HREOC Website: National Inquiry into Children in Immigration Detention
Transcript of Hearing - SYDNEYMonday 2 DECEMBER 2002, 9.20 AM
Please note: This is an edited transcript.
Commissioners:
- Dr S. OZDOWSKI, Commissioner
- Dr T. THOMAS, Assistant Commissioner
- Ms P. MOORE, Executive Officer
DR OZDOWSKI: Good morning everybody. I would like to formally open this public hearing which is the last, hopefully, of the series held around Australia. My name is Sev Ozdowski and I'm the Human Rights Commissioner and to my right I've got Professor Trang Thomas, who is Professor of Psychology at the Royal Melbourne Institute of Technology. Today the Commission will be assisted by counsel Michael Wigney and Mr Jonathon Hunyor of the Commission and I would like to ask for the benefit of the audience that the counsel for DIMIA and ACM would introduce themselves.
MR R. BROMWICH: Commissioner, my name is Robert Bromwich, I seek leave to appear for the Department of Immigration, Multicultural and Indigenous Affairs.
DR OZDOWSKI: Thank you.
MR S. RUSHTON, SC: If the Commission pleases, my name is Stephen Rushton, SC, I seek leave to appear for Australasian Correctional Management Pty Limited.
DR OZDOWSKI: Thank you. Before the hearing commences I would like to remind all present of the following: directions have been issued to protect the privacy, security and employment and human rights of all people assisting or otherwise involved in the subject of the Inquiry. The effect of this order is that the identity of asylum seekers is not to be disclosed throughout this hearing, that the identity of any other person who requests anonymity is not to be disclosed and that the identity of any third parties is not to be disclosed and this includes current and former employees of detention centres, these people should not be named because they have not had an opportunity to defend themselves against allegations made.
Obviously this does not prevent the use of names of people who have attended before the Inquiry to give evidence or who make public submissions. As you know I have issued separate directions to the media encompassing the above.
Talking about the program of these hearings, it will take approximately four days and be difficult to predict when particular issues will be discussed and how long they will take. This is a very complex Inquiry and there has been a very substantial volume of records to work through. So I would hope that you will be patient. If there is any particular issue you want to listen to and it is not clear just when it will be on, please feel free to come in or out during the following four days. We hope to have a morning break around 11.00 o'clock and then afternoon break around 3.30 and lunch will be around 12.30.
Talking about the nature of this hearing, this is not an adversarial hearing. The underlining objective of it is to determine the extent to which the Commonwealth has met the principles of the Convention on the Rights of the Child with respect to children in immigration detention. To meet the obligations of such a convention it is incumbent not only on the Commonwealth to do everything itself, the actions of States and Territories also contribute to meeting these principles.
The hearing will seek to meet this objective by the following: first, understanding the basis of the immigration detention process including the theoretical and practical principles by which DIMIA operates; second, establishing the services DIMIA expects ACM to provide and the level of such service provision, this could include obtaining services from other agencies; third, understanding the means by which ACM reports to DIMIA and DIMIA assesses and evaluates ACM.
This is quite an important hearing because, due to a number of reasons, it is the first opportunity we have had to hear in detail from DIMIA on issues relating to principles of detention management and day to day operation of places of detention. I must acknowledge we have received quite substantial submissions from DIMIA and considerable additional materials. There was also a directions hearing in September concerning the status of material provided and my decision on this was issued on the 9th of October and I do not intend to re-open that matter. But it's important to remember that it's the first time we'll be able to talk to DIMIA about the issues they identified in their submissions and to focus on its detail.
We also will hear evidence from ACM, and ACM is the contracted service provider and responsible to DIMIA. ACM is a relatively unknown entity to the public. We cannot obtain a clear picture of immigration detention without understanding its role and responsibilities. I understand a tender process has been ongoing for a considerable period of time in respect of provision of immigration detention centre services, this fact has heavily influenced DIMIA responses, it has also affected the Inquiry's timetable substantially. The Human Rights Commission has made every effort to accommodate DIMIA in this matter. However, I have a responsibility to report on this Inquiry and it is not possible to continue postponing hearings because DIMIA is unable to determine when the tender process, which is totally in its control, will be finalised.
Another issue of importance has been that concern has been expressed about providing information on the current service provider, ACM. I will not go into this except to state that I remind witnesses that they are asked to make an affirmation or take an oath, both of which require telling the whole truth.
The hearing will also refer to individual case studies. Permission has been obtained by the Commission to reveal some of the family details for the purposes of the Inquiry. Previously when individuals have been mentioned, it has been done in camera hearings. In the case studies to be discussed during this hearing in order to illustrate service provision, the individual families will be identified only by case numbers and within that as adult 1, adult 2 and so on. Even though media and others may believe they can identify who these people are, they must not name the family or families.
The Inquiry so far has proven to be the most comprehensive and thorough Inquiry I've ever undertaken. The Inquiry's methodology included public submissions, hearings in each capital city other than Canberra, Darwin and Hobart, visits to immigration detention centres, focus groups, review of documentation provided by DIMIA and ACM pursuant to several notices to produce issued under the Human Rights and Equal Opportunity Commission Act. Here I would like to acknowledge both DIMIA and ACM staff for the work undertaken in identifying the relevant documents and providing them to the Human Rights Commission.
Rather than talk more in detail about methodology, I have provided a separate sheet which outlines the numbers of submissions, hearings and so on and it is available for you if you would like to have it. However, I would like to emphasise that the process of the Inquiry so far has been public as much as possible and I would like to acknowledge also the contributions made by professional and community groups as without those contributions we wouldn't have been able to reach as far as we have.
Today's process for the hearing will start with opening statements, then it is my intention that DIMIA will be asked questions first and ACM will be offered an opportunity to comment and then counsel assisting the Commission may re-examine. I believe that where questions are taken on notice answers should be provided by the end of the hearings, that is on Thursday, 5th December. I simply do not wish to prolong the Inquiry process by waiting for additional information.
Now, I will move through the program in the order listed. The program does not preclude me or my Assistant Commissioner following the matters which may be of particular interest to us. Some of the issues we may choose to discuss on the final day and here I, for example, refer to issues such as lip sewing, quality of food services and so forth.
So, perhaps we now could start with opening statements and I would like to invite Ms Philippa Godwin, Deputy Secretary of the Department of Immigration, Multicultural and Indigenous Affairs to make an opening statement on behalf of the Department.
MS P. GODWIN: Thank you, Commissioner, and thank you for this opportunity to make an opening statement. The opening statement supplements the Department's comprehensive written submission to the Inquiry provided in May this year.
It is now twelve months since the Commission announced this Inquiry and six months since the Department lodged its submission. It is important to reflect that in a program as dynamic as the detention program things have not been standing still. During that time there have been significant changes in the detention environment and arrangements but it also important to reiterate that the law in Australia requires the detention of unlawful non-citizens. The government has made it clear that it does not propose to undo the mandatory detention framework. It has equally made it clear that within this framework the objective is to ensure that detention is humane.
I will draw attention to some of the changes over the past few years and place those in the context of the Department's efforts to continuously improve the way detention is managed. What's changed? The most significant change is that the detention population has reduced dramatically. When the Inquiry was first announced in late November 2001 there were approximately 3400 people in detention of whom 748 were children. These figures were already a reduction from the historically high number of 3721 people in detention in August 2001. Now, as of the 15th of November, which is the date that we'll be working from in terms of comprehensive statistics during the course of the hearings, there are 1282 people in detention of whom less than 600 are unauthorised boat arrivals. That is, there are 62 per cent less people in detention now than there were 12 months ago.
Of the total boat arrival population in detention only 4, and none of them is a child, are awaiting a primary decision and all of those 4 awaiting a primary decision are waiting for it on the basis of significant public interest concerns. There has been an even more dramatic reduction in the number of children in detention. There are now just 139 children under the age of 18 in detention, that is less than 20 per cent of the total of 12 months ago. Of these 139 children, 7 are residing at the Woomera Residential Housing Project, 17 are unaccompanied minors of whom 12 are in foster care or alternative detention arrangements in the community, only 5 unaccompanied minors are in a detention centre.
There has also been a very significant change in the education arrangements for children in detention. 100 of the children in detention are school aged, 49, that is approximately half, now attend either government or non-government schools in the community. This does not include the 5 primary school aged children at the Woomera Immigration Reception and Processing Centre, who, as part of their education program recently began attending a non-government school at Roxby Downs on a two day a week basis.
The main impediments to children attending schools in the community are external barriers, such as the views of State education authorities or local communities. Children who are not attending external schools are provided with a range of programs within the centres. For the 39 pre-school children, varying in age from a few months to five years, a range of programs both outside and within the detention facilities is provided.
The improvements in education arrangements for children in detention over the past six months illustrate how seriously the Department takes its obligations in relation to children. In this context it is important to note that we are continuing to negotiate to achieve even higher levels of access to schools in the community.
Since our submission was lodged the first purpose planned immigration detention facility has been commissioned. The Baxter Immigration Detention Facility near Port Augusta, South Australia, became operational on the 6th of September this year. There are currently 212 detainees including 35 children residing there. In planning Baxter the Department drew lessons from its experience in managing detention over the last few years. Baxter provides higher levels of amenity and security than existing centres, there are nine compounds which allow more flexibility in managing detainees in a community oriented environment. It better accommodates families by having family designated compounds, rooms with ensuites and some interconnected rooms. Two of the nine compounds are designed to accommodate people with mobility disabilities.
To ensure that appropriate education arrangements were put in place from the beginning in Baxter the detention services provider engaged the East Gippsland Institute of Technology to provide a curriculum for a full education program from pre-school to secondary school in line with South Australian education requirements. While negotiations continue with the South Australian government and the Port Augusta community to get access to external schools, the children are able to attend school in the centre five days a week.
As a result of the opening of Baxter and the reducing numbers in detention the Department was able to mothball Curtin IRPC and scale down the operation of Woomera. In our submission in May this year we referred to the establishment of the Woomera Residential Housing Project in August 2001. That project has now been evaluated, the evaluation found that, while costly, it has been successful. Participants have clearly benefited from the living conditions provided and we have been able to maintain security while residents live in the town environment. Staff and regular visitors to the project have commented on the positive effects for participants and their role as mothers in the family was reinforced. They were able to take control of managing their homes, their time, their priorities and their children's activities in a more normal domestic environment than was possible in the centre.
In the light of this success the Minister announced a continuation of the existing project and the broadening of eligibility criteria for women and children to participate in these alternative detention arrangements. This means that women and children may now be eligible to participate in the project while the Refugee Review Tribunal or the courts are considering their cases. The Minister also announced that he proposed to explore the possibility of establishing similar alternative detention arrangements in Port Augusta or the surrounding region.
I'd like to set the context in which we have been operating. The provision of immigration detention services is a complex and dynamic area of public administration. It is not possible to predict the number of unauthorised arrivals that may come to Australia. After all people simply do not book in. Nor is it possible to predict the means of their arrival, the characteristics of the population that arrives nor the validity of any claims they may make to remain in Australia.
For example, in the first nine months of 1999 the number of unauthorised arrivals fluctuated around 200 per month. Numbers in detention remained relatively low at around 500 to 700 up until May 1999 but starting in the later part of 1999 there was a very significant, and largely unexpected, increase in the number of unauthorised arrivals to Australia. In November 1999 alone over 1200 people arrived. This was almost a three-fold increase in unauthorised boat arrivals from the previous month and was almost six times greater than for any other month of that year. It was the highest number in any single month up to that time.
Overall the number of unauthorised boat arrivals in 99/2000 increased four and a half times from the previous year. This required a rapid response from the Department which had to accommodate and care for these people in accordance with the Migration Act and Australia's international obligations. The high number of arrivals continued until towards the end of 2001 peaking at 1645 in August 2001. During this two year period the number of children in detention also increased significantly. From 58 in July 1999 to 842 in September 2001.
In August 2001 when there were 3721 people in immigration detention facilities around 1200 people were awaiting a primary decision on their protection visa application. Less than 12 months later by the 1st of July 2002 there were 1340 people in detention of whom only 26 were awaiting a primary decision, the rest were pursuing either merits or judicial review or were awaiting removal.
In addition to the dramatic fluctuations in the number of people in detention the nationality and family mix of arrivals also changed. For example, the Department began to see an increasing number of children arriving unlawfully. From 58 children in detention in July '99, as I've already mentioned, the numbers increased to 628 in July 2001, more than a tenfold increase.
At the same time, however, turnover in the centres was also high as applications were processed and protection visas granted. In 1999/2000 a total of 790 temporary protection visas were granted. In 2000/2001 the total was 4382. Inevitably over time this resulted in an increasing proportion of detainees who had received a negative decision on their application. These figures alone give a sense of the volatile and challenging context within which detention services are provided. In response to these changes the nature of detention services has also changed.
In 1997 the Department entered into a whole of service contract with Australasian Correctional Management for the provision of detention services. This replaced previous fragmented service delivery arrangements and for the first time detention service requirements were formalised into a set of principles and standards. In the Human Rights Commissioner's 1998/1999 review of immigration detention the Commissioner stated:
The program improvements noted during inspections in 1998 are attributable in large part to the transfer of detention service provision to ACM and the opportunity that transfer created for DIMA to design and impose immigration detention standards.
At that time there were four dedicated detention facilities. Villawood, Maribyrnong and Perth immigration detention centres were used mainly for compliance cases and Port Hedland was used for unauthorised boat arrivals. As numbers increased dramatically in late '99 the government moved quickly to find appropriate accommodation. The choices were few. The Curtin facility, which had been decommissioned in January 1996 was an obvious choice. The most efficient option was to recommission Curtin and expand its capacity from around 400 places to 1200, that was done in September 1999. However, this alone was not enough.
The Department needed another location on Commonwealth land with power, water, sewerage and physical infrastructure such as accommodation, kitchens, laundries and ablution blocks to accommodate the burgeoning numbers. At the time, given the requirements, Woomera was the best solution. The Department had to move ahead of the rate at which people were arriving. We did not have the luxury of time to seek purpose designed and built solutions. Indeed, centres were being constructed around detainees.
The Department's initial focus in these circumstances was to ensure that all unauthorised arrivals were provided with the necessities. Good quality food in adequate supply, comprehensive medical services, safe clean accommodation, adequate ablution facilities, clothing and footwear appropriate to the circumstances. The demand for a rapid response required the Department to focus on the practical aspects of managing detention.
As these basics were established we turned to improving facilities, amenities and services such as developing education buildings, sports fields and other recreational facilities within the centres and arranging external excursions. There was a particular focus on the development of educational and recreational programs. Operations in the centres were supported by a management infrastructure that had two main components. The first of these was onsite Departmental staff including a senior officer titled at that time the DIMA Business Manager.
