The Hon Malcolm Turnbull MP
Prime Minister of Australia
PO Box 6022
House of Representatives
Canberra ACT 2600
Tuesday 25 October 2016
Dear Prime Minister Turnbull
LGBTI Refugees and People Seeking Asylum
I am writing to you about a subject that is incredibly important, but one that does not often attract significant attention – from the media, from the public and, above all, from the Australian Government.
That subject is the mistreatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) refugees, and people seeking asylum, including the decision by successive Australian Governments to detain, process and even seek to resettle these people in countries that criminalise homosexuality.
I believe that this approach, exposing people who have sought Australia’s protection to persecution and prosecution in other countries, simply because of who they are, is a fundamental breach of human rights.
I have expressed concerns about this mistreatment from the very beginning of Australia’s current offshore processing regime. Within one month of the passage of legislation authorising the removal of people seeking asylum who arrived in Australia by boat to Nauru and Manus Is, Papua New Guinea (PNG) in August 2012, I wrote to both then Immigration Minister Chris Bowen, and then Shadow Immigration Minister – and now Treasurer – Scott Morrison.
In that letter I asked: “Do you agree that asylum seekers who are fleeing persecution on the grounds of sexual orientation or gender identity (or indeed who are fleeing on other grounds but are LGBTI), should not be sent to any country which criminalises or discriminates against LGBTI people?
“Are you aware that homosexuality is current illegal in all three countries[i] to which the Australian Government currently intends to send asylum seekers? [And] Will the laws of these jurisdictions apply to asylum seekers being detained by the Australian government?”
It took nine months to obtain a reply, not from Minister Bowen, nor from his successor (Brendan O’Connor), but instead from the Department of Immigration. But the reply I did receive was incredibly disappointing.
Not only did it fail to answer whether LGBTI people transferred to Nauru and PNG could be subject to criminal prosecution, it then indicated that, in order to avoid the risk of mistreatment on the basis of sexual orientation, gender identity or intersex status in those countries, people seeking asylum needed to raise those concerns in the extremely short ‘window period’ prior to transfer[ii].
It seems the Australian Government was completely uninterested in LGBTI people transferred to Nauru and PNG if they only disclosed their sexual orientation, gender identity or intersex status after being transferred.
Someone else who was uninterested in this subject was Shadow Immigration Minister Scott Morrison, who never even bothered to reply to my correspondence.
Undeterred, following the change of Government in September 2013 and with Mr Morrison assuming the role of Minister for Immigration and Border Protection, I wrote to him again in February 2014.
In that letter I repeated my concerns about the mistreatment of LGBTI refugees and people seeking asylum transferred to Manus Island and included reference to the Amnesty International Report This is Breaking People, which had found that:
- “Section 210 of the PNG Penal Code, which makes male-male penetrative sexual intercourse a criminal offence punishable by up to 14 years’ imprisonment, applies to asylum seekers detained on Manus Island
- Section 212 of the PNG Penal Code, which makes other sexual activity between men, termed ‘gross indecency’, a criminal offence carrying a maximum penalty of 3 years’ imprisonment, also applies to asylum seekers detained there [and]
- Asylum seekers held on Manus Island have been informed that if they are found to have engaged in male-male sexual intercourse, they will be reported to PNG Police…”
I then included a personal challenge to Mr Morrison: “If you, as Minister for Immigration and Border Protection and therefore Minister responsible for the welfare of asylum seekers and refugees, cannot guarantee that sections 210 and 212 of the PNG Penal Code do not apply to detainees on Manus Island, then you cannot send LGBTI people there in good conscience.”
This time around, it only took the Department of Immigration and Border Security five and a half months to respond to my concerns[iii]. Their underwhelming response included the following statement:
“The enforcement of PNG domestic law is a matter for the Government of PNG. The government is aware of laws relating to homosexual activity in PNG and understands that there have been no recent reports of prosecution under those laws.
“If homosexual activity should occur in the [Offshore Processing Centre], there is no mandatory obligation under PNG domestic law for Australian officers or contracted service providers to report such activity to the PNG Government or police.”
In short, the then Australian Government – of which you were a senior Minister – rejected the claim that there was mandatory reporting of ‘homosexual activity’ to PNG police, but explicitly did not deny that the laws of that country, outlawing sex between men, applied to the refugees and people seeking asylum that we, as a country, had placed there.
