Applying Human Rights in Closed Environments: Practical Observations on Monitoring and Oversight

Speech delivered at ‘Implementing Human Rights in Closed Environments’ Conference

The Hon Catherine Branson QC
President, Australian Human Rights Commission

Monash University, Melbourne

21 February 2012

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Introduction

I begin by acknowledging the traditional owners of the land on which we meet, the Wurundjeri people of the Kulin nation, and I pay my respects to their elders past and present.

I also acknowledge everyone present as a fellow worker for human rights and thank our hosts from Monash University.

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In November 2010, the Australian Human Rights Commission visited the immigration detention facility in Leonora, a small town in the Western Australian goldfields, 830 kilometres from Perth. At the time there were 202 men, women and children in detention there. Commission staff met with a group of Sri Lankan asylum seekers to talk in private about the conditions of detention in the facility. These men and women were initially very hesitant to speak out – not, it appeared, because they feared any consequence from doing so, but instead because they wanted to be satisfied that speaking with the Commission would lead to some practical improvements in the conditions in which they lived.

Commission staff were frank, explaining that the Commission cannot enforce any recommendations made in reports of monitoring visits to immigration detention facilities. We explained to the group what we do. We visit and inspect facilities; speak in private with people in detention and with people who work in detention facilities; publish a report about our visit; and engage in ongoing dialogue with the Department of Immigration and Citizenship about our observations and recommendations.

The group then spoke at length with Commission staff about their experience of detention. During the conversation, one man gave a list of recent improvements to the facilities, including the rapid completion of new crèche facilities over the weekend prior to the visit. This man made a wry observation, greeted with amusement by his fellow detainees. He said:

‘[It is] because of Human Rights coming that they have done all of this. Maybe you could visit more often?’

He then followed up by saying:

‘Even if you don’t visit, perhaps you could write a letter and inform them that you are coming?’

Between June 2010 and May 2011 the Commission conducted seven monitoring visits to immigration detention facilities around Australia. We learnt that monitoring can have a positive impact on the conditions of detention, both immediately in the facility visited, as well as systemically across the detention system.

• I will open my comments today by providing some examples of the impact of regular monitoring of places of detention.

• I will then make some observations about the need to have regular monitoring of immigration detention facilities in Australia, and will discuss what I believe are the features of an effective monitoring system.

• Finally, I will argue that in the context of immigration detention, monitoring is not enough to ensure that vulnerable people are protected from breaches of their human rights. As we have heard already in this forum, some people currently in immigration detention face potentially serious breaches of their human rights which will not be ameliorated by monitoring of the conditions of their detention. The human rights breaches lie, as I have indicated in a number of reports published by the Commission since I have been President, in the fact of their prolonged and indefinite detention. Addressing the human rights issues raised by closed immigration detention in Australia requires advocacy and policy work as well as human rights based monitoring of conditions of detention.

The impact of regular monitoring of detention

Liberty is a fundamental human right. Depriving someone of their liberty carries with it a serious responsibility to ensure that the conditions of detention do not undermine the fundamental human dignity of the person who is detained.

During our visits to immigration detention facilities we have become aware of serious issues affecting individual people in detention. For example, in one detention facility, we met a man who had been moved to a particular part of the facility and had been allocated an upper bunk. This man had epilepsy and expressed concern to Commission staff about his safety sleeping on the top bunk. We raised this issue with the detention authorities and a breakdown in communication between medical and detention staff was cleared up quickly and a solution found.

Monitoring visits can also contribute to improvements in conditions across a whole facility. Aware of the serious concerns for the mental health of people in detention, we engaged a psychiatrist with experience in working with asylum seekers to participate in three of our most recent visits to immigration detention facilities. One of these visits was to a facility where a large number of unaccompanied minors were detained. These young men had not left the facility on an external excursion for several months. Additionally, they were provided with limited educational and recreational opportunities inside the facility. In an interview with Commission staff and our consultant psychiatrist these young men described the impact of detention with little access to meaningful activity. They expressed their significant frustration, some of them wept when describing the impact of their detention. We conveyed this message to local detention staff and to Department of Immigration and Citizenship staff in Canberra. Within a short period of time access to excursions was provided and some of these minors were able to access external schools. I am not claiming that the Commission’s monitoring work was solely responsible for this change. However, I do believe that our intervention contributed to an improvement in their conditions of detention.