These staff were responsible for two main areas. First, oversighting ACM service delivery and contract performance through day to day involvement in the centre as well as ongoing monitoring and reporting. Second, co-ordinating and supporting those aspects of service delivery that remained the responsibility of the Department, that is any issue related to the person's immigration status, application processing and so forth.
The other main component existed in Central Office where the Detention Operation Section subsequently supplemented first by a separate Detention Policy Branch and then by the Detention Management Section was responsible for supporting staff and operations on the ground and for overall policy procedures and contract management.
The contract with ACM provided a sound framework for the delivery of services. Management of the contract evolved as the environment changed. For example, when we were operating only four centres, communication and service monitoring was through individual contact with Centre Managers, incident reports made by the services provider and quarterly reports submitted by DIMA Managers. Over time as the number of detainees in centres and the complexity of the program increased these management strategies were augmented by increased reporting and analysis and continuing development of policy and procedures.
Written reporting mechanisms increasingly became important particularly in monitoring performance. This trend is evident in the monitoring documentation supplied to HREOC by the Department. The lessons learned from this contract have been consolidated in the documentation and planning for the new detention services contract.
In order to deliver quality services in detention centres we also need the co-operation of State and Territory agencies. This started in practical ways such as forming relationships with local and central offices of State and Territory agencies responsible for policing child welfare and health. This meant, for example, that if a potential criminal offence was committed in detention police would be contacted. If there were concerns about the wellbeing of a child in a centre the appropriate welfare agency would be approached for an assessment, recommendation and advice.
Subsequently we sought to formalise these relationships into memoranda of understanding and also to establish agreements in other areas such as education. These negotiations have in some cases been protracted and challenging. Nonetheless in most areas discussions have proceeded co-operatively.
We have also had an eye to the future. We have learnt valuable lessons from experience and always have an eye to the future. Continuous improvement has been the pattern and remains our practice. As I mentioned we were not in the position of being able to develop and implement a perfect system from the beginning, rather we had to manage the evolving situation whilst simultaneously drawing from our experience to improve service delivery and to build a better management framework. As infrastructure was upgraded and management strategies consolidated the focus increasingly moved to tailoring responses to the individual circumstances of detainees.
At the same time there was a greater focus on the need to formalise the increasing body of experience in policy and procedural documents such as Migration Series Instructions and as mentioned MOUs. This was matched by the significant changes in departmental structure and resourcing to meet the changing needs in the management of detention which was identified in chapter five of our submission.
Additional departmental resources were directed to improving the existing and development new detention infrastructure. Increasing the capacity for departmental monitoring of the detention services contract, clarifying the legislative framework, developing policy and procedural instructions and responding to increasingly high levels of public scrutiny. Developments in two areas, education and detention standards illustrate our focus on continuous improvement.
As I mentioned, at present almost half of school age children in immigration detention attend schools in the community. The Department acknowledges that access to schooling is likely to be appropriate and beneficial for most children. So, establishing these arrangements has been a priority over the last nine months. Earlier on when there were large numbers and a high turnover of children in detention it was not practical to place children in local schools. Schools would have been reluctant to take large numbers of children for short periods.
For example, around September 2001 there were over 450 children at the Woomera centre. The local school had a student population of around 70 children. The logistics of integrating the detainee children, many of whom moved out within the short time, would have been impossible. In these circumstances education was conducted mainly within the detention facilities and focused on English language, literacy, numeracy and socialisation skills. This enabled children to integrate into local schools effectively if they were granted a visa.
We have received a letter from a school in South Australia attended by former detainee children saying how well prepared the children were in terms of their English language development. Not that attendance in mainstream schools for detainee children is an entirely new development. Over the years at various times children from Maribyrnong, Villawood, Curtin, Port Hedland and Christmas Island have attended local schools outside the detention facilities. The Department has been keen to formalise such access and has been negotiating with a number of State governments about the terms and conditions of access by detainee children to government schools. These negotiations while not get finalised in all cases have progressed positively.
At present the Department has formal arrangements in place for access to State schools in New South Wales, is nearing finalisation of an MOU with the Victorian government on the basis of which children from Maribyrnong started attending external government school in October this year, and we continue to negotiate with South Australia. Attending a school in the community provides children with much more than a formal education. It allows them to experience a normal day in the life of any school aged child, offers them opportunities to socialise and make friends outside the detention environment and importantly has a very positive effect on the emotional and social wellbeing of the whole family.
In these circumstances parents generally seem to show a greater interest in their child's progress at school and they are provided with opportunities to attend parent/teacher interviews in the same way as other parents do. For children who cannot be placed in local schools education continues to be provided within the centres. Programs are conducted by qualified teachers and based on the normal school curriculum while also accommodating the individual needs of the children. These programs take into account the children's variable lengths of stay, address their abilities, any learning difficulties they may have such as literacy and numeracy problems and their proficiency in English.
A further tangible example of the improvements made in the management of detention is the development of the new Immigration Detention Standards and the Statement of Requirements which earlier this year formed the core of the next services contract. This process was the culmination of valuable lessons learned from managing detention. We used this opportunity to develop a more robust performance management frameworks and introduced improved service delivery standards into the next contract.
As part of that process the IDS and the associated performance measures were substantially revised. The Department took into account key issues which had emerged over the life of the current detention services contract. The Department was also guided by the recommendations of the Flood Inquiry, this Commission, parliamentary committees and various Commonwealth Ombudsman inquiries. The new IDS were then developed in consultation with your organisation, Commissioner, the Commonwealth Ombudsman, and the Immigration Detention Advisory Group and were informed by Australia's international obligations.
While the IDS continue to be outcome focused and the broad parameters remain the same the revised IDS are more precise and more detailed than the current version. They include, for example, extensive coverage of requirements in relation to children including their educational and developmental needs. The greater degree of specificity in the standards and the clearer link between the IDS and performance measures will enable more targeted monitoring of service delivery.
In addition to the IDS the Statement of Requirements contains contextual material that sets out in considerable detail the Departments expectation of the services provider in delivering services under the contract. This material draws on the best practice and procedures in managing immigration detention which have developed over the recent years. It covers a broad range of issues that arise in detention facilities and constitutes the most comprehensive statement of policies and procedures to date. The Statement of Requirements and the IDS were provided to the Commission in July 2002, they reflect the Department's practice of continuous improvement in the management of detention.
I'd like to turn now to particular issues that have arisen during the course of the Inquiry, in particular during public hearings. A number of submissions have raised concerns about the length of time people spend in detention. While talking of processing, people often include not only the primary process for which the Department is responsible but also merits and judicial review. These processes are outside the mandate and therefore the control of the Department. Nevertheless the speed of primary processing is clearly the key issue. The faster the detainees can have their applications processed the sooner they can be given a decision about their situation. Either they will be granted a visa and released or they will be refused. Either way their situation will be clear.
To this end a very significant focus of the Department is to have applications for protection visas processed as quickly as possible, consistent with the need to maintain the integrity of the process and of the individual decisions. In 2000 in response to the sustained trend in unauthorised boat arrivals the Department established a boats taskforce to address the need for streamlined processing and increased numbers of protection visa decision makers. Significant numbers of staff were taken off line and trained to make protection visa decisions. The Department introduced front end loading of health and character checks to reduce processing times.
By mid 2001 the time taken for the Department to process protection visa applications for 80 per cent of applicants had decreased from an average of seven and a half months to twelve and a half weeks. This improvement in processing visas was achieved in the twelve month period when around 4400 temporary protection visas were granted. By the end of 2001 the significant reduction in processing times meant there was greater throughput in detention facilities. Many detainees were in facilities for a short period and then released into the community on a visa.
Today we are left essentially with three groups of people in detention: a very small number of complex cases who have not yet had a primary decision; those who have been refused a visa by DIMIA and are pursuing merits review or judicial appeals options; and those whose applications have been finalised and are awaiting removal. Noting that now about two thirds of those in detention are available for removal.
Most of the people now in detention are increasingly unlikely to get the outcome they want, that is a visa. This presents further challenges in managing their detention. We recognise that detainees are likely to feel frustrated and angry when faced with the negative outcome on their applications for review. For many of these people their length of time in detention may be affected by the timetable of the courts. This is outside the control of the Department.
Others have exhausted all avenues of appeal and are not entitled to be granted a visa. We recognise this is a very difficult situation for detainees. They experience mixed emotions concerning their decision to come to Australia unlawfully and for families concerning the impact of that decision on their children. Many have invested a lot, taken considerable risks to get to Australia. They have not obtained the outcome they were led to expect by unscrupulous people smugglers. They need to make the transition to accepting that there is no other option but to leave Australia.
The decision to co-operate in leaving Australia will understandably be a difficult and, for some, a bitter one in light of the hardships they have faced in order to come to Australia. As much as possible the Department's focus is on providing effective support and helping them to reach that point and focus on leaving. As the numbers of people in this situation increase and their stay extends, while efforts are made to achieve their removal, their ongoing management presents new and significant challenges for the Department and the services provider.
While the Department has a significant focus on reducing the amount of time people spend in detention, length of time in detention does not of itself constitute a reason for release. In domestic and international law it is legitimate to detain unlawful non-citizens if processes for determining their claims are continuing or efforts are being made to remove them where they have no right to remain. After a primary decision has been made the time spent in detention is not just a matter for the government or the Department. For many detainees including parents the choice to bring their detention and that of their children to an end is in their hands.
The further detainees are through the review and appeal process the more their detention and that of their children is extended by their own decisions. Agreeing to return to their home country and co-operating with removal arrangements will bring their detention to an end. Such a choice allows them to re-establish a life for themselves and their children in their country of origin, in some cases with the help from the Australian government in the form of a reintegration package.
I'd like to make just a few comments before I finish about the current Inquiry. A number of the submissions to the Inquiry focus on incidents that occurred long ago. Many submissions raise issues which have now been addressed. Often these issues have been the subject of other inquiries including those undertaken by the Commonwealth Ombudsman and Mr Philip Flood AO. The Department has considered the recommendations of these other inquiries and in responding has improved detention service delivery. This surely must be the point of such inquiries.
Rather than dwelling on the history I believe that focussing on improvements for present and future will provide a better result for the ongoing management of detention and ultimately for detainees. Reflection, of course, is useful to the extent that we can learn lessons from a helpful and constructive analysis. But to the extent that dwelling on historical events ignores the many improvements in place in the detention environment and the Department's demonstrated efforts to continually review and improve arrangements for detention such retrospective reflection, it is not productive and in fact is flawed, partial and misleading.
The Department is also concerned that issues have been raised in written submissions and in public hearings that are factually incorrect or based on untested allegations. A constructive debate on the detention program cannot proceed on this basis. It is important that the Commission tests carefully the claims and allegations made in submissions to the Inquiry, particularly those made by people who have never visited a detention facility or who visited or worked in facilities some time ago when circumstances were quite different.
Allegations are often repeated by individuals or organisations but without verification are no more than hearsay. The fact that an allegation is repeated a number of times does not add to its veracity.
Consistent with our general view that it is desirable to proceed on the basis of fact rather than allegation I would like to briefly refer to what we see as a widely mis-held conception, that immigration detention centres are not open to scrutiny. Federal parliamentarians, parliamentary committees and the Immigration Detention Advisory Group, all these bodies play an active role in the oversight of immigration detention arrangements. In addition international bodies such as the UNHCR and the UN working group on arbitrary detention have access. The media has also had access to a number of centres on a number of occasions.
Importantly, both your own Commission and the Commonwealth Ombudsman have statutory roles in relation to the detention program. In fact immigration detention is one of the most closely scrutinised government programs. The Department invests considerable time, effort and resources to assist the Commission in that role. Our co-operation with this Inquiry is no different.
Our purpose here is to continue to assist the Inquiry. In that spirit I look forward to recommendations that will result in improving the services offered to children in detention within the current legislative framework. Thank you.
MR BROMWICH: Commissioner, before we commence to the next phase, before the opening statement was made you made a reference to questions on notice being answered by Thursday. The position of the Department is that whilst everything will be done within the Department's capacity to answer such questions, to some extent it depends on how much notice we're given of a question and how complex they are and how much is involved, remembering that a number of the key people who are in a position to assemble the information are here not back in Canberra where their primary source of information is. All I wanted to say about that is that whilst every endeavour will be made to meet that Thursday deadline there may be some questions where we just simply can't do it and I wanted to indicate that now rather than later.
DR OZDOWSKI: Yes, thank you very much, counsel. Let's wait for individual issues as they arise. I still would like to have the responses as soon as possible because in the past some of the responses have taken a considerable period of time and I am intending on finishing this Inquiry as soon as possible, so let's deal with it as a case by case basis.
MR BROMWICH: Yes, Commissioner.
DR OZDOWSKI: Thank you. Now, I would like to ask Mr McIntosh whether he would like to make a statement on behalf of ACM.
MR RUSHTON, SC: Can I speak on his behalf, Commissioner?
DR OZDOWSKI: Yes, please do so.
MR RUSHTON, SC: Members of the Commission, Australasian Correctional Management respectfully decline the Commission's kind invitation to make an opening statement. It does so for two reasons: first, much of what can be said has been said by the Department in its opening statement; second, ACM takes the view that it is not appropriate for it to make an opening statement as such a statement may imply that it takes a position on the issues which are the subject of investigation. I must emphasise that it takes no position. ACM is a service provider which provides services to a high standard pursuant to a complex contract. Although those services are provided within a particular legislative and policy context, that context is set by others.
Now, that having been said, Australasian Correctional Management has provided and will continue to provide its fullest co-operation and assistance to the Commission.
DR OZDOWSKI: Thank you. Could I ask you, Mr Bromwich, is there anything else you would like to ask to do with any statement by Ms Philippa Godwin?
MR RUSHTON, SC: There's nothing to be added at this stage, however we're not entirely sure where we go next, we're in your hands, Commissioner.
DR OZDOWSKI: Okay, thank you very much. So, in this case I would like to perhaps ask that an oath or affirmation be administered now.
PHILIPPA GODWIN, affirmed [10.08am]
DEPUTY SECRETARY DIMIAROBERT ILLINGWORTH, affirmed [10.08am]
ONSHORE PROTECTION BRANCH, DIMIADOUGLAS WALKER, affirmed [10.08am]
VISA FRAMEWORK BRANCH, DIMIAROSEMARY GREAVES, affirmed [10.08am]
DETENTION POLICY BRANCH, DIMIADR OZDOWSKI: Thank you very much. Now, I would like to hand over to the counsel assisting, Mr Wigney and Mr Hunyor.
MR WIGNEY: Thank you, Commissioner. Ms Godwin, unless the Commissioner or you or your representative have any objections to this I propose to direct my questions principally to you as the senior officer and you, no doubt, will be in a position to refer any other questions more appropriately answered by your colleagues if that's the situation.
MS GODWIN: Sure, that's fine.
