A Report on Visits to Immigration Detention Facilities by the Human Rights Commissioner 2001

1 Introduction

1.1 Background to this report

1.2 Compliance with human rights obligations

1.3 Conduct of visits

1.4 Overview of immigration detention facilities

1.5 Response by Department of Immigration and Multicultural and Indigenous Affairs

2. Positive initiatives and developments

3. Major issues of concern

3.1 Prolonged detention

3.2 Judicial review of detention

3.3 Access to legal assistance

3.4 Access to general information and contact with the outside world

3.5 Education and recreation

3.6 Accommodation

3.7 Treatment with respect

3.8 Health care

3.9 Mental health issues

3.10 Children’s needs in detention

3.11 Security and discipline

4. Conclusion and recommendations

Preface

Australia maintains a mandatory detention policy which requires that all those who come to our shores without authorisation are detained in immigration centres on arrival, until they are either granted visas or removed to their countries of origin or to another country such as Nauru or Papua New Guinea. Usually these people are asylum seekers, people who have left their own families, homes and countries to seek protection as refugees in Australia.

It is important to realise that in so doing these asylum seekers, under Australian law, have committed no crime. The Department of Immigration and Multicultural and Indigenous Affairs assesses their refugee applications with regard to Australia’s international obligations as a signatory to the United Nations 1951 Convention and 1967 Protocol relating to the Status of Refugees.

So why should the Australian community worry whether these people are being treated fairly while their refugee status is either confirmed or rejected?

The answer is that Australia has previously agreed to international treaties in which we undertook to uphold the human rights of all those in Australia, including those who arrive in Australia seeking protection. To use our own words, it is part of our tradition of a “fair go” and “mateship”. Indeed, Australians helped put together the first human rights’ declarations at the United Nations following World War Two. Australians recognise that those seeking protection are very often fleeing persecution and horror.

Of course we have the right to maintain the integrity of our borders. Australia is a sovereign nation. We want our elected government to make laws concerning who can enter Australia and who can stay in the country.

However, border protection is quite a different issue from asylum seeker protection. Australia’s right to defend its borders and maintain its sovereignty is not being questioned by human rights advocates. Neither is Australia’s right to immigration control.

But it is wrong to suggest that the integrity of the border protection system is threatened by the small, sad, flotilla of leaky boats with their desperately fragile cargo of asylum seekers. We can maintain a system of visas and identity, security and health checks without stomping all over our “fair go” heritage.

Indeed, many countries comparable to Australia detain unauthorised arrivals to establish their identity and to carry out necessary health checks. However, this detention is either not as rigidly applied or is subject to appropriate judicial checks. Sweden, for example, like Australia, has a policy of mandatory detention of unauthorised arrivals. This means that under the law all unauthorised arrivals without exception are detained. However, in Sweden this detention is for a short period of time and is subject to judicial review at various stages. In Australia the detention is often for the long term and has no judicial oversight to prevent indeterminate detention.

Like most common sense things in life, the issue is all about a sensible balancing of “rights”. The threat to our borders has been relatively limited and it is for this reason that the Catholic Bishops of Australia recently criticised Australia’s so- called “Pacific Solution” for reaping a moral cost that was disproportionate to the problem. I am also concerned that the price we are paying in human rights terms is in inverse proportion to the alleged gain accruing to the broader Australian community, for continuing adherence to the policy of long term mandatory detention.

Another issue of great importance to us all is management of our asylum seekers’ mental health. Two points must born in mind here. On one hand many of these people are fleeing a culture of state-instituted violence in their homelands. It is not uncommon for people, whose finer sensibilities have been blunted by continual exposure to trauma, to react adversely when confronted with difficult circumstances, such as lengthy detention. The second point is that statistically many of these people will be released into the Australian community, having been assessed as meeting our definitions of refugees. Surely it would be better for us and them if our management of their mental fragility began earlier, systematically and removed from the artificiality of a detention centre, thereby allowing early commencement in the process of fruitful integration into the Australian way of life.

Finally, Australia has much to gain from adhering to our international commitments to protect asylum seekers, because it reinforces the importance we place on the treaty system. We rely heavily on international conventions and treaties to advance our own interests across a range of areas. It is not to our advantage to ‘cherry pick’ between those treaties we like to observe and the ones we choose not to. Treaties which seek to protect the most vulnerable within our community – whether they have arrived with or without a visa – require the same serious attention as treaties which seek to protect our economic interests.

The key observations of this report are based on my visits to Australia’s mainland immigration detention facilities during 2001. Like all reports of this nature, it reflects the conditions applying at the time and it must be remembered that they may have changed since then.

It aims to remind us all of our responsibility to ensure the human rights of people who come to our shores seeking protection. Although not all of them may be granted refugee status in Australia, all have a right to be treated with humanity and respect for the inherent dignity of the human person during their stay here. While in detention, they are completely dependent on the Australian government’s commitment to maintaining human rights standards. They have limited means of voicing their concerns. This report seeks to give some voice to their experiences and to remind us all of how to translate our commitments into practice.

1. Introduction

1.1 Background to this report

In this report I present some of the major human rights concerns arising from my visits to immigration detention facilities in 2001-2002.[1]

I have undertaken to inspect periodically immigration detention facilities and to evaluate the conditions and treatment of detainees. This builds on the Human Rights and Equal Opportunity Commission’s (the “Commission”) work on immigration detention over many years.

Under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), the Commission has specific functions and responsibilities for the protection and promotion of human rights. These functions include

promoting an understanding and acceptance, and the public discussion, of human rights in Australia (section 11(1)(g))
reporting on action that should be taken by the Commonwealth on matters relating to human rights (section 11(1)(j))
reporting on what action Australia needs to take to comply with the provisions of the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and other international human rights instruments relevant under HREOC Act (section 11(1)(k))
doing anything incidental or conducive to the performance of any of these functions (section 11(1)(p)).[2]

In May 1998, the Commission published its report “Those who’ve come across the seas: detention of unauthorised arrivals”. That report dealt with two broad topics. The first was the policy, enshrined in law, of holding in detention all but a tiny minority of unauthorised arrivals. The Commission advised the Parliament that the practice of mandatory and non-reviewable detention contravenes Australia’s international obligations, for example, under the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). The second topic was the conditions of detention and the treatment of detainees. The Commission advised the Parliament that certain conditions in detention also contravened Australia’s international obligations.

Immigration detention facilities were managed by the Department of Immigration and Multicultural Affairs (DIMA – now called the Department of Immigration and Multicultural and Indigenous Affairs, DIMIA) and operated on its behalf by Australian Protective Services (APS), a federal government agency. At the end of 1997 detention service provision was privatised and the new provider was Australasian Correctional Management (ACM).

In the report entitled Immigration Detention: Human Rights Commissioner’s 1998-99 Review, the former Human Rights Commissioner surveyed the conditions in major immigration detention facilities following the outsourcing of their management function. Although the Commissioner found that there had been some improvements in conditions since Those who’ve come across the seas: detention of unauthorised arrivals, there were a number of human rights concerns raised.

In 2000, three more reports on immigration detention were issued by the Commission. HRC Report No. 10 and HRC Report No.12 were reports of inquiries into particular complaints of acts or practices inconsistent with or contrary to human rights in immigration detention facilities (Perth and Port Hedland facilities, respectively).[3] In the same year the former Human Rights Commissioner also issued a report on a visit to Curtin detention facility in July 2000.[4]

The visits I have conducted over 2001-2002 continue to reveal a number of significant human rights concerns. Following my visits I have raised particular issues concerning each facility directly with DIMIA or where appropriate directly with the Minister for Immigration. In this report I do not aim to discuss all issues raised in each of the individual facilities over this period. Rather, I have chosen to highlight major recurring themes which require more systematic federal government action. I also observed during my visits a number of positive initiatives, as noted in section 2 of this report.

I also wish to point out that my visits during 2001-2002 took place during a period of substantial changes in immigration and refugee policy and of considerable unrest in immigration detention facilities.

In September 2001, the Australian government radically altered its policy towards determining the asylum claims of unauthorised boat arrivals to Australia. The new government policy, backed by legislation [5] and known colloquially as the ‘Pacific Solution’ prevents unauthorised arrivals, who enter Australia at an “excised offshore place”, [6] from having their applications for asylum assessed in Australia according to domestic guidelines. [7] These asylum seekers were instead removed from Australia in subsequent months to Nauru and Papua New Guinea, [8] where they are held in detention facilities pending consideration of their asylum claims. These claims are not being determined under Australian migration law.

As a result of the new policy change, a large number of asylum seekers are currently held in detention facilities in Nauru and Papua New Guinea, rather than in Australia. For example, of several hundred asylum seekers held in Phosphate Hill detention facility on Christmas Island in late January 2002, all but 34 were subsequently removed to either Papua New Guinea or Nauru. [9] Those removed include women and children whose spouses and fathers had already been granted Temporary Protection Visas (TPVS) by Australia and were living in the Australian community.

While this report focuses on the conditions and treatment of people in immigration detention facilities, it should not be taken to endorse the policy of mandatory detention as currently implemented. As long as that policy is retained, the Commission will continue to monitor and report on the treatment of detainees and the conditions of their detention both by receiving, investigating and attempting to conciliate individual complaints and by making inspection visits to all detention facilities.

1.2 Compliance with human rights obligations

The human rights of detainees in immigration detention facilities are recognised by international law in a number of human rights instruments. By ratifying these treaties, Australia has agreed to uphold the rights and obligations contained therein.

Under the HREOC Act, the Commission has functions which relate to the human rights recognised in the international human rights instruments scheduled to or declared under the Act.[10]

For detainees in immigration detention facilities, two of the most relevant of these instruments are the following treaties:

the International Covenant on Civil and Political Rights (ICCPR) (1966)
the Convention on the Rights of the Child (CRC) (1989).[11]

Australia has also ratified a number of human rights treaties which are not covered by the HREOC Act. The most relevant of these for asylum seekers in particular is the Convention (1951) and Protocol (1967) relating to the Status of Refugees (Refugee Convention).[12] Although this Convention and Protocol are not scheduled to or declared under the HREOC Act, article 22 of the CRC provides that Australia must ensure that child asylum seekers “receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth … in other international human rights or humanitarian instruments” which Australia has ratified.

What are the key human rights principles relevant to people in immigration detention facilities?

Non-refoulement

Non-refoulement is the principle that prohibits the forcible return of any person to a country where he or she risks facing persecution on return (article 33(1), Refugee Convention; articles 6, 7, ICCPR; articles 6, 37, CRC).[13]

Freedom from arbitrary detention

No one should be subjected to arbitrary arrest or detention (article 9(1), ICCPR; article 37(b), CRC). The term ‘arbitrary’ refers to more than simply whether the arrest or detention is unlawful. To avoid being arbitrary, detention must be reasonable, necessary and a proportionate means to achieve a legitimate aim.

Detention of children as a last resort

The arrest, detention or imprisonment of a child should be used only as a measure of last resort and for the shortest appropriate period of time (article 37(b), CRC).

Right to judicial review of detention

Anyone who is deprived of his or her liberty has the right to challenge the lawfulness of his or her detention before a court (article 9(4), ICCPR; article 37(d), CRC).

Right to access legal assistance

Anyone who is detained should have access to independent legal advice and assistance (Article 37(d), CRC; Principles 13, 14 and 17 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988)).

Right to be treated with humanity and respect

All persons deprived of their liberty should be treated with humanity and respect for the inherent dignity of the human person (article 10(1), ICCPR; article 37(c), CRC).

Freedom from torture and cruel, inhuman or degrading treatment or punishment

No one should be subjected to torture or to cruel, inhuman or degrading treatment of punishment (article 7, ICCPR; article 37(a), CRC).

The best interests of the child

In all actions concerning children, the best interests of the child should be a primary consideration. States Parties should ensure the child such protection and care as is necessary for the child’s well-being, taking into account the rights and duties of his or her parents or others legally responsible for him or her (article 3, CRC).

Non-discrimination

Everyone is entitled to respect for their human rights without discrimination (article 2(1) and 26, ICCPR; article 2(1), CRC).

How does the Government monitor the human rights of detainees in immigration detention facilities?

There is no independent body in Australia dedicated solely to monitoring Australia’s detention facilities with the power to compel changes to detention practices where warranted.

DIMIA conducts its own monitoring of detention service provision. DIMIA has produced Immigration Detention Standards (IDS) which are scheduled to the Detention Services Contract and comprise one part of DIMIA’s Detention Agreement with the immigration detention provider, ACM. In December 2001, DIMIA issued an exposure draft of revised IDS, which were circulated to potential tenderers for the Detention Service Contract, due for renewal.

During 2001, the Commission met with DIMIA to comment on the IDS and the draft of the revised IDS in light of the Commission’s own immigration detention guidelines. The guidelines, published by the Commission in March 2000, collate the minimum international standards relevant to immigration detention, with the intention that they would serve to improve the IDS.[14]

DIMIA is of the view that the legislative framework, the policies, procedures and the contractual arrangements with its detention services provider, including the IDS, are consistent with those international obligations which Australia has accepted. However, while the draft of DIMIA’s revised IDS incorporate some of the Commission’s comments, I remain concerned that they fall short of minimum human rights standards in some areas, including compliance measures.

In addition to DIMIA’s monitoring process, the Minister for Immigration established an Immigration Detention Advisory Group (IDAG) in February 2001 to provide advice to the Minister on the appropriateness and adequacy of services, accommodation and facilities of immigration detention centres. IDAG can enter and inspect detention centres. However, its functions remain advisory.

In addition, the Commission and the Commonwealth Ombudsman exercise statutory duties and can inspect detention facilities with approval. However, they cannot compel changes to detention practices.

It should be noted that, although detention facilities are managed by a private contractor, the responsibility of ensuring compliance with international human rights standards lies ultimately with the Commonwealth of Australia, through the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA).