In March of this year, I raised the issue of the mistreatment of LGBTI refugees and people seeking asylum again, this time through a submission to the Senate Legal and Constitutional Affairs Committee inquiry into conditions and treatment of asylum seekers and refugees in Nauru and PNG.
Unfortunately, that Senate inquiry lapsed due to your calling of a double dissolution election but, before Parliament was dissolved, the Committee issued an interim report, including the following paragraph:
“1.57 The committee received some evidence focused on the situation of lesbian, gay, bisexual, transgender and intersex (LGBTI) people held in the [Regional Processing Centres]. Mr Alastair Lawrie noted that male homosexual conduct remained a criminal offence in both Nauru[iv] and PNG, and expressed the view that ‘the Australian Government inflicts serious harm on LGBTI people seeking asylum by detaining, processing and resettling them in countries that continue to criminalise homosexuality.’ Mr Lawrie cited reports of abuse, assault and marginalisation of homosexual asylum seekers in the [Regional Processing Centres], and the lack of appropriate health and community services in the two countries…”
Thankfully, post-election the Senate has decided to initiate a new inquiry looking at the issue of abuse, self-harm and neglect of asylum seekers in Nauru and PNG, and its investigation is ongoing.
On a more negative note, however, it is unclear how the Government will respond to any findings from such an inquiry, given Liberal and National Party Senators recommended, in the interim report, that “examination of Australia’s border protection activities be referred to the more reliable and cost-effective forum of Senate Estimates.”
Coincidentally, it is Senate Estimates that leads me to write to you, in your role as Prime Minister, today.
Last Monday, 17 October 2016, during the Legal and Constitutional Affairs Committee’s Senate Estimates Hearing of the Department of Immigration and Border Protection, there was an extraordinary exchange between WA Labor Senator Louise Pratt, and Departmental Secretary Mr Michael Pezzullo.
And by extraordinary, I mean extraordinarily dismissive of the legitimate concerns of Senator Pratt, and others including myself, about the mistreatment of gay, bisexual and same-sex attracted refugees and people seeking asylum placed on Manus Island by successive Australians Governments.
I have included the full text of this exchange as an Attachment with this letter[v]. I strongly encourage you to read it. If you do, you will see how little priority has been given to this issue, including by the Department of Immigration and Border Protection under the Prime Ministerships of your predecessors and now of course under you.
First, it was surprising to witness, via the following exchange, Mr Pezzullo appear not to know that male homosexuality is criminalised under PNG law:
“Senator PRATT: And in the meantime, no homosexual conduct is allowed.
Mr Pezzullo: I do not know whether it is allowed or not. Senator.
PRATT: Well, it is illegal.
Mr Pezzullo: I am not an expert on those laws in the domestic jurisdiction of PNG.”
Given, as we have seen above, I have raised this issue with successive Ministers for Immigration, and received multiple responses from the Department of which he is now the head, not to mention the ongoing advocacy on this subject by organisations like the Human Rights Law Centre, Amnesty International, Kaleidoscope Human Rights Foundation and NSW Gay & Lesbian Rights Lobby, it is alarming to hear the Secretary’s lack of knowledge about the risk of prosecution for LGBTI[vi] people detained and processed on Manus Island.
Second, and less surprisingly but even more worryingly, was the distinct lack of concern on display by Mr Pezzullo, with the implication that the mistreatment of LGBTI refugees and people seeking asylum was not something that had crossed his desk, or that he had actively turned his mind to, in his two years as Secretary:
“Senator PRATT: In that context, how is the issue of people’s sexual identity and the illegality of that in PNG being addressed within that?
Mr Pezzullo: You will need to ask the PNG government. I do not know, is the answer.” [And later]
“Senator PRATT: Or homosexual law reform in PNG perhaps?
Mr Pezzullo: Well, that is not something that my department has any role in.
CHAIR: Nor has the Australian government.
Mr Pezzullo: We have enough on our plate. I do not mean to belittle the point, but the pursuit of law reform around same-sex attraction in foreign jurisdictions is not on my to-do list.”
Third, and perhaps least surprising – but most worrying – of all, was the position stated by Mr Pezzullo, at multiple points, that the Australian Government has no responsibility towards LGBTI refugees and people seeking asylum that it has sent to Manus Island after they have been transferred. For example:
“Senator PRATT: Australia has a responsibility in this regard, because we are not supposed to engage in these activities in offshore processing as a way of in a sense refoulement of the refugee process, because people might be subject to further persecution.
