Protection Deficit: The Failure of Australia’s Offshore Processing Arrangements to Guarantee ‘Protection Elsewhere’ in the Pacific

Abstract

Abstract In 2012, Australia reintroduced arrangements for ‘offshore processing’ in the Pacific, which forcibly transferred asylum seekers arriving by boat to the Republic of Nauru and Papua New Guinea (PNG), purportedly for refugee status determination (RSD). Previous studies have focused on the detention of asylum seekers transferred to these States in ‘regional processing centres’ (RPCs). This article instead provides a factual foundation for more current inquiries into the content and scope of each State’s protection obligations under international law, which have increased in importance since the end of closed detention in the RPCs in 2015 and 2017. The formal legal and diplomatic arrangements established in and between the three States for the transfer of asylum seekers; processing of their claims; and provision of durable solutions will be examined, with reference to the minimum standards required. The article identifies a protection deficit in the legal architecture and bilateral arrangements underpinning offshore processing. Since their inception, the arrangements have lacked clarity regarding the respective obligations of the three States; involved transfers even in the absence of fair and efficient procedures for RSD in Nauru and PNG; and failed to ensure timely access to appropriate outcomes for all transferees (whether determined to be in need of international protection or not). The article therefore concludes that Australia should facilitate readmission to its territory for all people in Nauru and PNG who do not have access to an appropriate alternative outcome. It also suggests that any future attempts to establish third country transfer procedures will require radically different legal and diplomatic arrangements to enhance responsibility sharing and cooperation on refugee protection, and to comply with international law.