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Response to the Australian Human Rights Commission’s 2008 Immigration Detention Report

 

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Introduction

The Department of Immigration and Citizenship (DIAC) welcomes the release of

the 2008 Immigration Detention Report by the Australian Human Rights

Commission (AHRC) and acknowledges the important independent scrutiny of the

immigration system provided by the AHRC.

The Department appreciates the Commission’s recognition of many of the

immigration detention reforms that have taken place in recent years. The 2008

report also highlights a number of areas requiring further improvement –

DIAC is already working to address a large number of these issues and will give

active consideration to many of the recommendations in the AHRC report in the

ongoing reform process.

Immigration detention is an integral part of Australia’s border

security and an important component in ensuring the integrity of the migration

program.

Immigration detention has attracted a considerable degree of scrutiny and

comment, and has been subject to considerable reform, over recent years. The

Government’s New Directions in Detention policy, which was announced by

the Minister for Immigration and Citizenship, Senator Chris Evans, on 29

July 2008, represents the latest and most significant reform of

Australia’s immigration detention system.

The New Directions in Detention policy provides for seven Key Immigration

Detention Values to guide detention policy and detention practices into the

future.

Key Immigration Detention Values

1. Mandatory detention is an essential component of

   strong border control.
   

2. To support the integrity of Australia’s immigration program, three

   groups will be subject to mandatory detention:

   1. all unauthorised arrivals, for management of health, identity and

      security risks to the community

   2. unlawful non-citizens who present unacceptable risks to the community

      and

   3. unlawful non-citizens who have repeatedly refused to comply with their

      visa conditions.
      

3. Children, including juvenile foreign fishers and, where possible, their

   families, will not be detained in an immigration detention centre (IDC).
   

4. Detention that is indefinite or otherwise arbitrary is not acceptable and

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

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

5. Detention in IDCs is only to be used as a last resort and for the

   shortest practicable time.
   

6. People in detention will be treated fairly and reasonably within the law.
   
7. Conditions of detention will ensure the inherent dignity of the human

   person.
   

In giving effect to the Government’s reforms, it is the

Minister’s intention to initially implement administrative and regulatory

reform and then pursue possible legislative changes. Reflecting this approach,

DIAC has already implemented a number of new policies and practices, while

others are under active review.

A major stakeholder consultation process to inform the implementation of the

New Directions in Detention reforms was recently completed. In addition, as part

of the broad reform process, DIAC is already taking into account the

recommendations in the first report of the Joint Standing Committee on

Migration’s review of immigration detention, published in December 2008.

Many of the AHRC’s recommendations in the 2008 Immigration Detention

Report will similarly be given active consideration.

Explanatory Note: In DIAC’s response to the 2008

Immigration Detention Report, the Commission’s recommendations have

been reproduced and appear in grey text boxes. Footnotes have also been used to

reference the recommendations as they appeared in the version of the

Commission’s report provided to DIAC on

10 December 2008.

The

initial chapters of the Commission’s report deal with an introduction, an

overview, methodology and background. The report summarises its recommendations

in Chapter 3 and elaborates on recommendations and observations from Chapter 6

onwards.

6 Monitoring of

standards in immigration detention

6.1 Standards for conditions and treatment

DIAC already has put in place mechanisms to

ensure minimum standards for the treatment of people in immigration detention as

detailed below.

Detention Value 6 states: ‘People in detention will be treated fairly

and reasonably within the law,’ and Detention Value 7 states:

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

person.’

DIAC has implemented, and continues to develop, instructional material

(Detention Instructions) that direct how departmental staff and service

providers must interact with and support people in immigration detention. These

instructions are reviewed regularly to ensure they are up to date and represent

best practice. Adherence to these instructions is stipulated in Chief Executive

Instruction 30. DIAC’s contract management area also monitors service

providers’ performance to ensure compliance with Detention

Instructions.

In June 2007, the Royal Australian College of General Practitioners published

the Standards for Health Services in Australian IDCs. These standards

stipulate the level of health care that people in immigration detention can

expect to receive. While the standards are being adhered to currently, new

arrangements are currently being negotiated that will compel DIAC’s health

services providers to adhere to these standards.

Broad reform of the immigration detention framework to reflect the

Government’s New Directions in Detention policy and Key Immigration

Detention Values is currently being progressed. Detention Values 6 and 7 are

particularly relevant to the Commission’s recommendation concerning the

standards for conditions and treatment of persons in immigration detention.

Detention Value 6 states: ‘People in detention will be treated fairly and

reasonably within the law,’ and Detention Value 7 states:

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

person.’

As indicated above, it is the Minister’s intention to initially

implement administrative and regulatory reform and then pursue possible

legislative changes to reflect the Government’s policies. DIAC undertakes

to consider the Commission’s recommendation when progressing policy

development in these areas and prior to embarking on possible legislative

changes.

6.2 External scrutiny of immigration detention facilities

The Australian Government has already indicated

that it is working toward acceding to the Optional Protocol to the Convention

against Torture.

Given the importance of treaty obligations, a number of procedures must be

completed before Australia can accede to the Optional Protocol, as it is

important to ensure domestic legislation, policies and practice comply with the

treaty obligations.

Consultations with states and territories are continuing and possible options

for a national mechanism are the subject of these discussions. The Government

has also sought the views of non-government organisations.

A whole-of-government approach will be taken in completing and assessing the

results of consultations before preparing a National Interest Analysis that will

be tabled in Parliament. Following tabling, the Joint Standing Committee on

Treaties will hold a public inquiry.

7 Number of people in detention

8 Length and uncertainty of detention

As indicated above, it is the Minister’s

intention in implementing the Government’s New Directions in Detention

policy and Key Immigration Detention Values to initially implement

administrative and regulatory reform and then pursue possible legislative

changes. DIAC has already implemented a number of new policies and practices,

while others are under active review. DIAC undertakes to take the

Commission’s recommendations regarding the length and uncertainty of

detention into account prior to embarking on possible legislative changes.

Elements of the Commission’s recommendations regarding the length and

uncertainty of detention are also reflected in the recent recommendations of the

Joint Standing Committee on Migration and are dealt with in the

Government’s New Directions in Detention policy.

The retention of mandatory detention is a matter of Government policy. The

Government maintains a commitment to a system of mandatory detention, as

reflected in Key Immigration Detention Values 1 and 2:

1. Mandatory detention is an essential component of strong border control.
   
2. To support the integrity of Australia’s immigration program, three

   groups will be subject to mandatory detention:

   1. all unauthorised arrivals, for management of health, identity and

      security risks to the community

   2. unlawful non-citizens who present unacceptable risks to the community

      and

   3. unlawful non-citizens who have repeatedly refused to comply with their

      visa conditions.
      

Key Immigration Detention Value 5 states that

‘Detention in IDCs is only to be used as a last resort and for the

shortest practicable time.’ As the Minister stated on 29 July

2008, under the Government’s reforms the onus of proof will be

reversed in determining the ongoing detention of a person. A departmental

decision-maker will have to justify why a person should be detained against

these values that presume that that person should be in the community.

Appropriate procedures to effect this Key Immigration Detention Value are being

considered and a review of the Client Placement Model is currently underway.

The Government’s New Directions in Detention reforms also include

arrangements to increase the transparency and robustness of detention review.

Key Immigration Detention Value 4 states: ‘Detention that is

indefinite or otherwise arbitrary is not acceptable and the length and condition

of detention, including the appropriateness of both the accommodation and the

services provided, would be subject of regular review.’ A new senior

departmental officer review every three months is being established to determine

whether the further detention of an individual is justified. Additionally, a

six-monthly review of detention placements by the Commonwealth Ombudsman will be

instituted.

The possibility of further changes to review arrangements for detention,

including the introduction of judicial review, will remain under consideration

as the arrangements already announced by the Government take effect.

9 Staff attitudes

The current Detention Service Provider (DSP),

Global Solutions Limited (GSL) is contractually required to provide appropriate

training to its staff. As part of the Initial Training Course (ITC), GSL has a

module specifically dealing with the human rights of people in immigration

detention. In addition, all GSL officers must accept and sign the GSL Code of

Conduct that encompasses respect for human rights.

The tender documents for the new contract encompass an increased focus on the

training requirements for DSP and DIAC staff. Additionally, roll-out of

instructional materials for use by staff working in the immigration detention

environment is planned to enhance the effective use of these materials. It is

envisaged that there will be a role here also for the Training College.

DIAC staff members working in immigration detention facilities are given

a comprehensive four-week training program. The Immigration Training

College delivers this training and provides accreditation to Certification IV

level in its current course.

Both the DIAC and GSL training programs cover issues such as humane

treatment, cultural sensitivity and dealing with victims of torture and

trauma.

Importantly, all detention activities and policies are underpinned by the

Government’s New Directions in Detention policy and the Key Immigration

Detention Values. Detention Value 7 states: ‘Conditions of detention

will ensure the inherent dignity of the human person.’

In implementing the Government’s New Directions in Detention policy,

DIAC acknowledges that there is also scope to improve the manner in which it

deals with people in immigration detention who come from a diverse range of

cultures and experiences. Accordingly, DIAC is striving to identify and

implement improvements as part of the current review of detention policy.

