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3 Methodology

On 3 February 2014, the President of the Australian Human Rights Commission launched the National Inquiry into Children in Immigration Detention.

The purpose of the Inquiry was to investigate the ways in which life in immigration detention affects the health, wellbeing and development of children. The Inquiry assessed the impact of detention on children currently detained as well as seeking the views of people who were previously detained.

3.1 Terms of Reference

The Terms of Reference for this Inquiry are as follows:

The President will inquire into the impact of immigration detention on the health, well-being and development of children. The President will assess whether laws, policies and practices relating to children in immigration detention meet Australia’s international human rights obligations, with particular attention to:

  • the appropriateness of facilities in which children are detained;
  • the impact of the length of detention on children;
  • measures to ensure the safety of children;
  • provision of education, recreation, maternal and infant health services;
  • the separation of families across detention facilities in Australia;
  • the guardianship of unaccompanied children in detention in Australia;
  • assessments conducted prior to transferring children to be detained in ‘regional processing countries’; and
  • progress made during the 10 years since the Commission’s 2004 report: A last resort? National Inquiry into Children in Immigration Detention.

‘Children’ means any person under the age of 18.

Community detention is not part of the scope of this inquiry.

The President undertook the Inquiry under the Commission’s functions in section 11(1) of the Australian Human Rights Commission Act 1986 (Cth), most notably sub-sections (e), (f), (g), (j) and (k).[8]

3.2 Methodology

The Inquiry was led by Professor Gillian Triggs, President of the Commission, with assistance from Megan Mitchell, the National Children’s Commissioner and Tim Wilson, the Human Rights Commissioner.

In response to the Inquiry, the Department of Immigration and Border Protection formed an Inquiry Taskforce led by an SES officer. The role of the task force was to assist with and support the Inquiry.

The Commission acknowledges and is grateful to the Department for its continued efforts over the course of the Inquiry.

The Department has provided assistance in many forms, including by:

  • facilitating each visit to immigration detention centres;
  • appearing at four of the public hearings;
  • providing the Inquiry with detailed information on cases of concern;
  • providing a submission to the Inquiry;
  • facilitating specialist meetings with International Health and Medical Services; and
  • responding promptly to three Notices to Produce. The Commission acknowledges that these responses contained an extensive amount of information.

Throughout the Inquiry, the Department has provided various documents which set out the legal, policy, procedural and training requirements which guide the Department and its service provider staff. A summary of Departmental policies and procedures is set out in Appendix 7.

Inquiry methodology – a quick snapshot

239 submissions received

1129 children and parents in detention interviewed

104 children and parents formerly in detention and now living in the community interviewed

13 visits to 11 differenta immigration detention centres

9 health specialists participated in detention centre visits and 6 expert reports were published

5 public hearings convened with 41 witnesses

5 Notices to Produce issued

 

The Inquiry team gathered evidence through the following methods:

Visits to detention centres

A total of 13 visits to detention centres were made over the course of the Inquiry. From March to July 2014, the Inquiry staff visited 11 separate detention centres across mainland Australia and Christmas Island. Two centres on Christmas Island were revisited in July following concerns about a series of incidents of self-harm among detainees. The Department Inquiry Taskforce assisted the Inquiry team by facilitating these detention visits.

All visits were supported by independent paediatric and / or child mental health specialists. Following the visits, these health specialists submitted expert reports to the Commission. These have been incorporated into the chapters of this report and are available on the Commission’s Inquiry website.

At the conclusion of each detention centre visit, the Inquiry team raised cases of concern with the Department of Immigration and Border Protection. These related to children and adults who required immediate attention for physical or mental health reasons or children who claimed to be incorrectly age assessed.

The Department acknowledges that this interaction with the Commission has been a practical and useful exercise as it is an opportunity to share knowledge and expertise in the pursuit of tangible improvements.