MR WIGNEY: Now, I'm afraid that I'm going to start on a fairly mundane note and ask a few questions about procedural matters that may make the next day or so of evidence slightly more understandable. Can I firstly - is it the situation that the Department is fully aware of what has transpired at the public hearings of this Inquiry over the past months?
MS GODWIN: Well, we've certainly been following the public hearings. I think there's probably been Departmental officers at most, if not all, hearings.
MR WIGNEY: Yes. Departmental officers have been attending at least the public hearings of the Commission, is that correct?
MS GODWIN: That's my understanding, yes.
MR WIGNEY: And indeed you're aware, are you not, that most of the public submissions, if not all of the public submissions that have been received by the Commission have been posted on the website of the Commission?
MS GODWIN: Yes.
MR WIGNEY: That's being monitored by the Department and Department officers?
MS GODWIN: Well, to the extent that's possible. I mean obviously the volume is very significant.
MR WIGNEY: And indeed on various occasions the Minister has seen fit to respond on his own website to evidence and submissions received, at least public evidence and submissions received at the Inquiry, is that correct?
MS GODWIN: Well, I believe so but clearly it's a matter for the Minister.
MR WIGNEY: I may, on various occasions, refer you to some public evidence or submissions that have been received and I will take you to the documents if need be. You are also aware, are you not, that some confidential evidence, in camera evidence and submissions have been received by the Commission?
MS GODWIN: Sure.
MR WIGNEY: It may be that I will take you to the substance of some of that material or submissions of course without revealing the identity of the person or persons who gave that evidence.
MS GODWIN: Mm hm.
MR WIGNEY: Can I ask you briefly some questions in relation to the production of documents to this Inquiry. Obviously at various stages during my questioning I will be asking you questions about or by reference to documents which the Department has provided to the Commission. You're aware, are you not, that in about July of this year the Department was served with a number of notices under the Commission's Act?
MS GODWIN: Yes.
MR WIGNEY: And they required the Department to produce a broad range of documents relevant to the Inquiry?
MS GODWIN: Yes.
MR WIGNEY: You, as one of the senior officers in the relevant area, were involved at least at a high level in the compliance with those notices, is that correct? You're aware of the terms of the notices and the documents that were required to be produced?
MS GODWIN: In broad terms. I mean I'd have to refer to them individually if you wanted me to say anything more than that.
MR WIGNEY: You agree that they were fairly broad and required a broad range of documents to be produced?
MS GODWIN: Extensive range of documents, yes.
MR WIGNEY: And do you say that the Department took all reasonable steps to locate and produce all documents within the terms of the notices, that is documents that it had in its custody and control?
MS GODWIN: That's my understanding and also you may well be aware that as we've subsequently identified anything else that we think might have been relevant or should have fallen within the ambit that we've located subsequently I think there have been a couple of instances where we've actually provided additional documents.
MR WIGNEY: Quite so. Indeed you or Department officers have conducted extensive searches of its files and archives to comply with these notices, is that correct?
MS GODWIN: To the extent possible, yes.
MR WIGNEY: And in the course of answering those notices there's been liaison between the Department and ACM in relation to documents?
MS GODWIN: There has.
MR WIGNEY: You're aware that ACM received notices in similar form to those received by the Department?
MS GODWIN: Yes.
MR WIGNEY: And to avoid duplication it was essentially agreed that ACM would produce the documents it had in its custody and control to the Department who would then collate them and then produce one set of documents, is that correct?
MS GODWIN: That's the process as I - yes - that we followed, yes.
MR WIGNEY: And no doubt you or Departmental officers sought assurances from ACM that it had conducted a thorough search for relevant documents?
MS GODWIN: I believe so. Can I just say, Mr Wigney, I'm agreeing with these propositions because it broadly covers the range of issues that we went through but, you know, this has all taken place over some period of time so I'd need to refresh my memory about individual steps.
MR WIGNEY: Yes. Well, when we get to - if needs be - when we get to particular issues relating to documents then I'll take you specifically to the notice if that's necessary.
MS GODWIN: Sure, yes.
MR WIGNEY: Now, indeed there was fairly extensive correspondence between the Department and the Commission in relation to compliance with these notices?
MS GODWIN: Yes.
MR WIGNEY: And you were involved in that correspondence and indeed involved in some meetings?
MS GODWIN: I think they were mostly conducted by phone so when you say meetings I would need to check whether there were actually any meetings, but there's certainly been a lot of talking back and forth if that's your point.
MR WIGNEY: Yes. Well, I suppose the point is, is it the situation that the Department ultimately was satisfied that all the documents in its custody and control and also in the custody and control of ACM within the terms of the notices were produced to the Commission?
MS GODWIN: Well, to the extent that we could be. I make the caveat that I made, and I think we made when we supplied things, that if we located material after the event that we thought was relevant we would seek to produce that to the Commission. So, you know, there's been that sort of process of going through documents on an ongoing basis.
MR WIGNEY: I understand. The notices had a number of paragraphs and largely dealt with particular topics relevant to the Inquiry, you'd agree to that?
MS GODWIN: I'm sorry?
MR WIGNEY: The notices had a large number of paragraphs dealing with rather complex - - -
MS GODWIN: Yes, different parts and so forth, yes.
MR WIGNEY: In cases where the notices required production of documents on a particular topic and either no documents or very few documents have been produced, the Commission can be satisfied, can it, that neither the Department or ACM have documents on that topic?
MS GODWIN: Yes, that's my understanding. Unless we subsequently located something that we believed was relevant but we've certainly made as thorough a search as we possibly can up to this point.
MR WIGNEY: What I propose to do in a moment is to ask you some fairly general and broad questions really as an overview of the detention regime. Can I ask you this firstly, in your opening address to the Commission you indicated that the focus ought be on the present and the future, not the past, is that right, amongst other things?
MS GODWIN: Well, amongst other things. But I think I was making the point that because this is a program which has sort of developed and evolved as rapidly and dramatically as it has over the last few years that, to the extent that we can learn lessons which then go to the future, that's obviously what we're focused on. That doesn't mean, as I said, we're not interested in a proper examination of what happened in the past but to the extent that it can provide lessons for the future I guess that's where we're focussed.
MR WIGNEY: You accept, do you not, that at least part of the function of this Commission is to report on breaches of human rights?
MS GODWIN: Sure.
MR WIGNEY: And that, of course, may include past breaches, particularly if they may be continuing, is that correct?
MS GODWIN: Well, I understand the function of the Commission in those terms, yes.
MR WIGNEY: Now, you've referred to the learning of lessons from the past, would you accept this as a general proposition, that for things to improve in the future one often has to acknowledge and recognise mistakes that have been made in the past?
MS GODWIN: Well, as a general proposition, but I mean I guess what I was pointing to was things that were of necessity done that now we can see how it worked and whether it worked well, whether there's a better way to do something, that should be fed into the way in which things are done in the future.
MR WIGNEY: Well, I suppose the very general proposition I want to put to you is this that as I read the Department's submissions and as I listened to your opening address it seems to be that whilst the Department has pointed out the pressures that were on it at various times due to the influx of asylum seekers at various stages that the Department does not acknowledge or accept that it has got it wrong on occasions in the past. Is that an accurate portrayal of the Department's attitude?
MS GODWIN: I think it would be more accurate to portray our attitude as we had to focus on the things that needed to be done at the time but through that process clearly we've learned ways of doing things that would be more constructive in the future. So, it has been a process of continuous learning and improvement, as I said in my opening statement.
MR WIGNEY: Do you acknowledge that in various occasions and various respects in the past the Department got it wrong?
MS GODWIN: Well, I don't see that there's a point in making a sort of general point like that. I'm sure there are individual incidents where when we look back we can think it may have been better to do that a different way but without sort of looking at those individual circumstances clearly, as I have said a number of times, we recognise that we were working in a very dynamic environment which required us to move quickly and for example with facilities which were not purpose designed for the circumstances. But, through that process, we've been able to examine what was done, how it was done, whether there are better ways of doing it, and that's what we're trying to incorporate into our practice and have been over the last couple of years.
MR WIGNEY: Well, perhaps you're right, it may be more fruitful to come to specific examples in due course. Just one other general matter, in terms of the dynamic nature of things and you can perhaps regard this as a question on notice, we observed from at least media outlet this morning that there are foreshadowed some significant proposed changes to detention of families and unaccompanied children. Is that your understanding? Is there to be some proposed changes announced shortly?
MS GODWIN: Well, I'm aware of the article but I haven't read it. As far as I'm aware it remains media speculation.
MR WIGNEY: You're not in any position, even if you take the question on notice, to shed any light on any proposed changes to those regimes?
MS GODWIN: No.
MR WIGNEY: Well, the media article includes this paragraph:
Under the proposed changes women and children will live in supervised accommodation outside detention centres while fathers will be held in detention to deter them from absconding. Children will be free to attend local schools.
Is there a proposal to extend the project that has taken place at Woomera, the housing project, to other states and other centres?
MS GODWIN: Well, I already said in my opening statement that the Minister has announced that we're looking to establishing something similar in relation to the Baxter facility.
MR WIGNEY: The article continues:
Mr Ruddock is also expected to outline new procedures for handling unaccompanied children that does not involve them being held in detention.
Are you able to shed any light on any proposals in that respect?
MS GODWIN: I'm unable to comment because, as I say, it's - as I understand it - simply media speculation at this point.
MR WIGNEY: So, as far as you're aware, there's no proposed speech by Mr Ruddock to parliament this week about those matters? You don't know anything about it?
MS GODWIN: This is a parliamentary sitting week. The Minister will no doubt be speaking on a range of matters during the course of the week, it's a busy parliamentary week. In terms of that article I'm not able to comment any further on anything that's made - any comments that are made in that article.
MR WIGNEY: Well, you're one of the most senior officers - - -
DR OZDOWSKI: Mr Wigney, I think public servants cannot respond to that question. Please move on.
MR WIGNEY: Now, before turning to some more specific issues that the Commission has indicated it wishes to explore during these public hearings, I want to ask you some fairly general questions, really by way of overview concerning the Department's attitude and approach to the detention of children. You may take it, of course, that I have, and the Commission has read the Department's detailed submissions and taken them on board. But what I want to do is to ensure that we fully comprehend the Department's position and will seek clarification as necessary.
Now, obviously the starting point of course is the fact that, as we all know, the Migration Act provides for the detention of all unlawful non-citizens and that of course includes children.
MS GODWIN: Correct.
MR WIGNEY: That includes children whether accompanied or unaccompanied by a parent or other adult, is that so?
MS GODWIN: Well, it's all unlawful non-citizens in Australia are required to be detained.
MR WIGNEY: Subject of course to the grant of a bridging visa, which is an issue that I'll return to in due course, all children who are unlawful non-citizens will or must be taken into immigration detention under the present regime?
MS GODWIN: Yes.
MR WIGNEY: Can I just, as it were, make the Commission's attitude in relation to that clear and I'm sure you're aware of this, that the Commission has previously expressed the view that mandatory detention of most unlawful non-citizens, in particular when that detention becomes prolonged, amounts to arbitrary detention in contravention of, amongst other things, article 9 of the International Covenant on Civil and Political Rights, you're aware of that aren't you?
MS GODWIN: Well, I'm aware of the Commission's attitude on that point, yes.
MR WIGNEY: Now, we accept that the Department takes issue with that but to make it plain we accept that it would not be fruitful to take up time in this public hearing with a debate on that particular issue. But you would certainly agree, would you not, that even in the present regime the Department or the Minister has a discretion firstly as to what form immigration detention will take, correct?
MS GODWIN: Yes, I'd accept that.
MR WIGNEY: And obviously also a discretion as to the conditions and circumstances that exist in the dedicated detention facilities, right?
MS GODWIN: Yes.
MR WIGNEY: The definition of immigration detention in the Act, you would agree, allows for considerable flexibility on the part of the Department and the Minister in relation to the form of detention?
MS GODWIN: Yes.
MR WIGNEY: Detention, of course, does not have to be in a detention centre or a reception and processing centre such as Woomera or Port Hedland or the like, that's so isn't it?
MS GODWIN: Well, as you say the Act provides a degree of discretion about the nature of detention, it simply requires that the person be detained.
MR WIGNEY: As a broad proposition a person can be detained essentially in any place that's approved by the Minister in writing, is that right?
MS GODWIN: I might ask Mr Walker to comment on that. Do you mind?
MR WALKER: Certainly there is a degree of flexibility in terms of where a person may be held but of course the definition does say that the person is held on behalf of an officer at - and it can be a place approved by the Minister in writing.
MR WIGNEY: Well, in terms of that the Minister could, of course, approve any number of places including places specifically for the detention of children and families, you agree to that don't you?
MR WALKER: Yes.
MS GODWIN: Yes, he can but I think the point Mr Walker is making is that it's not just about declaring the place there's also got to be the capacity for someone to hold the person on behalf of an officer, so it's sort of a dual process, if you like.
MR WIGNEY: The Act also provides, does it not, that any person directed by the Secretary to accompany or restrain the detainee can perform that function?
MS GODWIN: Oh yes, there's a variety of people who can be in a sense designated, if you like, but they have to agree to that process.
MR WIGNEY: So, in the past there have been examples where the Secretary has designated a holder of a temporary protection visa as being a person that could perform that role?
MR WALKER: I'm not aware of that happening. There are two parts to the definition of immigration detention, there's paragraph a) which talks about another person directed by the Secretary to accompany or restrain the detainee. Paragraph b) refers to being held by or on behalf of an officer in another place. So they're two separate alternatives of immigration detention.
MR WIGNEY: So it follows, does it not, that you can - if you're just looking at places approved by the Minister in writing, then one doesn't have to look at a) as an additional requirement?
MR WALKER: No, you don't have to look at a) but the opening words at paragraph b) do say that the person must be held by or on behalf of an officer.
MR WIGNEY: It can be anyone?
MR WALKER: It can be anyone that the officer determines.
MR WIGNEY: Officer, for example a state welfare body?
MR WALKER: It could be a state welfare body.
MR WIGNEY: So again that provides significant flexibility, does it not, in terms of the type of detention and obviously of interest to this Inquiry, is relevant to children and families.
MR WALKER: There is flexibility there.
MR WIGNEY: It's essentially up to the Department and the Minister to determine the conditions in and services provided when someone is in detention, right?
MR WALKER: Yes, but there's also - as Ms Godwin mentioned - the fact is that you have to have co-operation of the person holding on behalf of an officer, so you have to have a degree of consent and acceptance.
MR WIGNEY: Yes, but for example if a state welfare body was willing to take on that role that wouldn't produce any difficulties, would it?
MS GODWIN: Perhaps if I could make a general point here. As a general proposition the point you're making is a correct one, there are numbers of people who could be designated for the purpose. The point though I think needs to be seen in the context of the purpose of detention and the purpose of detention is to ensure that people are available for processing - this is in summary, I think we spell out in more detail in our submission - but, in summary that people are available for processing and available for removal if they're found not to have a lawful reason to remain. Now, if a person is going to take on the responsibility of detaining a person then their co-operation in the overall context of the purpose of detention is also relevant as to whether or not they would be designated as a person who could undertake that role.
