HREOC Report No. 24

Report of an inquiry into complaints by five asylum seekers concerning their detention in the separation and management block at the Port Hedland Immigration Reception and Processing Centre

HREOC Report No. 24

1. Introduction

2. The Inquiry Process

3. Findings of Fact

4. Findings and Reasons for Findings

5. Summary of Findings

6. Recommendations

7. Actions Taken by the Commonwealth as a Result of the Findings and Recommendations

APPENDIX A: Functions of the Human Rights and Equal Opportunity Commission in Relation to Human Rights

APPENDIX B: Management Plan Memorandum

1. Introduction

This is a Report of the findings and reasons for findings made by the Human Rights and Equal Opportunity Commission [1] (the Commission) following an inquiry conducted by the Commission. The inquiry related to a complaint by Amnesty International Australia (Amnesty) on behalf of Mr PH1, Mr PH2, Mr PH3, Mr PH4 and Mr PH5 (the asylum seekers) against the Commonwealth of Australia (the Commonwealth), Department of Immigration, Multicultural and Indigenous Affairs (the Department). The complaint was made pursuant to section 20(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act), which provides for a complaint to be made in writing to the Commission alleging that an act or practice is inconsistent with or contrary to any human right.

Amnesty's complaint concerned an incident which occurred at the Port Hedland Immigration and Reception Processing Centre (PHIRPC) on 1 December 2000. This incident involved the placement of the five asylum seekers in the Separation and Management Block within the IRPC, known as Juliet or "J" block, for a period of six and a half days. Amnesty alleged, on behalf of the asylum seekers, that their human rights had been violated because:

(a) there was no basis for holding the asylum seekers in "J" block for six and a half days; and

(b) the conditions of detention in "J" block did not met minimum standards of humane treatment.

Amnesty also alleged that the human rights of the asylum seekers had been violated because there was no basis for their placement in "J" block, but this allegation was not substantiated.

2. The inquiry process

I have investigated this complaint pursuant to section 11(1)(f) of the HREOC Act and conciliation was attempted. However, agreement was not able to be reached and I have formed the view that these matters were not amenable to conciliation.

I have provided to the parties my Preliminary Report dated 29 January 2002 and my Further Preliminary Report dated 6 March 2002. These reports outlined my preliminary findings of fact and law in relation to the complaint.

The parties were given an opportunity to respond to these Preliminary Reports. Amnesty made written submissions dated 22 March 2002 and the Department made written submissions dated 3 May 2002.

On 23 September 2002, I provided to the parties my Notice of findings and reasons for findings pursuant to section 29(2) of the HREOC Act. The findings and reasons for findings made in that Notice appear below.

3. Findings of fact

3.1 The Security Risk Management Australia report

As a result of the seriousness of the incident which occurred at the PHIRPC on 1 December 2000, the Department engaged Security Risk Management Australia (SRM) to:

investigate the circumstances of the incident and identify the precise details of the events that occurred;
identify what Australasian Correctional Management (ACM) procedures were not adhered to in relation to the incident;
identify what action ACM has subsequently taken to prevent similar lapses in procedure; and
identify any further action [it] believes is required to improve ACM procedures [2]

SRM conducted consultations with the Department and ACM, obtained documents from the Department and ACM, including documents relating to detention policies and procedures, and interviewed Departmental and ACM staff. No interviews were conducted with, nor information obtained from, the asylum seekers or any other detainees in the IRPC. A Report entitled "Investigation of Incident and Evaluation of Incident Reporting Procedures at the Port Hedland Immigration Reception and Processing Centre" and dated 17 August 2001 was produced (the SRM Report). The SRM Report made a number of findings concerning, and recommendations arising out of, this incident. Unless otherwise indicated, the findings of fact contained in this Report adopt the findings of fact contained in the SRM Report.

3.2 The "extraction" on 1 December 2000

On 1 December 2000, a dispute arose over the allocation of accommodation at the PHIRPC. At approximately 1530 hours on this day an order was given by the then ACM Centre Manager, Mr Robert McKeown, that the asylum seekers and other Sri Lankan detainees move into the recently refurbished Golf or "G" block. At approximately 1600 hours, and while the asylum seekers and other Sri Lankan detainees were in the process of moving to "G" block, several Iraqi and Iranian detainees approached a Detention Officer at the IRPC to complain about this allocation of accommodation. Shortly thereafter, an order was given by a Detention Supervisor preventing the asylums seekers from moving into "G" block.

At approximately 1730 hours on 1 December 2000, the asylum seekers and fourteen other Sri Lankan detainees congregated in the breezeway at the PHIRPC adjacent to the mess block. The asylum seekers and the Sri Lankan detainees requested to see the Centre Manager about the Detention Supervisor's order but they were unable to do so as Mr McKeown had left the IRPC for the night. Initially this protest consisted of peaceful attempts by the asylum seekers and other Sri Lankan detainees to speak to management within the IRPC about Detention Officer Wallace's decision. However, after the asylum seekers and the other Sri Lankan detainees had waited for a period of time and been repeatedly told that the Detention Supervisor in charge of the IRPC at that time, Mr Micheal Reason, had no authority to alter Detention Supervisor Wallace's decision, this protest became more vocal and heated.

After attempts at negotiation failed, Detention Supervisor Reason formed the opinion that the protesters were serious and would not desist until their accommodation demands had been met. He also formed the view that the situation was likely to degenerate into a conflict between the Sri Lankan detainees and other detainees if it was not resolved quickly. An ultimatum was then issued to the asylum seekers and the other Sri Lankan detainees, but this only served to make them more agitated.

At approximately 1905 hours, after being identified as "the agitators" in the group, Mr PH1, Mr PH2, Mr PH3 and Mr PH4 were "extracted" from the breezeway area and conveyed to Juliet or "J" block within the IRPC. At approximately 2042 hours, Mr PH5 was also conveyed to "J" block after allegedly threatening a female Detention Officer.

The asylum seekers remained in "J" block until their release at 0934 hours on 8 December 2000.

3.3 Conditions of detention in "J" block

Juliet or "J" block is a two storey building constructed of concrete blocks which was used, at the time of this incident, as the Separation and Management block within the IRPC because of its more secure construction [4]. Rooms in this block are able to be secured "on the bolt" and it has its own exercise yard. [5]

The asylum seekers were accommodated in "J" block in two groups, of three and two, in rooms on the ground floor. After admitting the asylum seekers to "J" block on 1 December, 2000, the total number of detainees held in this block was nineteen.

The conditions of detention for the asylum seekers in "J" block have been the subject of dispute between Amnesty and the Department. My findings on this issue are set out below.

3.3.1 Clothes

In its initial letter of complaint dated 21 December 2000, Amnesty asserted that the asylum seekers were not permitted to change their clothes at all during the period of their detention in "J" block. In the SRM Report the following findings were made:

6.3.2 Changing Clothes

According to D/O COE who was on duty in Juliet block for part of the five detainees' period there, they should have been allowed to change their clothing. However, despite repeated requests from Detention Officers in Juliet block to Supervisors to have their clothes brought to Juliet block, this was not done.

Part of the reason for this appears to be a dispute between Supervisors about who should do this. In fact the Perth CER T Supervisor LEIS specifically instructed his staff who had been tasked with packing the detainees clothes and taking them to Juliet block not to, but patrol 'the compound area only as this was the agreement with management'.

D/S BROWN requested D/O COE to compile a list of everything the detainees required and provide this list to the Operations Manager. This was done at about 0800 hours on 4th December, 2001.

Case Note records show that the detainees received their clothes as follows:

NBP228 [Mr PH1] Photocopied records incomplete

NBP393 [Mr PH2] 1615 hours, 5th December, 2000

NBP420 [Mr PH3] No record

FIMO12 [Mr PH4] No record

FIMO13 [Mr PH5] 1415 hours, 5th December, 2000

Conclusions

At least two of the detainees (NBP393 and FIMOI3) did not receive their change of clothes for four days after being admitted to Juliet block. There is no record of NBP420 and FIMO12 having been given additional clothes during their period in Juliet block and due to photocopying errors of now lost records, it is not possible to determine if, or when NBP228 received additional clothes after his admittance to Juliet block.

Their requests were not addressed immediately as required by policy and procedure in force at the time, although these requests were conveyed by Juliet block staff to their supervisors.

These findings in the SRM Report have not been disputed by the Department. Therefore, I find that Mr PH2 and Mr PH5 received a change of clothes after almost five days of detention. The remaining asylum seekers did not receive a change of clothes at all during the six and a half days of their detention.

3.3.2 Telephone calls

In its initial letter of complaint dated 21 December 2000, Amnesty asserted that the asylum seekers were not permitted to make telephone calls during the period of time they were held in "J" block. In the SRM Report the following findings were made:

6.3.3 Telephone Calls

During the period of separation, the 'Management Plan Upper J Block' Memorandum was being applied to the management of activities at Juliet block. This instruction was issued by the Operations Manager, Graham HINDMARSH on 30th November, 2000. [This Management Plan is Annexure B to this Report].

The Plan makes no mention of telephone calls and D/O COE raised the issue in correspondence to D/S WALLACE that because the Plan was not to be deviated from, that the provision of, or denial of telephone calls was not clear.

According to D/Os COE and WALKER who were on duty for part of the time the five detainees were in Juliet block, none of the five detainees requested to make a telephone call during the period of their separation in J block.

Records show that other detainees were taken for telephone calls during the period of separation and that no record exists of any of the five Sri Lankans requesting or being taken for telephone calls.

Conclusions

According to staff working at Juliet block at the time and records maintained, none of the five detainees requested to use a telephone during their period in Juliet block. Other detainees held in Juliet block during the same period are recorded as having used telephones.

It is not possible to determine from this if requests for telephone calls were denied (and hence not recorded), or whether they were not requested (and hence not recorded).

In its written submissions, the Department disputed that the asylum seekers were denied access to the telephone. It stated that:

Detention Officer Antoinette Coe in her statement of 27 December 2000 says "At no stage while I was on duty did anyone of the said residents request to make any phone calls." The SRM Report also states D/O Walker received no such requests. Records, however, do exist of other detainees in Juliet Block being taken for telephone calls. There is no evidence to suggest that the detainees would not have been granted permission to use the telephone if requested.

