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Conditions and treatment of asylum seekers and refugees at the regional processing centres in the Republic of Nauru and Papua New Guinea

1. The Law Council welcomes the opportunity to provide the following comments to the Senate Legal and Constitutional Affairs References Committee (the Committee) on its Inquiry into the conditions and treatment of asylum seekers and refugees at the regional processing centres in the Republic of Nauru and Papua New Guinea. 

2. The Law Council’s submission will focus on the following Terms of Reference: 

b) transparency and accountability mechanisms that apply to the regional processing centres in the Republic of Nauru and Papua New Guinea; 

d) the extent to which the Australian-funded regional processing centres in the Republic of Nauru and Papua New Guinea are operating in compliance with Australian and international legal obligations; 

3. The Law Council notes that the Committee has requested that if submissions were made to the Select Committee on Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru (Select Committee on Nauru), submitters do not re-submit that material to the current inquiry. 

4. The Law Council therefore reiterates its position in that submission1 that the Commonwealth retains responsibility, either wholly or in part, for the health and safety of asylum seekers transferred to other countries for offshore processing and assessment under the Convention relating to the Status of Refugees.2 Australia’s responsibility derives from: (a) the Commonwealth’s potential common law duty of care; and 

(b) international law under: (i) the joint and several responsibility for internationally wrongful acts; and 

(ii) Australia’s effective control of its regional processing centres in relation to the extraterritorial application of human rights treaties to which it is party. 

5. As identified in its previous submission, the Law Council considered that to address the related issue of preventing or lessening the future risk of physical and/ or sexual abuse: (a) effective independent monitoring and review of detention centres, including those offshore, should be established; and 

(b) asylum seekers and detainees applying for protection and those subject to physical and/or sexual abuse are provided with legal advice and representation. 

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