Detention centre interviews

The Inquiry staff conducted 486 interviews in detention centres. Most interviews were conducted with family groups and responses were recorded for each individual family member using a standardised questionnaire. A total of 1129 children and parents were interviewed. The first-hand accounts from people living in detention provide substantial quantitative and qualitative data for this report. Interviewee testimony and quotes have been incorporated throughout the report. The Commission does not identify the names of asylum seekers to protect their privacy.

A copy of the interview questionnaire is provided at Appendix 6 and detailed information about the interview methodology is at Appendix 2.

Submissions

A call for submissions to the Inquiry was made on 3 February 2014 at the commencement of the Inquiry. Of the 239 submissions received, 105 submissions were published with the author’s name, 69 were published with the author’s identity kept confidential; and 65 submissions were confidential and not published. Submissions were received from different stakeholders including from children in detention in Australia and on Nauru; professionals working in the detention system, past and present; professional associations; doctors and former detainees. A list of all public submissions is provided at Appendix 3 of the report and the submissions are available on the Commission’s Inquiry website.

Community interviews

From April to August 2014, the Inquiry team interviewed 92 children and 12 parents who had previously been in detention and were now living in the community. These respondents were waiting to have their refugee cases assessed. They agreed to be interviewed on a strictly confidential basis. All interviews were conducted using the same questionnaire. A copy of this is provided at Appendix 6 of this report.

Public hearings

Five public hearings were conducted by the President between April and September 2014. Pursuant to section 21(5) of the Australian Human Rights Commission Act 1986 (Cth), a number of witnesses were compelled to attend and answer questions. Others appeared and gave evidence voluntarily. All evidence was given under oath or affirmation. A full list of witnesses and dates of each hearing is provided at Appendix 4 of this report.

Evidence provided pursuant to Notices to Produce

Pursuant to Division 3 of Part II of the Australian Human Rights Commission Act 1986 (Cth), the Commission can require the production of documents and information. The Department of Immigration and Border Protection was issued with three separate Notices to Produce on 31 March 2014, 11 July 2014 and 12 August 2014. International Health and Medical Services was issued with two Notices to Produce on 24 July 2014 and 24 September 2014.

The Commission acknowledges the extensive work involved with the collation of the material for the Notices to Produce.

Confidentiality

Pursuant to Division 3 of Part II of the Australian Human Rights Commission Act 1986 (Cth), the President of the Commission issued confidentiality directions on 3 April 2014 to preserve the anonymity of asylum seekers who had provided information to the Commission for the purposes of the Inquiry.

3.3 Definitions

Throughout this report, the following terms are used:

Asylum seeker: An asylum seeker is someone who has fled their own country and applies to the government of another country for protection as a refugee.

Babies: Children under the age of 2.

Child: A child is defined by the Convention on the Rights of the Child as anyone aged under 18 years.

Community Detention: Community detention refers to people living at a specific house in the community while their immigration status is resolved. People in Community Detention are generally not under physical supervision, however there are conditions attached to their living in the community and they are not permitted to work.

Department: The Department of Immigration and Border Protection. This is the Commonwealth agency responsible for implementing Australia’s immigration laws and policies.

Detention: Locked detention environments where children are held. This does not include Community Detention.

Detention Centre: The report identifies different detention facilities using the location of the facility followed by the generic term: ‘Detention Centre’. This includes facilities which the Department calls ‘Alternative Places of Detention’ (APODs), Immigration Residential Housing, and Immigration Transit Accommodation, including: Pontville Alternative Place of Detention, Perth Immigration Residential Housing, Construction Camp Alternative Place of Detention, Phosphate Hill Alternative Place of Detention, Aqua/Lilac Alternative Place of Detention, Blaydin Alternative Place of Detention, Wickham Point Alternative Place of Detention, Darwin Airport Lodge Alternative Place of Detention, Melbourne Immigration Transit Accommodation, Brisbane Immigration Transit Accommodation, Sydney Immigration Residential Housing, and Inverbrackie Alternative Place of Detention.

