Submission re Foreign Policy White Paper

Posted on February 27, 2017 by Alastair Lawrie

Update:

The Foreign Policy White Paper was released in November 2017 (under then Foreign Minister Julie Bishop, and then Prime Minister Malcolm Turnbull).

While in all four areas raised in my submission there were improvements from the call for submissions, in each the final outcome remains unsatisfactory.

First, after having not even mentioned climate change in the original call for submissions, the White Paper at least discusses climate change and some of the implications it raises for Australia, both here and internationally. This includes from page 33 and again from page 84.

However, there is little indication that climate change will be THE international policy challenge facing Australia in the 21^st century, and very little discussion about what we will do to avoid it (although perhaps that has more do to with the complete lack of domestic commitment to combatting climate change).

Second, and again after not mentioning refugees, people seeking asylum and displaced persons as an issue in the call for submissions, the White Paper does at least discuss the challenge posed by more than 60 million displaced people around the world – albeit in a somewhat cursory fashion on pages 92 and 93 (and with little indication how we will play our role in helping to stop that number from growing even further).

Third, there is now some discussion of Australian aid, and the role that it can (and should) play, particularly in the Asia-Pacific region (including a commitment on page 97 that: “Australia will continue to work with international institutions such as the World Health Organization to help prevent, detect and respond to health emergencies and to combat antimicrobial resistance. Australia will invest a further $220 million in the Global Fund to Fight AIDS, Tuberculosis and Malaria, which as saved more than 20 million lives since 2002.”)

Although, perhaps unsurprisingly, there is no discussion of how Australia intends to restore our foreign aid budget to at least the 0.50% of GDP target which used to have bi-partisan support, let alone reach the 0.70% United Nations target.

Fourth, and finally, the term human rights also makes a belated and welcome appearance in the Foreign Policy White Paper. In particular, there is a pleasing focus on gender equality, and improving the situation for women and girls, both in our region and around the world.

However, despite the fact that up to 72 countries continue to criminalise homosexuality (source: ILGA 2017 State-Sponsored Homophobia Report), including our nearest neighbour Papua New Guinea, there is exactly zero reference to support for LGBTI rights around the world.

In contrast, there are multiple references of support for freedom of religion (reflecting the same disproportionate attention given to that right, over and above the rights of LGBTI people, that has dominated the Liberal-National Government during the Abbott, Turnbull and now Morrison leaderships).

Original Post:

Below is my personal submission regarding the development of the Australian Government’s Foreign Policy White Paper. Submissions close Tuesday 28 February 2017. For more details, please see the Department of Foreign Affairs & Trade’s website.

**********

Foreign Policy White Paper Submission

c/- whitepaper@dfat.gov.au

To whom it may concern,

Submission re Foreign Policy White Paper

Thank you for the opportunity to provide a submission to inform the Australian Government’s development of its Foreign Policy White Paper.

This is a personal submission, prompted by the four-page Call for Submissions, published on the Department of Foreign Affairs and Trade website.

In this submission, I will address four main issues that I believe must be addressed in any responsible Foreign Policy White Paper: climate change; refugees; foreign aid; and human rights.

Which is why it was so disappointing to note that three of these four issues were not mentioned, at all, in that four-page document.

There was not even a single mention of the threat posed by global warming, the humanitarian challenge of the growth in displaced persons and people seeking asylum, or the need to promote the human rights of all people, including lesbian, gay, bisexual, transgender and intersex (LGBTI) people, around the world.

Admittedly, there was at least one cursory reference to “our overseas development assistance program”, although, as we shall see below, even that was inadequate.

In any event, please see below my explanation of why each of these four policy areas must form a central part of the Foreign Policy White Paper that is expected to be released in late 2017.

Climate Change & Global Warming

I find it extraordinary that the White Paper call for submissions completely failed to mention[i] what must be the most important challenge facing the world in the 21^st century: climate change, and specifically accelerating global warming.

In 2017, there is no doubt that the actions of humans have contributed to a rapidly warming planet. Indeed, the Government’s own Bureau of Meteorology confirmed, in its most recent Annual Climate Statement[ii], that:

2016 was Australia’s fourth warmest year on record, 0.87 degrees above the long-term average
It was also the warmest year on record for ocean temperatures in the Australian region, with an annual mean sea surface temperature 0.73 degrees above average, and
Our three most populous states, NSW, Victoria and Queensland, also had the highest average minimum temperatures on record during the past 12 months.

Globally, the news is even more confronting. The same report confirmed that:

2016 was the warmest year on record around the world, 0.83 degrees above the long-term average
“This surpasses the previous record set in 2015, and is the third year running that the new record has been set” [emphasis added]
January, February, March, April, July, August and December 2016 were all the warmest respective months on record, and
“The global ocean surface temperature for the calendar year was also the warmest on record in 2016, surpassing the record set in 2015.”

This is nothing short of a climate emergency. And it is a situation that will directly affect Australia, and its people, just as it affects every other country and people in the world (after all, if the planet cooks, we will all cook with it).

The threat of climate change is an international problem – consequently, the response to it must be international in nature too. That includes a response from Australia, both through domestic policy (with the introduction of an effective price on carbon), but also in its foreign policy settings.

Climate change generally, and global warming specifically, may well be the most significant challenge we, as a species, have ever faced. I believe responding to this threat must be the number one priority of any new Foreign Policy White Paper that the Australian Government produces.

Climate change is real, and it cannot be ignored (source: Bureau of Meteorology).

Refugees and People Seeking Asylum

A second issue that, almost as bizarrely, is not even mentioned in the Foreign Policy White Paper call for submissions is the growing number of displaced people around the world, including refugees and people seeking asylum.

This is despite the fact that the most recent Global Trends: Forced Displacement report by the United Nations High Commissioner for Refugees (UNHCR)[iii] noted that “[g]lobal forced displacement has increased in 2015, with record-high numbers.”

Indeed, that same report revealed there were:

65.3 million forcibly displaced persons worldwide, including
- 21.3 million refugees
- 40.8 million internally displaced persons, and
- 3.2 million asylum seekers
12.4 million people newly displaced due to conflict or persecution in 2015 alone, and
2.0 million asylum applications submitted (a new record-high) with 441,900 asylum claims just in Germany as a result of the war in Syria.

