Commission Website: National Inquiry into Children in Immigration Detention
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Submission to the National
Inquiry into Children in Immigration Detention from
Australian Lawyers for Human
Rights
One - Introduction
Two - Public Accountability, Monitoring and Intervention
Three - Ideal Practice - Recommendations for Change
PART ONE - INTRODUCTION
Australian Lawyers
for Human Rights
Australian Lawyers
for Human Rights (ALHR) is a network of Australian lawyers interested
in furthering awareness and advocacy of human rights in Australia. ALHR
promotes the practice of human rights law in Australia and works with
Australian and international human rights organisations to achieve this
aim.
Outline of this
submission
This submission is
structured in three parts:
1. a statement
of ALHR's position in relation to the immigration detention of child
asylum seekers; its interim position; and an overview of the implications
of the current system of mandatory detention of asylum seekers, including
child asylum seekers, in terms of the relevant international legal normative
framework;
2. a review of
the current standards of accountability, monitoring and intervention
in relation to immigration detention, including a critique of the operation
of Immigration Detention Centres in the context of mandatory reporting
of child abuse;
3. a proposal of
an ideal model of accountability, monitoring and intervention in relation
to immigration detention.
Terms of Reference
This submission will
address the following selected terms of reference announced by the Human
Rights and Equal Opportunity Commission (HREOC):
1. The provisions
made by Australia to implement its international human rights obligations
regarding child asylum seekers, including unaccompanied minors;
2. The mandatory
detention of child asylum seekers and other children arriving in Australia
without visas, and alternatives to their detention;
3. The adequacy
and effectiveness of the policies, agreements, laws, rules and practices
governing children in immigration detention with particular reference
to the conditions under which children are detained, guardianship issues
and security practices in detention; and
4. The additional
measures and safeguards which may be required in detention facilities
to protect the human rights and the best interests of all detained children.
Mandatory Detention
of Asylum Seekers
Currently, under
the Migration Act 1958 (Cth) (Migration Act), all persons
who arrive in Australian without proper authorisation are detained. This
captures so-called 'onshore' asylum seekers as a class of people, that
is, people who arrive in Australia without authorisation and subsequently
seek to claim refugee status.
Mandatory detention
of all asylum seekers in this fashion is in breach of Australia's international
legal obligations. We outline the reasons for this below, with reference
to the applicable international legal standards and norms.
INTERNATIONAL
NORMATIVE FRAMEWORK
There are a number
of international conventions, guidelines and commentary relevant to Australia's
treatment of children within its jurisdiction, which necessarily extends
to child asylum seekers. These include:
- Convention
on the Rights of the Child
(1989) (CROC); - Convention
relating to the Status of Refugees
(1951) and the associated Protocol(
1967) (Refugee Convention); - International
Covenant on Civil and Political Rights
(1966) (ICCPR); - United Nations
High Commissioner for Refugees Guidelines on Detention of Asylum Seekers
(UNHCR Guidelines);
- United Nations
Standard Minimum Rules for the Administration of Juvenile Justice
(1985) (Beijing Rules);
- United Nations
Rules for the Protection of Juveniles Deprived of their Liberty
(1990) (Riyad Rules;)
- Conclusions of
the Executive Committee of the United Nations High Commissioner for
Refugees (ExComm).
- United Nations
Convention against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment (Torture Convention).
- International
Covenant on Economic Social and Cultural Rights (ICESCR)
In addition to the
instruments listed, Australia is bound by customary international law
obligations relating to the treatment of children, in particular, those
obligations which relate to the 'best interests' principle (mentioned
below in more detail). These obligations are applicable at all levels
of government and are not limited to the Commonwealth.
The background papers
prepared by HREOC provide a comprehensive description of the nature of
the international legal obligations incumbent upon Australia. We outline
some key points which are relevant to our submission.
Application of
international legal principles to child asylum seekers
Under the CROC, Australia
has the obligation, when passing legislation and implementing policy,
to respect the following four key principles:
1. the best interests
of the child as the primary consideration in all actions concerning
them (Art. 3(1);
2. the right of
all children to enjoy the rights under the Convention without discrimination
(Art. 2);
3. the right to
survival and development (Art. 6); and
4. the right of
all children to participate meaningfully in all matters affecting them
(Art. 12).