1.3 Conduct of the visits

During 2001-2002 I visited the following facilities:

28 February 2001	Woomera IRPC [15]
22 March 2001	Maribyrnong IDC
25-26 June 2001	Curtin IRPC
28 June 2001	Port Hedland IRPC
29 June 2001	Perth IDC
20-21 August 2001	Villawood IDC
21-23 January 2002	Phosphate Hill IRC, Christmas Island [16]
25-26 January 2002	Cocos (Keeling) Islands IRC.

In addition to facilities dedicated to immigration detention, I was also able to carry out brief visits to several State correctional facilities in Queensland, Victoria and Western Australia, which periodically hold immigration detainees.[17]

On 28 November 2001 I announced the National Inquiry into Children in Immigration Detention.[18] To gather information for this Inquiry, two senior staff of the Commission conducted a visit to the Woomera detention facility for five days between 25 and 29 January 2002 at the time of a hunger strike by detainees, including children, which was widely reported by the media at the time. Their findings are outside the scope of this report but will be covered in detail as part of the reporting requirements of the Inquiry.

My visits to immigration detention facilities during 2001-2002 followed a common procedure. [19] An initial request was made to DIMIA to visit on a certain date. DIMIA has complied with this request on each occasion. The inspections consisted of meetings with DIMIA and ACM managerial and operational staff, tour of facilities, meetings with detainee representatives (where these exist) [20] and interviews with randomly selected detainees.

Interviews with detainees covered a range of predetermined questions regarding conditions and treatment, with time for other issues to be raised by detainees. In most interviews with individual detainees the telephone interpreter service was used, with a few exceptions when the telephone service was not available. For example, I was unable to use the telephone interpreting service for interviews in Villawood facility. [21] There was also limited phone access in Cocos (Keeling) Islands. Where TIS could not be used an on-site interpreter employed by ACM was employed, with the permission of the detainee, or a detainee representative with English ability participated in the meeting. In most cases the visits took place over a full day, sometimes over several days.

1.4 Overview of immigration detention facilities

Under sections 189 and 196 of the Migration Act 1958 (Cth), all non-citizens who do not hold a visa – including those who have arrived in Australia by boat or air [22] must be detained until they are either removed from Australia or granted a visa, including a bridging visa. [23]

The majority of detainees in immigration detention facilities are unauthorised boat arrivals. They include people who have not yet applied for protection visas, people who have applied for protection visas and are awaiting a primary decision from DIMIA, people who have appealed to the Refugee Review Tribunal (RRT) and the Federal and High Courts for a review of a decision and/or appealed to the Minister [24] and people who are awaiting removal from Australia.

Immigration detention facilities may also hold other “unlawful non-citizens” such as people who have overstayed visas or breached conditions of visas, and those who are awaiting criminal deportation. [25]

The six dedicated immigration detention facilities currently maintained by DIMIA on the Australian mainland are spread across the country. [26] The following provides a brief summary of each of these facilities and their populations at the time of my visit.

Villawood Immigration Detention Centre

The Villawood facility, situated in the western suburbs of Sydney, was established in 1976. On 19 August 2001 there were 356 people in detention (258 men, 65 women, 33 children). [27] Places of origin of detainees were varied and included Iraq, Iran, Malaysia, China, South Korea and Indonesia.

Maribyrnong Immigration Detention Centre

The Maribyrnong facility, situated in Melbourne, Victoria, was established in 1966. On 22 March 2001 there were 69 people in detention (50 men, 9 women, 5 boys and 5 girls). Places of origin of detainees were China, Iraq, Iran, Sri Lanka, Algeria and Somalia.

Perth Immigration Detention Centre

The Perth facility, situated adjacent to Perth Airport, Perth, was established in 1981. The centre is small, with a capacity of 44 detainees. On 29 June 2001 there were 23 men and one woman in detention. Two male juveniles previously moved to Perth on charges of participating in a Port Hedland riot had recently been moved to a nearby motel in the expectation that their mother, also charged in the riot, would soon be granted bail and be moved to Villawood or Maribyrnong facilities. Places of origin of detainees at Perth included Uganda, India, Afghanistan, Iran, Bangladesh and Sri Lanka.

Port Hedland Immigration Reception and Processing Centre

The Port Hedland facility, situated in the northern coastal town of Port Hedland, WA, was established in 1991. On 27 June 2001 there were 559 people in detention (379 men, 51 women, 90 boys, 39 girls). There were also 18 other Port Hedland detainees in prison in Hakea in Perth, one woman in Bandyup, and her two sons in detention elsewhere in Perth. Places of origin of detainees at Port Hedland included Afghanistan, Iran, Iraq, Sri Lanka and Palestine.

Curtin Immigration Reception and Processing Centre

The Curtin facility, situated about a 30 minute drive from the northern town of Derby, WA, was recommissioned from the Curtin Air Base for immigration detention in September 1999. On 25 June 2001 there were 849 people in detention (643 men, 63 women, 101 boys and 42 girls, which includes 48 unaccompanied minors). Places of origin of detainees at Curtin included Afghanistan, Pakistan, Iran and Iraq.

Woomera Immigration Reception and Processing Centre

Woomera facility, situated just outside the remote town of Woomera, SA, was commissioned in November 1999. On 28 February 2001 there were 483 people in detention (324 men, 40 women, 119 children, which includes 24 unaccompanied minors). Places of origin of detainees at Woomera included Afghanistan, Iraq and Iran.

In addition to these mainland facilities, detention facilities have been established on Christmas Island and Cocos (Keeling) Islands.

Until legislative changes in September 2001, [28] unauthorised arrivals on Christmas Island have been held for short periods of time prior to transfer to the Australian mainland for processing. Until late 2001, all arrivals were held in the island Sports Hall. A Commission visit in December 2001 found that the Sports Hall was overcrowded and inappropriate for stays as long as one month. [29] Another site at Phosphate Hill has since been completed. At the time of my visit in January 2002, there were 211 detainees (105 men, 26 women, 42 boys and 38 girls, which includes one unaccompanied minor) at the Phosphate Hill site. Places of origin of detainees included Iraq, Afghanistan, Sri Lanka, Pakistan, Turkey, Palestine, Iran and Bangladesh.

On the Cocos (Keeling) Islands a temporary facility (a previous Animal Quarantine Station) on West Island was being used to detain unauthorised boat arrivals in the vicinity. West Island itself is small and isolated with extremely basic infrastructure. At the time of visit, the facility was holding 131 detainees (122 men, four women, three boys (which includes one unaccompanied minor), two girls. [30] Places of origin of detainees were Vietnam and Sri Lanka.

Detainees can also be held in any other place approved by the Minister in writing, for example, a hospital, migrant centre or a holding room at an airport. [31] The conditions in these facilities vary from place to place.

1.5 Response by the Department of Immigration and Multicultural and Indigenous Affairs

By letter dated 4 June 2002, the Secretary of DIMIA responded to a draft report on the visits by the Human Rights Commissioner to immigration detention facilities over 2001-2002. That letter is reproduced in full in the attachment to this report; the “specific comments” provided in attachment A to that letter as well as the “specific comments” provided as an attachment to the Department’s letter of 30 April 2002 have been considered by the Human Rights Commissioner on behalf of the Human Rights and Equal Opportunity Commission and have, where appropriate, been incorporated into this report. Additionally, as appropriate, extracts from the “general comments” section of DIMIA’s letter of 30 April 2002, have been incorporated as well as the complete extract of the Department’s “Response to Recommendations” from the same letter.

2. Positive initiatives and developments

Although this report focuses mainly on human rights concerns, I also welcome a number of developments and initiatives taking place in detention facilities at the time of my visits.

General living conditions

At the time of my visits there had been some improvements in previously reported overcrowding in Stage One, Villawood facility, and in Woomera facility.

In the previous Human Rights Commissioner’s 1998/99 review, concerns were raised about the overcrowding of Stage One in Villawood facility. [32] Up to 100 detainees were being held at the time. However, since then an additional 40-bed dormitory had been completed as part of Stage One. At the time of my visit there were 69 detainees in Stage One in total, including the new dormitory.

At the time of visits by the Commission to the Woomera facility in February and March 2000, Woomera facility was holding close to 1000 detainees, whereas in February 2001 there were fewer than 500 detainees in the facility. I was told by one long-term detainee in Sierra Compound, Woomera facility, that the first arrivals to Woomera had been the “vanguard” and that “conditions are now better for the others”. In February 2001, conditions were not as crowded, although the dimensions of the sleeping quarters remained narrow.

Previous complaints at Woomera facility concerning lack of cool drinking water and hot water were also not echoed by detainees in my visit in February 2001, due partly to a reduction in numbers and partly to the installation of hot water systems.

Although I welcome reduction of overcrowding, the provision of adequate accommodation should be addressed as a priority in all detention facilities at all times rather than waiting on arrival flows. Continuing problems with accommodation are addressed in Section 3.

Excursions

During my visits several examples of excursions and outings for detainees came to my attention. Excursions relieve tensions within the facilities as well as providing detainees with some opportunity to understand and learn about Australia, which is especially relevant for those who will be released into the community. For children, it is vital that they be able to participate in activities outside of the detention facilities, especially if recreational and educational activities in the facilities are limited.

I was pleased that regular monthly excursions for children in Villawood facility had been introduced, although it appeared that these were limited to children of school age (detainees less than 15 years of age in Villawood facility). In Woomera facility at the time of my visit there had been a recent excursion for children to a local park.

At Port Hedland facility at the time of my visit in June 2001, the K-Mart in South Hedland had on one occasion opened after hours for detainees to shop there. A family bus of 40 detainees and a group of 37 single males were permitted to go. I was also advised by DIMIA that detainees are offered a shopping trip prior to removal. Other excursions conducted at the centre included fishing and walking on the beach. For the children at Port Hedland, a group of 30 children had been taken on an overnight camp at Pardu Station several months prior to my visit. Approximately 12 girl detainees were attending a local girl guide troop once a week and two older boys had attended some boxing classes at the local Police and Citizens Youth Club.

On Christmas Island detainees had participated in excursions to various locations on the Island. I also observed detainees playing team sports on an oval adjacent to the facility.

Information about the Commission

I note that the revised version of DIMIA’s Immigration Detention Standards (IDS) require the detention service provider to ensure that material advising of detainees’ right to complain to the Commission is displayed prominently around facilities. [33] This is an improvement on the previous IDS which did not refer to the Commission’s complaints mechanism. During my visits to immigration detention facilities I was pleased that in several of the facilities posters, produced and supplied by the Commission, were being displayed. [34] I urge DIMIA to continue to provide information about independent complaints mechanisms in all facilities, by ensuring the display of Commission posters and Commonwealth Ombudsman material and through handbooks provided to all detainees on arrival. [35]

Children’s education

Wherever possible, children should be educated outside the detention facility, in the general school system. I welcome the instances where this has occurred. At the time of my visit, three children from Maribyrnong facility were attending the local school. At Curtin facility, four children had been allowed to attend school at Derby High School. I was told by DIMIA at Curtin facility that children with English language ability and background may be able to move into the open school environment.

Alternative detention trial

In particular I welcome the commencement on 7 August 2001 of a trial of alternative detention arrangements for women and children at the Woomera facility. Under the trial, women and children live in a cluster of houses in the Woomera community, although they are under supervision at all times by ACM officers. The trial is open, on a voluntary basis, only to those who meet certain criteria. That is, volunteers must be:

women with children who have a family member at Woomera facility
unaccompanied minors
unaccompanied women with children and unaccompanied women without children, if there are places available.

All must have an application for asylum under consideration by DIMIA (that is, be at the primary stage of the process), have passed initial health checks and pose no character or management risk.

The trial is limited to a maximum of 25 women and children. [36] In February 2002 the total number of detainees participating in the trial was 15 (five women, six boys and four girls). [37] Although limited in nature, I hope the trial will provide the basis for an expansion of alternatives to detention for child asylum seekers and their families. However, I am especially concerned that families are split up, with men being unable to stay with their wives and children in the alternate accommodation. [38]

Despite the above positive initiatives, the situation in detention facilities is far from satisfactory, as evidenced by the disturbances in many, including those at Woomera and Port Hedland over the last twelve months. Importantly, the above initiatives remain limited to particular centres and are not the result of a coordinated policy across all detention facilities to provide minimum human rights standards. Hence there is nothing to prevent the disparity whereby a child detained at Port Hedland facility may have experienced contact with the local community whereas a child at Curtin may not have had that opportunity.

3. Major issues of concern

During my visits to detention facilities, detainees raised a number of concerns ranging from minor complaints about daily conditions through to perceived serious injustices, including mental health issues. Some of the issues raised were specific to a particular facility. However, many of the issues are common, in greater or lesser degree, to all the immigration detention facilities managed by ACM and reflect systemic problems which need to be addressed.

It has become clear during the course of my visits that many of the more serious issues are closely interrelated. In particular, the effect of inferior conditions or perceived ill-treatment of detainees in detention facilities is significantly compounded by prolonged periods in detention. Similarly, lack of information about the processing of visa applications becomes more and more intolerable as periods in detention lengthen. Not surprisingly, this has a marked effect on the mental well-being of detainees.

In this context it is not surprising that there are instances of self-harm, attempted suicides, protests and destruction of property at a number of facilities. The media-reported disturbances at Woomera IRPC in January 2002, and at other detention facilities over the past few years, are symptomatic of a pervasive desperation and depression felt by detainees. While there are a number of factors which account for this, including detainees’ experiences prior to arrival, the combination of the following issues play a compounding, if not primary, role.

3.1 Prolonged detention

Prolonged periods of time in detention are one of the key problems I identified in the immigration detention facilities I visited. From my discussions with detainees and ACM staff, it is my opinion that while any detention creates strain, prolonged detention increases exponentially the stress and mental health difficulties experienced by detainees. Prolonged detention may also breach international law standards which militate against arbitrary detention.