DR OZDOWSKI: One of the purposes, as I understand, was also deterrent function of detention, could you comment on it?
MS GODWIN: No. The purpose for detention is, as we've set out in our statement, that people are available for processing which includes identity checks, assessing any claims they have to remain in Australia, health, character, and any other sort of administrative processing that needs to go on. If they're found not to have a visa that they're available for removal.
DR OZDOWSKI: So deterrent wasn't the purpose of the current regime of detention?
MS GODWIN: That's not my understanding.
DR OZDOWSKI: Thank you.
MR WIGNEY: On various occasions we hear politicians referring to the detention regime as a deterrent to - trying to deter boat people from coming to Australia, you say that's not the Department's position?
MS GODWIN: Well, they may make those sorts of comments and it may have that incidental - that may be an incidental outcome, if you like, but the purpose for detention, the reason we have detention is to have people available for processing and for removal should they be found not to have a lawful reason to remain. Of course if they're found, through processing, to have a lawful reason to remain then they're granted a visa and in that way their detention comes to an end.
MR WIGNEY: You've referred there to the purposes of detention and you've emphasised I suppose the fact that people have to be available for processing and available for removal, are you in a sense referring there to the fact that there may be a fear that people will abscond?
MS GODWIN: Well, that's obviously one element further along, if you like, but there's also an issue about ensuring people are quickly available for processing. Clearly there are logistical issues in terms of if you think about the numbers of people we had arriving the logistics of trying to locate those people in the community, take them through their various processing stages and so forth would have been quite significant. So there's a sort of a logistical benefit as well of having people available for processing. Ultimately, yes, there is an issue about absconding. If people don't make themselves available for processing or more particularly don't make themselves available for removal at the end of the process then that is a consideration clearly that has to be taken into account.
MR WIGNEY: I want to come back to that issue in due course but in general terms has the Department ever conducted any studies or is aware of any studies in relation to the risk of unlawful non-citizens absconding?
MS GODWIN: Well, we've got some statistical material that sort of gives us an indication of people's propensity to not make themselves available for example for removal and there are also international comparisons which are relevant in this sort of context where people not only have not made themselves available for removal at the end of a process but in some instances don't even make themselves available for processing. Their entry into the community was in a sense sufficient outcome and so they haven't even made themselves available for processing in some overseas instances. So, yes, we have looked at this issue to some extent.
MR WIGNEY: I suppose you may take this as a question on notice but I wonder if you wouldn't mind, I don't think that has been a subject of a notice to produce, but I wonder if you wouldn't mind producing to the Inquiry those studies that you say the Department is aware of or has considered in relation to that issue, is that acceptable to you?
MS GODWIN: Sure, we can provide some information. When you use the word studies these are not research studies but we have examined this issue and we've looked at statistics and so forth and overseas experience, we can certainly point you to the information we've got.
DR OZDOWSKI: I would be especially interested in any information relating to families and children. I am much less interested in single males but I am interested in information about families absconding and children.
MS GODWIN: I'd have to look but I'm not aware that it necessarily breaks it down in that way it just talks generally. Now, some of the people that are involved in the general descriptions would obviously be families with children but I'm not sure that the information we've got breaks it down in quite that way.
DR OZDOWSKI: You could check.
MS GODWIN: We'll look for what we've got and in fact I think we've probably got some stuff here, maybe you can have a look at it during the course of the next couple of days, if it's helpful we'll give it to you, if not that's fine.
MR WIGNEY: In addition to the possibility of having, what I'll call alternate detention arrangements, that is in places approved by the Minister, you'd also agree that it's really up to the Department and the Minister to determine the conditions in and services provided in the dedicated detention centres, that's correct isn't it?
MS GODWIN: Yes.
MR WIGNEY: Particularly relevant to this Inquiry as regards the housing of children and families. So, it's really not enough to simply say well the present system provides for the mandatory detention of children and that's that, is it?
MS GODWIN: No, and I don't think that is our position. I think our position is that people are required to be detained and while they're detained our focus is on doing that in a way that meets their needs in the best way. So, you know, accommodation and all of the other services and so forth. Now, that's clearly constrained by, in many respects, the physical infrastructure that we've got and the physical infrastructure is constrained to a significant degree by the process we went through in a sense to establish that physical infrastructure, nonetheless there has been a process of improving physical infrastructure and therefore improving our capacity to sort of address some of the issues.
MR WIGNEY: By physical infrastructure you mean amongst other things the centre, physical centre at Woomera, Port Hedland and the like?
MS GODWIN: Yes, sure.
MR WIGNEY: And they're still with us aren't they?
MS GODWIN: Well, yes, they're all operational except for Curtin at the moment.
MR WIGNEY: And there are still children and families in, for example, Woomera?
MS GODWIN: There's a small number of children in there at the moment.
MR WIGNEY: Port Hedland?
MS GODWIN: Yes.
MR WIGNEY: And of course Woomera and Port Hedland and Curtin when it was still commissioned housed during the years 1999 through to fairly recent times, housed the bulk of the children, is that correct, those three centres?
MS GODWIN: Yes, as a general proposition. I mean clearly, you know, the numbers fluctuated and you know at different times there were probably smaller numbers at Woomera, in fact I think at one point we got down to a very small number at Woomera before we saw the numbers in unauthorised arrivals take off again. But, yes, as a general proposition that's correct.
MR WIGNEY: Of course you've referred in your evidence this morning to the fact that - and you do so also in your submissions - that immigration detention is an entirely administrative matter or action, right.
MS GODWIN: Yes, I accept that it's administrative detention.
MR WIGNEY: The Department accepts, does it not, that when making administrative decisions or taking administrative actions relating to the detention of children it must take into account the rights and obligations set out in various international treaties which have been ratified by the Commonwealth government?
MS GODWIN: We're certainly, yes, operating within that context.
MR WIGNEY: You say operating in the context, do you accept that as a practical matter this means that in taking administrative decisions or actions in relation to the detention of children the Department is obliged to satisfy various obligations and rights set out in international treaties?
MR BROMWICH: Commissioner, to the extent that my friend is overstating the legal position, I'd object to the question. He is, as he I think knows, overstating the position?
DR OZDOWSKI: I think there is a difference of opinions between the Commission and the Department and I think what counsel has been trying to establish is the depth of that difference, to what extent - what is that difference, so I would allow continuation of the question.
MR WIGNEY: I'm actually just trying to explore what the Department's attitude is to international conventions. On a number of occasions in your submissions the following phrase is used:
Australia's international obligations inform the approach to delivery of the detention function.
Do you accept that as a practical matter Australia, the Department, ought to try to meet all of the rights and obligations set out in international treaties?
MR WALKER: The Department attempts to give effect to all Australia's international obligations set out in the various treaties. As a matter of principle international obligations, unless they are specifically incorporated into domestic law, don't necessarily incur domestic obligations. Of course the Commission would be aware of the High Court's decision in Teoh which gives rise to a legitimate expectation that those obligations would be adhered to in administrative decision making and actions. However, there is an executive statement that the government has made in response to that. Now, I'm not going to get into any arguments over just what the legal effect of that statement is but just to reiterate that we, in discharging our functions, seek to operate within a manner that is consistent with our international legal obligations.
MR WIGNEY: Those international legal obligations include the Convention on the Rights of the Child?
MR WALKER: That's correct.
MR WIGNEY: It is, of course, as you well know the case that the Convention has not been incorporated into domestic law nor has it been or any of its provisions been excluded by domestic law as far as you're aware?
MR WALKER: That's correct.
MR WIGNEY: Is it the Department's position that in no circumstances the Department is required to take into account the rights and obligations set out in that convention, which I'll call the CRC, when making decisions concerning the detention of children?
MR WALKER: The Department, as I said before, seeks to give effect to those obligations. Now many of those obligations are found in various pieces of Commonwealth and state legislation, if not specifically incorporated the values are there. We certainly give effect to all obligations in Australian domestic law and we seek to give effect to any of those obligations that haven't been specifically incorporated in some form.
MR WIGNEY: The Department of course accepts that it has a duty of care towards all children in immigration detention, that's right isn't it?
MR WALKER: Yes.
MR WIGNEY: And that duty of care effectively includes upholding the rights of those children under the CRC, the Convention on the Rights of the Child, would you agree with that proposition?
MR WALKER: I think that we would probably see that our duty of care may well in some areas go broader than the Rights of the Child Convention. As I said before we seek to give effect to all of Australia's obligations under the Rights of the Child Convention.
MR WIGNEY: You're obviously aware of the various provisions in the CRC are you not?
MR WALKER: Yes.
MR WIGNEY: You're obviously aware that perhaps the most fundamental or overriding provision in the CRC is that in all actions of administrative bodies, such as the Department, the best interests of the child is a primary consideration?
MR WALKER: It is certainly a primary consideration. We wouldn't necessarily accept that it's an overriding consideration, there are a range of rights on sovereign states, certainly in terms of dealing with children it's a primary consideration, we accept that.
MR WIGNEY: Well, you accept that in making decisions and taking action in relation to the detention of children and that includes relevantly where they're detained, the conditions in which they're detained and how long they are detained for, the Department must have as its primary concern the best interests of the child?
MR BROMWICH: I will object to that. That's not a statement of what the Convention even says.
MR WIGNEY: I'm asking what the Department's attitude is.
MR WALKER: It is a primary consideration and it is certainly taken into account as a primary consideration in the way in which we administer the Act.
MR WIGNEY: Let me ask you this general question and if we can focus for the moment on unaccompanied minors, meaning relevantly those children that have been in immigration detention under the age of 18 years without a parent or family member over the age of 21. You accept of course that in the preceding three years or so quite a number of unaccompanied minors have been detained at, amongst other places, Woomera?
MS GODWIN: There have been a number of unaccompanied minors at Woomera, yes.
MR WIGNEY: Most, if not all of those unaccompanied minors have been asylum seekers?
MS GODWIN: At Woomera I guess the vast majority would have been asylum seekers, yes.
MR WIGNEY: Some of those unaccompanied minors have, in the past, been held for very long periods of time at Woomera?
MS GODWIN: Well, I'd have to check the statistics on that. I don't know that I'd accept as a general proposition that they've been held for a long time. I mean numbers of them got visas reasonably quickly, a number of them now are and have been since early this year in alternative places of detention. So, you know, there's a variety of circumstances around the management of unaccompanied minors.
MR WIGNEY: You would accept that at least some of the unaccompanied minors that have been detained at Woomera have been there for periods in excess of 12 months on occasion?
MS GODWIN: I honestly don't know. I would have to check the statistics.
MR WIGNEY: Well, let me ask you this, does the Department say that in detaining each and every one of the unaccompanied minors at the Woomera Detention Centre over the past three years or so the Department took into account as its primary consideration the child's best interests?
MS GODWIN: Well, that's our overall position. But clearly, as Mr Walker said, there are a range of other considerations. Best interests of the child, as we understand it, is required to be a primary consideration but not the only consideration and there were a variety of other circumstances and considerations that needed to be taken into account including, for example, the groups with which people have turned up. People often wanted to stay together as a group even though one of that group was an unaccompanied minor.
MR WIGNEY: Do you say that in each of the cases of the unaccompanied minors that were detained in Woomera over the past years from 1999 onwards, the Department turned its mind to their best interests and determined that those best interests were served by keeping them in the Woomera Detention Centre?
MR BROMWICH: That's a mis-statement again of the position of the Convention, with respect.
MR WIGNEY: I'm not saying that, I'm asking what the Department's view is?
MR BROMWICH: Well, it's misleading to ask a question which is contrary to the Convention and suggests that somehow there's compliance or non-compliance with the Convention when that's not the terms of the Convention. It's contrary to what the High Court said in the Teoh case and my friend knows it.
DR OZDOWSKI: Could you rephrase your question please.
MR WIGNEY: Do you say that in the case of the unaccompanied minors who were detained in the Woomera Detention Centre in the past three years or so, that the Department in detaining them in that centre took, as its primary consideration, the best interests of those children?
MS GODWIN: Well, it may be more helpful if I explain part of the process which is that when numbers of people were arriving, quickly and in large groups, generally speaking the practice was to move people as quickly as possible to a point where they could be processed. It was often only during the course of that processing that it became clear that someone was unaccompanied. If you've got a large group of people made up of adults and children it's not always immediately apparent that someone is an unaccompanied minor.
Secondly, our focus was on working people through the process as quickly as possible because obviously the most immediate way to resolve someone's detention is to find out whether they've got a lawful right to remain in Australia and if they have grant them a visa. So, that was the focus of considerable efforts at that time. During the period they were being processed the question of whether they should remain where they were or go somewhere else would have been a consideration but, as I say, there were a number of other considerations including the need to get people processed as quickly as possible, that would have been taken into consideration.
DR OZDOWSKI: That fast processing possibly is in the best interest of the child and you mentioned earlier a number of considerations which, to me, also sounded like in the best interests of the child. Could you perhaps mention what other considerations apart from the best interests of the child you have to consider. I understand, yes, you mentioned the issue of sovereignty of the borders which was one, are there any others which you have to consider in competition with the issue of the best interest of the child?
MS GODWIN: You mean in relation to where children were detained?
DR OZDOWSKI: Yes. When decisions were made about children, what considerations were taken into account to do with them.
MS GODWIN: Well, there would have been a variety of practical considerations. As I mentioned if people arrive in a group altogether, one of the considerations is where did we have accommodation for that group. Now, if all of the group was moving to a particular centre then they tended to move as a group. You're probably aware that numbers of people turned up at Ashmore Island, they would at that time routinely have been transferred either to Darwin or to Broome, more usually Darwin, and then they would be transferred. So a range of practical and logistical issues.
DR OZDOWSKI: Yes, but we are talking very much about the initial period of detention when people arrive, so really before real assessment of the situation started.
MS GODWIN: Yes, but then that was the point I was trying to make. Once someone is in a centre and processing has already been initiated, and bear in mind that we re-engineered the process, if you like, during the early part of 2000 to make sure that almost as soon as people arrived at a centre there were processing staff there ready to work with them in terms of whether or not they were making an asylum claim and then to work through the asylum process, including the provision of advisers through the IAAAS scheme. Once someone was at a centre in those large numbers the focus, as I say, was on moving people through the process as quickly as possible.
Now, in a number of instances and I wouldn't like to say what the number was, it was probably small rather than large, there may well have been considerations that, notwithstanding this might interrupt processing, it might be appropriate in this situation to relocate this particular child. The focus in that initial processing period was mostly on trying to get the process done as quickly as possible and provide services and support to the detainee population with particular focus on children such as unaccompanied minors while the process was going on rather than relocating people midstream, if you like, although there would have been occasions when that happened.