It should not have taken widely-shared, tragic photographs of Alan Kurdi in September 2015 to make us realise this is truly a global humanitarian crisis.

The numbers alone confirm that this is an international issue of the highest order, and addressing its causes, while responding to the consequences, must be a foreign policy priority for all countries, including Australia.

One of the many depressing statistics found in the UNHRC’s report confirms that it currently is not: “[d]uring 2015, the total number of refugees admitted for resettlement stood at 107,100”[iv]. That’s 107,100 out of a total of 21.3 million.

Of course, the Australian Government may claim that, given 9,400 of those refugees were resettled here (the third-highest of any country), we do not need to do more.

But that ignores the fact we benefit from our location, and isolation, and therefore do not have the same number of in-country applications for asylum as other places. And it also overlooks the wealth and privilege we currently enjoy.

As a country we can, and must, do more in response to the growing number of displaced persons around the world, and that should be reflected in our new Foreign Policy White Paper.

170227-unhcr-forced-displacement-2015-final

Source: UNHCR

Foreign Aid

The one issue, out of the four priority areas highlighted above, that is at least touched on in the call for submissions is foreign aid. Topic 5: Australia confronts a range of strategic, security and transnational challenges on page 3 includes the following question:

“How can our foreign policy, including our overseas development assistance program, support a more prosperous, peaceful and stable region?”

However, while this question at least acknowledges the importance of foreign aid (or in this case ‘overseas development assistance’), it does so largely within the framework of Australia’s national interest, rather than in the context of our common humanity.

Irrespective of this broader ‘framing’, one of the main answers to this question is actually to increase our foreign aid spending.

Drastic budget cuts to Australia’s foreign aid budget in recent years – with $1 billion, or 20%, cut in 2015-16, and a further $224 million reduction in 2016-17 – have seen foreign aid as a share of Gross Domestic Product (GDP) fall to an estimated 0.23%[v].

Indeed, “[b]etween 2012 and 2016, Australia’s foreign aid as a share of national income has fallen steeply from 0.36% to 0.23%.”[vi]

This leaves our foreign aid allocation at less than half the previous bipartisan goal of reaching 0.5% of GDP by 2015.

And, significantly, it is less than one third of the United Nations target that countries provide at least 0.7% of their national income as foreign aid.

The cuts to foreign aid have the potential to cause real and lasting damage across our region, and around the world, to countries and people that can least afford it.

As a result, I believe that the Foreign Policy White Paper should feature both a recommitment to the United Nations target, as well as a de-coupling of our foreign aid budget from an almost-exclusive focus on Australia’s national interest.

If we fail to do either, then we are at grave risk of changing from the land of ‘the fair go’ to the country of ‘what’s in it for us?’

Foreign aid as a share of GDP is plummeting, according to the Government’s own figures (source: The Conversation).

Human rights, including LGBTI rights

There is one final issue that is completely omitted from the four-page Call for Submissions regarding the Foreign Policy White Paper: international human rights.

As a long-term LGBTI advocate and activist, I would like to focus on one specific sub-set of international human rights – the rights of lesbian, gay, bisexual, transgender and intersex people around the world.

In June 2016, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) estimated that same-sex sexual acts were illegal in 72 states, or a full 37% of United Nations members[vii]. This includes 13 States (or part thereof) where same-sex sexual acts attract the death penalty.

The criminalisation of homosexuality is also a particular problem in our own region of Oceania, with prohibitions in our nearest neighbour Papua New Guinea, as well as Kiribati, Samoa, Solomon Islands, Tonga and Tuvalu (plus Cook Islands who are associates to New Zealand).

There are an additional four countries in South-East Asia where same-sex acts remain illegal (Brunei Darussalam, parts of Indonesia, Malaysia and Singapore).

Long-standing LGBTI advocate Peter Tatchell last week actually stated that “[t]here remain 75 countries and dependent territories that still criminalise same-sex relations – with nearly half of these jurisdictions outlawing both male and female homosexuality”.[viii]

And, in a specific challenge to countries like the United Kingdom and Australia, he observed that “[h]omosexuality remains criminalised in 36 out of the 52 Commonwealth member states” where “[m]ost of these anti-gay laws were imposed by Britain during the colonial era.”[ix]

The ongoing criminalisation of people on the basis of their sexual orientation, as well as other anti-LGBTI human rights abuses such as the involuntary sterilisation of intersex infants and the failure to recognise and accept trans and gender diverse people, is a major problem in the early 21^st century.

I believe Australia should adopt a pro-active role in supporting groups that are working to address these human rights violations, both in our region (where, as we have seen above, there is plenty of work still to do) and around the world.

We should also seek, wherever possible, to progress the positive recognition and acceptance of LGBTI human rights in international forums, including the United Nations as well as other groups such as the Commonwealth Heads of Government Meeting (CHOGM).

Finally, both of these activities – support for the work of LGBTI rights organisations in our region and globally, as well as the pursuit of LGBTI human rights internationally – should be reflected in the Foreign Policy White Paper.

170227-ilga-sexual-orientation-criminalisation-map

Same-sex sexual activity remains criminalised in far too many countries around the world (source: ILGA).

**********

Obviously, in each of the four issues outlined in this submission – climate change, refugees, foreign aid and LGBTI rights – the Australian Government can be legitimately criticised for not doing enough to achieve progress domestically.

We can and must do better in terms of reducing our own carbon emissions, of adopting a more humane approach to refugees and people seeking asylum, of increasing our foreign aid budget and of respecting the rights of lesbian, gay, bisexual, transgender and intersex Australians.

But, at the same time as addressing these ourselves, I believe we can – and above all must – help to achieve progress on these issues globally, because the rise of global warming, the growth in the number of displace persons, the unmet need for foreign aid, and discrimination against LGBTI people, are problems that transcend state borders.

Which means the solutions cross state borders too – and that therefore Australia has a role to play in fixing them.

Thank you in advance for taking this submission into account as the Australian Government develops its Foreign Policy White Paper.

Please do not hesitate to contact me, at the details provided, should you require additional information.

Sincerely,

Alastair Lawrie

Footnotes:

[i] Question 2, on page 3 of the call for submissions, refers to ‘environmental degradation’, a phrase that is so vague it can be interpreted in multiple ways, and does not begin to capture the urgency of the climate emergency we currently face.

[ii] Bureau of Meteorology Annual Climate Statement 2016.