10 Mainland IDCs: cross-cutting concerns

10.1 Detention infrastructure and environment

DIAC shares the Commission’s concerns

surrounding some infrastructure at Villawood Immigration Detention Centre

(VIDC). The 2008-09 Budget included $1.1 million for a feasibility study for

the redevelopment of the VIDC. This redevelopment is in the planning and

approval stage following the Government’s approval to progress the project

for consideration in the 2010 Budget context.

Current network plans are for Villawood to be a referral centre for

higher-risk cases. The size and configuration of the centre will be examined in

detail as part of the design development.

In addition, a total of $7 million has been approved for urgent interim works

at VIDC including the refurbishment of Stage 1. The works will improve the

amenity for clients accommodated in Stage 1, create a better visits experience

and includes refurbishment of internal spaces and the outdoor recreation areas

and courtyards. Other works include refurbishment of the Management Support

Unit (MSU), part removal and realignment of fences in Stages 2 and 3.

Early works have been completed in the MSU and Stage 1 concurrently with the

design and tendering for the remainder of the works which will commence in

January 2009.

Perth Immigration Detention Centre (IDC) is being refurbished and is midway

through construction. The refurbishment will provide wide-ranging improvements

to amenity and operations of the Centre, within the confines of the current

site.

As part of the refurbishments being undertaken at the Perth IDC there will be

more room allocated for providing specific programs, such as religious

activities. One of the previous dormitory rooms is planned to be refurbished

into a multi-purpose room. This room will be available for uses such as

recreational, educational and religious activities.

10.2 Physical health care

(a) Availability and quality of health care

As is the case in the wider Australian community,

there can sometimes be delays in obtaining appointments with specialists. As a

standard process, people in immigration detention are regularly updated on the

status of any referral to specialists, and are notified both orally and in

writing as soon as specialist appointment details are known. Where a person in

immigration detention’s request for medical treatment is considered

unwarranted by medical staff, the person is immediately advised of the reason

why.

DIAC’s current Health Service Provider at IDCs is International Health

and Medical Services (IHMS). According to IHMS’s Standard Operating

Policies and Procedures, if a person in immigration detention wishes to seek a

second opinion, unless there is a clinical indication for this to occur, this

would be facilitated at the person’s own expense. IHMS staff is able to

assist clients in making any external appointments. Additionally, DIAC will

usually agree to meet any costs associated with providing the DSP escorts for an

off-site appointment. Where opinions as a result of third-party assessments

conflict with advice provided by IHMS, all efforts are taken to resolve this

conflict in consultation with the Medical Director of IHMS.

(b) Procedures prior to leaving detention

To ensure that people have some continuity of

health care in either the country to which they are returning, or the Australian

community, all people being discharged from immigration detention are provided

with a Health Discharge Assessment. This provides a summary of the

person’s medical history and current health status.

Where a person is being removed from Australia or transferred interstate by

aircraft, the Health Discharge Assessment will provide a fitness to travel

certification. In some situations, consideration is given to having the

discharge summary translated into the client’s nominated language. An

example would be if the client has a significant health condition for which

they require follow up with a specialist in the country to which they are

returning. Where clinically necessary any relevant medical referrals, records

and/or test results are provided.

In regard to follow-up care in the community or in the country to which a

person may be returning, arrangements are put in place where this is clinically

indicated. For follow-up care in the return country, the person is usually

provided with the contact details of an appropriate provider and encouraged to

contact the provider on their return. From experience, this system has proven

more successful than making an actual appointment for a person.

Generally, people leaving immigration detention are physically fit and

healthy. As such, Departmental policy currently states that a fitness to travel

certification remains valid for 28 days from the date of the person’s last

physical examination by a registered nurse of general practitioner. However,

where there is an obvious or suspected change in a person’s health status

within this 28 day period or the person requests an updated physical examination

this will be undertaken by the Health Services Provider, at which time the

person’s fitness to travel certification will be reassessed.

10.3 Mental health care

(a) Availability of mental health staff

DIAC currently engages Professional Support

Services (PSS) to provide psychological and counselling services within IDCs.

DIAC regularly meets with PSS to discuss contractual issues and, most

importantly, ensure that appropriate care is provided.

DIAC is currently reviewing psychological and other counselling service

arrangements under the Psychological and Other Counselling Services Agreement to

ensure clients are well supported and provided with an appropriate level of

mental health care. Currently psychological and other counselling services are

based on centre occupancy levels; however this is used as a guide only. The

Agreement allows PSS staff to use their own judgement and provide additional

services when required.

(b) Mental health referrals and recommendations

DIAC has procedures in place under which the

physical and mental health of all people entering immigration detention is

assessed by formally accredited health professionals. The Department has case

management support and health management practices in place for all people in

immigration detention, including those clients who have, or are suspected to

have, significant mental health concerns or who have experienced torture or

trauma. If a person is found to be in need of psychological support or other

health care to address the effects of torture and trauma, this is taken into

account when they are placed within the detention network, particularly in

respect of whether they are considered for Community Detention.

DIAC’s Health Services Provider advises DIAC of any person in detention

who has, or is suspected to have, significant health concerns. In most

instances, these people are placed outside an IDC. The standard process for

people in immigration detention who are suspected to have torture and/or trauma

issues is that the Health Services Provider advises DIAC of this, and the person

is subsequently referred for consideration of Community Detention as a priority.

Delays sometimes experienced with these referrals usually stem from delays in

obtaining appointments with specialist torture and trauma providers, who assess

clients and provide summary reports to assist the referral process. The

procedures around this have been improved recently so that referrals can now be

made based solely on written advice from the Health Services Provider, rather

than waiting for specialist reports.

Client reviews are conducted regularly, and decisions are made on a

case-by-case basis in relation to client placement and support needs, or

possible bridging visa grants. The circumstances of a person’s detention

will be reviewed by a senior departmental officer every three months. The

Department is currently developing the methodology and format of the three month

senior officer review of detention in the context of the Government's new Key

Immigration Detention Values. The circumstances of a person’s detention

may be reviewed more often if new information comes to light or circumstances

change.

The Client Placement Model that is used to determine the most appropriate

form of detention states:

Assessment and consideration should be given to a person’s physical and

mental health (including any physical disabilities and/or evidence that the

person may have suffered torture or trauma). Health information and

recommendations regarding the medical care arrangements for a person in

detention will be made by the health services provider and may occur following

the induction of a person into the detention accommodation location or as part

of new information that may trigger a fresh placement assessment. Together with

other factors of an individual’s case, it may be appropriate for people

with special health needs that cannot be cared for in an IDC to be considered

for placements such as alternative detention or community detention.

(c) Suicide and self-harm observation

It is expected that new purpose-built observation

rooms in stage 1 at the VIDC will be completed in mid 2009. The present

observation rooms located in Stage 1 of Villawood will be developed into

high-care accommodation.

The existing MSU in stage 3 is also to be modified and extended as high care

and observation accommodation. This will negate the requirement to transfer

stage 2 and 3 people in immigration detention to stage 1 for observation. These

works are scheduled for completion by July 2009.

In 2009, DIAC will undertake water mitigation

works that will make it possible to create grassed areas at Northern IDC.

The Perth IDC courtyards are being redesigned as part of the refurbishment.

While not large and grassy, they will be enlarged, purpose designed for

effective exercise and human interaction and surfaced artificially as is

appropriate for more intensive use.

At Villawood, the Stage 1 outdoor sport area is being refurbished and the

grassy area between Dormitories 2 and 3 is being redesigned completely for more

effective use.

All people in immigration

detention in Villawood have access to the soccer pitch. Swimming is planned to

be offered to people when a suitable location is identified. Group excursions

that may include sports activities may be introduced after the refurbishment and

if the number of people in the centre increases.

GSL is contractually required to provide access

to appropriate reading material. This is achieved through a variety of means

including mobile library services, excursions to local library facilities and a

stock of onsite material. DIAC regularly checks with GSL to ensure these

facilities are provided.

Recently, DIAC instructed GSL to provide strategies on how to improve the

quality and use of the VIDC library.

The Northern IDC has an arrangement with local Darwin City Council libraries

to borrow books in Bahasa, Indonesian and Mandarin, as required. A stock of

books loaned from the libraries is held on site at the Northern IDC and

exchanged each month. Books are exchanged more frequently if there are large

numbers or prolific readers in the centre. People in immigration detention have

also been taken to the local library to select their own reading material. A

recent Mandarin speaking person was reading about twenty books each week, and

was taken to the library weekly. After he had exhausted the local library

supplies, inter-library loans were arranged. GSL has also purchased books in

Indonesian, Mandarin and English, which are held in the recreation rooms on site

and can be signed out by people to read. Additional books in Indonesian

language suitable for juveniles have been purchased for juvenile foreign fishers

who are held in alternate detention in Darwin. Northern IDC’s on-site

library is being expanded over time. Indonesian and Mandarin daily papers are

ordered for the centre and are delivered throughout the week. The Indonesian

weekly magazine Tempo is provided each week.

