Use of force in immigration detention

Use of force in immigration detention

[2019] AusHRC 130

Report into the use of force in immigration detention

The Hon Christian Porter MP

Attorney-General

Parliament House

Canberra ACT 2600

Dear Attorney

I have completed my report pursuant to s 11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth) into the issue of use of force in immigration detention and in transfers to and from immigration detention.

The issue of the use of force in immigration detention has been raised in a range of complaints against the Department of Home Affairs received by the Commission. This report deals thematically with 14 complaints.

In relation to nine of the complaints, I found that there was a use of force that was contrary to the requirements of article 10 of the International Covenant on Civil and Political Rights (ICCPR). This article provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Some of these complaints related to the use of handcuffs. In one case, handcuffs were applied to a detainee for 8 and a half hours over a significant wrist wound while he was transferred between detention centres.

In one of these complaints I also found that the conduct of male Emergency Response Team officers, when they entered the bedroom of a young woman aged 19 years old unannounced and refused her the opportunity to get dressed without them being present, was contrary to her right to privacy under article 17(1) of the ICCPR.

In another of these complaints, I found that the separation of a mother from her husband and new born baby daughter for 32 hours was contrary to the daughter’s rights under article 9 of the Convention on the Rights of the Child, and the refusal to allow the mother access to legal advice during this period was contrary to the mother’s rights under article 10 of the ICCPR.

In relation to the remaining five complaints, I did not find that a breach of human rights had been established.

I made recommendations aimed at remedying the loss or damage caused by the breaches of human rights. I also made a range of systemic recommendations aimed at reforming the way in which force is used in immigration detention.

The department provided its response to my findings and recommendations on 2 April 2019. It did not agree that any of the conduct complained of involved a breach of human rights. Nevertheless, it noted that since receiving my preliminary views in this inquiry it had made amendments to its internal policies which were directed to many of the issues that were the subject of my recommendations. The department also said that it would take further action in the future to implement other recommendations in this report.

I have set out the department’s response in Part 13 of this report.

I enclose a copy of my report.

Yours sincerely,

Emeritus Professor Rosalind Croucher AM

President

Australian Human Rights Commission

May 2019

1. Introduction to this inquiry

1. The Australian Human Rights Commission has conducted an inquiry into the issue of use of force in immigration detention and in transfers to and from immigration detention. This is a thematic inquiry, based on a number of specific complaints, that draws together observations about how force is used in a variety of different circumstances. The aim is to provide a foundation for systemic practical outcomes for people who are in immigration detention in Australia. The inquiry was undertaken pursuant to s 11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

2. The issue of the use of force in immigration detention has been raised in a range of complaints against the Department of Home Affairs (the department) received by the Commission. This report deals thematically with a number of similar complaints. Examples drawn from particular complaints are used in case studies throughout this report.

3. The particular environment of immigration detention means that the use of force may occasionally be necessary. However, the use of force on detainees directly engages their rights. In particular, people who are deprived of their liberty have the right to be treated with humanity and with respect for their inherent dignity. For this reason, any use of force must be appropriately justified. There must be a legitimate reason for using force, for example, in order to protect the safety of others, and the degree of force used should be proportionate to that legitimate reason.

4. Given the significant impact on individual rights, any use of force must be necessary in the circumstances. Force should only be used as a measure of last resort. This means that available alternatives to using force, such as negotiation and de-escalation techniques should be employed and exhausted before there is a resort to force. Force should be used only for the shortest amount of time necessary. The degree of force used should not be excessive. Certainly, force should not be used for punishment or in a way that amounts to cruel, inhuman or degrading treatment.

5. When assessing if force is necessary, resort is sometimes had to risk assessments. This report considers the way in which these risk assessments are carried out. If risk assessments are not accurate, if they are not sufficiently tailored to the particular circumstances of the detainee, or if they are not sufficiently tailored to the particular circumstances in which the use of force is anticipated, it can result in force being used too readily. The Commission welcomes the fact that, following the commencement of this inquiry, the department has decided to review its Security Risk Assessment Tool.