Mr Pezzullo: The historical basis of the transfers—noting that there has not been a transfer into regional processing for some 2 1⁄2 years; the Australian government acquitted its nonrefoulement obligations over 2 1⁄2 years ago, at a minimum—“ [And later]
“Senator PRATT: So it has no further responsibility to the human rights of those men?
Mr Pezzullo: Not pursuant to—Australia observes its human rights, diplomacy and policy objectives in all manner of ways that the foreign minister and her officers discharge. But in terms of ensuring that through the transfer mechanisms that were agreed in 2012 and 2013 we did not refoule persons who had come into our jurisdiction we acquitted those obligations at that time.”
In effect, Mr Pezzullo was arguing, on behalf of the Australian Government – your Government – that, once Australia had transferred refugees and people seeking asylum to Manus Island, and unless those LGBTI refugees had explicitly raised concerns in the hours or at most days between their arrival by boat and their transfer, Australia had no ongoing responsibility towards them.
Now, Mr Pezzullo may or may not be correct from a legal viewpoint. I am sure there are human rights advocates, and potentially courts and tribunals both in Australia and in Papua New Guinea, who might take a different view.
But he is definitely wrong in every other respect. Australia, and the Australian Government, absolutely has a responsibility towards LGBTI refugees that, through its actions, it has caused to be sent to Manus Island for detention, processing and even resettlement.
It has a moral obligation. An ethical obligation. A social obligation. A human obligation.
These are people who sought the protection of the Australian Government, which then chose to send them to countries where, far from being safe from persecution, they were – and still are – at risk of criminal prosecution simply because of who they are.
I cannot see how anyone could possibly assert that the successive Australian Governments, and Prime Ministers, who have created this situation and exposed these people to potential harm, do not have a responsibility towards them.
And obviously that means that your Government, and now you as Prime Minister, also have a moral, ethical, social and above all human responsibility to do something about it.
The question I have for you is: will you?
Will you take action to remove LGBTI refugees and people seeking asylum from Manus Island, where they were placed by the Australian Government and where they are still subject to criminalisation?
Prime Minister, you are a Member of Parliament representing one of the ‘gayest’ electorates in Australia, with literally thousands, if not tens of thousands, of LGBTI people living in the seat of Wentworth.
You claim to support the equality of LGBTI people, both legally and socially. Earlier this year, you even became the first sitting Prime Minister to attend Australia’s largest ‘Pride’ event, the Sydney Gay & Lesbian Mardi Gras Parade.
That night, you joined in celebrating the hard-fought and hard-won freedom, and increasing equality[vii] and acceptance, of Australia’s LGBTI community, surrounded by tens of thousands of lesbian, gay, bisexual, transgender and intersex people, as well as their families and friends.
That very same night, and for hundreds of nights beforehand and every night since, just 3,500km to the North, a much smaller number of gay, bisexual and same-sex attracted refugees had far less reason to celebrate: certainly not freedom, and instead of equality and acceptance, a fear of prosecution and persecution by a Government that considers them criminals.
And the only difference between these two groups – between the ‘loud and proud’ crowd on Oxford St, and the isolated and vulnerable individuals on Manus – is where they were born.
The actions of successive Australian Governments have put the latter group where they are, directly in harm’s way. As the Prime Minister since September 2015, and leader of the current Liberal-National Government, you now keep them there.
You might have celebrated ‘pride’ with Australia’s LGBTI community almost 8 months ago, but contributing to the detention, processing and resettlement of LGBTI refugees in countries that criminalise them is nothing to be proud of.
And I think, deep down, you understand that. In which case, it is up to you to do something that you, your Government and the country you lead can be proud of:
Bring. Them. Here.
Your predecessors negotiated with the PNG Government for Manus Island to become the site of the ‘Regional Processing Centre’. You have the power to negotiate with the PNG Government to close that same centre and bring the refugees and people seeking asylum there back to Australia.
In fact, after the PNG Supreme Court earlier this year ruled that the detention of refugees and people seeking asylum on Manus Island was illegal, and in breach of the PNG Constitution’s right to personal liberty[viii], I suspect their Government would welcome such a move.
Bring them here and end the frankly horrific situation whereby LGBTI people who have fled persecution in other parts of the world, including those fleeing persecution on the grounds of sexual orientation, gender identity or intersex status, have been deliberately left in a place where they are subject to criminal laws on the basis of those same attributes.