Maribyrnong’s library area has been completed and people have permanent

access to foreign-language reading material. The centre has an ongoing

relationship with the local library service to provide people with

foreign-language books.

The requirement for reading material can be met by various means and at times

books have not been used by people in immigration detention. In Maribyrnong for

example, there has been extensive use of on-line reading material since the

rollout of computers into each zone and books are made available and used as

part of the education program.

Upgrades are in place for Perth IDC with a

ventilated covered area and new equipment. Improvements to Villawood Stage 1

gym facilities will be included as part of works during early 2009. Maribyrnong

weather protection and privacy improvements are currently unfunded and will be

considered as part of the 2009 budget review.

Historically, longer-term people in immigration

detention have not been given access to formally accredited courses offered by

tertiary institutions which lead to a substantive qualification. If allowed,

this would represent an inequity for lawful full-fee paying students and would

have the potential to undermine Student visa policy objectives.

The Government’s Key Immigration Detention Value 5 states that

“Detention in IDCs is only to be used as a last resort and for the

shortest practicable time”. As a consequence of this policy, it is

expected that the incidence and duration of detention will be significantly

reduced, further rendering it impracticable for people in immigration detention

to embark on a course of study of extended duration.

DIAC provides a range of activities and programs, including educational

programs, to people in immigration detention. Adults may undertake community

college, vocational or adult education courses and may obtain a certificate or

other accreditation for their studies. Generally, the educational programs

accessed by people in immigration detention are of a short duration, usually up

to four months.

Recreational activities are provided to people accommodated at the Northern

IDC. The centre’s caseload, mainly illegal foreign fishers who remain in

immigration detention for only a couple of weeks, means that it is usually

impracticable to commence structured educational programs. While Northern IDC

has commenced a procurement process for a service provider to conduct

conversational English classes, the demand for structured English as a second

language and computing courses is low because of the short duration of most

peoples’ stay and because they generally do not have a high level of

English literacy or access to computers when they return home.

The computer area in Perth has also been used as a classroom as the people in

immigration detention numbers have been very low. An alternate computing area

will be provided in the new multi purpose dining room.

A scope of the works for Stage 1 of Villawood has been tendered and includes

designs for improved educational facilities in the central area of Stage1.

These are scheduled for construction later in 2009.

While no child is accommodated in an IDC, in accordance with Government

policy, all school-aged children in community detention attend primary or

secondary school.

A large number of excursions are facilitated for

people in immigration detention, including those who have had their visas

cancelled under section 501 of the Migration Act 1958 (the Act). People

in immigration detention can request an excursion, including people who have had

a visa cancelled on character grounds. DIAC policy and procedures state that

the DSP and the department will ensure that evaluation of the request is

progressed quickly.

Excursion requests are considered according to necessary and current risk

assessments on a case-by-case basis. Generally, if the DSP is given enough lead

time, there are few restrictions relating to requests for excursions.

DIAC is currently reviewing procedures for excursions to ensure they better

reflect the Government’s New Directions in Detention policy and the Key

Immigration Detention Values. DIAC will consider the Commission’s

recommendations, including those concerning resources allocated to excursions,

as part of this review.

There has been a progressive increase in the number and frequency of

organised group external excursions from VIDC over the past twelve months.

Excursions have also been progressively expanded to include people classified

across the range of risk levels. Northern and Perth IDCs welcome and will

facilitate home visits if requested. Both Northern and Perth IDCs already

actively facilitate individual excursions.

Restraints are only used after a thorough risk

assessment is conducted and following verbal approval from the DDSP’s

Director of Detention Services. If, as a result of that risk assessment, it is

decided that restraints will be used to mitigate risks, then they are applied

for the minimum period required. Officers are encouraged to continually observe

any change in circumstances and adjust the mitigation strategies in accordance

with DIAC’s and the DSP's clear guidelines on restraints and their use.

Presently, there are no plans to formally review these guidelines, but DIAC

and the DSP continually strive to implement recognised best practice principles

in all areas, and the use of restraints is no different.

The DSP's staff is required to undertake extensive training. Aspects of this

training include both the use of restraints and, importantly, other methods of

conflict de-escalation and behavioural management. DIAC and the DSP work

together very closely to maintain and respect peoples’ dignity while

ensuring the safety and welfare of others.

DIAC has a scheduled program in place to install

additional internet facilities into centres.

Five extra personal computers and internet facilities will be installed at

the Northern IDC in early 2009.

The five internet facilities at Perth IDC are sufficient to cater for the

current low numbers at the centre. These are being supplemented with additional

outlets in the dining room to improve access at all hours.

DIAC will continue to monitor the level of computer and internet usage and,

if the need arises, install more internet stations.

All people entering immigration detention are

given an orientation and introduction to the services available to them in each

facility.

Currently, people in immigration detention are informed of the reason for

their detention, for example if they have overstayed their visa or their visa

has been cancelled, and it is explained why they are not currently eligible for

the grant of a bridging visa. On entering immigration detention, people are not

generally informed of why they have been placed in a particular form of

detention, but if a person is moved from one form of detention to another, they

are notified in writing and encouraged to discuss this with departmental

staff.

DIAC is currently reviewing the client placement model to better reflect the

Government’s New Directions in Detention policy. As part of this review

DIAC undertakes to consider the Commission’s suggestions with a view to

ensuring that people in immigration detention are more clearly informed of the

circumstances of their detention.

A revised client placement model is due for full implementation during

2009.

Case managers are required to provide active

management of the resolution of all cases of people in immigration detention.

While there are no specific instructions about the frequency of contact, case

managers must maintain regular contact with their clients even if there is no

specific issue of progress to report. The issue of ensuring minimum contact

frequency will be reviewed in light of the Commission’s comments.

All people entering immigration detention are

provided with an induction to that facility, including participating in an

induction interview with the DSP. This induction includes information on

accommodation, dining, access to health care, access to pastoral care,

recreational activities, visitors and acceptable standards of behaviour. This

induction is provided in a language that is understood by the person and

qualified interpreters are used when required. As part of the induction

interview, people are given an induction booklet, available in the eight most

common languages. DIAC and the DSP regularly review the current booklet to

ensure it contains relevant, accurate and up to date information. The booklets

vary between facilities to provide local and relevant information for each

site.

DIAC is also preparing material that will be translated into appropriate

languages to supplement the induction process. This new material will include a

handbook which details centre-based information for people accommodated in

Immigration Transit Accommodation (ITA) as well as brochures explaining the

Purchase Allowance Scheme which operates in certain immigration detention

facilities. The Department facilitates interpreting services as required.

Additionally, people in immigration detention are actively encouraged to

approach the DSP, Health Service Providers or departmental staff if they have

any queries or need particular assistance. People in immigration detention are

also encouraged to complain about any aspects of their detention about which

they are concerned. Promotional material in several languages (including

Arabic, Hindi, Mandarin and Vietnamese) is displayed informing people in

immigration detention that complaints may be made to Departmental staff, DSP

staff, the Ombudsman’s Office, the Australian Human Rights Commission and

the Australian Red Cross about any aspects of a person’s detention and

that relevant processes are in place to receive and respond to those

complaints.

Information about health care

All people entering immigration

detention are offered a Health Induction Assessment, and if they consent, this

assessment is conducted within three days of the person entering detention. For

people in an IDC, this assessment is conducted by an IHMS registered nurse or

general practitioner, who tells the person about access to and the availability

of health services. Where necessary, telephone interpreters are used through

Translating Interpreting Services (TIS).

The department is close to finalising a Health Handbook, which will

provide easy to understand information on health services at VIDC, as well as

other relevant health information. Once finalised, this handbook will be

translated into several key languages and distributed to people in immigration

detention at the time of their Health Induction Assessment and on demand

throughout their time in detention. A Health Handbook outlining health

services at Perth IDC, MIDC, Northern IDC and Christmas Island IDC will be

drafted following the finalisation of the new contract arrangements with the

Department’s preferred tenderer for health services.

People in Perth Immigration Residential Housing (PIRH) and Sydney Immigration

Residential Housing (SIRH) are provided with a pamphlet at the time of their

induction to the IRH by the DSP. This pamphlet has information on using health

services in the IRH. This pamphlet has been translated into several

frequently-used languages.

People in Brisbane Immigration Transit Accommodation (BITA) and Melbourne

Immigration Transit Accommodation (MITA) are provided with a pamphlet at the

time of their induction to the ITA by the DSP. This pamphlet has information on

using health services in the ITA. Arrangements are currently being made to have

the MITA and BITA brochures translated into several frequently-used

languages.

People in Community Detention receive a pack of information from the Health

Services Provider setting out the process for accessing health services. This

information pack is available in several frequently-used languages.

A significant proportion of the people in

immigration detention population are either bilingual, speak English as a first

language or have spent considerable time in the Australian community and have

functional English.

However, DIAC and its service providers work with interpreters to facilitate

communication with people in immigration detention who may not be proficient in

English and produce and/or disseminate information about services, policies and

issues regarding immigration detention in English and other relevant languages

where feasible. Written information is made available in other languages as

appropriate.