As the SRM Report notes, there is a paucity of evidence on this point. In Mukong v Cameroon [6], the United Nations Human Rights Committee (UNHRC) commented on the evidential requirements of a complaint under the Optional Protocol of the ICCPR:

[t]he Committee does not accept the State party's views [that the burden of proof lies with the author of the complaint]… Mr Mukong has provided detailed information about the treatment he was subjected to; in the circumstances, it was incumbent upon the State party to refute the allegations in detail, rather than shifting the burden of proof to the author. [7]

Accepting that a strict burden of proof does not lie with the asylum seekers, I turn to consider the evidence provided by the Department to refute the asylum seekers' assertions. The Department relies upon the Memorandum of Detention Officer Coe provided to the SRM inquiry and ACM records.

I have considered Detention Officer Coe's assertion that she did not receive any requests from the asylum seekers to access the telephone but do not find it to be determinative of the issue. Detention Officer Coe was on duty in "J" block on 1, 2 and 3 December 2000 from 1900 hours to 0700 hours. As she was working the nightshift on only three out of the seven nights the asylum seekers spent in "J" block, it is perhaps unsurprising that no requests were made to her to use the telephone. In accordance with the Management Plan, it would appear that there were at least three Detention Officers per shift rostered onto the Juliet Post. No statements are available from any of the Detention Officers who worked the many shifts during the six and a half days of the asylum seekers' detention, other than that of Detention Officer Coe. This inquiry was not provided with a statement from Detention Officer Walker.

It is also difficult, in my view, to attribute much weight to ACM's detention records. The SRM Report notes that these records are incomplete and Detention Officer Coe asserts in her undated statement to the SRM inquiry that the entries in the Daily Occurrence Logbook for the relevant period of the asylum seekers' detention had been removed .[8]

Moreover, it is not correct to assert that there is "no evidence to suggest that the detainees would not have been granted permission to use the telephone if requested". In her Memorandum to Detention Supervisor Wallace dated 27 December 2000, Detention Officer Coe refers to the uncertainty surrounding whether detainees held in "J" block were permitted to make telephone calls. This arose from the fact that the Management Plan makes no mention of these. I accept that Detention Officers, like Detention Officer Coe, were well aware that the Plan "was NOT permitted to be deviated from" [9] as "this was re-enforced [sic] in verbal briefings at the commencement of shift" [10]. It is therefore possible that these officers did deny the asylum seekers permission to use the telephones, on the assumption that this is what this Plan required.

For all of the above reasons, I am not satisfied that the Department has refuted the asylum seekers' assertions in relation to the telephone. I am therefore prepared to accept that these asylum seekers did make requests to use the telephone and that those requests were denied. As Amnesty pointed out, this finding is supported by the fact that, as soon as they were able to do so, that is, immediately upon their release from "J" block, the asylum seekers placed a call to Amnesty to complain about their treatment.

3.3.3 Fresh air

In its initial complaint dated 21 December 2000, Amnesty alleged that, in the six and a half days that the asylum seekers were detained in "J" block, they were only allowed out of their rooms twice for ten minutes at a time. In the SRM Report the following findings were made:

6.3.5 Fresh Air

Detainees Case Note records show that they were moved outside for fresh air as follows:

NBP228 Photocopied records incomplete; 1600 -1615 hours, 7th December, 2000

NBP393 1215 -1225 hours, 3rd December, 2000 1600 -1615 hours, 7th December, 2000

NBP420 1150 -1200 hours, 3rd December, 2000 1600 -1610 hours, 7th December, 2000

FIMO12 1215 -1225 hours, 3rd December, 2000 1600 -1615 hours, 7th December, 2000

FIMD13 1215 -1225 hours, 3rd December, 2000 1600 -1615 hours, 7th December, 2000

Conclusions

Records show that the detainees were permitted a total of 20 -25 minutes of fresh air breaks during the six and a half day period of separation detention in Juliet block. This is clearly in contravention of policy and procedures which were in force at the time (which stipulate thirty minutes every two hours), although it is known that because of the 'Management Plan Upper J Block' implemented by the Operations Manager on the 30th November, 2000 that without additional staff the number of detainees in Juliet block at the time could not be provided with their fresh air entitlements.

In its written submissions, the Department did not dispute this finding. I therefore find that the assertions made by Amnesty on behalf of the asylum seekers are substantially correct. In the six and a half days of their detention, the asylum seekers were only permitted two fresh air breaks, as detailed in ACM detention records, for a period of ten to fifteen minutes on each occasion. The rest of their time in detention was spent locked in their rooms. [11]

3.3.4 Room lighting

In its initial letter of complaint, Amnesty asserted that the asylum seekers were:

… kept in darkness … and may have been allowed sunlight only twice for ten minutes during this time. Amnesty International understands that there may have been light bulbs in the respective rooms but that the switches were outside the doors which were kept locked. Amnesty understands that the lights to the rooms in which [the asylum seekers] were confined may have been switched off while [the asylum seekers] were in the "punishment block".

In the SRM Report the following findings were made:

The five detainees were accommodated in two groups of three and two in rooms which have windows protected on the outside with cyclone screens, glass which has been painted with whitewash and a security screen of small mesh on the inside. All rooms except one have electric lighting which is controlled from switches within the rooms.

Because of the painted windows and two layers of metal screens, the ambient light levels in the rooms is slightly lower than in rooms without such window treatments.

In addition, records show that there was a period commencing from 1125 hours on 4th December, 2000 when the electricity supply to Juliet block failed.

Conclusions

Accommodation rooms in Juliet block are 'dim' as a consequence of protective and privacy treatments on the windows. Light switches are on the inside of almost all rooms in the block, although a power outage did occur during the period of separation detention in question.

There is no evidence that the five detainees were kept in darkness, although the distinction between' dim' and 'darkness' may be a question of perspective.

In its written submissions, the Department submitted that:

It is accepted that it is possible one group of the detainees was held in the room without the light switch inside the room. However the SRM Report further finds "there is no evidence that the five detainees were kept in darkness". The Department, therefore, does not accept that the detainees were held in dim or dark rooms for a period of six and a half days.

Given the findings in the SRM Report, it is difficult to understand the basis for this submission by the Department. The SRM Report found, and I accept, that the lighting in all of the rooms in "J" block was, at best, "dim". While the SRM Report's assertion that there is no evidence that all five of the asylum seekers were held in darkness is true, there is evidence to support a finding that two, and maybe three, asylum seekers were held in darkness for at least part of their time in "J" block. As accepted by the Department, it is possible that two or three of the asylum seekers were held in a room which had the light switch on the outside of the door. The fact that the asylum seekers were able to accurately describe a room that had a light switch positioned on the outside of the door leads me to conclude that this is indeed the room in which one group of asylum seekers was held, and that at least part of their time in detention in "J" block was spent in darkness. I find that the remaining asylum seekers were held in another room where the lighting was dim, and I adopt the SRM Report's comment that the distinction between dim and dark is a matter of perspective.

3.3.5 Toileting

Amnesty asserted, in their initial complaint, that while in "J" block the asylum seekers did not have access to the toilet on demand. Instead, the asylum seekers were required to wait from ten minutes to an hour and, on each occasion, five officers escorted them to the toilet. Amnesty also complained that the asylum seekers were "videotaped", although it did not specify what actions of the asylum seekers were videotaped.

In the SRM Report, the following findings were made on this matter:

6.3.6 Delay for Toileting

During the period of separation, the 'Management Plan Upper J Block' Memorandum was being applied to the management of activities at Juliet block. This instruction was issued by the Operations Manager, Graham HINDMARSH on 30th November, 2000.

It was quickly realised by ACM personnel working at Juliet block that the Plan was not workable because of the number of Officers tasked at Juliet block and the number of detainees in residence.

According to DIO COE, given the number of detainees in residence at Juliet block, the requirement that three Officers be in attendance whenever a detainee was out of the room (including for toileting and showers), it is certain that the detainees would not have been able to go to the toilet immediately upon their request, but would have had to wait some time, ten minutes or more.

6.3.7 Videotaping

Video taking of staff interaction with detainees is the practice at the PHIRPC whenever dealing with non-compliant detainees or when ACM personnel may be subject to scrutiny.

The ACM Investigations Manager has recovered two video tapes containing scenes of PHIRPC D/Os dealing with detainees in Juliet block on the 2nd and 3rd of December, 2001. No other tapes relevant to the area during the period of separation under investigation are known to exist.

The video product obtained shows staff dealing with the detainees and escorting them to toilet and shower facilities only. In those videos the privacy of detainees was not infringed whilst they were actually carrying out their toileting or showering activities.

Conclusions

Toileting

D/O COE has confirmed that because of the restrictions implemented by the Operations Manager's Management Plan issued on the 30th November without provision of extra staff, detainees in Juliet block did have had (sic) to wait before being able to be taken to the toilet. This wait was at least ten minutes and in some cases longer.

Videotaping

In accordance with policy and procedures, videotaping of detainee/staff interactions and movements was a practice carried out at Juliet block at some times during the period of separation detention in question.

However, detainees were not video taped whilst actually using toilets, but only being escorted to the area.

These findings were not disputed by the Department. Therefore, I find that the asylum seekers had to wait for periods of ten minutes or longer to be escorted to the toilet because at least three officers were required to escort any detainee in "J" block when s/he was outside of his/her room. I find also that the asylum seekers were videotaped being escorted to the toilet and shower blocks on occasion but not while actually using these facilities.

3.3.6 Soap

In its initial complaint, Amnesty asserted that there was only piece of soap provided to the nineteen detainees held in "J" block from 1 December 2000 to 8 December 2000. In the SRM Report, the following findings were made on this issue:

6.3.8 Soap

According to D/Os COE and WALKER who were on duty for part of the time the five detainees were in Juliet block, all residents in separation detention were issued with a 'bed pack', which should have included one cake of soap.

Conclusions

No evidence has been found to suggest that the five detainees were not provided with soap individually during their time in Juliet block as part of a 'bed pack'.

In its written submissions, the Department asserted that it did not accept that the asylum seekers were forced to share one piece of soap. In Detention Officer Coe's Memorandum to Detention Supervisor Wallace dated 27 December 2000, she asserted that on her shifts "all residents, said residents included, were given soap upon their request" and that she was advised on 3 December 2000 [12] by the dayshift officers that the residents of "J" block had been provided with bed packs which included a cake of soap. At least in respect of Mr PH4, some doubt is cast upon this evidence by the ACM Case Notes provided to the SRM inquiry. Mr PH4 was initially recorded as receiving his "bed pack Bedding, 2 x sheets 1 x blanket" at 0636 hours on 7 December 2000. The word "bed pack" was later crossed out. Moreover, prior to the time that the asylum seekers received their bed pack it is not clear what the arrangements were made concerning soap. However, given the contradictory nature of the evidence, I do not make any finding adverse to the Department on this issue.