Immigration detention per se is not prohibited under international human rights instruments provided that it is lawful and not arbitrary. [39] Detention will not be arbitrary where it is for a minimal time and it is reasonable and a proportionate means of achieving a legitimate aim. [40] For example, the United Nations High Commissioner for Refugees (UNHCR) has determined that, due to the hardship involved, detention should normally be avoided. If necessary, detention should only be resorted to in four cases:

to verify identity
to determine the elements on which the claim to refugee status or asylum is based
to deal with refugees or asylum seekers who have destroyed their travel and/or identification documents to mislead authorities of the state in which they intend to claim asylum, or
to protect national security or public order. [41]

Prolonged detention may be more likely to be arbitrary as it will be more difficult to justify such detention as being a proportionate or reasonable means of achieving a legitimate aim or as reasonable and just in the circumstances. [42]

The CRC imposes further obligations on Australia with respect to children. Children should only be detained as a measure of last resort and for the shortest appropriate period of time (article 37 (b)). Not only does this suggest that alternatives to detention should be considered first but that any detention must be for a clearly defined and legitimate purpose.

3.1.1 Length of time in detention

During my visits to detention facilities, DIMIA provided me with statistics as to the individual detainee population at the time of my visit, in addition to the length of time in detention of each detainee. In 2001/2002, DIMIA advised me that the average duration of detention had reduced considerably from the previous year. According to DIMIA, during 2001-2002 the average length of time spent in detention by people who arrived by boat was 155 days (approximately five and a half months). [43] As with any statistics however, caution should be applied when interpreting the results.

Certainly, average times in detention differ by detention facility and fluctuate over time due a variety of factors, including the demographic composition of the detainee population. Hence there may be occasions when a certain facility holds more long term detainees than another facility, which can significantly alter the atmosphere within these facilities. For example:

one family (including children of eight and seven years, and a baby of two months) from Iraq at Curtin facility had been in detention for 19 months. At the end of this process they had been refused visas
a man from Iraq had been in detention in Villawood facility and Curtin facility for a total of 26 months
at Maribyrnong facility, I was told that one man had been in detention for four years
at Perth facility, one man from India had spent close to three years in detention
at Villawood facility, although most detainees had been detained for less than three months, as many as 26 detainees had been detained for over a year.

There are obviously many factors at play which affect the length of detention of asylum seekers. These factors include:

length of time taken to go through the refugee determination process
policy decisions which affect processing times
securing travel documents for returning rejected applicants to their countries of origin or removing them to third countries.

Refugee processing times

At the primary decision stage

In 2000/2001 DIMIA informed me that the average processing times for primary decisions on protection applications had reduced considerably from the previous year.

In late 1999, 80 per cent of protection claims by unauthorised boat arrivals received a decision within seven and a half months. By the last quarter of 2000-2001 this had reduced to 80 per cent of applicants receiving a decision in less than five months (18 weeks). [44] However, although I welcome a reduction in times, 18 weeks is not a short period of time for primary decision processing and means that 20 per cent take more than 18 weeks to process.

Processing times for refugee applications may differ markedly by individual case. Although there may be good reasons why the processing of some detainees takes longer than others, for example the conduct of security checks or verification of identity of those without travel documents, it can be distressing and confusing. The lack of certainty over how long it will take between interviews at the primary stage and why this process takes longer for some than others is especially frustrating for detainees.

There is no proper idea of how long it will take to get interviewed. Some people have had no second interview with DIMA officials yet and other people have been interviewed a second or third time. And it is nearly 50 days (Afghan man, detainee representative meeting, Main Compound, Woomera facility, 2001).

At the Refugee Review Tribunal (RRT) stage

In addition to the length of time for processing of primary applications, detainees may also have to wait several months for decisions on appeals to the Refugee Review Tribunal (RRT).

The average number of days taken by the RRT to finalise applications for appeals by detention cases for the 2000/2001 financial year was 66.7 days. [45] However, this was only an average. In some cases I encountered, the process of appeal to the RRT was taking much longer than anticipated. An Iranian man in Woomera facility claimed he had to wait 14 months for a rejection from the RRT. Another detainee in Curtin stated:

Another thing I want to ask. There are some families who have waited a long time for the result of their RRT hearing. Over three months. I am one of these people (detainee, Curtin detainee meeting, Curtin facility).

Awaiting release after notification of a successful application

I encountered several detainees who claimed to have been granted Temporary Protection Visas (TPVs) but were still awaiting health or security clearance before being released. For example, an Iranian woman with two sons in Curtin facility claimed she was granted a TPV three months earlier, but had not been released yet. DIMIA informed her that she required security clearances before release, yet she claimed she had been subjected to security tests earlier in her application. Similarly, at Port Hedland facility, an Iraqi man who had been in detention for two years eventually received a TPV. However, three months later he had still not been released. These claims may be the result of poor communication by DIMIA regarding the release process, including the need for obtaining security clearances (see below on lack of information). However, for detainees who have already experienced a prolonged period of detention, an additional period of three months awaiting release is lengthy and stressful.

Finally, it should be noted that appeals to the Courts and appeals to the Minister (while in themselves a desirable “system safeguard”), also form part of the refugee determination process, and may add months to the duration of time in detention.

The conclusion I draw from the above is that refugee primary and review processing times are too lengthy. The fact that applicants are detained and need to remain in detention for long periods of time pending determination of their asylum claims heightens the urgency with which this problem must be addressed.

Policy decisions which affect processing

Aside from the operational aspects of assessing protection applications, lengths of time in detention can be affected by policy decisions made by Government. During the period of visits covered in this report several policy decisions have impacted on the duration in detention of certain detainees in the facilities.

Firstly, I draw attention to the length of time in detention of those unauthorised arrivals in the newly created “excised offshore places”. During my visit to the Cocos and Christmas Islands in January 2002, I interviewed a number of detainees who had been detained for several months. Subsequent to my visit, some of these detainees were removed to Nauru and PNG, where they face further detention. The length of time taken to process refugee applications in these countries, in addition to the length of time taken by Australia to make preliminary assessments and provision for removal, would suggest a cumulatively lengthy detention for the individual concerned.

Secondly, late in 2001, following the overthrow of the Taliban regime in Afghanistan, the Government suspended final “decision-making” on applications for protection visas from Afghan asylum seekers, on the basis that the changed situation in Afghanistan may have a bearing on their protection claims. This policy decision was one factor leading to detainee protests in the Woomera facility, as many detainees, already in detention for months awaiting decisions on their applications, were faced with the prospect of delayed decisions and/or removal to Afghanistan. The Government agreed to lift this freeze on final “decision-making” some months later following the hunger strike in Woomera facility in January 2002. Because many of the original protection claims were solely “Taliban based”, the Department then invited the Afghani detainees to provide any other information or material that might engage Australia’s refugee obligations.[46]

Securing travel documents for returning rejected applicants

The most desperate cases among long term detainees I spoke to during my visits were those who had exhausted all possible avenues of appeal for refugee status and were due to be removed from Australia, yet were unable to leave because of difficulties in securing travel documents for them.47 These people are effectively in limbo, being unable to return home (even where they volunteer to do so). For some, this frustration was mixed with a subjective fear of what will face them on return to another country.

I cannot tolerate this camp. That is why I have asked DIMA to send me back. I know I will be punished but I have accepted to go back (Iraqi man, Main Compound, Woomera facility, 2001).

One man had been waiting to return for three months. His frustration with the system, and lack of knowledge about the reasons for the delay, led him to break all the light bulbs in his room.

He just wants to go back. He just wants his freedom. They are taking it away from him, his human rights (detainee, Sierra Compound, Woomera facility, 2001).

Although the problem of securing the safe return of detainees to their countries of origin is complicated and dependent on diplomatic relations with other countries, I am concerned that those awaiting removal should be treated with respect and dignity, and with consideration for their individual circumstances. Detainees whose protection applications have been rejected still enjoy fundamental human rights, which include their right not to be detained arbitrarily.

3.1.2 The consequences of prolonged and indeterminate detention

In all detention centres I encountered detainees who had been held in detention for excessively prolonged periods of time; clearly this extracts an enormous toll on the mental state of the detainees:

The length of time causes stress and people act strangely as a result. I hope they process us a lot quicker (Afghan man, interview, Curtin facility).

My plea to Australian authorities is that Afghans have suffered a lot. They have been in prison and things like that ... I have been here one and a half months. The reason I brought up this point is not because of myself but because I have come across many Afghans who have been here a long time, sometimes over a year. When they have been a long time in detention it has a negative psychological impact on them. It comes from the fact that they come from Afghanistan with that prior history. What I would like to point out is the longer you keep the people the less psychologically healthy they will come out of this process. I’m sure you don’t want a lot of people with mental problems in the society. So if you let them out earlier you will have healthier people who will participate in the society better (Afghan man, interview, Curtin facility).

I note that people who had spent only weeks in detention expressed a positive attitude towards Australia and were hopeful of their future. In contrast, many of those who had spent lengthy periods in detention expressed bitterness and disappointment at their experience in Australia to date.

The indeterminate nature of detention appears to be especially painful.

I’ve been detained here for two years … I have a TPV. Why are they keeping me here? I have had it for three months. Initially I needed a police clearance. They promised it would be soon. But when? If I had known I would be a prisoner I would have stayed in Iraq even if I would have been executed. At least there I would know. Here I am dying a hundred times. Even a prisoner and a criminal knows the sentence: one year, two years then finished. But here we don’t know how long we’ve been sentenced: four years or one year or how long. (Iraqi man, interview, Port Hedland facility).

For children, the effects of prolonged detention mean that they miss out on formative influences in their development. This includes consequences for their health (including mental health), education and ability to develop in a normal environment as required by international law standards (see section on children in detention).

Reduction of processing times at the primary and review levels will alleviate the problems experienced by detainees to a certain extent. However, reducing the lengths of detention will not resolve other human rights concerns. The right to be treated with dignity and humanity, for example, must be respected even if a person is detained for a day, let alone three months. However, as stated above, prolonged and indefinite detention compounds many of the other problems identified in the facilities and must be addressed as a matter of priority.

DIMIA General Comment: [48]

As stated in previous correspondence processing times for primary decisions on protection visas have been significantly reduced. While the Department makes every effort to reduce the time taken to process claims to a primary decision, there are elements that are outside the Department’s control. Some detainees themselves contribute to delays through having disposed of their identity documents en route to Australia.

Establishing the true identity of such persons can take considerable time but this is an essential step in determining whether or not Australia owes them a protection obligation.

Furthermore, agencies other than DIMIA are also involved in character and other checks to ensure people who are granted visas do not present a danger to our community because of security or criminal concerns. Information relevant to these issues may need to be obtained from overseas agencies and the timeframes in which they respond to requests is a matter over which our agencies have little control.

Time in detention is also, of course extended, if after a negative primary decision detainees choose to seek a review of the decision by the Refugee Review Tribunal(RRT) and or to go down the path of appeals through the courts. Unfortunately, although this is not well understood by the detainees, the Department, and indeed the Government, has no control over the length of time that the RRT or the courts take to hear and decide on such reviews or appeals.

3.2 Judicial review of detention

Article 9(4) of the ICCPR and article 37(d) of the CRC provide that detained individuals – adults and children - have the right to take proceedings before a court “without delay” to challenge the lawfulness of their detention. The Human Rights Committee has stated in A v Australia that:

court review of the lawfulness of detention under article 9(4), which must include the possibility of ordering release, [should not be] limited to mere compliance of the detention with domestic law. While domestic legal systems may institute differing methods for ensuring court review of administrative detention, what is decisive for the purposes of article 9, paragraph 4, is that such review is, in its effects, real and not merely formal. By stipulating that the court must have the power to order release ‘if the detention is not lawful’, article 9, paragraph 4, required that the court be empowered to order release, if the detention is incompatible with the requirements in article 9, paragraph 1, or in other provisions of the Covenant. [49]

In that case, because “the [Australian] courts had no power to review the continued detention of an individual and to order his/her release”, any review of A’s detention was merely formal and unable to succeed and therefore breached article 9(4). [50]

In a number of cases, the Human Rights Committee have found a breach of article 9(4) where detention occurred for a number of days without the possibility of court review. [51]

However, in Australia, judicial review of immigration detention is very limited as the detention of unauthorised arrivals is lawful under the Migration Act 1958 (Cth). Asylum seekers are not able to challenge their detention on the basis that there has been a violation of their human rights under any international instrument to which Australia is a party including the ICCPR or CRC. Without this possibility, there is little to pressure government to speed up processing times, to allow for either the release of a detainee or safe removal to a third country.

3.3 Access to legal assistance

International human rights standards outline the right of detainees to information regarding their detention and their right to access legal assistance. In my experience, the timely and accurate provision of information is not only a human right, but is also an effective means of informing people of their situation and minimising detainee stress.

Article 10(1) ICCPR states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Other international instruments, notably the United Nations Standard Minimum Rules for the Treatment of Prisoners (SMR) and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles) inform the interpretation of article 10.1 of the ICCPR.[52]

The Body of Principles state that detention authorities should inform detainees, within a reasonable period from the date of detention and in a language and in terms they understand, of the reasons for their detention and their rights in connection with detention, including the right to legal assistance and advice and to the services of an interpreter when needed (Principles 13, 14 and17).

Rule 94 of the SMR points out that people in administrative detention, such as immigration detention, should be treated no less favourably that untried prisoners. It is unthinkable that an untried prisoner in Australia would not be informed of his or her right to access legal assistance.

In addition, article 37(d), CRC provides that children have the right to “prompt access to legal and other appropriate assistance” where they are detained. [53]

During my visits to detention facilities, a number of detainees complained that they had not been fully informed of their status and the progress of their asylum applications, including their right to access legal assistance. Many detainees interviewed indicated they had never been informed of the reason why they were in detention.