6. There also needs to be effective oversight of the use of force. This starts with ensuring that there are clear lines of authority for approving the use of force, that specific approval is given for each use of force, and that records of such approvals are kept. Further, the actual use of force must be appropriately documented. The best way to do this is to ensure that any pre-planned use of force (and other uses of force to the extent possible) are filmed in their entirety. Reports on the use of force should be prepared to allow for subsequent review of whether it was appropriate.

7. This report is based on an inquiry into 14 separate complaints about use of force received by the Commission. It is not an overview of every allegation of use of force in immigration detention and the Commission has not sought information about specific instances of use of force beyond the particular complaints that it has received. The Commission does not suggest that the present inquiry amounts to a comprehensive survey of all instances in which force has been used in immigration detention. However, in the course of inquiring into these complaints, the Commission has sought information and documents about how similar cases are generally dealt with. Findings have been made in relation to each of the 14 complaints. The recommendations made in this report are based on these findings and the themes that emerge from a comparison of these complaints.

8. The inquiry primarily considers whether instances of use of force were consistent with the requirements of article 10 of the International Covenant on Civil and Political Rights (ICCPR) which provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Similar obligations are contained in article 37(c) of the Convention on the Rights of the Child (CRC). The content of these rights is informed by other principles including the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of all Persons under Any Form of Detention.

9. Most of the complainants were, or are, asylum seekers and have sought protection in Australia. Some of the complainants have been removed from Australia since making their complaint. With one exception, I have made a direction under s 14(2) of the AHRC Act prohibiting the disclosure of the identities of the complainants and their family members in connection with their complaints. In this report, each of them has been given a two letter pseudonym. The one exception is Mr Sayed Abdellatif. Mr Abdellatif asked that his identity be made public. The Commission has previously reported in relation to a complaint made by him about his detention at Villawood Immigration Detention Centre where he remains detained (Abdellatif v Commonwealth (DIBP) [2014] AusHRC 70).

10. On the basis of this inquiry, I have made findings about the application of force in a number of individual complaints that can be grouped as being of the same kind. My findings in relation to these complaints are as follows.
    
    1. In cases dealing with the use of handcuffs when transferring people between immigration detention centres:
       
       1. Mr AY was required to wear handcuffs over a significant wrist wound for at least 8 and a half hours during a transfer between immigration detention facilities in Sydney and Perth. There are no records requesting approval for the use of handcuffs which explain why it was considered necessary to handcuff him and no records containing an approval for the use of handcuffs. There are no records that suggest that medical practitioners were asked for, or gave, any advice about whether Mr AY should be handcuffed for transport. There are no records that suggest that restraints were required by the captain of the flight. Two days after the transfer, Mr AY’s skin was inflamed up to 20cm from his wrist and he was reporting significant pain. I find that the use of handcuffs in these circumstances contributed to Mr AY’s pain and discomfort and was contrary to his rights under article 10 of the ICCPR to be treated with humanity and with respect for his inherent dignity.
       2. Mr BC was handcuffed after he physically resisted officers prior to boarding a plane from Darwin to Nauru along with his two sons. The captain of the flight asked that he be restrained and he was handcuffed for the duration of the flight. A log of the flight shows that the handcuffs were checked every 15 minutes. On the basis of the material provided to me, I am not satisfied that the level of force used was inappropriate in the circumstances.
       3. Mr CE was required to wear handcuffs for more than 12 hours during flights between Christmas Island and Melbourne via Perth. His individual security assessment did not justify the application of restraints. The department has suggested that he was restrained, not because of the risk that he presented individually, but because he was being transferred with other detainees who required restraints. The department’s response also suggests that force was used on Mr CE, at least in part, because he was Vietnamese (see paragraphs 170 to 171 below). I am not satisfied that the use of restraints on Mr CE was necessary and I find that the application of handcuffs for more than 12 hours was contrary to his rights under article 10 of the ICCPR to be treated with humanity and with respect for his inherent dignity. I am also concerned that Mr CE’s ethnicity was a factor that was taken into account in the decision to restrain him.
    2. In cases dealing with the use of handcuffs to travel to court and medical appointments:
       