Minister: The Minister for Immigration and Border Protection.

Notice to Produce: The Commission has the power to compel the production of documents and information from individuals and organisations under s 21 of the Australian Human Rights Commission Act 1986 (Cth). These are known as ‘Notices to Produce’.

Preschoolers: Children aged 2 to 4 years old.

Primary school aged children: Children aged 5 to 12 years old.

Regional Processing Centre: Collective term referring to the detention facilities in Nauru. Within the Regional Processing Centre there are different Offshore Processing Centres.

Regional Processing Country: Countries designated under the Migration Act 1958 (Cth) as places where asylum seekers who arrived by boat after 13 August 2012 can be sent for processing. Currently Nauru and Papua New Guinea are designated as Regional Processing Countries.

(Actual) Self-harm: Defined in the Serco Incident Reporting Guideline (version 2) as any deliberate act of causing harm or injury to body tissue. This includes but is not limited to cutting, hanging, head banging, burning, severe scratching (so as to break the skin and bleed). It includes any attempt to cause self-harm. This is the definition that applies throughout this report.

Serco: Serco Australia Pty Limited is the current detention service provider delivering onshore immigration detention facilities and detainee services, which includes facilities management services, security and escort services, and welfare and engagement services.

Teenagers: Children aged 13 to 17 years old.

Threatened self-harm: Defined in the Serco Incident Reporting Guideline (version 2) as a client who threatens but does not attempt or complete an act of self-harm. This is the definition that applies throughout this report.

Unaccompanied child: A child who arrives in Australia without a parent, legal guardian or caregiver.

 

3.4 Timeframe for the report

Data collected for the purposes of the Inquiry covers the period 1 January 2013 to 30 September 2014. The law and policy review of this Inquiry spans a 10 year period; 2004 to 2014.

Where identified, the statistical data referred to in the report has been either:

  • provided by the Department of Immigration and Border Protection or its contractors; or
  • derived from interviews conducted by the Inquiry staff during visits to detention centres in Australia.

The qualitative information referred to in each chapter has been obtained from interviews conducted during visits to detention centres as well as from letters from children detained on Nauru.

A draft report setting out the Commission’s preliminary findings was provided to the Department of Immigration and Border Protection for comment pursuant to s 27 of the Australian Human Rights Commission Act 1986 (Cth) on 3 October 2014.

The Department responded on 27 October 2014. In respect of the preliminary findings of breaches of international human rights law the Department observed:

that the Commonwealth and the Commission have a long history of difference on this particular point. It is the view of the Government that detainees are provided with appropriate care, support and services, are treated with dignity and respect and have their claims addressed as soon as is reasonably practicable and consistent with current policy settings.

On 31 October 2014 the Commission provided the Department with the final report and recommendations pursuant to s 29 of the Australian Human Rights Commission Act 1986 (Cth). The Department responded in November 2014 at Appendix 8.

3.5 Commission’s previous work concerning children in detention

This is the Commission’s second national inquiry into children in immigration detention.

Ten years ago, the Australian Human Rights Commission published A last resort? Report of the National Inquiry into Children in Immigration Detention. That report found that Australia’s system of mandatory immigration detention of children was fundamentally inconsistent with Australia’s human rights obligations, and that children detained for long periods of time are at high risk of serious mental harm.

The Commission has maintained an ongoing program of work relating to asylum seekers and the rights of children in immigration detention over the decade since.