3.4 Release from detention in "J" block

At approximately 1956 hours on 5 December 2000, the asylum seekers made a written request for an interview with the then Departmental Business Manager at the PHIRPC, Mr Richard Konarski. When Mr Konarski received this request, he was very "surprised and immediately concerned" [13] as he was unaware that the asylum seekers had been transferred to "J" block on 1 December 2000 and held there since that time. The Department advises that Mr Konarski cannot recall the date he received this written request for interview, or the date that he interviewed the asylum seekers. Through the Department, Mr Konarski has advised that he interviewed the group "as soon as possible" after their request to see him. He also advised that he would have requested ACM to move the asylum seekers out of "J" block to the residential compound immediately after he spoke to them.

The asylum seekers were released from "J" block at 0934 hours on 8 December 2000. Accepting Mr Konarski's assertion that the asylum seekers were released from detention immediately after he interviewed them, it is unclear why, and unacceptable that, it took two and a half days for the asylum seekers' request for an interview to be met.

As a result of his interview with the asylum seekers, Mr Konarski demanded a full explanation from ACM as to the circumstances surrounding this incident. The SRM Report states that:

The DIMA Business Manager is sure he reported the situation and made his concerns known to the DIMA Detention Operations Section in Canberra, but regrettably, no further action was taken at the time to pursue the matter with ACM senior management in Sydney to resolve the non- reporting issue and to get a report on the incident.

Whilst the DIMA Business Manager persisted with his requests for such a report with local ACM management at the PHIPRC, no report was forthcoming until after Amnesty International Australia raised the incident with DIMA… [14]

As a result of this incident, a number of senior ACM employees were dismissed. The SRM Report advises that:

The ACM staff member who was ultimately responsible for the management of the separation detention and the reporting of the incidents to DIMA, Centre Manager Robert McKeown, has been removed from the PHIRPC by ACM. [15]

In its written submissions to this inquiry, the Department advised that:

Officers Wallace and Hindmarsh were subsequently dismissed by ACM for breaches of the ACM Code of Conduct. Juliet Block was decommissioned in February 2001 and will not be recommissioned until it has been extensively refurbished. The Department applied sanctions against ACM for failure to report the incident and failure to meet the Dignity criterion of the Immigration Detention Standards.

4. Findings and reasons for findings

4.1 Introduction

Where a complaint is received by the Commission, it has the function, pursuant to section 11(1)(f) of the HREOC Act, of inquiring into:

any act or practice
that may be inconsistent with or contrary to any human right.

4.2 Was there an act or practice?

Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth. These words have their ordinary meaning: that is, the noun "act" denotes a thing done and the noun "practice" denotes a course of repeated conduct. [16]

An "act" or "practice" only invokes the human rights complaints jurisdiction of the Commission where the relevant act or practice is within the discretion of the Commonwealth, its officer or agents. If the automatic operation of a law requires that the act or practice be done by or on behalf of the Commonwealth, its officers or its agents, and there is no discretion involved, these actions and practices will be outside the scope of the Commission's human rights complaints jurisdiction [17].

The Migration Act establishes a system of mandatory detention whereby all "unlawful non-citizens" [18] must be held in immigration detention [19] until they are granted a valid visa or leave the country [20]. The Commission in its Report, Those who've come across the seas: Detention of unauthorised arrivals [21], found that these provisions in the Migration Act contravene Australia's human rights obligations under article 9 of the International Covenant on Civil and Political Rights (ICCPR) and article 37 of the Convention on the Rights of the Child [22]. Consequently, the Commission recommended that these provisions be amended [23]. However, while this law remains in place, a person's detention under the Migration Act occurs by reason of the automatic operation of the law and would not constitute an act or practice into which the Commission could inquire.

On the other hand, the relevant decision in this case did not involve the automatic application of the law. The decision to place an asylum seeker detained in an immigration detention centre into a segregation or "management" block of that centre, and decisions about the length of time that an asylum seeker is to spend there, are decisions which involve the exercise of discretion by the Department, its officers and ACM as the agent of the Commonwealth under the Detention Services Contract dated 27 February 1998. In addition, decision-makers within the Department and ACM have a wide discretion as to the conditions under which a person is held in a "management" block within an IRPC. Decisions concerning all of these matters are, therefore, "acts" done by the Commonwealth, as defined in section 3 of the HREOC Act, and within the Commission's complaints jurisdiction.

4.3 Were the acts inconsistent with and/or contrary to any human right?

In its complaint, Amnesty International requested that I inquire into alleged breaches of human rights. As detailed above, pursuant to section 11(1)(f) of the HREOC Act, I have the function of inquiring into any act or practice which is inconsistent with or contrary to any human right. "Human rights" are defined in section 3 of this Act as "the rights and freedoms recognised in the [ICCPR], declared by the Declarations or recognised and declared by any relevant international instrument".

4.4 Were the acts inconsistent with and/or contrary to the human rights recognised in the ICCPR?

The ICCPR entered into force for Australia on 13 November 1980. The ICCPR applies to all persons within the territory of a State Party regardless of their nationality or status as a non-citizen [24]. Thus, the ICCPR applies to all asylum seekers, refugees and persons within Australia's jurisdiction whose applications for refugee protection have been rejected.

4.4.1 Article 9 of the ICCPR

In its complaint, Amnesty alleged that the five asylum seekers were detained in "J" block for an unreasonable length of time. In my Further Preliminary Report, I expressed the preliminary view that the detention of the asylum seekers in "J" block for a period of six and a half days constituted arbitrary detention within the meaning of article 9(1) of the ICCPR. The Department disputed this finding.

4.4.1.1 Does article 9(1) of the ICCPR apply to the asylum seekers?

Article 9(1) of the ICCPR provides that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest and detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.

In its written submissions, the Department argued that:

Alleged contravention of Article 9 (1) of the International Covenant on Civil and Political Rights (ICCPR)

The President of HREOC is of the further preliminary view that the detainee's detention in Juliet Block of Port Hedland Immigration Reception and Processing Centre (IRPC) for a period of six and a half days was inconsistent with and contrary to Article 9 (1) of the ICCPR.

Article 9 (1) provides that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.

Article 9(1) essentially deals with the right to liberty, that no one shall be subject to arbitrary arrest or detention. Immigration detainees are not at liberty results from the operation of the law, ie: the Migration Act 1958. As the Department has previously stated, this detention is not arbitrary.

Constitutional law establishes the propositions that:

a power of detention which is punitive and not consequent upon a finding of criminal guilt by a court cannot be conferred on the Executive by a law of the Commonwealth; and

a power of detention will be considered punitive unless the detention is reasonably capable of being seen as necessary for a legitimate non-punitive objective.

In Chu Kheng Lim v Minister for Immigration [(1992) 176 CLR 1] the High Court found that in so far as a power to detain an unlawful non-citizen is limited to what is reasonably necessary to effect removal or to enable an application for entry to be made and determined, the power will not be considered punitive in nature.

The Department does not accept the argument that a person who has already been deprived of his or her liberty can be subjected to a further detention within the meaning of Article 9 (1). The essence of both immigration detention and detention within a specific area of an immigration detention facility is that the person is deprived of the ability to live in the general community and is prevented from moving into and within the general community. Moving the detainees from one area to another area of the Port Hedland IRPC did not fundamentally alter this. The Department does not agree that moving a person who is lawfully detained in one place of detention to another place of detention, permissible under the law and envisaged by the parliament in making the law, could of itself be a "further" detention.

The main test in relation to whether detention is arbitrary is whether it is reasonable, necessary, proportionate, appropriate and justifiable in all of the circumstances. The Government of Australia understands that the key elements in determining whether detention is arbitrary are whether the circumstances under which a person is detained are reasonable and necessary in all of the circumstances or otherwise arbitrary in that the detention is inappropriate, unjust or unpredictable. Further, detention will not be arbitrary if it is demonstrated to be proportional to the end that is sought.

The Department does not agree with the interpretation of the President that transferring the detainees to Juliet Block was a detention within the meaning of Article 9 (1). The issues raised do not go to the lawfulness of a State's rights to detain but rather conditions under which persons are detained.

The word "detention" in Article 9 (1) refers to a single period of detention which commences when a person is deprived of their liberty and concludes when that person's liberty is restored. All the circumstances arising during that detention (including individual episodes of different modes and conditions of detention) may be relevant to determining whether the detention overall is "arbitrary" for the purposes of Article 9 (1), but are not of themselves subject to individual assessment of whether they separately constitute "arbitrary detention" under Article 9 (1).

The leading United Nations Human Rights Committee cases on the arbitrary detention aspects of Article 9 (1) have involved consideration of the entire period of detention (eg Van Alphen v the Netherlands [Communication No. 305/1988, CCPR/CJ39/D/305/1988]). While it is clear that the inquiry required by Article 9 (1) extends beyond the initial detention and covers the entire period of detention, that does not suggest or require separate consideration of individual incidents.

Further, Article 5 of the European Convention on Human Rights is concerned with the protection of the same rights as those referred to in Article 9 (1) of the ICCPR. The European Commission of Human Rights has expressed the view that if a person has already been deprived of their liberty and is then subjected to additional limitations on their liberty, Article 5 of the European Convention on Human Rights does not apply in respect of those additional limitations.

Significant difficulties could arise if a single period of detention were able to be sub- divided into several, separate detention episodes, each of which could be subject to a separate assessment of arbitrariness against Article 9 (1). The Article aims to achieve a balanced, holistic approach as to whether the detention as a whole is reasonable, necessary, proportionate, appropriate and justifiable.

The detention of the detainees in Port Hedland IRPC, as stated above, is lawful and is not arbitrary. The Department does not accept the further preliminary finding by the President in relation to Article 9 as the findings of fact go to the conditions of detention and should be dealt with under Article 10 of the ICCPR.

The protection afforded by article 9 of the ICCPR extends to all deprivations of liberty, whether in criminal cases or in matters concerning immigration [25]. Although the asylum seekers were already in "detention" at the PHIRPC at the time of their transfer to "J" block, I consider that this transfer significantly altered the nature of their detention. As discussed in my Further Preliminary Report, the transfer of the asylum seekers to "J" block involved a further and serious deprivation of their liberty. The asylum seekers were held in dim or dark rooms and were only allowed outdoors for a total of 20 -25 minutes in the six and a half days of their detention. Only two of the asylum seekers received a change of clothing after almost five days of detention and the others not at all. Each of the asylum seekers were escorted by at least three officers to use the toilet or the shower, causing delays in using these facilities which may have been in excess of ten minutes. The asylum seekers did not have access to the telephone.