[iii] UNHRC, Global Trends: Forced Displacement in 2015.

[iv] Ibid, page 26.

[v] The Conversation, Savage budget cuts pull Australia down in foreign aid rankings, May 4, 2016.

[vi] Ibid.

[vii] See ILGA, State-Sponsored Homophobia 2016 report here.

[viii] Guardian, There are reasons to be cheerful… LGBTI rights gains in unlikely countries, February 20, 2017.

[ix] Ibid.

Do you feel proud, Malcolm?

Posted on October 25, 2016 by Alastair Lawrie

Update 18 February 2017:

Over the past five years I have written to a number of Immigration Ministers (including Chris Bowen and Brendan O’Connor under Labor, and Scott Morrison under the Coalition), expressing concerns about the mistreatment of LGBTI people seeking asylum, and especially the policy of detaining, processing and resettling LGBTI refugees in countries that criminalise homosexuality (such as Papua New Guinea and, until May 2016, Nauru).

It is fair to say that I have received an equal number of disappointing replies to my correspondence – my letters, and the responses to them, are published here.

I was prompted to write again in October 2016, this time to Prime Minister Malcolm Turnbull, following the exchange between Labor Senator Louise Pratt and the Secretary of the Department of Immigration and Border Security, Mr Michael Pezzullo, at Senate Estimates.

During that exchange, not only did Mr Pezzullo display a stunning lack of awareness of the ongoing criminalisation of homosexuality in our nearest neighbour, he also seemed uninterested in the issue of how PNG’s criminal laws might impact LGBTI people seeking asylum sent there by the Australian Government.

Predictably – although still shocking – Mr Pezzullo argued that Australia’s obligation towards these people seeking asylum ended at the point of transfer to Manus Island, and therefore we collectively bore no responsibility for ensuring that their human rights were respected.

The full letter I wrote to the Prime Minister is reproduced below. Almost four months later I have finally received a response, not from Mr Turnbull, nor even from the current Immigration Minister Peter Dutton, but instead from the Department of Immigration of Border Protection. This is what they sent:

Dear Mr Lawrie

Thank you for your correspondence of 9 November 2016 to the Prime Minister, the Hon Malcolm Turnbull MP, concerning the treatment of homosexual, bisexual, transgender and intersex asylum seekers. Your correspondence has been referred to the Minister for Immigration and Border Protection as the matters raised fall within his portfolio responsibilities. The Minister appreciates the time you have taken to bring these matters to his attention and has asked that I reply on his behalf. I apologise for the delay in responding.

As out lined in the Department’s response to your previous letters to the former Minister for Immigration and Border Protection, the Hon Scott Morrison MP, and the former Minister for Immigration and Citizenship, the Hon Chris Bowen MP, Australia takes its international obligations seriously, including those under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention).

As previously advised, the Australian Government has taken a number of measures to deter people smuggling and to ensure that people do not take the dangerous journey to Australia in boats organised by people smugglers. Under Australian domestic law, all illegal maritime arrivals (IMAs) entering Australia by sea without a visa will be liable for transfer to a regional processing country where any asylum claims they may have will be assessed. The Government has signed Memoranda of Understanding with the Governments of Nauru and Papua New Guinea (PNG), which support this.

As previously noted in the Department’s response to your letter to the former Minister for Immigration and Border Protection, the Hon Scott Morrison MP, any claims made against a regional processing country by the IMA, including claims concerning the treatment of homosexuals in the regional processing country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed regional processing country, or an alternative regional processing country, or whether the IMA’s case should be referred to the Minister for consideration of exemption from transfer.

As previously advised, the enforcement of PNG domestic law is a matter for the Government of PNG. The Australian Government is aware of laws relating to homosexual activity in PNG but also understand that there have been no reports of prosecutions under those laws since 2012. As of May 2016 same-sex activity is legal in Nauru.

Further, I confirm that if homosexual activity should occur in the Regional Processing Centres, there is no mandatory obligation under PNG or Nauru domestic law for Australian officers or contracted service providers to report such activity to the respective Government or police.

Thank you for brining your concerns to the Government’s attention.

Yours sincerely

[Signature withheld]

A/g Director ABF Ministerial Correspondence Section

Support Group – Australian Border Force

14 February 2017

There are obviously a number of worrying statements in this letter, including:

The Department of Immigration and Border Protection has reiterated the process that LGBTI people seeking asylum who arrive by boat must, in the short period between arrival and transfer, declare their sexual orientation, gender identity and intersex status, and express their specific concerns about being detained in PNG. This ignores the lived experience of LGBTI people seeking asylum, their often legitimate safety concerns in disclosing their status especially in close proximity to other people seeking asylum who may be unaware and/or not accepting of them, and the fact that for many people seeking asylum it takes months or even years for them to disclose anti-LGBTI persecution as the basis of their refugee claim. It also presumes that they are aware of the current criminal laws of Papua New Guinea, something of which even the Secretary of the Department of Immigration and Border Security was ignorant.

The letter also repeats previous ‘assurances’ that there is no mandatory reporting obligation in relation to homosexual activity in the Manus Island detention facility. However, this avoids the real problem – the criminal laws of PNG do apply to LGBTI people seeking asylum and refugees on Manus Island, and homosexual conduct can be reported to PNG police. The mere threat of such referral is sufficient to cause real fear among LGBTI people in this situation, alongside legitimate safety concerns (after all, it is difficult to report anti-LGBTI violence to police when the same authorities can prosecute you for simply being who you are).

Overall, then, there is nothing in the response from the Department of Immigration and Border Protection to suggest that the situation for LGBTI people seeking asylum detained on Manus Island will improve anytime soon. Shamefully, the human rights abuse of LGBTI people put there by the Australian Government will continue for the foreseeable future. Which means that our responsibility to stand up for them, and campaign for change, must continue too.

Original Post:

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

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.

Sincerely,

Alastair Lawrie

Prime Minister Malcolm Turnbull, celebrating ‘pride’ at the 2016 Sydney Gay & Lesbian Mardi Gras Parade. Not pictured: The gay, bisexual and same-sex attracted refugees and people seeking asylum detained on Manus Island, PNG.

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Attachment A

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.

**********

Footnotes:

[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.”

[iii] The response is included with the original letter, here.

[iv] Since the time of my submission to that inquiry, and in very welcome news, Nauru has finally decriminalised male homosexuality.