Until we came for an interview they [DIMA] didn’t give us any kind of information. We didn’t know anything about anything really. When we asked for a solicitor, they said we’re not entitled (Iranian man, detainee group interview, Port Hedland facility).

In Woomera facility, I was informed by detainees in the Main Compound, which was composed mostly of recent arrivals from Afghanistan, that initially DIMIA had explained about the procedures at the facility. However, detainees felt that this was ‘not enough’ (detainee representative meeting, Main Compound, Woomera facility). Information may have been given out on an ad hoc basis, with some people reporting to us that they had received information about their status when they arrived and others that they had received no information. Detainees did not receive any written information.[54]

Lack of information about the application process leads to uncertainty and worry among detainees, as well as misinformation, confusion and anger.

A comment from an Iranian man who had been in Curtin facility for seven months illustrates how the combination of a lack of information and restrictions on outside contact can lead to frustration.

I did not have from the beginning any lawyer. I was screened out. The only two options that Mr XX [DIMIA officer] gave us, either a private lawyer or return to the camp. I have suffered mentally in Foxtrot [separation detention for those screened out]. We were totally cut off from our families with no telephone, no contact with media, no correspondence in or out. Mr XX wouldn’t allow us to contact our families to send us some money. He said ask the lawyer to contact them. Many people were so distressed they climbed over the fence to phone their families. Once I was caught and sent to Derby [police lock up] for five days (Iranian man, interview, Curtin facility).

Part of the problem appears to lie in the interpretation of the Migration Act 1958 (Cth). Section 256 of the Act requires the provision of legal assistance on request. Section 193 requires all detainees to be notified of their right to access legal assistance with the exception of those who have arrived unlawfully by boat or plane [emphasis added]. DIMIA considers that the Migration Act places the onus on the unauthorised arrival to ask for protection and to seek access to lawyers if they so wish, but does not require the officers to notify the detainee of the right to make a request.[55]

Unauthorised arrivals are held in what is called ‘separation detention’ for a period of time after their arrival. [56] This means they are detained in a section of the detention facility separate to other detainees who may have already applied for protection visas until they are ‘screened in’ to the refugee determination process by DIMIA. The reasons for separation include health and quarantine checks. However, one of the main reasons for separation detention has been to ensure that new arrivals do not learn from other detainees about their right to make an application for a protection visa and to request legal assistance. I note that a swift and fair asylum procedure could itself determine who is a genuine refugee, without the need to recourse to detention, apart from initial health, identity or security checks. In light of the recent changes to the Migration Act (see Introduction), asylum seekers who enter Australia within the excised zones are not entitled to apply for a protection visa (unless by Ministerial discretion). This removes the original rationale for separation detention for these detainees.

As contact with the outside world is limited in separation detention, detainees are reliant on DIMIA or ACM officers for information regarding their status.

Once applicants are ‘screened in’, some detainees continue to be uninformed about the process of their applications for primary assessment or review, or reasons for delay.

People do not even know if they are going to have another interview. There is a lot of uncertainty. They do not know why it hasn’t happened (detainee representative, Main Compound, Woomera facility, 2001).

When questioned whether he had been to the RRT, one man interviewed in Port Hedland said

I was accepted [by the RRT]. I don’t know why I’m still here in detention. Nobody explained the process. They just said to ask my friends (detainee interview, Port Hedland facility).

Detainees on Christmas Island and Cocos Islands, who had all arrived since these areas were excised from the migration zone (see Introduction), were especially unsure and anxious about their status.

Another problem involved the difficulty of regular communication with legal representatives and concerns with the quality of legal assistance.

Detainees in immigration detention facilities who make applications for protection visas are provided with assistance by DIMIA through the Immigration Advice and Application Assistance Scheme (IAAAS), since legal aid assistance was substantially removed in 1998. This includes assistance in preparing and lodging applications for visas, and assistance with applications to the RRT. However, it does not include assistance with applications for judicial review through the courts. Concerns were raised with me about this service.

I have a solicitor that I cannot call him a solicitor. He is only copying information or the statement. I believe he is only talking the information. Over the phone I don’t know whether he is my solicitor or not. For example, the documents I had sent from Iran recently they said I cannot do anything with them because the translation would be very expensive. I had to ask in Iran to secretly translate it for me. If the solicitor cannot do these simple things then what are they going to do? (Iranian man, interview, Port Hedland facility).

An Afghan detainee said

The IAAAS providers do not really attend our problems seriously. One major problem we have is the lack of interpreters. When the courts want something – our defence or something - in English, we cannot do that and when we ask the solicitor or the management nobody does that for us. When I discovered they were not doing a good job and I was very scared for my case, I had to hire a private lawyer. My family were forced to sell their possessions, their television and everything, to raise the money.

For RRT I had to hire a private lawyer (Afghan man, group meeting, Curtin facility).

Detainees who have been ‘screened out’ by DIMIA in the initial process are not entitled to IAAAS at all.

To send a fax, a detainee has to make a request to the ACM or DIMIA office, and be able to pay. This may cause delays and misunderstandings.

What is a telephone? What is communication? It is prohibited for us. Fax or letter you require money. If you want to send a fax to your lawyer, one page costs $5. Second page will be $6 and then it increases and so on. We haven’t got money and so we are lost. Plus to send the fax it takes one week. You have put it in the box to start the process. If it’s urgent you can have a problem because they don’t receive it on the due date (Iraqi man, interview, Curtin facility).

DIMIA General Comment: 57

You suggest that detainees are not kept informed of their progression through the application and appeal process and you recommend that applicants for refugee status be regularly updated on progress. It is expected that their IAAAS provider funded by the Government keeps detainees informed of progress of their application. The Department does however recognise the importance of detainees being able to communicate regularly with staff about any concerns they might have in this regard. As the Minister advised you in his letter of 1 February 2002 processes have been put in place in all centres for more frequent, regular contact with detainees. These processes are now being enhanced through a proactive program of scheduled meetings with individual detainees on a regular basis that includes discussion on the status of their claims.

3.4 Access to general information and contact with the outside world

The lack of access to information concerning application processing is mirrored in a general lack of access to information from the outside world for many of those in immigration detention facilities. Nothing in their detention should prevent detainees from exercising rights to communicate with their families, communities, legal representatives or relevant refugee and human rights organisations. In particular, detainees should be allowed to inform family members, whether in Australia or overseas, of their safe arrival in Australia, within a short period of arrival. Nor should detention prevent access to newspapers, magazines and television news reports.

Being able to access information and communicate with the outside world are key components of the requirement that detainees be treated with humanity and respect for the inherent dignity of the human person (article 10, ICCPR).[58]

For those in separation detention in particular, contact with the outside world is sometimes unreasonably restricted.

For example, at the time of my visit to Woomera facility, the Main Compound was holding detainees who had been ‘screened in’ following initial checks and those who had not been ‘screened in’ as yet. This meant that conditions of separation detention were being imposed on all those in the Main Compound, including no phone access.

Because the compound at the moment contains both those who have been screened in and those who have not, it means that there is no access to newspapers, television or phones. This has been going on for two months (detainee representative, Main Compound, Woomera facility).

Some detainees complained that they had been unable to make a phone call to alert their relatives of their arrival in Australia. One Iraqi woman had been in Woomera facility for two months without making a phone call to her two children she left behind. Although detainees had been offered one fax to contact relatives, detainees from Afghanistan said that their families did not have access to faxes. [59]

It is necessary to call our family because most of us do not have faxes at home and even if we did we don’t remember the fax number. We need to telephone our family to let them know that we are alive and safe here. And still some people have not been interviewed (detainee representative, Main Compound, Woomera facility).

Many people I spoke to had spent long periods in separation detention. One woman told us she had spent seven months in separation detention in Port Hedland facility. She only was able to phone her family once she was transferred to another section of the compound.

They didn’t believe that we were still alive because they haven’t heard anything about us for seven months (detainee, detainee meeting, Port Hedland facility).

Another man from Iran had spent five months in separation detention in Port Hedland. When asked if his family knew that he was in Australia, he replied that ‘we didn’t ask to write a letter in the closed camp and no one offered us that we could’. He phoned his family after coming out of separation detention.

Even for detainees who had been screened in, phone access is sometimes problematic, especially in the more remote facilities. In Sierra Compound, Woomera facility, there were complaints that the phone was broken for a long time and that calls were restricted. [60] Detainees could only use the telephone with a telephone card. It can be expensive to make long distance calls.

A phone card costs us $22 and lasts seven minutes overseas. We can only call externally, we can’t call inside Australia. Only recently have we been able to phone inside Australia. Only two telephones for the whole of Australia. And people don’t have any money left. (detainee representative, Sierra Compound, Woomera facility).

In Villawood facility, I received complaints of non-connected lines for the third time during a Commission visit. Subsequently, my officers were unable to contact detainees on several occasions as phone lines rang out or went dead.

Detainees in Cocos (Keeling) Islands facility have been unable to access phones. There is only one phone at the ACM office which also doubles as a fax.

There was no pay phone in Phosphate Hill facility on Christmas Island at the time of my visit. Newly arrived detainees were unable to make a phone call on arrival, although detainees were given a chance to write a letter or fax.

As phones are the main lifeline to the outside world for detainees in remote facilities lack of access causes great concern and stress, and is completely unacceptable. Detainees in these facilities receive few visitors as the facilities are so inaccessible.

In addition to limited phone access, detainees in separation detention do not usually have access to magazines, newspapers or television news. Similarly, on Christmas Island the detainees cannot access television, only videos.

The only rationale for this restricted access to outside news for those in separation detention must be to prevent detainees knowing of their right to apply for legal assistance or to apply for protection. This seems especially superfluous in the case of those detained on Christmas Island and Cocos (Keeling) Islands, who are now prevented for applying for protection under the Migration Act.

3.5 Education and recreation

The provision of materials and facilities for educational and recreational purposes is not only consistent with international human rights standards for detainees, but is also a sensible approach to the management of detention facilities. For long term detainees in particular, meaningful activities may alleviate stress. Considering that a large number of detainees on the mainland at least, would be likely to be released into the community on TPVs, it is essential that they be facilitated to use their time as constructively as possible.

In my visits I found that there were minimal educational activities available to adults, consisting mostly of English lessons. [61] In some facilities detainees can use a computer room and attend computer lessons. [62]

There were some complaints from detainees about English lessons.

Before when I first arrived I went there to practice my English. It helped a little bit. But the same program is repeated every 2-3 months. Now I prefer to learn and read myself. [63] With population pressure and not everyone has the same level, it’s hard for any detainee to learn (detainee interview, Curtin facility).

English classes for adults is just one hour a day and some of the teachers are detainees so it doesn’t satisfy us because we want to become very familiar with Australian language (detainee representative, Main Compound, Woomera facility 2001).

As a result it appears that detainees become disheartened, especially long-term detainees, and stop attending.

I want to try to educate myself. But they don’t facilitate us. We are asking for a teacher. They offer us so little money that no teacher will come for that. In prison it was better. A teacher comes once per week for one hour. She comes for free. One hour is not enough for us, so no one attends (detainee interview, Perth facility).

At Cocos Islands facility, there were no formal English classes. An ACM officer who spoke some Vietnamese was providing English classes to adults and children in the Vietnamese compound, but there were no educational activities for detainees in the Sri Lankan compound. Activities were mostly limited to watching television and videos (there was no library).

At Christmas Island Phosphate Hill facility educational services had not been fully established. An ACM English teacher had arrived at the facility three days before our visit and was conducting lessons divided into different groups.

To be seen as relevant and worthwhile, English classes for both women and men should be conducted by qualified English teachers.

Opportunities for further education, including technical and vocational education should also be provided where possible. This is especially important for juveniles, who do not receive school education in many facilities. [64] They are given no opportunities for further education beyond the adult English classes. Boredom among young detainees was common.

Recreational activities in immigration detention facilities are also limited, although there have been some recent efforts in some facilities to run a variety of programs.[65] However, various initiatives are not consistent across facilities.

3.6 Accommodation

At the time of my visits I found that immigration detention facilities are, in general, not equipped for long-term detention. This is reflected in dormitory and demountable-style accommodation arrangements, paucity of educational and recreational programs and a general atmosphere of uncertainty and insecurity. The ‘contingency’ nature of these facilities becomes even more apparent when the numbers of detainees increase at particular facilities.

The ‘dongas’ or small demountables used as sleeping quarters which I observed in a number of facilities were narrow and temporary in nature. I heard several complaints about the size of these sleeping quarters. For example in Curtin facility I was told that five or six family members were living in a small donga designed for one person. Another detainee complained that 18 people were sleeping in another (detainee group interview, Curtin facility). Accommodation for those not in family groups is mostly shared with others, often in larger dongas or dormitories. As a temporary measure this may be acceptable. However, for a matter of months the lack of privacy may become unbearable.

This contrasts with the conditions of State prisons I visited, which in general provided detainees with more privacy and access to organised activities than in immigration detention facilities. For example, remand prisoners in Arthur Gorrie Correctional Centre are provided with separate accommodation, personal lockers and an organised program of training and educational activities.

Some detention facilities in particular are, in my view, inappropriate for anything but the very briefest initial periods of detention, especially for particular groups of detainees. For example, as mentioned in Section 2, the Commission has recommended previously that detainees not be held any longer than for one month in Stage One in Villawood facility due to repeated instances of overcrowding. Although overcrowding had reduced recently at the time of my visit in August 2001, I found several examples of detainees who had been in Stage One for over six months.

Woomera facility is particularly environmentally harsh and unwelcoming, with barely a tree to provide shade or atmosphere and extremes of both heat and cold at certain times of the year.

The facilities on West Island of Cocos (Keeling) Islands are completely inappropriate for anything but initial health checks, which should take a matter of weeks if not days.

The accommodation provided consisted of a converted Animal Quarantine Station. Dormitory windows did not have fly screens attached. Showering facilities were basic. There was only one washing machine and no driers available for 131 people. Yet at the time of our visit in January 2002, some detainees had been detained in this inappropriate place for over five months.