In my view, this change in the nature of the asylum seekers' detention rendered that detention open to a consideration or reconsideration of the basis for such detention. In order for detention not to be arbitrary, it must be proportionate to the aims of detention and justifiable on that basis. It follows that where the nature of detention alters significantly, the possibility that the new circumstances of detention may not be proportionate or justified is a real one that needs to be considered. In this way, I agree with the Department that the whole period of detention must be examined to determine whether the detention as it now stands is reasonable, necessary, proportionate and justifiable, and therefore not arbitrary.

The approach that detention that is initially lawful and not arbitrary may nevertheless come to breach article 9 by reason of subsequent events which change the nature of that detention is consistent with the jurisprudence of the UNHRC and the European Court of Human Rights. In A v Australia, the UNHRC stated that:

Every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification. [26]

In Spakmo v Norway [27] the UNHRC held that the initial arrest and consequent detention of the author was not arbitrary as it was a reasonable and necessary means of preventing a breach of orders of the police. However, the UNHRC found that detaining the author for eight hours was arbitrary and in breach of article 9(1) of the ICCPR as the State party had failed to establish why this subsequent period of detention was necessary.

Several decisions of the European Court of Human Rights have also examined the situation where a period of detention has been extended or otherwise changed in nature. The issue in those cases has been whether article 5 of the European Convention on Human Rights (the ECHR) has been breached. Article 5 of the ECHR is similar in terms to article 9(1) of the ICCPR, but omits the phrase "No one shall be subjected to arbitrary arrest or detention". [28] The requirement for absence of arbitrariness has nevertheless been implied as a "guiding principle for the interpretation" of that article of the ECHR". [29]

The European Court has held that changes in the nature of detention require renewed scrutiny of the new periods or stages of detention to ensure there is no arbitrariness. In Weeks v United Kingdom [30], the applicant, who had been given an indeterminate life sentence, was released on licence [parole] after ten years. He was subsequently recalled to prison but claimed that his detention was no longer justified under article 5(1)(a). The Court held that his recall to prison was a deprivation of his liberty that had to be lawful and not arbitrary. The Court stated that:

Article 5 applies to "everyone". All persons, whether at liberty or in detention, are entitled to the protection of Article 5, that is to say, not to be deprived, or to continue to be deprived, of their liberty save in accordance with [article 5(1)(a) - (e)]…

The freedom enjoyed by a life prisoner, such as Mr Weeks, released on licence is thus more circumscribed in law and more precarious than the freedom enjoyed by the ordinary citizen. Nevertheless, the restrictions to which Mr Weeks' freedom outside prison was subject under the law are not sufficient to prevent its being qualified as a state of 'liberty' for the purposes of Article 5.

The Court found that the decision to re-detain the applicant had not been arbitrary. However, their willingness to consider whether the re-detention at this stage was or was not arbitrary supports the view that, even where one order for detention has been lawfully made, different steps and stages of that detention can require reconsideration of its lawfulness and arbitrariness.

More recently in Erkalo v Netherlands [31], the applicant had been convicted for manslaughter and placed in a psychiatric institution at the disposal of the Government. The Court found that the respondent had breached article 5(1) of the ECHR because the applicant remained detained after his term had expired. The Prosecution had sought an extension of his detention but this was granted two months after the period of expiration of the original sentence. The applicant had therefore been detained for a two month period that was not based on any judicial decision. Even though it was a continuation of the original detention, the Court scrutinised the extended period for arbitrariness and found a breach.

In its written submissions, the Department cited the decision in X v Switzerland [32] as authority for the proposition that if a person has already been deprived of their liberty, article 5 of the ECHR does not apply in respect of any additional limitations on that person's liberty. In that case, the applicant had been granted day release from prison but returned to the prison more than four hours after he was required to return. The prison director imposed a disciplinary measure on him consisting of five days isolation and suppression of all further leave. The applicant argued that he was deprived of the liberty which he enjoyed in prison. The European Commission of Human Rights rejected that argument. It stated that the normal conditions of life in prison:

…constitute deprivation of liberty regardless of the freedom of action which the prisoner may enjoy within the prison. Therefore the disciplinary measures applied to the applicant cannot be considered as constituting a deprivation of liberty, because such measures are only modifications of the conditions of lawful detention.

In my view, the 1978 decision in X v Switzerland should not be followed. It seems to me that the Court has, in the time since X v Switzerland was decided, taken a wider view of article 5 of the ECHR (as set out in the cases discussed above) and thus impliedly overruled X v Switzerland. Indeed, in the many cases on this issue which have been decided by the Court since, that decision has not been mentioned. In addition, I regard recent decisions of the Court to be more authoritative than a 1978 decision of the Commission. Unlike the Court, the Commission cannot make final and binding decisions. Its limited role is to attempt to achieve a friendly settlement of a dispute and, if this cannot be achieved, to draw up a report to be submitted to the Committee of Members and the parties concerned .[33]

4.4.1.2 The meaning of "arbitrary" in article 9(1) of the ICCPR

When article 9 was drafted, it was clear that the meaning of "arbitrary" contained elements of injustice, unpredictability, unreasonableness, capriciousness and lack of proportionality, as well as the common law principle of due process of law [34]. In A v Australia [35] the UNHRC stated that detention was arbitrary if it was "not necessary in all the circumstances of the case" and if it was not a proportionate means to achieving a legitimate aim. [36]

The reference to "arbitrariness" in article 9(1) of the ICCPR imposes a separate and distinct limitation on detention to the requirement that the detention be "lawful". The UNHRC in Van Alphen v The Netherlands [37] confirmed that there are various factors which may render an otherwise lawful detention arbitrary. It said that:

arbitrariness is not to be equated with "against the law" but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.

4.4.1.3 Was the detention of the asylum seekers in "J" block for six and a half days arbitrary?

In the circumstances of this case, it is accepted that the detention of the asylum seekers in the PHIRPC was lawful under the Migration Act. The question, therefore, is whether their detention in "J" block was arbitrary.

Although I do not consider the initial detention of the asylum seekers to have been arbitrary, after considering all of the evidence and submissions of the parties, I have formed the view that the detention of the asylum seekers in "J" block beyond the night of 1 December 2000, that is, for a period of approximately six and a half days, did constitute arbitrary detention within the meaning of article 9(1) of the ICCPR. The detention of the asylum seekers in "J" block for this length of time was not reasonable or necessary in all of the circumstances, nor was it a proportionate response to the protest action in the IRPC on 1 December 2000. I note that the SRM Report itself found that the "six and a half day period of separation detention imposed on the detainees in question was excessive" .[38]

Policy Number 19.2 in the PHIRPC Operating Manual set out a guiding principle and a basic procedure to be followed when a detainee is placed in segregation detention. It stipulated that "[a] Resident's ongoing separation cannot be justified as more than a temporary measure to alleviate an immediate threat to the IDC". It also provided that "[t]he Centre Manager will review the separation of a resident each morning and afternoon with the Centre Nurse, Counsellor and Supervisor".

It is not disputed that, despite these operating policies and procedures, there was no review at all of the asylum seekers' detention in "J" block in the six and a half days they spent there, let alone twice daily by the Centre Manager in consultation with the Centre Nurse, Counsellor and Supervisor as required by Policy Number 19.2. There is no documentary or other evidence before this inquiry suggesting that any consideration was given by ACM to whether or not there was a reasonable basis for continuing the detention of the asylum seekers in "J" block beyond the night of 1 December 2000. As "detention should not continue beyond the point for which the State can provide appropriate justification" [39], I find that their detention after this time was arbitrary and in breach of article 9(1) of the ICCPR.

Even if there had been twice daily reviews of the asylum seekers' detention in "J" block, an examination of the evidence reveals that there was no reasonable and objective basis for continuing their detention over a period of approximately six and a half days as:

(i) the "immediate threat to the IDC", to the extent that Detention Supervisor Reason perceived there to be one, had been resolved upon the "extraction" of the asylum seekers. The SRM Report found that "[w]hen this process began the protestors became compliant and the four identified protestors were led away to a vehicle beyond the breezeway and conveyed" [40] to "J" block. In addition, it found that there was no need to use force and that the "remaining protestors quickly dispersed" [41]. The Report also found that there was no need to use force to convey Mr PH5 to "J" Block later that night ;[42]

(ii) there was no evidence that the "level of agitation and aggression" as set out in Policy No. 13.2, to the extent that there was any, on part of the asylum seekers was such that they could not be returned to the main part of the IRPC the following morning;

(iii) the asylum seekers were renowned for their good behaviour in the PHIRPC. Had the management of the PHIRPC turned its mind to the issue, it would not have found any basis for concluding that the asylum seekers presented a threat or ongoing management problem to the PHIRPC. In his statement obtained as part of the SRM inquiry, Departmental Business Manager, Mr Konarski, reported that during late 2000 there were a number of violent disturbances in the centre but the Sri Lankan nationals were not involved in any of these disturbances. He stated that: "I had therefore formed the opinion that they were in general, compliant and co-operative detainees who did not present a management problem." [43] This appears to accord with the fact that the asylum seekers were involved in assisting with work at the IRPC including work on the internal fencing;[44] and

(iv) I have found that the asylum seekers were released as soon as the Departmental Business Manager became aware of their detention.

4.4.2 Article 10(1) of the ICCPR

In my Preliminary Report, I was of the preliminary view that the following acts of the Commonwealth were in contravention of article 10(1) of the ICCPR:

placing the asylum seekers in segregation detention for six and a half days as it was unjustified and excessive;
confining the asylum seekers to small and dim or dark room for six and a half days with only minimal access to outdoor breaks;

I was also of the preliminary view that being denied access to the telephone and being held without clean clothes for a period of five days or longer could amount to a breach of the right to be treated with humanity and respect for the inherent dignity of the person under 10(1) of the ICCPR.

In addition, I was of the preliminary view that, taken alone, the videotaping of the asylum seekers while being escorted to the toilet and shower blocks and making the asylum seekers wait for periods in excess of ten minutes to use the toilet, though undesirable, may not reach the threshold required to constitute a breach of human rights. However, I considered that they should nevertheless be considered as part of the overall analysis of the mistreatment of the asylum seekers during their period of segregation detention.