Further, the CROC
provides at Article 37(b) that no child shall be deprived of his or her
liberty unlawfully or arbitrarily and that the detention of a child is
to be used only as a measure of last resort, and when it is used, only
for the shortest appropriate period of time.
The prohibition against
depriving a child of his or her liberty, which is similarly recognised
as a general prohibition at Article 9 of the ICCPR, is supported by the
Conclusion Number 44 of the ExComm, entitled Detention of Refugees
and Asylum Seekers (1986) UN Doc. A/AC.96/688 which sets out four
acceptable purposes for which asylum seekers may be detained:
(a) to verify identity;
(b) to determine
the elements on which the claim for refugee status or asylum is based;
(c) to deal with
cases where asylum seekers have destroyed their travel and/or identity
documents or have fraudulent documents with which they intend to mislead
the authorities of the state in which they intend to claim asylum;
(d) to protect
national security or public order. [1]
To detain asylum
seekers for reasons other than those listed above, or for an unjustifiable
period for whatever reason, risks detaining an asylum seeker arbitrarily
and therefore unlawfully, at international law. 'Lawfulness' of detention
is not the measure of 'arbitrariness' of detention at international law
- detention must be for a proper purpose, and proportionate,
to achieve its aim to be lawful. [2]
The special vulnerablity
of children is recognised at international law under the Riyad Rules and
the Beijing Rules, which emphasise that detention of children should be
a measure "of last resort" and, if it must occur, should be
as brief as possible. [3] The UNHCR's Guidelines on
Detention goes further when giving guidance to state parties in their
implementation of the Refugee Convention: it provides that "minors
who are asylum seekers should not be detained". Australia's current
practices of detention of asylum seekers, and in particular, child asylum
seekers, does not comply with international standards.
INADEQUACY OF
EXISTING REPORTS AND INQUIRIES
There have been a
number of inquiries into the running of Australia's IDCs [4].
While some of them have made reference to the inaccessibility of the content
of the government's contract with ACM [5], and made recommendations
for the improvement management practices within detention centres [6],
none has dealt in any detail with the issue of public accountability or
made recommendations in respect of that issue. This role would be better
played by an independent body with a mandate to inspect detention centres
on a regular basis and broad enough powers to allow them to monitor effectively.
RECOMMENDATIONS
1. That the current
system of mandatory detention of asylum seekers be dismantled.
2. That detention
of asylum seekers be restricted to circumstances in which is it is essential
and that health and security screening be expedited in cases involving
children.
3. That until mandatory
detention is discontinued the Commonwealth should look implementing
processes for regular, rigorous and independent monitoring of Australia's
detention centres.
PART TWO - PUBLIC ACCOUNTABILITY,
MONITORING & INTERVENTION
1. PUBLIC ACCOUNTABILITY
Private Management
of Australian Immigration Detention Centres
Four immigration
detention facilities (Curtin, Woomera, Maribyrnong and Villawood) are
currently managed by the firm Australasian Correctional Services Pty.
Ltd., also known as Australasian Correctional Management (ACM), pursuant
to a General Agreement with the Commonwealth dated 27 February, 1998,
and a Detention Services Contract dated 27 February, 1998. The full, unedited
version of these agreements are not publicly available due to commercial
confidentiality.
The arrangements
involving the detention of asylum seekers, many of whom are children,
raise issues involving Australia's obligations under international law,
as outlined above and, accordingly, should be subject to public scrutiny.
The arrangement for the provision of detention services by ACM to the
Commonwealth, through DIMIA, lacks transparency by virtue of commercial
confidentiality, and does not allow sufficient independent scrutiny.
In particular, the
actual contract performance measures for the General Agreement and the
Detention Services Contract are not available to the public. Clause 3.3(a)
of the Detention Services Contract states:
The Secretary
will measure the performance of the Contractor in delivering the Detention
services against the Immigration Detention Standards as measured in
Schedule (Performance Measures).
The actual assessment
indicators for the Standards are not provided because of commercial confidentiality.
