Victorian Foundation for the Survivors of Torture Annual
Oration

Catherine Branson QC, 23 June
2011

I would like to begin this evening by acknowledging the traditional owners of
the land on which we meet, the Wurundjeri People of the Kulin Nation. I pay my
respects to their elders past and present.

It is a great honour to have been invited to address you this evening, during
Refugee Week. Australia has a long tradition of welcoming and successfully
resettling refugees. Over many years, refugees have made a great contribution to
our economy, culture and social fabric. We are all enriched by the life
experience and diversity that they bring to our communities.

It is important to acknowledge the important work of Foundation House and
other services for survivors of torture and trauma in helping asylum-seekers and
refugees meet the very great challenges that come with resettlement. You provide
a significant community service. I would particularly like to acknowledge the
important work of your Director, Paris Aristotle, who makes a number of
important contributions in his various roles, including as chair of the advisory
body to the Minister for Immigration, the Council for Immigration Services and
Status Resolution.

Unfortunately not all asylum-seekers and refugees are well treated when they
arrive in Australia. Tonight there are approximately 5000 asylum seekers and
refugees in immigration detention facilities around Australia.

I have been asked this evening to provide some reflections on the impact of
immigration detention for asylum seekers and refugees. Some of you in this
audience may have experienced immigration detention. Many of you will have
worked with people who are or have been in detention. You will know from
personal experience of the human impacts of prolonged and indefinite detention.

Tonight I will speak from the experience of the Australian Human Rights
Commission which has monitored conditions in immigration detention for over a
decade. Over the last year, the Commission has visited detention facilities in
five locations around Australia – on Christmas Island, in Darwin, Leonora,
Villawood and Curtin. We have spoken in private with very large numbers of
people in detention. We have heard about and seen first-hand the very
debilitating effects of prolonged detention on people’s mental health.

First, a few basic observations:

• Over the past two or three years there has been a very significant increase
  in the number of people held in immigration detention in Australia.
• People are being held in detention for increasing periods of time. Of those
  currently in detention, almost 70% of people have been detained for longer than
  6 months and almost 30% of people have been detained for longer than 12
  months.
• Many people in detention are suffering deteriorating mental health –
  in recent months there have been five apparent suicides, and a worrying number
  of self-harm incidents across detention facilities, including attempted
  hangings, lip sewing, ingestion of chemicals, people cutting themselves and
  voluntary starvation.
• We have also seen some very disturbing incidents in immigration detention
  centres including riots, fires, and break-outs at both Christmas Island and
  Villawood.

The Commission does not condone violence or the
destruction of property. However, it is important to look behind the
disturbances to try and understand what has caused these incidents.

In particular, we need to look at the impacts of prolonged and indefinite
detention on the mental health and wellbeing of people in detention. These kinds
of disturbances are, unfortunately, what happens when people are locked up for
indefinite periods of time in remote locations. Frustrations are compounded by
uncertainty, delays in processing and perceptions of unfairness in both
scheduling interviews and the outcome of some decisions, and a lack of
information about the progress of applications for asylum.

People in detention are frustrated and distressed because they are detained
for long periods of time without any idea of when they might be released or what
will happen to them when they are. Frustrations are further exacerbated by the
very long periods of time that people are separated from their families.

Let us take, for example, Villawood, which the Commission visited in late
February this year. At the time of this visit nearly half of the people detained
at Villawood had been there for over 12 months.

People we met at Villawood spoke of feelings of frustration, distress and
demoralisation about being detained for a long time, and of the uncertainty and
anxiety associated with not knowing when they would be released. People detained
at Villawood told us of high levels of sleeplessness, feelings of hopelessness,
powerlessness, thoughts of self-harm or suicide, and of feeling too depressed or
distracted to take part in recreational activities.

So why are people in detention for such a long time?

Australia has one of the strictest immigration detention regimes in the
world. It is mandatory for unauthorised arrivals to be detained until they are
either granted a visa or removed from Australia. There is no time limit on a
person’s detention, and they are not able to challenge the need for their
detention before a court.

There are also some specific factors that are currently leading to prolonged
detention including significant delays in processing of asylum applications and,
for some people including significant numbers of recognised refugees, long
delays in obtaining security clearances.

We are particularly concerned about the delays in obtaining a review of a
primary decision about refugee status. In late May, Commission staff visited
Curtin immigration detention centre in the far north-west of Western Australia.
Curtin largely holds single adult Afghan men who were affected by the suspension
of processing. Many of these men have been in detention for over twelve months.
Many of them are in the situation where the first assessment of their
application for asylum has been negative and they are waiting for Independent
Merits Review. Some people have been waiting for their Independent Merits Review
interview for more than six months – this is an unacceptable delay when a
person is held in immigration detention for the duration of the processing of
their asylum application. It is unsurprising that a significant number of these
men told Commission staff that frustration about these delays and ongoing
detention was leading many of them to fear for their mental health.

