DIAC Response to the 2011 Australian Human Rights Commission Statement on Immigration Detention at Curtin
Response to the Australian Human Rights Commission
Statement on Immigration Detention at Curtin
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Introduction
The Department of Immigration and Citizenship
(DIAC) welcomes the opportunity to respond to the Australian Human Rights
Commission (AHRC) Public Statement on Immigration Detention in
Curtin.
DIAC places a high value on the work of the AHRC and
appreciates the AHRC’s substantial recognition of the hard and consistent
efforts of all those staff supporting the management of clients at Curtin
Immigration Detention Centre (Curtin IDC).
The AHRC has outlined a number
of key issues related to Immigration Detention Curtin IDC. DIAC comments in
response to these recommendations are outlined below.
Recommendation
1: The Australian Government should end the current system of mandatory and
indefinite immigration detention.
The Australian Government should
implement reforms it announced in 2008 under which immigration detention is to
be used as a last resort and for the shortest practicable period, people are to
be detained in the least restrictive environment appropriate to their individual
circumstances, and there is a presumption that people will be permitted to
reside in the community unless they pose an unacceptable risk.
The
need to detain should be assessed on a case-by-case basis taking into
consideration individual circumstances. That assessment should be conducted when
a person is taken into immigration detention or as soon as possible thereafter.
A person should only be held in an immigration detention facility if they are
individually assessed as posing an unacceptable risk to the Australian community
and that risk cannot be met in a less restrictive way. Otherwise, they should be
permitted to reside in community-based alternatives while their immigration
status is resolved.
The Australian Government considers immigration
detention to be an essential component of strong border control. In line with
the Government’s approach to immigration detention, mandatory detention is
applicable to the following groups of people:
- all unauthorised arrivals for the management of health, identity and
security risks to the community;
- unlawful non-citizens who present unacceptable risks to the community;
and
- unlawful non-citizens who repeatedly refuse to comply with their visa
conditions.
The decision to detain is based on an assessment of
risk. In the case of a person who arrived in Australia lawfully and
subsequently became unlawful, the decision to detain is based on an assessment
of the risk that person may present to the Australian community, or to the
integrity of the migration program through repeated refusal to comply with their
visa conditions. In the case of irregular maritime arrivals who have not given
the Government an opportunity to assess any health, identity or security risks
to the community they may present, the Government has made the judgement that
they will be detained for the purposes of assessing and managing those
risks.
Mandatory detention, along with strong border security measures,
ensures the orderly processing of migration to our country.
It remains
the Government’s position that indefinite or otherwise arbitrary
immigration detention is not acceptable and the length and the conditions of the
detention are subject to regular review. The reviews consider the lawfulness
and appropriateness of the person’s immigration detention, their detention
arrangements and other matters relevant to their ongoing detention and case
resolution. Continuing immigration detention is dependent upon factors such as
the management of health, identity and security risks and ongoing assessments of
risks to the community or the integrity of Australia’s migration
programs.
A person in immigration detention can seek judicial review of
the lawfulness of their detention in the Federal Court or High Court of
Australia. A person in immigration detention may generally also seek merits or
judicial review of the visa-related decision that resulted in them remaining or
becoming an unlawful non citizen and being liable for detention, including a
decision to refuse a bridging visa once they are detained.
We note the
Australian Human Rights Commission’s (AHRC) previous position that a
legitimate purpose of immigration detention can be for the purposes of
conducting security checks. The screening mechanisms in place ensure that
Australia is protected from people who may pose a risk to our national security.
Detention of unauthorised arrivals for the purpose of managing health, identity
and security risks to the community is a reasonable and proportionate approach
which also enables Australia to meet its obligations to those who are found to
be in need of protection.
Following an announcement on 18 October 2010, the
Government has expanded its existing community-based arrangement program, moving
significant numbers of people out of immigration detention facilities into
community-based accommodation.
DIAC is managing the implementation of the
expanded community-based arrangements. The Minister's Council for Immigration
Services and Status Resolution (CISSR) is working closely with DIAC to support
this process.
Recommendation 2: The Australian Government should
comply with its international human rights obligations by providing for a
decision to detain a person, or a decision to continue a person’s
detention, to be subject to prompt review by a court. To comply with article
9(4) of the ICCPR, the court must have the power to order the persons release if
their detention is not lawful. The lawfulness of their detention is not limited
to domestic legality – it includes whether the detention is compatible
with the requirements of article 9(1) of the ICCPR, which affirms the right to
liberty and prohibits arbitrary detention.
DIAC notes the
AHRC’s view that Australia is not complying with its international
obligations in this regard and that the AHRC has cited the views of the United
Nations Human Rights Committee in A v.
Australia[1]. Australia disagreed
with that Committee’s interpretation of Article 9(4) of the International
Covenant on Civil and Political Rights and expressed to the Committee its view
that, under that Article, judicial review needs to be available to consider the
lawfulness of detention in the context of domestic law rather than the issues of
arbitrariness.
Nevertheless, the Government is considering ways of
improving the review of the appropriateness of detention.
As stated in
the response to recommendation 1, the length and conditions of detention,
including the appropriateness of both the accommodation and the services
provided, are subject to regular review. These reviews are conducted every
three months and alternate between senior officer reviews conducted by DIAC and
Commonwealth Ombudsman reviews. The reviews consider the lawfulness and
appropriateness of the person’s detention, their detention arrangements
and other matters relevant to their ongoing detention and case
resolution.
In addition, a person in immigration detention can seek
judicial review of the lawfulness of their detention in the Federal Court or
High Court of Australia. A person in immigration detention because of the
refusal of a visa or cancellation of a visa, may generally also seek merits or
judicial review of the visa decision that resulted in them becoming an unlawful
noncitizen and being liable for detention, or of a decision to refuse a bridging
visa once they are detained. This is consistent with Article 9(4) which, in
Australia’s view, requires courts to be empowered to assess whether the
detention is lawful according to domestic law.