When required the TIS provides services to DIAC, the DSP and the Health

Service Providers. Posters are displayed in all centres explaining how to use

TIS. Posters are displayed in the eight most common languages. DIAC will audit

the presence of these posters and take remedial action where necessary.

People in immigration detention are free to request a TIS person to translate

the contents of letters or documents for them at any time. When a large

proportion of the group is identified as speaking a particular language,

translated forms and other material are made available in that language. For

example, the ITA Handbook is currently being translated in Arabic, Cantonese,

Japanese, Malaysian, Mandarin, Tamil, Thai and Vietnamese.

As the Commission has noted, translators are engaged for face-to-face

services to people when required and provide support; for example, at

immigration detention consultative meetings if needed.

In addition, a number of DSP staff onsite are bilingual and provide informal

interpreting services.

Given the shortage of interpreters accredited by the National Accreditation

Authority for Translators and Interpreters (NAATI), it would be an inappropriate

use of scarce resources to maintain a standby presence throughout the network

for all language groups. However, reflecting the significant Indonesian caseload

at Northern IDC, the centre has one fulltime on-site Bahasa Indonesian

interpreter who is employed by the DSP. Other interpreters are hired on an

as-needs basis.

Although the Royal Australian College of General Practitioners’ Standards For Health Services in Australian IDCs does not require

face-to-face interpreters during health and mental health appointments, the

Health Service Providers, PSS and IHMS provide face-to-face interpreting

services on request from a person or when a health professional deems it

necessary. In all other cases PSS and IHMS organise telephone interpreters

through TIS.

As part of DIAC’s duty of care and natural

justice obligations, people in immigration detention are provided with current,

accurate and comprehensive information relevant to their detention in a language

and in terms they can understand.

DIAC and its service providers work with interpreters to facilitate

communication with people in immigration detention who may not be proficient in

English and produce and/or disseminate information about services, policies and

issues regarding immigration detention in English and other relevant languages

where feasible. Written information is made available in other languages, as

appropriate.

When facilitating interpreting services, care is taken to ensure where

possible that the interpreter is acceptable to the person in immigration

detention (particularly for gender and ethnic preference).

Interpreting services are provided in the first instance by the DIAC’s

TIS. Interpreters and translators are NAATI-accredited and bound by the

Australian Institute of Interpreters and Translators (AUSIT) professional code

of ethics.

These services are also available to visitors of people in immigration

detention, as well as to external stakeholders such as the Australian Red Cross

to facilitate communication with people in community detention.

A nationally coordinated approach to the comprehensive translation of

relevant detention documents and information tools between DIAC and the DSP

remains to be developed. The Commission’s recommendations will be taken

into account on this issue.

Visits from family, friends and professional

advisers are an important right for people in immigration detention and

essential to their well-being. Where possible the Department seeks to provide

indoor and outdoor accommodation that promotes meaningful interactions with

visitors, allows for social activities and sharing of meals, and supports

religious and other professional visits.

Improvement works to the visits area in Stage1 of Villawood will be

undertaken early in 2009 and will include the refurbishment and re-planning of

the existing spaces to include snack making facilities and lounge areas,

re-landscaping of the visits courtyard and the provision of disabled access.

The existing Stage 2 and 3 visits facility at VIDC consists of a large open

sided shelter and some outdoor furniture, pergolas, play equipment and vending

machines. Funding is approved for an all-weather visits facility at Stage 2 and

Stage 3 and improvements to the interview rooms. These improvements will be

carried out during 2009. The visits arrangements may require changes in the

future due to the future redevelopment plans for Villawood and the facilities

may be interim or relocatable.

Interview rooms in Villawood’s Stage 2 are being redesigned as part of

the interim visits improvements during 2009. An interview room is being

provided at the new visits works in Stage1. Other interview rooms will be

assessed as part of the 2009 maintenance plans.

The multi-purpose room at Perth IDC serves as the visits area. The number of

people detained in Perth has been low in recent years and a flexible approach is

taken to make best use of the facility. Refurbishments will provide improved

multi-purpose living and dining rooms and outdoor areas that will complement the

centre when used by visitors.

The interview rooms in Maribyrnong are constructed from masonry walls and

solid doors. The sound resistance will be checked and enhanced as part of the

2009 maintenance arrangements.

A variety of food options and preparation methods

are provided across the detention network, dependent on the number and mix of

the people in the immigration detention population at each facility. People in

immigration detention with special dietary needs due to either religious,

cultural, disease or allergies are served appropriately.

People participating in immigration detention consultative meetings at

facilities provide an opportunity to request changes to the menus. This is,

nevertheless, limited by the requirement to:

• abide by food preparation regulations
• ensure food is nutritionally adequate for health and well-being and
• is dietary specific for cultural and medical reasons.
  

In IDCs bread and condiments are available in activities rooms so

that people in immigration detention can prepare their own snacks between meals.

With the introduction of IRH in Sydney and Perth, people in IRH are able to go

shopping and prepare their own meals.

The ITAs at Brisbane and

Melbourne allows some opportunity for people in ITA to self-cater as well as

have take-away meals.

Detention Policy Section is currently drafting instructional materials for

use by Departmental and DSP staff working in immigration detention facilities

which will provide greater guidance on appropriate dietary requirements, also in

the light of this recommendation.

Halal food is available in all facilities. The

kitchens have been certified by local authorities in each state. Kitchens are

also able to accommodate other dietary needs as required.

DIAC is currently reviewing the policy framework

applied to section 501 of the Act, including for the management of long-term

residents and those who arrived in Australia as minors.

Risk assessments in immigration detention are determined on a case by case

basis and taking into account by a person’s previous history. People

often have their risk level changed depending on their behaviour within the

centres. Risk assessments are available to people on request.

A large number of excursions are facilitated for people in immigration

detention, including those who have had their visas cancelled under section 501

of the Act. People in immigration detention can request an excursion, including

people who have had a visa cancelled under character grounds. DIAC policy and

procedures state that the DSP and the department will ensure that evaluation of

the request is progressed quickly.

Excursion requests are considered in relation to necessary and current risk

assessments on case-by-case basis.

The comments on VIDC infrastructure are

acknowledged and the Department welcomes the Commission’s continued

involvement with the current and future developments. Please see comments above

in response to recommendation 10.1.

SASH observation

rooms^[29]

The comments made about Suicide and Self Harm (SASH) would benefit from

further dialogue with the Department. SASH observation rooms are a procedure

for dealing with a particular set of behaviours. The current interim works at

Villawood seek to reduce the need for SASH observation rooms and deliver more

effective and humane services to people in the centre. Refurbishment works at

Villawood, including those in Stage 1, are interim steps towards a better

designed centre.

Management Support Unit

(MSU)^[30]

The refurbishment of the current MSU facility provides for a number of

semi-independent units. The design proposes to provide specialist care

accommodation that will be separate from other accommodation, but may be opened

and integrated as a part of redeveloped Villawood in the future. DIAC invites

the Commission to inspect the plans and construction during early 2009.

External

excursions^[31]

There has been a progressive increase in the number and frequency of

organised group external excursions from VIDC over the past twelve months.

Excursions have also been progressively expanded to include people classified

across the range of risk levels. Please see comments above in response to

recommendation 10.6.

Violent

incidents^[32]

The VIDC continues to successfully manage a substantial number of people with

very serious histories of violence. Since the Commission’s visit to VIDC

in June 2008, it has been noted that there has been a reduction in the number

and frequency of incidents of violence between people in immigration detention

at that centre.

Incidents of violence between people in immigration detention are

automatically referred to the New South Wales (NSW) Police, who routinely attend

the centre. The relationship between NSW Police and local DIAC staff is strong

and is expected to be formalised shortly, with the signing of a Memorandum

of Understanding (MOU) with both NSW Police and the Australian Federal Police

(AFP) for the provision of police services at VIDC. DIAC is pleased that all

parties continue to work in the spirit of the MOU in delivering policing

services to Villawood.

Use of

restraints^[33]

Please see comments above in response to recommendation 10.7.

Drug

use^[34]

DIAC takes all allegations regarding drug use within Villawood or any other

detention facility seriously and does not sanction the use of illegal drugs in

its immigration detention facilities. While proactive measures such as visitor

screening and detainee monitoring are in place to prevent people in immigration

detention accessing illegal drugs, DIAC acknowledges that detention facilities

are not correctional institutions and it is not appropriate to conduct

overly-intrusive searches of people in immigration detention or visitors.

It is important to note that the population of detention facilities includes

people from prison who have been convicted of serious crimes. A number of those

who come from these institutions may have existing drug problems. In VIDC and

MIDC access is provided to a methadone treatment program supervised by trained

doctors.

There have been past allegations of drug use at VIDC. In April

2006, the department was made aware of allegations in relation to the

availability of illicit drugs within VIDC. An independent investigation of

these allegations was immediately arranged and commenced. The independent

investigator reported findings to the Department on 13 June 2006.