The Commission has conducted regular visits to immigration detention facilities in which children are held in order to monitor whether the conditions of detention meet internationally-accepted human rights standards. Public reports detailing the Commission’s findings and concerns about conditions in immigration detention have been published every year as follows:

  • In 2006, 2007 and 2008, the Commission conducted annual visits to all detention centres on the Australian mainland and produced annual reports containing the Commission’s findings and recommendations.[9]
  • In 2009 and 2010 the Commission visited the detention centres on Christmas Island and published reports which raised particular concerns about children in detention.[10]
  • In 2010 the Commission also visited and reported on the immigration detention centres in Darwin where children were detained.[11]
  • In 2011 the Commission visited and reported on the conditions in the detention facilities at Villawood in New South Wales and in Leonora in Western Australia.[12]
  • In 2012 the Commission returned to Christmas Island to assess whether the conditions had improved for the adults and children detained there and reported its findings.[13]
  • In 2013 the Commission published Human rights standards for immigration detention, which set out minimum standards for the protection of human rights in detention.[14] These include standards relating to the detention of children.

The Commission has also made several submissions to parliamentary committees, panels and the United Nations which raised concerns about the rights of children subject to immigration detention and/or third country processing. These include submissions to:

  • Inquiry into the administration and operation of the Migration Act 1958 (August 2005)[15]
  • Inquiries into the redevelopment of the Villawood Immigration Detention Centre and the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006[16]
  • Joint Standing Committee on Migration Inquiry into Immigration Detention in Australia (2008)[17]
  • Inquiry into the Migration Amendment (Immigration Detention Reform) Bill 2009[18]
  • United Nations High Commissioner for Human Rights consultation on the protection of the rights of the child in the context of migration in 2010[19]
  • Inquiry of the Joint Select Committee on Australia’s Immigration Detention Network[20] and the Inquiry into Australia’s agreement with Malaysia in relation to asylum seekers in 2011[21]
  • Expert Panel on Asylum Seekers in 2012[22]
  • Joint Parliamentary Committee on Human Rights’ inquiry into the ‘regional processing’ of asylum seekers in 2013[23]

In 2011 the Commission intervened in the High Court of Australia in the matter of Plaintiff M106/2011 v Minister for Immigration and Citizenship,[24] a case concerning the transfer of unaccompanied children to Malaysia.

The Commission has also investigated many complaints made by (or on behalf of) children regarding alleged breaches of their human rights while in immigration detention. Between January 2009 and September 2014, the Commission received 159 complaints in relation to children in immigration detention. The President of the Commission found that there had been breaches of children’s rights in a number of these matters. The Commission has tabled numerous reports identifying human rights breaches in Parliament, including:

  • Mr Parvis Yousefi, Mrs Mehrnoosh Yousefi and Manoochehr Yousefi v Commonwealth of Australia (Department of Immigration and Citizenship)[2011] AusHRC 46[25]
  • Miss Judy Tuifangaloka v Commonwealth of Australia (Department of Immigration & Citizenship)[2012] AusHRC 53[26]
  • BZ and AD v Commonwealth of Australia (Department of Immigration and Citizenship) [2012] AusHRC 55[27]
  • Sri Lankan refugees v Commonwealth of Australia (Department of Immigration and Citizenship) [2012] AusHRC 56[28]
  • Immigration detainees with adverse security assessments v Commonwealth of Australia (Department of Immigration and Citizenship) [2013] AusHRC 64[29]
  • Abdellatif v Commonwealth of Australia (Department of Immigration and Border Protection) [2013] AusHRC 40[30]

In 2012 the Commission also conducted a national inquiry into the age assessment and detention of children engaged as crew members on vessels suspected of people smuggling. This resulted in the publication of the report An Age of Uncertainty: Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children.[31]

This monitoring work over the past decade has identified serious ongoing concerns about the detention of children in Australia.

This is despite the significant positive developments over this time period, including the removal of children from high security immigration detention centres, the creation of the Community Detention system and the use of bridging visas for asylum seekers who arrive by boat.