3.7 Treatment with respect

Every detainee should be treated in a humane manner and with respect for the inherent dignity of the human person (article 10, ICCPR). To be treated with respect not only includes attention to a person’s physical needs. Indeed, a person’s overall well-being is often most markedly affected by less tangible aspects of respectful treatment. For example, adverse or negative comments by an ACM staff member can impact severely on the mental health and attitude of a newly arrived asylum seeker.

During my visits I heard some positive comments from detainees concerning their treatment by detention officials. For example, one woman in Port Hedland told us

To tell you my opinion, they treat us always with respect. If you respect a person they respect you back. They never treated us badly (interview, Port Hedland facility).

I note that induction training of ACM officers has included several components conducted by organisations with experience in asylum seeker issues. For example, Commission staff have participated in the induction of ACM staff for several years. Similarly, the Refugee Council of Australia has provided some training of staff on refugee issues. I welcome this training as a useful step in improving communication and understanding between detainees and detention officials. Appropriate training and supervision is essential to avert negative interaction.

However, despite these examples of training, I also encountered many complaints from detainees that they are treated with a lack of respect by detention officials and I consider it to be a problem which needs to be addressed on an ongoing basis. It has a cumulative affect, leading to stress and tension in the detention environment.

For the most part this alleged bad treatment consisted of verbal comments and abuse.

As a whole, the treatment of people is not very good. They look at us as a criminal. Even though we are very educated – some doctors, some school teacher, some worked in a bank, some managers – even so guards look at us as animal or uneducated people. They look at us as criminals. We try to make friends with them, they reject us.

Do they use violence? No, no hitting. But verbal language is the same as physical. The longer you live here you get down. You need someone to talk nicely to you (Iraqi man, Curtin facility).

Yes, there has been some officers who have used abusive voice. Not just to me – I have seen others. I have witnessed once a few officers jumping on a weak person that only one officer could manage and putting him in handcuffs (Iranian man, interview, Port Hedland facility).

One Iranian woman’s husband was in prison in Broome:

He says the prison conditions are much better than in the detention centre. One example: the officers treat him with dignity and respect. That’s why he’s happy there even though the place is older than this (Iranian woman, interview, Curtin facility).

In Woomera facility, those in long term detention in Sierra Compound claimed that the officers search their rooms every week. This lack of privacy is humiliating.

If we are asleep they say wake up, we want to search your room. They look through our private papers, addresses and photos of our families. We feel our human rights are violated (detainee representative, Sierra Compound, Woomera facility 2001).

In particular, complaints about ill-treatment seemed to escalate at particular times, for example when various “incidents” occur at the facilities. For example, an Iranian woman said she had been hit on the back a few times with a baton during a riot at Curtin facility in 2001. As a result her husband intervened and he was subsequently jailed. She says she lodged a complaint with DIMIA but “nothing happened”.

Several people expressed fear of reprisals for speaking to the Commission.[66] In Woomera facility in 2001 I was told that officers confiscate any information about the Commission. Detainees were frightened of the consequences of receiving written information from us. During my visit to Curtin facility, a detainee reported to me that he was threatened with punishment by an ACM officer because he had attempted to show me an example of overcrowded accommodation.

Particular incidents have added to an atmosphere of unease and a feeling of insecurity at certain times on the part of detainees. For example, prior to my visit to Port Hedland facility, a swastika had been painted over artwork by detainees in the mess hall. It was alleged by detainees that this was painted by an ACM officer.

In addition, in terms of general atmosphere, it is common practice for detainees to be referred to by their assigned ‘number’ rather than by name, with the exception of the Perth facility where detainees reported that names were used. This practice has the effect of dehumanising detainees and adds to their feeling that they are not respected.

3.8 Health care

In all facilities I visited there were certain basic health care services available. All services had on-site nursing staff. All services on the mainland facilities, except Perth facility, had General Practitioners on staff, although in some facilities this was on a part-time or rotational basis.[67]

On Cocos (Keeling) Islands facility detainees had access to the local GP service. This was a husband and wife team who also serviced the residents of the islands. However, there were no hospital or specialist services available. Christmas Island is approximately a one hour flight away and is a weekly service only. It is arguable that the local GPs would not be able to manage any potential health crisis among the detainee population.

Reports about the accessibility and quality of health care in the facilities were mixed. Some detainees praised the service they received, especially for the more serious cases which required transfer to hospital. On the other hand, a common and persistent complaint was the feeling among many detainees that their illnesses are not being treated seriously.

The nurse doesn’t help anything. All she says is take a glass of water and Panadol (detainee, group meeting, Port Hedland facility).

If we have a problem, they just don’t care. They just give sleeping tablets so you can go to sleep at 7pm (detainee representative, Perth facility).

The clinic is well-staffed but the staff do not give much medication. Mostly just a Panadol or sleeping pills and water. Water is recommended for everything (detainee representative, Curtin facility).

In Woomera and Curtin facilities there were complaints that there is a long wait to see the doctor.

Sometimes we want to see the doctor but there is a long list. So we might have to wait for a week. By the time we get to see the doctor, some of us have already recovered (detainee representative, Main Compound, Woomera facility 2001).

Generally speaking the clinic is not bad. You have to be really sick to get attention. There’s a lack of doctors. There’s only one doctor for 900 people. You have to wait a long time to see a doctor (Iranian woman, interview, Curtin facility).

Access to, and quality of, dental services in particular are universally complained of. In the remote facilities – Curtin, Port Hedland and Woomera - a locum dentist is flown in, approximately every three months. Due to cost and limited dental equipment, detainees only receive certain types of dental treatment. It was reported by detainees that there are many extractions performed. Some detainees would not go to the dentist with a toothache as they feared an extraction.

Dental services are extremely bad. They just extract and there’s no special place for it. I have had one tooth extracted. It’s just a plastic chair is beside the clinic behind a drape. Because I had to wait a long time, I had already an infection. He pulled it out and I still had an infection. A week later I had to return for treatment. I was told there is no choice of filling – only extraction. I’ve been here eight months and I’ve seen the dentist come here twice in that time (Iranian woman, interview, Curtin facility).

Uneven use of interpreters for medical visits was highlighted by detainees in a number of places I visited.[68] On-site interpreters are often over-stretched and are thus not used as a matter of course. There are no on-site interpreters at Port Hedland facility. Telephone interpreters also did not appear to be used as a matter of course.

Because I can’t speak the language really well, I’m not comfortable or confident to talk to the nurses or the officers here. She doesn’t use an interpreter (Iraqi woman, interview, Port Hedland facility).

I’ve got some problems – my tooth. They haven’t done anything for it. The dentist checked my teeth and he said it needs cleaning and he did it. The nurse herself said I need to see a dentist and she organised it. But no interpreter was used and the guards said something but I don’t know what anyone said (detainee interview, Perth facility).

In Woomera facility, I was told that were not enough interpreters available for women.[69]

The Arabic speakers have got a female interpreter at the moment but there is no Farsi female interpreter and sometimes they prefer to deal with a female (detainee representative, Main Compound, Woomera facility 2001).

The telephone interpreting service is not a viable option on the Cocos (Keeling) Islands. At the time of my visit there was an ACM guard who could speak some Vietnamese and DIMIA had just flown in an interpreter for the Sri Lankan detainees (primarily to assist the Australian Federal Police in their investigations into people smuggling).

The lack of interpreters is especially felt by minority languages. At Phosphate Hill on Christmas Island, for example, there was no on-site interpreter service available for Kurdish detainees from Turkey. The telephone interpreter service is not used as a first resort.

3.9 Mental health issues

One of the most important and disturbing issues in all detention facilities is the prevalence of depression and stress among detainees. In all facilities I visited I met with detainees who had experienced or were experiencing mental distress themselves or observed mental distress among others.

From my observations most of the ladies that I have been talking to, all of the ladies just cry. They are really depressed. I have developed this conditions that when I am depressed I tremble, my arms shake. I have checked with the doctor but they seem not to do anything about it (Iranian woman, detainee representative group, Curtin facility).

I’m a father of two teenage children. My 15 year old son sleeps only with the help of sleeping pills. Both of my children are severely depressed after five or six months in the camp. My daughter is 16 (Iranian man, detainee representative meeting, Curtin facility).

Mental distress is especially pronounced among long term detainees.

It’s about 16 months since I arrived here. I’ve been under a lot of pressure. My life has been taken away from me. Within this 16 months I have become mentally and also physically ill. Every day my physical well-being is getting worse. … I’ve become a useless person who wishes for death every day (Afghan man, interview, Perth facility).

I heard of numerous instances of self-harm and severe mental distress. In Sierra Compound, Woomera facility, at the time of my visit in 2001, one man who had attempted self-harm was under observation. Other detainees in the Compound told us of a man who had tried to kill himself with broken glass. This was observed by a child in the Compound who, detainees told me subsequently, had nightmares and refused to eat. Some long term detainees were so affected that they said they could only sleep with sleeping tablets (detainee representative meeting, Sierra Compound, Woomera facility 2001). At the time of my visit to Maribyrnong facility, one young man had been detained in observation rooms [70] in both Maribyrnong and Woomera facilities for approximately nine months because he was exhibiting signs of severe mental distress and had attempted suicide.

I observe that instances of attempted and actual self-harm appear to increase at times of particular crisis, for example during the hunger strike at Woomera facility in January 2002.

While the level of mental health care services varied by detention facility, in general, I found that the existing services were inadequate to meet the needs of asylum seekers detained in those facilities. Perth and Maribyrnong facilities did not have resident psychologists, nor did Cocos and Christmas Islands facilities. At Villawood, Woomera, Port Hedland and Curtin facilities there were psychologists on staff. Access to psychiatric expertise in all facilities was by referral to an outside practitioner, although some of the nurses had psychiatric training.

There are various factors which affect access to these available services. Some detainees reported not being aware of counselling or psychologist services.[71]

Some detainees were sceptical about the effectiveness of psychological assistance as they perceived the root of their mental problems to be their detention.

We do have psychologists and nurses. They come and listen to us but it doesn’t really help because whatever you need they cannot provide anyway. You can’t have a day out of detention, for example, so whatever suggestions they might have to help us, we cannot do anyway (detainee representative, Main Compound, Woomera facility, 2001).

While any detainee who has experienced torture and trauma will undoubtedly require specialised diagnosis and treatment during their time in Australian detention, child detainees, pursuant to Article 39 of CRC, have an absolute right to expect it will be provided. Although counsellors and psychologists on staff may have some experience with torture and trauma survivors, specialist qualifications and experience should be mandatory for the diagnosis and treatment of torture and trauma survivors. However, this is complicated by the fact that there are indications the detention environment may serve to worsen any pre-existing trauma condition, making it questionable whether adequate treatment can be provided at all, within the long term detention environment.[72]

Several detainees I spoke to indicated that they had experienced trauma and torture in their countries of origin before arrival. They continued to experience symptoms of trauma, such as sleeplessness and nightmares. In some cases I heard that the detention environment exacerbated these problems, and that treatment in this environment did not help. One Iraqi woman spoke of her husband:

When he came here it upset him even more after being tortured in Syria. He came here and saw himself in detention with fences all around him. That’s why maybe it affected his heart. He doesn’t need any treatment for the torture. He’s on medication for his heart but he doesn’t need any counselling etc (Iraqi woman, group meeting, Woomera facility).

In Villawood facility, the resident psychologist, who had been employed at the facility for three years, estimated that 20-25 per cent of detainees had Post Traumatic Stress Disorder symptoms of some form. He suggested that stress levels translated into mental health difficulties after several months in detention, with various stages of deterioration thereafter. He mentioned the case of a man who had been in detention for three years, who was a different man from when the psychologist began working there.

Although it was clear from my visits that detainees were suffering mental distress while in detention, there have been only a few Australian studies on the psychological impact of detention on asylum seekers. [73] It is essential that more research in this area be undertaken to ascertain the appropriate treatment, if any, that can be provided in the detention environment.

3.10 Children’s needs in detention

In all my visits to detention facilities I have been concerned about the effects of detention on children.[74] The situation in detention is particularly inappropriate for children because of the lack of schooling and exposure to violence and psychological stress.

Children are among the most vulnerable groups of detainees currently in detention in Australia. As such, immigration detention authorities should recognise that:

a child should not normally be detained [75]
if detained, a child’s special needs are met through appropriate professional support including health care, rehabilitation services and education and recreation opportunities designed to enhance their quality of life, individual development and social integration.

It is also important to note that, unlike juvenile detention centres, immigration detention facilities hold children under ten years of age, including infants.

It is because of children’s special needs that I commenced a National Inquiry into Children in Immigration Detention. The Inquiry will provide a comprehensive examination of the conditions and treatment of child detainees and assess the extent to which Australia is meetings its obligations with respect to the human rights of child asylum seekers and other children in immigration detention. Hence I will not address here the full range of concerns for children in detention.

However, I should like to raise here a few of the outstanding human rights issues concerning children which have arisen from my visits.

Education

A child’s right to education is enshrined in articles 28 and 29 of the CRC.

Wherever possible, children should be educated outside the detention facility, in the general school system. I welcome the instances where this has occurred, as noted in Section 2 of this report.

However, for the overwhelming majority of child detainees, schooling is provided within the detention environment. During my visits I observed that the education provided to children within the facilities varied, but in all cases is in no way comparable to the education that would be received by children in the community.

Primary schooling is not compulsory for child detainees and non-attendance is high. [76] Further, class times in all facilities are far shorter than a child would encounter in the community.

At Port Hedland facility there were two teachers on a six week rotation and one who was a local. There were 129 children in the facility at the time of my visit. Class times for children were between 9am and 11.45am in the morning (Monday to Friday), followed by lunch break. I was told by detainees that that from 1pm until 2.30pm the children learn songs and music.