However, the Standards cover the following subject matter:
- Lawfulness of
Detention
- Dignity
- Privacy
- Social Interaction
- Safety
- Selection and
Training of Personnel
Management and
Security of Detention Facility
- Operational Orders
- Security
- Detainee Records
- Reception
- Retention of
Detainee's Property
- Transport of
Detainees
- Accommodation
- Discipline and
Control
- Use of Force
- Instruments of
Restraint
- Complaints Mechanism
Management of
Detainees
- Quarantine and
Public Health Requirements
- Clothing and Bedding
- Health Care Needs
- Food
- Personal Hygiene
Individual Care
Needs
- Unaccompanied
Minors
- Infants and Young
Children
- Children
- Expectant Mothers
and Infants in Detention
- Psychiatrically
Disturbed
- Religion
- Community Contacts
- Notification of
Death, Illness, Transfer
- Monitoring and
Reporting
Several of these
issues go to the very heart of Australia's obligations under the CROC,
and the Refugee Convention. Accordingly, the actual performance measures
for these issues should be publicly available to allow assessment of the
degree to which management and operation of the Immigration detention
facilities comply with Australia's international obligations.
Record of ACM's
public accountability in Australia
In April 1997 ACM
entered into a contract with the Victorian Government for the management
and operation of the Fulham low/medium security prison, located in Gippsland.
Requests for copies of the unedited service agreements by prison advocates
were initially refused, with the Service Delivery Outcome section of the
contract claimed as commercially confidential. Access to these sections
was eventually obtained by virtue of a Freedom of Information Application
which was ultimately decided by the Victorian Civil and Administrative
Tribunal in July 1998. The full, unedited service is agreement is now
publicly available on the Victorian Government website (www.vgpb.vic.gov.au/major/fulham.htm).
Service Delivery
Outcomes previously considered commercially confidential include the following:
| CORRECTIONAL
SERVICES |
REQUIRED
OUTCOMES |
| PRISON
OPERATION (25%) |
|
| Escapes | 1
Prisoner per year |
| Number
of incidents of self mutilation/attempted suicide as a proportion of the average muster |
2.19%
per year |
|
Assaults on Prisoners
|
0.1038 per Prisoner Year 0.000 per Prisoner Year |
| Assaults
on staff or other persons where an incident is recorded |
0.035
per Prisoner Year |
|
Percentage of Prisoners testing positive for non-prescribed drug use, as a result of random testing over time |
7.9%
per year |
| EDUCATION
& TRAINING (12.5%) |
|
|
Adult Basic Education (for Prisoners Identified as requiring Adult Basic Education in their individual Management Plans):
|
2 modules per Prisoner Year 1 module per Prisoner Year 3 modules per Prisoner Year 2 modules per Prisoner Year |
|
Vocational Training (For Prisoners not Requiring Adult Basic Education in their Individual Management Plans).
|
5 modules per Prisoner Year 4 modules per Prisoner Year |
| PRISON
INDUSTRIES 12.5% |
|
|
3 85% |
| HEALTH
10% |
|
|
100% 100% 0.000 per Prisoner Year |
| OTHER
PROGRAMS 5% |
|
|
Substance Abuse Programs
|
100% 100% 90% |
The issues raised
in the Service Delivery Outcomes are of concern in terms of transparency
of operations and their impact on key human rights issues. Real issues
of performance, however, can only be gauged by accessing the operation
manuals and contractual specifications. In Victoria, these were also subject
to commercial confidentiality.
