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2008 Immigration detention report - Summary of Observations following the Inspection of Mainland Immigration Detention Facilities

2008 Immigration detention report

Summary of

observations following visits to Australia’s immigration detention

facilities

 

Contents

1 Introduction

This report contains a summary of observations by the Australian Human Rights

Commissioner, Graeme Innes AM, and staff of the Australian Human Rights

Commission (the Commission) following visits to Australia’s immigration

detention facilities, and to people in community detention, between June and

September 2008. The contents of the report are based on direct observations made

during the visits, and on discussions with staff and immigration detainees.

This report follows the Commission’s 2006 and 2007 reports on annual

inspections of mainland immigration detention

facilities.[1] The Commission has also

commented on earlier visits to immigration detention facilities in a range of

other reports available on its

website.[2]

The report includes the following major parts:

  • Overview of Commission’s observations (section 2)
  • Summary of Commission’s recommendations (section 3)
  • Methodology for annual visits (section 4)
  • Purpose of visits and relevant human rights standards (section

    5)
  • Observations on:
    • monitoring of standards in immigration detention (section 6)
    • number of people in detention and length of detention (section 7,

      8)

    • attitudes of detention staff (section 9)
  • Mainland immigration detention centres:
    • cross-cutting concerns (section 10)
    • specific concerns about each centre (section

      11)
  • Alternatives to immigration detention centres:
    • immigration residential housing
    • immigration transit accommodation
    • community detention (section 12)
  • Immigration detention on Christmas Island (section 13)
  • Children in immigration detention (section 14)

This report is not a comprehensive review of every aspect of the conditions

in Australia’s immigration detention facilities. Rather, it focuses on

those issues that detainees raised with the Commission, and on other issues that

caused significant concern during the Commission’s visits.

The Commission has provided an advance copy of this report to the Department

of Immigration and Citizenship (DIAC), GSL (Australia) Pty Ltd (the detention

services provider), the Australian Customs Service and the Australian Fisheries

Management Authority to give them an opportunity to correct any factual

inaccuracies and to respond to the report. The responses received are available

on the Commission’s website at www.humanrights.gov.au/human_rights/immigration/idc2008.html.

2 Overview

In July 2008, the Minister for Immigration and Citizenship announced new

directions for Australia’s immigration detention

system.[3] The new directions are

based on seven key values. Of these values, the Commission welcomes the

following:

  • Detention that is indefinite or otherwise arbitrary is not acceptable and

    the length and conditions of detention, including the appropriateness of both

    the accommodation and the services provided, will be subject to regular

    review.

  • Detention in immigration detention centres is only to be used as a last

    resort and for the shortest practicable time.

  • Children and, where possible, their families, will not be detained in an

    immigration detention centre.

  • People in detention will be treated fairly and reasonably within the

    law.

  • Conditions of detention will ensure the inherent dignity of the human

    person.

While the Commission welcomes the statement of the above

values, it hopes to see them translated into policy, practice and legislative

change as soon as possible. Despite observing improvements in Australia’s

immigration detention facilities over the past few years, the Commission has

significant ongoing concerns about the immigration detention system.

The legal architecture of the mandatory detention system remains in place.

There are fewer people in immigration detention and the number of long-term

detainees is decreasing. However, some people are still held for long and

indefinite periods. During its 2008 visits, the Commission met with people who

had been in detention for periods of up to six years.

Off-shore processing of asylum seekers continues on Christmas Island. The new

immigration detention centre on the island is a formidable high-security

facility that the Commission believes should not be used to hold immigration

detainees.

While children are no longer held in immigration detention centres, they are

still held in other closed immigration detention facilities, both on the

mainland and on Christmas Island.

The Stage 1 section of Villawood Immigration Detention Centre remains in use,

despite the Commission’s repeated recommendations that it should be

demolished. While there are ongoing efforts to refurbish some detention

facilities, the infrastructure at the mainland immigration detention centres is

inappropriate and run-down, and the atmosphere remains security-driven and

prison-like.

Services and activities in immigration detention have, on the most part,

improved over the past few years. Still, many detainees express frustrations

about a range of issues including lack of access to external excursions,

interpreters and translated documents, recreational and educational activities,

and others.

Based on its 2008 annual visits, the Commission has identified a range of key

areas for improvement across the immigration detention network. A summary of the

Commission’s recommendations is included in section 3 of this report.

As the international community celebrates the 60th anniversary of

the Universal Declaration of Human Rights, the Commission hopes to see

the implementation of reforms to ensure that Australia’s immigration

detention system upholds the fundamental human dignity and human rights of all

persons involved.

 

3 Recommendations

Monitoring of standards in immigration detention

  • Minimum standards for conditions and treatment of persons in immigration

    detention should be codified in legislation. These should be based on relevant

    international human rights standards.

  • The Australian Government should accede to the Optional Protocol to the

    Convention against Torture and establish an independent National Preventive

    Mechanism to conduct regular inspections of all places of detention, including

    immigration detention facilities.

Length and uncertainty of detention

  • Australia’s mandatory detention law should be repealed.
  • The Migration Act should be amended so that immigration detention occurs

    only when necessary. This should be the exception, not the norm. It must be for

    a minimal period, be reasonable and be a proportionate means of achieving at

    least one of the aims outlined in international

    law.[4] These limited grounds for

    detention should be clearly prescribed in the Migration Act.

  • The Migration Act should be amended so that the decision to detain a person

    is subject to prompt review by a court, in accordance with international law.

  • The Migration Act should be amended to include periodic independent reviews

    of the ongoing need to detain an individual, and a maximum time limit for

    detention.[5]

Staff training

  • DIAC and GSL should ensure that all current and future staff are provided

    with adequate training to educate them about the human rights of persons in

    immigration detention. Staff training and performance management procedures

    should ensure that all staff treat immigration detainees in a humane manner,

    with respect for their inherent dignity, and with fairness and cultural

    sensitivity.

Mainland immigration detention centres:

cross-cutting concerns

Detention infrastructure and environment

  • A comprehensive redevelopment of the Villawood and Perth immigration

    detention centres (IDCs) should be undertaken as a matter of priority. This

    should include the demolition of Stage 1 at the Villawood IDC as a matter of

    urgency, and its replacement with a new facility. This is subject to there being

    a continuing need for such a facility, given the Government’s stated

    intention to detain people in immigration detention centres only as a last

    resort. It should also include comprehensive refurbishments to the Perth IDC, to

    address the issues raised in this report.

Physical health care

  • DIAC should ensure that detainees are updated regularly about the status of

    any requests they have made for external specialist treatment, and any reasons

    why a referral has not been approved.

  • DIAC should ensure that detainees can request and obtain a second medical

    examination or opinion if they wish to do so.

  • For each detainee leaving immigration detention, DIAC should ensure that a

    health discharge assessment is conducted; a health discharge summary is provided

    to the person in a language they can understand; copies of all relevant medical

    records and test results are provided to the person; and appropriate

    arrangements are made for their follow-on medical care in the Australian

    community or in the country of return.

  • DIAC should review its policy regarding certification of ‘fitness to

    travel’, in particular the provision that allows certification to be

    validly based on a physical examination completed within the previous 28

    days.

Mental health care

  • DIAC should ensure that additional psychological support services are

    provided in immigration detention facilities whenever those services are

    required by detainees. DIAC should seek regular feedback from onsite mental

    health staff and act promptly to increase the availability of psychological

    support services when that feedback indicates a need in the current detainee

    population.

  • DIAC should ensure that any detainee in an immigration detention facility

    who has, or is suspected to have, significant mental health concerns or a

    background of torture or trauma is considered for community detention or a

    bridging visa as soon as possible.

  • Detainees on suicide and self-harm observation in Stages 2 and 3 at the

    Villawood IDC should not be transferred to observation rooms in Stage 1.

    Purpose-built observation rooms should be constructed in Stages 2 and 3.

    Detainees should be observed in their own rooms when appropriate.

Recreational activities

  • DIAC should ensure that necessary changes are made at the immigration

    detention centres so that all detainees are provided with adequate access to

    open grassy space for sport and recreation. This is a particular priority in

    Stage 1 at Villawood IDC, Perth IDC and Maribyrnong IDC. In the meantime, DIAC

    and GSL should ensure that detainees in Maribyrnong IDC and Perth IDC have

    regular access to organised sporting activities, for example soccer, outside the

    detention centre. All detainees at Villawood IDC, including those in Stage 1,

    should be permitted to use the soccer pitch in Stage 3 for sporting activities

    on a regular basis.

  • DIAC and GSL should ensure that each immigration detention centre has an

    onsite library area stocked with reading materials in the principal languages

    spoken by detainees at the centre. All detainees should have regular access to

    this area.

  • Management at each of the immigration detention centres should explore the

    possibility of borrowing reading materials on a regular basis from a local

    library or a mobile library service.

  • DIAC should upgrade the outdoor gym facilities at the Perth IDC, at

    Maribyrnong IDC, and in Stage 1 at Villawood IDC. These facilities should be

    enclosed to ensure adequate privacy and protection from the

    weather.

Educational programs

  • DIAC should repeal its policy of prohibiting immigration detainees from

    undertaking a course of study that leads to a formal qualification. DIAC should

    allow detainees to enrol in substantive education courses at TAFE and other

    educational or vocational training institutions. Enrolment could be by

    correspondence. However, where possible, DIAC should consider permitting

    detainees to attend some classes in person.

  • DIAC and GSL should arrange for the provision of structured educational

    classes at the Northern IDC for detainees who wish to participate. This should

    include ESL classes and computing classes.

  • DIAC should ensure that each immigration detention facility has adequate

    space dedicated to educational activities. In particular, DIAC should upgrade

    the Perth IDC to provide dedicated classroom space. The Commission is of the

    view that Stage 1 at Villawood IDC is an inappropriate facility and should be

    demolished. However, if DIAC intends to continue to use Stage 1, it should

    upgrade the facility to provide dedicated space for educational

    classes.

External excursions

  • DIAC should adopt minimum standards for the conduct of regular external

    excursions from immigration detention facilities, and include these standards in

    the contract with the detention services provider. DIAC should monitor

    compliance with these standards on an ongoing basis and take appropriate

    remedial action when they are not being complied with.

  • In the meantime, Villawood management should increase the frequency of group

    excursions, and make them available to detainees in all sections of the centre.

    Maribyrnong management should introduce regular group excursions for all

    detainees. Management at the Perth IDC and the Northern IDC should facilitate

    detainee requests for home visits or other individual excursions where

    possible.

  • DIAC should ensure that the detention services provider is allocated

    sufficient resources to provide escorts for regular external

    excursions.

Use of restraints

  • DIAC and GSL should review their policies and procedures regarding the use

    of restraints on immigration detainees during trips outside immigration

    detention facilities, to ensure that restraints are only used when absolutely

    necessary. Restraints should only be used after a thorough risk assessment has

    been conducted for the individual detainee for the particular trip in question.

    If it is deemed necessary to use restraints, they should be covered while the

    detainee is in public view and they should be removed for appearances in courts

    and tribunals.[6]

  • Policies regarding use of restraints should include clear procedures for

    restraints to be removed in time-sensitive situations that may arise - for

    example, an emergency health issue or a request to use toilet facilities.

    Current and future GSL staff should be trained on these procedures. This

    training should emphasise the use of techniques which ensure that, when it is

    absolutely necessary to restrain a detainee, that person is restrained in

    dignity and with minimum use of force.

Access to communication facilities

  • DIAC should continue to expand access to the internet for immigration

    detainees, particularly at the Northern IDC and the Perth IDC.

Client placement

  • When a person is taken into immigration detention, DIAC should promptly

    inform that person about the various detention arrangements available to them,

    including community detention, alternative detention in the community,

    immigration residential housing and/or immigration transit accommodation.

  • DIAC and GSL should ensure that each detainee is promptly and fully informed

    of the reasons for their placement in a particular detention facility or

    arrangement. This should include explaining the risk assessment process. When a

    detainee makes a formal request to be moved to a different section of the

    facility, or to a different place of detention, DIAC or GSL should respond

    promptly in writing and provide reasons if the request is refused.

  • The Commission hopes to see a new client placement model in place by the

    time of its 2009 annual visits. This should reflect the Government’s new

    directions in immigration detention, in particular that detention in immigration

    detention centres is to be used as a last resort and for the shortest

    practicable time, and that the presumption will be that persons will remain in

    the community while their immigration status is resolved.

Case management

  • DIAC case managers should ensure that each immigration detainee is provided

    with frequent updates regarding progress with their immigration

    case.

Induction materials

  • DIAC and GSL should ensure that all immigration detainees, upon entering

    detention, are promptly provided with current and comprehensive induction

    materials containing information including, but not limited to, the details set

    out in section 10.9(c) of this report.

  • DIAC and GSL induction materials for immigration detainees should be

    translated into the main languages spoken by the detainee population. Each

    detainee should be provided with their own copy in a language they can

    understand. If this is not possible, an interpreter should be provided, in

    person, to go through the materials with the detainee in their preferred

    language.

Interpreters and translation of documents

  • DIAC and GSL should make greater use of onsite interpreters at immigration

    detention facilities. Where there is a significant group of detainees who speak

    the same language, DIAC should consider employing an interpreter to work onsite

    on a regular basis. Concerns previously expressed by GSL regarding the use of

    one full-time interpreter could be overcome by employing or contracting several

    part-time or casual interpreters to work onsite on a rostered basis.

  • Detainees should be offered the option of having a face-to-face interpreter

    present for health and mental health appointments.

  • Posters should be displayed in all immigration detention facilities

    explaining how detainees can access an interpreter. The information on the

    posters should be translated into the main languages spoken by the detainee

    population, and should include the Telephone Interpreting Service phone

    number.

  • Wherever possible, DIAC should ensure that official letters and documents

    provided to a detainee are in a language the detainee can understand. Where this

    is not possible, the detainee should be offered the assistance of a face-to-face

    or telephone interpreter to translate the contents of the letter or document.

  • All DIAC and GSL documents provided or displayed in immigration detention

    facilities should be translated into the main languages spoken by the detainee

    population. DIAC and GSL should coordinate at a national level to ensure this

    takes place. This should include request and complaint forms, induction

    materials, the menu and the program of recreational and educational

    activities.

Visitors’ facilities

  • DIAC should ensure that all immigration detention centres have appropriate

    facilities for detainees to meet with visitors. These should include indoor and

    outdoor areas. Rooms should be available for private visits. The visitors’

    areas should be safe, hospitable and appropriate for children. This is a

    particular concern at Villawood IDC and the Perth IDC.

  • DIAC should ensure that the interview rooms at all immigration detention

    centres are private and soundproofed. This is a particular concern at Villawood

    IDC and Maribyrnong IDC.

Food

  • DIAC and GSL should continue to explore ways to provide people in

    immigration detention centres with greater choice over what they eat, and more

    opportunities to prepare their own food if they wish to do so. This could

    include more cooking classes, more BBQs and occasional take-away food nights.

    DIAC should also consider including more self-catering facilities at the

    immigration detention centres. This could include kitchenette facilities with

    cooking equipment in common areas, or activities kitchens (similar to the

    activities kitchen that previously existed at Baxter IDC).

  • DIAC and GSL should ensure that immigration detention centres have

    appropriate facilities, and follow necessary kitchen practices, to provide meals

    and snacks to any detainees who wish to be provided with halal

    food.

Section 501 detainees

  • DIAC should review the operation of section 501 of the Migration Act as a

    matter of priority, with the aim of excluding long-term permanent residents from

    the provision.

  • DIAC and GSL should ensure that risk assessments for the purposes of client

    placement and external excursions are determined on a case by case basis through

    an assessment of the individual’s history and circumstances; they should

    not be based on the fact that an individual’s visa has been cancelled

    under section 501 of the Migration Act. The reasons for the outcome of the

    assessment should be clearly communicated to the detainee.

Mainland immigration detention centres: specific

concerns

  • Management at the Villawood IDC should address the issues discussed in

    section 11.1 of this report.

  • Management at the Perth IDC should address the issues discussed in section

    11.2 of this report.

  • Management at the Maribyrnong IDC should address the issues discussed in

    section 11.3 of this report.

  • Management at the Northern IDC should address the issues discussed in

    section 11.4 of this report.

Immigration residential housing

(IRH)

  • DIAC should fully utilise the Sydney IRH as an alternative to detaining

    people at the Villawood IDC. DIAC should fully utilise the Perth IRH as an

    alternative to detaining people at the Perth IDC.

  • Detainees at the Sydney IRH and the Perth IRH should be given the option of

    accessing health and mental health staff and services onsite.

  • Management at the Sydney IRH should increase the frequency of recreational

    excursions for detainees.

  • DIAC and GSL should ensure that detainees at the Sydney IRH are provided

    with regular access to recreational and educational activities.

Immigration transit accommodation

(ITA)

  • If DIAC intends to use the ITA facilities to detain people for longer than

    seven days, as an alternative to detaining them in an immigration detention

    centre, DIAC should provide detainees with access to external excursions,

    organised recreational and educational activities, and health and mental health

    services, as appropriate.

Community detention

  • The Commission urges DIAC and the Minister for Immigration and Citizenship

    to make greater use of community detention arrangements, rather than holding

    people in immigration detention facilities.

  • The eligibility criteria for referral for a Residence Determination should

    be broadened. In addition to the current criteria, any person who has been in an

    immigration detention facility for three months or more should be able to apply

    for, or be referred for, a Residence Determination. In the meantime, DIAC should

    ensure that all immigration detainees who meet one of the current eligibility

    criteria are referred to the Minister without delay. In particular, any

    detainees with significant health or mental health issues, or with a background

    of torture or trauma, should be promptly considered for a Residence

    Determination.

  • DIAC should adopt a formal policy, without delay, to clarify its requirement

    that people in community detention must obtain approval before undertaking

    unpaid voluntary work. The policy should be clear and transparent. It should set

    out: the steps required to apply for approval; the criteria to be considered in

    determining whether a voluntary work placement is ‘suitable’; the

    type of insurance coverage required by the organisation; and the timeframe in

    which requests will be responded to. DIAC should ensure that all requests are

    promptly considered and responded to. Reasons should be provided if the request

    is denied.

  • DIAC should allow people in community detention to enrol in substantive

    education courses at TAFE and other educational or vocational training

    institutions.

Christmas Island

  • People should not be held in immigration detention on Christmas Island.
  • The Australian Government should repeal the provisions of the Migration Act

    relating to excised off-shore places. All unauthorised arrivals who make claims

    for asylum should have those claims assessed through the refugee status

    determination process on the Australian mainland.

  • The new Christmas Island IDC should not be used to hold people in

    immigration detention.

Children in immigration detention

  • The Australian Government should implement in full the recommendations made

    by the Commission in the report of its national inquiry into children in

    immigration detention, A last resort? These include the

    following:

(1) Australia's immigration detention laws should be

amended, as a matter of urgency, to comply with the Convention on the Rights

of the Child. In particular, the new laws should incorporate the

following minimum features:

  • There should be a presumption against the detention of children for

    immigration purposes.

  • A court or independent tribunal should assess whether there is a

    need to detain children for immigration purposes within 72 hours of any initial

    detention (for example for the purposes of health, identity or security checks).

  • There should be prompt and periodic review by a court of the

    legality of continuing detention of children for immigration purposes.

  • All courts and independent tribunals should be guided by the

    following principles:

    • detention of children must be a measure of last resort and for the shortest

      appropriate period of time

    • the best interests of the child must be a primary consideration
    • the preservation of family unity
    • special protection and assistance for unaccompanied children.
  • Bridging visa regulations for unauthorised arrivals should be

    amended so as to provide a readily available mechanism for the release of

    children and their parents.

(2) An independent guardian should be

appointed for unaccompanied children and they should receive appropriate

support.

    • Children should only be detained in an IRH or ITA facility as a measure of

      last resort and for the shortest appropriate period of time. DIAC should

      consider any less restrictive alternatives that may be available to an

      individual child before deciding to place that child in an IRH or ITA facility.

      Until the recommendation in section 14.2 of this report is implemented and a

      system of independent review is established, the absolute maximum time of

      detention in these cases should be four weeks for a child with a family member,

      or two weeks for an unaccompanied child.

    • Children should not be held in immigration detention on Christmas Island.

      However, if DIAC intends to continue this practice, children should be

      accommodated with their family members in DIAC’s community based

      accommodation. They should not be detained at the construction camp facility,

      the Phosphate Hill IDC or the new Christmas Island IDC.

4 Methodology

4.1 List of

visits

The Human Rights Commissioner and staff from the Commission conducted annual

visits to Australia’s immigration detention facilities as follows:

Villawood Immigration Detention Centre
23-25 June 2008
Sydney Immigration Residential Housing
25 June 2008
Perth Immigration Detention Centre
14-15 July 2008
Perth Immigration Residential Housing
15 July 2008
Brisbane Immigration Transit Accommodation
5 August 2008
Christmas Island immigration detention facilities
12-13 August 2008
Maribyrnong Immigration Detention Centre
25-26 August 2008
Melbourne Immigration Transit Accommodation
27 August 2008
Northern Immigration Detention Centre
1-2 September 2008

In July and August 2008, the Commissioner and/or staff from the Commission

conducted nine visits to people in community detention, as follows:

Western Australia
1 single man
July 2008
Queensland
1 single man
August 2008
Christmas Island
1 family of four persons
August 2008
New South Wales
1 family of three persons
3 individual single men
August 2008
August 2008
Victoria
1 unaccompanied minor
1 single man
August 2008
August 2008

In addition, the Commissioner and one Commission staff member conducted the

following visits:

  • Visit to a person in immigration detention temporarily accommodated at

    Toowong Private Hospital, a mental health facility in Queensland (August

    2008).

  • Visit to the ACV Triton, a vessel used by the Australian Customs Service and

    the Australian Fisheries Management Authority to patrol Australia’s

    northern waters and to apprehend alleged ‘illegal foreign fishers’,

    most of whom are later transferred to the Northern IDC (September

    2008).

4.2 Program for

visits to detention facilities

The Commission arranged its visits with DIAC ahead of time. Before each

visit, DIAC provided the Commission with statistics on the persons detained in

the facility. The Commission provided DIAC with a poster to be displayed in the

facility, announcing the Commission’s visit and asking detainees to

indicate their interest in speaking with the Commission.

During the visits to mainland immigration detention facilities, the

Commissioner and Commission staff conducted the following activities:

  • A tour and general inspection of the facility.
  • Interviews with DIAC and GSL management.
  • Separate interviews with health care staff, mental health care staff,

    kitchen staff, and recreation and education staff.

  • Lunch in communal dining areas.
  • Private individual interviews with any detainees wishing to speak to the

    Commission.

  • Participation in meetings of the ‘client consultative

    committee’, when these coincided with the Commission’s visit.

  • Review of relevant DIAC and GSL documentation regarding operation of the

    facility.

  • Follow-up with DIAC and GSL management on any issues of concern arising

    during the visit.

In the case of Christmas Island, the

Commission’s visit included the following activities:

  • Private tours of the immigration detention facilities on the island,

    including the new Christmas Island Immigration Detention Centre, the Phosphate

    Hill Immigration Detention Centre, the immigration detention facilities at the

    former construction workers’ camp, and the bedsit and duplex accommodation

    in the community.

  • Interviews with DIAC and GSL management.
  • Review of relevant DIAC and GSL documentation.
  • Private interviews with health care staff.
  • Private meetings with a range of local community representatives.
  • Participation in an external stakeholders’ group tour of the

    immigration detention facilities on the island, facilitated by DIAC.

  • Follow-up with DIAC and GSL management on issues of concern arising during

    the visit.

4.3 Conduct of

community detention visits

The Commission’s visits to people in community detention were arranged

through DIAC ahead of time. In most cases the Commission requested that DIAC

facilitate a visit with a particular individual. In some cases, the Commission

identified a small group of people for potential visits, and DIAC arranged

visits with a few individuals from that group.

Visits to people in community detention were conducted on a voluntary basis.

The visits were conducted at each person’s official place of residence, as

determined by their Residence Determination. During each visit, the Commissioner

and/or Commission staff asked a range of questions about the conditions in

community detention. People were free to make any additional comments or raise

any matters of concern. DIAC and GSL staff were not present during the

interviews.

 

5 Background

5.1 Purpose of

visits

The Commission conducts annual visits to Australia’s immigration

detention facilities to monitor conditions in the facilities. The

Commission’s aim is to ensure that conditions are consistent with

internationally recognised human rights standards.

The Commission has concluded on prior occasions that Australia’s system

of mandatory immigration detention breaches fundamental human rights and fails

to uphold Australia’s international

obligations.[7] The fact that the

Commission conducts inspections of Australia’s immigration detention

facilities should not be taken in any way as an endorsement of the immigration

detention system. Rather, it is a reflection of the Commission’s view that

while the mandatory detention system remains in place, the conditions within

detention must be monitored to ensure they meet international human rights

standards.

The annual visits are one aspect of the Commission’s broader work on

immigration matters. This also includes:

  • Making submissions to parliamentary inquiries. Most recently, the Commission

    made a submission to the Joint Standing Committee on Migration Inquiry into

    Immigration Detention in

    Australia.[8]

  • Conducting national inquiries. This includes A last resort? National

    Inquiry into Children in Immigration Detention (2004)[9] and Those who’ve

    come across the seas: Detention of unauthorised arrivals (1998).[10]

  • Investigating complaints from individuals in immigration detention regarding

    alleged human rights breaches.[11] As of late 2008, the Commission’s complaint handling section had received

    seven official complaints from immigration detainees during the course of the

    year.

  • Examining proposed legislation, and commenting on policies and procedures

    relating to immigration detention.