At Curtin facility there were three teachers (one woman and two men) as well as six detainees who assisted at the school. However, I was dissatisfied with the information provided regarding the hours of schooling. DIMIA provided us with a briefing document which showed the hours of schooling as between 9am to 3pm with a two hour lunch break. The ACM Centre Manager told us that schooling continues until 11.15am. Students then go back at 1pm and stay until 2.30pm. However, detainees claimed that schooling was only for one to two hours in the morning only.

True, there is a school here but it is only for half an hour or an hour. Sometimes they have an hour of schooling. School is 9am to 11am and then they give them homework and drawing to do at home. School does not go until 2pm. They learn about writing but they don’t know how to write. How can they learn in one hour? (detainee representative, detainee representative meeting, Curtin facility).

I have a boy of ten years who goes to school only 1 hour per day. What sort of learning? How can he learn? He has been in the camp 19 months. He’s learnt in school only drawing and to play in the yard. I put a form in to ask XX why he’s not going to school in the community in Derby. The classroom teacher said no, he has to stay here in the camp. The timetable you have is not true. He goes from 9-10am Monday to Thursday. Friday there is no school at all. All the time is just drawing. Every day a car goes to Derby with five or six students (Iraqi man, interview, Curtin facility).

At the time of my visit to the Woomera facility in February 2001, I was informed that education programs were being provided in demountable buildings on-site between 9am and 12pm and 1.30 and 3pm five days a week.

At Villawood facility at the time of my visit, 11 children aged 5 to 14 years attended class. Class times were from 9am to 11.15am, and then from 12.30pm to 2.45pm, five days a week. Although the children were from Turkey, Iran, Iraq and Indonesia, there was no English language support.

In most facilities there is a lack of attention to the education of older children.

My 15 year old son needs classes. This service has not been available. Nothing has been done (Iranian detainee, Curtin detainee meeting, Curtin facility).

In Villawood facility I spoke with two older boys (15 and 16 years) who could not attend the school. They are also excluded from the monthly excursions for school children as a result. The one to two hour adult English language classes were too advanced for the 16 year old who arrived after the course had begun.

At the Cocos Islands facility there was no education provided specifically for children. At Phosphate Hill, Christmas Island, children only had access to English language classes, which had commenced only three days prior to my arrival.

I acknowledge there are a range of factors which effect the provision of education within the immigration detention environment. These include a fluctuating population, the lack of predictability in length of stay in detention, English language ability and the variety of language backgrounds of the children. However, I do not consider these to be insurmountable obstacles to the provision of education in accordance with minimum standards.

DIMIA General Comment: [77]

The provision of education services in an immigration detention environment is a very important but also a challenging and difficult responsibility. It is complicated by the fact that children are in detention for varying lengths of time, come from a variety of different cultural and linguistic backgrounds and have varying levels of literacy in their own languages and in English. Many of the children, particularly those at primary age, are unfamiliar with school concepts or socialisation within a school environment.

These are all factors which need to be taken into account. This means, however, that it is not usually practicable to stream detainee children into the full Australia-based curricula. In many instances it could be counter productive and unfair on the children to do so. It is reasonable and in the children’s interest that English language tuition be a main element of the education services provided, just as it is in the broader community for children of newly arrived migrants with limited English.

Mental health

As outlined in this report, I encountered many reports of mental distress and depression among detainees. This situation is not limited to adults. Children also experience trauma and distress at being detained and as a result of coming into contact with adults in distress, especially when their parents exhibit signs of psychological disturbance or they witness acts of violence or self-harm by other asylum seekers. At the time of my visits, there were several examples given to me of children who were exhibiting signs of depression and mental distress.

I personally feel safe. But I’m not feeling that my child is secure. She might go outside to play and see someone trying to commit suicide or see a riot. Also there was some fighting last night. My little girl was hiding under the bed saying it was probably they will come and kill me (Afghan man with 3 year old daughter, interview, Port Hedland facility).

At times of particular stress, the mental health needs of children became even more apparent. It is concerning that children need to have reached a state of psychological crisis before receiving specialised care. There were no child psychologists on staff at any facility at the time of my visits.

Separation from members of their families

For a variety of reasons, families become separated or travel separately on the journey to Australia. In my visits I came across several women with children who had travelled to Australia separately from their husbands. However, while their husbands who had arrived earlier had been granted TPVs, they remained in detention.

Temporary Protection Visas holders do not have the right to bring their families into Australia or to return to Australia if they leave. [78] Under the Migration Act, a family can make a joint application for a temporary protection visa if they arrive in Australia (excluding the excised zones) together. However, if they arrive separately, their claims will be assessed separately.

In Woomera facility, a woman from Afghanistan who had arrived in Australia with five children told us in February 2001 that she had not seen her husband for several years and did not know where he was. However, since then the Commission has become aware that her husband had arrived in Australia prior to her arrival and was released into the community on a TPV many months before. She had not had any contact with him.

In Phosphate Hill facility, Christmas Island, I spoke to two Iraqi women with children who were detained awaiting removal for refugee processing in Nauru and PNG, although their husbands had been issued with Australian protection visas and were living in the Australian community. These women and children will probably be subjected to long periods of detention on Christmas Island and a third country. During this period the children may have no contact with their fathers, and may even be unaware that he is surviving in the Australian community. If they are assessed as needing protection as refugees, the Government has given no indication that they will be permitted to settle with their husbands in Australia.

One of the essential principles of children’s rights is that children should not be separated from their parents unless it is necessary for their best interests (article 9, CRC). The CRC also affirms children’s rights to maintain relations and contact with both parents.

For child asylum seekers, article 10 of the CRC, which outlines the rights to reunification, is particularly relevant. [79] Under this article, applications by a child or his or her parents to enter or leave a country for the purposes of family reunification shall be dealt with by States Parties to the Convention in a positive, humane and expeditious manner.

3.11 Security and discipline

I have some concerns arising from my visits about security and discipline in detention facilities.

A recent phenomenon of concern appears to be the use of isolation detention for “behaviour management” purposes in several detention facilities. This occurs where DIMIA decides not to transfer detainees to prison (a non-reviewable discretion), but to punish them for breaching behavioural codes in the detention facility. I am not satisfied that internal procedures are sufficient to guard against abuse of this process.

I was told of a few instances of detainees being placed either in separation compounds or in isolated observation cells as a means of “behavioural management”.

For example, one male detainee claimed

The cook throws food at us like for animals. I told her to quit the job if she didn’t like it. She complained I abused her and I was put in the observation room for two nights. I was beaten in the dining room to restrain me and handcuffed with my hands at the back. Then I was taken to the observation room (male detainee, interview, Perth facility).

In Curtin facility I was told by a detainee that a family had been detained in the India Compound in the facility for six weeks. She claimed the family (including a pregnant mother, man and small child) had protested passively for being screened out, and were taken to India Compound as a result (Iranian group meeting, Curtin facility). India is an isolation block consisting of a few cells with no ablutions or recreation area. I consider the use of isolation facilities to be inappropriate unless it is to prevent harm to the detainee, to other people or prevent serious destruction of property. It should also be reviewed at regular intervals.

Further, all facilities should meet minimum standards of care. The observation room in Perth facility has been criticised in this regard. I note this same complaint was raised by the Commission in 1998-99.[80]

A detainee in Perth facility reported that he had been in the observation room in Perth facility five times. He reported that there is no toilet in the room, nor any water and that he needed to bang on the window in the door [there is no window in the wall to outside] in order to get attention (detainee interview, Perth facility).

A similar concern was raised by a detainee who had been detained for 15 days in the isolation cells in Port Hedland. He claimed to go to the toilet you had to knock on the door 20-25 times (detainee interview, Perth facility).

In Villawood facility, the newly created Stage 3 area includes a unit separated by a steel fence which functions as a separation and observation facility. Each room contained a toilet, sink and window (barred). However, the recreation area consisted of only a small strip of grass with sewer coverings, unsuitable for recreation.

I noted during my visits that many behavioural management issues arise out of the interaction between long term detainees and detention staff. Long term detainees, especially those whose refugee applications have been rejected, may require special attention to their psychological needs, including being fully informed and treated with respect regardless of their legal status. For those who are awaiting removal to their country of origin or a third country, a program of counselling and support should be provided. I note that such a program existed for detainees awaiting removal from Arthur Gorrie Correctional Centre at the time of my visit.

4. Conclusion and recommendations

Australia is under an obligation to ensure the basic human rights of all those who come within its jurisdiction. This includes all people who arrive on our shores, whether unauthorised or authorised, adult or child.

We have a particular responsibility to ensure that the human rights of people who have been deprived of their liberty are safeguarded. They are especially vulnerable as they are almost completely dependent on the care and protection of DIMIA and ACM. Hence authorities responsible for detention must ensure minimum human rights standards and humane detention.

I have outlined some of the most essential of these, including the right not to be arbitrarily detained, to have access to information and legal assistance, the right to humane treatment and the rights of children to special protection. I have observed that if detainees are deprived of their basic rights, a situation of distress, anxiety and grievance is created, which all too often results in the protests and violence we have seen over the previous year.

I wish to emphasise that many of the problems in immigration detention facilities are significantly heightened by prolonged detention. The government must look seriously at a solution to long term detention as a matter of urgency.

The scope of this report allows for a number of broad recommendations to be made on the circumstances in which detention occurs and the conditions and treatment of immigration detainees. It should be noted that these recommendations arise from my visits rather than as a result of a comprehensive national inquiry or systematic monitoring of detention facilities, and are limited to the period 2001-2002. The final report of my National Inquiry into Children in Immigration Detention will provide an opportunity for more detailed recommendations concerning children held in immigration detention facilities.

I recommend that:

1. Prolonged detention

The Migration Act 1958 should be amended to impose specific time limits on detention, with provision for review of continuing detention, in accordance with international law standards.

In the meantime, the situation of prolonged detention of those awaiting safe return to their countries of origin or a third country should be considered as an area of inquiry by Federal Parliament as a matter of urgency. One possible solution would be the use of bridging visas with extended criteria to cover this situation.

2. Access to information

All detainees, including those in separation detention, should be informed promptly and effectively by DIMIA of their legal status and rights, including their right to claim refugee status, whether in Australia, an excised offshore place or in a third country. They should also be informed of the reason for their detention and their rights and responsibilities while in detention and throughout the asylum seeking process.

Further, a contact officer, with interpreter access, should be available to all detainees for information about the legal process and rules in the facilities. In particular unaccompanied children should have an independent guardian appointed to them who is responsible for representing their best interests with all agencies and decision makers.

All detainees should be able to access outside sources for information, including through telephone, facsimile, radio, television and newspaper and visitors access.

All detainees should have their rights to information explained to them in a detainee handbook, as previously undertaken by ACM, translated into detainee languages. The handbook should include contact numbers and addresses of outside services and organisations which can assist them.

3. Minimum standards of conditions and treatment

DIMIA should ensure that the detention service provider and DIMIA officers treat detainees humanely and with respect for their inherent dignity at all times. The minimum standards of conditions and treatment as outlined in Commission Guidelines should be met in all facilities. DIMIA is responsible for ensuring that these standards are met consistently across all facilities.

4. Monitoring of minimum standards

DIMIA’s Immigration Detention Standards should be revised to reflect minimum human rights requirements. Compliance with these standards should be independently and regularly monitored by an authority dedicated for that purpose. Independent monitors should be able to make announced and unannounced inspections of facilities, speak in private with detainees and see all records kept by facilities and DIMIA. The findings of such inspections should be implemented in full. Separately, DIMIA should investigate all allegations of breaches of these standards and ensure the detention service provision contract is contingent on these being met.

DIMIA should ensure regular meetings of both a Detainee Representative Committee, comprising detainee representatives in each detention facility, in addition to a Detention Advisory Committee, which would act as a liaison meeting between DIMIA, the detention services provider, detainee representatives and community groups.

5. Children in detention

Children should only be detained for the shortest period of time, for initial security, health and identity purposes. While children are in detention, DIMIA should ensure provision of specialised health, mental health, education, food, accommodation and recreation facilities to meet children’s basic needs, including specialised attention for unaccompanied minors and with attention to the needs of both girls and boys.

In all other cases, children should be released with their family into the community or into alternative accommodation arrangements that meet minimum human rights standards. Where necessary, reporting or other requirements should be framed to ensure the child’s family does not abscond.

DIMIA’s response to recommendations: [81]

Prolonged Detention

You suggest that the Migration Act 1958 be amended to impose specific time limits on detention. As previously advised the Department makes every effort to reduce the time taken to process claims and to make a primary decision but there are elements outside the Department’s control. It has already been noted, however, that it is not the length of detention that is determinative of whether detention is arbitrary, but rather the reasons for the detention. The main test in relation to whether detention is arbitrary is whether it is reasonable, necessary, proportionate, appropriate and justifiable in all the circumstances. The key elements in determining whether detention is arbitrary are whether the circumstances under which a person is detained are reasonable and necessary in all of the circumstances or otherwise arbitrary in that the detention is inappropriate, unjust or unpredictable. Further, detention will not be arbitrary if it is demonstrated to be proportional to the end that is sought.

Australia’s Migration Act 1958 requires that all non-citizens who are unlawfully in mainland Australia must be detained and that, unless they are granted permission to remain in Australia, they must be removed as soon as reasonably practicable. This reflects Australia’s sovereign right under international law to determine which non-citizens are admitted or permitted to remain and the conditions under which they may be removed. Removals are effected as soon as is reasonably practicable but delays can occur where there is limited cooperation from detainees themselves or from countries of return or where there are difficulties in finalizing transit arrangements for return. The Government continues actively to pursue arrangements with other countries to enable removals from Australia.

Access to Information

As you are aware from exchanges of correspondence and lengthy discussions over the revision of the IDS, the draft revision of the IDS published on 5 December 2001 addresses many of the issues you have raised here, such as the detainees being provided with current, accurate and comprehensive information relevant to their detention and in language and terms they understand. Centres currently follow these guidelines and provide information in languages other than English and use the assistance of interpreters where necessary.