Findings from that report included that the DSP had a range of strategies and

operational procedures in place that were designed to deter and prevent the

entry of illicit drugs into the facility; It also found that DSP staff were

trained in the relevant operational procedures and management systems to ensure

effective deterrence and prevention of entry of illicit drugs into VIDC; and

that at the time of the report and on the available evidence, it could be

concluded that illicit drugs were not readily available at VIDC.

Similarly, allegations regarding drug use within Villawood raised in July

2008 were promptly referred to the NSW Police. The Police have concluded their

investigation into these recent allegations. No evidence was found to suggest

that there was an ongoing problem with drug use at VIDC.

DIAC has recently requested the assistance of the Australian Federal Police

in sourcing an appropriate body to assist in reviewing existing policies and

procedures relating to the prevention of entry of illicit substances to the

centre. A reviewer (from the NSW Department of Corrective Services) has

been recommended, terms of reference drafted and the negotiations are ongoing

with the reviewer. It is expected that the review will commence early in

2009.

Interpreters^[35]

There is a diverse group of people in the centre and at present DIAC does not

consider that there is a need for an on-site interpreter to cater for a specific

language group or groups.

Please see general comments above in response to recommendation 10.10.

The provision of recreational activities is the responsibility of the DSP.

People from all stages who are detained in Villawood have access to the

soccer field located in Stage 3, including people from Stage 1. There is a wide

range of recreational activities made available for people accommodated at VIDC.

There is also a range of external excursions which may include swimming and

access to cinema and other recreation activities.

Please see comments above in response to recommendation 10.5.

Library

facilities^[38]

Please see comments above in response to recommendation 10.4(b).

Please see comments above in response to recommendation 10.11.

Please see comments above in response to recommendation 10.11.

DIAC is fully satisfied that Halal food preparation practices are being

followed. Please see general comments above in response to recommendation

10.12

Please see comments above in response to

recommendations 10.1 (redevelopment), 10.4(a) (courtyard), 10.4(c) (gym), 10.8

(internet access) and 10.11 (visits).

People at Perth IDC can request access to sporting activities at any time.

Group activities will resume after the centre is redeveloped.

External

excursions^[43]

Group excursions from Perth IDC have not been organised recently because the

population within the centre is quite low during the refurbishments. However,

it is expected that group excursions will resume after completion of the works.

Please see general comments above in response to recommendation 10.6.

Please see comments above in response to recommendation 10.7.

Please see general comments above in response to recommendation 10.10.

Posters are displayed throughout Perth IDC explaining how to use the TIS.

People in Perth IDC are free to request a TIS interpreter to translate the

contents of letters or documents for them at any time. When a large proportion

of people in Perth IDC is identified as speaking a particular language,

translated forms and other material are made available in that language.

As the Commission has noted, translators are engaged for face-to-face

services when required, for example, to assist at immigration detention

consultative meetings. Given the shortage of interpreters accredited by NAATI,

it is not feasible to maintain a standby presence throughout for all language

groups.

As the Commission also notes that people entering Perth IDC are given a small

card that they can show to a detention officer to indicate they need an

interpreter.

All staff members in the Perth IDC have received cultural sensitivity

training. People are encouraged to bring any concerns they may have about

culturally inappropriate behaviour to DIAC’s attention at any time.

 

Please see comments above in response to 10.11

(visitor’s facilities).

Areas for pastoral care including confession are available in the visits area

and larger areas for larger religious services can be booked by prior

arrangement. DIAC notes that people consulted at a bi-monthly client

consultative meeting held in November 2008 indicated their preference to

practice religion in the privacy of their own rooms. A further group

consultation will be undertaken in future to assess if a need for a

dedicated religious room is needed.

The centre does not have enough space to establish a large grassed area,

however people have access to some sporting activities, in particular badminton

and tennis, and excursions for sporting activities can be requested at any

time.

Please see comments above in response to 10.4(c) (gym).

External

excursions^[48]

DIAC actively facilitates excursions for people in MIDC wherever possible.

MIDC welcomes and will facilitate home visits if requests are made. Small

groups, where people have been identified as low risk, have in the past been

able to participate in external excursions. The DSP has also confirmed that on

occasions, family and friends of people undertaking such excursions meet them at

the venue, and there is no objection raised to this occurring.

Please see general comments above in response to recommendation 10.6.

DIAC is negotiating a Memorandum of Understanding (MOU) with the Victorian

Police for the provision of police services at MIDC. The negotiations are at an

advanced stage and DIAC is working closely with the Victorian Police to ensure

the MOU is finalised as soon as possible. Any incident that occurs at MIDC that

involves assault, criminal damage or similar is automatically reported to the

Victorian Police by the DSP. In the spirit of the MOU, the Victorian Police

attends incidents at MIDC as required. It is then a matter for the Police to

determine if charges will be laid, with DIAC monitoring the outcome of these

referrals.

DIAC is fully satisfied that Halal food preparation practices are being

followed. Please see general comments above in response to recommendation

10.12.

Please see comments above in response to recommendation 10.4(b).

 

DIAC

notes that the Commission considers Northern IDC ‘feels less restrictive

than the other mainland detention

centres...’^[54] As Northern

IDC is located on an Australian Defence Force base and Defence Force families

reside nearby, any changes in the fencing arrangements would need to be approved

by Defence. Defence has indicated that they do not wish the fences to be

removed.

As noted above in

response to recommendation 10.4, water mitigation works have started and once

completed it will be possible to establish open grassy space.

Educational

programs^[55]

Please see comments above in response to recommendation 10.5.

Please see comments above in response to recommendation 10.8.Usage will

continue to be monitored and if additional needs are identified then more

internet stations will be ordered.

DIAC is fully satisfied that Halal food preparation practices are being

followed. Please see general comments above in response to recommendation

10.12.

While people are welcome to request home visits or individual excursions, as

noted by the Commission home visits from Northern IDC are quite rare because

very few people have family or homes in Darwin. Please see general comments

above in response to recommendation 10.6.

DIAC understands that the Australian Customs Service and the Australian

Fisheries Management Authority will respond to the Commission’s concerns

on this matter.

The immigration detention network comprises of a range of placement options

for person in immigration detention. Under the Act, the current placement

options for persons detained include immigration detention centres (IDCs),

immigration residential housing (IRH), immigration transit accommodation (ITA),

alternative places of detention and community detention (residential

determination).

While alternative detention (IRH/ITA accommodation) and community detention

remain “immigration detention” in a legislative sense and still

requires a level of security and restriction of liberty (as acknowledged by the

Commission), it is the Department’s view that these alternatives are less

intrusive than other detention options. As such, DIAC considers use of these

facilities always preferable to accommodation in IDCs where an evaluation of a

person’s needs and the risk they pose to the community deems it

appropriate.

The number of persons in each facility on 12 December 2008 were:

• immigration detention centres 243

persons

• immigration residential housing

13

• immigration transit accommodation

21

• alternative places of detention 114

• community detention 59

Under the Government’s Key Immigration Detention Values,

• children, including juvenile foreign fishers and, where possible,

  their families, will not be detained in an Immigration Detention Centre (IDC)

  (Value 3)

• detention that is indefinite or otherwise arbitrary is not

  acceptable and the length and conditions of detention, including the

  appropriateness of both the accommodation and the services provided, would be

  subject to regular review (Value 4) and

• detention in IDCs is only to be used as a last resort and for the

  shortest practicable time (Value 5)
  

As part of the New Directions in Detention reforms, and

particularly reflecting the Key Immigration Detention Values above, the

framework and use of immigration detention infrastructure is currently under

DIAC’s active consideration. Issues in relation to preferred

infrastructure options for contemporary immigration detention also form part of

the Terms of Reference of the Joint Standing Committee on Migration (JSCM) and

it is expected that the Committee’s recommendations will further inform

future directions in the usage of infrastructure usage.

In light of the New Directions in Detention reforms, and the

Government’s Key Immigration Detention Values, DIAC is seeking to make

greater utilisation of alternatives to IDCs. In particular, DIAC is increasing

the placement of people in lower risk facilities such as IRH and ITA rather than

placement in IDCs.

With respect to short-term detention options, DIAC’s policy remains

that people should normally be accommodated in ITA for no longer than seven

days. However, this policy is presently being reviewed in light of the

Government’s New Directions in Detention reforms, recent operational

requirements which necessitated placement of up to 21 days duration, and with a

view to making better use of these facilities. As part of this review, and in

consideration of the potential for shifting the use of these facilities, DIAC

will give active consideration to the Commission’s recommendations in

relation to the services provided at these facilities (such as recreation,

education, meals, health, excursions) if it is decided to detain people in an

ITA for longer than seven days.

As the comments below indicate DIAC has already begin to expand and improve

the services provided to people in IRH facilities. DIAC will continue to

consider and act on the Commission’s recommendations in relation to the

services provided in IRH.

Similarly, in making greater use of community detention options, DIAC is

considering how best to support low-risk people in the community, who would have

previously been placed in an IDC. Community Detention is a useful way of

provide a less restrictive form of detention for some unlawful non citizens and

while its use is growing, it is important to reflect the intention that where

possible a person’s immigration status should be resolved as quickly as

practicable.