The Victorian Auditor-General
found the service delivery outcomes, in and of themselves, to be inadequate
to encouraging a high standard of service delivery. In his Special Report
No. 60, Victoria's Prison system: Community protection and prisoner
welfare, the Auditor-General expressed concerns that the Service Delivery
Outcomes are:
- essentially quantitative
in nature, with little or no emphasis placed on the quality of programs
provided or outcomes for prisoners in terms of increased skills;
- not reflective
of key aspects of the operators' performance - e.g. issues of rehabilitation
are not adequately addressed;
- focused on the
short-term, and fail to cover matters which may not have an immediate
impact but contribute to the good management of a prison in the longer
term. [7]
IMPLICATIONS FOR
IMMIGRATION DETENTION CENTRES
The record of ACM
in terms of public accountability for its operation of Fulham Prison in
Victoria raises concerns for the level of accountability for the management
of the four Immigration Detention facilities under its control. The details
of the performance measures under the General Agreement and the Detention
Services Contract between ACM and the Commonwealth are not available for
public scrutiny. In addition, there is no public access to the Operation
Manuals or the monitoring reports which operationalise the performance
measures and contract specifications. It is therefore impossible for an
independent assessment of the degree to which the operations and management
of Immigration Detention Centres comply with Australia's international
obligations in relation to the protection of children deprived of their
liberty, as outlined in the United Nations Rules for the Protection of
Juveniles Deprived of their Liberty (Riyad Rules).
The Western Australian
Inspector of Custodial Services, Professor Richard Harding, has described
the Immigration Detention Centres as "an absolute disgrace in terms
of conditions and standards that are applied." [8]
He states that " .. whilst there are several factors contributing
to this, one of the most important is that there is a complete absence
of proper accountability and transparency across the whole system. Immigration
Detention Centres need an autonomous Inspectorate of the kind that now
exists in Western Australia."
Under the General
Agreement and the Detention Services Contract, DIMIA officials are on
site at all Immigration detention facilities, purporting to monitor adherence
to the Immigration Detention Standards outlined above. In Professor Harding's
view, this purported mechanism of monitoring and accountability of the
contractor is quite illusory. While conducting a nine-hour visit to Curtin
Detention Centre in June, 2001, Professor Harding made the following observations:
What soon emerged,
however, is that the DIMIA representatives and the ACM personnel see
themselves as part of a unitary team. There is absolutely no differentiation
in the day-to-day behaviour of their roles. As I walked around the facility,
I was accompanied by two representatives of ACM and two of DIMIA. In
asking questions, I found that they deferred to each other on operational
and policy matters quite indiscriminately. There was absolutely no role
differentiation apparent between them. When I probed about this, I was
informed that DIMIA was not at liberty to discuss monitoring or accountability
arrangements as these were dealt with in Canberra, and were in any case,
commercial-in-confidence. [9]
The operation and
management of Immigration Detention Centres in Australia lacks transparency
and public accountability. ALHR shares the concerns expressed by the Inspector
of Custodial Services of Western Australia, that monitoring mechanisms
put in place by DIMIA are manifestly inadequate to ensure compliance with
Australia's international obligations, and the protection of human rights
and well being for children and young people currently held in detention.
(C) MONITORING
& INTERVENTION
Confidentiality
Undertakings and Mandatory Reporting
ALHR is deeply concerned
about the obstruction of information regarding alleged incidents of child
abuse and mistreatment occurring within Australian Immigration Detention
Centres. In particular, those centres for which Australasian Correctional
Management has responsibility for administration - Curtin (WA), Maribyrnong
(Victoria), Woomera (SA) and Villawood (NSW) - give rise to particular
concerns regarding confidentiality undertakings sought by ACM from professionals
working within each of the centres.
In three of the four
states in which ACM is responsible for the administration of Immigration
Detention Centres, New South Wales, South Australia, and Victoria, State
Parliaments have enacted mandatory reporting obligations for incidents
of suspected child abuse or mistreatment for various classes of professionals.
The respective legislative arrangements in respect of reporting of child
abuse for New South Wales, South Australia, Victoria and Western Australia
are outlined below:
New South Wales
Under Section 27
of the Children and Young Persons (Care and Protection) Act 1998
(NSW), the following professionals are required to report incidents of
suspected abuse or maltreatment of children:
any person who, in
the course of his or her professional work or other paid employment delivers
health care, welfare, education, children's services, residential services,
or law enforcement, wholly or partly, to children, and a person who holds
a management position in an organisation the duties of which include direct
responsibility for, or direct supervision of, the provision of health
care, welfare, education, children's services, residential services, or
law enforcement, wholly or partly, to children.
This includes:
- Medical practitioners;
- Principals, deputy
principals, teachers via their principals, school social workers and
counsellors;
- Police;
- Department of
Health workers (under their own departmental guidelines).