There are viable alternatives to prolonged detention of asylum seekers and
refugees – alternatives which the Australian Government is obliged to
pursue under its international obligations.

The Commission has welcomed the roll-out in Australia of one such alternative
over the last eight months. In October last year, the Minister for Immigration
announced that the majority of families and unaccompanied children in detention
would be placed in community detention by the end of June, a date we are rapidly
approaching. As many of you will know, community detention essentially means
that people can live in community-based accommodation, with few restrictions on
their movement. By the end of last week, the Minister had approved 1343 people
for placement in community detention. Of these, 1069 people were already living
in the community or were about to be transferred. The remainder have already
been granted a permanent protection visa. Early this year it seemed that the
progress with placing people into community detention was slow. However, it must
be acknowledged that to have placed this number of people into community based
accommodation within a relatively short timeframe is a significant achievement.

The use of community detention is not radical. In moving people into
community detention, the Minister has used powers that have existed since 2005,
established in response to deep public concern about the impact of holding
people, including children, in immigration detention facilities for long periods
of time. The decision to place families and unaccompanied children into
community detention was essentially a decision to implement current government
policy. Government guidelines say that all children should be assessed for
community detention as soon as they are detained. Until recently, this has not
been happening, which has been of serious concern to the Commission.

We believe that other individuals should also be placed in community
detention as a matter of priority. Government policy says that vulnerable
people, including people who have experienced torture and trauma and people with
significant physical or mental health problems should be prioritised for
community detention. In visits to immigration detention facilities over the past
twelve months, the Commission has met a large number of people who have met
these criteria and yet who remain in detention. These people include survivors
of torture and trauma; people with serious mental health issues, including
people with major depression and post-traumatic stress disorder; and people with
serious physical health problems, including people with visible war injuries and
people who have lost limbs.

We continue to urge the government to consider expanding the community
detention program to include these vulnerable groups of people as an urgent
priority.

However, much more than this will need to be done to ensure that Australia
meets its international human rights obligations to people in immigration
detention. Currently, Australia’s system of mandatory and indefinite
detention leads to breaches of fundamental human rights, including the right to
liberty and to be free from arbitrary detention.

For immigration detention to avoid being arbitrary, there needs to be an
individual assessment of whether it is necessary to detain someone. A person
should only be held in a detention facility if they are individually assessed as
posing an unacceptable risk to the Australian community and if that risk
cannot be met in a less restrictive way. Otherwise, they should be allowed to
live in community-based alternatives while their immigration status is resolved.
Such an assessment should be done as soon as possible after a person is
detained. Currently this is not happening – most asylum seekers are held
in detention for the entirety of the processing of their asylum application and
security checks are done at the end of the process.

We know from bitter experience that prolonged detention causes serious mental
harm. We must not forget that there are people in our communities who are still
damaged from their experience of detention up to ten years ago. Our government
is still paying compensation to people whose human rights were not protected
while they were in immigration detention at this time. We know from experience
that we must use community-based alternatives to avoid doing irreparable mental
harm to people in detention facilities.

There are alternatives to prolonged and indefinite detention. Alternatives
that have been tried and tested in Australia and elsewhere. Community-based
alternatives can be cheaper and more effective, and are certainly more humane
than holding people in immigration detention facilities for prolonged periods.
We encourage the government to use all viable alternatives, including both
community detention and bridging visas. Australia’s international human
rights obligations require consideration of the use of community based
alternatives so that detention is truly always a matter of last resort. I would
also like to acknowledge that important research setting out numerous examples
of effective alternatives to detention has just been released by both the UNHCR
and the International Detention Coalition.

In Australia, we have a relatively small population of asylum-seekers, most
of whom should be able to be live in the community while their applications are
assessed. Asylum-seekers and refugees have made significant contributions to
Australian society. Many of those people currently in detention will be found to
be refugees and will come to live in our communities. They, like the many
thousands of refugees before them who Australia has welcomed, will make
significant contributions to life in Australia. We have a responsibility to
ensure that asylum seekers and refugees are not irreparably harmed as a
consequence of lengthy periods in immigration detention in Australia.

Prolonged and indefinite detention is dehumanising – not only for the
people who are in detention; not only for those people working in detention
facilities, doing a very challenging job in very difficult circumstances; but
arguably for us all. We can do better. We must do better.