A further expression of such shifting infrastructure usage is that families

are sometimes accommodated for short periods in IRH/ITA while community

detention is being sought. In accordance with the Key Immigration Detention

Value that children will not be held in immigration detention centres, placement

of children and their families in community detention remains the priority.

Where placement of minors in a IRH or ITA facility occurs, one of the

considerations is that the environment is appropriate and family-friendly and is

preferable to alternative temporary detention in commercial establishments in

the community, which require more intrusive levels of supervision.

As indicated above, in reforming the immigration detention framework to

reflect the Government’s New Directions in Detention policy and Key

Immigration Detention Values, it is the Minister’s intention to initially

implement administrative and regulatory reform and then pursue possible

legislative changes. DIAC undertakes to continue to consult with the Commission

in progressing policy development in these areas and prior to embarking on

possible legislative changes relating to the framework and use of immigration

detention infrastructure.

DIAC endeavours to make the best possible use of SIRH and readily utilises

this facility for all people where an evaluation of their needs and the risk

they pose to the community deems it appropriate. There are at times operational

needs that prevent the IRH being utilised to its maximum capacity. For example,

it is necessary to maintain a contingency capacity to accommodate situations

such as a family arriving at an airport and claiming protection upon arrival,

being refused entry and therefore detained.

All people subject to immigration detention are evaluated for placement after

consideration of health risks, gender considerations, disabilities, safety and

security concerns. Whether any particular placement option is appropriate is a

question that is specific to the various risk factors involved in each

particular set of circumstances. Every person that is detained by the

department in Sydney has a client placement assessment which considers whether

they should be accommodated in SIRH, VIDC or community detention. Regular

reviews of people’s circumstances, needs and risk profiles often sees

people transferred from VIDC to the SIRH.

There has been a progressive increase in the number and frequency of

organised group external excursions from SIRH over the past twelve months.

Generally, if the DSP is given enough lead time there is very little restriction

in relation to request for excursions. Please see comments above in response to

recommendation 10.6.

The family referred to in the Commission’s report was moved from SIRH

soon after the Commission’s visit. The delay in placing the family in

community detention was caused by difficulties in locating appropriate

accommodation that was acceptable to the family.

In line with the Government’s New Directions in Detention policy, all

families in the SIRH are given high priority for rapid resolution of their

immigration status or referral for a residence determination (community

detention) consideration.

Please also see general comments above under 12, Introductory comments.

The IRH health care model is community based, where people are able to access

all medical services to a standard normally available to Australians living in

larger cities.

New arrangements are being put in place with DIAC’s Health Services

Providers to facilitate a registered nurse from the Villawood IDC to provide

on-site services to people at the SIRH. These arrangements are still being

finalised. From November 2008, onsite psychology and counselling services

became available to people at the SIRH.

All people accommodated in IRH have access to recreational and educational

activities. DIAC constantly reviews the range and scope of these activities and

also takes steps to ensure that activities are appropriate to each

individual’s needs. Two external groups provide program assistance in the

SIRH. The Baptist Church offers singing and craft activities and the Australian

League of Immigration Volunteers offer language learning activities. GSL also

offer computer courses, sewing activities, painting and craft activities, table

tennis, board game activities, client and staff barbecues and sporting

activities including cricket, soccer and basket ball. Self-paced English

language-learning resources are also available.

Utilising the least restrictive place of detention is the driving factor for

placement decisions. DIAC endeavours to make the best possible use of Perth IRH

and readily utilises this facility for all people where an evaluation of their

needs and the risk they pose to the community deems it appropriate. However,

the Perth IRH has limited capacity, with the ability to house twelve clients

when used to its optimal occupancy. This capacity is reduced if family groups,

single females, or minors are accommodated. Therefore, at times, such as when

DIAC conducts compliance field operations, the additional capacity provided by

the Perth IDC is required. There are also times when Perth IDC is required to

be utilised for cases where a risk assessment has shown that the Perth IRH is an

unsuitable option.

All people subject to immigration detention are evaluated for placement after

consideration of health risks, gender considerations, disabilities, safety and

security concerns. Whether any particular placement option is appropriate is a

question that is specific to the various risk factors involved in each

particular set of circumstances. Every person that is detained by the

department in Perth has a client placement assessment which considers whether

they should be accommodated in Perth IRH, Perth IDC or community detention.

Regular reviews of people’s circumstances, needs and risk profile often

sees people transferred from the Perth IDC to the IRH.

Interpreter services are provided on an ad hoc basis and are dependent

on the needs of the people. The high turnover and variety of people at Perth

IRH has not to date created a demand for permanent on-site interpreters.

Please see general comments above in response to recommendation 10.10.

DIAC notes that the Commission does not have any major issues in relation to

the Perth IRH. The facility offers comfortable accommodation and has a regular

activities and excursion schedule. While the Perth IRH has been used to

accommodate families with children for short periods of time, in line with the

Government’s New Directions in Detention policy, all families in the Perth

IRH are given high priority for rapid resolution of their immigration status or

referral for a residence determination (community detention) consideration.

Please also see general comments above under 12, Introductory comments.

As noted above, the IRH health care model is community based, where people

are able to access all medical services to a standard normally available to

Australians living in larger cities.

New arrangements are being put in place with DIAC’s Health Services

Providers to facilitate a registered nurse from the Perth IDC to provide on-site

services to people at the Perth IRH. These arrangements are still being

finalised. From November 2008, onsite psychology and counselling services

became available to people accommodated at the Perth IRH.

Please see general comments above under 12, Introductory comments.

An Induction booklet for people at the ITA has been written and approved. It

is currently being provided in English, and is in the process of being

translated into Arabic, Cantonese, Japanese, Bahasa Malaysia, Mandarin, Tamil,

Thai and Vietnamese.

Posters in a number of languages are displayed at the BITA advising how to

access TIS. People entering BITA are given a small card that they can show to

detention officers or anyone else to indicate they need an interpreter in their

specific language.

Complaint and request forms are now freely available at the BITA and are

provided in Arabic, English, Farsi, Indonesian, Korean, Bahasa Malaysia and

Mandarin.

A complaints box is located in the common room. Additional boxes have been

ordered and will be installed in each of the three accommodation blocks.

As the Commission has noted, a Hospitality and Activities Coordinator who is

a qualified chef started work at the BITA in September and freshly-cooked

meals are now prepared on site. Every effort is made to accommodate

peoples’ dietary needs and preferences.

Access to landline telephones and the internet is no longer restricted for

medium and high-risk clients at the BITA. DIAC is monitoring the DSP to ensure

such restrictions are not re-introduced.

The BITA is suitable for families with children for short stays. One

unaccompanied 15-year-old minor stayed at the BITA from 28 October to

12 November 2008, during which time regular activities, excursions and

access to the internet and telephone were arranged for the minor. After

consultation with relevant welfare agencies and referral to an Immigration

Advice and Application Scheme provider, the minor was placed on a Bridging Visa

E pending the outcome of an application for protection, and is living with a

family in Brisbane that has been assessed as suitable by the Queensland

Department of Child Safety. Please see general comments above under 12,

Introductory comments.

Health Services at the MITA are provided by a registered nurse from the MIDC,

who visits the ITA between Monday and Friday when people are accommodated there.

People in the MITA can also access health services through a community general

practitioner, who makes any necessary referrals to external providers.

As previously advised, placement decisions are made on a case-by-case basis

and physical and/or mental health concerns do not necessarily prevent a person

from being accommodated at the MITA. People with significant physical and/or

medical issues have been accommodated at the MITA, as it can be flexibly

configured to enable the condition of these particular people to be closely

monitored.

The MITA’s outdoor area has been landscaped, is well furnished and

there is a volleyball court. The outdoor area is suitable for a variety of

recreational and sporting activities.

As noted above the MITA is suitable for families with children for short

stays. One family with a 16-year-old child was accommodated for two days

pending removal from Australia. A mother and two children stayed in the MITA

for a longer period until they were placed in community detention. Please see

general comments above under 12, Introductory comments.

Please see general comments above under 12,

Introductory comments.

Section 197AB of the Act, gives the

Minister for Immigration and Citizenship a non-delegable, non-compellable

power to place persons detained into community detention under a Residence

Determination. The Minister is able to exercise that power if he thinks that it

is in the public interest to do so. The power has been used to place children

and families with children in community detention. It has also been used to

place persons who may have experienced torture and trauma and persons whose

medical condition cannot be properly cared for in a detention centre into

community detention. The Minister has determined that it is in the public

interest to exercise his powers to place people in a residence determination

when the provision of bridging visas has not been appropriate, but where

continued placement in a detention facility is not considered necessary or

appropriate. DIAC accepts the importance of acting quickly when a community

detention placement is being considered and makes every effort to facilitate the

placement.

DIAC’s Health Services Provider (HSP) advises DIAC of any person in

detention who has, or is suspected to have, significant health concerns for

which they believe their condition can be better managed outside of an IDC.

With regard to people in immigration detention who are suspected to have torture

and/or trauma issues, the standard process is that the HSP advises DIAC of this,

and the person is subsequently referred for consideration of Community Detention

as a priority. Delays associated with these referrals usually stem from delays

in obtaining appointments with specialist torture and trauma providers, who

assess people and provide summary reports to assist the referral process. The

procedures around this have recently changed so that referrals can now be made

based solely on written advice from the HSP, rather than waiting for the

specialist report.