5.2 Relevant human

rights standards

Immigration detention is administrative detention, not a prison or

correctional sentence. Immigration detainees are detained under the Migration

Act 1958 (Cth) (Migration Act) because they do not have a valid

visa.[12] They are not detained

because they are under arrest, or because they are charged with a criminal

offence. Therefore, the treatment of immigration detainees should be as

favourable as possible, and in no way less favourable than that of untried or

convicted prisoners.[13]

The conditions in immigration detention and treatment of detainees must

comply with Australia’s international human rights obligations. These are

contained in a range of international treaties the Australian Government has

voluntarily become a party to, including:

  • The International Covenant on Civil and Political Rights (1966)

    (ICCPR).[14]

  • The Convention against Torture and Other Cruel, Inhuman and Degrading

    Treatment or Punishment (1984) (Convention against

    Torture).[15]

  • The Convention Relating to the Status of Refugees (1951) (Refugee

    Convention) and the Protocol Relating to the Status of Refugees (1967)

    (Refugee Protocol).[16]

  • The Convention on the Rights of the Child (1989)

    (CRC).[17]

These

treaties cover a broad range of rights and freedoms. The key human rights

principles relevant to people in immigration detention include the

following:

The principle of non-refoulement prohibits Australia from returning

a refugee to a country where his or her life or freedom would be

threatened.[18]

Everyone has the right to liberty and security of the person. No one should

be subjected to arbitrary arrest or

detention.[19]

Anyone deprived of his or her liberty has the right to challenge the

lawfulness of his or her detention before a

court.[20]
All persons deprived of their liberty should be treated with humanity and

respect for the inherent dignity of the human

person.[21]

No one should be subjected to torture or to cruel, inhuman or degrading

treatment or punishment.[22]
The detention of a child should be used only as a measure of last resort

and for the shortest appropriate period of

time.[23]
In all actions concerning children, the best interests of the child should

be a primary consideration.[24]

Anyone who is detained should have access to independent legal advice and

assistance.[25]
Everyone is entitled to respect for their human rights without

discrimination.[26]

Specific international standards relating to the treatment of detained

persons include:

  • The Body of Principles for the Protection of all Persons under Any Form

    of Detention or Imprisonment (1988).[27]

  • The Standard Minimum Rules for the Treatment of Prisoners (1955).[28]
  • The United Nations Rules for the Protection of Juveniles Deprived of

    their Liberty (1990).[29]

  • Guidelines issued by the United Nations High Commissioner for Refugees

    (UNHCR), including the Revised Guidelines on Applicable Criteria and

    Standards Relating to the Detention of Asylum Seekers (1999).[30]

In March

2000, the Commission developed the Immigration Detention

Guidelines.[31] The Guidelines

are based on relevant international standards, and are intended to act as a

minimum benchmark against which conditions in Australia’s immigration

detention facilities can be measured.

 

6 Monitoring

of standards in immigration detention

6.1 Standards for

conditions and treatment

Australian law does not set out minimum standards for treatment of

immigration detainees. In the absence of this, the Commission is of the view

that there is currently no effective mechanism in place to ensure that all

immigration detainees are treated in accordance with Australia’s human

rights obligations.

The detention services provider, GSL, is required to meet its service

requirements in line with the Immigration Detention Standards (IDS). The

Commission has previously expressed concerns that the IDS do not provide enough

guidance to service providers on what steps they must take to ensure that

conditions in detention comply with human rights standards. Further, the IDS are

not embedded in legislation; there is no independent external accountability

mechanism to monitor whether the service provider is complying with the IDS; and

the IDS do not provide detainees with access to effective remedies for breaches

of their human rights.

Recommendation: Minimum standards for conditions and treatment of

persons in immigration detention should be codified in

legislation.[32] These should be

based on relevant international human rights standards.

6.2 External scrutiny

of immigration detention facilities

The Commission is one of several external bodies that play a role in

monitoring conditions in immigration detention facilities. While the Commission

is of the view that it plays a valuable role in this regard, there are limits to

what the Commission can achieve under its existing powers.

The Commission does not have a specific statutory power to enter

immigration detention

facilities,[33] although in practice

it has been provided with access. The Commission’s statutory powers that

allow it to monitor conditions in immigration detention do not explicitly extend

to monitoring Australia’s compliance with its obligations under the

Convention against Torture (although some of these obligations are reflected in

other human rights treaties to which the Commission’s powers

apply).[34] And, while the

Commission has a statutory power to investigate complaints regarding alleged

human rights breaches in detention

facilities,[35] the

Commission’s recommendations in these cases are not legally

enforceable.[36]

Other bodies that scrutinise immigration detention facilities also face

limitations. The Immigration Detention Advisory Group (IDAG) plays an important

advisory role, and the Commonwealth Ombudsman performs key functions in making

unannounced visits and conducting reviews of all people detained for two years

or more. However, neither IDAG nor the Ombudsman can legally enforce their

recommendations.

In the Commission’s view there is a need for a more comprehensive

monitoring mechanism to ensure that conditions in immigration detention

facilities meet human rights standards. This mechanism should consist of an

independent body with the power to enter detention facilities, and a mandate

based on international human rights standards. The Australian Government should

be legally required to consider and respond to the recommendations made by the

monitoring body.

The Commission has welcomed the Government’s commitment to become a

party to the Optional Protocol to the Convention against Torture (OPCAT). The

OPCAT requires the establishment of an independent National Preventive Mechanism

(NPM) to conduct inspections of all places of detention in order to prevent

torture and ill-treatment and make recommendations on improving internal

conditions. The establishment of such a mechanism, in line with the OPCAT, would

facilitate a greater level of transparency and accountability with regard to

conditions in immigration detention facilities.

The Commission recently released a report of research it

commissioned into options for implementing the OPCAT in

Australia.[37] The report suggests a

mixed NPM model, with separate NPMs in each state and territory and a national

coordinating NPM. The report suggests that the Commission should become the

national coordinating NPM.

Recommendation: The Australian Government should accede to the

Optional Protocol to the Convention against Torture and establish an independent

National Preventive Mechanism to conduct regular inspections of all places of

detention, including immigration detention facilities.

 

7 Number of people in

detention

The Commission did not observe a significant reduction in the number of

detainees at each immigration detention centre at the time of its 2008 visits,

compared to the number of detainees during its 2007 visits. The most notable

exception to this was Villawood IDC. There were 201 detainees at Villawood when

the Commission visited in June 2008, compared to 267 detainees the year before.

The number of detainees at the Northern IDC was also much lower during the

Commission’s 2008 visit compared to the 2007 visit. However, this was most

likely due to the fact that the 2008 visit was conducted earlier in the year

when the fishing season in the northern waters was not at its peak.

There was, however, a decline in the total number of detainees over the

course of the Commission’s 2008 visits. When the Commission began its

visits in June 2008, there were 377 people in immigration detention, including

302 in immigration detention

centres.[38] When the Commission completed its visits in September 2008, the number of

immigration detainees had decreased to 281 people, 198 of whom were in

immigration detention

centres.[39]

The Commission welcomes this decrease and hopes that the number of people

being held in immigration detention will continue to decline as the Government

implements its ‘new directions’ for immigration

detention.[40]

 

8 Length and uncertainty

of detention

The number of long-term immigration detainees has declined over the past few

years. In August 2008 the Commonwealth Ombudsman noted that, over the prior

three years, the number of people in immigration detention for two years or more

had decreased from 160 to 44.[41] The Commission welcomes this trend and the efforts made by the Minister for

Immigration in reviewing long-term cases since coming to office. However, the

Commission remains concerned about the length of time some people are being held

in immigration detention.

When the Commission began its visits in June 2008, of the 377 people in

immigration detention, 131 had been detained for 12 months or more, 86 had been

detained for 18 months or more, and 53 had been detained for two years or

more.[42] In September 2008 when the

Commission’s visits were completed, of the 281 people in detention, 109

had been detained for 12 months or more, 69 had been detained for 18 months or

more, and 42 had been detained for two years or

more.[43]

During the 2008 visits, the Commissioner and Commission staff spoke with

people who had been in immigration detention for periods of two years, three

years, and in one case, around six years.

As in previous years, the Commission met with detainees who expressed

feelings of frustration and anger at the length of time they had been detained,

as well as disbelief that this could take place in Australia. Some detainees

were visibly distressed or spoke of being depressed. Virtually all detainees who

spoke with the Commission were uncertain about how much longer they would have

to stay in detention, or what their ultimate immigration outcome would be.

While the Commission has observed improvements in the physical conditions of

immigration detention facilities over the past few years, the most critical

issue remains: people are being detained for prolonged and indefinite periods,

without knowing when they will be released or whether they will be allowed to

stay in Australia when that happens. It is well established that detaining

people in these circumstances leads to negative impacts on their mental

health.[44]

The Commission has consistently called for the repeal of mandatory detention

because it places Australia in breach of its international obligations,

including to ensure that no one is arbitrarily

detained.[45]

The Commission notes that the Government’s new ‘key immigration

values’ include the following:

  • Detention that is indefinite or otherwise arbitrary is not acceptable. The

    length and conditions of detention, including the appropriateness of both the

    accommodation and the services provided, will be subject to regular review.

  • Detention in immigration detention centres is only to be used as a last

    resort and for the shortest practicable

    time.[46]

The Commission

hopes to see significant changes as a result of the implementation of these

values when it conducts its annual inspections in 2009. That is, fewer people

held in detention and for much shorter periods. Further, it is essential that

these values are embedded in legislation, to ensure they are applied in a

transparent and accountable manner.

Recommendations: Australia’s mandatory detention law should be

repealed.


The Migration Act should be amended so that immigration detention occurs

only when necessary. This should be the exception, not the norm. It must be for

a minimal period, be reasonable and be a proportionate means of achieving at

least one of the aims outlined in international

law.[47] These limited grounds for

detention should be clearly prescribed in the Migration Act.


The Migration Act should be amended so that the decision to detain a person

is subject to prompt review by a court, in accordance with international law.


The Migration Act should be amended to include periodic independent reviews

of the ongoing need to detain an individual, and a maximum time limit for

detention.[48]

 

9 Staff

attitudes

In general, the Commission has observed improvements in staff attitudes at

immigration detention facilities over the past few years. Detainees who spoke

with the Commission in 2008 expressed mixed views about the attitudes of

detention staff. Some expressed positive views. For example, detainees at the

Northern IDC were pleased with the treatment they received from DIAC and GSL

staff.

However, other detainees expressed concerns about issues such as a lack of

cultural respect shown by particular staff members, or a failure of staff to use

interpreters when engaging with detainees who do not speak English. Some

detainees expressed frustration at the lack of information provided to them by

DIAC staff in connection with their immigration case. At Villawood IDC, several

detainees raised concerns about instances where they felt they had been treated

unfairly by staff. Several detainees said they were scared to complain for fear

of retaliation, and claimed they had been threatened with being moved to a

higher security section of the centre if they complained about certain

incidents.

Recommendation: DIAC and GSL should ensure that all current and

future staff are provided with adequate training to educate them about the human

rights of persons in immigration detention. Staff training and performance

management procedures should ensure that all staff treat immigration detainees

in a humane manner, with respect for their inherent dignity, and with fairness

and cultural sensitivity.

 

10 Mainland immigration

detention centres: cross-cutting concerns

10.1 Detention

infrastructure and environment

Over the past six years, the Commission has welcomed the closure of some of

Australia’s harshest and most remote immigration detention facilities,

including the detention centres at Woomera, Baxter, Port Hedland and Curtin. The

Commission has also noted positive additions to the detention infrastructure, in

the form of alternatives to immigration detention centres. These include

immigration residential housing in Sydney and Perth and immigration transit

accommodation in Brisbane and Melbourne.

However, the Commission has significant concerns about the infrastructure and

environment at the remaining mainland immigration detention centres. Put simply,

most of the centres feel like prisons. High wire fences, lack of open green

space, walled-in courtyards, ageing buildings, pervasive security features,

cramped conditions and lack of privacy combine to create an oppressive

atmosphere.

DIAC has developed the Standards for design and fitout of immigration

detention facilities (DIAC

Standards).[49] The DIAC Standards purport to provide people in immigration detention with

‘accommodation commensurate with Australian community standards and

expectations.’[50] The

Commission welcomes this initiative, and notes that the detention facilities

constructed in recent years provide a higher standard of accommodation and a

more comfortable environment for detainees.

However, the majority of detainees continue to be held in the older

immigration detention centres where the infrastructure and environment, in the

Commission’s view, fall a long way short of meeting the DIAC

Standards.

One of the Commission’s major concerns is the security-driven

atmosphere at the immigration detention centres. This is created by the use of

physical measures such as high wire fencing and razor wire, and surveillance

measures such as closed circuit television. The DIAC Standards state that

‘[t]he underlying principle for security systems at all detention

facilities is that security must be as unobtrusive as possible’ and that

‘[c]rude containment devices such as razor wire, observation platforms,

correctional fencing should be avoided wherever

possible.’[51] In practice,

this is far from being achieved.

Another major concern is ageing and inappropriate infrastructure,

particularly in Stage 1 at Villawood IDC, and the Perth IDC. The conditions are

cramped, detainees share dormitory style bedrooms with very little privacy, and

there are no open grassy areas for recreational use. Again, these facilities

fall short of the DIAC Standards. For example, the section on detainee

accommodation states that ‘a maximum of two persons are accommodated in

each bedroom during surge conditions’ and that ‘regard is given to

providing adequate space and a sense of personal amenity in personal

accommodation areas.’[52] In

practice, dormitory style bedrooms are often used to accommodate multiple

detainees in bunk beds, with no privacy except what is provided by sheets strung

up around the bed-frame.

The Commission has a number of specific concerns about the infrastructure and

environment at each of the immigration detention centres, as discussed in

section 11 below. Many of these concerns have been raised by the Commission

before, some on numerous occasions. For example, the Commission has raised

concerns over a ten year period about the need for major changes to Stage 1 at

Villawood.[53]

The Minister for Immigration has recently acknowledged that Australia’s

immigration detention infrastructure is ‘seriously inadequate’ and

‘ageing and

inappropriate.’[54] The

Minister has also stated that the Commission’s criticisms of existing

facilities at Villawood are ‘totally

justified’.[55]

The Commission is aware that selected renovations are planned for both

Villawood and the Perth IDC, and it fully supports these developments. However,

the Commission’s view is that these selective renovations will not be

sufficient to address the significant problems with the infrastructure and

physical facilities in those centres.

Recommendation: A comprehensive redevelopment of the Villawood and

Perth immigration detention centres should be undertaken as a matter of

priority. This should include the demolition of Stage 1 at the Villawood IDC as

a matter of urgency, and its replacement with a new facility. This is subject to

there being a continuing need for such a facility, given the Government’s

stated intention to detain people in immigration detention centres only as a

last resort. It should also include comprehensive refurbishments to the Perth

IDC, to address the issues raised in this report.

10.2 Physical health

care

(a) Availability and

quality of health care

At each of the immigration detention centres, the Commission met with staff

of the health service provider, International Health Medical Services (IHMS),

and spoke with detainees about the health services provided.

Each of the centres has a nurse’s clinic. Nurses are present onsite

during regular business hours from Monday to Friday (at a minimum), and are on

call outside these hours. Detainees can see a General Practitioner (GP) onsite

by making an appointment during set clinic times, which range from one session

per week to five sessions per week at the different centres.

Detainees are able to get a referral to see an external health specialist

(e.g. a physiotherapist or optometrist), if necessary. However, they must wait

for an available appointment, in the same manner that a member of the Australian

community would have to wait. For emergency health needs, detainees are taken to

public hospitals.

Detainees who spoke with the Commission in 2008 expressed mixed views about

the health services provided. Some were satisfied with the services, and had no

particular comments to make. However, a few detainees expressed frustrations

about instances where they felt they had to wait too long to see a GP or a

specialist, or where they felt they were not provided with a correct diagnosis

or adequate medical treatment.

Recommendations: DIAC should ensure that detainees are updated

regularly about the status of any requests they have made for external

specialist treatment, and any reasons why a referral has not been

approved.


DIAC should ensure that detainees can request and obtain a second medical

examination or opinion if they wish to do

so.[56]

(b) Procedures prior to

leaving detention

The Commission is concerned that when a person leaves an immigration

detention facility, there does not appear to be a consistent practice of

providing each detainee with copies of their medical records; ensuring that

appropriate arrangements are made for follow-on medical care or treatment; or

undertaking an examination of each departing detainee before that person is

classified as ‘fit to travel.’

In response to this concern, DIAC has informed the Commission that the

following steps are taken before a person leaves immigration detention:

  • A Health Discharge Assessment (HDA) is conducted by the health services

    provider (IHMS). The HDA is a review of the person's physical and mental health

    status at the point of their discharge from immigration detention. It requires

    the health services provider to review the health records of the person being

    discharged to consider the medical history and current health status and to

    summarise this information in a health discharge summary.

  • The health discharge summary is provided to the person on discharge, who is

    instructed that they should provide this summary to their GP in the community.

    The GP is able to contact IHMS if they require any additional information. Along

    with the summary, people are also provided with any relevant referral letters

    and radiology and pathology reports.

  • Where a person is being removed from Australia, the HDA provides a

    certification of fitness to travel. This certification can be validly based on a

    physical examination completed within the previous 28 days, unless there is an

    obvious or suspected change in the person's health status. If a person has not

    been seen by the health services provider in the 28 days preceding their

    scheduled removal date, they are offered a physical examination. In the event

    that they refuse to undergo the physical examination, a discussion takes place

    with the person to ensure they understand the reason for the assessment. If the

    person still does not consent to the examination, the refusal is recorded on

    their health record and the health services provider then makes the HDA and

    fitness to travel certification based on the medical information available.

  • If the person being removed has any specific health concerns requiring

    ongoing management, the health services provider, with approval from DIAC,

    attempts to establish local arrangements with health care providers in the

    destination country in order to maintain continuity of

    care.

However, the Commission’s conversations with staff at

immigration detention centres raised concerns that, in practice, these steps

might not always be followed at all centres. In particular, these discussions

suggested that detainees are not always provided with test results and medical

records (although they may be provided if specifically requested); that staff of

the health services provider do not routinely make arrangements for follow-on

care in the community or in the country of return; and that the fitness to

travel certification is sometimes done without undertaking a physical

examination of the detainee.

The Commission is also concerned that a detainee might be certified as

‘fit to travel’ based on a physical examination done up to 28 days

before the certification is issued. DIAC policy states that this will not be the

case if there is an ‘obvious or suspected change in the person's health

status.’ However, without requiring that the detainee be assessed by a

medical professional much closer to the day of removal, it is not clear how DIAC

ensures that changes in a person’s health status during that time are

monitored or acted upon. This could potentially lead to detainees being removed

from Australia despite the fact that they might not actually be ‘fit to

travel’ at the time, due to health or mental health concerns.

Recommendations: For each detainee leaving immigration detention,

DIAC should ensure that a health discharge assessment is conducted; a health

discharge summary is provided to the person in a language they can understand;

copies of all relevant medical records and test results are provided to the

person; and appropriate arrangements are made for their follow-on medical care

in the Australian community or in the country of return.

DIAC should review its policy regarding certification of ‘fitness to

travel’, in particular the provision that allows certification to be

validly based on a physical examination completed within the previous 28 days.

10.3 Mental health

care

In its 2007 inspection report the Commission noted that, overall, the

provision of mental health services in immigration detention centres appeared to

have improved over the past few

years.[57] This observation was

based on various factors, including positive feedback from mental health staff

about the newly introduced system of mental health assessments and about the

increased seriousness with which DIAC was treating their recommendations.

During the 2008 visits, the Commission mostly heard similar views from mental

health staff at the immigration detention centres. Staff expressed positive

views about the system of mental health assessments, under which an initial

assessment is conducted for each detainee within 72 hours of arrival and a

follow-up is done every three months (or once a month for any detainee of

particular concern). However, some concerns were expressed about detainees with

a background of torture or trauma spending prolonged periods in detention, and

their referrals for Residence Determinations being processed too slowly.

The Commissioner and Commission staff had concerns for the mental wellbeing

of some detainees they met with during the 2008 visits. Several detainees spoke

of the help they were receiving from mental health staff. However, other

detainees felt that mental health staff could do little to help them, as the

main source of their distress and anxiety was the fact that they were being

detained for an undefined period of time, without any certainty about what would

happen to them at the end of that period. Some expressed fears about being

returned to their country of origin, and others expressed concerns for family

members left behind. Several detainees had attempted to harm themselves while in

detention, and a few had spent some time in a psychiatric facility.

The negative effects of prolonged and uncertain periods of detention on

detainees’ mental health have been well

documented.[58] The Commission has

noted in its past two annual inspection reports that this continues to be a

fundamental problem which cannot be adequately addressed by the delivery of

mental health services in immigration

detention.[59] This is because,

often, the detention itself causes or exacerbates mental health concerns. Mental

health staff have little control over the length of detention, so they cannot

effectively address this cause of distress for detainees. The Commission has

consistently called for the repeal of the mandatory detention system in

Australia, in part because of the devastating effects it has had, and continues

to have, on the mental health and wellbeing of people

detained.[60]

(a) Availability of

mental health staff

In most cases, the delivery of mental health services for detainees in

mainland immigration detention centres is contracted out to a private company,

Professional Support Services (PSS). The staffing arrangements are as

follows:

  • At Villawood IDC, the mental health team consists of the team leader, three

    mental health nurses, one counsellor, one part-time psychologist, and a

    psychiatrist who visits once each week.

  • At Maribyrnong IDC, there is a full-time mental health nurse, a part-time

    psychologist onsite three days each week, and a second psychologist who works a

    certain number of hours each week depending on the number of detainees in the

    centre.

  • At the Perth IDC, there is a mental health team leader (a part time role

    filled by IHMS), and a part-time psychologist onsite for three half days each

    week.

  • At the Northern IDC, there is a part-time psychologist onsite for a certain

    number of hours each week depending on the number of detainees in the centre.

The Commission has concerns about the method for calculating the

availability of psychological staff, which in some centres is based on the

number of detainees in the centre at the time. For example, at Maribyrnong the

Commission was informed that the second psychologist is onsite for four hours

each week when there are fewer than 60 detainees in the centre. At the Northern

IDC, a psychologist is available for up to eight hours per week for fewer than

75 detainees, up to ten hours per week for 75 to 100 detainees, and up to 26

hours per week for more than 100 detainees.

This system is based on the assumption that a smaller number of detainees

will require a lower level of psychological support services. While this might

be the case in some circumstances, it will not always be so. The number of

detainees will not necessarily determine the level of psychological support

services required at any given time. Rather, this will depend on factors

including the personal backgrounds of those detained, and the length of time

each of them has been in detention.

In response to this concern, DIAC has informed the Commission that it has the

scope to increase staff availability if additional psychological support

services are required at a given time.

Recommendation: DIAC should ensure that additional psychological

support services are provided in immigration detention facilities whenever those

services are required by detainees. DIAC should seek regular feedback from

onsite mental health staff and act promptly to increase the availability of

psychological support services when that feedback indicates a need in the

current detainee population.

(b) Mental health

referrals and recommendations

Generally, detainees can access psychological counselling onsite with a

member of the mental health staff at an immigration detention centre. External

referrals can also be made to psychiatrists, specialist counselling centres or

psychiatric facilities.

For example, in Melbourne detainees can access counselling services at

Foundation House (run by the Victorian Foundation for Survivors of Torture).

Occasionally detainees are admitted to a nearby mental health hospital for a

short period of time. However, the hospital has a limited capacity to accept new

admissions. In Sydney, detainees from Villawood can be temporarily admitted to a

facility such as Banks House, a mental health unit attached to

Bankstown-Lidcombe Hospital. The Commission was informed that this occurs

approximately once every two months. In Perth, detainees can be referred to a

psychologist at a nearby hospital.

DIAC also has an arrangement with Toowong Private Hospital, a mental health

facility near Brisbane. Immigration detainees are occasionally accommodated at

the hospital on a temporary basis. Their admission must be approved by both DIAC

and the hospital ahead of time. During 2008, the Commission met with an

immigration detainee at Toowong Private Hospital. The individual had arrived

there one week earlier, after spending seven months in detention at

Villawood.

Generally, mental health staff who spoke with the Commission during the 2008

visits indicated that their recommendations regarding external treatment for

individual detainees are considered and acted upon by DIAC. However, some

concern was raised about the prolonged detention of persons with backgrounds of

torture or trauma, and the length of time taken for such detainees to be moved

to community detention.

Recommendation: DIAC should ensure that any detainee in an

immigration detention facility who has, or is suspected to have, significant

mental health concerns or a background of torture or trauma is considered for

community detention or a bridging visa as soon as possible.

(c) Suicide and

self-harm observation

The Commission has commented on the Suicide and Self-Harm (SASH) observation

system in its previous annual inspection

reports.[61] Under this system,

detainees suspected of being at risk of suicide or self-harm are placed on a

temporary program of observation. Detainees considered to be at greater risk are

observed constantly or at more regular intervals, while those considered to be

at less risk are monitored at less regular intervals. Generally, detainees on

constant or very regular SASH observation are moved to an observation room

within the detention centre.

At Maribyrnong, detainees on SASH observation are moved to one of two

observation rooms in Zone C. This apparently occurs, on average, around twice

each month. While the rooms are quite hard and bare, they are in better

condition than the observation rooms at some of the other centres. Detainees in

these rooms have access to a shared recreation room and a small outdoor

courtyard.

At the Perth IDC, the preference is to observe detainees on SASH observation

in their own room when possible. If necessary, they are moved to the medical

observation room, but this apparently does not happen often. The room has been

recently refurbished. However, it has very little natural light, and no access

to an outdoor area. The Commission was provided with records listing 54

instances of SASH observation at the Perth IDC between July 2007 and July 2008.

This is approximately one detainee on SASH observation each week.

At the Northern IDC, some detainees on SASH observation are observed in their

own rooms. If there are serious concerns for their safety, they are moved to the

Oscar compound, a small area containing two observation rooms and several

additional bedrooms. The observation rooms are basic and bare, with a single bed

and a small adjoining bathroom. They are situated in ageing demountable blocks,

and are of poorer quality than the observation rooms at Maribyrnong and Perth

IDC. There is no recreation room in the compound, but detainees have access to a

small outdoor area. The Commission was informed that detainees on SASH

observation have been placed in Oscar compound three or four times since the

Commission’s last annual visit.

The Commission’s most significant concerns about SASH observation

relate to Villawood IDC. There, the observation rooms are located in Stage 1,

the most run-down and highest security section of the centre. Because there are

no observation rooms in Stages 2 and 3 of Villawood (with the exception of one

room in the women’s compound), detainees on constant SASH observation are

moved to the observation rooms in Stage 1. These rooms are not appropriate for

use by people at risk of suicide or self-harm. They are not sectioned off from

the rest of Stage 1, which might raise privacy and security concerns. The rooms

are inhospitable and bare, and do not have direct access to an outdoor area. The

Commission has called for the demolition of Stage 1 because of the ageing and

inappropriate facilities.[62]

Because Stage 1 is the high security section of the centre, the Commission

has heard that some detainees are scared to be moved there, and some consider it

a punishment. This could act as a disincentive for detainees to be completely

open with mental health staff in counselling sessions, fearing that they might

be placed on SASH observation and moved to Stage 1. It could also lead to mental

health staff being reluctant to place detainees on constant SASH observation,

out of concern that a move to a Stage 1 observation room might be harmful rather

than helpful.