The following matters
are required to be reported (Section 23):
- Suspicion on reasonable
grounds of physical/psychological needs not being met;
- Suspicion on
reasonable grounds of incidents where medical care has not been provided
when necessary;
- Suspicion on
reasonable grounds of physical or sexual abuse or ill-treatment;
- Suspicion on
reasonable grounds of situation where the child lives in a house where
there has been domestic violence and as a result the child is at serious
risk of physical/psychological harm;
- Suspicion on reasonable
grounds that a parent or other caregiver has behaved in such a way towards
the child or young person that the child or young person has suffered
or is at risk of suffering serious psychological harm.
Any reports of alleged
child abuse or mistreatment must be made to the NSW Department of Community
Services as soon as possible. A failure to do so is a criminal offence
and may be subject to a fine of not more than 200 penalty units (Section
27).
South Australia
Under Section 11
of the Children's Protection Act 1993 (SA), where a person to whom the
Act applies suspects on reasonable grounds that a child has been or is
being abused or neglected and the suspicion is formed in the course of
the person's work (whether paid or voluntary) or of carrying out official
duties, then the person must notify the SA Department of Human Services
of that suspicion as soon as practicable after he or she forms the suspicion.
The maximum penalty for failing to do so is $2500.
The Act applies to
the following professionals:
- Medical practitioners,
nurses, dentists;
- Pharmacists;
- Psychologists;
- Police;
- Probation officers;
- Social Workers;
- Teachers;
- Family day care
providers;
- Employees of,
or volunteers in, government departments, agencies or local government
or non-government agencies that provide health, welfare, education,
childcare or residential services wholly or partly for children.
Suspicion on reasonable
grounds of the matters which must be reported are (Section 6):
- sexual abuse of
the child;
- physical or emotional
abuse of the child, or neglect of the child, to the extent that
- the child has
suffered, or is likely to suffer, physical or psychological injury detrimental
to the child's wellbeing; or
- the child's physical
or psychological development is in jeopardy.
Victoria
Under Section 64
of the Children and Young Persons Act 1989 (VIC), a person referred
to in sub-section (1C) of Section 64 who, in the course of practising
his or her profession or carrying out the duties of his or her office,
position or employment as described in that paragraph, forms the belief
on reasonable grounds that a child is in need of protection must notify
the Victorian Department of Human Services of that belief and of the reasonable
grounds for it as soon as practicable-
(a) after forming
the belief; and
after each occasion
on which he or she becomes aware of any further reasonable grounds for
the belief.
The maximum penalty
for failing to do so is $1000.
The professions referred
to are:
- Doctors, nurses;
- Psychologists;
- Police;
- Primary and secondary
school teachers and principals;
- Youth and welfare
workers;
- Probation officers
and youth parole officers;
- Other workers
in related community and welfare services fields.
For the purposes
of the Act, a child is in need of protection if any of the following grounds
exist (Section 63):
(a) the child has
been abandoned by his or her parents and after reasonable inquiries:
the parents cannot
be found; and no other suitable person can be found who is willing and
able to care for the child; the child's parents are dead or incapacitated
and there is no other suitable person willing and able to care for the
child; the child has suffered, or is likely to suffer, significant harm
as a result of physical injury and the child's parents have not protected,
or are unlikely to protect, the child from harm of that type; the child
has suffered, or is likely to suffer, significant harm as a result of
sexual abuse and the child's parents have not protected, or are unlikely
to protect, the child from harm of that type; the child has suffered,
or is likely to suffer, emotional or psychological harm of such a kind
that the child's emotional or intellectual development is, or is likely
to be, significantly damaged and the child's parents have not protected,
or are unlikely to protect, the child from harm of that type; the child's
physical development or health has been, or is likely to be, significantly
harmed and the child's parents have not provided, arranged or allowed
the provision of, or are unlikely to provide, arrange or allow the provision
of, basic care or effective medical, surgical or other remedial care.