Immigration detention is
also subject to regular scrutiny from external agencies such as the AHRC, the
Commonwealth Ombudsman, the United Nations High Commissioner for Refugees and
the CISSR to ensure people in immigration detention are treated humanely,
decently and fairly.
Recommendation 3: Until the above recommendations
are implemented, the Australian Government should avoid the prolonged detention
of asylum seekers by complying with its New Directions in Detention policy under which detention of asylum seekers is for conducting health,
identity and security checks. The security check should not be interpreted as
requiring a full ASIO security assessment before an individual is released from
an immigration detention facility. Rather, the security check should consist of
an assessment of whether an individual would pose an unacceptable risk to the
Australian community if they were given authority to live in the community. That
assessment should be made when the individual is taken
into immigration detention, or as soon as possible
thereafter.
People who arrive in Australia without
the appropriate authority do not provide the Government with an opportunity to
assess any risks they might pose to the Australian community prior to presenting
at the border. These unauthorised arrivals are detained for the purposes of
managing health, identity and security risks. In contrast, people who arrive
lawfully have already been assessed including in relation to character, health,
identity and bona fides.
The Government's approach to immigration
detention is based on a set of values that take a risk-based approach to
immigration detention and seek a prompt resolution of cases. The values commit
DIAC to detention as a last resort, to detention for the shortest practicable
period and to the rejection of indefinite or otherwise arbitrary
detention.
DIAC uses a number of programs which provide flexibility in
the provision of services to people in immigration detention. These arrangements
include community detention facilitated by organisations such as the Australian
Red Cross, detention in immigration residential housing or immigration transit
accommodation and foster care arrangements for unaccompanied minors.
All
clients in immigration detention are subject to regular departmental senior
officer reviews and Commonwealth Ombudsman reviews, which include assessment of
the appropriateness of the client’s placement. In considering the
recommendations from these reviews and balancing the risks to the Australian
community, DIAC explores alternative placement options. Where considered
appropriate, DIAC also refers cases to the Minister for consideration of a
community detention placement in accordance with the s197AB Ministerial
intervention guidelines.
The Minister for Immigration and Citizenship
announced on 29 June 2011 that the Government met its commitment to move the
majority of children and a significant number of vulnerable families from
facility based detention into community–based arrangements by the end of
June 2011. As of 12 September 2011, the Minister had approved 1887 people for
community detention placement, including 890 children (which also includes 302
unaccompanied minors).
DIAC is working to move the current priority
groups into community detention over the coming months. These groups include
the youngest unaccompanied minors, families with young children, single parent
families, families with pregnant women and other particularly vulnerable
families, older unaccompanied minors and other family groups. DIAC is also
looking to place a small number of low risk, compliant, vulnerable single adult
men who may have experienced torture or trauma into community detention. The
capacity for this to occur is limited by the availability of suitable
accommodation and support services in the community.
Recommendation 4:
The Minister for Immigration and DIAC should make the greatest possible use of
community-based alternatives to holding people in immigration detention
facilities. This should include:
- Alternatives to detention such as bridging visas. While people who arrive
in excised offshore places are barred from applying for a bridging visa under
the Migration Act, the Minister retains discretionary powers to either lift that
bar, or to grant a bridging visa to a person in immigration
detention.
- Alternative forms of detention such as community detention. If a person
cannot be granted a bridging visa and must be held in immigration detention, the
Minister and DIAC should make the greatest possible use of community detention.
This should apply to all people in immigration detention, particularly those who
meet the priority criteria under the Residence Determination
Guidelines.
While immigration detention is a key component
of immigration compliance, it is only one tool in a suite of management options
available. If a client is not an unauthorised arrival and poses no unacceptable
risk to the community or the integrity of Australia’s migration programs,
a bridging visa is usually granted while their status is resolved and they
remain in the community.
All clients in immigration detention are subject
to regular departmental senior officer reviews and Commonwealth Ombudsman
reviews, which include assessment of the appropriateness of the client’s
placement. In considering the recommendations from these reviews and balancing
the risks to the Australian community, DIAC explores alternative placement
options. Where considered appropriate, DIAC also refers cases to the Minister
for consideration of a community detention placement in accordance with the
s197AB Ministerial Intervention guidelines under the Migration Act
1958.
On 18 October 2010, the Australian Government announced an
expansion of its existing Residence Determination (or community detention)
program to progressively move significant numbers of children and vulnerable
family groups out of immigration detention facilities and into community-based
accommodation by the end of June 2011. Whilst residence determination is not a
visa grant, it allows children and their families to move about in the community
under the care of the Commonwealth and its Non-Governmental Organisation (NGO)
partners.
As per the response to recommendation 2, the majority of
children and a significant number of vulnerable families were moved from
facility based detention into community–based arrangements by the end of
June 2011. DIAC is working to move the current priority groups into community
detention over the coming months. As stated in the response to recommendation
3, the capacity for this to occur is limited by the availability of suitable
accommodation and support services in the community.
The Australian Red
Cross is the lead agency contracted by DIAC to deliver community detention. The
Australian Red Cross are working with other NGOs, including church groups, to
source accommodation without putting extra pressure on housing that is already
in demand from vulnerable Australians.
Recommendation 5: In relation
to processing of refugee claims:
- the Australian Government should take ongoing steps to ensure the
quality, fairness and rigour of the process used to assess peoples refugee
claims
In July 2011, the Government strengthened the senior
reviewer ranks of Independent Protection Assessment Office (IPAO) reviewers by
appointing four highly experienced and skilled refugee decision makers from the
Refugee Review Tribunal (RRT) to fill the roles of Principal Reviewer and Senior
Reviewers.
These appointments provide a heightened level of
professional leadership and supervision of reviewers’ performance and
quality of work. Additional appointments of RRT members were made in July 2011
and further appointments are anticipated.
A strong professional
development program has been maintained throughout 2010-2011 and is being
further developed with a practical focus on training and workshopping key
natural justice and refugee law issues, country of origin information, interview
techniques and the effective use of interpreters.