The Commission has raised significant concerns about the Stage 1 observation

rooms in its past two annual inspection

reports.[63] Since the

Commission’s last visit to Villawood, DIAC has announced plans to develop

a new self-contained ‘high care unit’ in Stage 1. This will include

three bedrooms suitable for use by detainees on SASH observation, and should be

completed by January 2009. By April 2009, a redevelopment of the Management

Support Unit (MSU) at Villawood should also be completed. DIAC intends to turn

the MSU into a ‘high care unit’ for detainees in Stages 2 and 3 of

Villawood, with rooms suitable for SASH observation. The Commission has been

informed that, once the MSU redevelopment is complete, detainees from Stages 2

and 3 will no longer be transferred to observation rooms in Stage 1.

The Commission looks forward to seeing these completed refurbishments at its

next annual visit to Villawood. However, while newly refurbished observation

rooms will be a welcome development in Stage 1, this will not alter the

Commission’s long held view that Stage 1 is an inappropriate facility and

should be demolished. Similarly, the Commission welcomes the intention to

refurbish the MSU. However, in the Commission’s view, the MSU would need a

complete overhaul in order for it to be turned into a facility appropriate for

accommodating people at risk of self-harm. Refer to section 11.1 below for

further comments about the MSU.

Recommendation: Detainees on SASH observation in Stages 2 and 3 at

the Villawood IDC should not be transferred to observation rooms in Stage 1.

Purpose-built observation rooms should be constructed in Stages 2 and 3.

Detainees should be observed in their own rooms when appropriate.

10.4 Recreational

activities

The 2000 Immigration Detention Guidelines provide that immigration

detainees should have access to materials and facilities for exercise,

recreation, cultural expression and intellectual and educational pursuits to

utilise their time in detention in a constructive manner, and for the benefit of

their physical and mental

health.[64] The Guidelines also

state that the range of activities and programs should aim to promote and

sustain the health, well-being and self-respect of immigration detainees, foster

their sense of responsibility, and encourage the development of skills that will

assist them to take their place in mainstream

society.[65]

During its 2006 visits, the Commission was pleased to see improvements in the

recreational programs provided at most immigration detention centres, when

compared with the activities offered in previous years. The one exception to

this was the Northern IDC. In its 2007 report, the Commission welcomed efforts

to make improvements at that centre as well.

During its 2008 visits, the Commission met with GSL staff responsible for

recreational programs at each detention centre. While the activities offered in

each centre vary, and are offered on a more or less frequent basis, they

generally include a mix of structured activities such as pool competitions,

table tennis competitions, soccer, volleyball, card nights, karaoke and movie

nights. In addition, some centres offer weekly art, craft or cooking classes.

All centres have a range of facilities available for use by detainees on an

unstructured basis. These generally include access to TV, DVDs, video games,

board games, newspapers, internet access and gym facilities.

In general, the Commission considers that individual staff members make

genuine efforts to work with the resources they have to provide a mix of

recreational activities for detainees. However, what is less clear is whether

adequate resources are dedicated to funding the staff and facilities required to

provide regular and engaging activities for detainees at all centres.

Detainees who spoke with the Commission offered mixed views about the

recreational activities in detention. Some expressed positive views about the

staff and activities. Others were more critical of the limited range and

frequency of activities, or spoke of feeling too low to want to take part in

activities on a regular basis, because of the anxiety caused by their ongoing

detention.

The Commission has some specific concerns about the recreational facilities

and activities at the individual detention centres, as discussed in section 11

below. The Commission also has concerns about the following cross-cutting

issues.

(a) Outdoor space for

sport and recreation

The Commission is concerned about the lack of adequate outdoor space at the

immigration detention centres, particularly grassy space for sport and

recreational activities. At the Perth IDC there is no grassy outdoor space.

Detainees have access to two small concrete courtyards, both of which are

surrounded by high walls. At Villawood, detainees in Stage 1 have a walled-in

concrete courtyard for recreational use, but no open grassy area for sports.

There is a soccer pitch in Stage 3, but detainees from Stage 1 are not provided

with regular access to it. At Maribyrnong, there is a concrete tennis court, but

no grassy area for sports. At the Northern IDC, there is more open space, but

not much grass or other greenery.

The Commission is aware that DIAC is taking some steps to address this issue,

by refurbishing the courtyards at the Perth IDC, and undertaking water

mitigation measures to allow for more grass to grow at the Northern IDC. The

Commission hopes to see significant progress with these steps at its next annual

visits. However, even if these steps are fully implemented, detainees at

Maribyrnong, Stage 1 at Villawood, and the Perth IDC will still not have

adequate access to open grassy space.

Recommendations: DIAC should ensure that necessary changes are made

at the immigration detention centres so that all detainees are provided with

adequate access to open grassy space for sport and recreation. This is a

particular priority in Stage 1 at Villawood IDC, Perth IDC and Maribyrnong

IDC.

In the meantime, DIAC and GSL should ensure that detainees in Maribyrnong

IDC and Perth IDC have regular access to organised sporting activities, such as

soccer, outside the detention centre. All detainees at Villawood IDC, including

those in Stage 1, should be permitted to use the soccer pitch in Stage 3 for

sporting activities on a regular basis.

(b) Access to reading

materials

The Commission is concerned that detainees at some immigration detention

centres do not have adequate access to books and other reading materials,

particularly in languages other than English. Internet access can alleviate the

need for access to hard copy materials to a limited extent. However, internet

access for detainees is time limited, and is not an adequate substitute for

having books and other recreational and educational reading materials available

in hard copy.

The 2000 Immigration Detention Guidelines provide that each

immigration detention centre should have a library adequately stocked with

recreational and instructional books and periodicals in the principal languages

spoken by detainees at the

centre.[66]

While each of the detention centres has a small collection of books or

newspapers, none of them has a well maintained library facility onsite. At

Villawood, there is a small library room in Stage 2, but it is kept locked and

is only opened on request. Resources are not dedicated to purchasing reading

materials, and the facility is not maintained by DIAC or GSL, but by a

volunteer. At the Northern IDC, there is a small selection of books available

from an office in the North compound, open during business hours on weekdays.

There is currently no library in the South compound. At Maribyrnong, there are a

few books in the classroom, but there is no dedicated library area. This has

apparently been delayed while arrangements are made for bookshelves to be

constructed. At the Perth IDC, shelving has been installed in the multi-purpose

recreation room and books are donated by a local charity.

At Maribyrnong, the lack of onsite reading materials has been overcome, to

some extent, by making arrangements with the local council library. The library

has a mobile service which visits Maribyrnong once every month. Detainees can

request books, and the responsible staff member can request reading materials in

particular languages depending on the detainee population at the time. The

Commission applauds the use of this system at Maribyrnong and encourages

management at other immigration detention facilities to make similar

arrangements.

Recommendations: DIAC and GSL should ensure that each immigration

detention centre has an onsite library area stocked with reading materials in

the principal languages spoken by detainees at the centre. All detainees should

have regular access to this area.

Management at each of the immigration detention centres should explore the

possibility of borrowing reading materials on a regular basis from a local

library or a mobile library service.

(c) Gym

facilities

In its 2007 annual inspection report, the Commission welcomed improvements in

the availability of gym equipment at the immigration detention centres. However,

the Commission raised concerns about some of the gym areas being located in

inappropriate or exposed areas, without adequate privacy or protection from the

weather.[67] These concerns are

still relevant with regard to two external gym areas at Maribyrnong, and the gym

areas at the Perth IDC and in Stage 1 at Villawood.

During its 2007 visits, the Commission was informed of plans to enclose the

gym areas at Maribyrnong and to refurbish the gym area at the Perth IDC. These

plans have not yet been implemented. After its 2008 visit to Perth, the

Commission was informed that DIAC intends to refurbish the gym area at the Perth

IDC.

Recommendation: DIAC should upgrade the outdoor gym facilities at

the Perth IDC, at Maribyrnong IDC, and in Stage 1 at Villawood IDC. These

facilities should be enclosed to ensure adequate privacy and protection from the

weather.

10.5 Educational

programs

The 2000 Immigration Detention Guidelines state that opportunities for

English language instruction and further education, including technical and

vocational education should be provided for immigration detainees where

possible.[68]

In its past two annual inspection reports, the Commission noted that many

detainees express feelings of boredom and frustration at having few meaningful

activities to spend their time

on.[69] This is particularly the

case for people detained for long periods.

Most of the immigration detention centres run some internal educational

classes for detainees, generally computing classes and English as a second

language (ESL). For example, at Maribyrnong there are several computing classes

and several English classes each week, including one advanced English class. At

the Perth IDC there are weekly computing classes and adult education classes. At

Villawood there are English and computing classes in Stages 2 and 3. Some of the

centres also hold occasional cooking, music, art or craft classes, although

these are generally recreational sessions rather than accredited educational

classes. The Commission welcomes these activities and encourages their further

development. However, the Commission has a number of ongoing concerns about

detainees’ access to educational programs and activities.

The Commission is concerned about the lack of adequate space for educational

activities in Stage 1 at Villawood and at the Perth IDC. Neither has a dedicated

space for conducting English classes, computing classes or other educational

activities. While there is a small computer room at each facility, conducting

classes in those rooms interferes with detainees’ general access to

computers and the internet. During its 2007 visit to the Perth IDC, the

Commission was informed of plans to refurbish the centre, including by adding a

second storey with a dedicated education room. These refurbishments have since

been scaled back for budgetary reasons, and the plan to build an education room

has been abandoned.

The Commission is also concerned about the lack of educational programs at

the Northern IDC, where there are no ESL or computing classes. The Commission

raised this concern in its 2006 inspection

report.[70] Under DIAC policy,

activities at the Northern IDC are recreational rather than educational, as most

detainees are alleged ‘illegal foreign fishers’ who the Department

seeks to remove from Australia as soon as possible. However, the Commission

notes that some people are detained at the centre for significant periods.

Between September 2007 and August 2008, the average length of detention there

was 21 days. However, of the people detained there during that time, 65 spent 50

days or more in detention. Of these 65 people, 26 were detained for 70 days or

more, eight were detained for 90 days or more, and six were detained for 100

days or more.[71] DIAC has informed

the Commission that ‘conversational’ English classes will soon

commence at the centre. The Commission welcomes this step, but encourages DIAC

to expand it into a more comprehensive program of educational activities.

On a broader level, the Commission has ongoing concerns about the DIAC policy

which prohibits immigration detainees from taking part in courses of study

leading to a formal qualification. The Commission has raised concerns about this

issue over the past two years, and has made prior recommendations that DIAC

should repeal this policy.[72] While

the Commission is of the view that people should not be held in immigration

detention facilities for lengthy periods, in reality there are a significant

number of people spending many months in detention. Given this reality,

detainees should be facilitated in undertaking meaningful activities, including

formal study, to assist them in using their time in detention in a constructive

way. This could offer significant benefits for detainees’ mental and

physical wellbeing. For those detainees permitted to remain in Australia, the

knowledge and skills they gain will ultimately be of broader benefit to the

Australian community.

Recommendations: DIAC should repeal its policy of prohibiting

immigration detainees from undertaking a course of study that leads to a formal

qualification. DIAC should allow detainees to enrol in substantive education

courses at TAFE and other educational or vocational training institutions.

Enrolment could be by correspondence. However, where possible, DIAC should

consider permitting detainees to attend some classes in person.


DIAC and GSL should arrange for the provision of structured educational

classes at the Northern IDC for detainees who wish to participate. This should

include ESL classes and computing classes.


DIAC should ensure that each immigration detention facility has adequate

space dedicated to educational activities. In particular, DIAC should upgrade

the Perth IDC to provide dedicated classroom space. The Commission is of the

view that Stage 1 at Villawood IDC is an inappropriate facility and should be

demolished. However, if DIAC intends to continue to use Stage 1, it should

upgrade the facility to provide dedicated space for educational classes.

10.6 External

excursions

The

Commission is of the view that immigration detainees should be provided with

regular opportunities to leave the detention environment and participate in

external excursions. This should include organised group excursions, where

detainees are taken on recreational, educational or cultural trips, for example

to a museum, the beach or a park. It should also include individual excursions

or home visits, which allow detainees time to interact with relatives in a

recreational setting, or to attend a specific event such as a funeral or a

hospital visit with a sick family member. Excursions are critical for the

physical and mental wellbeing of immigration detainees, particularly those

detained for prolonged periods. Excursions can also assist in reducing the

frustrations and tensions that can build up in detention centres, potentially

resulting in fewer internal incidents of property damage.

In its 2006 inspection report, the Commission welcomed improvements made to

the external excursions programs at the detention centres at Maribyrnong, Perth

and Baxter, and urged that excursions also be arranged at Villawood and the

Northern IDC.[73] During 2007, the

Commission was disappointed to learn that, after the escape of a high risk

detainee, excursions had been suspended. New procedures were then introduced,

under which excursions by high risk detainees would only be approved in

exceptional circumstances. At the time of the Commission’s 2007 visits,

the introduction of these new procedures appeared to be having the effect of

preventing detainees whose visas had been cancelled on character grounds

(section 501 detainees) from participating in external

excursions.[74] In addition, the

excursions programs for the rest of the detainee population at several detention

centres appeared to have been reduced or

suspended.[75]

During its 2008 visits, the Commission was pleased to hear that some external

excursions have been taking place from the immigration detention centres.

However, the Commission remains concerned at the limited extent of the

excursions, particularly at Villawood and Maribyrnong. Further, there appear to

be inconsistencies across the centres, suggesting the need for a minimum

standard that can be monitored.

At the Northern IDC, group excursions are conducted on a regular basis, and

are made available to all detainees. Appropriate steps are taken by management

to mitigate any potential risks, rather than depriving detainees of a chance to

leave the centre. Detainees are generally able to take part in at least one

excursion each week. However, the Northern IDC generally does not facilitate

requests for home visits or individual excursions, with the exception of

external medical appointments. The reasoning behind this is that most detainees

at the Northern IDC are suspected ‘illegal foreign fishers’ who

generally do not have family or friends to visit in Darwin.

The Perth IDC has reintroduced some group excursions since the

Commission’s visit in 2007. The Commission was provided with records

indicating that small group excursions are conducted approximately once a week,

for an average of four detainees each time. Section 501 detainees and

‘high risk’ detainees are able to participate if arrangements can be

made for an appropriate venue where risks can be mitigated. Detainees can also

request an individual excursion, for example to a medical appointment or a

religious service. However, detainees are generally not permitted to go on home

visits, due to concerns about managing the potential security risks in a private

home setting.

At Villawood, the Commission was informed that GSL has intentions to

gradually introduce more group excursions. However, at the time of the

Commission’s visit, they were still very limited. There had been two group

excursions in the prior three month period, both for detainees in Stage 2, the

lowest security section of the centre. Detainees in Stages 1 and 3 were not

being provided with access to group excursions. All detainees at Villawood can

request an individual excursion or home visit. Requests are approved (or not)

based on a risk assessment process. These individual excursions were

re-introduced in November 2007, a positive step. In the three months prior to

the Commission’s visit, there had been nine individual home visits and

seven individual hospital visits.

At Maribyrnong, no group excursions are being conducted. All external

excursions must be requested by detainees and approved by management on an

individual basis. ‘High risk’ detainees are only permitted to go on

excursions in exceptional circumstances, for example to visit a sick parent.

Detainees can request a home visit, but this apparently does not happen very

regularly. In the three and a half month period prior to the Commission’s

visit, there were 44 external excursions. The vast majority of these were

individual trips to the bank or to a religious service. Some were individual

trips to the aquarium, the zoo or the cinema, and three were home visits (all

for the same detainee).

Recommendations: DIAC should adopt minimum standards for the conduct

of regular external excursions from immigration detention facilities, and

include these standards in the contract with the detention services provider.

DIAC should monitor compliance with these standards on an ongoing basis and take

appropriate remedial action when they are not being complied with.


In the meantime, Villawood management should increase the frequency of

group excursions, and make them available to detainees in all sections of the

centre. Maribyrnong management should introduce regular group excursions for all

detainees. Management at the Perth IDC and Northern IDC should facilitate

detainee requests for home visits or other individual excursions where

possible.


DIAC should ensure that the detention services provider is allocated

sufficient resources to provide escorts for regular external excursions.

10.7 Use of

restraints

During the Commission’s 2008 visits, concerns were raised by a number

of detainees about the use of handcuffs for trips outside the detention centre,

for example to attend a court or tribunal hearing, a medical appointment or a

home visit. This was a particular concern raised by detainees at Villawood and

the Perth IDC.

The 2000 Immigration Detention Guidelines state that any use of

restraints on detainees being transported outside a detention centre should be

commensurate with an assessment of the individual’s likelihood and

capacity to abscond.[76] On the use

of restraints in detention, the Guidelines provide that restraints should only

be used to prevent a detainee from injuring themselves or another, damaging

property or escaping. They should only be used by order of the manager of the

detention centre; where all other control methods have failed; for no longer

than is necessary; and only to the extent reasonably necessary for the

purpose.[77]

While the Commission acknowledges that there may be situations when it is

necessary to restrain someone using handcuffs, this should be a limited practice

used in exceptional cases only. A detainee who is normally considered

‘medium risk’ or ‘high risk’ should not automatically be

handcuffed each time they leave the centre based on that ongoing risk rating.

Rather, the need for using restraints should be assessed for each individual

detainee every time they leave the detention centre.

In response to this concern, DIAC has informed the Commission that the issue

will be looked into further across the immigration detention network. According

to DIAC, the use of handcuffs is considered on a case by case basis; it is not a

standard practice. Arrangements are in place at each of the detention facilities

for GSL to provide the health services provider with a weekly list of detainees

who are to be restrained on external appointments, to allow them to comment if

there are people on the list with mental health concerns that may be exacerbated

by being restrained. Detainees who are restrained are physically assessed by the

medical staff on their return to the detention facility.

Recommendations: DIAC and GSL should review their policies and

procedures regarding the use of restraints on immigration detainees during trips

outside immigration detention facilities, to ensure that restraints are only

used when absolutely necessary. Restraints should only be used after a thorough

risk assessment has been conducted for the individual detainee for the

particular trip in question. If it is deemed necessary to use restraints, they

should be covered while the detainee is in public view and they should be

removed for appearances in courts and

tribunals.[78]


Policies regarding use of restraints should include clear procedures for

restraints to be removed in time-sensitive situations that may arise - for

example, an emergency health issue or a request to use toilet facilities.

Current and future GSL staff should be trained on these procedures. This

training should emphasise the use of techniques which ensure that, when it is

absolutely necessary to restrain a detainee, that person is restrained in

dignity and with minimum use of force.

10.8 Access to

communication facilities

At the mainland immigration detention centres, detainees have access to mail,

phones, fax and the internet.

Detainees are generally permitted to have a mobile phone, provided that it

does not have a camera function. Since the Commission’s 2007 visits, some

Telstra payphones had been removed from the detention centres. These have

generally been replaced with landline phones from which detainees can make free

local calls, or use phone cards to make interstate or international calls. Phone

cards can be purchased within the centres.

Detainees are able to send and receive mail. At the largest centre,

Villawood, the Commission was informed that mail can sometimes take up to three

to five days to get from administration to the correct detainee.

Detainees’ incoming and outgoing mail is not opened. However, for incoming

packages the detainee is requested to open the package in front of a detention

officer, to check for items that could be used as weapons.

Detainees can send and receive faxes. However, they do not have personal

access to a fax machine – they must rely on detention officers to send

outgoing faxes and deliver incoming faxes. This could potentially raise privacy

concerns.

Internet access is now available at all of the mainland immigration detention

centres. Each centre has a certain number of internet connected computers for

use by detainees. Detainees are generally allowed a limited period of time on

the internet each day, regulated by an individual access card. Internet access

by detainees also depends on availability of a computer. There have been some

improvements in the number of computers available to detainees since the

Commission’s last report. This includes a new internet facility in Stage 2

at Villawood with ten computers, two additional computers at the Perth IDC, and

new internet connectivity at the Northern IDC. However, at the time of the

Commission’s 2008 visits, there were only four internet connected

computers in Stage 1 at Villawood, four for the whole of the Perth IDC, and two

at the Northern IDC.

It is important that detainees are provided with adequate access to the

internet, as email is often the most convenient and effective method for

maintaining regular communication with the outside world, particularly with

legal representatives or with family and friends located overseas. Internet

availability is also important in terms of providing detainees with access to

essential information sources.

Recommendation: DIAC should continue to expand access to the

internet for immigration detainees, particularly at the Northern IDC and the

Perth IDC.

10.9 Provision of

information to detainees

(a) Client placement

In its 2007 inspection report, the Commission raised questions about the

implementation of the DIAC Client Placement

Model.[79] Under the Model, each

person should be assessed upon entry to immigration detention for an appropriate

placement. This might be in an immigration detention centre, immigration

residential housing, immigration transit accommodation, community detention or

an alternative place of detention. The decision should take into account a broad

range of factors including a security risk assessment, health and wellbeing,

family considerations, the person’s likely immigration pathway, cultural

issues, and the availability of detention accommodation. The Model requires the

initial placement to be reviewed on a monthly basis. In addition, a review can

be triggered if there is a change in circumstances or if a review is requested

by the detainee or staff.

During the Commission’s discussions with detainees in 2008, some were

unaware of the way the client placement system operates. Some detainees

expressed frustration about not being informed of the risk assessment process,

and why they were placed in a certain facility (or a certain section within a

facility). Some detainees were not aware of the possible alternatives to being

held in an immigration detention centre. Other detainees said they had applied

to be moved to an alternative place (for example, community detention or a

different section of the detention centre), but claimed that they had been

refused without reasons being provided.

Recommendations: When a person is taken into immigration

detention, DIAC should promptly inform that person about the various

detention arrangements available to them, including community detention,

alternative detention in the community, immigration residential housing and/or

immigration transit accommodation.


DIAC and GSL should ensure that each detainee is promptly and fully

informed of the reasons for their placement in a particular detention facility

or arrangement. This should include explaining the risk assessment process. When

a detainee makes a formal request to be moved to a different section of the

facility, or to a different place of detention, DIAC or GSL should respond

promptly in writing and provide reasons if the request is refused.


The Commission hopes to see a new client placement model in place by the

time of its 2009 annual visits. This should reflect the Government’s new

directions in immigration detention, in particular that detention in immigration

detention centres is to be used as a last resort and for the shortest

practicable time, and that the presumption will be that persons will remain in

the community while their immigration status is

resolved.[80]

(b) Case

management

Some detainees who spoke with the Commission in 2008 expressed frustration at

the lack of regular information flow from their DIAC case manager. Some said

they rarely see their case manager in person. Others said they don’t speak

to their case manager on the phone very often. Several detainees said their case

manager does not assist them in substantive ways; rather they focus on seeking

the detainee’s removal from Australia. Some detainees who spoke with the

Commission seemed unsure of exactly what stage their immigration case was at,

what the likely next steps were, or when they might take place. While some

detainees had been able to access independent legal or migration advice, others

had not.

This lack of regular information flow can significantly increase the anxiety

and frustration felt by immigration detainees, particularly when it is combined

with being detained for an indefinite and prolonged period of time.

Recommendation: DIAC case managers should ensure that each

immigration detainee is provided with frequent updates regarding progress with

their immigration case.

(c) Induction

materials

Detainees are provided with induction materials at each of the immigration

detention centres. However, there appear to be inconsistencies among the

materials provided at the different centres, and some materials are outdated.

GSL provides detainees at Villawood and the Perth IDC with an induction

booklet, available in English, Arabic, Indonesian, Korean, Persian, Chinese,

Tongan and Vietnamese. It is dated January 2005 and does not appear to have been

adequately updated since then. For example, it includes inaccurate information

such as a provision stating that detainees do not have access to the internet or

email. At Maribyrnong, GSL uses two induction handbooks – the same version

used at Villawood and the Perth IDC, but also a shorter and more locally

tailored booklet.

DIAC does not appear to provide induction materials to detainees at Villawood

or Maribyrnong. However, at the Perth IDC a locally developed set of DIAC

induction materials is used. At the Northern IDC, DIAC provides detainees with

an induction booklet designed specifically for detainees who are alleged

‘illegal foreign fishers.’ It is available in English, Indonesian

and Mandarin.

While it is appropriate for the induction materials at each immigration

detention centre to vary to some extent (in order to provide logistical

information to detainees relevant only to the centre they are in), there is some

critical information that should be consistently provided to all detainees at

all centres. This information should include (but should not be limited to) the

following:

  • How a detainee can request an interpreter, including the phone number for

    the Telephone Interpreting Service (TIS).

  • How a detainee can make a request for an individual excursion or home visit,

    and the factors that will be taken into account in considering that

    request.

  • How a detainee can lodge a complaint with GSL or DIAC, and how and in what

    time frame that complaint will be responded to. Contact phone numbers for DIAC

    and GSL should be included so that detainees do not have to rely solely on

    submitting a written complaint or request form. This should include the phone

    number for the DIAC Global Feedback

    Unit.[81]

  • How a detainee can lodge a complaint with the Commonwealth Ombudsman or the

    Australian Human Rights Commission. Current contact details, including phone and

    fax numbers, should be included.

  • Current contact details, including a phone number, for the police.
  • What facilities are available in the centre for religious purposes (e.g.

    prayer rooms, bibles, prayer mats etc) and how a detainee can make a request to

    attend a religious service outside the centre.

  • Contact details for Legal Aid, UNHCR, major refugee and asylum seeker

    information and advice groups, and Immigration Advice and Application Assistance

    Scheme (IAAAS) providers.

Currently, some of this information is

included in some of the induction materials provided at some of the immigration

detention centres. However, there is not a consistent practice of providing all

of this information in induction materials for all detainees at all centres.

Recommendations: DIAC and GSL should ensure that all immigration

detainees, upon entering detention, are promptly provided with current and

comprehensive induction materials containing information including, but not

limited to, the details set out in the above section.


DIAC and GSL induction materials for immigration detainees should be

translated into the main languages spoken by the detainee population. Each

detainee should be provided with their own copy in a language they understand.

If this is not possible, an interpreter should be provided, in person, to go

through the materials with the detainee in their preferred language.

10.10 Interpreters

and translation

The 2000 Immigration Detention Guidelines state that all written and

oral communications concerning an immigration detainee and the refugee

determination process should be conveyed in a language and in terms the detainee

can understand, and that detainees who are unable to understand English should

be provided with an interpreter when information concerning them is being

obtained or conveyed.[82]

The Commission has raised concerns in its previous annual inspection reports

about insufficient use of onsite interpreters at immigration detention centres,

and the lack of provision of documents in languages other than

English.[83] These concerns were

raised by some detainees who spoke with the Commission during the 2008 visits,

particularly at Villawood and the Perth IDC.