So, I guess I'm just saying the question about where someone was detained was often taking into account that overall processing strategy as well as the individual needs of individual detainees.
DR OZDOWSKI: I'm not getting at this issue of best interest of the child. I can understand when they arrive, when they were in a group, when they were transferred from one of the islands to mainland Australia possibly it was difficult, yes, to look at individual needs. But my assumption would have been that after people arrived in Woomera, Curtin or whatever, the moment after they went through the first interview possibly the best interests of the child could be addressed?
MS GODWIN: Well, I guess what I'm saying is that what we were trying to do was process people as quickly as possible while at the same time having an eye to particular needs of particular children. But I mean the sorts of considerations that I'm talking about are not, I think, only relevant up to the time of the first interview. Once someone has had an interview and yet doesn't have a decision and other people within the group with which they came are also in the same process there's a sort of a group cohesiveness, a group dynamics sort of issue that would have been a consideration. There would be a variety of considerations over a period of time and as processing developed, you know, as the decision came closer and closer and it became clear that someone was potentially likely to be granted a visa then clearly at that point a decision would be made well look, you know, just keep the process going as quickly as possible because every move, every interruption to the process had the potential to lengthen the process and quick processing was obviously one of the significant focuses for us.
DR OZDOWSKI: Maybe let's put the question differently, were there any considerations given which were inconsistent with the best interests of the child during that period?
MS GODWIN: Well, no. I guess what we would say is that because processing was the single most important focus at that point and the reason people were in detention was to be processed, that it is consistent with the best interests of the child that happen as quickly and as cohesively as possible.
DR OZDOWSKI: Thank you. Mr Wigney, if you could conclude that topic if you wish because we are coming close to our morning break.
MR WIGNEY: Well, I don't think I propose to ask any further questions in relation to that particular article of the convention so that may be an appropriate time.
DR OZDOWSKI: It's 11.00 o'clock, let's meet at a quarter past 11.00 here.
MORNING TEA [11.00am]
RESUMES [11.20am]
MR BROMWICH: Commissioner, there is just one practical matter if I could raise it quickly and that's just a logistical one in relation to witnesses. I've spoken to Mr Wigney and he's been most helpful in explaining where he sees the balance of today going. I think a letter was sent to you last week which indicated that some of the departmental people had commitments, for example, in parliament during the course of this week. As I understand it the topics that we're dealing with for the balance of today there's no difficulty with our people being available but at some stage I would be seeking some indication as to which topics we will be dealing with over the next few days in broad terms so that we can make sure that as best as possible we have the necessary people here to answer the questions.
DR OZDOWSKI: I will indicate to you after the lunch break what the proposed program of topics is for the rest of the hearing.
MR BROMWICH: I'm grateful for that, Commissioner, thank you.
DR OZDOWSKI: So, Mr Wigney, if you would start again please.
MR WIGNEY: I want to return, very briefly, to the topic that I was addressing just before the morning tea and just explore a few more questions in relation to that topic if permissible.
DR OZDOWSKI: Please do.
MR WIGNEY: Ms Godwin, I think the question I initially asked was whether, in the case of unaccompanied minors detained at Woomera and let's say Curtin as well in the period from 1999 onwards and just accept from me for the moment that there were some that were detained for periods in excess of 12 months. The question is whether the Department had as a primary consideration or concern throughout their period of detention the best interests of those children and you referred I think to some other considerations in answer to a question asked by the learned Commissioner, is that correct?
MS GODWIN: Yes.
MR WIGNEY: Now, I gather from your rather lengthy answer that there were two other considerations that you referred to, one was the speed of processing. Now, that of course in a sense would be in the best interests of the child in any event, would it not? And I think the other consideration you referred to was border protection?
MS GODWIN: I don't recall using that phrase.
MR WIGNEY: Okay, well one consideration was speed of processing, were there any other considerations that the Department had in mind in detaining these children at Woomera and Curtin for some cases in excess of 12 months?
MS GODWIN: Well, I think what I was pointing to was the fact that there would have been a variety of circumstances which resulted in somebody arriving at Curtin or Woomera, not the least of which would be the group with which they arrived and the fact that at that point we wouldn't necessarily have known that someone was an unaccompanied minor. The question of their ongoing management, there would have been a variety of issues and I think I also referred to the group, you know, the group with which the person had arrived, the cohesiveness of that group.
There would also have been a range of other considerations such as the age of the unaccompanied minors. I mean the vast majority of unaccompanied minors and I know there are exceptions to this but the vast majority of unaccompanied minors were 16 or 17 year old young men who, in their own sort of cultural context, were regarded as adults. Now, we acknowledge that doesn't mean they're adults in the Australian context but nonetheless that would have been a consideration at the time in relation to, as I say, the group with which they arrived, the group dynamics, all of those sorts of things.
The other issue about whether there is any other place that a person can be detained raises questions of the availability of such places. We talked before, I think, about the fact that while there is a considerable degree of flexibility in the Migration Act they're not things that can necessarily be instantly located. So the availability of an alternate arrangement, whether there were appropriate support available elsewhere and so on. So there would have been a range of considerations which would have been taken into account.
MR WIGNEY: Just touching on, and I don't want to get into too much detail at this stage, we're still dealing really with generalities, but in relation to Woomera, at least, at the beginning of this year I think a large number of the unaccompanied minors were put into alternative detention, that is released from Woomera and put into immigration detention in the community as it were.
MS GODWIN: Transferred, yes.
MR WIGNEY: That was done on an urgent basis, it was done fairly swiftly in a short space of time was it not?
MS GODWIN: In that particular case I think it did happen reasonably quickly, bearing in mind though that this was done in collaboration with state government agencies and where we'd already developed a pretty strong working relationship with that particular agency.
MR WIGNEY: Well, it occurred in circumstances where that particular agency advised the Department in the strongest possible terms that it was not in the best interests of these children to remain in the Woomera Detention Centre, that's right, isn't it?
MS GODWIN: I'd need to refresh myself about the exact sort of sequence of events but certainly there were concerns about those children at that time shared by us and that agency.
MR WIGNEY: And the Department was able, in that case, to move them out of Woomera, correct?
MS GODWIN: Yes. But my point is because that agency was able to assist by identifying appropriate alternatives. I mean there have been times when we have been looking for such an alternative in individual circumstances and it's been relatively more difficult to identify. So, yes, in that situation it happened quite quickly. In other situations it hasn't been as easy as that to identify an appropriate alternative.
MR WIGNEY: Did you ask that particular agency earlier whether they would be able to come up with any alternate forms of detention acceptable to the Department?
MS GODWIN: Well, there's been an ongoing relationship between us and that agency in relation to a number of circumstances and situations. I wouldn't be able to comment specifically on whether we'd asked a general question of that sort but, you know, these are matters that would have been discussed usually on a case by case basis.
MR WIGNEY: Are you able to recall whether they asked a specific question in relation to any of the child detainees, whether it was possible to obtain alternate detention or alternate facilities prior to this urgent situation arising at the beginning of this year?
MS GODWIN: I'd have to check the exact sequence but I recall at least one and there may have been others of circumstances where they assisted in locating an appropriate alternative for a child.
MR WIGNEY: Amongst the other considerations that you referred to was the fact that a number of these children arrived in a group, are you suggesting that it was in their best interests to remain with that group in detention?
MS GODWIN: It's not so much that the children arrived in a group but the children would have arrived with - in many instances they had been in a sense, I'm trying to think of the right word here, sort of located with some other individual or family who had been asked in some way along the journey to keep in touch with the particular child that we're talking about, which also goes to the point I was making before about the fact that we wouldn't necessarily know that someone was an unaccompanied minor because often a minor may well have initially presented as being part of a family or extended family sort of group.
So, in those sort of situations there's an issue about the dynamic of that group. If the child has been, or the young person, has been travelling with a group for a period of time there may well be a consideration of that sort. Bear in mind too that a number of the unaccompanied minors that we had were not necessarily completely without some extended family in the group and so the question of maintaining extended family links even though the child didn't have a parent as a guardian with them was also a consideration in those sorts of situations.
MR WIGNEY: Well, put aside for the moment the situation where there was some sort of an extended family, you would agree that a large proportion of the people who arrived and were detained in the Woomera Detention Centre in the course of 1999, 2000, 2001 were single men, right?
MS GODWIN: There were large numbers of single men at that point, yes, that's right.
MR WIGNEY: And as a general proposition the Department would accept that it would not be appropriate to house unaccompanied children in a group including single men, right?
MS GODWIN: Well, as a general proposition but taking into account the point that I was just making about the sort of group dynamics. I mean if I could just say one other thing. I mean the other thing that was happening at the time was that numbers of people often arrived from the same location, the same village, or the same region or whatever and were known to each other. So, I mean I accept the general proposition you're making but there would be, you know, a 17 year old travelling with another group of young single men that may well have been something that they'd done over a period of time.
MR WIGNEY: In some circumstances it would be in their best interest to actually remove them from those influences of the older single men, would it not?
MS GODWIN: In some instances, yes, but in some instances as I say it's something where you would have looked at the circumstances applying at the time.
MR WIGNEY: I suppose the point of all of this, because we're still dealing in generalities, is are you saying that throughout the period of the detention of these unaccompanied minors the Department had, as its primary consideration, their best interests?
MS GODWIN: Well, I'd make the point that I think we were touching on earlier in the discussion about just what is that consideration, it is a primary consideration not the primary consideration as I understand our obligation and it is a primary consideration but it is not the only consideration.
MR WIGNEY: My question was whether the Department had as a primary consideration their best interests?
MS GODWIN: Well I believe we did.
MR WIGNEY: Incidentally just without getting bogged down on this issue you referred, I think, in the course of your answers to the fact that the Department would not necessarily know that children were unaccompanied minors. Would you agree that one of the important inquiries that should be put in train almost immediately is to ascertain precisely that, that is whether there are any unaccompanied minors?
MS GODWIN: Well I would and that goes to my point about as people were transferred to centres staff from the Department, we tried to deploy those staff almost simultaneous with people arriving in the centres because the first part of the process is exactly for that purpose, to identify not absolutely but to try and get a sense of who is this group of people, who are they individually, what are the relationships in the groups and that can sometimes be, you know, a challenging task. But that was certainly one of the first things that we would have turned our mind to because that was the first part of the process.
Before you even get to any question of application for asylum or whatever was the process of what we would call confirming the nominal roll. The nominal roll is just a list of who was in the group as they turned up on the boat. Then there would be quite a detailed process of trying to confirm, get an agreed sort of name because that was also one of the challenges when names changed over time, as they did. So, yes, as a general proposition I accept the point you're making.
The other thing, of course, at that point is that we don't always know, and in some instances over some considerable period of time we wouldn't always know the age of some of these particularly young men. I mean there have been examples where someone has presented themselves as being 20 or 21 and we've got no basis for not accepting that and everything seems to point to it so we accept that age. Subsequently they'll say well actually, no, I'm not that old I'm this old and I'm aware of certainly at least a couple of instances where we've in fact shifted, if you like, our management of that young person to then accepting them as an unaccompanied minor although that's not how they'd presented themselves initially.
So, I mean that whole process, you're right, it's got to be a focus but it's something that presents challenges and not just challenges at a point in time, it can be challenges over a period.
MR WIGNEY: I think, as you're aware, one of the specific topics that we want to come to in some detail in due course is the topic of unaccompanied minors, so we might explore some of those issues at that time rather than at this time.
MS GODWIN: Sure, that's fine.
MR WIGNEY: I just want to try and deal with this as quickly as possible, just dealing with some of the other rights or obligations that arise as a result of the Convention on the Rights of the Child. You accept, in general terms, I think, that article 27 of that convention provides in a sense - I imagine one of your officers has it there and I'll provide a copy if - - -
MS GODWIN: Yes, I think so.
MR WIGNEY: You'll be pleased to know I'm not going to go through all of these articles but you'll see that article 27 provides that state parties, including Australia, that:
...ratify this convention recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.
Do you see that?
MS GODWIN: Yes.
MR WIGNEY: And you accept that the Department had as one of its considerations that right when it detained children throughout the last few years?
MS GODWIN: Well certainly we were intent on ensuring that people had proper support and access to all the things I said in my opening statement, accommodation, food, et cetera, a proper standard of living in that context.
MR WIGNEY: Well, that particular article talks more than accommodation and food, it provides for the child's physical, mental, spiritual, moral and social development, right? That's more than the basic needs of life, is that correct?
MS GODWIN: Mm hm.
MR WIGNEY: And just taking again the example of children detained at Woomera over the last three years or so is it the Department's position that they were in fact detained in conditions and circumstances which ensured a standard of living adequate for the child's physical, mental, spiritual, moral and social development?
MS GODWIN: Our position is as I outlined it in the opening statement that initially for a variety of reasons which I explained, I thought, the focus was on what you would regard as the basics, but quite quickly we turned our mind to, in a sense, the next level of amenity, playing fields, education rooms et cetera. That became a challenge in its own right because at one point where we had provided a range of these facilities they were subsequently damaged or destroyed in incidents involving detainees. Now, that doesn't mean we shouldn't then turn our mind to replacing them and that's what we did but the position that we were put in was, as I say, that our initial focus by necessity had to be on ensuring people had access immediately to proper accommodation and food and medical treatment and to the extent possible recreation and so forth. But clearly over time the access to all of those things improved as we improved the available services there at Woomera.
MR WIGNEY: Well, just accepting firstly the pressures that you say were on the Department as a result of the numbers of arrivals and accepting for the present purposes that improvements may have been made over the years I thought I had asked you a fairly direct question and I'd ask if you could perhaps answer it. Is it the Department's position that the children who were detained at Woomera over the past three years or so were detained in conditions and circumstances which provided a standard of living adequate for the child's physical, mental, spiritual, moral and social development? It's a fairly direct question.
MS GODWIN: I understand it's a direct question and it's one that requires reference to a range of other things. I mean, yes, I think we did provide appropriate living standards in all of the circumstances but the other important element in that article also talks about the rights and responsibilities of the parents. Now, we would see it, as I say, as our general position that certainly conditions at Woomera in the first few weeks and early months of that centre focussed on ensuring proper standard of living but focussed on what you would regard as the basics. And that over time those facilities and services and support available to children and families increased, improved, expanded.
DR OZDOWSKI: So how would you describe the current level of services, support and so on?
MS GODWIN: At Woomera?
DR OZDOWSKI: At present at Woomera?
MS GODWIN: Well, I think they're comprehensive, they provide safe and secure accommodation, proper toilet and laundry facilities, education and recreation, access to external excursions and so forth. So I think there are a comprehensive range of services available at Woomera at the moment.
MR WIGNEY: Are they sufficient to adequately provide a standard of living adequate for the child's physical, mental, spiritual, moral and social development now?