The Principal Reviewer
and Senior Reviewers play a key role in this professional development, providing
professional leadership, guidance and advice, including quality assuring of
decisions, counselling, supporting and monitoring reviewers’
work.
Since April 2010, six training workshops and/or inductions have
been held with reviewers to address effective and timely decision-making, the
use of country information, decision quality and consistency, and professional
development needs.
Workshops and induction sessions have also focussed on
consistency in approaches to decision-making (a Code of Conduct issue), use of
and consistency in interpretation of country information as well as on
complementary protection and humanitarian issues.
International country
experts are sourced to provide presentations to reviewers on the circumstances
prevailing in particular countries of interest, for example, Afghanistan and
Pakistan.
Each workshop program has contained specific training on
natural justice requirements, focussing from December 2010 on the High Court
Decision in M61 and M69 v Commonwealth.
RRT country advisers and
refugee law experts also participate in the training and development of
reviewers, both within and outside formal workshops. New reviewers are required
to obtain the advice of the RRT’s legal advisers for their first five
decisions and have ongoing access to this legal service and to country advice
staff through a MOU operating between the IPAO and the RRT.
Mentoring
arrangements for new reviewers operate to ensure they are oversighted initially
by their Senior Reviewer and are assisted in the conduct of their reviews by an
experienced reviewer mentor. Each new reviewer also has their first five draft
recommendations commented on by their mentor and their Senior
Reviewer.
Quality assurance is also provided in other ways, including by
the Courts, the Principal Reviewer and the CEO IPAO.
From 1 January 2011
to date 247 persons have sought judicial review out of 403 ‘affirm’
reviewer reports. There have been 14 reviewer reports upheld by the Courts and
six reports found to contain legal error.
- DIAC should increase information flow to asylum seekers in immigration
detention so that each person is kept informed about processing steps, estimated
timeframes and progress with their individual case
DIAC
agrees with this recommendation and has recently been implementing a range of
measures to improve information flow to clients. DIAC staff work with complex
and challenging caseloads in dispersed and remote places. To address this, a
number of formal communication guides and client information sheets have now
been developed for use by Case Managers to ensure that they provide accurate
information to clients about the options available to them to resolve their
immigration status. In addition this enables them to also provide regular
information to clients about the expected timeframes in relation to the progress
of their case.
Regular face to face team briefings are held between staff
and team leaders at immigration detention centres and significant issues around
information flow and/or communication are raised with Global Managers and
Program Leaders so that they can be addressed. Policy and program support areas
provide staff with specific scripts, Frequently Asked Questions, notification
letters and information sheets to enable staff to communicate clearly with
clients about the options available to them and the expected timeframes around
the progress of their individual case.
Regular visits to immigration
detention centres by senior staff and frequent communication in the form of
video or telephone conferences (including information sessions) help to underpin
a two-way communication process. This also ensures DIAC Case Managers have
accurate information about policy parameters that help them inform clients about
how they can regularise their immigration status, including making decisions to
discontinue their claims for asylum and depart from Australia.
- DIAC should ensure that IAAAS contractual and funding arrangements
provide for migration agents to spend sufficient time with their clients
preparing for interviews and lodgement of written
submissions
DIAC’s Immigration Advice and Application
Assistance Scheme (IAAAS) Service Providers are contractually obligated to
ensure that their clients are regularly kept informed of the progress of their
claims for protection.
IAAAS Service Providers produce their own
information material that describes their agency-specific arrangements for
managing contact between themselves and their clients. Communication between a
client and their migration agent is regular and ongoing throughout the client's
immigration pathway.
IAAAS Service Providers are also required to
explain, through the use of an interpreter, the extent of the service to be
provided including time spent in preparation for an interview or lodgment of a
written submission.
DIAC and the IAAAS Service Providers have an agreed
IAAAS Communication Protocol for clients and Providers under Protection
Obligations Evaluation (POE) arrangements. This protocol sets out the
expectations of DIAC, the IAAAS Service Providers and DIAC’s Detention
Service Provider, Serco, in facilitation of timely contact between clients and
providers.
The amount of time spent on preparation for interview or
lodgement of written submissions can vary on a case by case basis and is
dependent on the complexity of the claims.
DIAC continues to improve the
facilitation of timely communication between provider and client, including the
provision of sufficient opportunities for providers to assist clients with the
lodgement of written submissions. In September 2011, DIAC commissioned an extra
8-10 rooms at Curtin IDC specifically for the use of providers to interview
their clients. Provider access to their clients is facilitated within 24 hours
of a request by either client or provider.
A client who is unable to
contact their agent or is unhappy with the level of service provided can
complain to the Director of Client Support and Liaison Section who manages the
delivery of IAAAS services to people in immigration detention or, alternatively,
to the Commonwealth Ombudsman.
- DIAC should ensure that all asylum seekers in immigration detention are
aware of their ability to lodge a complaint about their migration agent with the
Office of the Migration Agents Registration Authority
When
clients are engaged with IAAAS they are given comprehensive information about
the service in an IAAAS Client Information Leaflet. This leaflet
includes advice regarding complaint mechanisms. Clients sign an acknowledgment
that they fully understand the information and that they agree to use the
service.
The IAAAS Client Information Leaflet informs clients that
if they are dissatisfied with the services provided to them by their IAAAS
provider, they may complain to DIAC. Clients are informed that DIAC will
investigate the complaint and, where appropriate, refer the matter to the Office
of Migration Agents Registration Authority (MARA) which is responsible for
regulating the migration advice industry. The leaflet advises clients that MARA
will independently investigate their complaint and, if appropriate, take
disciplinary action against the migration agent.
- additional reviewers should be appointed to minimise waiting periods for
independent merits review interviews and decisions
The
Government has recently strengthened the management of IPAO reviewers by
appointing a Principal Reviewer and 3 Senior Reviewers. Each Senior Reviewer
has responsibility for ensuring their group of reviewers are case managing their
reviews effectively and efficiently. The IPAO has key performance indicators to
ensure key process milestones are being met in a timely manner and assist in
identifying any risk areas.