DIAC recognises the importance of persons in

Community Detention being able to engage in meaningful activities. The

Australian Red Cross, which currently delivers the Community Detention Services,

works with people in community detention to assist them to participate in

activities such as language tuition, community groups and volunteer work. The

formal policy outlining procedures is very close to completion and the

suggestions in the Commission’s report about voluntary work will be

included to make the procedure clear and easily understood.

While DIAC acknowledges the benefit of educational programs to people in

immigration detention there are a number of impediments that generally preclude

these programs being extended to tertiary courses.

Generally, the educational programs accessed by people in immigration

detention are of a short duration, usually up to four months. It is

impracticable for a person in immigration detention who is on a removal pathway

or awaiting the outcome of a visa application or appeal to commence a longer

course of study. Adults may undertake community college or adult education

courses and may obtain a certificate or other accreditation for their

studies.

The continued use of Christmas Island for the non-statutory processing and

accommodation of people who arrive unauthorised at excised offshore places is a

matter of Government policy.

The retention of the excision of offshore islands and the continued use of

Christmas Island for the non-statutory processing of people who arrive

unauthorised at excised offshore places is a matter of Government policy.

As part of the New Direction in Detention reforms, on 29 July 2008 the

Minister for Immigration and Citizenship Senator Chris Evans announced that

there would be a number of changes to the non-statutory refugee processing

regime on Christmas Island. The non-statutory refugee processing arrangements

have been substantially enhanced to improve transparency and accountability of

the process and to seek to remedy deficiencies previously identified in the

process. As part of these reforms, asylum seekers will receive publicly funded

advice and assistance, access to independent review of unfavourable decisions

and external scrutiny by the Immigration Ombudsman. These measures will build

on strengthened procedural guidance for departmental decision-makers.

These

new processes are supported with additional resources. The Government will

provide $4.2 million over four years (including $0.2 million capital funding in

2008-09) for the establishment and processing of the new arrangements

(particularly for independent advice and assistance and merits review), and

including funding to the Office of the Commonwealth Ombudsman of $1.0 million

over four years.

Publicly-funded advice and assistance for asylum seekers is being provided on

Christmas Island through the existing contract arrangements between the

Australian Government and ten agencies employing professional migration agents,

under the Immigration Advice and Application Assistance Scheme (IAAAS). This is

the same kind and quality of independent advice and applications assistance that

is afforded to protection visa applicants onshore and ensures no disadvantage to

asylum seekers on Christmas Island when compared with those Protection

applicants on the mainland.

As with task forces assisting asylum seekers on Christmas Island in earlier

years, arrangements are made for IAAAS agents to travel to Christmas Island as a

first priority, with interpreters, and in numbers that match DIAC’s

refugee assessment officer contingent. Agents are invited in numbers sufficient

to permit thorough assistance to each client, allowing for extensive interview

and other contact before lodging statements of claims. IAAAS agents are able to

meet with asylum seekers as soon as possible after the initial entry and

identification interviews have been conducted and after character and health

screening has commenced. Only after clients have been assisted by their IAAAS

agent do they proceed to having their interviews with departmental refugee

assessment officers. In this way, every effort is made to ensure asylum seekers

on Christmas Island have substantially the same publicly-funded professional and

independent support as mainland applicants in making their refugee claims

quickly and comprehensively.

DIAC has established interim arrangements for independent merits review and

is currently working through the development of a longer term review model.

DIAC has been in discussions with the Commonwealth Ombudsman, who has agreed

to take on an oversight role for the non-statutory refugee status assessment and

review processes on Christmas Island. It is envisaged that this oversight role

may include looking at the fairness and efficiency of the non-statutory process,

investigating complaints, examining the timeliness of both the primary and

review processes and the management of vulnerable groups such as children and

disabled asylum seekers.

DIAC continues to work with stakeholders, including

IAAAS providers and representatives of the Commonwealth Ombudsman’s office

who have already assisted asylum seekers on Christmas Island in 2008, to improve

the non-statutory refugee assessment and independent merits review

procedures.

The provision of health services to residents on Christmas Island is the

responsibility of the Attorney-General’s Department (AGD), through the

Indian Ocean Territories Health Services (IOTHS). IOTHS operates a small, 12-bed

Christmas Island hospital, which is staffed by two doctors, several nurses and

allied health professionals.

The provision of health services to people in immigration detention on

Christmas Island is the responsibility of DIAC. IOTHS may provide some health

services to detainees as private patients at Christmas Island Hospital, with

DIAC meeting all costs. In addition to arrangements with AGD and IOTHS, health

services are also provided to detainees by DIAC’s contracted health

services provider, IHMS. Under the Health Care Services Agreement, IHMS employs

two registered nurses at Christmas Island, 7am – 7pm, Monday to Sunday and

according to demand.

Doctors, specialist health care providers and additional nurses may be flown

to Christmas Island when required in line with peoples’ health care

requirements. These additional services are provided by IHMS within one week of

notification.

Patients are treated in line with community standards. If on medical advice

appropriate medical care and support requires that a patient be treated in a

mainland facility, then the patient is moved to mainland Australia.

The department is currently in discussion with the AGD on developing a

Memorandum of Understanding for the provision of specified health services to

people in immigration detention on Christmas Island.

Arrangements with DIAC’s Health Services Providers, PSS and IHMS, allow

scope for psychological and counselling services to be provided to people on

Christmas Island when required.

As an example, with the recent unauthorised boat arrivals, a psychologist was

flown to Christmas Island on two separate occasions, to provide additional

support to the mental health nurse. Following each of the psychologist’s

departures, support continued to be provided via telephone. Additionally, two

torture and trauma specialists from the Association for Services to Torture and

Trauma Survivors have been provided on Christmas Island to assist people

with suspected torture and/or trauma issues.

The department is currently examining ways to improve the communications

infrastructure available to people in immigration detention, their

representatives and DIAC staff on Christmas Island. Once an appropriate way

forward has been identified, access to communication facilities will be greatly

improved.

Consistent with Government policy, all unauthorised boat arrivals are

detained and processed on Christmas Island while health, identity and security

checks are undertaken.

There are a number of immigration facilities on Christmas Island which

provide maximum flexibility to manage groups of families or individuals with

varying needs. These include:

• The North West Point
  • IDC is able to accommodate 400 people with a surge capacity of

    800.

• Phosphate Hill
  • The Government moved quickly to convert the old Phosphate Hill

    facilities on Christmas Island to allow small groups of unauthorised arrivals to

    be accommodated.

• Construction camp
  • There are 300 rooms available at the construction camp that can be

    utilised in a variety of configurations dependent on client make-up and

• Community detention
  • There are a number of duplexes available for family groups plus a

    number of self contained units available for use in the community detention

    context.
    

Accommodation arrangements are determined by the number

of arrivals as well as the need to separate groups for processing, public health

management, gender, culture and other reasons.

In line with the government's New Directions in Detention once health,

identity and security checks have been successfully completed people can be

placed into the community while their immigration status is resolved. While

living in community detention arrangements on Christmas Island, people are

supported by key service providers to access community-based services, programs

and activities.

To address long-term infrastructure issues, the Government is working in

close consultation with the community to identify suitable options within the

Strategic Land Use Plan for Christmas Island.

The Australian Government has clearly articulated its intention to retain the

new Christmas Island IDC at North West Point as part of Australia’s

immigration detention network.

The Government’s policy was to open the new facility when numbers and

separation arrangements required it. On 19 December 2008, the Minister for

Immigration and Citizenship decided to open the centre to house the adult male

passengers and crew from a vessel intercepted north-east of Darwin on

16 December 2008.

Ongoing use of the Christmas Island IDC will depend on the client population

and arrangements required. Children, families and women will not be

accommodated in the North West Point facility, consistent with the

Government’s policy that no child will reside in an IDC.

DIAC accepts that placing persons in community detention on Christmas Island

has some unique local problems. DIAC has placed two senior officers from

National Office on the island to work with the Australian Red Cross and local

stakeholders to resolve issues. Buses have been purchased which will assist in

transportation problems and Red Cross staff numbers have been increased, with an

additional Red Cross worker going to the island over the school holiday period

to organise activities. Red Cross will maintain a permanent presence on the

island in the foreseeable future. Similarly, Departmental staff with specific

responsibilities for community detention will be on the island.

 

14.2 Lack of legal protections for children

 

Australia,

as a signatory to the Convention on the Rights of the Child, takes its

obligations very seriously. The obligation to treat the best interests of the

child as a primary consideration in all actions concerning children is

reflected in Ministerial Direction 21, issued by the Minister under section 499

of the Migration Act, regarding the exercise of the power to refuse to grant or

to cancel a visa under section 501 of the Act. The obligation is also reflected

in other departmental policy documents guiding the exercise of key discretionary

decisions, and in the guidelines for the exercise of the Minister's personal

public interest powers.

