific Solution’, asylum seekers have been transferred by Australian authorities to either Manus Island or Nauru under bilateral arrangements. Cooperation with PNG and Nauru was secured through substantial financial incentives delivered through Australia’s aid program. Now, Australia pushes back asylum seekers to their point of departure under the military-led Operation Sovereign Borders. The ultimate aim is to prevent and discourage the arrival of asylum seekers by boat, termed ‘irregular maritime arrivals’, into the country.

On 31 October 2017, following a ruling by the Supreme Court of Papua New Guinea (PNG) that the centre was illegal and unconstitutional, the Manus Island detention centre was closed, with the remaining refugees and asylum seekers moved to transition centres on the island. All basic services were removed, including water, electricity and medical and support staff. Both Australia and PNG deny responsibility for the people detained on Manus Island. However, both Australia and PNG share responsibility for resolving the humanitarian crisis.

The UN High Commissioner for Human Rights, Zeid Ra’ad al-Hussein, has told the PNG Prime Minister that it has a duty to look after the refugees sent there by Australia, given they are on PNG territory. Nevertheless, the situation on Manus Island is the direct consequence of the Australian government’s policy to indefinitely detain asylum seekers in extremely poor conditions. Australia finances all building and running costs of the detention centres, is responsible for undertaking refugee status determinations and maintains a staff presence at each of the centres to oversee operations. This amounts to the exercise of effective control over the detainees, which the UN Human Rights Committee considers to give rise to protective obligations to those detained. It is beyond dispute that Australia bears primary responsibility for those in offshore detention under its policies and has an ongoing legal duty to find a durable solution.

As repeatedly stated by the Australian government, those on Manus and Nauru will never be settled in Australia. Those on Manus that have been found to be genuine refugees can settle in the PNG community, while those who have had their refugee claims rejected are being told to return home, to places such as Iran, Somalia and Sudan. The men can either remain in PNG in detention, move to Nauru hoping for resettlement in the US under Australia’s deal with the US, or voluntarily return home where they face a risk of arbitrary detention, torture or death, as acknowledged by PNG.

Encouraging asylum seekers to return to their home country puts both PNG and Australia at risk of violating the principle of non-refoulement, which requires no one to be sent back to a place where his or her life or freedom is threatened, where they would be at risk of persecution, torture or other ill-treatment, or chain refoulement (Article 7 ICCPR, Article 3 UNCAT; Article 33 1951 Refugee Convention).

The simplest and most humane solution would be for Australia to immediately resettle all those detained in Australia. However, given strong and repeated resistance to this, Australia should continue resettling to the US, though this has been slow, and accept New Zealand’s offer to take a number of the asylum seekers. This is not about open borders – it is about compassion, upholding international law and Australia finally taking responsibility for the welfare of those it has indefinitely detained. Australia should let these asylum seekers finally have the chance to rebuild their lives in safety.




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