The appointment of additional reviewers, most
of whom are RRT members, will make a significant difference in the timeliness of
the conduct of reviews and improved decision making through their mentoring of
newer reviewers.
During the period 1 July 2010 to 30 June 2011, 3,160
review requests were made by refugee claimants. Of these claims, 1,802
interviews were held and 1,392 recommendations were completed. During this
period, the average time taken from interview to reviewer recommendation was 53
days and from review request to reviewer recommendation was 169
days.
With the Government’s appointment of additional reviewers
during 2010-2011, and with further appointments anticipated, a significant
reduction in the time taken to allocate cases to reviewers, conduct interviews
and finalise decisions is expected.
- DIAC should provide all asylum seekers in immigration detention who
receive a negative decision on their refugee status with contact details for
legal and community groups able to provide assistance with judicial
review
When asylum seekers are notified of negative
decisions, they are informed that they may seek judicial review if they believe
the decision is wrong in law. The notification letters for irregular maritime
arrivals also provide the addresses of the national legal aid website and the
access to justice website for information on the possibility of free legal
advice. Both the Legal Aid website and the Access to Justice website contain
easy to find and up to date links to a range of relevant organisations,
including Community Legal Centres, and the contact details of the Legal Aid
Commissions in each state. The Access to Justice website also has an easy to
use language assistance feature, which allows the contact details of Legal Aid
and Community Legal Centres to be viewed in 17 different languages.
DIAC
has also developed three fact sheets that outline the judicial review process.
The Litigation Involving Migration Decisions fact sheet provides a
general outline of merits review and judicial review. The Seeking Protection
in Australia fact sheet provides information for irregular maritime
arrivals assessed under the Protection Obligations Determination process and is
available in English, Arabic, Hazaragi, Kurdish, Persian, Tamil and Dari. The Options Following Negative Refugee Decision fact sheet, which is
currently available in English, Arabic, Burmese, Dari, Farsi, Indonesian,
Kurdish, Tamil and Vietnamese, provides information on the availability of
judicial review. It also contains the contact details for Legal Aid in each
state.
Recommendation 6: DIAC should change its approach to case
manager’s engagement with recognised refugees in immigration detention
facilities about the option of voluntary removal. Case Managers should not
propose the voluntary removal of recognised refugees to their country of origin.
Rather, DIAC efforts should be targeted towards ensuring that recognised
refugees are removed from immigration detention facilities as quickly as
possible.
A key focus of the case management role is to keep clients
informed of all their immigration options as they transit through their
immigration pathway. Case Managers do not, however, advise clients about their
individual circumstances and a preferred way forward. This is a matter for the
client's IAAAS provider. In rare circumstances, DIAC considers that
discussions about the option of voluntary return with clients who have been
found to be a refugee may be appropriate. Case Managers will continue to use
their professional judgment about when to have such discussions with clients and
these conversations will be carried out with all due sensitivity and
respect.
Recommendation 7: The Australian Government
should adopt a specific mechanism to address the situation of stateless persons.
This should include a statelessness determination process, mechanisms to ensure
that people are not subjected to prolonged detention while they go through the
process, and access to sustainable outcomes such as through the creation of a
permanent visa class for stateless persons. Pending the adoption of such a
mechanism, the Australian Government should ensure that stateless persons are
not subjected to prolonged or indefinite detention.
Noting that
statelessness is not in itself a ground for protection under the 1951 Refugee
Convention nor covered by the proposed Complementary Protection legislation,
DIAC has been actively reviewing international practice in relation to managing
the issues that arise due to the practical barriers to arranging removal when a
stateless person who is not owed a protection obligation is not lawfully in the
territory of a State. This review includes looking at models of determination
processes, and extends to the consideration of pathways for resolution of cases
where a person is not a refugee and is unable to be returned to their country of
former habitual residence.
Recommendation 8: DIAC and ASIO should take
all possible steps to ensure that outstanding ASIO security assessments for
people in immigration detention facilities are completed as quickly as possible,
particularly for those people who have already been detained for prolonged
periods.
DIAC and the Australian Security Intelligence Organisation
(ASIO) continue to liaise regularly and discuss available options to expedite
outstanding security assessments. As noted in the report, DIAC has asked ASIO
to prioritise long-standing and complex case
assessments.
Recommendation 9: People in immigration detention subject
to ASIO security assessments should be provided with greater information about
the processes and timeframes involved and about progress with their individual
assessments.
DIAC is unable to comment on the security assessment
process and timeframes as they lie outside DIAC’s portfolio responsibility
and as they are matters of national security this information is not disclosed
to DIAC. However, as noted above, DIAC continues to closely engage with ASIO on
expediting outstanding security assessments.
Recommendation 10: The
Australian Government should ensure that durable solutions are provided for
people who have received adverse security assessments from ASIO. In doing
so:
- these people should be removed from immigration detention facilities as
soon as possible
- alternative placement options should be considered including less
restrictive places of detention than high-security Immigration Detention Centres
and community detention, if necessary with conditions to mitigate any identified
risks
- possible visa options should be considered, for example the Minister for
Immigration could exercise discretionary power to grant temporary visas with
appropriate conditions attached
- the Australian Government should not propose then voluntary removal of
recognised refugees in this situation to their country of
origin
The Government is committed to managing the situation
of irregular maritime arrivals with adverse security assessments in a manner
consistent with both Australia's international non-refoulement obligations and
the Government's obligation to protect the Australian community from threats to
security. Consistent with this, options are being explored to have these people
removed from Australia. However, given the complex nature of these cases, this
may not be quickly achievable for some individuals. These individuals will
remain in immigration detention while removal options continue to be
explored.