The Commission is aware that the Commonwealth Ombudsman has also raised

concerns about the need for the use of interpreters and translators in

immigration detention.[84] The

Commission understands that the Ombudsman has commenced an own motion

investigation into the use of interpreters in immigration detention centres. The

Commission looks forward to the outcomes of that investigation.

(a) Interpreters

Generally, TIS is used in most situations where an interpreter is required in

an immigration detention facility. This includes detainees’ interactions

with DIAC, GSL, health staff and mental health staff. There are some exceptions

to this. The Northern IDC has two interpreters who work onsite on a fairly

regular basis. Face-to-face interpreters are used for most mental health

appointments at that centre, and an interpreter also attends excursions on

occasion. The other detention centres have interpreters attend onsite on certain

occasions, for example to interpret at detainee consultative meetings or when

there is an incident that requires personal discussions with detainees. This

does not appear to be a frequent practice. For example, at Villawood the

Commission was provided with records indicating that there were 16 uses of

face-to-face interpreters between July 2007 and June 2008. This is approximately

1.3 times each month.

While TIS might be sufficient for many interactions with detainees, the

Commission is concerned that it is not always adequate or appropriate. This is

particularly the case for health or mental health appointments, especially

psychological counselling sessions or medical examinations. In these situations,

detainees should be offered the option of having a face-to-face interpreter

present.

The lack of onsite interpreters also restricts the ability of detainees to

communicate with detention officers. For detainees who do not speak English and

do not know how to get an interpreter over the phone, it can be difficult to

request an interpreter, ask that a document be faxed, make a complaint or ask to

see a doctor. In these and other daily situations, detainees must rely on

detention officers to call TIS and arrange for an interpreter.

There are a wide range of languages spoken by immigration detainees in each

of the centres at any given time. The Commission recognises that it is not

feasible to expect that onsite interpreters be provided for all languages on an

ongoing basis. However, where there is a significant number of detainees who

speak the same language, greater use should be made of face-to-face interpreters

than is currently the case.

Recommendations: DIAC and GSL should make greater use of onsite

interpreters at immigration detention facilities. Where there is a significant

group of detainees who speak the same language, DIAC should consider employing

an interpreter to work onsite on a regular basis. Concerns previously expressed

by GSL regarding the use of one full-time interpreter could be overcome by

employing or contracting several part-time or casual interpreters to work onsite

on a rostered basis.


Detainees should be offered the option of having a face-to-face interpreter

present for health and mental health appointments.


Posters should be displayed in all immigration detention facilities

explaining how detainees can access an interpreter. The information on the

posters should be translated into the main languages spoken by the detainee

population, and should include the Telephone Interpreting Service phone number.

(b) Translation of

documents

In past years the Commission has heard from detainees about difficulties when

documents are provided or displayed in detention centres only in English. This

concern was also raised by some detainees during the Commission’s 2008

visits.

This is a particular concern in the case of official documents or letters

provided to detainees by DIAC, especially where they relate to the

person’s immigration case. At Villawood, for example, we were informed

that letters are not translated for detainees, but a TIS interpreter explains

the content of the letter over the phone. It is not clear whether this is done

as a matter of course, or only if a detainee specifically requests it. The

Commission observed one detainee using a Chinese-English dictionary to translate

a letter he had received from DIAC.

In addition, the Commission is concerned that many of the less formal

documents used or displayed in detention centres are not provided in languages

other than English. In most centres this includes documents like the detainee

request and complaint forms, the menu and the program of recreational and

educational activities.

At the Northern IDC, efforts have been made to provide translated written

materials, including quite a few posters, signs and the menu. In some respects

it is easier at the Northern IDC, as most detainees speak Bahasa Indonesia.

However, it is also indicative of the positive attitude of management at that

centre, who have also taken steps to ensure that an individual Mandarin-speaking

detainee is provided with a face-to-face interpreter on a regular basis. Some

positive efforts have also been made at Maribyrnong. After the

Commission’s 2008 visit, management at that centre agreed to have the menu

translated into a range of languages.

Recommendations: Wherever possible, DIAC should ensure that

official letters and documents provided to a detainee are in a language the

detainee can understand. Where this is not possible, the detainee should be

offered the assistance of a face-to-face or telephone interpreter to translate

the contents of the letter or document.

All DIAC and GSL documents provided or displayed in immigration detention

facilities should be translated into the main languages spoken by the detainee

population. DIAC and GSL should coordinate at a national level to ensure this

takes place. This should include request and complaint forms, induction

materials, the menu and the program of recreational and educational

activities.

10.11 Visitors’

facilities

The Commission is concerned about inadequate facilities for visiting

detainees at some immigration detention centres. The DIAC Standards provide that

visitors’ areas, while ‘robust’, should be ‘comfortable

and well-maintained, with a design that creates a lounge atmosphere and

facilitates small group

interactions.’[85] The

facilities should include internal and external areas, be safe for

children’s entertainment and supervision, and include access to private

rooms.[86]

Currently, Maribyrnong is the only immigration detention centre that has

visitors’ facilities of a good quality. These are spacious,

well-furnished, comfortable and include basic kitchen facilities, internet and

TV. There are also smaller rooms available for private visits.

At the Perth IDC and the Northern IDC there are no dedicated visitors’

facilities. This is not necessarily a problem at the Northern IDC, where there

are several large cabana areas that can be used for visits, as well as interview

rooms that can be used if privacy is needed. However, it is a significant

problem at the Perth IDC, where visits have to be conducted in a small

multi-purpose room which is also used for recreational programs, detainee

consultative meetings, and general activities such as watching TV, reading and

listening to music. Detainees have little space and no privacy with visitors.

The Commission raised this concern during its 2007 visit, and was informed that

a visitors’ area would be added as part of a planned

refurbishment.[87] In 2008, the

Commission was informed that these plans have been scaled back for budgetary

reasons. The refurbishment that will go ahead will not include addition of

visitors’ facilities.

The visitors’ facilities at Villawood are also a significant concern.

In Stage 1 the facilities consist of two rooms and an outdoor concrete courtyard

area enclosed by high wire fencing. The rooms are bleak and inhospitable, and

provide no privacy. The Commission raised concerns about these facilities in its

last inspection report.[88] It is

particularly worrying given that young children visit detainees in these areas.

DIAC has announced that it intends to upgrade the visitors’ areas in Stage

1 by April 2009. The Commission hopes to see the upgraded facilities at its next

annual visit.

In Stages 2 and 3 at Villawood, there are no indoor visitors’

facilities. There is an outdoor grassed area with tables and chairs, and a small

covered section. However, in the colder months this is not an appropriate area

for detainees to meet with visitors, particularly if they include babies,

children, pregnant women or people with health concerns.

The Commission is also concerned about the interview rooms provided for

detainees to meet with legal representatives and other official visitors. At

Villawood and Maribyrnong, the interview rooms are not soundproofed. The DIAC

Standards state that interview rooms should be soundproofed so that interviews

cannot be overheard and external noises are not disruptive to

interviews.[89] The 2000 Immigration Detention Guidelines also provide that detainees should enjoy

privacy of communication with their legal advisers, the Commission, the

Ombudsman and others, and that private visits should be

facilitated.[90]

Recommendations: DIAC should ensure that all immigration detention

centres have appropriate facilities for detainees to meet with visitors. These

should include indoor and outdoor areas. Rooms should be available for private

visits. The visitors’ areas should be safe, hospitable and appropriate for

children. This is a particular concern at Villawood IDC and the Perth IDC.

DIAC should ensure that the interview rooms at all immigration detention

centres are private and soundproofed. This is a particular concern at Villawood

IDC and Maribyrnong IDC.

10.12 Food

(a) Food variety and

opportunities for self-catering

The provision of meals for detainees at the immigration detention centres is

sub-contracted by GSL to another private company, DNCA. During its annual visits

in 2006 and 2007, food was one of the things most complained about by

detainees.[91] In 2008, concerns

about food were raised by some detainees, but it did not appear to be as much of

a problem as in previous years.

During the 2008 visits, the Commissioner and Commission staff ate in the

detainee dining room at each immigration detention centre, and heard mixed views

from detainees about the food. Some detainees complained that the food was too

oily, too fattening, not spicy enough, lacking in taste or lacking in variety.

Others said they don’t particularly like the food, but they understand

that it is difficult for kitchen staff to cater for a broad range of tastes. For

those people who have been detained for a lengthy period, while they might not

be particularly happy about the food, for them it is not a priority - they just

want to be released.

Detainees have limited opportunities to cook for themselves in the detention

centres. At Villawood, occasional cooking classes are held in the women’s

compound in Stage 2 and BBQs are held weekly in an outdoor area in Stage 1.

Besides that, there are no facilities for detainees to cook for themselves. At

the Northern IDC detainees are not able to cook for themselves, except when a

BBQ is held. BBQs may or may not be held on a regular basis, depending on what

the detainee population prefers at any given time. At Maribyrnong and the Perth

IDC, detainees are able to cook for themselves at a weekly BBQ and they can take

part in a weekly cooking class. Detainees at Maribyrnong also have access to

fridges and some basic cooking equipment in the common areas, and there is a

take-away food night occasionally.

In its 2007 report, the Commission encouraged the detention centres to

develop more opportunities for detainees to cook for themselves if they wish to

do so.[92] This can be an important

way to provide detainees with some autonomy, in an environment where most

choices and decisions are beyond their personal control.

Recommendation: DIAC and GSL should continue to explore ways to

provide people in immigration detention centres with greater choice over what

they eat, and more opportunities to prepare their own food if they wish to do

so. This could include more cooking classes, more BBQs and occasional take-away

food nights. DIAC should also consider including more self-catering facilities

at the immigration detention centres. This could include kitchenette facilities

with cooking equipment in common areas, or activities kitchens (similar to the

activities kitchen that previously existed at Baxter

IDC).[93]

(b) Special dietary

needs

The 2000 Immigration Detention Guidelines state that appropriate meals

should be provided for detainees where this is necessary for medical reasons, on

account of religious or cultural requirements, because the detainee is

vegetarian, or where the detainee has other special

needs.[94]

The Commission is concerned that there appear to be inconsistencies across

the immigration detention centres in terms of ensuring that kitchen practices

are halal.

At Villawood we were informed that the kitchen is certified as being halal,

that all pork products are stored in a separate fridge, and that different

kitchen implements are used for preparing any food that contains pork.

Nevertheless, concerns were raised by a detainee who claimed that the kitchen

does not always follow halal practices.

At the Perth IDC we were told that the kitchen is certified as halal and that

no pork is prepared in the kitchen.

At Maribyrnong we were told that the kitchen is halal. However, pork is

stored in the main fridge where other food products are also stored. We were

also informed that, once the kitchen had been certified as being halal, there

were no requirements for ongoing inspections or reviews.

At the Northern IDC, the kitchen practices are apparently halal and no pork

products are stored in the main fridge. However, we were informed that there is

no official process to certify the kitchen as being halal. Rather, management

there has consulted a local Imam on the kitchen practices.

In response to the Commission raising concerns about these inconsistencies,

DIAC has informed the Commission that the matter will be investigated.

Recommendation: DIAC and GSL should ensure that immigration

detention centres have appropriate facilities, and follow necessary kitchen

practices, to provide meals and snacks to any detainees who wish to be provided

with halal food.

10.13 Detainees whose

visas have been cancelled under section 501

During annual inspections over the past three years, the Commission has

observed that an increasing proportion of immigration detainees are people whose

visas have been cancelled under the section 501 character provisions of the

Migration Act. This is usually because they have been convicted of a criminal

offence.

Generally, a person’s visa is cancelled under section 501 when they are

at the end of serving their prison sentence. They are then transferred directly

from prison to immigration detention to await deportation. Some of them spend

months, or even years, in immigration detention while they attempt to challenge

the decision to cancel their visa, or while travel documents are arranged or a

claim for a protection visa is assessed. The Commonwealth Ombudsman has observed

that it is not uncommon for some section 501 detainees to spend more time in

immigration detention than they did in

prison.[95]

Many of the section 501 detainees the Commission has spoken with during its

annual visits have lived in Australia for a significant period of time. They

often have strong ties to the Australian community, including family, friends,

jobs and/or houses. Some of them have Australian partners or spouses, and some

have children who are Australian citizens or were born in Australia.

According to statistics provided by the Minister to the Senate in June 2008,

of 25 people in immigration detention whose visas had been cancelled due to

criminal convictions, all but one of them had lived in Australia for more than

11 years. Seventeen of them had lived in Australia for more than 20 years.

Fifteen of them were 15 years old or younger when they arrived in Australia for

the first time. All but one of them had been in immigration

detention for more than 100 days. Eight had been detained for more than 300

days, and one had been detained for more than 1000

days.[96]

The Commission is concerned about the practice of using section 501 of the

Migration Act to cancel visas held by people who have been in Australia for

significant periods of time, and who have strong ties to the community. The

Commonwealth Ombudsman has recommended that there should be a review of the

application of section 501 to consider whether it would be appropriate to raise

the threshold for visa cancellation in relation to permanent

residents.[97] The Commission has

previously recommended that section 501 should be reviewed, with the aim of

excluding long-term permanent residents from its

application.[98]

The Commission is also concerned about conditions in immigration detention

for people whose visas have been cancelled under section 501. Some section 501

detainees who spoke with the Commission during the 2008 visits complained that

they had not been provided with information about how their risk assessment had

been conducted and why they were being held in an immigration detention centre

(or in a particular section of the centre). Several raised concerns about being

handcuffed for trips to court and external medical appointments. Others

complained about not being taken on external excursions at all. While the Perth

IDC appears to be making efforts to include section 501 detainees on external

excursions where possible, the situation appears to be different at Villawood.

At the time of the Commission’s visit to Villawood, there were no external

excursions being conducted for people from Stage 1, which accommodates most of

the section 501 detainees.

DIAC has informed the Commission that section 501 detainees are not treated

as a distinct group for purposes of client placement or risk assessment.

However, in practice it seems that most section 501 detainees are considered to

be ‘high risk’ and are accommodated in an immigration detention

centre rather than being considered for other alternatives. Further, the

Commission is concerned that under the new directions announced by the Minister

in July 2008, section 501 detainees might be automatically considered as posing

an ‘unacceptable risk’ to the community, and thus be held in

detention instead of being allowed to remain in the community while their

immigration status is resolved.[99]

While many section 501 detainees have been convicted of a serious crime,

it should be remembered that in most cases they have completed their prison

sentence. The expectation is that they have been punished and rehabilitated by

the correctional system. The extent of any continuing risk they might pose to

others, either in the immigration detention population or in the Australian

community, should be determined on a case by case basis through an assessment of

their individual history and circumstances. This concern was recently raised by

the Joint Standing Committee on Migration. In the first report of its inquiry

into immigration detention in Australia, the Committee stated that ‘risk

assessments for section 501 detainees should focus on evidence, such as a

person’s recent pattern of behaviour, rather than suspicion or

discrimination based on a prior criminal

record.’[100]

Recommendations: DIAC should review the operation of section 501 of

the Migration Act as a matter of priority, with the aim of excluding long-term

permanent residents from the provision.

DIAC and GSL should ensure that risk assessments for the purposes of client

placement and external excursions are determined on a case by case basis through

an assessment of the individual’s history and circumstances; they should

not be based on the fact that an individual’s visa has been cancelled

under section 501 of the Migration Act. The reasons for the outcome of the

assessment should be clearly communicated to the detainee.

 

11 Mainland immigration

detention centres: specific concerns

11.1 Villawood

Immigration Detention Centre

Villawood IDC is approximately an hour’s drive west of Sydney’s

city centre. It is the largest mainland immigration detention centre and

accommodates the highest number of detainees. At the time of the

Commission’s visit in June 2008, there were 201 detainees there. Villawood

accommodates some of the longest term detainees. Prior to the Commission’s

visit, DIAC provided statistics which showed that as of 6 June 2008 there were

224 detainees at Villawood, 50 of whom had been in detention for more than 500

days. Of those 50 people, 19 had been in detention for more than 1000

days.[101]

(a) Stage 1

The Commission has raised concerns about the

facilities at Villawood over the past ten

years.[102] In its last two annual

inspection reports, the Commission raised serious concerns about Stage 1, which

is used to accommodate detainees considered to be ‘high risk.’ The

Commission recommended that Stage 1 at Villawood should be demolished as a

matter of priority, and replaced with a new

facility.[103]

Stage 1 at Villawood is the most prison-like section in all of the mainland

immigration detention centres. The area is surrounded by high wire fencing with

razor wire in some parts. The buildings are ageing and dilapidated. The

dormitory bedrooms are cramped and almost completely lacking in privacy. There

is no grassy outdoor space for sports. The dining room and the visitors’

facilities are both bleak and inhospitable. There is an overwhelming feeling of

being closed in by walls and fences, and a tense atmosphere.

There were some minor improvements made to Stage 1 between the

Commission’s 2007 visit and its 2008 visit. These were mostly cosmetic,

such as deep cleaning floors, painting walls, and adding curtains over the

doorways to the dormitory bedrooms. These improvements are positive, but do not

come close to addressing the fundamental problems with the inappropriate and

ageing infrastructure in Stage 1.

The Minister for Immigration has acknowledged that the Commission’s

past criticisms of the facilities at Villawood are ‘totally

justified’.[104] The

Minister has also stated that ‘urgent works’ are commencing at

Villawood, with priority being given to Stage 1 and the MSU, prior to a

‘major

redevelopment.’[105]

The redevelopment of Villawood has been under discussion by successive

federal governments for a significant period of time. In the Human Rights

Commissioner’s 1998-99 review of immigration detention, the Commission

noted that the then government had proposed to replace Villawood with a

purpose-built centre, but that plans had

‘stalled.’[106] Almost

a decade later, $1.1 million was allocated in the 2008-09 federal budget to

undertake a feasibility study for the redevelopment of Villawood.

The Commission welcomes the feasibility study and the refurbishments planned

for Stage 1 in the short term. However, these works will not be sufficient to

address the significant problems in Stage 1, in particular the cramped dormitory

bedrooms, the lack of outdoor grassy space, the inappropriate dining facilities

and the lack of dedicated rooms for recreational and educational activities.

Recommendation: A comprehensive redevelopment of the Villawood IDC

should be undertaken as a matter of priority. This should include the demolition

of Stage 1 as a matter of urgency, and its replacement with a new facility. This

is subject to there being a continuing need for such a facility, given the

Government’s stated intention to detain people in immigration detention

centres only as a last

resort.[107]

(b) Other

concerns

The Commission has a range of other significant concerns regarding the

conditions at Villawood. These include the following:

  • SASH observation rooms: As discussed in section 10.3 above, the SASH

    observation rooms in Stage 1 at Villawood are not appropriate for use by

    detainees at risk of suicide or self-harm. Detainees from Stages 2 and 3 on SASH

    observation should not be transferred to observation rooms in Stage 1.

    Purpose-built observation rooms should be constructed in Stages 2 and 3.

    Detainees should be observed in their own rooms when this is appropriate.

  • Management Support Unit (MSU): The MSU at Villawood is a small

    building used for separating detainees for behaviour management purposes. It is

    surrounded by a steel fence at the front, and a cage-like structure enclosing a

    small gravel courtyard at the back. The MSU is a grim, bare and uncomfortable

    place. Detainees are observed in their rooms on closed-circuit television, so

    they have virtually no privacy. There are no recreational facilities, and the

    only view out is through bars and wire fencing. The Commission has been informed

    that DIAC intends to redevelop the MSU by April 2009, to turn it into a

    ‘high care unit’ for SASH observation and behaviour management

    purposes. The Commission welcomes the intention to refurbish the MSU. However,

    the Commission is of the view that the MSU would need a complete overhaul in

    order for it to be turned into a facility appropriate for accommodating

    detainees at risk of self-harm.

  • External excursions: As discussed in section 10.6 above, the

    re-introduction of some group excursions from Villawood is positive, but the

    Commission is concerned that they are very limited in number and are not

    available to all detainees. Management at Villawood should increase the

    frequency of group excursions and make them available to detainees in all

    sections of the centre.

  • Violent incidents: Several detainees in Stage 1 raised concerns with

    the Commission about violent attacks against them by other detainees. The

    Commonwealth Ombudsman has noted that it regularly receives complaints from

    detainees and staff regarding assaults and other criminal acts allegedly

    occurring at Villawood, and the ‘lack of an adequate police

    response’ to such

    matters.[108] The Commission is

    aware that DIAC has been negotiating a Memorandum of Understanding with the NSW

    Police for some time. The Commission hopes to see this in place as soon as

    possible.

  • Use of restraints: Several detainees at Villawood raised concerns

    about being handcuffed for visits to a court or tribunal, medical appointments

    or home visits. Refer to the discussion and recommendations in section 10.7

    above.

  • Drug use: Several detainees raised the issue of drug use at

    Villawood, particularly in Stage 1. One detainee claimed that heroin use is

    common. Another detainee claimed that some detainees pay some staff to bring

    them drugs and alcohol. In response to this concern, DIAC informed the

    Commission that allegations of drug use at Villawood were referred to the

    Australian Federal Police and the NSW Police, and that DIAC has contracted a

    consultant to review the policies and procedures in place to prevent drugs

    getting into immigration detention centres.

  • Interpreters: As discussed in section 10.10 above, there are no

    interpreters based at Villawood, and it appears that interpreters only attend

    onsite on average around once or twice each

    month.[109] DIAC and GSL should

    make greater use of face-to-face interpreters at Villawood. Given the number of

    Chinese detainees, consideration should be given to employing a

    Mandarin-speaking interpreter to work at the centre on a regular basis. Concerns

    previously expressed by GSL regarding the use of one full time interpreter could

    be overcome by employing or contracting several part-time or casual interpreters

    to work at the centre on a rostered basis.

  • Recreational activities: While there are some positive recreational

    activities at Villawood, the Commission is concerned about the lack of organised

    activities for detainees in Stage 1. At the time of the Commission’s

    visit, we were informed that GSL was in the process of hiring a new

    ‘Community Development Manager’ to develop a program of activities.

    While this would be a welcome development, it is unfortunate that it has taken

    so long to address this matter. GSL should ensure that all detainees, including

    those in Stage 1, have regular access to a range of organised recreational and

    sporting activities. All detainees, including those in Stage 1, should be

    permitted to use the soccer pitch in Stage 3 for sporting activities on a

    regular basis.

  • Educational activities: As discussed in section 10.5 above, the

    Commission is concerned about the lack of dedicated space for educational

    activities in Stage 1 at Villawood. If DIAC intends to continue using Stage 1,

    it should upgrade the facility to provide dedicated classroom space for

    educational activities.

  • Library facilities: As discussed in section 10.4 above, the library

    room in Stage 2 at Villawood is kept locked and is only opened on request.

    Resources are not dedicated to purchasing reading materials or to maintaining

    the facility. In 2007, GSL stated that it was ‘reviewing the range of

    books and other reading material available at VIDC, particularly in languages

    that are more representative of the nationalities of the clients’ and that

    ‘improvements’ were being

    made.[110] The Commission is not

    aware of any improvements since then. GSL should arrange for the library room to

    be open for part of each day, and for all detainees to have access to it.

  • Visitors’ facilities: As discussed in section 10.11 above, the

    visitors’ facilities at Villawood are of significant concern. The

    visitors’ areas in Stage 1 are inhospitable and lacking in privacy. In

    Stage 2 and 3 there is no indoor area for detainees to meet with visitors. DIAC

    should implement its plans to upgrade the visitors’ areas in Stage 1 as

    soon as possible. In addition, an indoor area should be provided for visitors to

    Stage 2 and 3 detainees.

  • Interview rooms: The interview rooms in Stages 2 and 3, and one of

    the interview rooms in Stage 1, are not private or soundproofed. This is a

    particular concern for detainees meeting with legal representatives or migration

    agents, or detainees speaking with representatives of the Commission or the

    Commonwealth Ombudsman. DIAC should ensure that the interview rooms at Villawood

    are private and soundproofed.

  • Halal food: The Commission was informed that the main kitchen at

    Villawood is certified as being halal. However, one detainee claimed that

    kitchen staff do not always follow halal practices. GSL and DNCA should ensure

    that kitchen practices at Villawood are halal. For any detainees who raise

    concerns about this issue, GSL should consider arranging for those detainees to

    be taken on an escorted tour of the kitchen areas. Refer to the discussion and

    recommendations in section 10.12 above.

11.2 Perth

Immigration Detention Centre

The Perth IDC is located next to the Perth airport. It is the smallest

mainland detention centre. Many of the detainees there are people who have

overstayed or breached their visa. However, the centre also accommodates some

longer term detainees, including some people whose visas have been cancelled

under section 501 of the Migration Act. At the time of the Commission’s

visit in July 2008, there were 21 detainees at the Perth IDC, including two

people who had been detained for more than 18 months.

(a) Infrastructure and

facilities

The Commission’s most significant concern regarding the Perth IDC is

that the infrastructure is inappropriate to use for anything other than holding

a very small number of detainees for a very short period of time. Ten years ago,

the Commission raised concerns about the facilities at the Perth IDC, and

recommended that DIAC should stop using the centre for long-term

detention.[111]

During its 2007 visit, the Commission was told that a major refurbishment

would be undertaken at the centre in 2008, including adding a second storey with

an education room and cooking facilities, replacing some of the dormitories with

smaller bedrooms, and adding visitors’ facilities. In its 2007 report, the

Commission raised concerns about the inadequacy of the infrastructure at the

centre, and recommended that the renovations be undertaken

promptly.[112] The Commission was

disappointed to learn in 2008 that many aspects of the planned refurbishment

have been cancelled for budgetary reasons.

The Perth IDC is a small, cramped centre. DIAC and GSL management and staff

make efforts to improve the conditions and to communicate with detainees.

However, given the restraints imposed by the physical infrastructure, it is easy

to imagine that detainees held at the centre for more than a few days might

quickly feel claustrophobic and frustrated.

There were some improvements made at the centre between the

Commission’s visits in 2007 and 2008. These included new pot plants,

furnishings in the dining room, library shelving in the recreation room, and

refurbishment of the medical observation room. These are all positive

improvements. However the larger structural problems remain. The

Commission’s major concerns include the following:

  • The dormitory bedrooms are small and cramped. Detainees sharing these rooms

    have very little privacy. Many detainees hang sheets over the sides of the top

    bunk bed to provide some privacy on the lower bed.

  • There is no outdoor grassy space for sport or recreational activities.

