Transcript
GILLIAN TRIGGS: I believe that the Australian government has a responsibility under the refugee convention and under customary international law, not to expose these men to the risk of refoulement back to the country of persecution. Now in some cases their claim for refugee status may have been denied entirely consistently with the law. It can at least be said that the Papua New Guinea government has embarked on a process of assessing refugee status and a very significant percentage of them have indeed been accorded refugee status. But there may be some who have been denied that refugee status rightly and some have been denied it wrongly. Now those who are entitled to that status as a refugee, may very well be constructively refouled or returned to the country of persecution and I think as a matter of international law, and now maybe also it seems Australian law, that to have inflicted this risk is a continuing responsibility of the Australian government. The general position at international law is that if a country like Australia has affective control over the lives of these people then it is responsible for what happens to them.
BEN ROBINSON DRAWBRIDGE: Indeed, but looking at the closure of the Manus Island and the resulting overcrowding that's occurring there, is this perhaps an attempt by the government to force these men to accept repatriation?
GT: That is my concern. As you may know the Australian Human Rights Commission has accepted complaints from Manus Island and Nauru, where of course there are still families and children. But I have not been able to visit Manus or Nauru myself. And the reason for that is the Australian government will not permit me to do that as president of the commission. And I would not get a visa from the Papua New Guinea or Nauruan governments to do so. So it means that we've had to rely on evidence as to the conditions on Manus. Now I think that all the evidence supports the view that the conditions in which they're being held are overcrowded, ultimately dangerous and well below a proper standards for detention. And of course the indefinite nature of their detention has been extremely worrying. So I think the idea of constructive refoulement is one that could well apply on these facts. And again, it would be a refoulement for which Australia holds a responsibility, along with of course the Papua New Guinea government itself.
BRD: Given that you've been prevented from even visiting the centre's, has it been an attempt by the Australian government to perhaps tie your hands and deny you oversight?
GT: Very clearly the Australian government has taken a very blinkered view of their responsibility. They've said over and over again that the treatment of the men, refugees and asylum seekers on Manus is a matter for the sovereign country of Papua New Guinea, which is a technical argument which completely fails to acknowledge the international law principal of the world court, I might add, the International Court of Justice, that to have affective control or a measure of affective control will sheet responsibility home to the Australian government as well as the PNG government. I do fear that the length of time for which this situation has been allowed to continue rather demonstrates the point that Australia and Papua New Guinea have tried deliberately to encourage the men to go back to the countries from which they came and where the allege persecution.
BRD: I feel I have to ask you though, do you think your office has been debased by the government not allowing you to visit the detention centres?
GT: I wouldn't say that it's been debased, but I think it's certainly restricted our capacity to operate within those territories. But of course you can image that the technical argument is, and the accurate argument is, that both Nauru and Papua New Guinea are sovereign nations and if those countries refuse to give me a visa then there would be nothing whatever the Australian government could do. However, given the fact that I've already been advised by the Australian government that they would not permit me to go as president, then it's really an agreement by both sovereign nations that they do not want the Australian Human Rights Commission involved in this. Now we've nonetheless asserted jurisdiction in relation to the formal complaints that we've received and we've negotiated on behalf of the men and the families that have been held on Nauru with the government. In some cases working on an office to office basis with some success, in others not. But yes, as president of the commission I'm deeply disturbed that the Australian government should have confined the activities of the commission in the way that they have done.