[v] The original transcript for this hearing can be found on pages 132-134 here.

[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.

Submission to Senate Inquiry into Treatment of Asylum Seekers on Nauru & Manus Island

Posted on April 27, 2016 by Alastair Lawrie

UPDATE: 5 June 2016

The Senate Legal and Constitutional Affairs References Committee, chaired by Senator Glenn Lazarus, was unable to complete its inquiry into the treatment of people seeking asylum on Nauru and Manus Island before Malcolm Turnbull announced the election on 8 May.

However, they did release an Interim Report based on the submissions it had already received, which can be found here.

A range of disturbing matters are raised in this Report, including submissions to the effect that, in just a 13-month period (June 2014 to July 2015), the Department of Immigration and Border Protection recorded:

“134 incidents of actual self-harm, many amounting to attempted suicide and including some by children
75 instances of the use of force against asylum seekers, by other asylum seekers and by [Regional Processing Centre] staff
26 ‘major disturbances’ of various kinds, all serious in nature and posing risks to the safety of asylum seekers and staff
34 instances of serious assault requiring medical treatment [and]
16 serious accidents of injuries and 23 public health risks.”

I encourage you to read the short report to see at least a little of what is being done by our Government to people who deserve its protection, not abuse.

The Committee also recognised the particular issues confronting LGBTI people seeking asylum being detained, processed and resettled in Nauru and Papua New Guinea, including the following extended section on pages 12 and 13:

“LGBTI asylum seekers

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 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. [Australian Lawyers for Human Rights] shared these concerns, citing Amnesty International’s reporting about gay refugees and resettlement in PNG.

1.58 The NSW Gay & Lesbian Rights Lobby highlighted that ‘LGBTI refugees are some of the most vulnerable individuals held in detention around the world’, and submitted that they were subject to ‘severe discrimination’ in the [Regional Processing Centres] and their host countries, as well as in refugee status determination processes.

1.59 Mr Lawrie argued that LGBTI asylum seekers (whether or not their claims for refugee status were based on their sexuality) should be housed and processed in Australia. The NSW Gay & Lesbian Rights Lobby agreed, and also offered a number of recommendations for specific training and education of relevant officials and service providers, as well as improved services, to better address the specific needs and vulnerabilities of LGBTI asylum-seekers.”

Given their inability to complete the inquiry, the Committee made only one recommendation: “The committee recommends that, should it be unable to complete its inquiry prior to the 2016 national election, the Senate should refer this matter for committee consideration, in similar terms as appropriate, in the 45^th Parliament.”

However, even that recommendation, to essentially resume the Inquiry after the July 2 poll, was a bridge too far for Liberal and National Party Senators on the Committee who, disappointingly, “instead recommended[ed] that examination of Australia’s border protection activities be referred to the more reliable and cost-effective forum of Senate Estimates.”

As a result, it is unclear whether this issue will receive sufficient parliamentary scrutiny in the next term.

There is, nevertheless, one positive development that has occurred since the Committee handed down its Interim Report – on 27 May the Government of Nauru announced that it had decriminalised homosexuality.

In its media release “Nauru Government updates Criminal Code”, they announced passage of “the Crimes Act 2016 [which] replaces the hundred year old Nauruan Criminal Code 1899 which was drawn from the Queensland Criminal Code.”

In doing so, they confirmed the influence of international human rights advocacy:

“The Government of Nauru continues to show progressive leadership and in keeping with its legislative agenda, has passed a new number of laws including the decriminalising of homosexuality and suicide.

“In complying with its international obligations under various international treaties, The Nauru Parliament has had laws drafted to be consistent with appropriate international standards.”

Of course, the passage of this law, while welcome, will not necessarily do much to prevent ongoing reports of abuse as highlighted in the Committee’s Interim Report, but it is at least a small step forward, not just for LGBTI people seeking asylum being detained on Nauru, but for the LGBTI people of Nauru too.

ORIGINAL POST:

The Senate Legal and Constitutional Affairs Committee is currently conducting an 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. My submission to this inquiry has now been published by the Committee and is reproduced below.

More details about the Inquiry, and other submissions, can be found here.

Committee Secretary

Senate Legal and Constitutional Affairs Committee

PO Box 6100

Parliament House

Canberra ACT 2600

legcon.sen@aph.gov.au

Thursday 31 March 2016

To whom it may concern

Submission to Senate Inquiry into Conditions and Treatment of Asylum Seekers and Refugees in Nauru and PNG

Thank you for the opportunity to provide a submission to the Senate Legal and Constitutional Affairs Committee Inquiry into Conditions and Treatment of Asylum Seekers and Refugees at the Regional Processing Centres in the Republic of Nauru and Papua New Guinea (‘the Inquiry’).

From the outset, I wish to express my opposition to the policies adopted by both the current Liberal-National Government, and the previous Labor Government, which detain (sometimes indefinitely), process and in some cases resettle people seeking asylum in Nauru and Papua New Guinea (PNG).

I believe that the actions of successive Australian Governments are in breach not just of international human rights law, but also fall far short of basic standards of human decency, denying the opportunity of a better life to people fleeing persecution in other countries.

However, while I oppose the overall detention, processing and resettlement of all people seeking asylum in Nauru and PNG, in this submission I will focus on one group of people for whom these policies cause particular problems: lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

It is my 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.

Before I address this issue in more detail, I would like to clarify that here I am not simply referring to people who claim asylum based on persecution because of their sexual orientation, gender identity or intersex status in other countries, but also include people who seek asylum on the basis of persecution of another attribute (such as race, religion or political views) and who are LGBTI. Both groups are negatively affected by the Australian Government’s current approach.

In this submission, examining the treatment of LGBTI people seeking asylum, I will primarily focus on two of the Inquiry’s six criteria:

a) conditions and treatment of asylum seekers and refugees at 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.

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Sending LGBTI people seeking asylum to countries that criminalise homosexuality is itself a human rights abuse, and one that exposes those people to other forms of abuse and mistreatment

The Australian Government currently detains people seeking asylum in two countries outside of Australia: Nauru and PNG.

In both countries, male homosexuality remains criminalised. In both places, the maximum penalty is set at 14 years imprisonment. And in both, the origins of their current laws can be traced back to British, and subsequently Australian, imperial rule.