As mentioned previously, detainees have access to television and radio and newspapers including in most of the languages which detainees at each of the facilities speak.

You suggest that one person be appointed guardian for unaccompanied children. The Minister remains the guardian even when he delegates responsibility to others. Within the current system there is a core group of Service Provider employees, medical officers and psychologists and Departmental staff who oversight each unaccompanied minor. In addition, with the expansion of DIMIA staff at all our detention centres, one staff member, usually the Deputy Manager, has general responsibility for unaccompanied minors. This group-care arrangement allows for a more comprehensive and constant monitoring of each unaccompanied minor.

Minimum Standards of Conditions and Treatment

The Department’s contract with its detention services provider requires the provision of food, shelter, clothing, bedding, health including mental health services, educational services and recreational activities for all detainees including children. As you are aware, the Immigration Detention Standards (IDS), which were developed in consultation with the Commonwealth Ombudsman’s office, establish the standards of care and services expected of the contractor. The Department monitors performance under the contract on an ongoing basis and there are financial sanctions which are available for non-compliance. As you are aware the IDS are being revised and will be implemented with the new contract for detention services. Your office has been extensively consulted during the review process.

The Department also requires that all staff working in detention centres comply with the relevant state or territory legislation on child neglect or abuse, including sexual abuse. DIMIA reviews the service provider’s training programs to ensure that these cover the requirements of such state legislation particularly the reporting of suspicions or allegations of neglect or abuse.

Monitoring of Minimum Standards

You suggest that the IDS should be revised to reflect minimum human rights standards, that there should be independent monitoring of the detention standards, investigation by the Department of alleged breaches and regular meetings of a Detainees Representative Committee and Detention Advisory Committee.

As you are aware the IDS have been under revision, in consultation with HREOC. The IDS and the draft revised IDS are informed by and are consistent with human rights standards accepted by Australia and incorporated into Australian law. There already exists active monitoring of the application of the current IDS in each of the facilities. Immigration detention is one of the most closely scrutinised government programs. Accountability is required at two levels. The Department, as contract manager, monitors the performance of the Services Provider closely, regularly and in a variety of ways. Senior departmental officers inspect detention facilities on a regular basis to monitor service delivery performance.

Furthermore, the Department is publicly accountable to a number of external bodies some of which are statutory based. In addition to the Minister, the Department is frequently required to provide information and briefings to members of the Commonwealth Parliament and Parliamentary committees. The provision of service delivery in detention centres is a frequent issue for scrutiny at Senate committee hearings (Estimates).

The Commonwealth Ombudsman and HREOC have statutory rights to investigate complaints by detainees and to conduct their own inquiries in relation to immigration detention. Posters are displayed throughout the facilities alerting detainees to the services provided by the Commonwealth Ombudsman, HREOC and Red Cross. The UNHCR also has access on request and has visited detention centres on a number of occasions.

In addition, the Immigration Detention Advisory Group (IDAG) was established in February 2001 to provide advice to the Minister on the adequacy and appropriateness of detention services, accommodation and facilities and has unfettered access to detention facilities. The IDAG currently undertakes a role of providing an independent monitoring function as you suggest.

DIMIA has also an established process of regular consultations through the Inter-governmental/Non-government Organisations Forum (IGNGO). This forum, set up by DIMIA in 1993, includes representatives from the United Nations High Commissioner for Refugees, Amnesty International, the Refugee Council of Australia, the Australian Council of Churches ,the Australian Red Cross, the Australian Council of Social Services and the Service for the Treatment and Rehabilitation of Torture and Trauma Sufferers. The Forum provides a formal mechanism for these organisations to raise issues of concern with senior Departmental officers.

Individual members of these organisations have also visited detention facilities to view first hand the facilities and how they operate. Some of these organisations are involved in service provision, such as the Red Cross’s provision of tracing services for detainee family members and the delivery of pastoral care to detainees. Furthermore, most IRPC/IDC’s have also formed committees of detainee representatives and external membership to assist in resolving day to day management issues.

Children in Detention

In our view, the Government has in place appropriate legislative, administrative, social and educational measures for the protection of children in detention. Procedures are in place to ensure that state agencies are called in to provide expert advice including on the psychological health and best interests of a child where there are concerns. Within the detention environment inappropriate behaviour (or suspicion of such behaviour) is dealt with promptly and appropriately.

There is a high level of scrutiny from DIMIA and ACM staff and other detainees (including parents). This scrutiny is enhanced by the physical nature of the centres, the responsibilities of all parties within the centre, and the security arrangements relating to all detainees, and children in particular.

Parents also have a responsibility in ensuring the safety of their children and reporting any concerns immediately. Such action by parents or other detainees is taken seriously by all staff in the centre.

In respect of unaccompanied minors, there is a strong commitment to ensuring arrangements are in the best interests of the minor. Specific arrangements in place to ensure the welfare of unaccompanied minors include two hourly monitoring and night curfew procedures. Regular weekly meetings are held between staff that include the program managers, psychologists, medical practitioners and other officers who have responsibility for monitoring the progress of the unaccompanied minors. At these meetings the daily progress and concerns of each child are considered.

Regular meetings are also held with staff and the unaccompanied minors to allow the unaccompanied minors an opportunity to raise issues. This assists them to become comfortable with staff and they are encouraged to provide input and feedback on their situation. Items such as special events, sports days and competitions, education, curfews and training programs are discussed. Special programs and activities are arranged, and where possible, events are coordinated with families within the centre to give the unaccompanied minors opportunities to interact with family groups.

Additional information on the services and supports for children in detention has been provided in the Department’s submission to your National Inquiry into Children in Detention.

Appendix

Department of Immigration and Multicultural and Indigenous Affairs

Secretary

Dr Sev Ozdowski OAM

Human Rights Commissioner

Human Rights and Equal Opportunity Commission (HREOC)

GPO Box 5218

Sydney NSW 1042

Dear Dr Ozdowski

I refer to the draft report on your visits to immigration detention facilities for the period 2001-2002. The Department provided initial comments on this report on 30 April 2002. I have attached additional comments collated after discussions with officers of the Department, including those in the immigration detention facilities, and the Detention Services Provider.

I note that in the further draft of the report, sent to the Department on 7 May 2002, you have taken into account a number of the Department’s specific comments. There is no reflection however of the broader issues on which the Department provided clarification such as time in detention, education available in facilities and the report’s use of a considerable number of untested and unverified statements by detainees.

Further, on the issue of time in detention, legislative changes were passed by the Parliament, in October 2001, which expanded the legal validity of acts done and decisions made by decision makers. The basis on which courts can overturn a decision by decision makers has been reduced. This has in turn reduced the basis upon which a court can remit a decision to the Refugee Review Tribunal (RRT) for further consideration. Therefore, unless the court finds one of the four reduced grounds available has been established, the process is completed. In addition to these legislative changes, and while the Department does not control the time it takes for tribunals and courts to hear cases, the Department has been taking what steps it can to facilitate more timely consideration of the applications of persons in detention. As you are aware both the Department and the RRT accord priority to the visa applications of persons in detention.

In addition, the Department has been working closely with the courts to do what is within its power to assist a faster consideration of detainees’ cases. For example, the Department provides all relevant documents directly to the Court, which avoids the need for detainees to do so. This has considerably assisted the courts’ handling of detainees’ cases by reducing delays experienced due to the failure of applicants to file relevant material in accordance with court orders. Moreover most court registries have introduced streamlined procedures in migration matters, which have also contributed to faster consideration of detainees’ cases. In 1995-96 it took the Federal Court more than 10 months, on average, to resolve an application for review of a portfolio decision. In 2000-2001, it took approximately 5.5 months.

In relation to decisions by the RRT I would again like to point out that in cases where the RRT finds that a person meets Article 1(a) of the Refugee Convention and remits the application to the Department this does not mean a visa is granted. A number of the statements in the report, by both detainees and the author(s), incorrectly suggest that this is the case. When the RRT remits a case, finding that the applicant is a person to whom Article 1(a) of the Refugees Convention applies, the Departmental decision maker needs to determine whether protection obligations are in fact owed taking into account the Convention in its entirety. The decision maker also needs to determine whether other legislative criteria, including health and character criteria, for the grant of a visa have been met. Penal and security clearances are integral to this final part of the application process. It is unlawful to grant a visa unless all visa requirements have been satisfied. The inaccurate claims highlight the problems that can arise when untested and unverified statements from detainees are presented as facts.

I have concerns that the preface to the report is written in a manner that could be construed as inflammatory and biased in its analysis of the detention environment. Rather than being a balanced analysis of conditions within the framework of detention as enacted by the Parliament, the purpose of the preface seems to be to attack the policy of mandatory detention.

I have listed at Attachment A additional specific comments against particular pages in the draft report and again included the Department’s response to your recommendations. I have incorporated points from my previous letter, updated where appropriate, in relation to the draft report which do not appear to have been taken into account. Please note that the page numbers in Attachment A refer to the original draft of the report that was received.

Yours sincerely,

WJ Farmer

4 June 2002

1 For ease of reference, the term detention “facility” is used in this report. It includes Immigration Detention Centres, Immigration Reception and Processing Centres, Immigration Reception Centres and other detention facilities such as State and Territory prisons.

2 The HREOC Act outlines the various functions of the Commission. A description of these functions can be found at http://www.humanrights.gov.au/human_rights/index.html.

3 Human Rights and Equal Opportunity Commission (HREOC), Report of an Inquiry into a Complaint of Acts or Practices Inconsistent With or Contrary to Human Rights in an Immigration Detention Centre, HRC Report No.10, 29 June 2000; HREOC, Report of an Inquiry into a Complaint of Acts or Practices Inconsistent With or Contrary to Human Rights in an Immigration Detention Centre, HRC Report No.12, 28 November 2000.

4 See http://www.humanrights.gov.au/human_rights/asylum_seekers/curtin.html

5 Seven Acts were passed by Parliament in September 2001:

• The Migration Amendment (Excision from Migration Zone) Act 2001

• The Migration Amendment (Excision from Migration Zone)

(Consequential Provisions) Act 2001

• The Border Protection (Validation and Enforcement Powers) Act 2001

• The Migration Legislation Amendment (Judicial Review) Act 2001

• The Migration Legislation Amendment Act (No 1) 2001

• The Migration Legislation Amendment Act (No 5) 2001

• The Migration Legislation Amendment Act (No 6) 2001.

6 Defined in section 5(1) of the Migration Act 1958 (Cth) as the Territories of Christmas Island, Ashmore and Cartier Islands and Cocos (Keeling) Islands, an Australian sea installation, an Australia resources installation and any other external Territory or island that is prescribed by regulations.

7 Section 46A of the Migration Act 1958 (Cth). The Minister does, however, have a non-reviewable discretion to allow a person entering an excised offshore place to make an application for asylum where he considers that it is in the public interest to do so.

8 Or any other country in respect of which a declaration is in force under section 198A(3) of the Migration Act 1958 (Cth).

9 According to DIMIA press release DPS06/2002 on 1 February 2002, 140 asylum seekers detained on Christmas Island were transferred to Manus Island, Papua New Guinea between 27-29 January 2002 and 40 asylum seekers detained on Christmas Island were transferred to Nauru on 31 January 2002, leaving 34 detainees on the Island at 1 February 2002.

10 Section 3 of the HREOC Act.

11 There are also a number of other United Nations instruments which, although not binding, provide guidance in the interpretation and application of these treaties: Report of the 3rd Committee of the General Assembly (1958), A/4045, at pp 160-173 and 227-241; United Nations Human Rights Committee, General Comment No. 21 (1992), para 5; Potter v New Zealand, Communication No. 632/1995, CCPR/C/60/D/632/1995; Muking v Cameroon, Communication No. 458/1991, CCPR/C/51/D/458/91. Of particular relevance are:

• the United Nations Standard Minimum Rules for the Treatment of Prisoners (1955) (Standard Minimum Rules);

• the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988) (The Body of Principles);

• the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990); and

• UNHCR Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers (1999).

12 Also relevant to all detainees, including asylum seekers, is the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (1984), to which Australia is a party.

13 Also see article 3.1, CAT.

14 HREOC, Immigration Detention Guidelines, March 2000. These can be found on the Commission’s website at https://humanrights.gov.au/our-work/asylum-seekers-and-refugees

15 Immigration Reception and Processing Centres (IRPCs) and Immigration Reception Centres (IRCs) mainly hold unauthorised arrivals. Immigration Detention Centres (IDCs) may also hold other immigration detainees, including those overstaying or breaching visas.

16 On 7-9 December 2001 two Commission investigation officers inspected the conditions of detention for the 173 detainees held in the Sports Hall on Christmas Island. The officers also visited the new site on Phosphate Hill. See the Human Rights and Equal Opportunity Commission News Release, 14 December 2001. See http://www.humanrights.gov.au/media_releases/2001/01_76.html.

17 I visited Broome Regional Prison, WA, on the 27 June 2001, Arthur Gorrie Correctional Centre, Brisbane, on the 23 August 2001 and Port Philip Prison on 23 March 2001. Prisons may hold asylum seekers who have recently arrived in regions where there are no immigration detention facilities, immigration detainees who have been transferred to prison for “behavioural reasons”, criminal deportees and people convicted of criminal offences while in detention.

18 Media releases, Terms of Reference, Background Papers and other information relating to the Inquiry can be found at http://www.humanrights.gov.au/human_rights/children_detention/index.html.

19 With the exception of Maribyrnong facility. At Maribyrnong, I made a shorter visit without accompanying Commission staff and did not have the opportunity to speak to individual detainees. The common procedure was also not used in visits to prisons where the number of immigration detainees was small and I was able to speak directly to certain individuals detained.