3.6 Structure of the report

The report is divided into four sections:

  • Section 1 (chapters 4 and 5) provides an overview of the children in detention: Who are they? How long are they detained and where? What is their background? What does the law say about detaining children?
  • Section 2 (chapters 6 – 9) describes the circumstances of children in detention at different life stages: babies, preschoolers, primary school aged children and teenagers
  • Section 3 (chapters 10 – 12) describes the circumstances of specific categories of children in detention: unaccompanied children, children of parents with adverse security assessments and children on Nauru
  • Section 4 (chapter 13) considers the continuing impacts of detention on children once released

The report includes the following appendices:

  • Appendix 1 – Review of detention policy and practices 2004-2014
  • Appendix 2 - Detailed Inquiry methodology
  • Appendix 3 – List of public submissions
  • Appendix 4 – Schedule of public hearings and witness list
  • Appendix 5 – Notices to Produce
  • Appendix 6 – Inquiry questionnaire forms
  • Appendix 7 – Departmental policies and procedures
  • Appendix 8 – Departmental responses to findings and recommendation of the Inquiry
  • Appendix 9 - Acknowledgements

[8]The Australian Human Rights Commission Act 1986 (Cth) provides that the Commission may: examine enactments for the purpose of ascertaining whether the enactments are inconsistent with or contrary to any human right and report to the Minister the results of any such examination (section 11(1)(e)); inquire into acts or practices that may be inconsistent with or contrary to any human right (section11(1)(f)(ii)); promote an understanding and acceptance, and the public discussion, of human rights (s11(1)(g)); report as to laws that should be made by the Parliament, and actions that should be taken by the Commonwealth, on matters relating to human rights (s11(1)(j));and report as to action that needs to be taken by Australia in order to comply with the provisions of the ICCPR and other international instruments (s11(1)(k)).
[9]Australian Human Rights Commission, Summary of Observations following the Inspection of Mainland Immigration Detention Facilities (2006); Summary of Observations following the Inspection of Mainland Immigration Detention Facilities (2007) and Immigration detention report: Summary of observations following visits to Australia’s immigration detention facilities (2008). At http://www.humanrights.gov.au/immigration-detention-reports-and-photos (viewed 22 September 2014).
[10]Australian Human Rights Commission, Immigration detention and offshore processing on Christmas Island (2009) and Immigration detention on Christmas Island (2010). At http://www.humanrights.gov.au/immigration-detention-reports-and-photos (viewed 22 September 2014).
[11]Australian Human Rights Commission, Immigration detention in Darwin (2010). At http://www.humanrights.gov.au/publications/immigration-detention-darwin-2010 (viewed 22 September 2014).
[12]Australia Human Rights Commission, Immigration Detention at Villawood (2011) and Immigration detention in Leonora, Western Australia (2011), both at http://www.humanrights.gov.au/immigration-detention-reports-and-photos (viewed 22 September 2014).
[13]Australian Human Rights Commission, Immigration detention on Christmas Island: Observations from visit to Immigration detention facilities on Christmas Island (2012). At http://www.humanrights.gov.au/publications/immigration-detention-christmas-island-observations-visit-immigration-detention (viewed 22 September 2013).
[14]Australian Human Rights Commission, Human rights standards for immigration detention (2013). At http://www.humanrights.gov.au/publications/human-rights-standards-immigration-detention (viewed 22 September 2014).
[15]Australian Human Rights Commission, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the administration and operation of the Migration Act 1958 (8 August 2005). At http://www.humanrights.gov.au/inquiry-administration-and-operation-migration-act-1958 (viewed 22 September 2014).
[16]Australian Human Rights Commission, Submission to the Parliamentary Standing Committee on Public Works regarding Villawood Immigration Detention Centre Redevelopment, Sydney (March 2006). At http://www.humanrights.gov.au/villawood (viewed 22 September 2014); Australian Human Rights Commission, Submission to Senate Legal and Constitutional Legislation Committee on the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (22 May 2006). At http://www.humanrights.gov.au/submission-migration-amendment-designated-unauthorised-arrivals-bill-2006 (viewed 22 September 2014).