Nauru has two main criminal offences under its Criminal Code (which, I understand, are based on Queensland’s 1899 Criminal Code) that are relevant to this discussion:

“Section 208 Unnatural Offences

Any person who:

(1) Has carnal knowledge of any person against the order of nature; or

(2) Has carnal knowledge of an animal; or

(3) Permits a male person to have carnal knowledge of him or her against the order of nature;

is guilty of a crime, and is liable to imprisonment with hard labour for fourteen years[i]” and

“Section 211 Indecent Practices between Males

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years.”

Despite comments in recent years by the Government of Nauru that suggested homosexuality could be decriminalise there, these offences remain in place today.

Papua New Guinea also has two main offences under its Criminal Code that are relevant (and the offences, and even the language used, again appear to be based on Queensland’s since repealed criminal provisions):

“Section 210. Unnatural Offences.

(1) A person who-

(a) sexually penetrates any person against the order of nature; or

(b) sexually penetrates an animal; or

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

(2) A person who attempts to commit and offences against Subsection (1) is guilty of a crime.

Penalty: imprisonment for a term not exceeding seven years” and

“Section 212. Indecent Practices Between Males.

(1) A male person who, whether in public or private-

(a) commits an act of gross indecency with another male person; or

(b) procures another male person to commit an act of gross indecency with him; or

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.”

Unlike Nauru, there does not even appear to be any prospect of the PNG offences being repealed in the short or medium-term future.

Thus, prime facie, it appears that any members of the LGBTI community who engage in what could be described as male-male sexual activity – which would include gay men, bisexual men, some trans people (including because of mis-gendering by authorities) and some intersex people – would be committing criminal offences if they are sent to Nauru or PNG.

The criminalisation of male homosexuality in both PNG and Nauru stands in stark contrast with the situation in Australia, where all states and territories have decriminalised sexual activity between men (with Tasmania the last state to do so, in 1997).

If LGBTI people seeking asylum were instead allowed to have their claims processed on Australian soil, they would not need to fear being prosecuted simply because of who they are.

The legal situation in Australia is also relevant in establishing that the criminalisation of homosexual sexual activity in both Nauru and PNG is a contravention of international human rights law. It does so in two ways:

(i) The first United Nations Human Rights Committee (UNHRC) decision to find that laws criminalising male homosexuality were a violation of the ‘right to privacy’ in article 17 of the International Covenant on Civil and Political Rights (ICCPR)[ii] involved an Australian complainant. The case of Toonen v Australia[iii] – which considered a complaint against the ‘sodomy’ laws of Tasmania – was ground-breaking when it was handed down in early 1994, and remains relevant around the world today[iv] (as we shall see below).

(ii) The Australian Government, and Parliament, then confirmed that the international human right to privacy included consensual sexual activity between adults through the passage of the Human Rights (Sexual Conduct) Act 1994. Specifically, subsection 4(1) provided that: “[s]exual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.”

And yet, despite a 1994 decision of the UNHRC finding that the international human right to privacy should include the right to consensual sexual activity between adults, and despite this being confirmed as a right by the Australian Parliament more than 20 years ago, successive Australian Governments have effectively determined that this right should not apply to LGBTI people seeking asylum who seek protection from Australia.

Instead, successive Australian Governments have detained, processed and, in some case, resettled LGBTI people seeking asylum in countries that continue to criminalise male homosexual activity, exposing them to what I would argue are human rights violations under both Australian and international law.

There has previously been a suggestion that the criminal laws of Nauru and PNG, and especially those laws that prohibit homosexual sexual activity, might not apply to people seeking asylum who are being detained in either or both of those places.

However, I have raised this issue directly with respective Immigration Ministers under both the previous Labor and current Liberal-National Governments, and neither has explicitly ruled out the application of these criminal laws.

In September 2012, I asked then Immigration Minister the Hon Chris Bowen MP:

“Are you aware that homosexuality is currently illegal in all three countries [at the time, they also sought to send people seeking asylum to Malaysia] 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?”[v]

The response from the Department of Immigration and Citizenship, received in June 2013 (see Appendix A), refused to answer these questions – and therefore refused the opportunity to deny that the offences would indeed apply.

I wrote to the new Minister for Immigration the Hon Scott Morrison MP in February 2014, raising the same issues, this time specifically in relation to Manus Island, following the release of the Amnesty International Report This is Breaking People.[vi] In this letter, I included the following statement, something that I continue to firmly believe today:

“If you, as Minister for Immigration and Border Protection and therefore Minister responsible for the welfare of asylum seekers and refugees, cannot guarantee that section 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.”[vii]

The response to that letter, again from the Department rather than the Minister, and received in February 2014 (see Appendix B), did nothing to allay concerns that the criminal laws applied to LGBTI people seeking asylum held on Manus Island:

“If homosexual activity should occur in the OPC [Offshore Processing Centre], there is no mandatory obligation under PNG domestic law for Australian officers or contracted services providers to report such activity to the PNG Government or police.”

There is a lot to absorb from those short paragraphs and indeed from the letter as a whole (and I will attempt to address these issues in turn).

However, one thing that does not appear anywhere in this correspondence is a denial that the criminal laws of PNG apply to LGBTI people seeking asylum and refugees on Manus Island, irrespective of whether they are awaiting assessment or have had their applications approved and are living in the community.

Thus, on the basis of both letters, it can safely be asserted that the laws that criminalise homosexuality in PNG, and Nauru, apply to LGBTI people seeking asylum detained in both places by the Australian Government.

Looking at the specific claims in the February 2014 letter in more detail, we must remember that it does not actually matter whether the criminal laws of either PNG or Nauru have been the subject of prosecution in recent years. As the United Nations Human Rights Committee decided in the 1994 Toonen case:

“The Committee considers that Sections 122(a), (c) and 123 of the Tasmanian Criminal Code “interfere” with the author’s privacy, even if those provisions have not been enforced for a decade. In this context, it notes that the policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct does not amount to a guarantee that no actions will be brought against homosexuals in the future… The continued existence of the challenged provisions therefore continuously and directly “interferes” with the author’s privacy.”

In this light, the continued existence of the laws of Nauru and PNG criminalising male homosexuality is sufficient to constitute a human rights abuse of any person who is included by their scope, irrespective of whether the laws are actively being enforced or not.

