In a strange meeting of worlds, the beginning of 2022 saw an international tennis championship colliding with Australia’s historical abuse of asylum seekers. While the detention of a global tennis star in Melbourne’s Park Hotel by Australian immigration authorities made headlines, it also drew attention to the plight of 32 asylum seekers who had been detained in the same hotel for over a year.

Australia has long held a policy of indefinitely detaining asylum-seekers who arrive by boat, with no right of judicial review in Australian courts. Since the policy was instituted in 2012, asylum-seekers (including children) from Afghanistan, Iraq, Syria, Somalia, Myanmar, Sri Lanka and other countries have been detained for over a decade in offshore detention centres in Nauru and Manus Island. This system of inhumane detention has been found to be in breach of human rights by the UN Human Rights Committee and a number of other authoritative domestic and international bodies.

The Australian government has subcontracted the operation of its detention centres to private security companies such as Paladin and Serco, companies which have engaged in the abuse and mistreatment of detained asylum-seekers. The issue of corporate complicity in human rights violations against refugees has been critical in Australia, where the UN Guiding Principles on Business and Human Rights (UNGPs) were essential to advocacy efforts by human rights lawyers and activists who highlighted the abuses suffered at the hand of private security companies. While private contractors and security companies have been subject to both national and international scrutiny, the complicity of the hotel industry in detaining asylum seekers on shore in Australia has received relatively lesser attention from a business and human rights (BHR) perspective. In this article, I seek to examine the limitations of domestic and international legal norms in holding the commercial hotel industry to account for its role in the illegal detention of asylum seekers.

Hotels as sites of detention

The use of commercial hotels as sites of unlawful detention is not unique to Australia, but is also prevalent in Europe and the US. For example, the Trump administration had used major hotel chains to detain children and families taken into custody at the border.

There are over a thousand people in immigration detention in Australia and many of them are detained in commercial hotels, called Alternative Places of Detention (APODs). The refugees and asylum seekers in these hotels have their movements entirely restricted, with guards outside their door not allowing them to step outside the building at all or interact with any of the other patrons. APODs have detained individuals in hotel rooms for several months to years. Since the COVID-19 pandemic, detainees in hotels have not been afforded public health protections due to overcrowded spaces, the inability to socially distance and a lack of access to hand-washing facilities.

There may be a conceptual yet somewhat artificial difference between security companies who actively abuse and mistreat individuals versus hotels, which only provide a place for detention. However, APODs are sub-contracted by security companies such as Serco to detain individuals at commercial market rates, meaning that when detention is prolonged and indefinite, the hotel has a consistent and reliable revenue stream. Through profiting from the inhumane and indefinite conditions of detention, APODs are complicit in the human rights violations of refugees and asylum seekers.   

Human Rights Due Diligence as a tool to hold businesses to account?

One approach in international BHR law to ensure that businesses respect human rights is to encourage, mandate or incentivise the practice of human rights due diligence (HRDD). The second pillar of the UNGPs relies on HRDD as a necessary component for businesses to identify human rights risks early on and mitigate them. Although there are various types and interpretations of HRDD in practice, the UNGPs explain that it is a process by which a company must identify, prevent, mitigate and account for any human rights impacts across its operations and products.

Hotels as sites of detention, however, highlights some of the challenges of HRDD in practice.

A particular issue which was conceptually alluded to by Ouijano and Lopez (2021) is that HRDD may not be useful or practicable in contexts where human rights violations are widespread and systemic, such as in dictatorial regimes or in armed conflict. The commercial hotels and the various other APODs involved in upholding Australia’s system of unlawful detention are a more nuanced example of this scenario. The Australian government has not only established a system of punishing asylum-seekers who arrived by boat, it has made it a criminal offense for anyone engaged with the Department of Immigration and Border Protection to disclose any information obtained by them in the course of that engagement. By providing immigration contractors a shroud of secrecy, the government has disabled a key feature of HRDD—transparency. Transparency is an important strategic feature of HRDD as public reporting about a company’s human rights impacts carries the potential for reputational pressures, divestment, ethical consumer choices and access to information for activists and campaigns.

More significantly, through the Australian government’s framing of immigration detention as an issue of national security and border control, businesses such as hotels may morally distance themselves from the human costs of making a profit. Even when conducting HRDD, such a business may find it easier to deem certain risks to human beings as acceptable if the arrangement is sanctioned, normalized and rewarded by the state as part of an amorphous “national security” goal. Unless a company develops a corporate-wide policy refusing to enter into contracts (or subcontracts) with such a government or governmental department, it is difficult to see how HRDD or mitigation could meaningfully prevent a company’s complicity in such state-sanctioned systems of oppression.

The way forward, particularly in contexts of state-sanctioned human rights abuses, must require a combination of HRDD as well as transparency, strategic advocacy, divestments, participatory and grassroots mobilisation, access to justice and access to remedy. The role of institutional investors and their responsibility to respect human rights through environmental, social and governance (ESG) considerations is essential, particularly with respect to commercial hotel chains and security companies. These were the markers of some of the successes of the actions taken in Australia against security contractors in offshore detention centres in 2016, and it is crucial that hotels and APODs receive the same attention. The events of 2022 should also mark a reminder that Australia must develop a National Action Plan to implement the UN Guiding Principles on Business and Human Rights and to improve the legal, regulatory and policy framework in Australia to protect human rights standards. 

The treatment of refugees and asylum seekers across the world poses a significant challenge for the decades ahead, particularly as other countries are now seeking to adopt the Australian model of offshore processing. As businesses are increasingly contracted for insidious national policy objectives, it is critical that the BHR agenda and activists evolve to meet such challenges.

Vidhya Karnamadakala is an LL.M. candidate at New York University and a Human Rights Scholar at the Centre for Human Rights & Global Justice. Previously, she worked as a solicitor at a refugee legal centre and in the litigation practice of a leading international firm in Australia. She was also a junior consultant at the UN Development Programme.

Read the cited article: QUIJANO, G., & LOPEZ, C. (2021). Rise of Mandatory Human Rights Due Diligence: A Beacon of Hope or a Double-Edged Sword? Business and Human Rights Journal, 6(2), 241-254. doi:10.1017/bhj.2021.7