20 The Commission urges the establishment of Detention Advisory Committees in each detention facility which ideally consist of an equal number of representatives of DIMIA, the detention service provider, immigration detainees and relevantly experienced non-government agencies (See 20.1, Commission’s Immigration Detention Guidelines).

21 HREOC had previously asked DIMIA to arrange TIS availability but it was not forthcoming.

22 Under sections 13 and 14 of the Migration Act 1958 (Cth), an “unlawful non-citizen” is a non-citizen in the migration zone who does not hold a visa.

23 Under the Migration Act 1958 (Cth), certain “eligible non-citizens” can be granted a bridging visa by the Minister and hence be released from detention. Migration Regulation 2.20 lists the categories, which include minors (under certain conditions), people 75 years and over, a spouse of an Australian citizen or permanent resident and people with special needs as determined by a medical officer appointed by the Department. However, the Minister can only make a determination that someone is “eligible non-citizen” when

• the non-citizen was an unlawful non-citizen when he or she entered the migration zone

• the non-citizen made a valid application for a protection visa after he or she arrived in Australia

• the non-citizen has been in immigration detention for a period of more than six months after the application for a protection visa was made

• the Minister has not made a primary decision in relation to the application for a protection visa and

• the Minister thinks it is in the public interest.

This substantially limits the numbers of detainees who can be granted a bridging visa by the Minister.

24 Appeals at the Federal Court and the High Court levels have been restricted since October 2001 by the Migration Legislation Amendment (Judicial Review) Act 2001 and the Migration Legislation Amendment Act (No.1) 2001. The Minister has the power to make a decision in favour of the applicant when the RRT or Courts have rejected an application and where it is in the public interest to do so, although this power is non-compellable and non-reviewable.

25 Under sections 200 and 201 of the Migration Act, a non-citizen who has been a permanent resident in Australia for less than ten years may be deported if he or she has committed a crime for which he or she was sentenced to death, life imprisonment or imprisonment for a period of one year or more. It is usual for criminal deportees to be held in State prisons. However, State and Territory Corrective Services Ministers agreed at the Corrective Services Ministers’ Conference in June 2001 that criminal deportees will not be held in State prisons following expiration of their sentence, unless exceptional circumstances exist. This may result in more criminal deportees being held in immigration detention facilities. According to DIMIA, the Commonwealth is currently negotiating Memorandums of Understanding with the States in relation to the holding of immigration detainees in state prisons in an attempt to formalise arrangements.

26 At the time of writing of this report, DIMIA reported that three more facilities on the mainland of Australia are in the process of being established as permanent contingency facilities:

• HMAS Coonawarra in Darwin, NT

• An Australian Army facility in Singleton, NSW

• El Alamein (Baxter) in Port Augusta, SA.

In addition, in the 2000 Budget the Government also announced plans for a new detention facility to be established in Brisbane. The government also announced on 12 March 2002 that a permanent facility with the capacity to hold 1200 detainees would be established on Christmas Island.

27 Unaccompanied minors are included in the total numbers for children. Where known, numbers of unaccompanied minors are provided.

28 See above note 5.

29 See the Commission media release, 14 December 2001. See note 16.

30 33 Sri Lankan asylum seekers on Cocos (Keeling) Islands and four Sri Lankan asylum seekers on Christmas Island were removed to Sri Lanka on 11 Feb 2002: DIMIA media release DPS 8/2002, 12 February 2002. A group of 62 Sri Lankan asylum seekers were also transferred from Cocos Island facility to Christmas Island facility on 16 February 2002, DIMIA media release DPS 10/2002, 16 February 2002. DIMIA reported that at 16 February 2002 there were 31 detainees remaining on Cocos (Keeling) Island and 88 detainees remaining on Christmas Island.

31 Section 5, Migration Act 1958.

32 HREOC, Immigration Detention: Human Rights Commissioner’s 1998-99 Review, pp7-8. The Commission recommended that while numbers in Stage One exceed 25 detainees, detainees should not be confined there for longer than one month.

33 Standard 8.1.3, DIMIA, Immigration Detention Standards, October 2001.

34 The posters include brief information on the procedure for making a complaint to the Commission in a variety of languages.

35 See note 52.

36 DIMIA Fact Sheet 83, DIMIA website http://www.immi.gov.au/facts/83woomera.htm (3 August 2001).

37 Statistics provided to the Commission by DIMIA on 5 February 2002 (Situation Report on number of detainees as at 1 February 2002).

38 Article 9.1 of the CRC provides that States parties to the Convention shall ensure that “a child is not separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law, and procedures, that such separation is necessary for the best interests of the child.”

39 Article 9(1), ICCPR; article 37(b), CRC.

40 In A v Australia, Communication No. 560/1993, the Committee stated “remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context”: Views of the Human Rights Committee, 30 April 1997: UN Doc. CCPR/C/59/D/560/1993.

41 UNHCR Executive Committee (EXCOM), Conclusion No.44 (1986) – Detention of Refugees and Asylum Seekers.

42 See A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993, para 9.2; Van Alphen v The Netherlands, Communication No. 305/1988, UN Doc CCPR/C/39/D/305/1988. These principles reflect the United Nations High Commissioner for Refugee (UNHCR) Guidelines on Applicable criteria and Standards relating to the Detention of Asylum-Seekers (1999), which provide that detention is inherently undesirable and should not be automatic or unduly prolonged.

43 This includes people who were released after an appeal process: Frequently Asked Questions, DIMIA website: http://www.immi.gov.au.

44 Figures supplied by DIMIA, 15 March 2002. See also Philip Ruddock MP, Media release, “Improvements in Immigration detention”, MPS 093/2001, 9 July 2001 that 80 per cent of asylum seekers received primary decisions within 15 weeks with some as little as four to six weeks.

45 Refugee Review Tribunal Monthly Statistics, Detention Cases, June 2001.

46 See Philip Ruddock’s comments in an interview with AM, Radio National, 25 January, 2002. The decision to lift the freeze on the processing of Afghan protection applications was made on 24 January 2002 following negotiations between the federal Government’s Immigration Detention Advisory Group and Afghan asylum seekers on hunger strike in the Woomera facility.

47 Some asylum seekers arrive in Australia without travel documents. One key difficulty with obtaining travel documents for those detainees who are subsequently rejected arises when there is no diplomatic relationship between Australia and the country of origin of the detainee. For example, this has made it difficult to return people to Iraq.

48 Excerpt from the “general comments” section of DIMIA’s response of 30 April 2002 to an early draft of this report.

49 Communication No. 560/1993, CCPR/C/59/D/560/1993, at para 9.5. The Australian Government has disagreed with the Human Rights Committee’s interpretation of the requirements of the article 9.4 in A v Australia. In their response to the views of the Committee the Government submitted that there is nothing apparent in the terms of the ICCPR that “lawful” is used to mean “lawful at international law” or “not arbitrary”.

50 At para 9.5.

51 For example, a period of three days without court review breached article 9(4) ICCPR in Hammel v Madagascar, Communication No. 155/1983,CCPR/C/29/D/155/1983; at paras 18.2 and 20; see also Torres v Finland , Communication No. 291/1988, CCPR/C/38/D/291/1988; at para 7.2 where detention without review for two periods of seven days and one period of five days breached article 9(4) and Vuolanne v Finland, Communication No. 265/1987, CPR/C/35/D/265/1987, where military detention for 10 days without judicial review breached article 9(4). However, in Portorreal v Dominican Republic, Communication No. 188/1984, CCPR/C/31/D/188/1984, detention for a period of fifty hours was found not to breach article 9(4); at para 10.2, although the Committee did find a violation of article 9(2) at para 11.

52 See above note 11. The Third Committee of the UN General Assembly has stated that the Standard Minimum Rules should be taken into account when interpreting and applying Article 10(l), ICCPR: United Nations, Official Records of the General Assembly, Thirteenth Session, Third Committee, 16 Sept - 8 Dec 1958, pp160-173 and 227-241. See also, Human Rights Committee, General Comment No. 21 (1992), para 5.

53 See articles 12(2) CRC (the right to “be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law”) and article 22(1) CRC, (the right of child asylum seekers to “receive appropriate protection and humanitarian assistance”).

54 A Reception and Orientation Information Sheet for Woomera facility was in the process of being drafted and translated into main languages at the time of my visit in 2001. The Commission was informed that a similar induction publication has been produced for Villawood, Perth and Maribyrnong facilities. This outlines some of the services which detainees can access at the facilities as well as standards of conduct. It does not outline the protection application process, nor does it outline the right to contact legal assistance with details of legal firms and services. The Commission has welcomed the provision of handbooks for detainees in detention facilities consistent with 2.4 of the Commission’s Immigration Detention Guidelines, and will continue to monitor their content and distribution.

55 However, it is important to note that there is no statutory prohibition on DIMIA advising people of their right to legal advice. See HREOC, Immigration Detention – Human Rights Commissioner’s 1998-99 Review, p31.

56 At the time of the Commission’s report, Those who’ve come across the seas, Port Hedland was the only facility that separated newly arrived detainees from the rest of the detainee population. However, it appears that many of the facilities now segregate newly arrived unauthorised arrivals for a period of time, in particular Port Hedland, Curtin and Woomera facilities. To be ‘screened in’ DIMIA makes a preliminary assessment of whether there are any issues which would prima facie engage Australia’s protection obligations. The more detailed processing of applications follows once a detainee is “screened in”. However, those who are ‘screened out’ can remain in separation detention until they can be removed from Australia.

57 Excerpt from the “general comments” section of DIMIA’s response of 30 April 2002 to an early draft of this report.

58 This communication and information vacuum is also inconsistent with Principle 15 of the Body of Principles, which provides that communication of a detained person with the outside world, and in particular his legal counsel and family, should not be denied for more than a matter of days. It is also inconsistent with Rule 37, SMR, which provides that detainees should be allowed to communicate with family and friends through correspondence and visits.

59 For some detainees from Afghanistan, phone calls were impossible as there were no phones in their village.

60 In Villawood facility there have been complaints about phone access for several years. I was informed by DIMIA this was due to ongoing discussions with Telstra. One detainee told us that there are supposed to be four phones in Stage One but for two months only one was working. Incoming calls including those from overseas would be transferred by ACM to non-working phones which caused detainees some stress (Iranian man, interview, Villawood facility).

61 Some facilities had separate English classes for women, for example Woomera and Port Hedland facilities. However, there were no separate school classes for girls.

62 For example, computers are available at Villawood facility. Computer access does not include email and internet access. At Curtin facility it was reported that there were computer lessons but a detainee told me that this had been cancelled.

63 There are no French books or French-English dictionaries in the library for use by French-speakers such as this detainee.

64 Rule 71(5), SMR; Rule 42, United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

65 Some examples of welcome recreational activities include the establishment of a gym at Port Hedland facility (although the weights have been welded on, giving only two choices) and fishing, under supervision, along the adjoining beach for detainees on Cocos Islands, who can then cook their own food in the kitchens.

66 Iranian man interviewed in Villawood facility; detainee representatives in Sierra Compound, Woomera facility 2001.

67 At Port Hedland facility, the GP had only just been recruited on 27 June 2001; although a locum or doctor on short-term contract had previously been available.

68 Rule 22 (3), SMR, specifies that each detainee should be informed in a language he or she can understand of the health issues which may affect him or her.

69 Women were also concerned for confidentiality reasons that ACM staff not stand nearby when they attend medical appointments.

70 An observation room is characterised by extremely basic facilities, 24hour lighting and video cameras; some are padded and some are not.

71 One Afghan woman interviewed in the Main Compound, Woomera facility, 2001 said she had been depressed but had not realised there was counselling help available at the facility. She had not been approached. Other women at Woomera facility had attended the counselling service.

72 It is in this context that several services for the treatment of torture and trauma victims in the community do not provide treatment to people in the detention setting.

73 See A Sultan & K O’Sullivan, (2001), “Psychological disturbances in asylum seekers held in long term detention: a participant-observer account”, Medical Journal of Australia, 175, pp593-596; D Silove, I Sinnerbrink, A Field, V Manicavasagar & Z Steel (1997), “Anxiety, depression and PTSD in asylum seekers: Associations with pre-migration trauma and post-migration stressors”, British Journal of Psychiatry, 170, pp351-357; The Maribyrnong Detention Centre Tamil Survey, cited in D Silove & Z Steel (1998), The Mental Health and Well-Being of On-Shore Asylum Seekers in Australia, Psychiatry Research and Teaching Unit, University of New South Wales.

74 See “Introduction” for numbers of children in detention at time of visit. Pursuant to article 1 of CRC, children are considered persons less than 18 years of age.

75 Article 37(b), CRC states that a child must only be detained as a measure of last resort and for the shortest appropriate period of time; Guideline 6 of the UNHCR Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers, 1999, states that minors who are asylum seekers should not be detained.

76 At the time of my visit to Curtin facility, DIMIA reported that 75 children attended the education classes for children, although there were 143 children in detention in the facility. Similarly, there were 11 children in class at Villawood facility, although there were 33 child detainees in total detained at the facility. However, it must be noted that classes for children do not include children under five years and over 15 years of age, whereas total figures for child detainees include children from birth to under 18 years.

77 Excerpt from the “general comments” section of DIMIA’s response of 30 April 2002 to an early draft of this report.

78 Unlike asylum seekers who are granted permanent protection visas, TPV holders are also excluded from the mainstream social welfare system and from settlement services which include English language classes and housing assistance.

79 Article 22(2), CRC, also provides that States Parties to the CRC shall cooperate with the United Nations and other bodies to trace the parents or other members of the family of a child asylum seeker to obtain information necessary for reunification.

80 HREOC, Immigration Detention: Human Rights Commissioner’s 1998-99 Review, p12.

81 See explanation at point 1.5 on page 11 of this report.

Last updated 2 December 2001.

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A Report on Visits to Immigration Detention Facilities by the Human Rights Commissioner 2001