The February 2014 letter actually highlights this potential abuse, even as it attempts to reject a claim made in the This is Breaking People report, namely that staff on Manus Island had a legal requirement to report homosexual activity to PNG police.

The letter itself only states that “there is no mandatory obligation under PNG domestic law”, not that such behaviour could not and would not ever be reported to the PNG Government or police – thus reinforcing the potential threat to LGBTI people seeking asylum.

The threat of criminal prosecution under PNG law has even been directly brought to the attention of people seeking asylum being detained on Manus Island. From The Guardian in September 2014[viii]:

“Guardian Australia has obtained a copy of an orientation presentation shown to asylum seekers on Manus after they arrived on the island. It was prepared by the Salvation Army and shows a picture of two men kissing with a large red cross through it.

“The delivery notes attached to the presentation warn; “Homosexuality is illegal in Papua New Guinea. People have been imprisoned or killed for performing homosexual acts.”

A spokesman for the Salvation Army confirmed the slides were used in the presentation to asylum seekers and said they formed part of a “broader education program about life in PNG.””

The slide from the Salvation Army presentation that was shown to people seeking asylum after their arrival on Manus Island (source: Guardian Australia).

Given this context, and applying the precedent of Toonen decision above, it is undeniable that the treatment of LGBTI people seeking asylum by the Australian Government is in clear breach of international human rights law.

This breach also directly causes other serious harms to these people seeking asylum. This includes increased discrimination against, and ostracising of, LGBTI people by other people seeking asylum in these detention centres.

As has been highlighted by multiple reports, including Amnesty International’s This is Breaking People, work by Human Rights Watch[ix], and the previously quoted article in The Guardian, the threat of criminalisation means LGBTI people who have been the victim of mistreatment in the detention centres – whether by other people seeking asylum or even detention centre employees – are far less likely to bring such mistreatment to the attention of relevant authorities.

Distressingly, these reports include multiple allegations that gay and bisexual men seeking asylum have been subject to sexual assaults inside detention centres but, due to the threat of the criminal laws being imposed on them for their homosexuality, have chosen not to make official complaints about these assaults.

That seems like an inevitable outcome of the offshore detention centre system created by successive Australian Governments, and yet it is no less abhorrent for this inevitability.

This abhorrent situation is reflected in the quotes of gay asylum seekers in both The Guardian article and Human Rights Watch report. From Human Rights Watch:

“A gay asylum seeker said, “I have not come to stay in Manus, a country where it’s possible [for a gay man] to be jailed for 14 years. If I wanted to live like this I would have stayed in Iran and gone to prison, been released, and then sent to prison again.”

“Another said, “Everyone leaves me. No one considers me a friend. Those few men who do are only with me because they want to take advantage of me sexually. They become my friends and after they use me they leave. And make fun of me. It’s very hard here.””[x]

And from The Guardian article[xi]:

“Author Karim writes:

“In this camp I suffer a lot. For example about four month ago I had to protect myself from a vicious man who tried to rape me, I lodged a complaint against the man, but I’ve got no reply yet.

“Life in the camp became harder because after that incident everyone stopped talking to me, I am completely alone, they are bullying and humiliating me at all time.

“I asked the psychologists to help me, but I’ve been ignored.”

“[Another author] Ahmed continues:

“I have to hide my sexuality because in this country, like Iran, there are a lot of people – fanatics – whom if they find out anyone is gay they would harass them and maybe even try to kill them.

“I have to hide my personality once again. I have to lie as someone else.

“It feels like this is a disease that is consuming me for all these years and society will never leave me alone. It feels like the universe doesn’t want you to live in the serenity of one moment, I don’t know what I have done to the universe, or what it has against me.

“I can’t live one moment without anxiety stress and sadness, it doesn’t let me live happily with anyone who I love or feel love, I don’t know what is my crime that I have to be punished so harshly.”

And from Omid (also in The Guardian article):

“I couldn’t return to Iran and be executed by the Iranian government. Hence living in PNG was not any better, because being gay is considered a crime in PNG as well, and the punishment for such crime is 14 years imprisonment.

“I am so sorry that I was born gay. I never meant to hurt you, mum.

“I wish our boat had sunk in the ocean and stopped me living the most painful year of my life.

“I thought Australia and its people would be my protector, but they taught me otherwise.”

These are the tragic lessons that we, as a country, are teaching LGBTI people seeking asylum by detaining, processing and resettling them in countries that criminalise homosexuality.

Another direct and very real consequence of the threat of criminalisation is the associated failure to provide proper sexual health education and services to LGBTI people seeking asylum.

Leaving aside the claims that people seeking asylum on Manus Island have been denied access to condoms (which the February 2014 letter rejected, but which is difficult to verify in the absence of independent monitoring), it is highly questionable whether appropriate and inclusive sexual health education is provided to all people seeking asylum who are held, including lesbian, gay, bisexual, transgender and intersex people.

But it is beyond doubt that LGBTI people seeking asylum are forced to exercise extreme caution when attempting to access sexual health services given doing so may expose them to criminal sanction. Criminalisation in this context, as in many other areas, directly jeopardises public health outcomes, and specifically increases the risks of HIV transmission.

Indeed, as the United Nations Human Rights Committee wrote more than two decades ago in relation to Toonen:

“The Australian Government observes that statutes criminalising homosexual activity tend to impede public health programmes “by driving underground many of the people at the risk of infection”. Criminalisation of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Second, the Committee notes that no link has been shown between the continued criminalisation of homosexual activity and the effective control of the spread of the HIV/AIDS virus.”

Thus, in addition to breaching the human rights of LGBTI people seeking asylum under international and Australian law by detaining them in countries that criminalise homosexuality, the Australian Government is also increasing the risks of those same people seeking asylum contracting a virus that, while manageable with access to appropriate care and treatment, nevertheless still killed 1.5 million people worldwide in 2013 alone[xii].

Before concluding this submission, I would like to make two final observations.

First, the Committee will note that throughout I have referred to lesbian, gay, bisexual, transgender and intersex people seeking asylum. I have done so even while I acknowledge that for some members of this community – including lesbians, bisexual women and some transgender and some intersex people – the criminal laws against male homosexual activity in both Nauru and PNG will not technically apply.

Nevertheless, I believe that the unsafe situation created by these laws does apply to all LGBTI people seeking asylum who are detained there. By retaining laws against male homosexuality, both Governments effectively encourage discrimination across all of these population groups.