The area of mental health provides also an example of the systemic change to which regular monitoring can contribute. The consultant psychiatrist who accompanied the Commission on monitoring visits assisted in identifying a systemic problem in the clinical governance of mental health services across multiple detention facilities. Clinical responsibility routinely fell on the local mental health team leader, usually a nurse or psychologist. We considered this to be inappropriate given the significant number of people detained in these facilities who are likely to face serious mental health concerns or come from backgrounds of torture and trauma. The Commission’s repeated recommendations in this area contributed to a recent restructuring of the clinical governance of mental health services in immigration detention – a senior psychiatrist has been appointed to provide strategic and operational leadership and there is now an enhanced program of visiting psychiatrists. Another example of the Commission’s work contributing to positive outcomes is the re-development of the Villawood facilities, which have repeatedly been justified as necessary to meet the recommendations of the Commission. These are welcome developments – however, ongoing monitoring is needed to ensure that there is a lasting positive impact on mental health service provision within detention facilities.

Effective monitoring requires respectful and yet robust dialogue with the detaining authorities – both onsite immigration department staff, and immigration departmental officers in Canberra. During visits to detention facilities, the Commission has generally found local staff to be hard working and concerned to do what they can to ensure respect for the human dignity of people in detention. There are always issues that we are able to resolve immediately through discussion with local staff. Other issues need to be taken up with Canberra – either because the local staff do not have the authority to effect change, or because we have identified an issue that is a problem across multiple facilities. Our experience is that this dialogue, local and national, before and after publication of visit reports, is critical to achieving improvement in conditions of detention.

Challenges to effective monitoring of immigration detention facilities

I do not wish to overstate the impact of the Commission’s monitoring. It must be acknowledged that there are significant obstacles to monitoring itself leading to improved human rights protection for people in immigration detention.

First, as we heard yesterday, and as the Commission has long argued, Australia’s system of mandatory and indefinite immigration detention itself breaches international human rights standards, particularly the right to be free from arbitrary detention. Prolonged and indefinite detention of vulnerable people in remote locations contributes to potential breaches of other fundamental rights, and has seriously detrimental impacts on the mental health of people in detention. Monitoring of immigration detention facilities does not provide answers to these systemic issues. I will return to these issues shortly.

Second, effective monitoring of immigration detention facilities in Australia has become more challenging in recent years with the exponential growth in the number of immigration detention facilities and of the number of people in immigration detention.

Over the last eighteen months the Commission has only scraped the surface of immigration detention in Australia. We have published reports on visits to five detention facilities, yet there are now over 20 such facilities in Australia.

Reluctantly, the Commission has recently decided that we are no longer able to undertake detailed monitoring and reporting of conditions in immigration detention facilities. This is largely a matter of resourcing – we do not receive any dedicated resources to undertake this work. We will continue to visit immigration detention facilities, but visits will be shorter and we will no longer publish detailed monitoring reports.

Our decision was made within the context that a number of other agencies, including the Commonwealth Ombudsman and the Red Cross, play an important role in monitoring immigration detention facilities. Each of these agencies conducts regular monitoring visits to immigration detention facilities, with differing focal points and methodologies. Over the last eighteen months we have together worked hard to coordinate our work.

However, all of the agencies involved in monitoring have felt the pressure of the increased number of facilities and people in detention, and none is properly resourced to undertake this important work.

Consequently, there are gaps in monitoring of immigration detention facilities in Australia. Some facilities are not visited with sufficient regularity, and in many cases, follow-up visits to assess progress with implementation of recommendations are not able to be made. Given the large number of people in immigration detention and the potential for them to experience serious human rights breaches, Australia needs a properly resourced monitoring system that is able to regularly visit all immigration detention facilities nation wide.

An effective monitoring system

This is one of the reasons why I am convinced that the implementation of the Optional Protocol to the Convention against Torture is necessary to ensure more effective and systematic monitoring of immigration detention facilities across Australia.

OPCAT provides a framework for a monitoring system. It provides that:

• monitoring bodies should be independent

• they should be able to make regular visits, supported by adequate functions and powers

• they should be adequately resourced

• they should work cooperatively with the detaining authorities, and

• they should be able to publicly report on their work.

We were privileged to hear yesterday from Dame Anne Owers of the impact of monitoring system in the United Kingdom. In Australia, the bodies currently conducting monitoring of immigration detention facilities are all independent. However, this independence could be bolstered by ensuring that the functions and powers required for effective monitoring are set out in legislation.

As I have indicated, one of the greatest challenges to monitoring immigration detention facilities effectively is adequate resourcing. The issue of adequate resourcing for effective monitoring should be addressed as a matter of priority during the implementation of OPCAT in Australia.

Another challenge in the context of monitoring of immigration detention facilities is that of public reporting. With the Commission having reluctantly decided to cease publishing detailed monitoring reports, there is currently no monitoring body that regularly publishes reports on conditions in immigration detention facilities. I am not criticising my colleagues at the Commonwealth Ombudsman or the Red Cross, who for reasons of their mandate in the case of the Red Cross, or due to similar resource constraints in the case of the Ombudsman, do not currently publish reports of their monitoring work.