       1. Mr DB was required to wear handcuffs to attend a number of court appointments in relation to an alleged assault. Given that the allegation was one of violence, I am not satisfied that the requirement for mechanical restraints was inappropriate. However, there were process problems in seeking approval for restraints to be used. On two occasions, restraints were used prior to Serco receiving approval for their application. On another occasion, Mr DB was not medically cleared by International Health and Medical Services (IHMS) prior to restraints being used as there were no IHMS staff on site. Mr DB was ultimately acquitted of the charges.
       2. A few months later Mr DB was again required to wear handcuffs in order to attend external medical appointments. Having considered in detail Mr DB’s security assessments and the incidents he was involved in while in detention, I find that this requirement was not reasonable in the circumstances or proportionate to relevant risks. I am particularly concerned that there do not appear to be any documents that consider whether the requirement that Mr DB be restrained was appropriate given the medical risks that he faced if treatment was not provided. I find that the requirement that he be handcuffed to attend these medical appointments was contrary to his rights under article 10 of the ICCPR to be treated with humanity and with respect for his inherent dignity.
       3. Mr Sayed Abdellatif was required to wear restraints to attend medical appointments in October and November 2015. At the time he had a ‘high’ security risk assessment as a result of an alleged threat to staff. He refused to wear restraints and did not attend these appointments. The department subsequently reviewed and downgraded his risk assessment. On the material available to me, I am not able to be satisfied that the requirement that he be restrained was inappropriate.
    3. In a case dealing with the use of a face mask during an attempted removal from Australia:
       
       1. Mr EJ was required to wear a face mask during an attempt to deport him to China on 19 December 2014. On the basis of the material provided by the department and Mr EJ, I am not satisfied that Mr EJ made any threat, whether direct or indirect, to bite or spit at escort staff. I find that the decision to authorise the use of a face mask on Mr EJ for his escort to the flight and, if necessary, for the duration of the flight from Australia to China, was disproportionate to any risk faced and was contrary to his rights under article 10 of the ICCPR to be treated with humanity and with respect for his inherent dignity.
    4. In cases dealing with the use of force within immigration detention facilities:
       
       1. Force was used on Mr FE while he was detained at Christmas Island Immigration Detention Centre. I find that force was used on him in a situation where it was unnecessary. He had already been contained inside an accommodation block and officers opened the door and entered the room in order to use force on him. I am concerned about the application of downward force to Mr FE’s head while it was in contact with the concrete floor. I find that this caused his implanted tooth to be dislodged. I find that these acts were contrary to Mr FE’s rights under article 10 of the ICCPR to be treated with humanity and with respect for his inherent dignity.
       2. Force was used on Mr GH to restrain him and escort him to an interview room. I find that this use of force was proportionate to the need to maintain good order at Maribyrnong Immigration Detention Centre. The use of force followed allegedly disruptive behaviour by Mr GH and a failure by him to voluntarily accompany officers to the interview room.
       3. Force was used on Mr HF at the conclusion of an interview with him about the need for him to move rooms while he was detained at Maribyrnong Immigration Detention Centre. I find that the actions of Serco officers who had previously been interviewing him caused the situation to escalate into an avoidable use of force. I find that force was not used as a last resort and that other communication, negotiation and conflict de-escalation strategies could and should have been attempted. The failure to use force as a last resort was contrary to Mr HF’s rights under article 10 of the ICCPR to be treated with humanity and with respect for his inherent dignity.
       4. Mr JB was subject to a pat search during a search of his room. I find that the conduct of Serco officers in conducting a pat search of him was not inconsistent with or contrary to his human rights.
11. I have also considered complaints by four family groups about an operation in April 2015 during which force was used to remove 19 detainees from Wickham Point immigration detention facility and transfer them to detention facilities in Melbourne. In relation to these complaints, my findings are as follows:
    
