Opening statement by Commission President, Catherine Branson QC to the Joint Select Committee on Australia's Immigration Detention Network

The
Hon. Catherine Branson QC

Thursday,
5 October 2011

Thank you for the opportunity to appear before the Committee this afternoon. The Australian Human Rights Commission welcomes the opportunity to comment on Australia's immigration detention system in this forum.

The Australian Human Rights Commission has undertaken extensive work on immigration detention for many years, including through:

• conducting national inquiries (including the National Inquiry into Children in Immigration Detention)
• monitoring and reporting on conditions in immigration detention facilities, and
• investigating complaints of human rights breaches made by people in immigration detention.

Over the past eighteen months the Commission has visited immigration detention facilities in seven locations. This experience places the Commission in a strong, possibly unique, position to comment on the human rights implications of Australia's immigration detention system.

For many years, the Commission has advocated for key reforms to Australia's immigration detention system to end mandatory, prolonged and indefinite detention and bring the system into line with Australia's international human rights obligations.

The Commission is concerned that the Australian Government's 2008 New Directions in Detention policy has not been adequately implemented. Under this policy immigration detention should be used a last resort and for the shortest practicable period, people should be detained in the least restrictive environment appropriate to their individual circumstances, and there should be a presumption that people will be permitted to reside in the community unless they pose an unacceptable risk.

Currently Australia's migration law requires the mandatory detention of unlawful non-citizens, without time limits and without the ability to challenge their detention in a court. Consequently, people can be held in immigration detention for prolonged and indefinite periods of time. This system of mandatory detention leads to breaches of Australia's international human rights obligations, most importantly the obligation to ensure that no-one is subjected to arbitrary detention.  

For detention to avoid being arbitrary, there should be an individual assessment of whether it is necessary, reasonable and proportionate to hold each person in an immigration detention facility, undertaken when a person is taken into immigration detention or as soon as possible thereafter. A person should only be held in an immigration 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.

The majority of people currently in detention are asylum seekers who have come to Australia by boat. The Commission believes that all people who claim asylum in Australia should have their claims processed in Australia, under Australian law and in accordance with Australia's international obligations.

The government's New Directions policy is not being implemented in practice for asylum seekers who arrive by boat, the majority of whom are held in immigration detention facilities for the duration of processing of their refugee claims. This wrongly conflates the period of a person's detention with resolution of their immigration status, instead of detaining a person on the basis of the risk they pose to the Australian community.

The Commission also has serious concerns about conditions inside some immigration detention facilities. Some immigration detention facilities are situated in extremely remote locations with harsh climates. Some facilities are prison-like, with high wire fences, constant CCTV monitoring and other punitive security measures. Other detention facilities are cramped and overcrowded. Many people in immigration detention have limited access to basic services like health and mental health care, educational opportunities and communication facilities.

During recent visits to immigration detention facilities around Australia, the Commission has seen and heard of the devastating human impacts of mandatory, prolonged and indefinite detention.

The Commission is particularly concerned about the impact of prolonged and indefinite detention on people's mental health. There is a palpable sense of tension, anxiety and hopelessness inside some immigration detention facilities. People in detention have told us of the difficulty of being detained for an uncertain period of time, and of high levels of sleeplessness, depression, feelings of despair and persistent thoughts of suicide and self-harm. We have met with people who have seriously self-harmed and people whose friends have committed suicide in detention. We are extremely concerned that over the past 12 months there have been six deaths in immigration detention facilities, including five apparent suicides.  

People in detention have eloquently expressed to us the impacts of their prolonged detention. For example, on a recent visit to Curtin Immigration Detention Centre, one man in detention told the Commission:

We feel that we have lost everything here – our hope, our health, our memories, our names, our ability to help our families, our minds. We are more than half way to dead now. We are all dying here, from the inside out. We see others who have gone mad and think that we are going there too. What has happened to those that have been taken away? What will happen to us when our day comes?

Another man detained at Curtin told us:

I do not want to complain about DIAC or Serco. But if I go mad in here, I'm no use to anyone. Not to Australian society if I'm allowed to stay, and not to my family either way. When I try to talk with my family I can't because I just choke up now. I cannot speak with them for the pain. Twice I have gone to kill myself and my friends have helped me to not do it. Please be our voice out of here.

Another major and longstanding concern is the mandatory detention of children, including unaccompanied minors. The Commission has welcomed the expansion of the community detention program to include significant numbers of children and their families. However, despite the principle set out in the Migration Act that children must only be detained as a last resort, children are still subjected to mandatory detention, many for prolonged periods of time in secure detention facilities. The Commission also has serious concerns about the arrangements for guardianship of unaccompanied minors who seek asylum in Australia. There is an inherent conflict of interest in having the Minister or his delegate act as the legal guardian for unaccompanied minors when the Minister is also responsible for the detention of asylum seekers and for final decisions as to whether they will be granted a visa.

There are alternatives to prolonged and indefinite facility-based detention. The Commission urges the continued expansion of the community detention program so that all families and unaccompanied minors as well as other vulnerable individuals are placed into community detention.

The Commission also urges the Australian Government to make greater use of community-based alternatives to detention which can be cheaper and more effective in facilitating immigration processes, and are more humane than holding people in detention facilities for prolonged periods.

Australia's system of mandatory, prolonged and indefinite detention is in urgent need of reform. Our submission to this inquiry contains detailed discussion of the reforms that we believe are needed to ensure that Australia meets its international human rights obligations; and to ensure that the mental health and wellbeing of men, women and children is no longer damaged by Australia's immigration detention system.

Thank you.