Recommendation 11: The Australian Government should
introduce reforms so that all people who have received adverse security
assessments from ASIO:
- are provided with information sufficient for them to be reasonably
informed of the basis of the adverse assessment
- are provided with access to merits review by the Administrative Appeals
Tribunal
- are provided with access to greater information about the basis of the
adverse assessment if they apply for judicial review, either directly or through
an appropriate person – for example, a Special Advocate able to view both
an original and a redacted summary of the assessment.
As
stated above, questions of this nature fall outside DIAC’s portfolio
responsibility so DIAC is consequently unable to respond to
them.
Recommendation 12: People should not be held in immigration
detention in remote locations such as Curtin IDC. If people must be held in
immigration detention facilities, they should be located in or near metropolitan
areas.
If the Australian Government intends to continue to use
Curtin IDC, it should reduce the number of people detained there, cease the
practice of accommodating people in dormitory bedrooms and return those rooms to
their original use as space for recreational activities.
DIAC is
cognisant of the issues raised by the AHRC in operating facilities in remote
locations. Due to the high influx of irregular maritime arrivals and subsequent
pressures on existing facilities, the opportunities in sourcing suitable
facilities of sufficient size in or near metropolitan areas proved difficult,
particularly at short notice. The Curtin facility provided an immediate
solution to the pressing need to accommodate irregular maritime
arrivals.
DIAC seeks to make use of available Commonwealth
property but is also working on finding suitable accommodation nearer to
metropolitan areas and has achieved worthy results with the recently opened
Pontville facility, located about 30 kilometres north of Hobart, as well as two
additional facilities due to come on line in the next few months. Both
facilities are located within close proximity to major capital cities. They are
Yongah Hill, which is situated approximately 80 kilometres north-east of Perth,
and Wickham Point which is located about 35 kilometres south-east of
Darwin.
In relation to the use of dormitory style accommodation, it is
DIAC's ongoing intention to reduce the client population at Curtin IDC to, or
below, its operational capacity of 1200 people. It is hoped that with the
addition of the Pontville, Yongah Hill and Wickham Point facilities, DIAC can
reduce the number of clients accommodated at Curtin IDC to, or below,
operational levels. This would allow for all of the dormitories at Curtin IDC
to be returned to recreational facilities.
In addition, a number of
activity areas are due for completion soon, including a large grassed oval, a
number of cricket pitches and volleyball courts. A large multi-purpose area is
also due for completion in October 2011. These infrastructure developments will
increase the number of recreational areas available to people at Curtin
IDC.
Recommendation 13: DIAC should ensure that all people in
immigration detention at Curtin IDC have access to:
- adequate outdoor recreation spaces including grassy and shaded
areas
- adequate indoor areas for educational and recreational
activities
- a range of recreational and educational activities conducted on a regular
and frequent basis
- a freely accessible library area stocked with reading materials in
languages spoken by people in detention
- adequate access to communication facilities including internet, fax, and
incoming and outgoing telephones
- a secure space for storing their personal
belongings
DIAC ensures that all clients housed at
immigration detention facilities have access to adequate facilities. At Curtin
IDC this includes:
- indoor and outdoor recreation areas;
- 6 classrooms for education purposes;
- 6 recreation rooms that provide clients with pool and table tennis tables
and electronic games;
- 3 library buildings;
- 6 rooms for religious purposes; and
- 6 gymnasiums provided with gym equipment across the
site.
DIAC is aware that a number of these buildings may be
used for contingency accommodation at times and marquees have been provided for
the services that these buildings would have been used for. The use of the
recreation buildings for accommodation is always for the shortest possible
time.
Following the Commission’s visit in May 2011, a number of
outdoor cabana areas (similar to those on Christmas Island) have been
constructed throughout the Curtin facility. In addition, the large grassed oval
has been top dressed and reseeded and will be available for use in the near
future. Along with the oval are other sporting facilities already available
including cricket nets, basketball and volley ball courts. A number of outdoor
shaded areas are also provided throughout the site for clients to sit around and
make tea and coffee. They are also provided with ice making machines, tables
and chairs. The site also has an all weather facility for indoor cricket and
other sports such as volleyball and tennis.
There is currently a program
in place to landscape the clients’ accommodation and recreation areas.
This is progressing taking into account the final site drainage plans. A large
number of plants, including trees and grass, have already been
planted.
DIAC has been working hard with Serco to increase the number of
activities available to people at the Curtin IDC. The range and number of
activities has increased significantly, with over six hundred scheduled
activities for the month of September 2011.
Curtin IDC currently has two
libraries onsite which are stocked with a range of reading materials in
different languages. Serco has ordered additional stock for the library to
cater for the number of clients and different nationalities at the facility.
This is the subject of ongoing monitoring by DIAC to ensure that the
clients’ needs are being met.
A multi-purpose room is due to come
online in October 2011, which will increase the number of computers for client
use at Curtin IDC. Outgoing telephones have also been increased, and will
increase further with the opening of the multi-purpose room. When the site is
fully functional there will be 120 phones for clients to use and 45 internet
stations. Additional interview rooms have also come online which will allow for
greater access to private communication areas for clients.
People in
immigration detention at Curtin IDC have access to secure storage of personal
items and valuables through Serco in Serco’s property area. In addition,
all bedrooms are provided with two safes for storing personal
belongings.
Recommendation 14: DIAC and Serco should ensure that
people in immigration detention at Curtin IDC are provided with regular
opportunities to leave the detention environment on external excursions. DIAC
should implement consistent standards for external excursions across the
detention network. Standards for the conduct of a minimum number of external
excursions should be specified in the Serco contracts applicable to all
detention facilities, and financial penalties should be applied if those
standards are not met.
DIAC continues to work with Serco to ensure
that clients have access to external excursions. The number and variety of
external excursions from Curtin IDC has been increased over previous months with
the addition of activities including sporting matches with local Derby teams,
visits to a cattle station, tours of Derby, swimming and volunteer opportunities
in the Derby community such as renovating a local Indigenous shopfront. This is
an area of ongoing audit and management attention onsite at Curtin IDC, with a
view to encouraging further opportunities for people in immigration detention to
have access to excursions.