MS GODWIN: Well, I mean I think the answer is yes. But clearly when we're talking about this there are a wide variety of circumstances in the community which are regarded as capable of - as meeting those needs, just as you find a wide variety of circumstances in detention centres or between detention centres and the community.
MR WIGNEY: Well, I think we're going to come to some specific examples about children detained in Woomera this afternoon, so we might return to that topic. Another relevant article in the Convention on the Rights of the Child, I think you would agree, is article 19 of the convention which provides that:
States parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse whilst in the care of a parent, legal guardian or any other person who has the care of the child.
MS GODWIN: Yes.
MR WIGNEY: Now, is it the Department's position that in determining detaining children in the conditions and circumstances, and let's just focus still on Woomera in the last few years, it took appropriate measures to protect those children from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation?
MS GODWIN: Well, the article requires us to take all appropriate legislative, administrative, social and educational measures, and I think there are a range of things we've done to achieve that end. The Immigration Detention Standards clearly set out the requirements for protecting the interests of children. The service provider has had in place programs to alert detainees to the importance of proper childcare, parenting, those sorts of things. We also have in place, as you know, an MOU with the South Australian Department of Human Services dealing with the need to report any allegations of abuse or any concern of abuse.
So I think consistent with that obligation we have put in place a range of measures which are designed to ensure the protection of children. We've also, I think, been very alert to the fact that regardless of the measures that you might put in place to protect children that there may well be times when individual circumstances are such that there's an issue around an individual child or family and in those circumstances we've focussed very much on trying to respond to the particular issues that arise in relation to that family. So for instance, as I mentioned, reporting concerns or allegations of abuse or focussing on particular health requirements that a child or family might have.
MR WIGNEY: So the answer to the question in short was you say that the Department did take adequate measures to protect the rights of that article over the last three years or so, is that right?
MS GODWIN: Yes.
MR WIGNEY: I take it that you would say the same thing in terms of the Department's position in relation to, for example, article 37 of the convention which provides amongst other things in paragraph a):
No child shall be subject to torture or other cruel, inhuman or degrading treatment or punishment.
So that was a right effectively protected by the Department over the last three years?
MS GODWIN: Yes.
MR WIGNEY: We'll pass over for the moment paragraph b) which talks about deprivation of liberty arbitrarily because we'll come back to that specifically in due course. What about paragraph c):
Every child deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons of his or her age.
Is it the Department's position that in respect of children detained, still focussing on Woomera for the moment, in the preceding three years the Department ensured that they were treated with humanity and respect and in a manner which took into account the needs of persons of their age?
MS GODWIN: That is certainly our focus, it is the requirement in the Immigration Detention Standards and I think considerable effort has been made to achieve that.
MR WIGNEY: You say considerable efforts have been made to achieve it, do you say it was achieved over the last three years on all occasions?
MS GODWIN: Well, look, quite clearly there have been thousands of people go through Woomera, what I said is what I meant, we have made considerable efforts to achieve that which is our responsibility under the convention.
MR WIGNEY: You accept, don't you, that most if not all children detained at Woomera over the last three years were asylum seekers themselves or at least had parents who had specific claims for protection under the Refugees Convention?
MS GODWIN: I think the majority of them would have been, yes, certainly.
MR WIGNEY: And do you accept that many, if not most of them, came from places where there had been or was armed conflict?
MS GODWIN: Well no, I think that's a general proposition that - I'm not in a position necessarily to accept it. What we know is that there were a wide variety of circumstances which pertained to people who arrived including that people had lived for years in countries other than the country of their origin. So where their country of origin may well have been the subject of conflict they themselves may not have been in that country for a period of time.
The other point to make here is that it's also the case that numbers of people presented themselves as coming from those countries but were not in fact established has having come from those countries. So, I think as a general proposition, no. As I say, there were a wide variety of circumstances which applied to people who arrived as asylum seekers at that time.
MR WIGNEY: I accept that. I'm not asking you to agree that all of the people that passed through those centres came from those situations but certainly many of them did, you would agree?
MS GODWIN: Well, certainly a number of them would have, yes, but as I say your original question was the majority and I'm not in a position to comment on that.
MR WIGNEY: Likewise you would agree that a proportion of those children had been subject to trauma and were traumatised if not because of the circumstances in their home state, then certainly by the circumstances by which they travelled to Australia?
MS GODWIN: That may well have been the case, yes.
MR WIGNEY: Now, article 39 of the Convention on the Rights of the Child provides that:
States parties shall take all appropriate measures to promote physical and psychological recovery and social integration of a child victim of any form of neglect, exploitation or abuse, torture or any other form of cruel, inhuman or degrading treatment or punishment or armed conflicts. Such recovery and re-integration shall take place in an environment which fosters the health, self respect and dignity of the child.
Is it the Department's position that in detaining children at Woomera over the last three years it took all appropriate measures to ensure that the environment was such as to foster the health, self respect and dignity of those children?
MS GODWIN: Well, it's our position that there's been a considerable focus on health within the centres and on the provision of other support services and on the provision of services which would go to providing a generally supportive environment, such as recreation and so forth. Equally you're probably aware that if people are released from detention on temporary protection visas one of the services to which they have specific access in the community is the Early Health Intervention Service provider which provides access specifically to counselling for families in that sort of situation.
MR WIGNEY: Putting aside people who ultimately are released into the community and granted visas, the question was whether you - that is the Department - believes that it took all appropriate measures to ensure that the environment at Woomera was such to foster the health, self respect and dignity of the children that were detained there. What do you say to that? Is it yes or no?
MS GODWIN: Well, I've already answered that part of the question. I said health has been a particular focus and a comprehensive range of health services including where necessary mental health services and counselling services and those things in the environment which would generally go to creating a supportive environment for children, recreation and so forth.
MR WIGNEY: I see, so your answer is that it was such an environment, is that right?
MS GODWIN: The answer is that we have made that a very significant focus, the provision of services at Woomera and elsewhere.
MR WIGNEY: Well, there was a focus, were you successful or unsuccessful?
MS GODWIN: I mean I make the point again, thousands of people have been through Woomera over the last couple of years and through other detention centres, we have focussed on providing services which generally speaking are conducive to meeting our obligations under the Convention by providing comprehensive health services.
MR WIGNEY: You've focussed on them but you're unwilling to say whether you were successful in achieving that objective or not, is that right?
MS GODWIN: You're asking me to comment on in every individual situation. I mean the fact is the needs of individuals vary, some individuals are more challenging than others but our focus has been as we're required under the convention to focus on ensuring the needs are capable of being addressed and I believe we have done that.
MR WIGNEY: As I said we'll come to some specific examples in relation to Woomera hopefully later this afternoon. Now, just still talking in generalities and relevant to the duty of care that the Department owes to children in detention, is the question of the Minister's guardianship of certain of those children, right?
MS GODWIN: Yes.
MR WIGNEY: Just in general terms the effect of the Immigration (Guardianship of Children) Act is that the Minister is the guardian of non-citizen minors who enter Australia without parents or relatives over 21, in general terms.
MR WALKER: I'd just clarify that. It's in relation to minors seeking to remain here permanently.
MR WIGNEY: Quite so. So, accepting for present purposes that most of the children detained at Woomera and Curtin and Port Hedland were seeking protection visas that would apply to those children?
MR WALKER: Well, protection visas for unauthorised arrivals are currently temporary protection visas. However, it goes to the intention of the individual.
MR WIGNEY: I'm sorry?
MR WALKER: It goes to the intention of the individual to remain here permanently whether they're entitled to remain here permanently is a different issue.
MR WIGNEY: I accept that but you accept that the Minister was the guardian of those unaccompanied minors seeking protection visas during the course of the last three years or so?
MR WALKER: Yes.
MR WIGNEY: Again still talking in generalities the Minister has delegated his powers to various officers over the years, his powers as guardian, and we'll come to the detail of that in due course, but he at all times remains the guardian of those unaccompanied minors, correct?
MS GODWIN: That's our understanding, yes.
MR WIGNEY: And the Minister accepts, does he, that as a guardian he owes a particular duty of care to the children in detention?
MR WALKER: You would have to ask the Minister specifically but certainly as his representatives we'd accept that we have a duty of care to minors in detention.
MR WIGNEY: And a particular and specific duty of care to those minors who the Minister is guardian of, would you agree with that?
MR WALKER: Yes.
MR WIGNEY: Does the Department acknowledge that having regard to the fact that the Minister is the guardian of these unaccompanied minors that he as the guardian must act to ensure that the children under his care are afforded the rights as set out in the Convention on the Rights of the Child?
MS GODWIN: I'm not sure how much more we can say. I mean we've said that as a general proposition we accept that the Minister is responsible and has a duty of care.
MR WIGNEY: I suppose the question is, is one of his responsibilities to ensure that the child's rights under the Convention of the Rights of the Child are met by the Department?
MR WALKER: His obligations are the same as any other guardian essentially, to look after the wellbeing of the child.
MR WIGNEY: And in these circumstances that would include to ensure that the child's rights under the Convention are met, right?
MR WALKER: Yes.
MR WIGNEY: Can we move to a slightly different topic though still really talking in generalities as to the framework of detention. As you've put in your submissions and in your opening statement today it's the situation that since 1997 at least the Department has not had the day to day running of the various detention centres including Port Hedland, Woomera and Curtin.
MS GODWIN: Well, I guess this is sort of an interesting duality of responsibility if you like. Certainly day to day running of the centres in terms of what you might regard as the sort of core support services, accommodation, food, health, those sorts of things, are the subject of the contract with ACM. But it has been clear all along in that contract that nothing that happens in a centre that goes to a person's immigration status is the responsibility of the service provider. So to the extent that things to do with the person's immigration status also go on day to day in a detention centre, those issues to do with immigration status and related matters are the responsibility of the Department and have not been devolved in any way.
MR WIGNEY: Of course, the need to determine immigration status being one of the reasons why the Department has officers at the detention centres?
MS GODWIN: Well, the officers at the centres are not themselves responsible for the determination of immigration status. That's been a fairly deliberate arrangement over the years. That officer has responsibility for the co-ordination and arrangement of those things and for facilitating it, so for instance if a detainee has a question about their immigration status that would then be referred by officers on the ground to officers who are responsible for making decisions about the person's immigration status. But as a general proposition staff in the centres are not responsible for the actual determination of people's immigration status.
MR WIGNEY: What about bridging visas?
MS GODWIN: No - - -
MR WIGNEY: They have no role to play in that?
MS GODWIN: They don't make decisions on bridging visas. There may well have been circumstances in the past, although I'm not aware of them, but not as a general proposition, no.
MR WIGNEY: We'll come back to that in due course. Putting aside the determination of immigration status and related decisions the day to day running of the facilities are carried out by a private company that has contracted with the Department, right?
MS GODWIN: Yes, sure.
MR WIGNEY: That's Australasian Correctional Management, right?
MS GODWIN: Yes.
MR WIGNEY: It being a subsidiary of a large American corporation that essentially specialises in the provision of correctional services, right?
MS GODWIN: Our relationship is with ACM.
MR WIGNEY: You're certainly aware that it's a subsidiary of a major American corporation?
MS GODWIN: I'm aware it's part of a larger corporation, yes.
MR WIGNEY: And ACM itself is basically in the business of running prisons and correctional centres is it not?
MS GODWIN: It runs a variety of things but including prisons, yes.
MR WIGNEY: It runs a number of prisons on the Australian mainland?
MS GODWIN: As far as I'm aware, yes.
MR WIGNEY: And it does so for profit, does it not?
MS GODWIN: Yes.
MR WIGNEY: And again just in generalities you accept, do you not, that many of the staff that work for ACM at the various immigration detention facilities have prison or correctional service backgrounds?
MS GODWIN: It's my understanding that a number of staff have that background, yes.
MR WIGNEY: Now, one of the reasons the Department contracts the running of these facilities out to a private company is this, is it not, that the Department would readily concede that it is not an expert in the provision of detention and the various services that must be provided to persons in detention?
MS GODWIN: Well, it's not something that we've had as our core business over the years. In the period before we entered into this contract there were a variety of reasonably fragmented sorts of arrangements where some things were in effect managed by the Department and other things weren't. This was an attempt to try to bring all of it together in one holistic approach to service delivery which ensured that there were a comprehensive range of services in all of the centres.
MR WIGNEY: You acknowledge, do you not, that the Department itself does not itself have the necessary expertise for, relevant to this Inquiry, the care of children in detention?
MS GODWIN: We would regard ourselves as - that's right - as not being the appropriate authorities. I mean there are authorities in states and so forth who have got particular expertise and our objective is to work with them closely.
MR WIGNEY: Well, the Department officers for example that work in relation to these facilities are not themselves experienced, for example, in the provision of education, is that right?
MS GODWIN: Well, without speaking about the individual backgrounds of individual officers, no, as a general proposition they're not qualified doctors or nurses or teachers.
MR WIGNEY: Nor providers of mental health services?
MS GODWIN: No.
MR WIGNEY: The provision of those services is contracted out to the private company Australasian Correctional Management Pty Limited, is that right?
MS GODWIN: Well, all of that group of services is part of the contract with ACM, yes.
MR WIGNEY: I think in terms of the Department's duty of care the way it is put in the Department's submissions is that the Department exercises its duty of care commitments through the service provider that being Australasian Correctional Management, is that correct?
MS GODWIN: I think our general position is that we accept that we have the ultimate responsibility but in terms of sort of day to day activities in relation to all of those issues covered by the contract that they are carried out under the contract by ACM with ongoing involvement and monitoring by us as necessary.
MR WIGNEY: You effectively leave it up to ACM to retain experts or people with experience and qualifications to provide the various services that are necessary to be provided in these facilities?
MS GODWIN: Broadly speaking, that would be right, yes.
MR WIGNEY: But to put it colloquially the Department accepts that the buck stops with it in terms of discharging the duty of care towards these children?
MS GODWIN: Yes.
MR WIGNEY: And the buck stops with the Department in terms of complying with Australia's international obligations?
MS GODWIN: Well, as I've said, we accept that we have the ultimate responsibility for people in detention.
MR WIGNEY: In terms of the day to day running of these facilities, the Department's role is largely reduced to one of monitoring the activities of ACM is that right?
MS GODWIN: Well, you used the word reduced, I wouldn't put it quite that way. The fact is that we have staff on the ground because to the extent that things need to be addressed we would prefer them to be identified and addressed as quickly as possible even on a daily basis. So there is usually in each of the centres a fairly active inter-relationship between DIMIA Managers and centre staff and managers provided by ACM.
MR WIGNEY: The interaction being one of monitoring the actions of ACM?
MS GODWIN: Well, monitoring and also to the extent that there might be issues where we want to take up a particular approach or think something needs to be done differently or whatever, that can be worked through with the service provider on a daily basis as those issues are identified or come up.