    Detainees have access to two small concrete courtyards, both of which are

    surrounded by high walls and razor wire.

  • There is not enough dedicated indoor space for recreational or educational

    activities. The computer room is very small. While there have been two

    additional computers installed since last year, there are still only four

    internet connected computers for use by the whole detainee population. There is

    no dedicated room for conducting computing classes, English classes or other

    scheduled programs. The multi-purpose recreation room has to cater for a myriad

    of purposes.

  • There is no visitors’ area, so visits have to be conducted in the

    multi-purpose room, which is also used for recreational programs, detainee

    consultative meetings, and other general activities such as watching TV.

    Detainees have no privacy with their visitors.

  • The gym area is small, outdoors, and not adequately protected from the

    weather.

  • There is no dedicated space for prayers or other religious activities. The

    DIAC Standards state that there should be a multipurpose space in each detention

    facility which can be used for spiritual or religious

    purposes.[113]

DIAC

has informed the Commission that a scaled down version of the previously planned

refurbishment will go ahead at the Perth IDC. Improvements will be made to the

bathroom and laundry areas, the gym and the outdoor courtyards. The Commission

welcomes these plans. However, they will not address most of the

Commission’s major concerns regarding the infrastructure and facilities at

the Perth IDC.

Recommendations: A comprehensive redevelopment of the Perth IDC

should be undertaken as a matter of priority. This should ensure that detainees

are provided with access to an outdoor grassy area for sport and recreation,

dedicated classroom space for educational activities, space that can be used for

religious purposes, and appropriate visitors’ facilities.


In the meantime, DIAC and GSL should ensure that detainees at the Perth IDC

have regular access to organised sporting activities, such as soccer, outside

the detention centre.


The outdoor gym area at the Perth IDC should be enclosed to ensure adequate

privacy and protection from the weather.


DIAC should continue to expand access to the internet for detainees at the

Perth IDC.

(b) Other

concerns

The Commission has a range of other concerns regarding the conditions at the

Perth IDC. These include the following:

  • External excursions: As discussed in section 10.6 above, the Perth

    IDC has reintroduced some group excursions since the Commission’s visit in

    2007. ‘High risk’ detainees are able to participate if arrangements

    can be made for an appropriate venue where risks can be mitigated. However, the

    Commission is concerned that detainees do not appear to have access to home

    visits, due to concerns about managing the potential security risks in a private

    home setting. In response to this concern, DIAC has informed the Commission that

    detainees at the Perth IDC do not usually request home visits, but that any

    requests are considered on a case by case basis using a risk assessment

    approach. Management at the Perth IDC should facilitate individual detainee

    requests for home visits where possible.

  • Use of restraints: A detainee at the Perth IDC expressed concerns

    about being handcuffed for visits to court, counselling sessions, and a shopping

    centre. Refer to the discussion and recommendations in section 10.7 above.

  • Interpreters and translation: Several detainees raised concerns about

    information not being provided in a language they can understand. The Commission

    is concerned that few documents provided for detainees are translated, and there

    does not seem to be a consistent practice of using onsite or telephone

    interpreters for day-to-day interactions between centre staff and detainees. In

    response to this concern, DIAC has informed the Commission that interpreters are

    consistently used at the Perth IDC, and that detainees are given a small card

    during induction that they can show to a detention officer to indicate that they

    need an interpreter. Refer to the discussion and recommendations in section

    10.10 above.

  • Cultural sensitivity: Two detainees raised concerns about a lack of

    cultural respect shown to detainees by GSL staff at the Perth IDC. In response

    to this concern, DIAC has informed the Commission that the DIAC Centre Executive

    has increased monitoring of GSL on this matter. Refer to the recommendation on

    staff training in section 9 above.

11.3 Maribyrnong

Immigration Detention Centre

Maribyrnong IDC is located approximately half an hour’s drive

north-west of Melbourne. Of the four mainland immigration detention centres, it

is the third largest after Villawood and Northern. Maribyrnong accommodates a

mix of detainees, including people who have overstayed or breached their visa,

protection visa applicants, and people whose visas have been cancelled under

section 501 of the Migration Act. At the time of the Commission’s visit in

August 2008, there were 41 detainees at Maribyrnong, seven of whom had been in

detention for longer than one year. Three of those people had been in detention

for more than two years.

(a) Infrastructure and

facilities

In its past two annual inspection reports, the Commission noted that

Maribyrnong has, in some ways, led the other centres in terms of positive

improvements.[114] Maribyrnong has

had significant refurbishments done over the past few years, which make it more

comfortable, modern and flexible than the other immigration detention centres.

Most of the razor wire has been removed, the external courtyards have been

landscaped, and there are a range of indoor recreational areas for use by

detainees. The visitors’ area is large, well-furnished and more

comfortable than the visitors’ areas in the other detention centres.

While many of the facilities at Maribyrnong are of a higher quality than

those at the other immigration detention centres, there are some infrastructure

issues that should be addressed. These include the following:


  • The interview rooms are not soundproofed. DIAC has informed the Commission

    that this issue has been referred to Facilities Management to be rectified.

  • There is no dedicated space for prayers or other religious activities. The

    DIAC Standards state that there should be a multipurpose space in each detention

    facility which can be used for spiritual or religious

    purposes.[115] DIAC has informed

    the Commission that this issue will be discussed further within the Community

    Consultative Group at Maribyrnong. In the meantime, DIAC has noted that there

    are two small private rooms in the visitors’ area that can be used upon

    request.

  • Some of the bedrooms are quite small, yet contain three single beds or two

    bunks (four single beds). When detainee numbers are low, this might not pose a

    problem. However, if these rooms were used to their capacity, they would be

    quite cramped. Under the DIAC Standards, a maximum of two persons should be

    accommodated in each bedroom during surge

    conditions.[116]

  • There is a concrete tennis court area, but no grassy area for sport and

    recreational activities.

  • Some of the gym areas at Maribyrnong are outdoor and not adequately

    protected from the weather. During its 2007 visit, the Commission was informed

    about plans to enclose the gym areas. These plans have not yet been implemented.

Recommendations: DIAC should ensure that the interview rooms at

Maribyrnong IDC are private and soundproofed.


DIAC and GSL should ensure that detainees at Maribyrnong IDC have access to

a space which can be used for religious purposes.


DIAC should undertake necessary changes at Maribyrnong IDC so that

detainees are provided with adequate access to open grassy space for sport and

recreation. In the meantime, DIAC and GSL should ensure that detainees at

Maribyrnong IDC have regular access to organised sporting activities, such as

soccer, outside the detention centre.


The outdoor gym areas at Maribyrnong IDC should be enclosed to ensure

adequate privacy and protection from the weather.

(b) Other

concerns

The Commission has a range of concerns regarding the conditions at

Maribyrnong. These include the following:

  • External excursions: As discussed in section 10.6 above, there are no

    group excursions being conducted from Maribyrnong. All external excursions must

    be requested by detainees and approved by management on an individual basis.

    ‘High risk’ detainees are only permitted to go on excursions in

    exceptional circumstances. Management at Maribyrnong should introduce regular

    group excursions for all detainees.

  • Violent incidents: GSL provided the Commission with records

    indicating that there were 13 violent incidents between detainees at Maribyrnong

    between January and August 2008, including four classified as assault

    occasioning actual bodily

    harm.[117] The police were

    informed in each of these cases. However, there is no record of charges being

    laid in connection with any of the incidents. The Commission is aware that DIAC

    has been negotiating a Memorandum of Understanding with the Victoria Police for

    a number of years. The Commission hopes to see this in place as soon as

    possible.

  • Halal food: The Commission was informed that the kitchen at Maribyrnong is halal. However, it is not clear if this is in fact the case,

    as we were also informed that pork is stored in the main fridge. In response to

    this concern, DIAC has informed the Commission that the matter will be

    investigated. GSL and DNCA should ensure that kitchen practices at

    Maribyrnong are halal. Refer to the discussion and recommendations in section

    10.12 above.

  • Library facilities: As discussed in section 10.4 above, there is no

    dedicated library area at Maribyrnong. This has apparently been delayed while

    arrangements are made for bookshelves to be constructed. DIAC and GSL should

    ensure that Maribyrnong has an onsite library area stocked with reading

    materials in the principal languages spoken by detainees at the centre. All

    detainees should have regular access to this area.

11.4 Northern

Immigration Detention Centre

The Northern IDC is located on property within the Defence Establishment

Berrimah, a fifteen minute drive outside of Darwin. It is the second largest

mainland immigration detention centre. Most of the people detained at the

Northern IDC are alleged ‘illegal foreign fishers’ apprehended in

Australia’s northern waters.

At the time of the Commission’s visit in September 2008, there were

three detainees at the centre. There were also two immigration detainees in the

Berrimah prison, serving sentences for unpaid fines for illegal fishing. The

Commission has been informed that the number of detainees at the Northern IDC is

generally associated with the fishing season and weather conditions. Detainee

numbers are generally much higher between October and February.

In the year between September 2007 and August 2008, there were 1145 alleged

‘illegal foreign fishers’ detained at the Northern IDC. The vast

majority were from Indonesia. Many detainees spend a relatively short period of

time at the centre. For the people held there between September 2007 and August

2008, the average time in detention was 21 days. However, 65 of those people

spent more than 50 days in

detention.[118]

In its 2007 inspection report, the Commission commended management at the

Northern IDC for responding to, and implementing many of the recommendations the

Commission made in its report the previous

year.[119] That included ceasing

the practice of holding children in the centre. Any detainees under the age of

18 have since been accommodated at an alternative place of detention in Darwin,

usually a hotel in the city where DIAC has a number of reserved rooms. The

detention of minors in Darwin is discussed in section 14 below.

During the 2008 visit, the Commission had concerns about a range of issues at

the Northern IDC, as discussed below. However, the Commission welcomes the

ongoing positive attitude of DIAC and GSL management at the centre, and their

willingness to address issues of concern where possible. Positive efforts are

made at the Northern IDC in areas including provision of interpreters,

translation of materials into languages other than English, and access to

external group excursions.

(a) Infrastructure and

physical environment

Since the Commission’s 2007 visit to the Northern IDC, a new dining and

recreation building has been constructed in the South compound. The building is

a large, flexible facility with two main rooms that will be used for dining and

recreation, as well as small prayer rooms and open veranda areas. This is a

positive development. However, the accommodation blocks in the South compound

have not been upgraded and are of average quality.

In general, the Northern IDC feels less restrictive than the other mainland

detention centres because it has more open space. However, the physical

appearance of the centre is quite harsh. There is a significant amount of high

wire fencing, which creates a high-security look and feel. This seems

unnecessary given that the centre is mostly used for low-risk detainees. It also

fails to implement the DIAC Standards, which state that ‘[t]he underlying

principle for security systems at all detention facilities is that security must

be as unobtrusive as

possible.’[120]

The Commission is also concerned about the lack of trees and other greenery

inside the centre, particularly the lack of an adequate grassy area for sporting

activities. The Commission has been informed that DIAC is taking steps to

address this issue. A water mitigation project has begun and is currently

estimated to be completed by May 2009. This should allow for more grass to grow

in the open areas at the centre, without the topsoil being washed away. The

Commission hopes to see significant progress with this project at its next

annual visit.

Recommendations: DIAC should consider reducing the amount of high

wire fencing at the Northern IDC. This would be in line with the principle

contained in the DIAC Standards that security systems at all detention

facilities should be as unobtrusive as

possible.[121]

DIAC should ensure that detainees at the Northern IDC are provided with

adequate access to an open grassy space for sport and recreation. The Commission

encourages DIAC to implement water mitigation measures at the Northern IDC as

soon as possible.

(b) Other concerns

The Commission has a range of other concerns regarding the Northern IDC.

These include the following:

  • Educational programs: As discussed in section 10.5 above, the

    Commission is concerned about the lack of educational programs at the Northern

    IDC. Activities at the centre are recreational rather than educational, as most

    detainees are alleged ‘illegal foreign fishers’ who the Department

    seeks to remove from Australia as soon as possible. However, some people are

    detained at the Northern IDC for significant periods of time. The Commission

    welcomes the introduction of conversational English classes, but encourages

    expansion of these into a more comprehensive program of activities. DIAC and GSL

    should arrange for the provision of structured educational classes for detainees

    who wish to participate. This should include ESL classes and computing

    classes.

  • Internet access: As noted in section 10.8 above, internet access has

    been provided for detainees at the Northern IDC since the Commission’s

    2007 visit. This is a positive development. However, at the time of the

    Commission’s 2008 visit, there were only two internet stations for use by

    detainees. This might be sufficient when detainee numbers are very low, but it

    will not be sufficient when numbers increase. DIAC has informed the Commission

    that two internet stations will be added to each of the two South compounds and

    one will be added to the North 2 compound. DIAC should continue to expand access

    to the internet for immigration detainees at the Northern IDC.

  • Halal food: As discussed in section 10.12 above, the Commission was

    informed that kitchen practices are halal, but there is no official process to

    certify that. This appears to be inconsistent with the practice in other

    detention centres. In response to this concern, DIAC has informed the Commission

    that the matter will be investigated. GSL and DNCA should ensure that kitchen

    practices at the Northern IDC are halal.

  • External excursions: As discussed in section 10.6 above, the Northern

    IDC runs a positive program of regular group excursions. However, the centre

    generally does not facilitate requests for home visits or individual excursions.

    The reasoning behind this is that most detainees in the centre generally do not

    have family or friends to visit in Darwin. While this might be the case, the

    Commission encourages management to consider any requests on a case by case

    basis and to facilitate detainee requests for home visits or other individual

    excursions where possible.

(c) Concerns relating to

‘illegal foreign fisher’ detainees

As noted above, most of the detainees held at the Northern IDC are alleged ‘illegal foreign fishers.’ Generally these people are apprehended at sea by the Australian Customs Service or the Australian Fisheries Management Authority (AFMA). On arrival at an Australian port they are detained under the Fisheries Management Act 1991 (Cth), before being transferred to immigration detention.[122] Some are prosecuted for illegal fishing – usually the captain of the vessel is charged. The rest spend a period of time in immigration detention - usually at the Northern IDC - before being returned to their country of origin, commonly Indonesia.

In connection with the 2008 visit to the Northern IDC, the Commissioner and one Commission staff member visited the ACV Triton, which was docked in Darwin. The Triton is a vessel used by Customs and AFMA to patrol Australia’s northern waters and to apprehend ‘illegal foreign fishers.’ The Triton is a 98 metre long diesel-powered vessel. It is capable of operating at sea for extended periods and it is equipped with two high-speed boats for conducting boarding operations on vessels suspected of illegal fishing activities. It has the capacity to hold up to 30 alleged ‘illegal foreign fishers’ for short a period of time while they are transported to an Australian port.

The Commission’s visit to the ACV Triton and discussions with detainees

at the Northern IDC raised the following concerns:

  • When Customs and/or AFMA officers board a vessel suspected of illegal

    fishing activities, there does not appear to be a consistent practice of

    providing clear information to crew-members in a language they can understand,

    explaining what personal belongings they should take with them and whether or

    not they will be allowed to return to the vessel later to retrieve any

    belongings left behind. This can lead to frustrations later on, when detainees

    at the Northern IDC are concerned about personal belongings left on their

    vessel.

  • Some AFMA and Customs officers are able to communicate in Bahasa Indonesia.

    However, there does not appear to be a policy requiring the presence of a

    qualified interpreter on patrols to convey information to crew-members in a

    language they can understand. Language cards are used to convey basic messages

    and questions to the crew, for example: ‘Who is the master of this

    vessel?’ The cards are available in Bahasa Indonesia, Spanish, Japanese,

    Chinese, Sinhalese, Thai, Russian, and Korean. While the cards are a useful

    device, the Commission is concerned that they might not be detailed or flexible

    enough to convey adequate information to people being apprehended at sea.

  • The area used for accommodating alleged ‘illegal foreign

    fishers’ on the Triton is cramped and stuffy. While access is available to

    the upper deck, this would not be ideal in rough weather. There are only two

    toilets and two small showers for use by up to thirty people. Unlike the crew

    areas of the ship, this area is not air-conditioned. Customs has informed the

    Commission that this will be rectified.

 

12 Alternatives to

immigration detention centres

Over the past few years an increasing number of alternatives to immigration

detention centres have been established on the mainland. These include detention

in immigration residential housing or immigration transit accommodation, and

community detention under a Residence Determination. Immigration detainees can

also be held in alternative places of detention. Among others, these places can

include hotels, hospitals, foster care arrangements, and detention in the

community with a designated person at a private house.

Currently, the number of people detained in immigration detention centres far

exceeds the number of people detained in alternative locations. When the

Commission began its annual visits in June 2008, there were 377 people in

immigration detention. Of these, 302 people were in immigration detention

centres and 75 were in an alternative

location.[123] When the Commission

concluded its visits in September 2008, there were 281 people in immigration

detention. Of these people, 198 were in immigration detention centres and 83

were in an alternative

location.[124]

The Commission has advocated for amendments to the Migration Act which would

reduce the number of people held in any form of immigration detention, and

increase the use of bridging visas for people awaiting an immigration

outcome.[125] In the meantime, in

the event that a person is taken into immigration detention, the Commission

encourages DIAC to make greater use of alternatives to immigration detention

centres. Generally, these alternatives provide a more comfortable environment,

and to varying degrees they allow people more personal freedom. Greater use of

alternatives would be in line with the Government’s stated intention that

detention in immigration detention centres is only to be used as a last

resort.[126]

However, it is important to recognise that, despite the fact that they are

not in an immigration detention centre, people held in these alternatives remain

in immigration detention. For people in immigration residential housing or

immigration transit accommodation, the physical environment is highly preferable

to an immigration detention centre, but they are still being held in a detention

facility. They are not free to come and go. These facilities are discussed in

sections 12.1 and 12.2 below.

For people in community detention under a Residence Determination, they are

permitted to live in a designated house or apartment in the community. They are

generally free to come and go from that residence. However, there are certain

restrictions in terms of where they can go and what they can do while they are

in community detention. These issues are discussed in section 12.3 below.

For people held in an alternative place of immigration detention (e.g. a

hotel or hospital), the conditions will depend on where they are held and what

arrangements are made for a designated person to supervise their detention.

These issues are discussed in section 14.4 below with regard to children held in

immigration detention in hotel accommodation in Darwin.

12.1 Immigration

residential housing

There are currently two immigration residential housing facilities in

Australia:

  • The Sydney Immigration Residential Housing (Sydney IRH) is located next to

    the Villawood IDC. It was opened in 2006.

  • The Perth Immigration Residential Housing (Perth IRH) opened in 2007.It is

    located in Redcliffe. It is not located in the same area as the Perth IDC, which

    is next to the airport.

The Commission visited both facilities

during its 2008 visits. As in past years, the Commission found that the

immigration residential housing facilities provide a much higher standard of

accommodation than the immigration detention centres. Partly this is because the

Sydney IRH and Perth IRH are much newer facilities. However, it is also because

the security measures are much less intrusive – there are no high wire

fences, razor wire, or small walled-in courtyards. Rather, each facility is

surrounded by residential style fencing and the area is monitored by external

cameras and an alarm system. The buildings are similar to regular brick houses

and they are generally well-furnished and supplied with modern appliances. These

factors all combine to create an atmosphere that is much more comfortable and

less tense than in the immigration detention centres.

In addition, people detained in the immigration residential housing

facilities are generally provided with more autonomy and privacy than people in

the immigration detention centres. Detainees at the Sydney IRH and the Perth IRH

have access to a kitchen and can do their own cooking. They are generally able

to go on more external excursions. And they usually have their own bedroom, and

access to dining and living areas that are shared by a smaller number of people

than would be the case in an immigration detention centre.

However, it is important to remember that immigration residential housing is

still a closed detention facility. People are not free to come and go. They can

only leave the facility on supervised excursions. In 2008, the Commission spoke

with some detainees at the Sydney IRH and the Perth IRH who had previously been

held in an immigration detention centre. While these people were generally much

happier to be in immigration residential housing, several expressed their

ongoing frustration about being detained for a lengthy period of time. The

psychological effects of detention remain a significant concern for people held

in immigration residential housing.

(a) Sydney Immigration

Residential Housing

The Sydney IRH consists of four duplex houses. Each house contains three

bedrooms, two bathrooms, a shared kitchen, two living and dining areas and an

undercover garage area with outdoor furniture. The houses face a shared garden

area which includes some children’s playground equipment, a few trees,

some grassy space and a small vegetable garden.

At one end of the facility there is an administration building, which

includes a computer room for use by detainees. This has four computers, two of

which are connected to the internet. The internet connection is a positive

development since the Commission’s last visit. A second room has some

sewing equipment available for detainees to use. There is also an undercover

garage area containing recreational facilities including a table tennis table,

couches, a TV, and children’s toys.

The facilities and environment at the Sydney IRH are highly preferable to the

Villawood IDC. The Commission has visited the Sydney IRH three years in a row,

and has consistently raised concerns that the facility is not used to its full

capacity.[127] It has a regular

capacity of 34 people, and a surge capacity of 48 people. When the Commission

visited in 2008, there were 16 detainees there, compared to 224 at Villawood. It

is not clear why greater use is not made of the Sydney IRH as an alternative to

detaining people at Villawood, particularly for detainees considered ‘low

risk.’

Recommendation: DIAC should fully utilise the Sydney IRH as an

alternative to detaining people at the Villawood IDC.

The Commission has some concerns regarding the facilities and services at the

Sydney IRH. These include the following:

  • External excursions: Excursions for detainees at the Sydney IRH

    appear to be quite limited. While detainees are escorted on regular trips for

    buying groceries, there do not appear to be many recreational excursions. As

    recommended in section 10.6 above, DIAC should adopt minimum standards for the

    conduct of regular external excursions from immigration detention facilities and

    include these standards in the contract with the detention services provider. In

    the meantime, management at the Sydney IRH should increase the frequency of

    recreational excursions for detainees.

  • Families and children: At the time of the Commission’s visit

    there was a family of five at the Sydney IRH, with a baby and a five year old

    child. The family had been detained for three months. The Commission has

    significant concerns about children being held in immigration detention

    facilities. This is discussed further in section 14 below.

  • Health services: Detainees at the Sydney IRH do not have access to

    health or mental health services onsite. They are required to make an

    appointment with medical providers offsite. This has the benefit of allowing

    detainees to leave the facility and to access health services in a community

    setting. However, because an escort must be arranged for each external

    appointment, this policy can have the effect of delaying access to health

    services. Several detainees raised concerns about this. Detainees at the Sydney

    IRH should be given the option of accessing health and mental health staff and

    services onsite.

  • Recreational and educational activities: There are some recreational

    facilities at the Sydney IRH, as noted above. However, there is no schedule of

    organised internal activities. This is particularly concerning given that the

    number of recreational excursions is quite limited. DIAC and GSL should ensure

    that detainees at the Sydney IRH are provided with regular access to

    recreational and educational

    activities.

Recommendations: Management at the Sydney IRH should increase the

frequency of recreational excursions for detainees.

Detainees at the Sydney IRH should be given the option of accessing health

and mental health staff and services onsite.

DIAC and GSL should ensure that detainees at the Sydney IRH are provided

with regular access to recreational and educational activities.

(b) Perth Immigration

Residential Housing

The Perth IRH consists of two houses, each with five bedrooms, two bathrooms,

a shared kitchen and dining area, and two living room areas. In between the

houses there is a shared courtyard area with outdoor furniture, garden beds, a

BBQ and a table tennis table. There is also a shared back lawn.

The facility is entered through a small administration building, which

contains a security control room and a common room used by staff and detainees.

This room is small but well-furnished. It has a TV area, tables and chairs,

basic kitchen facilities and two internet connected computers.

The Commission

was pleased to hear that the Perth IRH provides a weekly schedule of internal

and external recreational and educational activities for detainees. The

Commission was provided with a schedule that includes internal English classes

and sessions on computer skills and life skills, as well as external trips to

the library, gym, church, and grocery shopping. The Commission encourages DIAC

and GSL staff at the Perth IRH to ensure that this schedule of activities is

maintained.

The facilities and environment at the Perth IRH are highly preferable to the

Perth IDC. For this reason, at both the 2007 and 2008 visits, the Commission

raised concerns about the under-utilisation of the Perth

IRH.[128] The facility has the

capacity to accommodate up to 20 people, with a comfortable capacity of ten

people. When the Commission visited in July 2008 there were only four detainees

there, compared with 21 detainees at the Perth

IDC.[129]

In response to this concern, DIAC informed the Commission that use of

immigration detention facilities is under review to ensure alignment with the

Government’s new directions in immigration detention. There will be

particular emphasis on increased placement of people in lower risk facilities

such as immigration residential housing, rather than immigration detention

centres. The Commission hopes to see that significant progress has been made in

this regard during its 2009 annual inspections.

Recommendation: DIAC should fully utilise the Perth IRH as an

alternative to detaining people at the Perth IDC.

The Commission has some concerns regarding the facilities and services at the

Perth IRH. These include the following:

  • Interpreters: There are no onsite interpreters at the Perth IRH.

    Several detainees raised concerns about difficulties with communication. One

    detainee claimed that TIS is not always used when it should be. In response to

    this concern, DIAC has informed the Commission that interpreters are

    consistently used, and that detainees are given a small card during induction

    that they can show to a detention officer to indicate that they need an

    interpreter. Refer to the recommendations on interpreters and translation in

    section 10.10 above.

  • Families and children: At the time of the Commission’s visit

    there were no children at the Perth IRH. However, we were informed that there

    had been two families with children at the IRH prior to our visit. There have

    also been children at the IRH since

    then.[130] The Commission has

    significant concerns about children being held in immigration detention

    facilities. This is discussed further in section 14 below.

  • Health services: Detainees at the Perth IRH do not have access to

    health or mental health services onsite. This raises the same concerns discussed

    with regard to the Sydney IRH in the above section. In response to this concern,

    DIAC has informed the Commission that it is in the process of reviewing options

    for the provision of limited onsite health services at the IRH.

Recommendation: Detainees at the Perth IRH should be given the

option of accessing health and mental health staff and services onsite.

12.2 Immigration

transit accommodation

There are currently two immigration transit accommodation facilities in

Australia:

  • The Brisbane Immigration Transit Accommodation (Brisbane ITA) is located in

    Pinkenba. It was opened in late 2007.

  • The Melbourne Immigration Transit Accommodation (Melbourne ITA) opened in

    June 2008. It is located in Broadmeadows, on property that forms part of the

    Maygar Barracks.

The Commission visited both facilities in 2008. A

third immigration transit accommodation facility will be established in

Adelaide. DIAC anticipates that it will be operational in mid 2009.