    1. In the case of the complaints on behalf of Mr KE, Mrs KF and their three children Ms KG, Master KH and Master KI:

• • 1. 1. I find that flexi-cuffs and later mechanical handcuffs should not have been applied to Mr KE. This was a 46 year old father of three with a low security rating. Prior to April 2015 he had only one incident of ‘aggressive/abusive behaviour’ in 20 months of detention. He was a highly compliant detainee. The department’s Detention Services Manual says that restraints should only be used on detainees who have a serious or violent criminal history, who have a history of escape or who potentially pose a high risk as indicated by their individual risk assessment. None of these criteria applied in relation to Mr KE.
       2. I find that flexi-cuffs and later mechanical handcuffs should not have been applied to Mr KE’s 17 year old son Master KH. This was a minor who did not have a history of violence and whose risk rating was medium. Relevant human rights principles provide that force should be used on children only in exceptional circumstances and where all other control methods have been exhausted and failed. There is no evidence that Master KH was given the option of walking cooperatively with officers to the muster area. Rather, it appears that flexi-cuffs were applied at the first available opportunity.
       3. I am not satisfied that any disproportionate use of force was applied to Mrs KF or their other two children. However, I note that the display of force during the course of this operation was likely to be distressing for their 9 year old son, Master KI.
  1. In the case of complaints on behalf of Ms LC, her husband and their one month old baby daughter:
     
     1. Ms LC was escorted from her room to the muster area without the need for restraints but was then handcuffed for an hour and 40 minutes while being transferred from the detention facility to the police watch-house along with a number of other detainees. She was not charged with any offence. Detainees were merely held at the watch-house pending transfer to Melbourne the following day. Ms LC was separated from her husband and baby for 32 hours. Ms LC asked to speak with a lawyer and this request was denied. I find that this treatment of Ms LC was contrary to her rights under article 10 of the ICCPR to be treated with humanity and with respect for her human dignity, and with the rights of her baby daughter under article 9 of the CRC not to be separated from her mother.
  2. In the case of the complaints on behalf of Mrs MD and her husband Mr ME:
     
     1. Mr ME did not have any history of abusive, aggressive or violent behaviour. He had only recently been returned to immigration detention after five weeks as an intensive psychiatric inpatient in a private hospital. At the time of the extraction of families from Wickham Point, his diagnosis was of a schizoaffective disorder, bipolar type. I am not satisfied that his mental health issues were sufficiently taken into account during the extraction. I find that the use of flexi-cuffs and mechanical restraints on Mr ME was not appropriate in the circumstances and was contrary to his rights under article 10 of the ICCPR to be treated with humanity and with respect for his inherent dignity.
  3. In the case of the complaints on behalf of Mrs NL, her husband Mr NM and their three month old son:
     
     1. Ideally, Mrs NL would have been permitted to carry her son during the course of the extraction. It appears from the CCTV that Mrs NL was providing some resistance to the officers escorting her. The officers appear to use no more force than is necessary in the circumstances. As a result of the resistance given by Mrs NL, I am not satisfied that it was disproportionate for Serco to determine that she be physically escorted by two officers with a third officer in close proximity carrying her baby.

12. The complaint on behalf of Mr KE, Mrs KF and their three children Ms KG, Master KH and Master KI also raised issues in relation to arbitrary interference with privacy. In relation to this complaint, I make the following findings:
    
    1. At least four masked ERT officers entered the bedroom of Ms KG, then aged 19, unannounced before dawn and refused her the opportunity to get dressed without them being present. Ms KG was not sharing this room with anyone else. Serco had assessed her as being a low risk detainee, including a low risk of becoming aggressive or engaging in self-harm. I find that the way in which this action was conducted was neither reasonable nor proportionate to a legitimate purpose. Alternative ways of proceeding were readily available that would not have involved this very significant interference with her privacy. For example, a female officer not wearing personal protective equipment (PPE) could have knocked on the door, announced who she was and entered the room alone to give Ms KG the opportunity to preserve her privacy. I note that a female officer, not wearing PPE, accompanied Ms KG’s 9 year old brother as he was led through the corridors during the extraction. I find that the conduct of the ERT officers in this situation was contrary to Ms KG’s right to privacy under article 17(1) of the ICCPR.
13. These particular incidents, along with the Commission’s experience in inspection of places of immigration detention, raise a number of systemic concerns. In particular, I am concerned about the following issues.