In its written submissions, the Department disputed these findings in relation to article 10(1) of the ICCPR. It stated that:

Alleged contravention of Article 10 (1) of the International Covenant on Civil and Political Rights (ICCPR)

The President of HREOC is of the further preliminary view that Article 10 (1) of the ICCPR has been breached because the detainees in question were:

placed in separation detention for six and half days which was unjustified and excessive;

confined to a small room for six and a half days with only minimal access to outdoor breaks;

held in dim or dark rooms for six and a half days with minimal outdoor breaks; and

denied permission to use the telephone.

The President is also of the further preliminary view that being held without clean clothes for a period of 5 days or longer could amount to a breach of Article 10 (1).

Article 10 (1) provides:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

In respect of the President's finding of fact in relation to Article 10 (1), it should be noted once again that the detainees were not held in separation detention. I refer you to the earlier discussions on this point. In addition, as discussed in reference to the preliminary finding of a breach under Article 7, the Department does not accept the finding of fact that the detainees were held in dim or dark rooms for a period of six and a half days, nor were they denied permission to use the telephone.

The preliminary view of the President needs to be assessed in the context of the standards set out in the ICCPR and accepted by States Party. The United Nations Human Rights Committee (UNHRC) provides some direction in assessing these standards and the conditions which have been found to breach Article 10.

In Steve Shaw v Jamaica (Communication No. 704/1996) the UNHRC found a breach of Article 10 (1) on the basis that the complainant was detained under the following conditions:

no bedding or mattresses;

deficient sanitation in cells, no electric light, inadequate ventilation, and the only natural light is admitted through small air vents; for sanitation, only a slop bucket was provided;

prisoners spent most of the time confined to their cells in almost total darkness. Mr Shaw was locked in for a minimum of 23 hours a day;

a lack of provision for health care and medical facilities; and

absence of re-education and work programs for condemned inmates on death row.

In Desmond Taylor v. Jamaica, (Communication No. 705/1996) the UNHRC found a breach of Article 10 (1) on the basis that the complainant was detained under the following conditions:

confinement to a small cell for 23 hours a day;

no provision of a mattress or bedding for the concrete bunk used for sleeping;

wholly deficient sanitation, inadequate ventilation and total absence of natural lighting;

lack of provision of health care and medical facilities;

absence of re-education and work programs for condemned inmates on death row.

In Leroy Morgan and Samuel Williams v. Jamaica (Communication No. 720/1996) the UNHRC found a breach of Article 10 (1) on the basis that the complainant was detained under the following conditions:

twenty-three hours a day in cells with no mattress, other bedding or furniture;

the cells had inadequate sanitation and no natural light;

the food was not palatable; and,

a lack of medical assistance.

Further, the UNHRC found a breach of Article 10 (1) in the case of Leroy Morgan who, despite numerous requests to the Superintendent, was denied medical attention to injuries he sustained after a gun shot.

In Parkanyi v. Hungary (Communication No. 410/1990) the UNHRC found a breach of Article 10 (1) on the basis that the complainant was detained under the following conditions:

detainees in the police lock-up were dressed in rags, and he was not able to retrieve his own clothes for an entire week.

only five minutes were allowed for basic hygiene in the morning, and a shower could be taken only once a week;

a mere five minutes of recreation per day were allowed, which consisted of a walk in an open place about 20 square metres in size, against the walls of which warders frequently urinated;

meals were inadequate, and although the author was able to receive some food from home during weekends, he lost over 10 kilograms during five and a half months of pre-trial detention;

the warders allegedly intimidated him by suggesting that if no confession was obtained, they would fabricate different, constantly changing, charges so as to justify an extension of the detention.

It is clear from the jurisprudence that the incidents referred to by the President in her preliminary finding do not reach the accepted threshold to be considered a breach of Article 10 (1).

The Department accepts that two of the detainees received a change of clothing after four days and that there is no record of the other three detainees receiving a change of clothing.

The Department does not accept that there was a breach of the inherent dignity of the detainees in being confined to their rooms with minimal access to outdoor breaks. The detainees were given adequate sustenance, bedding, sanitation and light. They were not isolated in solitary confinement. Nor does the Department accept that being held without clean clothes for a period of between four and six and a half days amounts to a breach of human rights as set out in Article 10 (1).

Whilst the Department does accept that there were failures to comply with operating policies and procedures in place at the time, these did not reach the threshold to amount to breaches of Article 10.

It is anticipated such a failure of procedures will not occur again as the Department has now in place a system of improved monitoring and performance outlined below under the heading subsequent action by the Department.

Alleged further actions to be considered as part of overall analysis of treatment of detainees

The President further takes into account two factors which she considers, while of themselves not reaching the threshold to constitute a breach, should be considered as part of the overall analysis of the mistreatment of the detainees during their period of separation detention. These are as follows:

the detainees were videotaped being escorted to the toilet and showering and might have had to wait for periods in excess of ten minutes to use the toilet; and

the probability that the detainees were forced to share one piece of soap between nineteen detainees.

The President accepts that it is likely the detainees were not videotaped using the toilet and shower facilities, but only, on occasion, being escorted to and from such facilities. It is submitted that such videotaping is justified for ensuring the good order and management of Juliet Block and the safety of the detainees themselves.

The Department accepts that detainees had to wait for ten minutes or longer to be escorted to the toilet. This occurred due to the unworkable management plan issued by the Operations Manager which is no longer in operation.

The Department does not accept that the detainees were forced to share one piece of soap. D/O Coe in her statement says "the dayshift officers informed myself ...that the residents had been issued bed packs which consisted of ...1 cake of soap. Throughout my nightshifts ...all residents, said residents included, were given soap upon their request". The SRM Report finds "no evidence ... to suggest that the five detainees were not provided with soap individually during their time in Juliet Block…"

4.4.2.1 Relevant jurisprudence and commentary on article 10(1) of the ICCPR

Article 10(1) provides that:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Article 10(1) extends to all deprivations of liberty, including that which occurs when a person enters immigration detention [45], and requires that minimum standards of humane treatment be observed in the conditions of detention.

The UNHRC has stated that:

[a]rticle 10, paragraph 1, imposes on State parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of their liberty, and complements the ban on torture or other cruel, inhuman or degrading treatment or punishment contained in article 7 … Thus, not only may persons deprived of their liberty not be subjected to treatment which is contrary to article 7 … but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as that of free persons …

It is clear from UNHRC jurisprudence that the threshold for establishing a breach of article 10(1) is lower than the threshold for establishing 'cruel, inhuman or degrading treatment' within the meaning of article 7 [46] . Professor Manfred Nowak summaries this jurisprudence as follows:

[w]hereas article 7 primarily is directed at specific, usually violent attacks on personal integrity, article 10 relates more to the general state of a detention facility or some other closed institution and to the specific conditions of detention. As a result, article 7 principally accords a claim that State organs refrain from certain action (prohibition of mistreatment), while article 10 also covers positive State duties to ensure certain conduct. Regardless of economic difficulties, the State must establish a minimum standard for humane conditions of detention (requirement of humane treatment). In other words, it must provide detainees and prisoners with a minimum of services to satisfy their basic needs (food, clothing, medical care, sanitary facilities, communication, light, opportunity to move about, privacy, etc). Finally, it is … stressed that the requirement of humane treatment pursuant to article 10 goes beyond the mere prohibition of inhuman treatment under article 7 with regard to the extent of the necessary 'respect for the inherent dignity of the human person' .[47]

4.4.2.2 Was there a breach of article 10(1) of the ICCPR?

Article 10(1) of the ICCPR requires that minimum standards of humane treatment be observed in the conditions of detention. The Standard Minimum Rules and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment [48] (Body of Principles) are United Nations standards applicable to the treatment of any person deprived of his/her liberty, including an immigration detainee. Although the Standard Minimum Rules and Body of Principles are not binding on Australia [49], they provide valuable guidance in interpreting and applying article 10 of the ICCPR [50]. In Mukong v Cameroon , [51] the UNHRC stated that:

[c]ertain minimum standards regarding the conditions of detention must be observed regardless of a State party's level of development. These include, in accordance with Rules 10, 12, 17, 19 and 20 of the U.N. Standard Minimum Rules for the Treatment of Prisoners, minimum floor space and cubic content of air for each prisoner, adequate sanitary facilities, clothing which shall be in no manner degrading or humiliating, provision of a separate bed, and provision of food of nutritional value adequate for health and strength. It should be noted that these are minimum requirements which the Committee considers should always be observed, even if economic or budgetary considerations may make compliance with these obligations difficult.

Relevant provisions of the Standard Minimum Rules [52] and the Body of Principles are as follows:

Standard Minimum Rules

11. In all places where prisoners are required to live or work,

(a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;

(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.

Clothing and bedding

17.(1) Every prisoner who is not allowed to wear his own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him in good health. Such clothing shall in no manner be degrading or humiliating.

(2) All clothing shall be clean and kept in proper condition. Underclothing shall be changed and washed as often as necessary for the maintenance of hygiene.

(3) In exceptional circumstances, whenever a prisoner is removed outside the institution for an authorized purpose, he shall be allowed to wear his own clothing or other inconspicuous clothing.

Exercise and sport

21(1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.

(2) Young prisoners, and others of suitable age and physique, shall receive physical and recreational training during the period of exercise. To this end space, installations and equipment should be provided.

Body Of Principles

Principle 15

Notwithstanding the exceptions contained in principle 16, paragraph 4 [delay where exceptional needs of an investigation so require], and principle 18, paragraph 3 [exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order] communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days.

Principle 19

A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.

The Department has referred to a number of decisions of the UNHRC in its written submissions. I accept that the conditions of incarceration at the St Catherine District Prison in Jamaica, discussed in Shaw v Jamaica [53] , Taylor v Jamaica [54] and Morgan and Williams v Jamaica [55], were harsher and less humane than the conditions of detention for the asylum seekers in "J" block. In fact, the conditions of incarceration in that prison have been found to be sufficiently appalling to meet the threshold, in the majority of the decisions dealt with by the UNHRC concerning that prison, for a breach of article 7 of the ICCPR .[56]

However, I do not accept that the findings in these cases preclude a finding in the present case that the conditions of detention in "J" block constitute a breach of article 10(1) of the ICCPR. The jurisprudence of the UNHRC supports the approach that each case must be decided on its own facts and establishes that there are a broad range of conditions of detention which may fall below minimum standards in contravention of article 10(1). For example, in Parkanyi v Hungary [57], the author submitted that there were a range of matters which constituted a breach of his rights under article 10(1). While the UNHRC found that many of the author's allegations were not substantiated, it did find that there was a breach of this article on the basis that the author had been held in the police lock-up with only five minutes per day allowed for basic hygiene in the morning, a shower permitted only once a week, and only five minute per day allowed for recreation, which consisted of a walk in an open pace about 20 metres in size. Similarly, in Angel Estrella v Uruguay [58], rigorous censorship of correspondence during imprisonment was found in and of itself to represent a breach of article 10(1) of the ICCPR and in Hill and Hill v Spain [59], the UNHRC found a breach of article 10(1) of the ICCPR in relation to the pre-trial detention of the authors as they had been left without food and with only warm water to drink for a period of five days.