DIAC has also sought submissions from local
community representatives who may be interested in participating in a Directed
Persons arrangement which would also facilitate further opportunities for
clients at Curtin IDC to leave the detention environment on external
excursions.
DIAC is very mindful of the need to have a rich program of
meaningful activities for all people in immigration detention and is working
very closely with Serco and other key stakeholders, which include the CISSR, who
are the Minister's reference group, to improve programs and activities at all
facilities. Serco advises that they are developing a strategic re-vamped
programs and activities model with all relevant stakeholders and have also
recruited a research company to engage with clients to establish the types of
programs and activities they would like to have the opportunity to be involved
in.
Opportunities to explore the aspect of this recommendation relating
to defining a minimum number of external excursions for example, is provided
through the research process that Serco will undertake, as well as through
conversations with key stakeholders. Similarly, opportunities to explore and/or
refine management methods appropriate to ensuring the implementation of a
re-vamped schedule are provided through those processes as well as through
contractual arrangements.
Recommendation 15: DIAC and Serco should
ensure that:
- staff training and performance management mechanisms include a strong
focus on treating all people in immigration detention with humanity and with
respect for their dignity
- all staff refer to people in immigration detention by their name –
their identification number should only be used as a secondary identifier where
this is necessary for clarification purposes
- people in immigration detention are able to lodge both internal and
external complaints confidentially and without fear of
repercussions.
DIAC is committed to ensuring that people in
immigration detention are treated fairly, with dignity and respect. DIAC
welcomes the AHRC's observation that a positive culture shift has occurred over
the past five or six years in the way people are treated in immigration
detention.
All staff have been instructed, and are expected, to refer to
people in immigration detention by their name. In situations where this does
not occur, the staff member will be counselled. Management have reiterated this
expectation on a number of occasions to ensure all staff are made
aware.
The services delivered by Serco to people in immigration detention
are underpinned by the Immigration Detention Values (IDVs) and the Detention
Services Contract (DSC) has been developed to ensure that it takes into account
the seven IDVs, and in particular one of which states that people in detention
are treated fairly and reasonably within the law and that detention will ensure
the inherent dignity of the human person. Should a member of staff be found to
not abide by these requirements, they will be counselled in line with DIAC's or
Serco’s performance management framework or, at its most serious, removed
from their role.
Key performance indicators were agreed to by DIAC and
Serco that focus on, amongst other areas, the implementation of those IDVs in
all of Serco's interactions with people in immigration detention.
The
decisions, actions and behaviour of Serco staff in dealing with people in
immigration detention are underpinned by a Code of Conduct that is intended to
provide an ethical framework for Serco's service delivery. It advocates values
that include integrity, honesty and impartiality, in line with the
IDVs.
In accordance with the DSC, Serco must ensure that all its
personnel are trained and qualified prior to commencing duties. This training
includes cultural awareness, mental health awareness, human rights, human
interaction and regular refresher training. Serco must engage a Level IV
accredited trainer to select and coordinate the delivery of training for its
personnel. The DSC requires that the Code of Conduct is integrated into
training and development programs, particularly those for leadership, management
and supervisor training.
DIAC can and does regularly test Serco’s
compliance with the training requirements through monitoring at facilities. The
DSC also requires that specific mention of the Code of Conduct is made in
performance agreements for Managers and that performance appraisal and
associated discussions focus on this key area.
Clients in immigration
detention at Curtin IDC are encouraged to provide feedback and lodge complaints
if necessary. There are no repercussions for either of these actions and staff
regularly advise people in immigration detention at Curtin that their feedback
is valued and assists in managing service provision arrangements. This is
reiterated at Client Consultative Group meetings during induction and also
during regular interactions with clients in the facility. Should there be any
substantiated allegations in relation to repercussions as a result of a
complaint, then this would also be managed in terms of DIAC's or Serco’s
performance management frameworks.
Recommendation 16: An independent
body should be charged with monitoring the provision of physical and mental
health services in immigration detention, and adequate resources should be
allocated to that body to fulfil this function.
DIAC monitors the
delivery of physical and mental health services in immigration detention
through:
- an expert advisory body called the Detention Health Advisory Group
(DeHAG);
- input from the CISSR;
- external scrutiny and complaints processes;
- feedback from the Detention Health Services Provider, International Health
and Medical Services (IHMS); and
- health reviews conducted by independent consultants.
The
Detention Health Advisory Group (DeHAG)
The DeHAG and its Mental
Health Sub-Group (MHSG) provides DIAC with independent expert advice to design,
develop, implement and monitor health and mental health care services and
policies for people in immigration detention. The DeHAG consists of key health
and mental health professional and consumer group organisations including:
- Australian Medical Association;
- Royal Australian College of General Practitioners;
- Mental Health Council of Australia;
- Australian Psychological Society;
- Forum of Australian Services for the Survivors of Torture and Trauma;
- Victorian Health Promotion Foundation;
- Royal Australian and New Zealand College of Psychiatrists;
- Royal College of Nursing Australia;
- Public Health Association of Australia; and
- Australian Dental Association.
The Commonwealth Ombudsman's
Office has an observer status on the DeHAG.
The DeHAG represents
DIAC’s commitment to working in an open and accountable manner with our
key health stakeholders to improve the general and mental health of people under
our care. The DeHAG’s work program includes site inspections of all
immigration detention facilities, including Curtin IDC. Following these
inspections, the DeHAG has provided expert advice on a range of health issues,
including mental health, dental services, communicable disease prevention and
child health issues. DeHAG has also provided advice on safety concerns,
including Occupational Health and Safety issues for some of the sites visited.
These are followed up with relevant areas of DIAC.
The Council for
Immigration Services and Status Resolution (CISSR)
The CISSR provides
feedback to DIAC about the influence of health service delivery on the wellbeing
of people in immigration detention, including how it can impact status
resolution.