Risk assessments

1. Changes to Serco’s security risk assessment tool (SRAT) in April 2015 mean that certain classes of people were deemed to be high risk, regardless of their individual circumstances. For example initially all physically fit single adult detainees were required to be restrained during all escorts in the first 30 days of their detention. While the position has been modified since then, the current position still involves treating some people as high risk regardless of their actual level of risk.
2. I am concerned that the SRAT may not be sufficiently nuanced to avoid unnecessary use of restrictive measures. Over time, the tool has become increasingly structured in an attempt to remove individual discretion by those administering it. On one view, this could reduce the risk of arbitrary decisions influenced by the views of individual officers. However, the outputs from the tool (the security assessments) are only as good as the data that are entered into it. The predominant data are numerical counts of incidents of a particular type as reported by Serco. If the data is not of high quality then the security assessments will not be accurate. Several of the case studies raise questions about the quality of the inputs.
3. I am concerned about the way in which incidents are categorised for the purposes of the SRAT. For example, a commonly used category is ‘abusive/aggressive behaviour’ which encompasses both the use of bad language and conduct that is physically aggressive (but that does not amount to an assault). A count of incidents of this type is used as a data point when calculating a risk rating for ‘aggression/violence’ where the underlying conduct (eg bad language) may not have any element of physical aggression or violence to it and may be an understandable product of long term immigration detention.

Use of restraints

1. Unlike equivalent guidelines in the UK, Australian guidelines about the use of restraints in immigration detention lack clarity about how to deal with situations where health professionals recommend that restraints not be applied.
2. Similarly, there appears to be a lack of clarity about the role of IHMS when assessing whether or not restraints should be applied. Despite a contractual requirement to consult IHMS prior to any planned use of force, there do not appear to be any clear guidelines about how referrals to IHMS are to occur or about what to do once the advice is received. Further, there does not appear to be any system of record keeping relating to advice provided by IHMS. On more than one occasion, medical notes record the views of IHMS officers that they have no control or influence over the question of whether restraints are to be applied.
3. In some operations involving the planned application of restraints to a number of different people, there has been a lack of focus on whether restraints should be applied to particular individuals within that group. This is apparent in the case study involving Mr CE but is most clear in the Wickham Point extraction. It is not sufficient in such cases for a blanket approval to be given for restraints to be applied to any person. The circumstances of individuals to be restrained still need to be taken into account individually.
4. I am concerned about examples of restraints being applied to people with low security risk ratings, to a man diagnosed with mental illness who had no history of aggressive or violent behaviour, to a 17 year old boy, and to two men in wheelchairs.
5. I am concerned that the department has apparently authorised the use of spit hoods on detainees in circumstances where Serco officers are not provided with any training in their use, including in assessing whether or not the use of a spit hood is appropriate.

Record keeping

1. There are several examples of poor record keeping. In particular, there does not appear to be a clear protocol about recording instructions from the captain of an aircraft about the use of restraints during flight. On more than one occasion, such records were not available.
2. Some of the specific complaints show a laxity in either seeking or granting approval for the use of restraints. For example, in two cases Mr DB was restrained on escort prior to approval for the use of restraints being received.
3. Detainees who refuse to be handcuffed to attend medical appointments outside of the detention facility have been asked to sign forms that say that they have ‘refused treatment’. Several detainees have refused to sign such forms on the basis that they want treatment but refuse to be handcuffed in order to receive it.
4. On more than one occasion involving planned use of force, handheld cameras used to record the incident were turned on after the use of force had already commenced.