Western Australia
In Western Australia,
there are no mandatory reporting provisions for child abuse or neglect
under the Child Welfare Act 1947 (WA) or the Community Services
Act 1972 (WA). However, any person may report their concern to the
WA Department of Family and Children's Services. The WA system is based
on there being a duty of care owed by those involved in the provision
of health, welfare and police services, which provides for a moral duty
to report any concerns. Certain professionals may be subject to internal
or departmental obligations imposed by their relevant Government Department.
As well, section
31A of the Child Welfare Act 1947 (WA) provides punishment provisions
for misconduct or neglect causing a child to be in need of care and protection.
It states:
(1) Any person
who has, either by wilful misconduct or habitual neglect, or by any
wrongful or immoral act or omission caused or suffered any child to
become, or to continue to be, a child in need of care and protection,
or contributed to any child becoming, or continuing to be, a child in
need of care and protection, shall be guilty of an offence.
Penalty:
$10 000 or imprisonment for 12 months, or both.
Relevance to Immigration
Detention Centres under ACM Management
In each of NSW, Victoria
and South Australia, professionals covered by the respective legislative
instruments are regularly engaged in their professional capacity within
Immigration Detention Centres. This includes medical practitioners, nurses,
psychologists, social workers and teachers. To obtain entry into the detention
centres, these professionals are required to provide confidentiality undertakings
to ACM which effectively prevents them from disclosing to third parties
any information regarding detainees or the administration of the centre.
This is a clear conflict with the professional's obligation to report
suspected incidents of child abuse/mistreatment as outlined in the above
legislative instruments. The failure to report such incidents constitutes
a criminal offence, for which the confidentiality undertaking provided
by the professional offers no defence for the professional concerned.
ALHR is concerned
that professionals who comply with their mandatory reporting obligations
under the State legislative instruments, may be denied entry into ACM
managed facilities, on the basis of a perceived breach of their confidentiality
undertakings. By requiring confidentiality undertakings from professionals
with mandatory reporting obligations under the relevant legislation, ACM
is causing these professionals to be in breach of:
(a) section 27 of
the Children and Young Persons (Care and Protection) Act 1998 (NSW);
section 11 of the Children's Protection Act 1993 (SA); and
section 64 of the Children and Young Persons Act 1989 (VIC),
as relevant.
Under Clause 7.1
of the General Agreement between the Commonwealth of Australia and Australasian
Correctional Services Pty. Ltd, dated 27 February, 1998, the contractor
must, when delivering Services under the Service Contract, comply with
all Relevant Legislation, Policy and Procedures. ALHR submits that the
confidentiality agreements place ACM in breach of its service agreement
with the Commonwealth.
ALHR is further concerned
that ACM's confidentiality requirements puts it at odds with the spirit
and purpose of the International Covenant on Civil and Political Rights,
which provides for the right and freedom to seek, receive and impart information
and ideas of all kinds (Art 19(2)).
Accordingly, ALHR makes the following recommendations.
RECOMMENDATIONS
4. That the confidentiality
undertakings which ACM requires of professionals entering into immigration
detention facilities which it manages and operates, be assessed by HREOC
to determine whether they infringe the mandatory reporting provisions
of the Children and Young Persons (Care and Protection) Act 1998 (NSW),
the Children's Protection Act 1993 (SA), and the Children and Young Persons
Act 1989 (VIC) to the extent that such reporting provisions are necessary
to avoid breaches of human rights enshrined in State Law.
5. That HREOC investigate
whether seeking undertakings which produce these infringements, amounts
to a breach of the General Agreement and Service Contract between the
Commonwealth and Australasian Correctional Services Pty. Ltd.
6. That HREOC investigate
whether seeking such confidentiality undertakings which produce the above
mentioned infringements may expose ACM to criminal prosecution.
7. That the possibility
of initiating a private prosecution against ACM for seeking confidentiality
undertakings which undermine human rights enshrined in the Children and
Young Persons (Care and Protection) Act 1998 (NSW), the Children's Protection
Act 1993 (SA), and the Children and Young Persons Act 1989 (VIC) be investigated.
PART THREE - IDEAL PRACTICE.
