This week, the Senate’s Legal and Constitutional Affairs Committee was due to release its report on Australia’s offshore processing and resettlement arrangements, most notably with Nauru and Papua New Guinea.
The terms of reference were, in places, sufficiently vague to allow for broader inquiry, but principally the committee was tasked with examining the large contracts granted since 2022 to private companies providing medical and garrison services in PNG and Nauru. Was there due diligence regarding these contracts and the local subcontracts? How was our money being spent? To what end?
For the second time, however, the committee delayed its report. It’s now scheduled for release on July 2. In the more than 100 submissions and the public hearings held last month, it was obvious the committee’s work would be made more difficult by the government’s zealously upheld secrecy and serial invocation of public interest immunity. This is a level of secrecy not unlike that of its much criticised predecessor.
In August last year, the Albanese government signed a fresh memorandum of understanding (MOU) with the Nauruan government regarding the transfer of the so-called NZYQ cohort – that is, the approximately 350 non-citizens whose visas were cancelled, typically after their conviction for serious crimes, but who, having served their custodial sentences, the High Court found to be subject to unconstitutional indefinite detention. Just eight of this cohort have been transferred to Nauru so far.
The memorandum was barely publicised. Despite several requests from Senate committees and media, to this day the details have never been revealed. In the past, at least redacted disclosures of memorandums of understanding have been made.
To justify its refusal, the Australian government has invoked public interest immunity – something it can do unilaterally. When there’s no independent scrutiny of the immunity’s validity, the government can merely gesture to one of its justifications to enjoy the privilege of secrecy.
On matters of offshore processing, the federal government has used this immunity at least a dozen times in the past year. In doing so, it has vaguely cited a variety of concerns to justify its opacity: national security, the health of foreign relations and the protection of commercial interests, to name only a few.
The Law Council of Australia argued last month that, without any of the MOUs being made public, basic questions were unanswered about the futures of those people transferred to Nauru. Currently they are granted 30-year visas and the rights of Nauruan residency. “Information is missing,” Carina Ford, co-chair of the Law Council of Australia’s Migration Law Committee, told the inquiry. “For example, can the visa be cancelled at some point if a crime is committed in Nauru? Is it always going to be 30 years? What is the situation if the government changes – et cetera. It’s a shame that the document can’t be made public, because I think it would give answers, given the amount of public spending that is being put into this situation.”
Also concerning to the Law Council of Australia is whether the haziness of the agreement with the Nauruan government could encourage the refoulement of refugees to their country of origin, in breach of our international obligations.
In international law, there is also the concept of “chain refoulement” – which, in this case, would be our government deferring some of its responsibilities to a government it might suspect of being indifferent to prohibitions on refoulement. Has Australia made contractual obligations with Nauru regarding refoulement? What written assurances have we sought from them regarding their legal duties?
“The committee has before it comprehensive evidence of serious and irreversible harms caused by these arrangements,” Tania Wolff, the president of the Law Council, told the inquiry. “Despite significant public funds being spent on such arrangements, there is no clear evidence that such harm will not continue to be caused. In this inquiry, the Law Council is concerned about the risk of chain refoulement. Australia cannot send non-citizens indirectly to a place where they may be caused harm, including where Australia knows or reasonably suspects that they will be returned to their home country by a third country. The Law Council is concerned that Australia cannot credibly claim ignorance of this risk in relation to its arrangements with Nauru. The president of Nauru, in an interview read into Hansard, appeared to take the view that people sent by Australia to Nauru are not refugees and will be returned to their own countries at some point in the future. This is precisely the kind of knowledge that engages Australia’s non-refoulement obligations.”
Wolff was referring here to a curious matter involving Nauruan President David Adeang. Last year, an interview given by Adeang to a local political staffer was published on Facebook. The interview had taken place not long after Adeang’s government had signed the fresh MOU with the Albanese government regarding the NZYQ cohort.
“When we have billions and billions of dollars of public money being paid under an arrangement, it doesn’t seem unreasonable for the public to see the details of that arrangement.”
