In early 2008, the Commission commended the Australian Government for ending the so-called ‘Pacific solution’ by closing the offshore immigration detention centres on Nauru and Manus Island. Since then, the government has initiated further positive reforms, in particular the July 2008 announcement of ‘New Directions’ for Australia’s immigration detention system.

However, despite these positive changes, the Commission has ongoing concerns – one of the most critical being the mandatory detention and offshore processing of asylum seekers on Christmas Island. While there are clearly significant efforts being put into the detention and offshore processing system on Christmas Island, those efforts cannot overcome the fundamental problems with the system itself. The Commission’s major concerns can be summarised as follows:

Under the Refugee Convention, asylum seekers should not be penalised because of their method of arrival. Regardless of how or where they arrive in Australia, all people are entitled to protection of their fundamental human rights, including the right to seek asylum. The excision and offshore processing regime establishes a two-tiered system for determining refugee status. Asylum seekers who arrive in excised offshore places such as Christmas Island have fewer legal safeguards than those who arrive on the mainland. In the Commission’s view this undermines the core principles of the Refugee Convention, jeopardises asylum seekers’ human rights and increases the risk that a refugee may be sent back to a place where their life or freedom would be threatened.

Further, the policy of detaining all unauthorised boat arrivals in a place as small and remote as Christmas Island restricts asylum seekers’ access to essential services and support networks, and limits the ability of the Australian Government to ensure that those people are treated in accordance with key aspects of its own New Directions policy.

The Commission therefore reiterates its past recommendations that the provisions of the Migration Act relating to excised offshore places should be repealed; people should not be held in immigration detention on Christmas Island; and all unauthorised arrivals who make claims for asylum should have those claims assessed through the refugee status determination system that applies under the Migration Act.