Many of the positive comments about the immigration residential housing

facilities in section 12.1 above also apply to the immigration transit

accommodation facilities. The Brisbane and Melbourne ITAs provide a much higher

standard of accommodation than the immigration detention centres. The facilities

are newer and more comfortable. The security measures are less intrusive and, as

a result, the atmosphere is more relaxed. Detainees have greater privacy,

usually having their own bedroom.

The Commission welcomes alternatives to holding detainees in immigration

detention centres, and encourages DIAC to make greater use of the ITAs when

possible and appropriate. For people in these facilities, the physical

environment is highly preferable to an immigration detention centre. However, it

is important to recognise that they are still being held in a closed detention

facility. They are not permitted to come and go.

The Brisbane and Melbourne ITAs were established with the intention that they

would be used as temporary accommodation for low risk detainees on a rapid

removal pathway. At the time of the Commission’s 2008 visits, DIAC policy

was that the ITAs would be used to accommodate low risk detainees for up to

seven days, and that children and their families would not be held in the

facilities.[131]

However, during its 2008 visits the Commission was informed that this policy

was being reconsidered. At that time, there had already been cases of detainees

staying at the ITAs for longer than seven days. Since the visits, DIAC has

informed the Commission that the policy has been amended so that detainees can

be held at the ITAs for two to three weeks. This change was apparently made due

to problems removing detainees from Australia within seven days, because of

delays in sourcing travel documents.

The Commission is not opposed to detainees being accommodated at the ITAs for

longer than seven days if the alternative would be to move them to an

immigration detention centre. However, if DIAC intends to use the ITA facilities

for longer stays, the services and facilities will need to be improved. Because

the ITAs were designed for short stays only, detainees are generally not

provided with access to external excursions, there are no organised recreational

or educational activities, and there are limited health services provided

onsite.

The Commission is aware that, since its 2008 visits, several children have

been accommodated at the ITA facilities. The Commission has significant concerns

about this practice, as discussed in section 14 below.

Recommendation: If DIAC intends to use the ITA facilities to detain

people for longer than seven days, as an alternative to detaining them in an

immigration detention centre, DIAC should provide detainees with access to

external excursions, organised recreational and educational activities, and

health and mental health services, as appropriate.

(a) Brisbane Immigration

Transit Accommodation

The Brisbane ITA consists of three accommodation blocks. Each block has five

small bedrooms, each with two beds. The Commission was informed that detainees

will not be required to share bedrooms unless absolutely necessary. There is a

shared recreation area in each accommodation block with kitchen, dining and

living room facilities.

There

is a central administration building which contains a large common room used for

dining, recreation, visits and watching TV. This room also has a table tennis

table, several internet connected computers, and basic kitchen facilities.

Detainees have access to a large grassy area, and an outdoor basketball and

tennis court. The facility is surrounded by a residential style fence, with an

infra-red alarm system along the fence line.

There are no organised recreational or

educational programs at the Brisbane ITA. Detainees are generally not provided

with access to external excursions or home visits. There is a nurse onsite three

times per week, for a total of 16 hours.

At the time of the Commission’s 2008 visit, there were no detainees at

the Brisbane ITA. DIAC provided the Commission with statistics indicating that

between 1 November 2007 and 30 July 2008, there were 265 people held at the

ITA.[132] This is approximately

one person per day. The average length of detention was less than two days. The

longest was 14 days. Almost all of the detainees were airport turnarounds or

compliance cases. This includes people who have breached or overstayed their

visa, or people whose visas have been cancelled.

In general, the Brisbane

ITA is a good facility. In many ways it is highly preferable to the immigration

detention centres. However, the Commission has some concerns about the services

and facilities at the Brisbane ITA. These include the following:

  • Induction materials: Detainees at the Brisbane ITA are not provided

    with written induction materials. DIAC has informed the Commission that a draft

    induction handbook is being finalised. However, at the time of the

    Commission’s visit, the ITA had already been operational for more than

    nine months. During that time, detainees have been provided with basic induction

    information verbally. However, this is not an adequate substitute for

    comprehensive written induction materials. Refer to the recommendations on

    induction materials in section 10.9 above.

  • Complaint and request forms: At the time of the Commission’s

    visit, there were no complaint forms or detainee request forms freely available

    in the facility. There were also no internal mail boxes for DIAC or GSL, making

    it difficult for detainees to lodge anonymous written comments or complaints. In

    response to this concern, DIAC has informed the Commission that a brochure stand

    has since been installed in the common room, containing copies of GSL request

    and complaint forms translated into a number of languages. Mail boxes have also

    been installed.

  • Food: Detainees do not have access to cooking facilities at the

    Brisbane ITA (except a microwave and a toaster). At the time of the

    Commission’s visit, there was no chef to prepare meals. This meant that

    meals for detainees were mostly frozen pre-packaged meals. In response to this

    concern, DIAC has informed the Commission that a new ‘Hospitality and

    Activities Coordinator’ has since been hired and freshly cooked meals are

    now being prepared onsite.

  • Communications: During the 2008 visit, the Commission was concerned

    to hear that there had been a policy in place at the Brisbane ITA under which

    access to phones and the internet was restricted for ‘medium risk’

    and ‘high risk’ detainees. There did not appear to be a rational

    explanation for this policy. In response to this concern, DIAC management at the

    ITA informed the Commission that the practice would be stopped.

  • Families and children: At the time of the Commission’s visit,

    DIAC policy was that children and their families would not be held in the ITA

    facilities. Since the Commission’s visit, children have been accommodated

    at the Brisbane ITA.[133] The

    Commission has significant concerns about children being held in immigration

    detention facilities. This issue is discussed in section 14 below.

(b) Melbourne

Immigration Transit Accommodation

The Melbourne ITA is a new immigration detention facility. The Commission

visited for the first time in August 2008. At that time, the ITA had only been

operational for approximately two months. As a result, there were some

operational issues still being considered. Given that, the Commission’s

comments on the facility are of a preliminary nature. The Commission will

monitor developments at the Melbourne ITA and conduct a more comprehensive

assessment at its next annual visit.

The Melbourne ITA is situated in a two-storey brick building that has been

recently refurbished. The facility is enclosed with a residential style fence.

The external areas are monitored with cameras and there is an infra-red beam

alarm along the fence line.

The facility is designed to accommodate up to 30 people. It contains 16

bedrooms, most of which have two single beds. The bedrooms are clustered in four

areas. Each of these areas has a small common room with a kitchenette, lounge,

TV, and dining table. There is also a large common room on one side of the

building, which has four internet connected computers, a lounge and TV area, and

a dining and kitchen area. Unlike the Brisbane ITA, where detainees do not have

access to cooking facilities, detainees at the Melbourne ITA can cook for

themselves in the kitchen area. Leading off the common room there are two

smaller rooms that can be used for private visits or interviews.

At the back of the building there is a self-contained unit, called the Maygar

annex. This can accommodate up to four people in two bedrooms. There is a small

kitchen area, a lounge and dining room, and a small outdoor courtyard. According

to DIAC, the annex is suitable for accommodating a ‘special care’

group.

The facility has a shared outdoor area including a veranda with outdoor

furniture and two BBQs, a volleyball court and a small grassy area suitable for

sport and recreation. Detainees have access to recreational facilities including

a table tennis table, a pool table, TV and DVDs. Detainees are not normally

provided with access to external excursions or home visits.

At the time of the Commission’s 2008 visit, there were two detainees at

the Melbourne ITA. Just prior to the Commission’s visit there was a large

group of detainees at the ITA, including 18 men and six women. All of these

people had been detained as a result of breaching their visa conditions or

overstaying their visa, and had been in detention for more than one week and

less than one month.[134]

In general, the Melbourne ITA is a good facility. It provides a much more

comfortable environment than Maribyrnong and the other immigration detention

centres. However, the Commission has some concerns regarding the services and

facilities at the Melbourne ITA. These include the following:

  • Health services: There is a small medical room at the Melbourne ITA,

    and a nurse from Maribyrnong conducts visits when there are detainees at the

    ITA. However, there are no health or mental health staff based onsite. The

    Commission is concerned that, for this reason, a detainee with a health or

    mental health condition might be held at Maribyrnong despite the fact that the

    ITA might be a more appropriate facility for them. In response, DIAC has

    informed the Commission that placement decisions are made on a case by case

    basis and that health or mental health concerns will not necessarily prevent a

    detainee from being held at the ITA.

  • Recreational and educational activities: There are no organised recreational or educational activities at the Melbourne ITA. This

    might not pose a problem if detainees are there for up to seven days, as the

    original ITA policy provided for. However, at the time of the Commission’s

    visit there had been detainees held at the ITA for up to 26 days. As recommended

    above, if DIAC intends to use the ITA facilities to detain people for periods of

    longer than seven days, DIAC should ensure that detainees are provided with

    access to organised recreational and educational activities as appropriate. DIAC

    has informed the Commission that GSL will engage with groups of detainees placed

    at the ITA for seven days or more to determine if they want or would benefit

    from structured recreational activities. If so, DIAC will submit a request for

    GSL to provide an officer to organise activities.

  • Families and children: At the time of the Commission’s visit,

    DIAC policy was that children and their families would not be held in the ITA

    facilities. Since the Commission’s visit, children have been accommodated

    at the Melbourne ITA.[135] The

    Commission has significant concerns about children being held in immigration

    detention facilities. This issue is discussed further in section 14

    below.

12.3 Community

detention

Under the Migration Act, the Minister for Immigration can make a Residence

Determination permitting an immigration detainee to live at a specified location

in the community. This is known as community detention.

When the Commission began its annual visits in June 2008, there were 377

people in immigration detention, including 44 in community

detention.[136] The Commission met

with approximately one third of these people during nine separate visits in July

and August 2008. This included visits to one unaccompanied minor in Victoria,

six single men (three in NSW and one each in Victoria, Western Australia and

Queensland), and two families (one in NSW and one on Christmas Island).

This section of the report primarily relates to community detention

arrangements on the mainland. Concerns regarding community detention

arrangements on Christmas Island are discussed in section 13.6 below.

(a) Advantages of

community detention

The Commission has noted in previous reports that there are significant

advantages for people placed in community detention rather than an immigration

detention facility.[137] The

Commission’s 2008 community detention visits confirmed that view. The

people the Commission met with were much happier to be in community detention

than in an immigration detention facility.

People in community detention are permitted to live in a designated house or

apartment in the community. They are generally free to come and go from that

residence, and they are not under physical supervision. This means that they

have a much higher degree of privacy and autonomy than people detained in a

closed facility. They do their own grocery shopping, prepare their own meals,

and generally have freedom to engage with others in the community. The physical

environment is highly preferable to an immigration detention centre, as there

are no security measures in place.

The Commission is of the view that, generally, people should not be held in

any form of immigration detention. Rather, they should be granted a bridging

visa to remain in the community while they await an immigration

outcome.[138] However, in the

event that a person is taken into immigration detention, the Commission believes

that community detention is the most appropriate arrangement.

Recommendation: The Commission urges DIAC and the Minister for

Immigration and Citizenship to make greater use of community detention

arrangements, rather than holding people in immigration detention facilities.

(b) Eligibility

criteria

Currently, the criteria for a person to be considered for community detention

are very limited. People in the following circumstances may be referred to the

Minister for consideration for a Residence Determination:

  • Children and their families.
  • Unaccompanied minors.
  • An adult with special needs that cannot be cared for in detention.
  • An adult with unique and exceptional circumstances such that failure to

    recognise them would result in hardship and harm to an Australian citizen or

    Australian family unit.

  • A person with a background of torture and

    trauma.[139]

The

Commission has observed in the past that the eligibility criteria unduly

restrict the ability of DIAC to refer adult detainees to the Minister for a

Residence Determination.[140] The

Commission has met with numerous detainees in immigration detention facilities

whose physical and mental wellbeing would be greatly assisted by being moved to

community detention. This is despite the fact that they might not be considered

as meeting the ‘unique and exceptional circumstances’ test or the

‘special needs’ test set out in the eligibility criteria.

In addition, the Commission has concerns that some detainees who would meet

the ‘special needs’ criteria because of health or mental health

issues are currently not being moved to community detention quickly enough. For

example, during the 2008 visits, Commission staff were concerned about a

detainee at Villawood who was suffering from a significant medical condition.

The individual was receiving ongoing treatment for the condition. However, he

spoke of difficulties dealing with his condition and the treatment whilst in a

detention centre. Despite his condition, he had not been informed of, or

considered for, community detention or an alternative place of detention.

Further, as discussed in section 10.3 above, some concerns were raised with the

Commission during its visits about the length of time taken to move detainees

with a background of torture or trauma to community detention.

Recommendations: The eligibility criteria for referral for a

Residence Determination should be broadened. In addition to the current

criteria, any person who has been in an immigration detention facility for three

months or more should be able to apply for, or be referred for, a Residence

Determination.

In the meantime, DIAC should ensure that all immigration detainees who meet

one of the current eligibility criteria are referred to the Minister without

delay. In particular, any detainees with significant health or mental health

issues, or with a background of torture or trauma, should be promptly considered

for a Residence Determination.

(c) Conditions in

community detention

As noted above, the environment for people in community detention is highly

preferable to being held in an immigration detention facility. The people the

Commission met with were much happier to be in community detention. However, it

is important to recognise that, even though they are not in a detention

facility, legally these people remain in immigration detention. They are

awaiting an immigration outcome, sometimes for many months or even years.

For example, in 2008 the Commission met with a family who had been in

community detention for almost two years, a young man who had been in community

detention for a year, and an unaccompanied minor who had been in community

detention for nine months. For some people, their time in community detention

comes on top of time already spent in an immigration detention facility. For

example, the Commission met with one man who had been in community detention for

three months after spending more than four years at Villawood and the Sydney

IRH, and another man who had been in community detention for three months after

spending more than two and a half years at Villawood.

For people in community detention, while they await their immigration outcome

they face the same uncertainty experienced by detainees in immigration detention

facilities. Virtually all of the people the Commission met with expressed

anxiety about the ongoing uncertainty.

People in community detention are allowed to live unsupervised in the

community. However, they are required to follow a set of conditions, as set out

in their Residence Determination. These conditions can be varied for each

individual. However, they generally include requirements such as living at a

specified address and sleeping at that place every night, reporting to DIAC on a

regular basis, and refraining from engaging in paid work or a formal course of

study.

Some people told the Commission that they felt restricted by the conditions

placed on them. While they are not physically in a detention centre, they still

feel as though they are in detention, because they do not have total freedom of

movement. They are not able to sleep anywhere besides their stipulated residence

or have other people stay at their residence, unless they seek prior approval

from DIAC. This restricts their ability to travel. In response to this concern,

DIAC has informed the Commission that it will normally approve short domestic

trips of up to eight days away.

People in community detention are provided with a range of support services

by the Australian Red Cross, which is contracted by DIAC to provide these

services. The Red Cross arranges accommodation, provides basic furnishings and

appliances, assists with arranging medical appointments, provides information

about community services and classes, and provides general support for the

wellbeing of people in community detention. Most of the people the Commission

met with were happy with the support being provided by the Red Cross, and found

their Red Cross officer to be very helpful. Most people were generally satisfied

with their accommodation placement.

People in community detention are provided with a living allowance, which is

89% of the amount Centrelink clients receive. Most people told the Commission

that the money was not very much, but they were generally able to cover their

basic costs including food, electricity and phone bills. While they are not

eligible for Medicare, basic health care costs are covered for people in

community detention. In general, people were satisfied with the medical services

they were able to access, although one person raised concerns about not being

able to use the IHMS card they had been given to access prescription medication

at a pharmacy.

(d) Meaningful

activities for people in community detention

One of the most common concerns raised by people in community detention is

that they would like to be able to spend their time doing something meaningful

and constructive, particularly some form of work or study. The Commission has

raised concerns about this issue in the

past.[141]

Currently, people in community detention are not allowed to do paid work or

receive a salary. They are provided with accommodation and a basic living

allowance, so they will not necessarily be in severe financial hardship.

However, the benefits of working go beyond the purely financial. For most people

it is a significant source of pride to support themselves and their family. It

is also psychologically beneficial in terms of having a constructive daily

purpose, and professionally beneficial in terms of increasing knowledge and

skills.

People in community detention are allowed to undertake ‘suitable unpaid

voluntary work’, but only if they get prior approval from

DIAC.[142] The Commission has

heard that, in practice, this approval can be very difficult to obtain. There is

currently no formal policy setting out the process for submitting a request or

the criteria that DIAC will consider when deciding whether to approve a request.

DIAC has informed the Commission that there is a set of principles included in a

draft policy manual. However, the manual is yet to be finalised and the draft

principles are not publicly available.

The lack of a clear and transparent policy about voluntary work causes

problems for people in community detention. The process of applying for DIAC

approval is not clear, and there is uncertainty as to what types of voluntary

work DIAC will consider as ‘suitable.’ The Commission has also heard

from some people that DIAC’s approval process takes a long time. By the

time the approval comes through, the voluntary work placement is not necessarily

available anymore.

Further, the Commission has been informed that a request to undertake

voluntary work will only be approved by DIAC if the request is accompanied by

certification that the organisation has appropriate workers’ compensation

insurance. The Commission has heard that this requirement causes difficulties in

practice. There is no clarity as to exactly what type of insurance coverage is

required, and some community based organisations are therefore unsure if their

insurance policy will provide adequate coverage for people in community

detention who wish to undertake voluntary work.

In terms of study, with the exception of school children, people in community

detention are not permitted to enrol in a formal course of study or vocational

training. This is particularly concerning given the length of time many people

spend in community detention, without the ability to pursue meaningful

activities to help them prepare for their future. One young man told the

Commission of his frustrations at not being able to pursue a course of study

leading to a qualification. He was worried that by the time he got an

immigration outcome, he would not be employable. Given that some people spend

months or years in community detention, they should be permitted to use this

time in a constructive way. For those people permitted to remain in Australia,

the knowledge and skills they gain will ultimately be of broader benefit to the

Australian community.

Recommendations: DIAC should adopt a formal policy, without delay,

to clarify its requirement that people in community detention must obtain

approval before undertaking unpaid voluntary work. The policy should be clear

and transparent. It should set out: the steps required to apply for approval;

the criteria to be considered in determining whether a voluntary work placement

is ‘suitable’; the type of insurance coverage required by the

organisation; and the timeframe in which requests will be responded to. DIAC

should ensure that all requests are promptly considered and responded to.

Reasons should be provided if the request is denied.


DIAC should repeal its policy of prohibiting immigration detainees from

undertaking courses of study that lead to a formal qualification. DIAC should

allow people in community detention to enrol in substantive education courses at

TAFE and other educational or vocational training institutions.

 

13 Immigration detention

on Christmas Island

The Human Rights Commissioner and one Commission staff member conducted a

three day visit to Christmas Island in August 2008. This was the

Commission’s first visit to the island since the former Human Rights

Commissioner visited in January

2002.[143]

In the 12 month period leading up to the Commission’s visit, there were

22 people detained on the

island.[144] At the time of the

Commission’s visit in August 2008, there was a family of four in community

detention on the island, but there were no detainees in the immigration

detention facilities. Since the Commission’s visit there have been several

new groups of asylum seekers detained on the island.

In the past, the Commission has opposed the policy of processing asylum

seekers in off-shore facilities, and has called for the repeal of the provisions

of the Migration Act relating to excised off-shore places including Christmas

Island.[145] These views have been

solidified by the Commission’s visit to the island and the immigration

detention facilities located there.

Christmas Island is very remote from the Australian mainland. The nearest

capital city is Perth, more than 2600 kilometres away. With only two flights

each week from Perth, reaching the island is logistically difficult and

expensive. The island’s population is very small - currently around 1000

people. The communications infrastructure is limited, and the island is four

hours behind Australian Eastern Standard Time.

These factors combine to create numerous concerns which, in the

Commission’s view, make Christmas Island an inappropriate place to hold

people in immigration detention or to process applications for asylum. The

remoteness, infrequent flights and prohibitive costs make it almost inaccessible

to external scrutiny bodies, refugee support groups and non-government

organisations working on immigration detention issues. The small size and

limited capacity of the local community make it difficult for detainees to

access services including health care, mental health care, legal assistance, and

cultural and religious support.

In addition to these overarching views, the Commission has serious concerns

about the immigration detention facilities on Christmas Island, particularly the

new detention centre. It is a harsh facility with excessive levels of security.

The Commission’s major concerns regarding immigration detention on

Christmas Island are set out below. It should be noted that this does not

constitute a comprehensive assessment of the various immigration detention

facilities on the island, or the services and conditions in those facilities.

This is partly due to the fact that there were no detainees in the facilities at

the time of the Commission’s visit, and therefore some systems were not

fully operational. However, it is also reflective of the Commission’s

position that, regardless of what the detention facilities are like, Christmas

Island is not an appropriate location to hold people in immigration

detention.

Recommendation: People should not be held in immigration detention

on Christmas Island.

13.1 Excision and

off-shore processing

The Minister for Immigration has stated that the asylum claims of people who

arrive unauthorised in excised places will be processed on Christmas

Island.[146] The Commission has

consistently raised concerns about the practice of processing claims of asylum

seekers in off-shore places, including Christmas

Island.[147]

Australia’s excision legislation creates a dual processing system for

asylum seekers that, in the Commission’s view, is unjustified. Under this

dual system, a person who arrives in an excised place without a valid visa (for

example, a person who arrives by boat on Christmas Island) has access to a

different refugee status determination process compared to a person who arrives

by air on the mainland, also without a valid visa. Both people can make a claim

for asylum. But the asylum seeker on the mainland will have access to some legal

processes that the asylum seeker on Christmas Island will not have access

to.

People who arrive at excised places, including Christmas Island, are not able

to submit a valid visa application under the Migration Act, unless the Minister

for Immigration exercises his or her discretion to allow an application to be

submitted.[148] This discretion is

non-compellable, so a person will have no legal recourse if the Minister decides

not to exercise it. Further, people who arrive at excised places, including

Christmas Island, are not able to have their cases reviewed in the Refugee

Review Tribunal or the Australian

courts.[149]

The Commission has raised concerns in the past that the off-shore processing

of asylum seekers undermines Australia’s international obligations under

the Refugee Convention, the ICCPR and the

CRC.[150] For example, it

undermines the principle of non-refoulement by failing to provide

adequate legal safeguards to ensure that cases in which a person has a fear of

persecution are justly decided. It can also lead to breaches of children’s

rights.[151] This includes the

right of child asylum seekers and refugees to receive appropriate protection and

assistance.[152] The principle of

non-discrimination in the CRC means that all children seeking asylum are

entitled to the same level of protection and assistance – regardless of

whether they arrive in an excised place or

not.[153]

Until recently, detainees on Christmas Island were not entitled to legal or

migration advice or assistance during the immigration process. In July 2008, the

Minister for Immigration announced that asylum seekers in excised places will be

provided with access to publicly funded advice and assistance through the

IAAAS.[154] The Commission

welcomes this development, but has ongoing concerns given the lack of lawyers

and migration agents located on the island. If DIAC intends to continue to

detain people on Christmas Island, it will need to allocate sufficient resources

to ensure that all detainees on the island are provided with comprehensive legal

and migration advice and assistance in person.

The Minister also announced in July 2008 that asylum seekers on Christmas

Island will be provided with access to independent review of negative refugee

status assessment decisions, and external scrutiny by the Immigration

Ombudsman.[155] These are both

positive developments. However, it has not yet been made clear who will conduct

independent merits reviews, and what specific powers the Ombudsman will have

with regard to detainees on Christmas Island. There is also a lack of clarity

and transparency regarding how the refugee status assessment process is being

conducted on Christmas Island.

Recommendations: The Australian Government should repeal the

provisions of the Migration Act relating to excised off-shore places. All

unauthorised arrivals who make claims for asylum should have those claims

assessed through the refugee status determination process on the Australian

mainland.

13.2 Health care for

detainees on Christmas Island

The Commission has concerns about the availability of health care for

detainees on Christmas Island. Given the small size of the island’s

population, local health care services are very limited. These services could

only meet the health care needs of a small number of immigration detainees

without impacting on the availability of resources for the local community.

At the time of the Commission’s visit, DIAC was in negotiations with

the Indian Ocean Territories Health Service (IOTHS) with regard to the provision

of basic health services for immigration detainees on the island. At the time,

it was not clear what arrangements were in place to ensure that an adequate

level of medical staff and resources would be provided if a significant number

of immigration detainees arrived.

Since the Commission’s visit, DIAC has informed the Commission that

doctors, nurses and specialist health care providers will be transported to

Christmas Island when required to provide additional support for the delivery of

health care services to immigration detainees. No details have been provided,

however, as to the number or type of health care staff that will be made

available, or how quickly detainees will be able to access these services.

There are some medical needs that cannot be met on the island at all. For

example, there is currently no capacity for a pregnant immigration detainee to

give birth on Christmas Island; they will need to be flown to the mainland. DIAC

will need to ensure that any pregnant immigration detainees are provided with

appropriate pre-natal and post-natal care, and that any immigration detainee

flown to the mainland to give birth is provided with appropriate medical and

personal support. This should include ensuring that the woman’s husband,

partner or other personal care-giver is permitted to travel with her to attend

the birth and provide support afterwards.

13.3 Mental health

care for detainees on Christmas Island

The Commission has significant concerns about the ability of immigration

detainees on Christmas Island to access adequate mental health and psychological

support services. This contributes to the Commission’s view that the

island is not an appropriate location for holding immigration detainees,

particularly asylum seekers who might have a background of torture or

trauma.

There is currently almost no local capacity to meet the mental health or

psychological needs of immigration detainees on the island. The local health

service has only one part-time psychologist. There is no suitable facility for

accommodating a detainee in need of admission to a psychiatric facility.

Further, the local community is not large enough or sufficiently resourced to be

able to provide adequate psychological, cultural or religious support to any

significant number of immigration detainees.

When the Commission visited Christmas Island, there were no PSS or IHMS

mental health staff there. This was presumably because, at the time, there were

four people in community detention but none in the immigration detention

facilities. However, the Commission was concerned that there did not appear to

be clear arrangements in place to ensure that, if new detainees arrived, they

would be provided with sufficient access to general counsellors, psychologists,

psychiatrists and/or specialised torture and trauma counsellors.