MR WIGNEY: I'm going to ask you in a fairly short space of time a little bit more about the systems of monitoring but before I do that can I just ask you some questions about the Immigration and Detention Standards. Is it in broad terms the fact that ACM's contractual obligations relevant to the care of detainees, including children, are set out in the Immigration Detention Standards.
MS GODWIN: And the contract. I mean the IDS are obviously a very significant component but the contract as a whole obviously has some things to say, but yes, the bulk of the day to day relationship with the detainees would be covered by the Immigration Detention Standards.
MR WIGNEY: Would it be accurate to put it in these terms that the Immigration Detention Standards reflect the Department's understanding of its duty of care and the standards it expects to be met in detention facilities?
MS GODWIN: In broad terms, yes. I mean the Immigration Detention Standards when they were first developed, which of course is now about five years ago, were an attempt to try to codify the full range of services and circumstances or issues, if you like, that we wanted the service provider to have regard to.
MR WIGNEY: Just to clarify one thing. The Department has drafted, has it not, a new set of Immigration Detention Standards for use in the new contract when it comes about?
MS GODWIN: We have, yes.
MR WIGNEY: But for present purposes in relation to the existing Immigration Standards as they came into being in about 1997 are the ones still in place?
MS GODWIN: Yes.
MR WIGNEY: Would you agree that the Immigration Detention Standards really contain nothing more than broad motherhood statements about the services to be provided in the care exercised in relation to detainees?
MS GODWIN: Well, it's your phrase broad motherhood statements, I don't see them as just broad motherhood statements. I mean they were deliberately developed at the time, and I wasn't personally involved and I don't think anybody here was, but they were developed as what were called outcome focussed standards. The objective being to try to focus on the overall outcome that was required as opposed to individual inputs. It's certainly been my experience in other settings that specification of inputs doesn't necessarily lead to the outcome that you're after and so these standards were developed with a particular focus on the outcomes. In that sense they focussed broadly on what was to be achieved as an outcome rather than individualised inputs.
MR WIGNEY: As such they contained very little, if any, detail or specificity as to precise level of care or level of services that were to be provided, would you agree with that?
MS GODWIN: They are not precise as to the inputs, that's right.
MR WIGNEY: Inputs being the level of care or level of services that were expected?
MS GODWIN: No, because the individual inputs don't necessarily go to the level of care required. I mean in a number of areas they talk about providing for the health needs, for example, of detainees. Now, our experience has been that the health needs of detainees are so extraordinarily broad that trying to sort of specify every individual circumstance in an inputs way would not necessarily have been productive. It requires that the particular health needs of somebody be addressed. So for instance we've had people who've required triple by-passes and treatment for cancer at one end of the spectrum right through to the more mundane things where people have minor illnesses or injuries.
MR WIGNEY: Well, it may assist if I take you to a couple of the provisions in the Immigration Detention Standards, do you have a copy with you?
MS GODWIN: Yes.
MR WIGNEY: Now, the sort of thing that I was getting at is, let me just give you an example, go to page 3 of the document perhaps and you'll see a heading there Social Interaction. Let me just ask you this, you accept that one of the services that ought be provided by the Department in these immigration detention facilities is an appropriate standards of education?
MS GODWIN: Mm hm.
MR WIGNEY: And we'll come to education in due course and you're aware that there are specific provisions in, for example, the Convention on the Rights of the Child in relation to education?
MS GODWIN: Mm hm.
MR WIGNEY: Paragraph 4.4 of the Immigration Detention Standards says simply in relation to education:
All detainees have access to education...
and it goes on,
....recreation and leisure programs and facilities which provide them the opportunity to utilise their time in detention in a constructive and beneficial manner.
Now, it provides simply as we've just heard that detainees have access to education that provides them with that opportunity but the standard itself does not for example indicate how many hours of education the detainees ought get on a weekly basis?
MS GODWIN: No, it doesn't specify that.
MR WIGNEY: It doesn't specify things like curricula, facilities, the fact that there ought be appropriately trained teachers of a certain level at the sites?
MS GODWIN: No, but it needs, in my view, to be read in consultation or in conjunction with the requirement further over:
In relation to children, social and educational programs appropriate with the child's age and abilities are available to all children in detention.
Now, equally that doesn't require a particular number of hours or whatever but it does focus on the child's age and abilities and also I would argue, as we did in our opening statement appropriate to particular circumstances. If large numbers of children are entering detention and processing is such that they would only be in detention for a relatively short period of time the question of what was appropriate in those circumstances may not simply be to replicate a particular program that would otherwise be available in the broader community.
MR WIGNEY: But these standards in their present form don't attempt to set out in any way, shape or form, any sort of standard of education do they?
MS GODWIN: Well, they ask for a consideration of the particular circumstances appropriate to the needs and circumstances. So what's appropriate in one set of circumstances will vary over time. The point, as I say, that I was trying to make in our opening statement that our approach to the provision of education has changed over time as the sort of needs and circumstances of the detainee population have changed.
MR WIGNEY: You don't think that it would have been important, for example, to specify at the very least minimum standards that the service of education of the service provider ought provide with some degree of specificity?
MS GODWIN: You're asking me to comment on a set of standards that have been in place now for five years and we've already acknowledged that we've developed a new set of standards which try to spell out in more specificity some of those things. That doesn't mean that under the framework of this set of standards there haven't been discussions over time with the service provider about what might be appropriate, to use the words of the standards, in a given circumstance at a given point in time. So there had been a process of discussing those more specific sorts of issues, they're just not spelled out in detail in these standards.
MR WIGNEY: Well, you rather pre-empted my next question. You accept now that the proposed Immigration Detention Standards have some detail or specificity about the level of education that the service provider ought provide?
MS GODWIN: We've attempted in the new standards to operate within the same sort of outcomes framework if I can put it that way because our fundamental requirement is that there be a capacity for adaptability according to the different circumstances that might apply at any given time, but within that to try to, in the new standards, based on the sorts of experiences that we've had over the last few years and so forth, to try to be more precise about what some of the ways of addressing that particular need might be.
MR WIGNEY: Well, you set out effectively some minimum standards that you expect that the service provider ought provide don't you?
MS GODWIN: Well, you're sort of talking in generalities here.
MR WIGNEY: Go to page 24 of the new ones, you've got the standard on the left hand side and performance measures on the right hand side and in the new standard you provide, for example, that the services must be provided by appropriately qualified staff, they must be consistent as far as possible, that is taking into consideration what you've just spoken of, that is the need to be flexible with State, Territory curricula, recognising special cultural religious linguistic needs, and the like. You set out in these new standards quite detailed minimum standards, do you not?
MS GODWIN: Well, no, I think what they try to do is tease out what the requirement is but you see I'd argue in relation to some of those things that there are - the way in which the current standards are constructed require some of those same aspects. What we've tried to do is to be more precise in relation to each individual thing. If you look at the overall standards, the current Immigration Detention Standards they start with a Statement of Principles and one of the over arching principles is that services have to be provided in a culturally appropriate way. What this does, of course, is in effect desegregate that from just an overarching principle into the individual standard but there are nonetheless, you know, I think in the current standards there are things that go to some of the things that are in the new Immigration Detention Standards they just appear in a different way or have been handled in a different way.
MR WIGNEY: Well, let me put it bluntly to you, I suppose, the lack of specificity and the generality of the provision in relation to education in the existing detention standards makes and made it almost impossible to properly monitor the services that were being provided by ACM during the relevant period. Do you agree with that?
MS GODWIN: I don't think it made it impossible to monitor but the focus would have been on were the services appropriate to the needs at a given point in time or a given set of circumstances. So if the assessment was that in all of the circumstances that was appropriate then that would have been the focus of the monitoring. I guess in some respects what this does is give the person monitoring it some specific things to look for but it doesn't mean under the current arrangements that you wouldn't be looking for whether, you know, as I say, taking account of the particular needs and particular circumstances at a particular time.
DR OZDOWSKI: I'm having, in a way, a problem with this word appropriate because what's appropriate for you may be not appropriate from my point of view or somebody else's, so could you perhaps, in a way, focus a bit more what level of education, from a departmental point of view, is appropriate? If you could do it by reference to education provided in broader society, outside detention, and especially in the context of children who are arriving to Australia as migrants without English language knowledge who are, in a way, very comparable to children who find themselves in immigration detention - but for their immigration status. Is the kind of education we offer for children outside detention, who arrive as migrants, the appropriate level of education for children in detention?
MS GODWIN: I think I gave an example in my opening statement of the - picking up your point, Commissioner - about this question of appropriate. When we had large numbers of children in detention for relatively short periods with some general expectation and it's hard to be precise about which children or to which children this particular expectation would apply but with a general expectation that a proportion of those children or even a high proportion of those children would subsequently be granted visas and released.
Just as consistent with the focus of education for arriving migrants is on helping them to learn English before they transition into a normal full school program. That was a significant focus in a number of the centres. Now, in other centres children stay for relatively short periods of time, particularly places like Villawood and so forth because their families have been located unlawfully in the community and the expectation is that they'll be removed fairly quickly and in those circumstances the programs would be different again.
I guess my point is when we had large numbers of children for relatively short periods of time there was a focus on trying to do the basics, education, English language, numeracy those sorts of things and over time as the numbers of children have reduced but their period in detention has increased we've shifted the focus of the provision of education.
DR OZDOWSKI: Just one more specific question and we'll be soon going to a lunch break because I know you don't feel very well. The issue in terms of Woomera - relatively short period of time - about three and a half months was really the shortest period of time people were there and the average would be much higher, depending on when. What kind of education, and if you could be specific, would be appropriate to provide assuming people stayed there only this three and a half months and then were either released or removed?
MS GODWIN: Well, can I just be clear about statistics. The figures that we provided were 80 per cent of people got a decision, their primary decision within three and a half months, that doesn't mean that that was the average because that was a cohort, 80 per cent. So there were proportions of that 80 per cent who in fact were there for a considerably shorter period than three and a half months. I think at one point and I don't know whether Mr Illingworth can comment, there were numbers of people who were getting their decisions within a considerably shorter period.
DR OZDOWSKI: Let's assume for the purpose of the question it's three and a half months, what is appropriate?
MS GODWIN: Well, as I said, the expectation in those circumstances would be that a number of those children would be transitioning into the community and in those circumstances what would be appropriate as I say would be a focus on English language and numeracy skills and so forth and that was the focus.
DR OZDOWSKI: Two hours a day, five hours a day?
MS GODWIN: Well, the number of hours needed to take account of the particular circumstances. I mean, as I say, I'm certainly aware that at a particular point in time at Woomera the facilities meant that in order to accommodate all of the children there needed to be shifts, if you like, and those shifts were probably three hours or something of that sort. The other issue, and I'm sure you're aware of this, is that attendance is in the end up to the child and the family and while efforts were made to encourage children to attend they wouldn't necessarily if the focus of the family was on being processed and getting the visa and getting out.
I don't know whether it's possible to be precise about the numbers of hours that would be appropriate, it would vary according to the circumstances in the centre.
DR OZDOWSKI: Mr Wigney, if you could ask final questions so we can conclude on time in five minutes.
MR WIGNEY: Of course. Ms Godwin, I think as you're aware, we're going to deal separately and in some detail with education in due course. I was trying to just focus on how the Department would be able to adequately monitor the provision of services by ACM on the basis of a standard which is as vague as that in 4.4. Under the proposed Immigration Detention Standards you would agree that the Department in monitoring whoever may be the new service provider would be able to say, for example, look you haven't provided appropriately qualified staff for this education you've been having the detainees give these English lessons.
MS GODWIN: Sorry, I just want to check something to comment on the point you're making.
MR WIGNEY: You understand the point I'm making?
MS GODWIN: Yes, I do understand the point you're making. I think I made the point earlier on that the totality of the requirement is set out not just in the Immigration Detention Standards but in the contract. You're making the point about qualified staff, it certainly doesn't appear in the IDS as such but the contract requires that the contractor must ensure that all personnel in providing services are adequately trained to enable the contractor to provide the services. So I would say that as a general requirement it would be our expectation, and I don't think there's been any dispute about this, that as a general proposition there should be properly trained staff to deliver various aspects of the service.
Now, as I say, what we've done with the new standards is try to bring those things all together in one place so you can see them all together. Right at the moment - and this was one of the issues for us when we were redesigning the Immigration Detention Standards - various requirements appear at various places and we just wanted to try to make them more comprehensive. In part I guess for the reason that you're perhaps alluding to that in order to understand the totality of the requirement you have to move through a number of parts of the documentation.
Here in the new Immigration Detention Standards what we've tried to do is, as I say, bring all of that together in one place so that we can look it up and say, okay, that's the requirement. But I wouldn't necessarily accept that it's not a requirement at the moment that as a general proposition staff be properly trained.
MR WIGNEY: No, I'm not suggesting it wasn't a requirement but the point is that the DIMIA Manager or Deputy Manager who is supposed to be monitoring the service provision by ACM is not able to look at the detention standards and say to the ACM Manager, you are not providing appropriately qualified staff in accordance with paragraph x of the detention standards, is that right?
MS GODWIN: Well, as a general proposition I'd agree. But, as I say, as a more general proposition when we're monitoring we're not just looking at the Immigration Detention Standards we're looking at overall contract obligations.
MR WIGNEY: Staying on the example of education another difficulty, I would suggest to you in terms of the DIMIA Manager or Deputy Manager adequately monitoring the provision by ACM of educational services is that the DIMIA Manager was not himself or herself qualified or experienced in the provision of educational services on the whole, that's correct isn't it?
MS GODWIN: It is correct but it's equally one of the reasons why and again I think this is something we talked about in our submission where we've tried to broaden out our monitoring capacity. Certainly initially the focus of monitoring was on the DIMIA Manager and that remains a core element of our ongoing monitoring but we have broadened out that monitoring capacity over time to try to pick up some of the points you're alluding to.
MR WIGNEY: How is a DIMIA Manager who is not experienced in the provision of education services to determine whether the provision of services by ACM was adequate or inadequate based on this standard?
MS GODWIN: Well, using the standards as a guide that the needs of children and various other sort of things need to be met by observation, by consultation with Central Office about whether something was broadly appropriate or not. So, it's not just a question of whether the local manager assesses or monitors or forms a view that it's appropriate, there would be a process raising issues or identifying things that they themselves were concerned about, consultation about whether it was something that was a matter for concern more generally or whether it could be addressed locally, it was an iterative process if I can put it that way.
DR OZDOWSKI: Thank you very much to everyone involved. Now, there is a lunch break. We'll meet here at 1.45 to resume our hearing.
LUNCH BREAK [12.35pm]
RESUMES [1.55pm]
DR OZDOWSKI: Thank you very much. I think we can start now. I hope Ms Godwin is much better.
MS GODWIN: Not much better but not as worried.
DR OZDOWSKI: Okay, good. I understand I was to respond to a question about program for the next few days but my understanding is that counsel Bromwich and counsel Wigney already reached agreement on that issue so we don't need to enter into it.