The interview with Adeang was conducted in Nauruan, a language spoken by only a few thousand people in the world, and thus its significance was initially overlooked. The Australian government commissioned its English translation – then imposed a decade-long suppression order on its being made public. A separate translation was made for the Asylum Seeker Resource Centre, provided to Greens senator David Shoebridge and independent senator David Pocock, and read into Hansard last November. Per this translation, Adeang said: “If we say 30 years, then 30 years is what they are given. Unless of course, we, your government, find a way for them to move around, for example, they get to go home.”
In the public hearing last month, Labor senator Dorinda Cox cast some doubt over the accuracy of the translation. To members of the Law Council, however, Adeang was wilfully or naively wrong on his assumption about their status.
“With respect to the cohort that the president was talking about, which is the NZYQ cohort, the majority of them, if not nearly all of them, have been found to be refugees and can’t be removed to their home country,” Carina Ford told the committee. “So the statement’s inaccurate in that respect. Whether or not they have committed a crime does not mean that there are no international obligations owed. That is where the MOU needs to outline specifically how those people will be treated.”
Shoebridge argued that the sheer cost of these contracts, funded by public money, obliges some level of transparency. Currently, the Australian government has a contract worth $106 million over five years with International Health and Medical Services (IHMS). Management and Training Corporation (MTC) Australia – a subsidiary of the giant American prison services provider – has a contract for garrison services worth $786 million up until just September 2027. There are currently only about 100 transferees on Nauru for which they’re responsible.
“When we have billions and billions of dollars of public money being paid under an arrangement, it doesn’t seem unreasonable for the public to see the details of that arrangement and, in this case, the MOU,” Shoebridge said.
Representatives for both IHMS and MTC Australia were at pains to suggest they practised due diligence on their own subcontracting of local services on Nauru, as they had reflected on the recommendations of Dennis Richardson, the former secretary of the Department of Defence, who was commissioned to investigate the propriety of government contracts for offshore processing. Richardson’s report was released in 2024.
The peculiarities of Nauru remain, though, regardless of Australia’s procurement arrangements and the probity of accountancy. Nauru is a tiny and isolated country, profoundly dependent on importation. Its major industry is Australia’s immigration policy.
This paper has reported for more than a decade on the distortions Australian money has made on Nauruan society and how control of contracts for support services are politically manipulated. The Saturday Paper once found evidence of the Australian government assisting the Nauruan government to enforce its illegal blacklist against political opponents. Reporting in the Nine newspapers about misconduct in government contracts triggered the Richardson review.
Given the tiny size of the island and its concentration of political power, conflicts of interest abound. It has always been true that Australia’s giant budget for Nauruan processing has inevitably accelerated corruption and entrenched the power of some of its society’s most dubious.
For more than a decade, Australia’s offshore processing arrangements have been conducted beneath an unspoken belief: “out of sight, out of mind”. The government has changed, but the centrality of secrecy to the policy remains.
“Twelve years ago, this Senate committee found that the Australian government had failed in its duty to protect people on Manus Island,” Laura John, the associate legal director of the Human Rights Law Centre, told the inquiry. “Eleven years ago, the government’s own commissioned Moss review uncovered numerous incidents of sexual abuse and exploitation of women held in Nauru. Ten years ago, The Guardian released the Nauru files, with over 2000 incident reports revealing the scale of abuse offshore. Nine years ago, this Senate committee concluded that harsh living conditions and uncertainty contributed to the widespread reports of abuse, self-harm and neglect in Nauru and Manus Island. Eight years ago, Médecins Sans Frontières, the only independent mental health provider in Nauru at the time, published a report showing extreme levels of mental health suffering on the island. Seven years ago, in response to the unfolding humanitarian crisis, the Australian parliament passed the medevac laws, providing a lifesaving pathway for people left offshore to be medically evacuated to Australia.
“It is precisely this history of abuse, mistreatment and secrecy that has created the conditions for systemic corruption to thrive in the Australian government’s offshore arrangements with Nauru,” John said.
Secrecy is necessary for governance, but the invocation of public interest immunity here has been prolific and untested. In each case, it regards hugely profitable contracts in what previous government reports have already declared to be “high-risk environments”.
In a fortnight, the committee will deliver its final report. Among other things, it might have a view as to whether this current formula of secrecy, money and “high-risk environments” remains in the public interest.