External Scrutiny and Complaints Processes
DIAC
also receives feedback on health service delivery to people in immigration
detention from organisations such as the Commonwealth Ombudsman and the
Australian Red Cross.
The Commonwealth Ombudsman visits immigration
detention facilities and scrutinises service delivery, including health
services. It provides feedback to DIAC about possible issues with service
delivery and DIAC follows up on the issues identified as required. The
Australian Red Cross, through its work with people in immigration detention,
also provides valuable feedback to DIAC about services delivery including health
services.
Formal complaint mechanisms allow people in immigration
detention, or their representatives, to raise their concerns directly to DIAC
through the Global Feedback Unit. The Commonwealth Ombudsman and the AHRC also
receive and investigate complaints about health services provision in
immigration detention facilities. These organisations will, when required,
advise DIAC of instances where they consider the provision of health care
services has been deficient. DIAC considers this reporting and feedback
carefully and follows up as appropriate, including with
IHMS.
International Health and Medical Services (IHMS)
IHMS
is part of International SOS (IHMS’s parent company), which provides
health services to a number of governments and companies. It has its own
internal audit and assessment processes.
IHMS undertakes audits and
assessments of its services in immigration detention facilities:
- During 2009: Internal audits against the Royal Australian
College of General Practitioner (RACGP) Standards were conducted by IHMS head
office personnel at a number of facilities.
- April 2011: An internal audit at Christmas Island facilities
against RACGP standards was conducted by IHMS head office personnel.
- May-Jun 2011: A detailed audit was undertaken of the
management processes and governance of health services. The audit was
commissioned by IHMS and conducted by International SOS.
- June 2011: Each site conducted a self-assessment against the RACGP
Standards.
- Quarterly: An internal audit of health records and medication
records is conducted at each site.
DIAC has also commissioned
various reviews of health services delivery in detention facilities as outlined
below:
Review of Health Service Delivery Model Christmas
Island
DIAC engaged Phillipa Milne and Associates to provide
independent expert advice on the appropriate level of health care services to be
provided to people in immigration detention on Christmas Island. The report was
completed in June 2010.
Review of Health Service Delivery Model
Mainland Detention Facilities
DIAC engaged Phillipa Milne and
Associates to provide independent expert advice on the appropriate level of
health care services to be provided to people in immigration detention
facilities on the Australian mainland. The report was completed in October
2010.
Royal Australian College of General Practitioners (RACGP)
Accreditation Pilot
DIAC commissioned Quality in Practice (QIP) to
review the RACGP Standards for health services in Australian immigration
detention centres, develop an accreditation process, and provide a Detention
Health Standards Report detailing recommended changes to the Standards. QIP
provided a final report to DIAC in October 2010.
Review of Christmas
Island Detention Health Services Clinical Governance Processes
DIAC
contracted Communio to conduct a clinical governance review (the Review) of
health services provided to people in immigration detention on Christmas Island.
The Review was conducted on 28 April 2011 and 3 May 2011. This work included
the development of an audit tool, to enable assessment of the clinical
governance arrangements on Christmas Island. Communio presented the findings of
the review to DIAC on 19 May 2011.
Recommendation 17: In relation to
the provision of physical and mental health services, DIAC should:
- Ensure that all people detained at Curtin IDC are provided with timely
access to appropriate physical and mental health services, including dental,
optometry, physiotherapy and medical specialist care as
required.
- Ensure that the IHMS physical and mental health staffing at Curtin IDC is
increased to an adequate level as soon as possible.
- Overhaul the clinical governance framework for the delivery of mental
health services at Curtin IDC and across the detention network. This should
involve a consultant psychiatrist overseeing and being clinically responsible
for mental health service delivery including supervision of staff in the
provision of clinical care.
DIAC considers that people
detained at Curtin IDC generally receive an appropriate level of health
services, comparable to that available to the broader Australian community. The
remote location of Curtin IDC sometimes provides challenges to service delivery.
DIAC monitors the provision of health services at Curtin IDC and discusses
service delivery issues with IHMS. Following are updates on the particular
services and issues raised by the Commission:
Clinical Governance: In August 2011 IHMS filled the position of Medical Director, Mental
Health. This officer is a clinical psychiatrist, provides clinical guidance and
oversees clinical practice of IHMS mental health staff. This appointment
significantly enhances the clinical governance of mental health services across
the national detention network, including Curtin IDC.
Nurse (including
Mental Health Nurse) and General Practitioner consultations: These services
will improve with the recent completion of new clinic infrastructure at Curtin
IDC. The new clinic commenced limited operations on 12th September 2011.
Services at the new clinic will be expanded over September 2011. IHMS considers
that this additional infrastructure will lead to a sustained improvement in
health service delivery at Curtin IDC.
Dental: DIAC
continues to work closely with its service providers to improve the provision of
dental services available to people at Curtin IDC. Dental treatment for people
in immigration detention is aimed at providing a level of dental care that is
comparative to public sector dental services available to the wider Australian
community.
Dental services for people in immigration detention are
determined on a triage-based system that aligns the priority of care needed and
delivered to the severity of a person's condition. Such a system is fundamental
for ensuring limited dental resources are used in the most effective manner
possible and directed where there is the greatest level of need.
DIAC had
been working with IHMS to provide a temporary onsite dental clinic at Curtin
IDC, however, in early July 2011 this option was not pursued due to equipment no
longer being available for leasing.
DIAC and IHMS have worked with the
Western Australian Department of Health on an alternative arrangement to lease
the Derby Dental Clinic after-hours and on weekends, when not being used to
provide dental services to the broader community. This arrangement commenced in
early August 2011. It has been given approval for an initial period of six
months and uses a fly-in IHMS dental service (including a dentist and dental
assistant) on a monthly basis and a radiographer when required.
During
the dental service's initial visit to the Derby clinic in August 2011, a total
of 18 clinic days were conducted for people triaged as high and medium priority.