The consequence of this is that even for lesbians, bisexual women and those transgender and intersex people, they remain at increased risk of harassment and abuse (by both other people seeking asylum and detention centre employees), and sexual assault, as well as being denied access to appropriate and inclusive sexual health education and related services.

Second, I note that in both the June 2013 and February 2014 letters the Labor and Liberal-National Governments indicated that, were an LGBTI person seeking asylum to lodge an objection to being detained on either Nauru or PNG because of their laws against homosexuality, there is some possibility that they may not be sent to either place.

From the June 2013 letter:

“Pre-Transfer Assessment is undertaken prior to a person’s transfer to an RPC [Regional Processing Centre] 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 the assurances received by Australia from the RPC governments[xiii], to assess if those charges are credible. If the person makes credible claims against all RPCs, the case is brought to the Minister’s attention in accordance with his guidelines for considering the exercise of his power under section 198AE of the Migration Act 1958 to exempt that person from transfer.”

From the February 2014 letter:

“Any claims made against Nauru and PNG by an IMA [Illegal Maritime Arrival][xiv], including claims concerning the treatment of homosexuals, bisexual, transgender and intersex asylum seekers in either country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed country, or an alternative country, or whether the IMA’s case should be referred to the Minister for consideration of exemption from transfer.”

While this process may appear to offer a small glimmer of hope to an even smaller number of LGBTI people seeking asylum, there are significant problems with any process that requires people to raise these concerns before being sent to either Nauru or Manus Island.

Imposing this requirement presupposes that the LGBTI person seeking asylum involved is aware that they are likely to be sent to one of these two countries, and that they also have knowledge of the criminal laws in both potentially applying to them.

It also requires them to be aware of the process involved in making such a claim (which is highly unlikely, especially in the absence of legal representation), and that they have the ability to raise it, with an appropriate Government representative, in the increasingly short period of time between detention by the Australian Government and transfer.

And it forces an LGBTI person seeking asylum to make this claim in an environment where they may be travelling with family members and friends (to whom they may not be ‘out’), or other members of their community that may not be accepting of different sexual orientations, gender identities or intersex people.

Finally, the June 2013 letter itself acknowledges that there may be some delay between a person seeking asylum protection from the Australian Government, and them making a claim on the basis of their LGBTI status. From that letter:

“Unlike other persecuted groups, sexual orientation and gender identity is not a readily visible characteristic and has to be revealed by the individual. Homosexual and transsexual applicants may, therefore, have only spoken to a handful of people, or none at all, about their sexuality and have kept it a secret. Interviewers and decision-makers should, therefore, not be surprised if an applicant suddenly raises the issue of sexual orientation or gender identity late in an application process, prefaced perhaps by an earlier weak or false claim on other grounds.”

Given this, it makes absolutely no sense to limit the ability of LGBTI people seeking asylum to make claims for protection against their detention on either Nauru or Manus Island, PNG to prior to their detention there – they should be able to make such a claim, and request transfer from these facilities (preferably to be processed in Australia), at any point.

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Overall, I believe that the actions of successive Australian Governments, in sending lesbian, gay, bisexual, transgender and intersex (LGBTI) people seeking asylum to Nauru and PNG, both countries that criminalise male homosexuality, is a fundamental breach of international human rights law.

This breach has flow-on consequences, by leading to increased harassment and abuse of LGBTI people seeking asylum, including by other people seeking asylum and by detention centre employees, and exposing them to sexual assault, as well as denying them access to appropriate and inclusive sexual health education and related services, increasing their risk of contracting HIV.

I submit that, instead of detaining, processing and resettling LGBTI people seeking asylum on Nauru and Manus Island, PNG, the Australian Government must instead ensure that the claims of these people are processed in Australia, where they are not criminalised and where they can be provided with access to appropriate support services.

Thank you for taking this submission into account as part of this Inquiry. If the Committee would like additional information about any of the above, or to clarify any part of this submission, please do not hesitate to contact me at the details provided.

Sincerely,

Alastair Lawrie

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Appendix A

Dear Mr Lawrie,

Thank you for your email of 7 September 2012 to the former Minister for Immigration and Citizenship, the Hon Chris Bowen MP, concerning the treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers. Your letter has been referred to me for a reply. I apologise for the delay in responding.

The Australian Government’s commitment to removing discrimination was demonstrated by its reforms to remove discrimination from 85 Commonwealth laws. These reforms, which passed in 2009, removed discrimination and equalised treatment for same-sex couples in areas of taxation, social security, health, aged care, superannuation, immigration, child support and family law.

The Government is also proceeding with introducing long overdue protections against discrimination on the basis of sexual orientation, gender identity and intersex status. On 21 March 2013, the Attorney-General introduced the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. This Bill will ensure that protections from discrimination for people who are gay, lesbian, bisexual, transgender and intersex are put in place as soon as practicable.

Concerning the transfer of post-13 August 2012 irregular maritime arrivals (IMAs) to Regional Processing Countries (RPC) and the treatment of LGBTI asylum seekers, as a signatory to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention), Australia takes its international obligations seriously and is committed to providing protection to refugees consistent with the obligations set out in the Refugees Convention and other human rights treaties to which Australia is a party. Any person has the right to seek protection in Australia from persecution in their home country.

The Government has signed Memoranda of Understanding (MoU) with the Governments of Nauru and Papua New Guinea which permit people who arrived irregularly by boat on or after 13 August 2012 to be taken to Nauru or Papua New Guinea (Manus Island) for assessment of their claims against the Refugee Convention. Changes to the Migration Act 1958 (the Act) which give effect to regional processing arrangements were passed by the Australian Parliament and became law on 18 August 2012.

The MoU signed with Nauru and Papua new Guinea reaffirms the commitment of both countries to the Refugee Convention, with people transferred to the Regional Processing Country (RPC) to be treated with dignity and respect in line with human rights standards.

The Department of Immigration and Citizenship recognises that human rights abuses and gender-related persecution can also be experienced by people on the basis of their sexual orientation and/or gender identity. As such, an applicant’s gender-related claims may include claims relating to their
sexual orientation and/or gender identity.