RECOMMENDATIONS FOR CHANGE
INSPECTION
OF PRIVATELY RUN CORRECTIONAL FACILITIES - A USEFUL POINT OF COMPARISON
The experience of
the private prison system in Australia provides some perspective and depth
of knowledge on the issue of making private contractors accountable. For
those working in the prison sector, the issue of privatisation has been
a matter of ongoing concern, and the issue of accountability has been
a common subject for discussion and debate. [10]
In a number of jurisdictions
the problem of monitoring private correctional facilities has been dealt
with by the creation of independent watchdog type bodies. Notable among
these is the Inspector of Custodial Services in WA and in The Office of
Correctional Services in Victoria. These bodies have been established
to monitor the management of correctional facilities within their respective
states and to recommend action where standards fall below what is acceptable.
These bodies are largely responsible for developing best practice standards
and for providing guidelines for correctional facilities management.
The Inspector
of Custodial Services - WA
Western Australia
established the office of Inspector of Custodial Services in 2000. The
powers and scope are set out in the Prisons Act 1981 (WA) (Prisons
Act). The Inspector has broad powers to gain access to vehicles, prisons,
persons and documents, including documents in the possession of contractors
or subcontractors involved in prison management [11].
Importantly, the Inspector has the power to inspect prisons in Westerm
Australia at any time without having to give any notice. [12]
The Prisons Act
also provides significant penalties for hindering inspections under the
Act or for victimising people who assist the Inspector in the performance
of the Inspector's functions under the Act. [13]
Office of the
Correctional Services Commissioner - Victoria
As in Western Australia,
the Office of the Correctional Services Commissioner was created in Victoria
in response to the need for an independent monitor of private prison management.
The role of this office is to develop policy and standards and to play
an independent monitoring role to ensure the safe custody and welfare
of prisoners. The monitoring framework of the Office includes a brief
to provide detailed feedback to the providers of correctional services,
and to measure performance against best practice standards. [14]
Lack of systemic
safeguards in Immigration Detention
TheWestern Australian
Inspector of Correctional Services Professor Richard Harding has described
the condition of Australia's Immigration Detention Centres is 'almost
intolerable'. [15] Professor Harding's comments throw
into relief the nature and extent of the problems in Australia's IDCs.
In some Australian jurisdictions, a system for reviewing the ways in which
private prisons are managed, and for monitoring the treatment and wellbeing
of the prisoners within those correctional institutions, is being developed,
yet there is no equivalent systemic safeguard or ongoing formalised mechanism
for doing the same in relation to people in administrative detention.
ALHR endorses the
approach taken by Western Australia in respect of its correctional services,
and submits that such a system is necessary for the ongoing management
of IDCs, and in particular for ensuring the public accountability of ACM
in respect of the IDCs.
HREOC has a specific
role to play in relation to monitoring the agreement between the Commonwealth
Government and ACM or any other contractor taking on the management of
immigration detention facilities. HREOC should maintain a watching brief
in relation to Australia's IDCs with a view to intervening in cases with
in the detention centres where there may be breaches of human rights.
HREOC Legislative
Framework
Currently HREOC has
a broad discretion to inquire into acts or practices, examine bills or
legislation, and to report on anything which it determines as necessary
to fulfil its role of promoting human rights in Australia. [16]
The Migration
Act, however, prevents HREOC from contacting illegal non-citizens
unless they have been contracted in writing by that person. [17]
This restriction extends to contact with the Commonwealth Ombudsman. The
effect of this section of the Migration Act is that HREOC is prevented
from accessing asylum seekers who could have legitimate human rights claims
unless those individuals request HREOC's assistance.
Given that most people
do not have a sufficiently developed appreciation of the Australian legal
and administrative system to understand that they have a right to contact
the HREOC, this provision works in practice as a bar to contact with asylum
seekers. The existence of such a provision is not in the best interest
of those within detention centres in Australia, it impedes HREOC's capacity
to fulfil its proper function and by doing so it offends the United Nations
Principles relating to the status of national institutions (Paris Principles).
The Paris Principles provide minimum standards for the status and advisory
role of national human rights institutions and include the capacity of
such national institutions to hear any person or obtain any information
necessary for assessing situations falling within its competence.