Bearing all of this jurisprudence in mind, I am of the view that the totality of the following conditions of detention accorded to the asylum seekers while they were held in "J" block breached their right to be treated with humanity and respect for their inherent dignity under article 10(1) of the ICCPR:

three asylum seekers did not receive a change of clothes in the six and a half days of their detention and two asylum seekers received a change of clothes only after almost five days;
the asylum seekers' requests to use the telephone were denied;
all of the asylum seekers were permitted only two fresh air breaks, of between ten and fifteen minutes, in the six and a half days of their detention;
the asylum seekers were held in dim rooms throughout the entire period of their detention with two to three of the asylum seekers held in darkness for part of their detention;
the asylum seekers had to wait for periods in excess of ten minutes to use the toilet; and
the asylum seekers were videotaped being escorted to the toilet and shower blocks.

I find it difficult to accept the Department's submission that these conditions of detention did not reach the threshold for a breach of article 10(1) of the ICCPR. In its written submissions, the Department conceded that its Immigration Detention Standards, which are informed by "Australia's international obligations" [60], were breached by this incident. In particular, the Department has conceded that there was a failure to meet the "Dignity criterion" of these Standards. Criterion 2.1 of the Immigration Detention Standards provide that "[e]ach detainee is [to be] treated with respect and dignity". This incident was also considered sufficiently serious to result in the removal of the ACM Centre Manager, and to contribute to the reasons for the dismissal of two senior ACM employees. Furthermore, it arguable that the conditions of detention of the asylum seekers in "J" block were worse than the conditions in Estrella and Parkanyi. In Estrella, the UNHRC made its findings based on one condition of detention that did not meet minimum standards and in Parkanyi such a finding was based on two such conditions.

In my view, the two most serious aspects of the asylum seekers' detention were the fact that the asylum seekers were locked in a dim or dark room for a period of six and a half days and permitted only two fresh air breaks lasting between ten and fifteen minutes on each occasion.

The presence or absence of natural light has figured prominently in many of the decisions of the UNHRC, including those raised by the Department. Rule 11 of the Standard Minimum Rules requires that in all places where prisoners live the windows shall be large enough to enable the prisoner to read or work by natural light and also that artificial light shall be provided sufficient for the prisoners to read without injury to eyesight. Given that the asylum seekers were locked in their rooms for twenty four hours, or almost twenty four hours, of each day that they were held in detention in "J" block, it is of particular concern that the asylum seekers were kept in rooms where reading would have been difficult, if not impossible and, as the glass had been painted with whitewash, natural light was prevented from entering the room.

The denial of fresh air breaks was clearly in contravention of Rule 21 of the Standard Minimum Rules which stipulates that every prisoner should have at least one hour of suitable exercise in the open air daily. This condition was also counter to the two sets of (contradictory) IRPC policies and procedures which were in place at the relevant time. IRPC Operating Manual Policy 19.3 entitled "Exercise and Recreation for Residents in Separation Detention" dealt with the need to "ensure the safe and secure access of residents held in separation detention to approved activities to relieve boredom and mental health problems associated with sensory deprivation". This Policy required that residents "shall have access to outdoors at least every two hours to smoke or gain access to exercise or fresh air. Time spent outside shall not be less than 30 minutes on each occasion." At the same time, the Management Plan, Appendix B to this Report, provided that detainees were to be "[e]xercised 3 times daily for 10 minutes one detainee at a time and all three officers to be present. [61] " Moreover, if the asylum seekers were held in segregation detention, as suggested by the Department, for "management reasons" and not as a form of punishment, it is difficult to see what justification there is for confining them to their rooms for almost the entire period of that detention.

The denial of access to a telephone and clean clothes were also matters of significance. Principles 15 and 19 of the Body of Principles confirm the importance of having regular access to the means of communicating with family, friends and legal advisors. The importance of having clothes which are in no manner degrading or humiliating was highlighted in Mukong v Cameroon as being a minimum requirement which should always be observed [62]. Rule 17 of the Standard Minimum Rules requires that unconvicted persons be given the opportunity of having clean clothes and underclothing that is changed and washed as often as necessary for the maintenance of hygiene.

5. Summary of findings

For the reasons set out above, I find that:

(a) the detention by the Commonwealth of the asylum seekers in "J" block for a period of approximately six and a half days constituted arbitrary detention within the meaning of article 9(1) of the ICCPR; and

(b) the conditions of detention accorded to the asylum seekers while they were held in "J" block breached their right to be treated with humanity and respect for their inherent dignity under article 10(1) of the ICCPR.

6. Recommendations

6.1 Introduction

Section 29(2)(d) of the HREOC Act provides that I must include in any Report relating to the results of an inquiry particulars of any recommendations that I have made pursuant to s 29(2)(b) or (c) of the HREOC Act. Section 29(2)(b) of the HREOC Act provides that, where I conclude that an act or practice is inconsistent with or contrary to any human right, I may make recommendations for preventing a repetition of the act or a continuation of the practice. Section 29(2)(c) of the HREOC Act provides that those recommendations may be for either or both of the following:

(a) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice; and

(c) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice.

In the process of finalising this inquiry, it came to my attention that the parties had not made submissions concerning the recommendations I should make in the event that I found, as I have done, that the acts of the Commonwealth in question were contrary to or inconsistent with human rights and, to the extent that any such recommendations included a recommendation for the payment of compensation, how such compensation should be quantified.

On 20 June 2002, the Commission wrote to the parties seeking submissions on this issue, and enclosed a copy of the findings of human rights violations and my reasons for those findings. On 18 July 2002, written submissions were provided on behalf of the asylum seekers.

The Department's submissions were originally due on 2 August 2002. On 30 July 2002, the Department asked for and was granted an extension until 9 August 2002. On 13 August 2002, the Department asked for and was granted a further extension until 30 August 2002. The submissions were not received on or by 30 August 2002. On 10 September 2002, the Department was advised by letter that the Commission intended to finalise this inquiry, regardless of whether those submissions were provided. On 18 September 2000, the Department's written submissions were received by the Commission.

In my Notice provided to the parties on 23 September 2002 in accordance with s 29(2) of the HREOC Act, I made a number of recommendations. Those recommendations appear below.

6.2 Recommendations for the payment of compensation

6.2.1 Submissions concerning the payment of compensation

The written submissions provided by Amnesty on behalf of the asylum seekers assert that:

Amnesty International submits that the measure of damages in this case should be assessed in accordance with the principles employed by the courts in cases of false imprisonment. This is the remedy which most closely accords with the events in this case; indeed it is highly likely that the complainants would have a claim against the respondents for the tort of false imprisonment.

The tort of false imprisonment is actionable per se. It is not necessary to prove specific damage in addition to the general damage arising out of the mere fact of false imprisonment. [Watson -v- Marshall (1971) 124 CLR 621; affirmed Marshall -v- Watson (1972) 124 CLR 640]. Aggravated and exemplary damages may also be awarded. [Attorney-General (St Christopher, Nevis and Anguilla) -v- Reynolds [1980] AC 637; Myer Stores Ltd -v- Soo [1991] VR 597].

Amnesty International submits that the most useful recent discussion on the principles relating to the award of damages for false imprisonment may be found in two New South Wales decisions, Spautz -v- Butterworth (1996) 41 NSWLR 1, and Vignoli -v- Sydney Harbour Casino [1999] NSWSC 1113. I will not reiterate the details of each of these cases, which will be available to the Human rights Commissioner.

In each of the above cases an award of $75,000 was made to the plaintiff. In the latter case, the award included aggravated and exemplary damages.

In the present case, given the circumstances of the detention and the need to punish and deter such conduct, which is notoriously difficult to prove, Amnesty International submits that an award of $75,000 to each complainant would be appropriate.

In the only part of the Department's written submissions relevant to the issue of the recommendations for the payment of compensation I should make (in light of my findings that acts of the Commonwealth were contrary to and inconsistent with human rights), the Department asserted that:

… immigration detention of unlawful non-citizens in Australia is lawful in accordance with the [Migration] Act. Immigration detention will not amount to arbitrary detention where it is carried or for administrative purposes and is in accordance with the Act. Accordingly, Amnesty International Australia's assertion that the appropriate measure of damages in this case is that which applies to false imprisonment is misconceived.

6.2.2 Relevant legal principles

So far as it is possible, the object of recommendations for the payment of compensation under the HREOC Act should be to place the injured party in the same position as if the wrong had not occurred [63]. Compensation for human rights violations will usually be assessed in the same way as damages for torts, although this approach may not be appropriate in all cases [64]. Amnesty has submitted, and I accept, that the tort of false imprisonment is the most analogous to this case and that any recommendation for compensation should be informed by the principles employed by the courts in cases involving that tort. The Department has advanced no cogent argument against such an approach given my findings in this Report.