In the guidelines set out in the Departmental Procedures Advice Manual 3 (PAM3), for the guidance of interviewing officers, they are advised that

“Unlike other persecuted groups, sexual orientation and gender identity is not a readily visible characteristic and has to be revealed by the individual. Homosexual and transsexual applications may, therefore, have only spoken to a handful of people, or none at all, about their sexuality and have kept it a secret. Interviewers and decision makers should, therefore, not be surprised if an applicant suddenly raises the issue of sexual orientation or gender identity late in an application process, prefaced perhaps by an earlier weak or false claim on other grounds.”

Pre-Transfer Assessment is undertaken prior to a person’s transfer to an RPC 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 RC, the Departmental officer refers to relevant country information, as well as the 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 his power under section 198AE of the Migration Act 1958 to exempt that person from transfer.

A copy of the Minister’s s198AE guidelines and the Pre-Transfer Assessment form and guidelines can be found at the Department’s website at: www.immi.gov.au/visas/humanitarian/whatsnew.htm

Also for your information, I attach a copy of the relevant sections of PAM3 regarding gender and sexual orientation. For a full interactive copy of that document you may need to contact your nearest public library which should be able to provide free access.

Thank you for writing about this matter and I apologise again for the delay in respond.

Yours sincerely

[Name withheld]

Director

Protection Policy Section

6 June 2013

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Appendix B

Dear Mr Lawrie

Treatment of homosexual, bisexual, transgender and intersex asylum seekers

Thank you for your letter of 2 February 2014 to the Hon Scott Morrison MP, Minister for Immigration and Border Protection, concerning the treatment of homosexual, bisexual, transgender and intersex asylum seekers. The Minister appreciates the time you have taken to bring these matters to his attention and has asked that I reply on his behalf. I regret the delay in responding.

As a party to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), Australia takes its international obligations seriously. Australia is committed to treating asylum seekers fairly and humanely, and providing protection to refugees consistent with the obligations set out in the Refugees Convention, and other relevant international treaties to which Australia is a party.

The Australian Government has taken a number of measures to deter people smuggling and to ensure that people do not take the dangerous journey to Australia in boats organised by people smugglers. Under Australian domestic law, all illegal maritime arrivals (IMAs) entering Australia by sea without a visa will be liable for transfer to Nauru and Papua New Guinea (PNG) where any asylum claims they may have will be assessed, and if found to be a refugee, they will be resettled in Nauru and PNG or in another country.

Any claims made against Nauru and PNG by an IMA, including claims concerning the treatment of homosexuals, bisexual, transgender and intersex asylum seekers in either country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed country, or an alternative country, or whether the IMA’s case should be referred to the Minister for consideration or exemption from transfer.

Nauru and PNG are also both parties to the Refugee Convention. The Memoranda of Understanding (MOU) they have signed with Australia on the offshore processing arrangements reaffirm their commitment to the Refugees Convention and to treating people transferred with dignity and respect in accordance with human rights standards.

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 OPC, there is no mandatory obligation under PNG domestic law for Australian officers or contracted services providers to report such activity to the PNG Government or police.

The department notes the release of the reports by both the United Nations High Commissioner for Refugees (UNHCR) and Amnesty International on the Manus OPC. Any reports received by the department will be reviewed, and observations or comments verified. Where reports make practical observations that can be implemented and would improve the operations of the centres, the government will address these in partnership with Nauru and PNG to address any deficiencies in good faith.

Any claims of mistreatment at the Manus OPC would be primarily a matter for the Administrator of the OPC. The Manus OPC is administered by PNG under PNG law, with support from Australia. The PNG Minister for Foreign Affairs and Immigration appoints the Administrator of the Centre (a PNG national) under section 15D of the Papua New Guinea Migration Act 1978 (the Act). The Administrator, who, under the Act has control and management of the Centre (currently the Chief Migration Officer, Head of the PNG Immigration and Citizenship Service Authority) has an Operations Manager at the OPC reporting to him, who has oversight of the day-to-day operations of the OPC.

To assist PNG in the implementation of the MOU, the government has contracted appropriately trained and experienced service providers to ensure that transferees’ needs are adequately met, including through the provision of health and welfare services. Transferees can report any concerns to OPC staff.

Regarding the distribution of condoms, I can assure you that condoms are available at the Manus OPC, and the department’s contracted health service provider, International Health and Medical Service, conduct regular health information sessions on safe sex practices.

Thank you for bringing your concerns to the Minister’s attention.

Yours sincerely

[Name withheld]

Acting Assistant Secretary

Community Programmes Services Branch

9 / 7 / 2014

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Footnotes

[i] Attempt to commit unnatural offences is also an offence under section 209, with a maximum penalty of 7 years imprisonment.

[ii] Article 17: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.

[iii] Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994).

[iv] From an article in New Matilda, celebrating the 20^th anniversary of the Toonen decision (20 Years Since Toonen Changed the World, 11 April 2014): “Perhaps most dramatic of all has been the impact of the Tasmanian UN decision around the world. The Tasmanian decision was the first time the UN had recognised the equal rights of LGBTI people. When the Indian High Court overruled that country’s anti-gay laws in 2009 it was on the basis of the Tasmanian decision. When the UN Secretary-General Ban Ki Moon successfully urged the President of Malawi to release men gaoled for being gay, he cited the Tasmanian decision.In 2011 the UN Human Rights Commissioner, Navi Pillay, described the Tasmanian decision as a “watershed with wide-ranging implications for the human rights of millions of people.”

[v] Letter to Chris Bowen on LGBTI Asylum Seekers

[vi] A copy of the This is Breaking People report can be found here.

[vii] Letter to Scott Morrison about Treatment of LGBTI Asylum Seekers and Refugees sent to Manus Island, PNG

[viii] Guardian Australia, ‘Gay asylum seekers on Manus island write of fear of persecution in PNG’, September 24 2014.

[ix] Human Rights Watch, ‘Australia/Papua New Guinea: The Pacific Non-Solution’, July 15 2015.

[x] Ibid.

[xi] Op cit, Guardian Australia, September 24 2014.

[xii] World Health Organisation Global Health Observatory data.

[xiii] Based on the principles of the Toonen UNHRC decision, these assurances are irrelevant – the continued existence of laws criminalising male homosexuality should be sufficient to prevent the transfer of LGBTI people seeking asylum to these countries.

[xiv] This is the term used in the letter, not one that I would personally use or approve.

alastairlawrie

lgbti advocate & activist, writing about anti-discrimination and vilification law reform, equality and human rights

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