During this time 242 clients, over half of the clients on the dental waiting
list, were seen and treated. Approximately 40 clients required follow up dental
treatment. In addition, 23 clients either did not attend or declined their
dental appointment. DIAC has been advised that the dental service will next
return to Derby from 23-29 September 2011.
Optometry: A three day
on-site clinic was conducted at the end of August 2011 which managed to clear
the list of clients requiring an optometry consultation. As at 12 September 2011
there were 10 clients on the optometry waiting list. IHMS is sending five
clients each week to Broome for optometry
consultations.
Physiotherapy: Currently a physiotherapist visits
Curtin IDC for four hours each week. As at 12 September 2011, there were 46
people undergoing a treatment plan, with 16 more people awaiting an initial
physiotherapy consultation. Each referral is reviewed by the physiotherapist
who prioritises people according to the nature and severity of their condition.
People classed as ‘Category 1’ are usually seen within seven days of
referral. At present approximately five new referrals are generated
weekly.
Torture and Trauma Counselling: DIAC has
been working with the counselling provider, the Association for Services to
Torture and Trauma Survivors (ASeTTS), to provide appropriate staffing levels to
meet increased client needs at Curtin IDC.
DIAC recently agreed to a
submission from ASeTTS to increase the number of counselling staff at Curtin IDC
to four. Within this staffing profile is a team leader that is based in Derby
who will be responsible for liaison with IHMS, local departmental staff and the
fly-in-fly-out ASeTTS counsellors. The agreed model is expected to decrease
counsellor case loads as well as client waiting lists.
Mental Health
Staffing at Curtin IDC: IHMS advises that there is currently
sufficient staff at Curtin IDC to provide an adequate level of mental health
services. IHMS believes that the new clinic will enhance mental health services
delivery at Curtin IDC.
MOUs: DIAC notes the AHRC’s comments
regarding the absence of formal memoranda of understanding between DIAC and
state health providers in Western Australia. DIAC is committed to working with
the Western Australian Government to formalise arrangements for the provision of
health services for people in immigration detention in Western Australia. These
arrangements will enhance co-operation and clarify the level and type of
services required. Discussions between DIAC and the Western Australian
Government have been beneficial, and both parties are now working towards
finalisation of formal arrangements for service
delivery.
Recommendation 18: In relation to self-harm and suicide,
DIAC should:
- Continue to consult with specialists in suicide prevention as well as
mental health professionals about measures to mitigate the risk of further
suicides across the detention network, and implement these measures as a matter
of urgency.
- Ensure that a full safety audit is conducted across Curtin IDC and all
other immigration detention facilities, and that all appropriate measures are
taken to minimise the risk of suicide and self-harm.
- Ensure that all relevant staff are provided with adequate training on the
Psychological Support Program as soon as possible.
DIAC
shares the AHRC’s concerns relating to the mental health of persons in
immigration detention.
Self-harm is a complex issue and DIAC is seeking
expert advice in examining the determinants of self-harm and ways to reduce the
risk of self-harm.
Training on the Psychological Support Program and
other mental health policies was delivered to staff across the Immigration
Detention Network in 2010. DIAC recently developed a revised mental health
awareness training program in consultation with the DeHAG. The revised training
program was recently piloted with DIAC, IHMS and Serco staff and will now be
delivered to all staff from these organisations who work in detention facilities
and have contact with clients.
Other measures underway to help address
the incidences of self-harm are as follows:
- DIAC is undertaking a project to analyse health and incident (including
self-harm) data. This data is being analysed with the MHSG of DeHAG to help
identify strategies which could help reduce the risk of self-harm;
- DeHAG has undertaken several site visits and issued reports addressing
safety concerns. DeHAG is also developing an evaluation tool to assist with
assessing the safety of detention environments; and
- DIAC is conducting an external review into the implementation of the
detention mental health policies implemented in 2010. DIAC anticipates that the
review will be completed by early
2012.
Recommendation 19: With regard to people in
immigration detention who are survivors of torture and trauma, DIAC
should:
- Ensure that its policy, Identification and Support of People in
Immigration Detention who are Survivors of Torture and Trauma, is
implemented across the detention network. Under this policy, the continued
detention of survivors of torture and trauma in Immigration Detention Centres is
to occur only as a last resort where risk to the Australian community in
considered unacceptable.
- Ensure that they are provided with adequate access to specialist
counselling services.
The policy Identification and
Support of People in Immigration Detention who are Survivors of Torture and
Trauma has been implemented across the Immigration Detention Network. This
and other DIAC policies are designed to identify, professionally support and,
where possible, appropriately place clients.
Torture and Trauma
Screening
All people entering immigration detention undergo mental
health screening within 72 hours of their arrival in the facility. The process
includes screening for signs of torture or trauma. If a possible history of
torture or trauma is identified the person is referred for assessment by a
torture and trauma counselling service. In addition, given the high proportion
of irregular maritime arrivals who may have experienced torture or trauma, all
irregular maritime arrivals are automatically referred for assessment by a
torture and trauma service.
Counselling
Torture and trauma
counselling is provided by organisations that are members of the Forum of
Australian Services for Survivors of Torture and Trauma (FASSTT), the peak body
for torture and trauma rehabilitation services in Australia. There is a FASSTT
member organisation in each state and territory of mainland Australia which
provide torture and trauma counselling services to people in immigration
detention. On Christmas Island torture and trauma counselling services are
provided by the Indian Ocean Territories Health Service (IOTHS), a Commonwealth
Government agency.
Placement in Community Detention
As per
the response to recommendation 3, DIAC is working to move the current priority
groups into community detention over the coming months including looking to
place a small number of low risk, compliant, vulnerable single adult men who may
have experienced torture or trauma into community detention. The capacity for
this to occur is limited by the availability of suitable accommodation and
support services in the community.
[1] A v Australia [1997] UNHRC 7;
CCPR/C/59/D/560/1993 (30 April 1997)