It is important to remember that public reporting is only a small part of the monitoring process – many issues are resolved onsite and do not need to be reported, some issues are better worked on through quiet, behind the scenes, dialogue. However, public reports are very important in terms of transparency – I believe that there is a real public interest in providing a fair and balanced account of the conditions of detention, particularly in the case of immigration detention when there can be significant misinformation and public misunderstanding about conditions of detention.

I urge the Australian Government to move swiftly towards the ratification and implementation of OPCAT.

Issues beyond monitoring: human rights issues in immigration detention

As we heard yesterday, monitoring of conditions of detention will not address all of the human rights issues raised by immigration detention. You may be interested to hear what some of the individuals held in immigration detention have said to us about the impact on them of their detention.

When we visited the immigration detention centre at Curtin in the far north-west of Western Australia, a Sri Lankan man said:

“Please send our voice – we are human beings too, we have never committed a crime. Why are we held here for thirteen, fourteen months?”

A similar request was made by an asylum seeker detained at Villawood in Sydney’s west when we visited there in February this year:

“Please just tell them to solve our cases as soon as possible. This detention is just like a jail.”

A man detained at the Northern Immigration Detention Centre in Darwin, made the following request of Commission staff:

“My humble request. Find a solution for us before we completely lose our minds. So in future I can help myself and my family. So if accepted as refugees we can make a contribution to this country as well. If we are healthy we can make a good contribution to Australian society. If we lose our minds and are not able to help ourselves, how can we make a contribution?”

I now wish to say a few words on the tension between the monitoring of conditions of detention and engagement on questions of policy that have a fundamental impact on the nature and duration of detention.

There are acute policy questions in the immigration detention sphere in Australia. It has always been the position of the Commission that a human rights analysis requires consideration of overarching policy questions, as it is in immigration detention policy itself that many of the serious human rights breaches experienced by some people in detention originate.

In recent months and years we have seen the prolonged detention of certain groups; they include recognised refugees awaiting security assessments and other checks, recognised refugees with adverse security assessments and stateless persons. The detrimental impacts of prolonged and indefinite detention are clear. Many people have told us of the psychological impact of being deprived of their liberty for a long time with no certainty about when they will be released, of delays with the processing of their refugee claims, of the lack of regular communication about progress with their cases, and of perceptions of unfairness in decision making.

The Commission has welcomed the efforts of the Australian Government to place a significant number of people into community detention, and the recent move to release a large number of people from immigration detention on bridging visas. This community-based approach can be cheaper and more effective in facilitating immigration processes and is ordinarily more humane than holding people in detention facilities for prolonged periods.

However, we remain seriously concerned about the high number of people in detention facilities and the length of time for which many of them have been detained. The Commission has consistently argued that human rights principles require that the Australian Government should only detain a person whose individual circumstances make detention necessary. Australia’s policy of mandatory detention should be dismantled as a matter of urgency.

I also would like to emphasise the situation of people who have received adverse security assessments.

People in this situation, including families with children, are facing prolonged and indefinite detention which, I believe, could amount to arbitrary detention. They could potentially experience breaches of other fundamental rights, including the principle of non-refoulement, the right to family unity, the right to be free from discrimination on the basis of citizenship and the right to a fair trial. People who have received adverse assessments have expressed their extreme distress and frustration at their circumstances in interviews with Commission staff during our visits to immigration detention facilities. I urge the Australian Government to take immediate steps to ensure some key safeguards for people who have received adverse assessments, including:

• increased transparency in the security assessment process

• better access to mechanisms for independent review of adverse assessments

• arrangements to prevent the prolonged detention of people who have received adverse assessments.

Conclusion

The consequences of ill-treatment of people deprived of their liberty are far-reaching. Many people now residents of Australia have experienced severe and long-lasting mental harm as a consequence of their experience of conditions of detention that did not meet Australia’s human rights obligations.

Effective regular monitoring of immigration detention facilities is critical to ensuring that the human rights of people in immigration detention are respected. Monitoring can have significant positive impacts on the conditions of detention. However, it is important to acknowledge the significant obstacles to effective monitoring of immigration detention facilities in Australia, including the sheer number of these facilities and the lack of adequate resourcing for oversight agencies.

Finally, monitoring of conditions of detention is not enough. Addressing human rights in immigration detention requires ongoing scrutiny of Australia’s system of immigration detention, and advocacy for a genuinely risk based approach to detention: a system where asylum seekers are routinely placed in the community while their immigration status is resolved and where immigration detention is genuinely used as a last resort.