The tort of false imprisonment is actionable per se, that is, without proof of damage [65] as the right to liberty is "the most elementary and important of all common law rights" [66]. Damages are awarded in the first instance not as compensation for loss but as a non-compensatory means of signifying the infringement of a right [67]. The principal heads of damage for a tort of this nature are injury to liberty (the loss of time considered primarily from a non-pecuniary standpoint) and injury to feelings (the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status)[68] . Damages may also be aggravated by the circumstances of a particular case [69], for example, where a lack of bona fides or improper or unjustifiable conduct on the part of a respondent is established. [70]

6.2.3 Quantum

In all of the circumstances of this case, I am of the view that an appropriate amount of compensation for each of the asylum seekers for the violation of their rights under articles 9(1) and 10(1) of the ICCPR is $25,000. The complainants have not made any claim of pecuniary loss or damage. In arriving at that figure, I have had regard to:

(a) the mental suffering, indignity and humiliation caused to each of the asylum seekers by the unacceptable conditions of that detention detailed in this Report, conditions which failed to meet minimum standards of humane treatment of persons in detention;

(b) the exacerbation of this mental suffering, indignity and humiliation by the length of the detention; and

(c) comparative damages awards for false imprisonment, to the extent that such judgments are relevant to human rights violations under the HREOC Act [71]. Amnesty submitted that each of the asylum seekers should receive compensation in the sum of $75,000, and referred to Spautz v Butterworth [72] and Vignoli v Sydney Harbour Casino [73] to support that submission. In my view, the recommendation for compensation I propose to make in this case is consistent with both of these cases. In Vignoli v Sydney Harbour Casino, the Court awarded $30,000 in general damages for the wrongful detention of Mr Vignoli by the Casino. Although the period of detention in that case was less than in this case, being of only six hours in duration, the damages award took account of the public defence by the Casino of its actions and the evidence, given at the hearing, of the deep humiliation and disgrace felt by Mr Vignoli. In Spautz v Butterworth, Mr Spautz was awarded $75,000 in damages for his wrongful imprisonment as a result of failing to pay a fine. Although the facts in that case are in many respects similar to the facts in this case, Mr Spautz spent 56 days in prison and his damages award reflects the length of his incarceration and other matters peculiar to his case.

In the circumstances of this case, I also consider it appropriate to make a recommendation that the Commonwealth pay a further $10,000 in compensation on account of the aggravated circumstances surrounding the breach of the asylum seekers' human rights. There has been no dispute that the conduct of ACM, for which the Commonwealth is responsible, in keeping the asylum seekers detained under inhuman conditions in "J" block for six and a half days, was improper and unjustifiable. This was recognised by the Departmental Business Manager, Mr Konarski, who ordered that the asylum seekers be released as soon as he became aware of their detention. Further, as detailed in Part 3.4 of this Report, the ACM officer staff member who was ultimately responsible for the management of the separation detention was removed from the PHIRPC by ACM and, subsequently, two other ACM officers were dismissed. The Department also applied sanctions against ACM for its failure to meet the Dignity criterion of the Immigration Detention Guidelines. In addition, although it is not possible on the evidence before this inquiry, to attribute mala fides to any officer at the PHIRPC in relation to the delay in arranging for the asylum seekers to attend an interview with Mr Konarski, such a delay was clearly improper and unjustifiable in the circumstances, and resulted in the asylum seekers being detained for two and a half days longer than they might otherwise have been.

6.3 Recommendations

I recommend that:

(a) the Commonwealth pay compensation in the amount of $35,000 to each of the asylum seekers for the loss and damage caused to them by the violations of their human rights;

(b) the Commonwealth apologise to each of the asylum seekers for these human rights violations. Apologies are important remedies for breaches of human rights . An apology has, at least to some extent, the potential to alleviate the suffering of those who have been wronged. Given the nature of the breaches I have found in this case, I recommend that that apology be made in writing by the Minister of the Department on behalf of the Commonwealth;

(c) the Commonwealth take all steps to ensure that the conditions of detention in any form of segregated detention area within an IDC meet minimum standards of humane treatment as required by article 10(1) of the ICCPR; and

(d) the Commonwealth take all steps necessary to implement all the recommendations of the SRM Report and, in particular, develop policies and procedures setting out:

(i) the process for reviewing the detention of any person detained in a segregated detention area of an IDC on, at least, a daily basis, in consultation with relevant medical health professionals; and

(ii) the grounds for maintaining a person's detention within that segregated detention area, being reasons based on the behaviour of the person detained and not on the use of segregated detention as a form of punishment.

7. Actions taken by the Commonwealth as a result of the findings and recommendations

Under section 29(2)(e) of the HREOC Act the Commission is required to state in its report to the Attorney-General whether, to the knowledge of the Commission, the Commonwealth has taken or is taking any action as a result of its findings and recommendations.

On 23 September 2002, the Commission wrote to the Commonwealth to seek its advice as to what action it had taken or proposed to take as a result of the findings and recommendations. In a letter to the Commission dated 8 October 2002, Mr E V Killesteyn, on behalf of the Commonwealth, provided the Commonwealth's comments in relation to those findings and recommendations. I have extracted those parts of Mr Killesteyn's letter that state what action the Commonwealth has taken, or proposes to take:

Recommendation C - the Commonwealth take all steps to ensure that the conditions of detention in any form of segregated detention area within an IDC meet minimum standards of humane treatment as required by article 10(1) of the ICCPR

Article 10 (1) of the ICCPR provides that 'All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person'.

The Department submits that it takes all steps to ensure that the conditions of detention, including in any form of segregated detention within a facility, meet minimum standards of humane treatment as required by Article 10(1) of the ICCPR. …

Whilst the Department does accept that there were failures to comply with operating policies and procedures in place at the time, these did not reach the threshold to amount to breaches of Article 10 (1). It is anticipated such a failure of procedures will not occur again as the Department has now in place an improved system for monitoring of performance.

More generally the Department exercises its duty of care for ensuring the safety and welfare of all detainees in a detention facility through the engagement of a Detention Services Provider within the framework of relevant legislation, comprehensive contractual obligations, the Immigration Detention Standards (IDS) and associated performance measures. Both the Department and the Detention Services Provider are required to meet duty of care obligations that go beyond the provision of basic needs such as accommodation, food and clothing. These include the requirement to treat detainees with dignity and humanity, in a culturally sensitive way, without discrimination of any sort, and with respect for personal privacy, beliefs and differences in accordance with relevant Commonwealth, State and Territory legislation, and consistent with Australia's international obligations.

Duty of care commitments require the provision of a safe and secure physical environment and, to the fullest extent possible, the prevention of physical, verbal or cultural abuse, sexual harassment, neglect or any other abuse. Duty of care obligations also require the provision of health services and safety advice by qualified persons, and access to appropriate educational programs and recreational opportunities.

The IDS set out relevant principles underlying the provision of the detention function and the Services Provider's actions must be governed by them. The IDS were developed by the Department in consultation with the Commonwealth Ombudsman's office. The IDS underpin the provision of the detention function and the standard of care to be provided and specify the standard of facilities, services and programs expected in detention facilities, including the requirement to provide safe and secure detention.

The IDS have been revised and enhanced in the context of the tender for the new contract for the provision of detention services. The IDS for the next contract, while remaining outcomes based, are more precise and more detailed than the current version. The greater degree of specificity in the standards and the clearer link between the IDS and the performance measures will enable the Department to be more precise in its monitoring of service delivery. The Commission was consulted in the development of the new IDS.

Under the revised IDS the more detailed requirements on the Service Provider pertaining to care, welfare and dignity apply to those whose movements within a detention facility are restricted. Moreover there are additional requirements placed on the Services Provider in relation to the care of such detainees including the need for a comprehensive management plan.

Recommendation D -the Commonwealth take all steps necessary to implement all the recommendations of the SRM Report

As you are aware, as soon as it became apparent to the Department that operational procedures had not been followed in relation to this incident, the Department immediately instigated an independent report from Security Risk Management Australia. This report has informed the Department's thinking and assisted in its program of continuous improvement across all centres. The revised IDS were also informed by the report to include performance measures which ensure that where a detainee's movements are restricted for management reasons this is done in consultation and with the approval of the Department and supported by a comprehensive management plan.

The Detention Services Provider has advised that the policies and procedures in place at Port Hedland IRPC have been reviewed and amended since February 2001 when a new Centre Manager and a new Operations Manager commenced employment. The Department has had regular discussions with the Detention Services Provider at the Contract Operations Group meetings regarding the issues raised in the SRM report. Following discussions, the Detention Services Provider's Operational Policy on Detainee Management Separation was amended and now clearly addresses the recommendations of the report including that:

the Detention Services Provider will advise the Departmental Manager as soon as is practicable if a detainee's movement are (sic) to be restricted for management reasons; and

the Detention Services Provider will adhere to its policy which requires regular reviews of the detainees status and communication about these with the Departmental Manager.

In Summary, the Department accepts that the treatment of the detainees as outlined in the complaints fell short of the Service delivery expected of the Detention Services Provider. Immediate action was taken when the incident was drawn to the attention of the Department. The relevant issues have been raised with the Detention Services Provider and improvements have been implemented to both service delivery and the monitoring and review of this service.

As the Commonwealth does not accept the findings made in my Notice provided to the parties on 23 September 2002, Mr Killesteyn did not state what action the Commonwealth has taken, or proposes to take, in relation to any of the other recommendations.

APPENDIX A

Functions of the Human Rights and Equal Opportunity Commission in relation to human rights

The Commission has specific legislative functions and responsibilities for the protection and promotion of human rights under the HREOC Act. Part II Divisions 2 and 3 of the HREOC Act confer functions on the Commission in relation to human rights. In particular, s.11(1)(f) of the HREOC Act empowers the Commission to inquire into acts or practices of the Commonwealth that may be inconsistent with or contrary to the rights set out in the human rights instruments scheduled to or declared under the HREOC Act.

Section 11(1)(f) of the HREOC Act states:

(1) The functions of the Commission are:

(f) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:

(i) where the Commission considers it appropriate to do so-to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and

(ii) where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement-to report to the Minister in relation to the inquiry.

Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth.

The Commission performs the functions referred to in s.11(1)(f) of the HREOC Act upon the Attorney-General's request, when a complaint is made in writing or when the Commission regards it desirable to do so (s.20(1) of the HREOC Act).

In addition, the Commission is obliged to perform all of its functions in accordance with the principles set out in s.l0A of the HREOC Act, namely with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights.

The Commission attempts to resolve complaints under the provisions of the HREOC Act through the process of conciliation. Where conciliation is not successful or not appropriate and the Commission is of the opinion that an act or practice constitutes a breach of human rights, the Commission shall not furnish a report to the Attorney-General until it has given the respondent to the complaint an opportunity to make written or oral submissions in relation to the complaint (s.27 of the HREOC Act).

If, after the inquiry, the Commission finds a breach of human rights, it must serve a notice on the person doing the act or engaging in the practice setting out the findings and the reasons for those findings (s.29(2)(a) of the HREOC Act). The Commission may make recommendations for preventing a repetition of the act or a continuation of the practice, the payment of compensation or any other action to remedy or reduce the loss or damage suffered as a result of the breach of a person's human rights (s. 29(2)(b) and (c) of the HREOC Act).