[17]Australian Human Rights Commission, Submission to the Joint Standing Committee on Migration Inquiry into Immigration Detention in Australia (4 August 2008). At http://www.humanrights.gov.au/hreoc-submission-inquiry-immigration-detention-australia (viewed 22 September 2014).
[18]Australian Human Rights Commission, Submission to Senate Standing Committee on Legal and Constitutional Affairs on the Migration Amendment (Immigration Detention Reform) Bill 2009 (31 July 2009). At http://www.humanrights.gov.au/legal-research-and-resources-0 (viewed 22 September 2014).
[19]Australian Human Rights Commission, Submission to the Office of the United Nations High Commission for Human Rights study on challenges and best practices in the implementation of the international framework for the protection of the rights of the child in the context of migration (April 2010). At http://www.humanrights.gov.au/protection-rights-child-context-migration-2010 (viewed 22 September 2014).
[20]Australian Human Rights Commission, Submission to the Joint Select Committee on Australia’s Immigration Detention Network (2011). At http://www.humanrights.gov.au/australian-human-rights-commission-submission-joint-select-committee-australia-s-immigration (viewed 22 September 2014).
[21]Australian Human Rights Commission, Submission to the Senate Standing Committees on Legal and Constitutional Affairs Inquiry into Australia’s agreement with Malaysia in relation to asylum seekers (14 September 2011). At http://www.humanrights.gov.au/inquiry-australia-s-agreement-malaysia-relation-asylum-seekers (viewed 22 September 2014).
[22]Australian Human Rights Commission, Submission to the Expert Panel on Asylum Seekers (20 July 2012). At http://www.humanrights.gov.au/expert-panel-asylum-seekers-2012 (viewed 22 September 2014).
[23]Australian Human Rights Commission, Submission to the Joint Parliamentary Committee on Human Rights’ Examination of the Migration (Regional Processing) package of legislation (January 2013). At http://www.humanrights.gov.au/submissions/examination-migration-regional-processing-package-legislation (viewed 22 September 2014).
[24]Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144.
[25]Report into arbitrary detention, the standard of treatment on detention and rights of the child in detention (2011) AusHRC 46. At http://www.humanrights.gov.au/publications/aushrc-46-yousefi-family-v-commonwealth-australia (viewed 22 September 2014).
[26]Report into the right to be protected from arbitrary interference with family, the right to liberty and the right to have the best interests of the child considered as a primary consideration in all actions concerning children (2012) AusHRC 53. At http://www.humanrights.gov.au/publications/aushrc-53-miss-judy-tuifangaloka-v-commonwealth-australia-department-immigration (viewed 30 October 2014).
[27]Report into breaches of privacy, arbitrary detention, the right for the child to be treated with humanity and with respect for the inherent dignity of the human person and the failure of the Commonwealth to treat the best interests of the child as a primary consideration (2012) AusHRC 55. At http://www.humanrights.gov.au/publications/aushrc-55-bz-and-ad-v-commonwealth-australia-department-immigration-citizenship (viewed 22 September 2014).
[28]Report of an inquiry into complaints by Sri Lankan refugees in immigration detention with adverse security assessments (2012) AusHRC 56. At http://www.humanrights.gov.au/publications/aushrc-56-sri-lankan-refugees-v-commonwealth-australia-department-immigration (viewed 22 September 2014).
[29]Report into arbitrary detention and the best interests of the child (2013) AusHRC 64. At http://www.humanrights.gov.au/publications/immigration-detainees-adverse-security-assessments-v-commonwealth-australia-department (viewed 22 September 2014).
[30]Report into arbitrary detention and the bests interests of children (2014) AusHRC 70. At http://www.humanrights.gov.au/publications/abdellatif-v-commonwealth-dibp (viewed 22 September 2014).
[31]Australian Human Rights Commission, An Age of Uncertainty: Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children (2012). At https://www.humanrights.gov.au/publications/age-uncertainty-inquiry (viewed 22 September 2014).