The Commission is also concerned that the immigration detention facilities on

Christmas Island are inappropriate for detainees at risk of self-harm and

detainees with a background of torture or trauma. This view particularly applies

to the new Christmas Island IDC, discussed in section 13.5 below. The centre is

a high-security facility with compounds surrounded by cage-like structures and

high wire fences. The medical clinic has observation rooms for detainees on SASH

observation. However, when the Commission visited, the rooms did not appear to

be safe for people at risk of self-harm. The attached outdoor area is also

inappropriate for people with mental health concerns. It is a very small

concrete courtyard enclosed in cage-like fencing, with views over wire

fences.

13.4 Access to

communication facilities

The remoteness of Christmas Island and the limited communications

infrastructure make it difficult for immigration detainees to communicate

effectively and efficiently with legal representatives, family members and

community support services on the mainland or elsewhere. Internet service is

generally much slower than on the mainland, and the mobile phone network is very

limited. The time difference between the island and the east coast of Australia

exacerbates communication difficulties.

Added to this overarching issue, the Commission is concerned about the lack

of access to adequate communications equipment at the immigration detention

facilities on the island. In particular, at the time of the Commission’s

visit, the fenced compound at the Phosphate Hill IDC had no internet facilities

or public phones for use by detainees. The same situation applied at the

construction camp facility. While there were no detainees at the Phosphate Hill

IDC or the construction camp at the time, there were detainees at both

facilities approximately two months later.

Since the Commission’s visit, DIAC has stated that internet connection

is available at the construction camp, and they are working to improve internet

services at the camp and the Phosphate Hill IDC. DIAC has also informed the

Commission that four previously disconnected phone lines at the construction

camp have been reconnected. However, it is not clear whether detainees are being

provided with open access to those phones, or whether they must make a specific

request and arrangement with a detention officer to make or receive a phone

call. This could be intimidating for some detainees, and for some it would be

difficult to do without an interpreter present. Detainees should be provided

with open access to phones throughout the day, and they should be able to make

and receive calls in a private environment.

The remoteness of Christmas Island and the difficulties with communication

contribute to the Commission’s view that the island is not an appropriate

location for holding people in immigration detention. However, if DIAC intends

to continue to use Christmas Island for immigration detention purposes, it

should ensure that all detainees are provided with adequate access to phones,

internet, mail and fax machines.

13.5 Immigration

detention facilities on Christmas Island

(a) Christmas Island

Immigration Detention Centre

The new Christmas Island IDC is located in what is potentially one of the

most remote parts of Australia. To get there from the east coast of Australia,

one must catch a five hour flight to Perth, catch another four to five hour

flight to Christmas Island, then drive into the wilderness for approximately

twenty minutes. The centre is located at North West Point, about 17 kilometres

away from the small town area on Christmas Island.

Construction of the centre started in 2005 and was completed in late 2008. It

is a massive facility, with the capacity to hold up to 400 people in normal

conditions, or up to 800 people in surge conditions. One side of the facility is

comprised of separate accommodation compounds. The other side is made up of

several large compounds containing recreation and education facilities, as well

as administration areas, induction areas, and medical facilities. The centre is

so large that staff members drive golf buggies to get around it.

The Commission has serious concerns about the Christmas Island IDC. It is a

formidable facility that is inappropriate for accommodating asylum seekers,

particularly those fleeing situations of torture or trauma. The extreme levels

of security also seem unnecessary given the remote location. The

Commission’s major concerns include, but are not limited to, the

following:

  • The Christmas Island IDC looks and feels like a high-security prison. While

    some of the facilities are of good quality, they are contained within an

    oppressive series of caged and fenced compounds and walkways. The centre is

    surrounded by high wire fences, and within it, each compound is contained within

    its own fences. Inside the centre, despite there being some open grassy areas,

    the excessive amount of wire fencing surrounding each compound makes one feels

    caged in.

  • The bedrooms are small, dim and claustrophobic. The windows are obscured by

    metallic mesh grills.

  • The highest security section of the centre, the management support unit,

    looks and feels extremely harsh and punitive.

  • The observation rooms in the medical area do not appear to be safe for

    people at risk of self-harm. The outdoor area linked to the observation rooms is

    inappropriate for people at risk of self-harm.

  • The location of the centre makes it difficult for locals to access in order

    to visit or provide support to detainees.

Given these concerns, the

Commission is of the view that the Christmas Island IDC should not be used to

hold people in immigration detention. The Commission is aware that the new

centre cost approximately $396 million to construct, and that the estimated cost

of maintaining it while empty is approximately $25 million per year. The

Commission acknowledges that the current Government was not responsible for the

cost of constructing the centre. However, it is unfortunate that such a

significant sum was spent on building an inappropriate facility in an

inappropriate location, rather than improving or replacing the ageing

immigration detention facilities on the mainland.

Recommendation: The new Christmas Island IDC should not be used to

hold people in immigration detention.

(b) Phosphate Hill

Immigration Detention Centre

The Phosphate Hill IDC was opened in 2001. It consists of a series of

demountable buildings, some open grassy areas, two large open air cabana areas

and a children’s playground. The centre is located across the road from

the community recreation centre, approximately five kilometres from the town, up

a very steep hill.

The centre used to be surrounded by high wire fencing and it was divided into

three compounds. The wire fences were removed from two of the compounds earlier

this year, leaving one fenced compound and a larger unfenced area (which has

since been fenced with a residential-style fence). The facility has capacity for

approximately 100 people.

The Commission has significant concerns about the facilities at the Phosphate

Hill IDC. At the time of the Commission’s visit, major concerns included

the following:

  • The standard of accommodation is low. The bedrooms are contained in long

    rows of demountables. The bedrooms are tiny and claustrophobic, with four beds

    (two bunks) in a very small space. The windows look onto metal bars.

  • Detainees have no access to the internet in the centre. Detainees in the

    fenced compound do not have access to public phones either.

  • The fenced compound has very few recreational facilities for detainees.

As noted above, the Commission is of the view that people should

not be held in immigration detention on Christmas Island at all. However, in the

event that DIAC continues this practice, the Commission notes that the

facilities at the Phosphate Hill IDC are less objectionable than the new

Christmas Island IDC. The facilities at the Phosphate Hill IDC are of a

relatively low standard, but the more central location and much lower degree of

security are preferable.

However, the nature of the facilities at the Phosphate Hill IDC make the

centre appropriate for only the shortest of stays. If immigration detainees are

held at the centre at all, it should only be for initial processing for up to a

few days. During this time, detainees should be provided with access to public

phones, the internet, health and mental health services, recreational

facilities, and legal assistance.

(c) Construction

camp

Across the road from the Phosphate Hill IDC is a facility that was formerly

used by the construction workers who built the new Christmas Island IDC. This

facility, the construction camp, is now being used by DIAC as an alternative

place of immigration detention.

The construction camp, like the Phosphate Hill IDC, consists of a series of

demountable buildings. The area is surrounded by a residential style fence.

The Commission has significant concerns about the facilities at the

construction camp. At the time of the Commission’s visit, major concerns

included the following:

  • The area has no grass and very few trees. The facility consists mostly of

    metal, concrete and gravel.

  • The bedrooms are very small and claustrophobic.
  • There were no public phones and no internet access in the

    facility.

As noted above, the Commission is of the view that people

should not be held in immigration detention on Christmas Island at all. However,

in the event that DIAC continues this practice, the Commission notes that the

facilities at the construction camp are less objectionable than the new

Christmas Island IDC. The facilities at the camp are of a relatively low

standard, but the more central location and much lower degree of security are

preferable.

However, the nature of the facilities at the construction camp make the

facility appropriate for only the shortest of stays. If immigration detainees

are held at the camp at all, it should only be for initial processing for up to

a few days. During this time, detainees should be provided with access to public

phones, the internet, health and mental health services, recreational

facilities, and legal assistance.

At the time of its visit, the Commission was informed by DIAC that the

facilities at the construction camp would not be used for long-term

accommodation of immigration detainees, but for initial processing of new

arrivals. We were informed that this would take a few days. The Commission notes

with concern that, since that time, immigration detainees including children

have been held at the facility for a number of weeks. The Commission is of the

view that children should not be held in immigration detention on Christmas

Island at all. However, if DIAC intends to continue this practice, children

should not be detained at the construction camp (or the Phosphate Hill IDC or

the new Christmas Island IDC). They should be accommodated with their family

members in the community based accommodation options (which are discussed in

section (d) below). This issue is discussed further in section 14.4 of this

report.

(d) Community based

accommodation

DIAC has access to community based accommodation on Christmas Island, which

could be used for people in community detention or as places of alternative

immigration detention.

DIAC has ten duplex houses that could be used for families or small groups.

Each duplex has three bedrooms, a living room, a kitchen and dining area,

laundry facilities, a bathroom, and a small back courtyard area. The houses are

furnished and the standard of accommodation is much higher than in any of the

other immigration detention facilities on the island. The duplexes are located

at Drumsite, the closest of the accommodation options to the local school.

However, this is towards the bottom of the hill, so getting up to the community

recreation centre or the hospital without a car would be very difficult. It is

also a significant walk to get to the town area.

DIAC also has approximately 160 bedrooms available in bedsit units. The units

are located at Poon Saan, about halfway down the hill between the Phosphate Hill

IDC and the town area. Eight of the rooms have been turned into interview rooms.

Each bedsit unit is like a small studio apartment with a doubled bed, TV, table

and chairs, kitchenette and a combined bathroom and laundry room. The

accommodation is basic, but of a much higher standard than the other immigration

detention facilities on the island. The bedsits are much smaller than the

duplexes. However, some of them have adjoining doors, so two units could be

joined together for use by small groups or families.

The Commission is of

the view that people should not be held in immigration detention on Christmas

Island at all. However, in the event that DIAC continues this practice, the

Commission notes that the duplexes and bedsits are the least objectionable

accommodation options for immigration detainees on the island, and should be

used as the first preference.

13.6 Community

detention on Christmas Island

During its visit to Christmas Island, the Commission met with a family in

community detention. The Commission also met with a range of local community

members and representatives. These discussions helped to inform the Commission

about the services available on the island and the challenges that people in

community detention will face.

People in community detention on Christmas Island will be accommodated in one

of the community based accommodation options discussed in section 13.5(d) above.

As noted in that section, if DIAC continues to hold immigration detainees on

Christmas Island, these are the least objectionable accommodation options for

detainees and should be used as the first preference.

During the

Commission’s visit it was apparent that people in community detention on

the island will face significant challenges. These will include transport

issues. There is no public transport system. There is one taxi, and it only runs

part time. Getting around the island without a car is very difficult, given the

steep hills. A community bus has been ordered, but not yet delivered to the

island. It is not clear what the capacity or frequency of that service will be

once it begins.

The Commission met with some dedicated local individuals on the island who

have generously given their time and personal resources to provide various forms

of support to immigration detainees in the past. While the Commission does not

detract from these individuals’ efforts in any way, the Commission is

concerned that the small size and limited capacity of the local community will

impede the ability of people in community detention on the island to access

various services and forms of support that would be much easier to access on the

mainland. This includes access to community level recreational programs and

educational classes, health and mental health services, legal assistance, and

cultural and religious support.

If DIAC intends to continue to place people in community detention on

Christmas Island, it will need to ensure that an adequate level of support is

provided to those people. At the time of the Commission’s visit to the

island, there did not appear to be an adequate system of support in place. The

family in community detention had no formal care plan, despite having been there

for eight months. DIAC did not have arrangements in place for the Red Cross to

provide the same support services it provides to people in community detention

on the mainland. In the absence of this, it appeared that support services for

people in community detention on the island were being arranged by DIAC or GSL

on an ad hoc basis.

Since the Commission’s visit, a care plan has been arranged for the

family the Commission met with. However, in the intervening period, there have

been a number of new arrivals on the island, some of whom have been placed in

community detention. DIAC has informed the Commission that it is exploring

possibilities to expand the provision of services to people in community

detention on the island. This should be done without delay. In the

Commission’s view, adequate support cannot be provided by staff based on

the mainland; it should be provided in person. Given the remoteness of the

island, the limited communications capacity, and the limited support services

available locally, DIAC should allocate sufficient resources to enable support

staff to be based on Christmas Island to assist people in community

detention.

14 Children in

immigration detention

In 2004, the Commission released A last resort?, the report of its

national inquiry into children in immigration detention. The inquiry found that

Australia’s mandatory detention laws are inconsistent with the human

rights of children, as protected by the Convention on the Rights of the

Child (CRC).[156]

In 2005, the Migration Act was amended to affirm the principle that children

should only be detained as a measure of last

resort.[157] Now, children are no

longer held in immigration detention centres. Many children are either given a

bridging visa, or placed in community detention. However, some children are

still held in other immigration detention facilities. This includes immigration

residential housing, immigration transit accommodation and alternative places of

detention. The Commission has significant concerns about this practice. The

Commission also has ongoing concerns about the lack of adequate legal

protections for children under the Migration Act. The Commission’s major

concerns are summarised in the sections below.

14.1 Overarching principles

The CRC comprehensively protects the human rights

of all children. Human rights of particular importance for children subject to

immigration detention include the following:

The best interests of the child should be a primary consideration in all

actions concerning

children.[158]
The detention of a child should be used only as a measure of last resort

and for the shortest appropriate period of time. Children must not be deprived

of their liberty unlawfully or

arbitrarily.[159]
No child should be subjected to torture or cruel, inhuman or degrading

treatment or

punishment.[160]
Children in detention have the right to be treated with humanity and

respect for their inherent

dignity.[161]
Children in detention must be able to challenge the legality of their

detention before a court or other competent, independent and impartial

authority.[162]
Children have the right to enjoy, to the maximum extent possible,

development and recovery from past

trauma.[163]
Asylum-seeking and refugee children are entitled to appropriate protection

and assistance.[164]
Children have a right to

non-discrimination.[165]

All people, including children, have a right not to be subjected to arbitrary

or unlawful detention.[166] However, the protection afforded to children under the CRC goes beyond that. For

children, immigration detention should only be used as a measure of last resort

and for the shortest appropriate period of

time.[167]

While there is no set definition of the 'shortest appropriate period', when

read with the 'last resort' principle, it is clear that the Australian

Government must consider any less restrictive alternatives that may be available

to an individual child in deciding whether and/or for how long a child is

detained. Detention of children should only occur in exceptional cases. When it

does occur, the detention period should be as short as

possible.[168]

14.2 Lack of legal

protections for children

The Commission has ongoing concerns that the Migration Act provides

insufficient protection against breaches of children’s human rights.

The Commission welcomed the Minister’s announcement in July 2008 that

one of the Government’s key immigration values is that children will not

be detained in an immigration detention

centre.[169] However, this value

should be embedded in legislation. While section 4AA of the Migration Act

affirms the principle that children should only be detained as a measure of last

resort, this is a statement of principle only and does not create legally

enforceable rights. As noted above, while children are no longer detained in

immigration detention centres, they continue to be detained in other immigration

detention facilities.

The Commission is concerned that child detainees are unable to challenge the

lawfulness of their detention in a court or another independent authority. This

breaches fundamental rights under the CRC and the

ICCPR.[170] In A last

resort?, the Commission recognised that, although it may be necessary to

briefly detain children for identity, health and security checks, international

law imposes a presumption against any detention of children even for these

purposes. Therefore, to comply with the CRC, the Commission found that the need

for, and period of, detention of children must be closely supervised by an

independent body.[171]

The Commission recommended that Australia’s laws should require

independent assessment of the need to detain children within 72 hours of their

initial detention. Similar to bail application procedures in the juvenile

justice system, if DIAC has been unable to complete its security checks within

72 hours, it might ask a tribunal or court to order continuing detention of a

particular child and their parents until those checks are

completed.[172]

The Commission also recommended that Australia’s laws should provide

for prompt and periodic review of the legality of continuing detention. This

would be in line with article 37(d) of the CRC, which requires that there be an

opportunity to seek review of any decision to detain in ‘a court or other

competent, independent and impartial authority’. Such review is most

appropriately provided by a

court.[173]

Recommendation: The Australian Government should implement in full

the recommendations made by the Commission in the report of its national inquiry

into children in immigration detention, A last

resort?[174] These include the

following:

Australia's immigration detention laws should be amended, as a matter of

urgency, to comply with the Convention on the Rights of the Child. In particular, the new laws should incorporate the following minimum

features:

  • There should be a presumption against the detention of children for

    immigration purposes.

  • A court or independent tribunal should assess whether there is a need to

    detain children for immigration purposes within 72 hours of any initial

    detention (for example for the purposes of health, identity or security checks).

  • There should be prompt and periodic review by a court of the legality of

    continuing detention of children for immigration purposes.

  • All courts and independent tribunals should be guided by the following

    principles:

    • detention of children must be a measure of last resort and for the

      shortest appropriate period of time

    • the best interests of the child must be a primary

      consideration

    • the preservation of family unity
    • special protection and assistance for unaccompanied children.
  • Bridging visa regulations for unauthorised arrivals should be amended so as

    to provide a readily available mechanism for the release of children and their

    parents.

14.3 Children in

immigration residential housing and immigration transit

accommodation

While children are no longer detained in immigration detention centres, some

children are held in immigration residential housing and immigration transit

accommodation. These facilities provide a much higher standard of accommodation

than the immigration detention centres, as discussed in section 12 above.

However, they are still closed detention facilities. Children and their families

are not free to come and go as they please. Children might be permitted to

attend school or to go on external excursions, but these must be supervised and

pre-arranged. In addition, there are a mix of detainees accommodated in these

facilities, some of whom it might not be appropriate or safe for children to mix

with.

During the Commission’s 2008 visits to the immigration residential

housing facilities, there was a family of five at the Sydney IRH with a baby and

a five year old child. The family had been detained for three months. The

parents spoke of the five year old child’s confusion and distress about

being detained. There were no children at the Perth IRH when the Commission

visited. However, we were informed that there had been two families with

children at the Perth IRH prior to our visit. There have also been children at

the Perth IRH since then.[175]

At the time of the Commission’s 2008 visits to the immigration transit

accommodation facilities in Brisbane and Melbourne, DIAC policy was that

children and their families would not be held in these facilities. However,

during the Commission’s visits we were informed that this policy was being

reconsidered. Since the Commission’s visits, children have been

accommodated at the ITA facilities in both Brisbane and

Melbourne.[176]

The Commission has significant concerns about children being held in

immigration detention facilities, including the IRH and ITA facilities. While

the physical environment is highly preferable to the immigration detention

centres, the psychological effects of being detained are similar. Many of the

concerns raised by the Commission in A last resort? with respect to

detaining children in immigration detention centres also apply to detaining

children in immigration residential housing or immigration transit

accommodation. For children and their families, these facilities are

inappropriate for anything but the briefest of periods.

As noted above, under section 4AA of the Migration Act, children should only

be detained as a measure of last resort. Under the CRC, children should only be

detained as a measure of last resort and for the shortest appropriate period of time.[177] These principles

apply not only to detention in an immigration detention centre, but also to

detention in other facilities including immigration residential housing and

immigration transit accommodation.

This means that DIAC must consider any less restrictive alternatives

available to an individual child before deciding to place that child in one of

the IRH or ITA facilities. Children should not be placed in these facilities as

a matter of course; it should only take place in exceptional cases. The

detention period should be as short as

possible.[178] As discussed in

section 14.2 above, the initial decision to detain a child should be subject to

independent review within 72 hours, and any ongoing detention should be subject

to prompt and periodic review by a court.

Recommendation: Children should only be detained in an IRH or ITA

facility as a measure of last resort and for the shortest appropriate period of

time. DIAC should consider any less restrictive alternatives that may be

available to an individual child before deciding to place that child in an IRH

or ITA facility. Until the recommendation in section 14.2 of this report is

implemented and a system of independent review is established, the absolute

maximum time of detention in these cases should be four weeks for a child with a

family member, or two weeks for an unaccompanied child.

14.4 Children in

alternative places of detention

(a) Darwin

In Darwin, children are not detained at the

Northern IDC. They are held in an alternative place of detention, usually a city

hotel where DIAC has a number of rooms reserved on an ongoing basis. Child

detainees in Darwin are normally minors who have been apprehended along with

adult crew members on boats suspected of illegal fishing activities in

Australia’s northern waters. In the year between September 2007 and August

2008, there were 1145 alleged ‘illegal foreign fishers’ detained in

Darwin, including 123 minors.[179]

In its 2006 inspection report, the Commission raised significant concerns

about child detainees spending their days at the Northern IDC, and the lack of

appropriate arrangements in place for child detainees in

Darwin.[180] In its 2007 report,

the Commission noted that children were no longer spending significant amounts

of time at the Northern IDC, and various improvements had been made to the

services and facilities available to child detainees in Darwin. These included

establishing a schedule of recreational activities, and employing a youth worker

to supervise the

children.[181]

During the Commission’s 2008 visit, there were no children in

immigration detention in Darwin. The Commission therefore did not visit the

hotel where child detainees are normally accommodated, as it has done

previously. However, the Commission did conduct meetings with DIAC and GSL

management at the Northern IDC, and with the GSL youth worker responsible for

organising and conducting recreational activities and excursions for child

detainees.

The Commission was pleased to hear that, since our 2007 visit, changes have

been put in place so that child detainees do not spend any time inside the

Northern IDC. In 2007, children were still spending some time in the detention

centre for initial processing and for medical appointments. This is no longer

the case. Children now go through initial processing in an area outside the

detention centre fence. Likewise, children no longer access medical services

inside the detention centre, but use a clinic room outside the centre fence.

The Commission was also pleased to hear that the excursion program for minors

is still in place. Children held in detention at the hotel are generally taken

out on a recreational excursion at least once each day. When there are children

and adults from the same fishing vessel, GSL arranges combined excursions so the

children can see the adult members from their crew. We were informed that they

aim to hold three mixed excursions each week.

Child detainees at the hotel have access to recreational facilities including

a swimming pool (used under adult supervision), TV and board games. The youth

worker organises internal recreational activities including art and craft

sessions.

Children held in detention at the hotel have access to phones. Each child is

allowed to make a free phone call to a family member every day. However, the

Commission was concerned to hear that the children do not have access to the

internet at the hotel. This would provide them with an additional means of

communicating with family members and friends. In response to this concern, DIAC

informed the Commission that arrangements would be made to provide access to the

internet for any minors accommodated at the hotel in future.

At the time of the Commission’s visit to Darwin, construction had

started on a new facility that will be used to accommodate child detainees in

future, instead of placing them at a hotel. The facility will be located on the

same property as the Northern IDC, but outside the detention centre fence. The

facility will be surrounded by a residential style fence. It will have four

bedrooms, with an overall capacity to accommodate 16 minors.

As noted above, children should only be detained as a measure of last resort

and for the shortest appropriate period of

time.[182] These principles apply

not only to detaining children in an immigration detention centre, but also to

detaining them in alternative places of immigration detention such as the new

juvenile facility being constructed in Darwin. This means that DIAC must

consider any less restrictive alternatives available to an individual child

before deciding whether to place that child in such a facility.

At the time of the Commission’s 2008 visit, it was expected that the

new facility would be completed before the end of the year. The Commission will

inspect the facility during its 2009 annual visit to the Northern IDC.

(b) Christmas

Island

Since the Commission’s visit to Christmas Island in August 2008, the

construction camp facility (discussed in section 13.5(c) above) has been used to

hold children in immigration detention for a number of weeks.

DIAC classifies the construction camp as ‘alternative temporary

detention in the

community.’[183] The

Commission is of the view that this is not accurate. The construction camp is

not community based accommodation; it is a facility being specifically used as a

place of immigration detention. In many respects it is not dissimilar to the

Phosphate Hill IDC across the road.

The Commission is of the view that children should not be held in immigration

detention on Christmas Island at all. However, if DIAC intends to continue this

practice, children should not be held at the construction camp; they should be

accommodated with their family members in the community based accommodation

options discussed in section 13.5(d) above.

As noted above, children should only be detained as a measure of last resort

and for the shortest appropriate period of

time.[184] These principles apply

to detaining children in alternative places of immigration detention such as the

construction camp on Christmas Island. This means that DIAC must consider any

less restrictive alternatives available to an individual child before deciding

whether to place that child in the construction camp facility. DIAC has access

to community based accommodation on Christmas Island, including duplex houses

and bedsit units. These are less restrictive options than the construction camp,

and should be used to accommodate any children and their families detained on

Christmas Island.

Recommendation: Children should not be held in immigration detention

on Christmas Island. However, if DIAC intends to continue this practice,

children should be accommodated with their family members in DIAC’s

community based accommodation. They should not be detained at the construction

camp facility, the Phosphate Hill IDC or the new Christmas Island IDC.

14.5 Unaccompanied

minors

The CRC requires Australia to ensure that children lacking the support of

their parents, especially those who are seeking asylum, receive the extra help

they need to guarantee the enjoyment of their human

rights.[185]

Currently in Australia, unaccompanied minors might be held in detention in

immigration residential housing, immigration transit accommodation, community

detention, or an alternative place of immigration detention.

In 2008, the Commission met with one unaccompanied minor in community

detention, and another young person in community detention who had previously

been an unaccompanied minor, but who had recently turned 18. Both of these young

people had been in community detention for longer than nine months.

During its visit to Christmas Island, the Commission was concerned that there

did not appear to be arrangements in place to provide appropriate support to

unaccompanied minors that might arrive. Since then, the Commission has been

concerned by reports that a number of unaccompanied minors arrived on the island

and were held in immigration detention at the construction camp facility.

The Commission has previously raised concerns about arrangements for the care

of unaccompanied minors.[186] Many

of the concerns raised by the Commission in A last resort? remain

valid.[187] In particular, the

Commission has ongoing concerns about the practice of appointing a DIAC officer

to be the legal guardian of an unaccompanied minor. In A last resort? the

Commission noted that this arrangement created a conflict of interest for DIAC,

and recommended that an independent guardian should be appointed for

unaccompanied children.[188]

The UNHCR Guidelines on Policies and Procedures in dealing with

Unaccompanied Children Seeking Asylum recommend that an independent and

formally accredited organisation should appoint a guardian or adviser for each

unaccompanied child.[189] The

UNHCR Guidelines also state that unaccompanied children should not be kept in

immigration detention.[190] However, in the event that detention does occur, it should be in conditions that

are appropriate for children.[191]

In A last resort? the Commission discussed possible guardianship

models for unaccompanied

children.[192] Part of the role of

a guardian would be to seek to ensure that an unaccompanied child is not held in

immigration detention, or if the child is detained, it is for the shortest

possible period of time and in the best possible

conditions.[193]

In its 2007 inspection report, the Commission raised concerns about

inadequate coordination between DIAC and state child welfare authorities

regarding care for unaccompanied minors in immigration detention. The Commission

suggested that the respective roles and responsibilities of DIAC and state

authorities should be formally clarified, and that these roles should be clearly

communicated to unaccompanied minors and their representatives or

carers.[194] The Commission

reiterates these suggestions.