If the Commission finds a breach of human rights and it furnishes a report on the matter to the Attorney-General, the Commission is to include in the report particulars of any recommendations made in the notice (s.29(2)(d) of the HREOC Act) and details of any actions that the person is taking as a result of the findings and recommendations of the Commission (s.29(2)(e) of the HREOC Act). The Attorney-General must table the report in both Houses of Federal Parliament within 15 sitting days in accordance with s.46 of the HREOC Act.

It should be noted that the Commission has a discretion to cease inquiry into an act or practice in certain circumstances (s.20(2) of the HREOC Act), including where the subject matter of the complaint has already been adequately dealt with by the Commission (s.20(2)(c)(v) of the HREOC Act).

APPENDIX B: Management Plan Memorandum

ACM

Australasian Correctional Management Pty Limited

ACN: 051130 600

Port Hedland Immigration Reception & Processing Centre

PO Box 1011 Port Hedland WA 6721

Dempster Street

Port Hedland W A 6721 Tel: (08) 91732822

Fax: (08) 9173 2825

MEMORANDUM

TO: Supervisors

FROM: G Hindmarsh

SUBJECT: Management Plan Upper J Block

DATE: 30 November, 2000

The following is the management plan for Upper J Block and it is NOT to be deviated from:

The block is to be over a 24hrs a day regime, ie showers and toilet breaks are on going for the 24hr period.
3 officers are to be in attendance when a detainee is out of the room at all times.
All conversations and action by detainees are to be videoed and extensively logged in individual folders.
All damage is to be recorded by still photograph and written documentation.
A full and extensive hand over is to be conducted between shifts.
All request for DIMA to be processed and logged
All ACM requests to be processed and logged
All detainees will receive a buy up once a week day TBA.
No matches or sharps are to be issued.
Razors and tooth brushes to be issued on request and logged and receipted on return.
Rooms to be searched twice daily and logged.
Exercised 3 times daily for 10 minutes one detainee at a time and all 3 officers to be present.
Medication is only to be issued by nursing staff who will visit daily.
All visitor to be logged in and out and who they seen.

G Hindmarsh

Operations Manager

1. The Commission's functions in relation to the investigation and conciliation of complaints of human rights breaches against the Commonwealth of Australia and its functions in relation to reporting on complaints with substance that have not been resolved through the process of conciliation are outlined in Appendix A.

2. SRM Report, at page 7.

3. Although "J" block was referred to as the "Separation" block within the IRPC, the asylum seekers were not held in separation detention in this block as they were not new arrivals who needed to be separated from other detainees. The detainees were instead segregated from the main detainee population for behavioural management purposes.

4. SRM Report, at page 17.

5. Undated statement of Antoinette Coe, Annexure E to the SRM Report, at paragraph 3.

6. Communication No. 458/1991, CCPR/C/51/D/458/91.

7. Ibid, at paragraph 9.2.

8. Undated statement of Antoinette Coe, Annexure E to the SRM Report, at paragraph 7.

9. Memorandum from Antoinette Coe to T Wallace dated 27 December 2000, at paragraph 2.

10. Undated statement of Antoinette Coe, Annexure E to the SRM Report, at paragraph 6.

11. Ibid.

12. Ibid, at paragraph 4.

13. Undated statement of Richard Konarski, Annexure F to the SRM Report, at paragraph 3.

14. SRM Report, at page 37.

15. SRM Report, at page 2.

16. Secretary, Department of Defence v HREOC, Burgess & Ors (1997) 78 FCR 208.

17. Ibid.

18. Section 14 of the Migration Act defines an "unlawful non-citizen" as "a non-citizen in the migration zone who is not a lawful non-citizen." A "lawful non-citizen" is a non-citizen who is in the migration zone and holds a valid visa: section 13 of the Migration Act.

19. "Immigration detention" is defined in section 5 of the Migration Act.

20. Sections 189 and 196 of the Migration Act.

21. Human Rights and Equal Opportunity Commission, Those who've come across the seas: Detention of unauthorised arrivals, JS McMillan Pty Ltd, Sydney, 1998.

22. Ibid, at Part 2.

23. Ibid, at pages 56 - 57.

24. Article 2(1) of the ICCPR.

25. United Nations Human Rights Committee, General Comment No. 8 (1982), paragraph 1.

26. Communication No. 305/1988, CCPR/C/39/D/305/1988, at paragraph 9.4.

27. Communication No. 631/1995, CCPR/C/67/D/631/1995. See also Concluding Comments Regarding Switzerland (1996), CCPR/C/79/Add.70.

28. The preamble to article 5 of the ECHR states "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…" A number of specified exceptions to that general principle are then listed.

29. P van Dijk and GJH van Hoof, Theory and Practice of the European Convention on Human Rights (1998), at page 348.

30. Series A, No. 114, ECHR, 2 March 1987. See also Thynne, Wilson and Gunnell v United Kingdom, Series A, No. 190, ECHR, 25 October 1990; Amuur v France, Application No. 19776/1992, ECHR, 25 June 1996; Aerts v Belgium, Application No. 25357/1994, ECHR,

30 July 1998.

31. Application No. 23 807/94, ECHR, 23 September 1998.

32. Application No. 7754/77, ECHR, 9 May 1977.

33. Van Dijk and van Hoof, above n 29, at pages 97 and 193.

34. Nowak M, UN Covenant on Civil and Political Rights CCPR Commentary (1993), at page 172.

35. Communication No. 560/1993, CCPR/C/59/D/560/1993.

36. Ibid, at paragraph 9.2.

37. Communication No. 305/1988, CCPR/C/39/D/305/1988 .

38. SRM Report, at page 42.

39. A v Australia, Communication No. 305/1988, CCPR/C/39/D/305/1988, at paragraph 9.4.

40. SRM Report, at page 16.

41. Ibid, at page 17.

42. Ibid.

43. Undated statement of Richard Konarski, Annexure F to the SRM Report, at paragraph 3.

44. SRM Report, at page 14.

45. United Nations Human Rights Committee, General Comment No. 20 (1992), UN/HRI/GEN/Rev.4, at paragraph 2.

46. Nowak, above n 34, at page 186. Article 7 of the ICCPR provides: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".

47. Ibid, at page 188.

48. The Body of Principles were adopted by the UN General Assembly in 1988: GA Res 43/173. Annex: UN Doc/A/43/49 (1988).

49. Collins v State of South Australia [1999] SASC 257 (25 June 1999).

50. United Nations Human Rights Committee, General Comment 21 (1992), UN/HRI/GEN/Rev.4, paragraph 5; Report of the 3rd Committee of the General Assembly (1958), A/4045; Potter v New Zealand, Communication No. 632/1995, CCPR/C/60/D/632/1995;Mukong v Cameroon, above n 6. See also, for example, the Concluding Comments on the United States of America (1995) UN Doc. CCPR/C/79/Add. 50, at paragraph 34.

51. Mukong v Cameroon, above n 6, at paragraph 9.3.

52. Part 1 covers the general management of institutions, and is applicable to all categories of prisoner, criminal or civil, untried or convicted: Rule 4 of the Standard Minimum Rules.

53. Communication No. 704/1996, CCPR/C/62/D/704/1996.

54. Communication No. 705/1996, CCPR/C/62/D/705/1996.

55. Communication No. 720/1996, CCPR/C/62/D/720/1996.

56. Michael Robinson v Jamaica, Communication No. 731/1996, CCPR/C/68/D/731/1996; Lancy Gallimore v Jamaica, Communication No. 680/1996, CCPR/C/66/D/680/1996; Anthony Leehong v Jamaica, Communication No. 613/1995, CCPR/C/66/D/613/1995; Errol Smith and Oval Stewart v Jamaica, Communication No. 668/1995, CCPR/C/65/D/668/1995; and Christopher Brown v Jamaica, Communication No. 775/1997, CCPR/C/65/D/775/1997.

57. Communication No. 410/1990, CCPR/C/45/D/410/1990.

58. Communication No. 74/1980, CCPR/C/18/D/74/1980.

59. Communication No. 526/1993, CCPR/C/59/D/526/1993.

60. Immigration Detention Standards, Principles Underlying Care and Security, at http://www.immi.gov.au/illegals/det_standards.htm.

61. The Management Plan was found by the SRM Report to be the principal instructions issued for the guidance of staff during the period of the incident.

62. Mukong v Cameroon, above n 6, at paragraph 9.3.

63. Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, per Lockhart J at 239; Commonwealth of Australia v Human Rights and Equal Opportunity Commission [2000] FCA 1150 (17 August 2000), per Wilcox J at [55].

64. Sheiban, above n 63, per Lockhart J at 239.

65. RP Balkin and JLR Davis, Law of Torts (2nd ed, 1996), at page 61.

66. Trobridge v Hardy (1955) 94 CLR 147, per Fullagar J at 152; Murray v Ministry of Defence [1988] 1 WLR 692 at 701 - 702; Re Bolton; Ex parte Beane (1987) 162 CLR 514, per Brennan J at 523; and Sadler & State of Victoria v Madigan [1998] VSCA 53 (1 October 1998) at [51].

67. Ibid.

68. Cassell & Co Ltd v Broome (1972) AC 1027 at 1124; Spautz v Butterworth & Anor (1996) 41 NSWLR 1 per Clarke JA; Vignoli v Sydney Harbour Casino [1999] NSWSC 113 (22 November 1999], at [87]; McGregor on Damages (5th ed, 1988), at para 1619.

69. Balkin and Davis, above n 65, at 61.

70. Spautz, above n 68; Sheiban, above n 63, per Lockhart J at 239-240.

71. Spautz, above n 68; Vignoli, above n 68; Sadler and State of Victoria v Madigan [1998] VSCA 53; Louis and Ors v The Commonwealth and Qantas Airways [1987] ACTSC 36; and Myers Stores Ltd v Soo [1991] 2 VR 597.

72. Spautz, above n 68.

73. Vignoli, above n 68.

74. D Shelton, Remedies in International Human Rights Law (2000), at page 151

Last updated 12 December 2002.

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HREOC Report No. 24

Report of an inquiry into complaints by five asylum seekers concerning their detention in the separation and management block at the Port Hedland Immigration Reception and Processing Centre

HREOC Report No. 24

1. Introduction

2. The inquiry process

3. Findings of fact

4. Findings and reasons for findings

5. Summary of findings

6. Recommendations

7. Actions taken by the Commonwealth as a result of the findings and recommendations

APPENDIX A Functions of the Human Rights and Equal Opportunity Commission in relation to human rights

APPENDIX B: Management Plan Memorandum

APPENDIX A

Functions of the Human Rights and Equal Opportunity Commission in relation to human rights