Successive Australian Governments put them there. You, as Prime Minister, and leader of the current Government, can get them out. Do something that makes us all proud. Please, Prime Minister Turnbull, bring them here.
Senate Estimates Monday 17 October 2016
Legal and Constitutional Affairs Committee Hearing re Department of Immigration and Border Protection
Senator PRATT: I would like to know how many men on Manus have been given positive refugee status determinations on the basis of their sexuality.
Mr Pezzullo: Their claim of persecution relates to sexuality?
Senator PRATT: That is right.
Mr Pezzullo: I will ask Ms Noble or other officers to join me, but I am not sure that we would immediately have that data to hand, because we do not do the refugee status determination. Unless Ms Moy can answer the question directly, we will take it on notice.
Senator PRATT: You would agree that some would have had to have been found as refugees, basically?
Mr Pezzullo: Possibly. I do not know.
Ms Moy: The RSD process in Papua New Guinea is run by ICSA. We are not privy to the information of each claim. We would need to go to Papua New Guinea and ask them that question. So we would need to take it on notice.
Senator PRATT: But that is a difficult thing, given that homosexuality is actually illegal in PNG. They are having to make these disclosures to the PNG government, in which case they may even have a well-founded fear of persecution from within PNG. Is that not correct?
Mr Pezzullo: We will have to take on notice how the PNG authorities have dealt with the assessment of claims pursuant to both their international legal obligations and the operation of their domestic law.
Senator PRATT: Well, homosexuality is a criminal offence there. It is illegal.
Mr Pezzullo: I understand the point you are making. What I am saying is that how the PNG authorities have assessed those claims is a matter that would not be readily known to Ms Moy and myself.
Senator PRATT: What is the government’s advice to those men who are currently on Manus who are refugees because they are gay and who are about to be resettled in PNG?
Mr Pezzullo: Which government’s advice? The advice of the Australian government?
Senator PRATT: Yes.
CHAIR: Well, that is not a question for you, Mr Pezzullo. You are not here to give advice to people in detention in another country.
Senator PRATT: Australia has a responsibility in this regard, because we are not supposed to engage in these activities in offshore processing as a way of in a sense refoulement of the refugee process, because people might be subject to further persecution.
Mr Pezzullo: The historical basis of the transfers—noting that there has not been a transfer into regional processing for some 21⁄2 years; the Australian government acquitted its nonrefoulement obligations over 21⁄2 years ago, at a minimum—
Senator PRATT: In that context, how is the issue of people’s sexual identity and the illegality of that in PNG being addressed within that?
Mr Pezzullo: You will need to ask the PNG government. I do not know, is the answer. Australia, through two agreements, two heads of agreement—one initiated under the Gillard government and one under the Rudd government and then consolidated under subsequent governments—entered into agreements to transfer persons who arrived here by illegal maritime means into the jurisdictions of either Nauru or PNG, two separate transfers. At that point our nonrefoulement obligations had to be addressed and acquitted, and they were. There is no ongoing—
Senator PRATT: In what manner were issues of sexuality addressed within that agreement? Or were they not?
Mr Pezzullo: You cannot refoule persons back to the country of origin where they have raised claims of persecution. There were no claims of persecution against the states or the regimes of Nauru and PNG.
Senator PRATT: I understand that that is about returning people to their country of origin. But in effect we have taken them to a country where they could be subject to exactly the same form of persecution, where they are supposed to be having their claim for asylum processed.
Mr Pezzullo: Well, you speculate that. When you say we have ‘taken them to a country’—we cannot simply drop people off. We entered into intergovernmental agreements, to transfer persons from the Australian migration jurisdiction to other migration jurisdictions. At that point, the last of which occurred 21⁄2 years ago, because there have been no transfers since, all of Australia’s obligations in that regard were discharged.
Senator PRATT: In other words, the Australian government has no responsibility to those gay men who are currently detained on Manus in terms of whether their human rights in relation to their sexuality will be upheld in PNG or not.
Mr Pezzullo: I understand the question you are asking. You say that the Australian government has no responsibility in that circumstance, but the Australian government—a number of governments, actually, that straddle several parliamentary terms—discharged all of its legal undertakings at the time of the transfer, yes.
Senator PRATT: So it has no further responsibility to the human rights of those men?