Recommendation: The Australian Government should implement the

recommendation made by the Commission in A last resort? that an

independent guardian should be appointed for unaccompanied children and they

should receive appropriate

support.[195]


[1] Human Rights and Equal

Opportunity Commission, Summary of observations following the inspection of

mainland immigration detention facilities 2007 (December 2007) (2007 Summary

of Observations), at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/summary_idc_report07.pdf;

Human Rights and Equal Opportunity Commission, Summary of observations

following the inspection of mainland immigration detention facilities 2006 (January 2007) (2006 Summary of Observations), at http://www.humanrights.gov.au/pdf/human_rights/HREOC_IDC_20070119.pdf.

[2] At http://www.humanrights.gov.au/human_rights/immigration/index.html (viewed 1 December 2008).

[3] C

Evans, New Directions in Detention – Restoring Integrity to

Australia’s Immigration System (Speech delivered at the Centre for

International and Public Law Seminar, ANU, Canberra, 29 July

2008).

[4] The Executive Committee

of the United Nations High Commissioner for Refugees Conclusion No. 44 states

that where the detention of asylum seekers is deemed necessary, it should only

be used to verify identity; to determine the elements on which the claim to

refugee status or asylum is based; to deal with cases where refugees or asylum

seekers have destroyed their travel and/or identification documents in order to

mislead the authorities of the State in which they intend to claim asylum; or to

protect national security or public order. See United Nations High Commissioner

for Refugees, Executive Committee, Conclusion No. 44 (XXXVII) - Detention of

Refugees and Asylum Seekers (13 October 1986). At http://www.unhcr.org/refworld/docid/3ae68c43c0.html.

[5] The Commission had made this recommendation and proposed potential alternative

models for immigration detention in past reports. See, for example Human Rights

and Equal Opportunity Commission, A last resort? National Inquiry into

Children in Immigration Detention (April 2004), sections 17.3 and 17.4, at http://www.humanrights.gov.au/human_rights/children_detention_report/report/PDF/alr_complete.pdf;Human

Rights and Equal Opportunity Commission, Those who’ve come across the

seas – Detention of unauthorised arrivals (May 1998), part 6, at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf.

[6] The 2000 Immigration Detention Guidelines state that any use of

restraints on detainees being transported outside a detention centre should be

commensurate with an assessment of the individual’s likelihood and

capacity to abscond. On the use of restraints in detention, the Guidelines

provide that restraints should only be used to prevent a detainee from injuring

themselves or another, damaging property or escaping. They should only be used

by order of the manager of the detention centre; where all other control methods

have failed; for no longer than is necessary; and only to the extent reasonably

necessary for the purpose. See Human Rights and Equal Opportunity Commission, Immigration Detention Guidelines (March 2000) (Immigration Detention

Guidelines), sections 10.1 and 18.10, at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/idc_guidelines.pdf.

The Standard Minimum Rules for the Treatment of Prisoners state that

restraints should be removed when the prisoner appears before a judicial or

administrative authority. See Standard Minimum Rules for the Treatment of

Prisoners (1955), rule 33(a), at http://www.unhchr.ch/html/menu3/b/h_comp34.htm.

[7] See, for example Human Rights and Equal Opportunity Commission, A last

resort? National Inquiry into Children in Immigration Detention (April

2004); Human Rights and Equal Opportunity Commission, Those who’ve come

across the seas – Detention of unauthorised arrivals (May 1998).

[8] Human Rights and Equal

Opportunity Commission, Submission to the Joint Standing Committee on

Migration Inquiry into Immigration Detention in Australia (4 August 2008)

(Commission submission to Joint Standing Committee on Migration). At http://www.humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html.

[9] Human Rights and Equal

Opportunity Commission, A last resort? National Inquiry into Children in

Immigration Detention (April 2004) (A last resort). At http://www.humanrights.gov.au/human_rights/children_detention_report/report/PDF/alr_complete.pdf.

[10] Human Rights and Equal Opportunity Commission, Those who’ve come across

the seas – Detention of unauthorised arrivals (May 1998) (Those

who’ve come across the seas). At http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf.

[11] For general information on the Commission’s complaint handling functions,

see http://www.humanrights.gov.au/complaints_information/index.html (viewed 1 December 2008). For reports of complaints regarding alleged breaches

of human rights under the Human Rights and Equal Opportunity Commission Act

1986 (Cth), see http://www.humanrights.gov.au/legal/HREOCA_reports/index.html (viewed 1 December 2008).

[12] Migration Act 1958 (Cth). At http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200401592?OpenDocument (viewed 27 November 2008).

[13] See Immigration Detention Guidelines, note 6, section

1.1.

[14] International

Covenant on Civil and Political Rights, opened for signature 16 December

1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR). At http://www.unhchr.ch/html/menu3/b/a_ccpr.htm.

[15] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, opened for signature 12 October 1984, 1465 UNTS 85 (entered into

force 16 June 1987) (Convention against Torture). At http://www2.ohchr.org/english/law/cat.htm.

[16] Convention Relating to the Status of Refugees, opened for signature 28

July 1951, 189 UNTS 150 (entered into force 22 April 1954) (Refugee

Convention). At http://www.unhchr.ch/html/menu3/b/o_c_ref.htm.

[17] Convention on the Rights of the Child, opened for signature 20 November

1989, 1577 UNTS 3 (entered into force 2 September 1990) (CRC). At http://www.unhchr.ch/html/menu3/b/k2crc.htm.

[18] Refugee Convention, art 33(1). This obligation is also implied in the ICCPR, art

6 and 7, the Convention against Torture, art 3 and the CRC, art 6 and

37.

[19] ICCPR, art 9(1); CRC,

art 37(b).

[20] ICCPR, art 9(4);

CRC, art 37(d).

[21] ICCPR, art

10(1); CRC, art 37(c).

[22] ICCPR, art 7; CRC art 37(a).

[23] CRC, art 37(b).

[24] CRC, art 3.

[25] CRC, art 37(d); Body of

Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment (1988), principles 13, 14 and 17, at http://www.unhchr.ch/html/menu3/b/h_comp36.htm.

[26] ICCPR, art 2(1), 26; CRC art

2(1).

[27] Body of Principles

for the Protection of All Persons under Any Form of Detention or

Imprisonment (1988). At http://www.unhchr.ch/html/menu3/b/h_comp36.htm.

[28] Standard Minimum Rules for the Treatment of Prisoners (1955). At http://www.unhchr.ch/html/menu3/b/h_comp34.htm.

[29] United Nations Rules for the Protection of Juveniles Deprived of their

Liberty (1990). At http://www.unhchr.ch/html/menu3/b/h_comp37.htm.

[30] United Nations High

Commissioner for Refugees, Revised Guidelines on Applicable Criteria and

Standards Relating to the Detention of Asylum Seekers (February 1999). At http://www.unhcr.org.au/pdfs/detentionguidelines.pdf.

[31] Immigration Detention Guidelines, note

6.

[32] The Commission has made

this recommendation on several prior occasions. See, for example Commission

submission to Joint Standing Committee on Migration, note 8, recommendation 11;

A last resort, note 9, recommendation 4; Human Rights and Equal Opportunity

Commission, Comments on Australia’s Compliance with the Convention

Against Torture and Other Cruel, Inhuman and Degrading Treatment or

Punishment (April 2008), para 24, at http://www.humanrights.gov.au/legal/submissions/2008/080415_torture.html (viewed 1 December 2008).

[33] It

is noted, however, that s 13(1) of the Human Rights and Equal

Opportunity Commission Act 1986 (Cth) gives the Commission the power to

‘do all things that are necessary or convenient to be done for or in

connection with its functions’. Section 11(1)(p) of the Act also gives the

Commission the function of doing ‘anything incidental or conducive to the

performance of’ any of the functions in ss 11(1)(a) – (o). Section

26 of the Act provides that it is an offence for a person to ‘hinder,

obstruct, molest or interfere with: (a) a member participating in an

inquiry or examination under this Act; or (b) a person acting on behalf of

the Commission, while that person is holding an inquiry or carrying out an

investigation under this Act’. The Commission also has statutory

information gathering powers and powers to examine witnesses under ss 21-24 of

the Act.

[34] This is due to the

fact that the Convention against Torture is not scheduled to, or declared under

the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

[35] See section 11(1)(f)

of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Note

that ‘human rights’ are defined by s 3 of the Act and relate only to

the six international instruments scheduled to, or declared under the Act. The

instruments scheduled to, or declared under the Act are the ICCPR, the Declaration on the Rights of the Child, the Declaration on the Rights

of Mentally Retarded Persons, the Declaration on the Rights of Disabled

Persons, the CRC, and the Declaration on the Elimination of all Forms of

Intolerance and of Discrimination Based on Religion or

Belief.

[36] If conciliation

of the complaint is unsuccessful or inappropriate and the Commission finds that

there has been a breach of human rights, it can prepare a report of the

complaint for the Attorney General, which must be tabled in Parliament. However,

the Commission cannot legally enforce the recommendations made in these

reports.

[37] Report to the

Australian Human Rights Commission by Professors Richard Harding and Neil

Morgan, Centre for Law and Public Policy, The University of Western Australia, Implementing the Optional Protocol to the Convention against Torture: Options

for Australia (December 2008). At

http://www.humanrights.gov.au/human_rights/publications/opcat/index.html.

[38] Detention and Offshore

Services Division, DIAC, Immigration Detention Statistics Summary (20

June 2008).

[39] Detention and

Offshore Services Division, DIAC, Immigration Detention Statistics

Summary (5 September

2008).

[40] See C Evans, note

3.

[41] Commonwealth and

Immigration Ombudsman, Submission to the Joint Standing Committee on

Migration Inquiry into Immigration Detention in Australia (August 2008), p

4. At http://www.aph.gov.au/house/committee/mig/detention/subs/sub126.pdf.

[42] DIAC, note 38.

[43] DIAC, note 39.

[44] See, for example A last resort, note 9, chapter

9.

[45] See, for example

Commission submission to Joint Standing Committee on Migration, note 8; A last

resort, note 9; Those who’ve come across the seas, note

10.

[46] See C Evans, note 3, pp 7-8.

[47] See note

4.

[48] See note

5.

[49] Department of Immigration

and Citizenship, Standards for the design and fitout of immigration detention

facilities (October 2007) (DIAC

Standards).

[50] DIAC, above, p

7.

[51] DIAC, note 49, section

14.

[52] DIAC, note 49, section

8.

[53] See, for example Those

who’ve come across the seas, note 10, p viii; 2007 Summary of

Observations, note 1, section 15; 2006 Summary of Observations, note 1, section

21.

[54] See C Evans, note 3, p

14.

[55] See C Evans, note 3, p

15.

[56] See Body of

Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment, note 27, principle 25; Immigration Detention Guidelines, note

6, section 13.9.

[57] See 2007

Summary of Observations, note 1, p

24.

[58] See, for example A last

resort, note 9, chapter 9; L Briskman, S Latham & C Goddard, Human Rights

Overboard: Seeking Asylum in Australia (2008), pp 138-158,

345-359.

[59] See 2007 Summary of

Observations, note 1, pp 24-25; 2006 Summary of Observations, note 1, section

6.

[60] See, for example

Commission submission to Joint Standing Committee on Migration, note 8; A last

resort, note 9; Those who’ve come across the seas, note 10.

[61] See 2007 Summary of

Observations, note 1, pp 25-27; 2006 Summary of Observations, note 1, section

6.3.

[62] See 2007 Summary of

Observations, note 1, pp 43-44; 2006 Summary of Observations, note 1, section

15.

[63] See 2007 Summary of

Observations, note 1, pp 25-27; 2006 Summary of Observations, note 1, section

6.3.

[64] Immigration Detention

Guidelines, note 6, section 7.2.

[65] Immigration Detention

Guidelines, note 6, section 7.3.

[66] Immigration Detention

Guidelines, note 6, section

4.6.

[67] See 2007 Summary of

Observations, note 1, pp

33-34.

[68] Immigration Detention

Guidelines, note 6, section 6.6. This is based on articles 6(2) and 13(2)(c) of

the International Covenant on Economic, Social and Cultural Rights, rule

71(5) of the Standard Minimum Rules for the Treatment of Prisoners, rule

42 of the United Nations Rules for the Protection of Juveniles Deprived of

their Liberty and guideline 10(vii) of the UNHCR Revised Guidelines on

Applicable Criteria and Standards Relating to the Detention of

Asylum-Seekers.

[69] See 2007

Summary of Observations, note 1, pp 37-38; 2006 Summary of Observations, note 1,

section 9.

[70] See 2006 Summary

of Observations, note 1, section

9.

[71] These figures are taken

from statistics provided to the Commission by DIAC on 19 September 2008. The

statistics cover detention of alleged ‘illegal foreign fishers’ at

the Northern IDC between 1 September 2007 and 31 August

2008.

[72] See 2007 Summary of

Observations, note 1, pp 37-38; 2006 Summary of Observations, note 1, section

9.

[73] See 2006 Summary of

Observations, note 1, section 8.1.

[74] Some people are in

immigration detention because their visa has been cancelled on character grounds

under section 501 of the Migration

Act.

[75] See 2007 Summary of

Observations, note 1, pp

28-32.

[76] Immigration Detention

Guidelines, note 6, section

10.1.

[77] Immigration Detention

Guidelines, note 6, section

18.10.

[78] See note

6.

[79] See 2007 Summary of

Observations, note 1, pp

19-20.

[80] See C Evans, note 3,

pp 7-8.

[81] The DIAC Global

Feedback Unit collects, analyses and reports on all forms of feedback received

from detainees and other people. This includes complaints, suggestions and

compliments.

[82] Immigration

Detention Guidelines, note 6, section

2.6.

[83] See 2007 Summary of

Observations, note 1, pp 40-41; 2006 Summary of Observations, note 1, section

15.

[84] Commonwealth Ombudsman,

note 41, p 25.

[85] See DIAC

Standards, note 49, section

3.1.2.

[86] See DIAC Standards,

note 49, section 3.

[87] See 2007

Summary of Observations, note 1, p

47.

[88] See 2007 Summary of

Observations, note 1, p 43.

[89] See DIAC Standards, note 49, section

6.

[90] See Immigration Detention

Guidelines, note 6, sections 3.6, 3.7 and

4.3.

[91] See 2007 Summary of

Observations, note 1, pp 39-40; 2006 Summary of Observations, note 1, sections

15, 16 and 17.

[92] See 2007

Summary of Observations, note 1, p

40.

[93] In its 2006 inspection

report, the Commission noted that the introduction of an activities kitchen at

Baxter had been highly successful, and recommended that other detention centres

establish similar facilities. See 2006 Summary of Observations, note 1, section

16.

[94] See Immigration

Detention Guidelines, note 6, section

8.2.

[95] Commonwealth Ombudsman,

note 41, p 11.

[96] See Question

423, Senate Hansard (17 June 2008), p 2625-2627. At http://www.aph.gov.au/HANSARD/senate/dailys/ds170608.pdf (viewed 17 November 2008).

[97] See Commonwealth Ombudsman, Administration of s 501 of the Migration Act 1958

as it applies to Long-Term Residents (February 2006), recommendation 7. At http://www.comb.gov.au/commonwealth/publish.nsf/AttachmentsByTitle/reports_2006_01.pdf/$FILE/s501_immigration_feb-2006.pdf.

[98] See Commission submission

to Joint Standing Committee on Migration, note 8, recommendation

5.

[99] See C Evans, note 3, pp

7-9, 13.

[100] See Joint

Standing Committee on Migration, Immigration detention in Australia: A new

beginning - First report of the inquiry into immigration detention in

Australia (December 2008), p 53. At http://www.aph.gov.au/house/committee/mig/detention/report/fullreport.pdf (viewed 3 December 2008). In making this statement, the Committee noted

testimony given to the inquiry by the Commonwealth Ombudsman, Prof John

McMillan.

[101] Statistics

provided to the Commission by DIAC regarding people in immigration detention in

NSW as at 6 June 2008.

[102] See, for example Human Rights and Equal Opportunity Commission, Immigration

Detention: Human Rights Commissioner’s 1998-99 Review (1999), pp 7-8,

at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/idc_review.pdf;

Those who’ve come across the seas, note 10, pp v, viii; 2006 Summary of

Observations, note 1, section 15; 2007 Summary of Observations, note 1, section

21.

[103] See 2007 Summary of

Observations, note 1, pp 43-44; 2006 Summary of Observations, note 1, section

15.

[104] See C Evans, note 3,

p 15.

[105] See C Evans, note

3, p 15.

[106] See Human Rights

and Equal Opportunity Commission, Immigration Detention: Human Rights

Commissioner’s 1998-99 Review, note 102, p

7.

[107] See C Evans, note 3, p

8.

[108] Commonwealth

Ombudsman, note 41, p 20.

[109] GSL management at the Villawood IDC provided the Commission with records

indicating that between July 2007 and June 2008 there were 16 uses of onsite

interpreters at Villawood. This is approximately 1.3 times per

month.

[110] See GSL

Response to Summary of HREOC's Observations following the Inspection of Mainland

Immigration Detention Facilities 2007 (20 December 2007). At http://www.humanrights.gov.au/human_rights/immigration/GSLresponse07.html.

[111] See, for example Those

who’ve come across the seas, note 10, pp vi,

ix.

[112] See 2007 Summary of

Observations, note 1, pp

46-47.

[113] See DIAC

Standards, note 49, section

10.

[114] See 2007 Summary of

Observations, note 1, pp 45-46; 2006 Summary of Observations, note 1, section

17.

[115] See DIAC Standards,

note 49, section 10.

[116] See

DIAC Standards, note 49, section

8.

[117] GSL management at

Maribyrnong IDC provided the Commission with copies of the incident reports for

thirteen incidents involving actual, alleged or suspected assaults among

detainees occurring between 9 January 2008 and 10 August

2008.

[118] These figures are

taken from statistics provided to the Commission by DIAC on 19 September 2008.

The statistics cover detention of alleged ‘illegal foreign fishers’

at the Northern IDC between 1 September 2007 and 31 August

2008.

[119] See 2007 Summary of

Observations, note 1, pp 42-43; 2006 Summary of Observations, note 1, section

14.

[120] See DIAC Standards,

note 49, section

14.

[121] See DIAC Standards,

note 49, section

14.

[122] Fisheries

Management Act 1991 (Cth). At http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/current/bytitle/8A2822893CF392E4CA256F71004DF50B.

[123] Detention and Offshore

Services Division, DIAC, Immigration Detention Statistics Summary (20

June 2008).

[124] Detention and

Offshore Services Division, DIAC, Immigration Detention Statistics

Summary (5 September

2008).

[125] See, for example

Commission submission to Joint Standing Committee on Migration, note

8.

[126] See C Evans, note 3, p

8.

[127] See 2007 Summary of

Observations, note 1, pp 13-14; 2006 Summary of Observations, note 1, section

15.

[128] See 2007 Summary of

Observations, note 1, pp

13-14.

[129] Since the

Commission’s 2008 visit, the number of detainees at the Perth IDC has

dropped due to detainees being removed from Australia or relocated to other

detention centres while renovations are undertaken at the Perth

IDC.

[130] For example, there

were two children at the Perth IRH as of 24 October 2008. See Detention and

Offshore Services Division, DIAC, Immigration Detention Statistics

Summary (24 October

2008).

[131] This policy was

set out in a briefing paper provided by DIAC in advance of the

Commission’s visit to the Melbourne ITA in August

2008.

[132] Prior to the

Commission’s visit to the Brisbane ITA in August 2008, DIAC provided the

Commission with statistics for immigration detainees held at various locations

in Queensland between 1 November 2007 and 30 July

2008.

[133] For example, there

was one child detained at the Brisbane ITA in October-November 2008. See

Detention and Offshore Services Division, DIAC, Immigration Detention

Statistics Summary (31 October 2008); Detention and Offshore Services

Division, DIAC, Immigration Detention Statistics Summary (7 November

2008).

[134] Prior to the

Commission’s visit to the Melbourne ITA on 27 August 2008, DIAC provided

the Commission with statistics showing that as of 8 August 2008 there were 24

detainees at the Melbourne ITA.

[135] For example, there was

one child detained at the Melbourne ITA in October 2008. See Detention and

Offshore Services Division, DIAC, Immigration Detention Statistics

Summary (31 October

2008).

[136] Detention and

Offshore Services Division, DIAC, Immigration Detention Statistics

Summary (20 June

2008).

[137] See 2007 Summary

of Observations, note 1, pp 16-18; Commission submission to Joint Standing

Committee on Migration, note 8, pp

38-39.

[138] See, for example

Commission submission to Joint Standing Committee on Migration, note

8.

[139] The eligibility

criteria are specified under draft Guidelines on the Minister’s Detention

Intervention Powers (sections 197AB and 195A of the Migration Act). The

Commission commented on a draft of the Guidelines in March 2006. The Commission

has been informed that the draft is awaiting finalisation. In the meantime, the

draft guides DIAC’s assessment of individual cases for referral to the

Minister.

[140] See 2007

Summary of Observations, note 1, pp 18-19; Commission submission to Joint

Standing Committee on Migration, note 8, pp

39-40.

[141] See 2007 Summary

of Observations, note 1, p 18; Commission submission to Joint Standing Committee

on Migration, note 8, p

40.

[142] Condition 4 in the

conditions attached to Residence Determinations states: ‘You must not

engage in paid work or receive a salary while you are under a Residence

Determination. However, it is possible for you to engage in suitable unpaid

voluntary work with prior approval from DIAC.’

[143] See Human Rights and

Equal Opportunity Commission, A Report on Visits to Immigration Detention

Facilities by Human Rights Commissioner 2001. At http://www.humanrights.gov.au/human_rights/immigration/idc2001.html.

[144] DIAC provided the

Commission with statistics that indicate that between 1 August 2007 and 1 August

2008, there were 22 people detained on Christmas Island, including six adult

males, four adult females, eight male minors and four female minors.

[145] See, for example

Commission submission to Joint Standing Committee on Migration, note 8, pp

15-16; Human Rights and Equal Opportunity Commission, Submission to the

Senate Legal and Constitutional Legislation Committee on the Migration Amendment

(Designated Unauthorised Arrivals) Bill 2006 (22 May 2006), at http://www.humanrights.gov.au/legal/submissions/migration20060522.html.

[146] See C Evans, note 3, p 4.

[147] See, for example Commission submission to Joint Standing Committee on Migration,

note 8, pp 15-16; Human Rights and Equal Opportunity Commission, Submission

to the Senate Legal and Constitutional Legislation Committee on the Migration

Amendment (Designated Unauthorised Arrivals) Bill 2006, note 145; A last

resort, note 9, chapter

7.

[148] See Migration Act

1958 (Cth), s 46A.

[149] See Migration Act 1958 (Cth), s

494AA.

[150] See Commission

submission to Joint Standing Committee on Migration, note 8, pp 15-16; Human

Rights and Equal Opportunity Commission, Submission to the Senate Legal and

Constitutional Legislation Committee on the Migration Amendment (Designated

Unauthorised Arrivals) Bill 2006, note

145.

[151] See A last resort,

note 9, chapter 7.

[152] See

CRC, art 22(1).

[153] See CRC,

art 2; A last resort, note 9, pp

273-274.

[154] See C Evans,

note 3, p 5.

[155] See C Evans,

note 3, p 5.

[156] A last

resort, note 9.

[157] See Migration Act 1958 (Cth), s

4AA.

[158] CRC, art

3(1).

[159] CRC, art

37(b).

[160] CRC, art

37(c).

[161] CRC, art 37(a),

37(c).

[162] CRC, art

37(d).

[163] CRC, art 6(2),

39.

[164] CRC, art

22(1).

[165] CRC, art

2.

[166] ICCPR, art 9(1); CRC,

art 37(b).

[167] CRC, art

37(b).

[168] See A last resort,

note 9, p 95.

[169] See C

Evans, note 3, p 7.

[170] CRC,

art 37(d); ICCPR, art

9(4).

[171] A last resort, note

9, pp 860-864.

[172] A last

resort, note 9, pp

862-864.

[173] See A last

resort, note 9, pp

865-867.

[174] See A last

resort, note 9, pp

856-857.

[175] For example,

there were two children at the Perth IRH as of 24 October 2008. See Detention

and Offshore Services Division, DIAC, Immigration Detention Statistics

Summary (24 October

2008).

[176] For example, there

was one child detained at the Brisbane ITA in October-November 2008, and one

child detained at the Melbourne ITA in October 2008. See Detention and Offshore

Services Division, DIAC, Immigration Detention Statistics Summary (31

October 2008); Detention and Offshore Services Division, DIAC, Immigration

Detention Statistics Summary (7 November 2008).

[177] CRC, art

37(b).

[178] See A last resort,

note 9, p 95.

[179] These

figures are taken from statistics provided to the Commission by DIAC on 19

September 2008. The statistics cover detention of alleged ‘illegal foreign

fishers’ at the Northern IDC between 1 September 2007 and 31 August

2008.

[180] See 2006 Summary of

Observations, note 1, section 5.

[181] See 2007 Summary of

Observations, note 1, pp

21-24.

[182] CRC, art

37(b).

[183] In its weekly

immigration detention statistics summaries, DIAC counts detainees being held in

the construction camp facility in the category referred to as ‘Alternative

Temporary Detention in the Community.’ See, for example Detention and

Offshore Services Division, DIAC, Immigration Detention Statistics

Summary (7 November

2008).

[184] CRC, art

37(b).

[185] See A last resort,

note 9, pp 698-699; CRC, art 20 and

22(1).

[186] See, for example A

last resort, note 9, chapter 14 and section 17.4.7; 2007 Summary of

Observations, note 1, pp

23-24.

[187] See A last resort,

note 9, chapter 14 and section

17.4.7.

[188] See A last

resort, note 9, p 857, recommendation

3.

[189] See United Nations

High Commissioner for Refugees, Guidelines on Policies and Procedures in

dealing with Unaccompanied Children Seeking Asylum (1997), para 5.7. At http://www.unhcr.org/publ/PUBL/3d4f91cf4.pdf.

[190] See United Nations High Commissioner for Refugees, above, para

7.6.

[191] See A last resort,

note 9, pp 700-701; United Nations High Commissioner for Refugees, note 189,

para 7.7.

[192] See A last

resort, note 9, pp 699-701,

873-877.

[193] See A last

resort, note 9, pp

699-700.

[194] See 2007 Summary

of Observations, note 1, pp

23-24.

[195] See A last resort,

note 9, pp 857, 873-877, 698-701.