RECOMMENDATIONS
8. That as soon as
practicable, the Federal Government establish an autonomous Office of
Inspector of Immigration Detention Services, with the responsibility of
reporting directly to Parliament of the state of Immigration Detention
Centres in Australia, and in particular, the level of compliance with
human rights standards. Such an Inspector should have the right of free
and unfettered access to any immigration detention facility at any time,
and take whatever equipment is deemed necessary to carry out his/her lawful
activities. The Inspector should be able to make unannounced inspections
of Immigration Detention Centres, as well as requiring the production
of any documents from DIMIA and/or the managers/operators of Immigration
Detention Centres.
9. That until the
Office of the Inspector of Immigration Detention Services is established
the following documents should be reviewed in their entirety by HREOC
to assess whether they comply with all international instruments and conventions
annexed to the Human Rights and Equal Opportunity Act 1986.
- all service agreements
with private companies for the provision of detention services for asylum
seekers together with Operating Manuals or Operating Rules, prior to
their execution
- all current Operating
Manuals or Operating Rules for the operation of immigration detention
centres by private companies.
10. That this review
role be handed over to the Office of the Inspector of Immigration Detention
Services once it has been established
11. That the Migration
Act be amended to repeal S193(3) - which excludes access by HREOC to detainees
without the written request of the detainee
1.
See ExComm Conclusion Number 44, UN Doc. A/AC.96/688,
paragraph 128. Note further Note on International Protection, 15 August
1988: UN Doc. A/AC/96/713, paragraph 19 which provides that asylum seekers
who arrive without documentation because they are unable to obtain any
in their country of origin should not be detained solely for that reason.
2.
See M Bossuyt, Guide to the Travaux Preparatoires of the
International Convenant on Civil and Political Rights, Martinus Nijhoff,
Dordrecht 1987, p. 343. See also the comments of the Human Rights Committee
in A v Australia, Communication No. 560/1993; Views of the Human Rights
Committee, 30 April 1997: UN Doc. CCPR/C/59/D/560/1993.
3.
See in particular, Riyad Rules (1990), Rules 1 & 2.
4.
Some of the more recent reports include:
5.
Those who've come across the Seas: Detention of Unauthorised
Arrivals HREOC (1999);
6.
Joint Standing Committee on Foreign Affairs Defence and
Trade- Human Rights sub-committee - A report on visits to Immigration
Detention Centres - tabled 18 June 2001;
The Flood Report - Inquiry into Immigration Detention Procedures in February
2001;
8.
Two reports by the Commonwealth Ombudsman in March 2001
- Report of an Own Motion Investigation in the Department of Immigration
and Multicultural Affairs Immigration Detention Centres; Report of an
Own Motion Investigation into Immigration Detainees held in State Correctional
Facilities;
9.
Joint Standing Committee on Migration produced Not the
Hilton - Immigration Detention Centres: Inspection Report in September
2001
10.
Report of an Own Motion Investigation into the Department
of Immigration and Multicultural Affairs' Immigration Detention Centres
- p 25; Flood Report - Inquiry into Immigration Detention Procedures -
February 2001 at p16
Flood Report - Inquiry into Immigration Detention Procedures - February
2001 at p 39
12.
Paragraph 7.36, Victorian Office of the Auditor-General,
Special Report No. 60 - Victoria's prison system: Community Protection
and Prisoner welfare.
Prof. Richard Harding, Inspector of Custodial Services of Western Australia,
Standards and Accountability in the Administration of Prisons and Immigrations
Detention Centres: A Description of the Role of the Western Australian
Inspector of Custodial Services and a Proposal for Bringing Equity and
Decency tot he Operation of Australia's Immigration Detention Centres,
A Speech to the International Corrections and Prisons Association Conference.
Prof. Richard Harding, Ibid.
See for example "Contracting out Community Correction : the judicial
perspective" Justice Frank Vincent, Supreme Court Victoria - Paper
presented at AIC Conference Privatisation and public policy: A Correctional
Case Study, Melbourne 16, 17 June 1997.
Prisons Act 1981 (WA) s 109K (g)(ii).
Act 1981 (WA) s 109J(2).
Last
Updated 10 October 2002.