Mr Pezzullo: Not pursuant to—Australia observes its human rights, diplomacy and policy objectives in all manner of ways that the foreign minister and her officers discharge. But in terms of ensuring that through the transfer mechanisms that were agreed in 2012 and 2013 we did not refoule persons who had come into our jurisdiction we acquitted those obligations at that time.
Senator PRATT: But we have a contract with the PNG government that—
Mr Pezzullo: We have an agreement, yes.
Senator PRATT: We have an agreement for which the PNG government is paid, and within that agreement there are men whose original claim for protection was based on their homosexual identity. Their claims are being processed in a country in which homosexuality is illegal.
Mr Pezzullo: Senator, you state, as an assertion—in what I think is a question—that their original claims were founded on sexuality.
Senator PRATT: They may or may not have been.
Mr Pezzullo: Thank you.
Senator PRATT: The question is that people who are homosexual and who are currently detained or being processed on Manus—their homosexuality may or may not have been part of their original claim—are being processed in a country in which homosexuality is illegal and they are being forced to be there.
Mr Pezzullo: Which might mean, in the circumstances that you describe—and this is a matter for the government of Papua New Guinea—that the government of Papua New Guinea is not able to resettle those gentlemen within their domestic jurisdiction. In that case, the government of PNG will need to enter into arrangements with so-called third country resettlement options where that clash with domestic law—or that contradiction with domestic law, if I can characterise it in those terms—is not applicable.
Senator PRATT: And in the meantime, no homosexual conduct is allowed.
Mr Pezzullo: I do not know whether it is allowed or not. Senator
PRATT: Well, it is illegal.
Mr Pezzullo: I am not an expert on those laws in the domestic jurisdiction of PNG. I understand the point of the question you are asking. What I am saying is: those persons—the single adult men who are on Manus—are in the legal jurisdiction of the government of Papua New Guinea. They have both international obligations that pertain to the 1951 Refugee Convention, which include non-refoulement, and other complementary protections that attach to various other covenants that that government has entered into. Then they have domestic laws which, as I understand from reporting, can be characterised in the way that you have described. It is now a matter for the government of Papua New Guinea to resolve: how do you settle a person who you know to have a well-founded fear of persecution—across a range of matters, one of which might be related to sexuality—within your domestic jurisdiction? I do not know—Ms Moy might be able to assist me—if we have been asked for technical assistance in terms of how to perhaps assist with the country options. I just do not know.
Ms Moy: Not at this stage.
Senator PRATT: Or homosexual law reform in PNG perhaps?
Mr Pezzullo: Well, that is not something that my department has any role in.
CHAIR: Nor has the Australian government.
Mr Pezzullo: We have enough on our plate. I do not mean to belittle the point, but the pursuit of law reform around same-sex attraction in foreign jurisdictions is not on my to-do list.
Senator PRATT: I think I have exhausted that. Clearly the government has no further responsibility.
[i] At the time the Australian Government continued to advocate the transfer of refugees and people seeking asylum to Malaysia, in addition to Nauru and PNG.
[ii] From the response: “Pre-Transfer Assessment is undertaken prior to a person’s transfer to a [Regional Processing Country] to consider whether there are specific circumstances or special needs that mean it is not reasonably practicable to transfer an asylum seeker to an RPC at this time.
Where a person raises concerns against a designated RPC, the Departmental officer refers to relevant country information, as well as assurances received by Australia from the RPC governments, to assess if those charges are credible. If the person makes credible protection claims against all RPCs, the case is brought to the Minister’s attention in accordance with his guidelines for considering the exercise of is power under section 198AE of the Migration Act 1958 to exempt that person rom transfer.”
[iv] Since the time of my submission to that inquiry, and in very welcome news, Nauru has finally decriminalised male homosexuality.
[vi] I note that only ‘male’ refugees have been transferred to Manus Island, in which case the majority of people affected by these laws will be gay, bisexual and same-sex attracted ‘men’. However, for consistency with previous letters (to Ministers Bowen and Morrison) that also dealt with Nauru (to which women and children have been sent) the term LGBTI will continue to be used throughout this post.
[vii] Although obviously still not full equality, not just on the issue of marriage, but also in relation to trans birth certificates, non-consensual surgeries on intersex infants and extensive religious exceptions to anti-discrimination laws, among other issues.
[viii] ABC News, PNG’s Supreme Court rules detention of asylum seekers on Manus Island is illegal, 27 April 2016.