DIAC has also developed policies to ensure that the rights of children are

protected, including a framework which incorporates guiding principles on the

treatment of children. These guidelines reflect the importance of:

• the individual circumstances of a child;
• the contextual environments of children, including family and other

  dynamics;

• the best interest and welfare of a child; and
• the departments need to detain only as a last resort.
  

In 2005, the Migration Act was amended to affirm the principle that

children should only be detained as a last resort. Section 4AA states:

(1) The Parliament affirms as a principle that a minor shall only be detained

as a measure of last resort.

(2) For the purposes of subsection (1), the reference to a minor being

detained does not include a reference to a minor residing at a place in

accordance with a residence determination [Community Detention].

The overall intent of the package of amendments that introduced section 4AA

into the Migration Act was to ensure that the best interests of children were

taken into account and that any alternatives to the detention of children were

considered in administering the relevant provisions.

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

Government’s New Directions in Detention policy and Key Immigration

Detention Values. Value 3 extends on the legislative provision in s 4AA and

provides that ‘Children, including juvenile foreign fishers and, where

possible, their families, will not be detained in an IDC’.

As noted above, while prompt placement of children and their families in

community detention remains DIAC’s priority, there will be occasions when

children will be accommodated in low security facilities within the immigration

detention framework, such as immigration residential housing (IRH) and

immigration transit accommodation (ITA). As with other aspects of the broad

reform agenda, DIAC is currently developing policies to better support these

arrangements.

Other Key Immigration Detention Values serve to ensure that children are not

deprived of their liberty unlawfully or arbitrarily. Specifically:

• Value 4 states: ‘Detention that is indefinite or otherwise arbitrary

  is not acceptable and the length and conditions of detention, including the

  appropriateness of both the accommodation and the services provided, would be

  subject to regular review’

• Value 6 states: ‘People in immigration detention will be treated

  fairly and reasonably within the law’ and

• Value 7 states: ‘Conditions of detention will ensure the inherent

  dignity of the human person.’
  

As part of the New Direction in Detention reform agenda, DIAC is

improving the transparency and accountability of immigration detention by

ensuring all detention cases, including those involving children, are reviewed

every three months by a senior departmental officer. Additionally, a six-monthly

review of detention placements by the Commonwealth Ombudsman will be

instituted.

All children and their families, or unaccompanied minors, found to be owed

protection obligations by Australia are granted permanent protection visas,

allowing them to live in Australia permanently. They are also entitled to the

full range of government benefits and services.

Bridging visas provide an available mechanism for the release of children

from detention along with their families.

As indicated above, in reforming the immigration detention framework to

reflect the Government’s New Directions in Detention policy and Key

Immigration Detention Values, it is the Minister’s intention to initially

implement administrative and regulatory reform and then pursue possible

legislative changes. DIAC undertakes to consider these recommendations and

continue to consult with the Commission in progressing policy development in

these areas and prior to embarking on possible legislative changes.

Please see general comments above under 12,

Introductory comments, and in response to recommendation 14.2 above.

The continued use of Christmas Island for the

non-statutory processing and accommodation of people who arrive unauthorised at

excised offshore places is a matter of Government policy. Further, the

Government’s Key Immigration Detention Values state that all unauthorised

arrivals will be subject to mandatory detention for the management of health,

identity and security risks to the community.

The Immigration Detention Values also specify that ‘Children, including

juvenile foreign fishers and, where possible, their families, will not be

detained in an IDC. Consistent with the Government’s policy, children,

families and women will not be accommodated in the North West Point IDC.

Children on Christmas Island are placed on arrival in alternate places of

detention, such as the construction camp, while health, security and identity

checks are conducted. As soon as these checks are completed the Minister for

Immigration and Citizenship is asked to consider placing the children in

community detention.

DIAC is working with stakeholders on Christmas Island to ensure that children

accommodated there are well cared for and have access to appropriate health,

educational, recreational and support services. All school-aged children attend

local schools. The Attorney-General’s Department, which administers the

Indian Ocean Territories, is cooperating with the department to ensure that

children on Christmas Island are supported with youth workers. DIAC has also

arranged for the Australian Red Cross to deliver a school holiday program of

activities.

DIAC currently works under the legislation of The Immigration

(Guardianship of Children) Act 1946 (IGOC Act). The IGOC Act is the

administrative mechanism by which legal guardianship for certain children

entering Australia is conferred upon the Minister for Immigration and

Citizenship. This means that the Minister as legal guardian of certain children

has the rights and powers that can be exercised by an adult in respect of a

minor.

Section 5 of the IGOC Act empowers the Minister to delegate the guardianship

powers and functions to any officer or authority of the Commonwealth or of any

state or territory department responsible for child welfare. These officers

assume responsibility for unaccompanied minors when such children are placed in

alternate places of detention or community detention.

---

^[1] Ibid,

p.18.

^[2] Ibid,

p.19.

^[3] Ibid,

p.21.

^[4] Ibid,

p.21.

^[5] Ibid,

p.23.

^[6] Ibid,

p.24.

^[7] Ibid,

p.25.

^[8] Ibid,

p.25.

^[9] Ibid,

p.27.

^[10] Ibid,

p.28.

^[11] Ibid,

p.30.

^[12] Ibid,

p31.

^[13] Ibid,

p32.

^[14] Ibid,

p32.

^[15] Ibid,

p35.

^[16] Ibid,

p36.

^[17] Ibid,

p37.

^[18] Ibid,

p.38.

^[19] Ibid,

p.38.

^[20] Ibid,

p.39.

^[21] Ibid,

p.41.

^[22] Ibid,

pp.41-42.

^[23] Ibid,

p.43.

^[24] In its 2006 inspection

report, the Commission noted that the introduction of an activities kitchen at

Baxter had been highly successful, and recommended that other detention centres

establish similar

facilities.

^[25] AHRC, 2008

Immigration Report,

p.44.

^[26] Ibid,

p.44.

^[27] Ibid,

p.46.

^[28] Ibid,

p.47.

^[29] Ibid,

p.48.

^[30] Ibid,

p.48.

^[31] Ibid,

p.48.

^[32] Ibid,

p.48.

^[33] Ibid,

p.48.

^[34] Ibid,

p.48.

^[35] Ibid,

p.49.

^[36] Ibid,

p.49

^[37] Ibid,

p.49.

^[38] Ibid,

p.49.

^[39] Ibid,

p.49.

^[40] Ibid,

p.49.

^[41] Ibid,

p.50.

^[42] Ibid,

p.51.

^[43] Ibid,

p.52.

^[44] Ibid,

p.52.

^[45] Ibid,

p.52.

^[46] Ibid,

p.52.

^[47] Ibid,

p.53.

^[48] Ibid,

p.54.

^[49] Ibid,

p.54.

^[50] Ibid,

p.54.

^[51] Ibid,

p.54.

^[52] See Standards for

design and fit out of immigration detention

facilities.

^[53] AHRC, 2008 Immigration Report,

p.55.

^[54] Ibid,

p.55.

^[55] Ibid,

p.56.

^[56] Ibid,

p.56.

^[57] Ibid,

p.56.

^[58] Ibid,

p.56.

^[59] Ibid,

p.57.

^[60] Ibid,

p.60.

^[61] Ibid,

p.60.

^[62] Ibid,

p.60.

^[63] Ibid,

p.60.

^[64] Ibid,

p.60.

^[65] Ibid,

p.61.

^[66] Ibid,

p.61

^[67] Ibid,

p.62.

^[68] Ibid,

p.62.

^[69] Ibid,

p.63.

^[70] AHRC, 2008

Immigration Report,

p.64.

^[71] Ibid,

p.64.

^[72] Ibid,

p.64.

^[73] Ibid,

p.64.

^[74] Ibid,

p.64.

^[75] Ibid,

p.65.

^[76] Ibid,

p.65.

^[77] Ibid,

p.65.

^[78] Ibid,

p.67.

^[79] Ibid,

p.68.

^[80] Ibid,

p.70.

^[81] Ibid,

p.71.

^[82] Ibid,

p.72.

^[83] Ibid,

p.73.

^[84] Ibid,

p.73.

^[85] Ibid,

p.76.

^[86] Ibid,

p.76.

^[87] Ibid,

pp.78-79.

^[88] Convention on

the Rights of the Child

^[89] AHRC, 2008 Immigration Report,

pp.79-80.

^[90] Convention on

the Rights of the Child, article

3(1)

^[91] Ibid, article

37(b)

^[92] Ibid, article

37(c).

^[93] Ibid, article

37(a) and article 37(c).

^[94] Ibid, article 37(d).

^[95] Ibid, article 6(2) and article

39/

^[96] Ibid, article

22(1).

^[97] Ibid, article

2.

^[98] AHRC, 2008 Immigration

Report, p.81.

^[99] AHRC, 2008

Immigration Report,

p.81.

^[100] Ibid,

p.83.

^[101] Ibid,

p.85.

^[102] Ibid,

p.86.

^[103] Human Rights and

Equal Opportunity Commission, A Last Resort? A summary guide to the National

Inquiry into Children in Immigration Detention, 2004, pp. 698-701, 857and

873-877.