MR WIGNEY: Ms Godwin, we were still dealing with the Immigration Detention Standards. I've just taken you really by way of example to one provision dealing with education. In the course of discussion about the standards you referred to provisions dealing specifically with children and I wanted to just take you to them briefly now. If one goes to article 9, the particular topic or subheading is Individual Care Needs and it contains some provisions that deal specifically with children, is that right?
MS GODWIN: Yes.
MR WIGNEY: Is it the situation that really those paragraphs 9.2.1, 9.3.1 and 9.4.1 through to 9.4.3 are the only provisions in the Immigration Detention Standards that deal specifically with the care and services to be provided to children.
MS GODWIN: Well, clearly they're the ones that refer specifically although there are references to children elsewhere. I mean the one about expectant mothers and, you know, our position obviously is that the rest of the Immigration Detention Standards also apply to children it's just that those ones sort of specifically raise issues to do with children.
MR WIGNEY: I don't doubt that some of the other standards apply to children but you would agree that, as this document seems to suggest, that children detainees require special needs, there's a special duty of care owed to children, would you agree with that?
MS GODWIN: Well, we've got a particular responsibility for everyone in detention, in particular children, yes.
MR WIGNEY: Children are particularly vulnerable, would you agree, in detention?
MS GODWIN: Well, they may be, depending on the circumstances, bearing in mind of course that they remain in the guardianship of their parents as well, so there's a whole issue to do with management or the parents' responsibilities as well but, yes, as a general proposition.
MR WIGNEY: And while the detention standards generally apply to all detainees these are the only provisions that deal specifically with the duties and responsibilities towards children.
MS GODWIN: Specific references, yes.
MR WIGNEY: Now, it's obvious is it not that there is nothing specifically in the detention standards that, for example, requires ACM as the service provider to take as a primary consideration the best interests of the children in detention?
MS GODWIN: Well, I guess this goes to the general way the detention standards and this particular contract are constructed which require the Immigration Detention Standards to be read more generally in the context of - I'm struggling because I can't remember precisely where it is in the contract - but they talk about the need to have reference to particular laws that Australia, and I think also somewhere reference to international obligations, so it really goes to a point I think we were making before lunch which is that the construct of this particular set of standards and the contract is such that not all of those elements come together in one point in the way that we've attempted to do in the new Immigration Detention Standards.
Generally, the detention standards need to be read more broadly with the overarching principles and with other elements of the contract. Most of which is available publicly.
MR WIGNEY: Where are the overarching principles set out?
MS GODWIN: They're set out at the front of the Immigration Detention Standards and they include things like - I won't read all of them - the way that this is constructed it starts by talking about principles underlying care and security and then goes on to the individual standards. As I say all of this constitutes a schedule to the contract as a whole and the contract as a whole has various other references to particular responsibilities. So as I say the construct of this contract and the idea is different than what's being proposed in the new ones but I don't believe that they're absent of any reference to international responsibilities, although what I'm having trouble with is finding the exact reference at the moment.
MR WIGNEY: Seven dot points down, I think, in the principles underlying care and security refer to the international obligations and there's the phrase that they informally approach the delivery of the detention function.
MS GODWIN: Yes.
MR WIGNEY: You say that part of the intention of that is to encompass the principle that the best interests of the child ought be a primary consideration in the administrative decisions relating to the detention of children?
MS GODWIN: Well, I guess the point I'm trying to make is that the construct of this approach to the contract and the standards is different to that that's embodied in the new Immigration Detention Standards but this was intended to be an overarching reference to those sorts of obligations including references to ... and other things.
MR WIGNEY: Well, I thought that you'd agreed with me before the luncheon adjournment that in general terms the Immigration Detention Standards reflect the Department's view or understanding of its duty of care and the standards it expects to be met in the detention facilities.
MS GODWIN: I made the point I think at some stage, and I don't remember precisely in relation to which question, that the standards had to be read together with the rest of the contract and the overarching principles but that as a general proposition they reflected the bulk of our requirement but not the entirety of it.
MR WIGNEY: So, if one was looking at the Immigration Detention Standards that are still in force today it wouldn't set out fully the standard of care that the Department expects of the detention service provider, one would have to go to other documents or other unwritten principles, would one?
MS GODWIN: Well, you'd need - well, as I say, the totality of our requirement is set out in the contract, the overarching principles and the Immigration Detention Standards. I think I made the point before lunch that there would also have been consideration at any particular point in time of what was required and what was considered to be appropriate and that is certainly the way under this contract we've proceeded.
MR WIGNEY: Would it have not been desirable for the Department to set out explicitly in the detention standards that the best interests of the child ought be a primary consideration for delivery of or provisions of services to children in detention?
MS GODWIN: Well, you're asking me to comment on what was in people's minds five years ago when all of this was constructed. At that time we were coming from a situation where we had no established set of principles or standards, this was the first ever attempt, and I made reference in my opening statement to the fact that the then Human Rights Commissioner regarded this as, in a sense, significant improvement on the previous fragmented arrangements. Now, looking back five or six years would it have been better to make a specific reference, as I say, it's really speculative on my part. The fact is what we've attempted to do in the new Immigration Detention Standards is learn from the lessons of managing this particular contract to look at whether or not we can be more precise in bringing together the various elements that I regard at the moment as being spread through various aspects of this document and others.
MR WIGNEY: Do the new Immigration Detention Standards explicitly spell out that the primary consideration when one comes to children in detention is the best interests of the child?
MS GODWIN: Well, I think we had this conversation before lunch. You continually use the words the primary consideration, our obligation is that the best interests of the child are a primary consideration.
MR WIGNEY: Okay, well let me withdraw that and I'll put the same question using the words a primary consideration, does the new Immigration Detention Standards explicitly spell out that the best interests of the child is a primary consideration?
MS GODWIN: We'd need to look through them, they're extremely extensive compared to these ones, but certainly I think the statement of requirements that goes with the new contract talks extensively about our expectations in relation to service provisions for children.
MR WIGNEY: I don't want to labour the point but can I put the general proposition to you that these Immigration Detention Standards that are still in force and have been in force since 1997 don't fully take into account or incorporate many of the other specific rights or obligations in the Convention for the Rights of the Child, do you agree with that?
MS GODWIN: Well, if you're making the general point that we haven't gone through and listed every paragraph of every convention or even specifically referred to the individual conventions, I mean quite clearly that's the case. I mean there's no cross-referencing. If you're asking me to indicate whether I believe that these standards draw people's attention to that question of international obligations I believe they do.
MR WIGNEY: Let me just give you one other example. I think I took you earlier to article 19 of the CRC which provides that states shall take all appropriate relevantly administrative measures to protect the child from all forms of physical and mental violence, injury, abuse, neglect and the like. If one goes to, for example, paragraph 9.4.2 of the Immigration Detention Standards that are presently in force that provides that detainees are responsible for the safety and care of their children living in detention. It seems to throw the obligation straight back to the parents of detainee children, that's not in keeping with the Convention is it?
MS GODWIN: Well, I think the Convention does recognise the importance of parents in a whole range of ways.
MR WIGNEY: No doubt it does.
MS GODWIN: I don't think it does just throw it back on parents, it's talking specifically about parents in that sort of situation but the overall sort of thrust of this, and we've had the discussion before about ultimate responsibility and so forth, there's no question in our mind that we have a responsibility to those people we have in detention. Now, the fact that the Immigration Detention Standards refer to the importance of or that detainees are responsible for safety, parents remain the guardians of their children. And, as I say, without going back five years to what was precisely in people's minds at that point that would be consistent with that general point, that parents remain the child's guardians. That doesn't mean we don't accept that we've also got a responsibility to those children.
MR WIGNEY: In paragraph 9.2.1 there's a specific provision requiring the protection of unaccompanied minors from harmful influences, there does not appear to be a similar provision specifically dealing with children in a family context.
MS GODWIN: That's clearly true, that's what's in the text but if you're drawing from that a conclusion that we don't accept a responsibility, we do. I guess we can talk extensively about whether it would have been better to construct these standards in a different way, the fact is these are the current standards but, as I say, if you take them in their totality with the contract, with the principles, and with the ongoing working relationship we have with the service provider in terms of responding to needs and trying to resolve problems in detention centres then I think they do encompass the broad range of issues that you're raising in terms of international obligations.
MR WIGNEY: Without taking up any more time on this particular issue perhaps if I just put it in this way directly, are you prepared to acknowledge at all that the Immigration Detention Standards that have been in force for the last five years or so were really quite inadequate as a statement of the standard of care required in respect of children in detention?
MS GODWIN: Well, I'd put it around the other way which is the way that I've described it a couple of times. This was the first attempt to try to bring together in one place a statement of what our requirements were. Now, we've built on that, we've expanded it in the proposed new Immigration Detention Standards but the fact that there may not be specific words or specific references in these standards doesn't, in my view, take away from the general point that I'm making which is that taken in their entirety they represent an acknowledgment on our part and a requirement as part of the contract to be alert to the sorts of issues that are encompassed in our international obligations.
MR WIGNEY: May we take it from that answer that you don't acknowledge that those standards were deficient in any way?
MS GODWIN: I can't really say much more than I have. I regard them as the first attempt to try to bring all of these sorts of issues together in one place. Now, as part of learning from experience and continuous improvement the new version of the Immigration Detention Standards clearly draw out some of these issues in more detail than the current set of standards do.
MR WIGNEY: Okay, we might just move on from that topic.
DR OZDOWSKI: Perhaps, counsel, I would like to ask Mr Stephen Rushton whether he's got any comments on what has been discussed so far in cross-examination?
MR RUSHTON, SC: No, I haven't.
DR OZDOWSKI: Okay, thank you. Please do continue.
MR WIGNEY: Now, I think what I want to move onto now is the system of monitoring that was in place at least in the last few years in relation to the Department monitoring the provision of services in the detention facilities by ACM.
MS GODWIN: Sure, I'll just call another officer to the table.
DR OZDOWSKI: Could you take an oath or affirmation please.
CHRISTINE McPAUL, affirmed [2.14pm]
UNAUTHORISED ARRIVALS AND DETENTION SERVICES BRANCH, DIMIA
MR WIGNEY: Now, I think you'd agree that having regard to the fact that, to use the Department's words, the Department exercises its duty of care commitments through the service provider, that is ACM, that the Department's monitoring of the provision of those services is an important aspect of the detention environment?
MS GODWIN: Sure, yes.
MR WIGNEY: I appreciate that you set out in some detail in the Department's submissions the system of monitoring and I just want to make sure that we fully understand that and what we've attempted to do is to put it in a diagram, we may have been unsuccessful but we'll see how we go. Now, what I want to do in a moment is go through this diagram and ask you ultimately whether it accurately reflects at least the formal reporting and monitoring procedures that have been in place in the past years.
I suppose the starting point is this, is it not, that on site at each of the detention facilities there's a Department or DIMIA, I think I slip into that phraseology every now and then, a Department Manager and two Deputy Managers and some support staff, is that right?
MS GODWIN: Generally speaking that's right. It varies from centre to centre but yes.
MR WIGNEY: Was that the case at all times throughout the period 1999 to date or did it vary?
MS GODWIN: No. We started off generally speaking with a DIMA officer and just one or two admin support people and we gradually broadened that out. I guess in reflection of a couple of things, one was clearly as the numbers in detention increased but also as the breadth of issues which inevitably came with those increased numbers. I mean I referred in my opening statement to the fact that through most of 1999 and probably back through 1998 we were dealing with numbers in detention of around 400 or 500, '99 starting to go up to 600 or 700. Whereas in the latter part of the period we're talking about 2000, 2001 we had, you know, 3000 or more people in detention at any given time. So both in terms of the actual numbers but also the breadth of issues that emerged from that.
Just as an example I also talked in the opening statement about the re-engineering of the processing that was done and one of the things that resulted in that was large numbers of visas, up to 100 a week, were being granted and they could all be from one centre. So, in order to have the admin officers available to ensure that people who were getting visas were advised and the sort of release procedures were happening quickly and efficiently, to make sure people were then released from detention we needed to expand the number of staff. So, as I say, both numbers and the range of issues that emerged from those large numbers.
In terms of the way in which it increased I guess that was sort of progressive over a couple of years. I think we've had Deputy Business Managers in place now since about the middle of last year and before that we increased the number of admin staff.
MR WIGNEY: The admin staff were involved largely in relation to the immigration status or did they have broader responsibilities?
MS GODWIN: Well, largely in relation to immigration status but, for example, if people raised issues with the DIMIA Manager or with other staff and that needed to be taken up with the service provider then those staff would be involved in that as well.
MR WIGNEY: But in terms of the monitoring of ACM's service provisions that responsibility fell principally on the Manager and the Deputy Manager, is that right?
MS GODWIN: In terms of formal responsibility, yes, but clearly they'd be drawing on information, comments, whatever, that other staff in the centre would make as well.
MR WIGNEY: When, approximately, did it come to be that there were Deputy Managers as well as Managers on site in these facilities?
MS GODWIN: I think that was the point I was just making. I think from about the middle of last year we started to formally put Deputy Business Managers or Deputy Managers into the centres. A couple of centres would have had admin staff who in a less formal way played that sort of role prior to that just because it was seen as necessary to back up the Manager. But formally designating those positions and making sure all centres had them, last year, the middle of last year.
MR WIGNEY: I know I touched on the qualifications or experience of the Department Managers before but was it the situation that they were not specifically trained in relation to managing detention facilities, for example?
MS GODWIN: There was no formal training program, as such, for managers but I guess it's another one of these things where we've built on experience over time. We now do have a training program, I think I'm correct in saying, for staff working in detention centres. We've also developed and indeed you've been provided with one of the sets of documents that you asked for, a Centre Manager's Handbook to provide advice on a range of issues and we also have regular formal phone hookups with Centre Managers to go through particular issues, particular requirements, questions and so forth.
Now, I know your question was about are they formally trained to be Centre Managers and, as I say, generally speaking the answer to that is no but there are a number of things that we've put in place over time to build up the sort of skills and sources of advice available to Centre Managers.
MR WIGNEY: Upon the whole they tended to be bureaucrats, and I don't use that in a pejorative sense, they were administrators who'd come up, worked their way up through the Department, is that right?
MS GODWIN: Well, they would be officers from within the Department generally, yes.
MR WIGNEY: So they didn't have any particular training or experience in education, health or mental health or those sorts of things?
MS GODWIN: Not specifically, no.
MR WIGNEY: When did the training program that you've just referred to commence approximately?
MS McPAUL: We've had a program of individual briefings in place that we can provide to staff who are about to go to the centres and at the beginning of this year as well we held the first combined formal training program for our Deputy Managers.
MR WIGNEY: I think you'd agree that the detention facility environments were a difficult environment to manage at the best of times, do you agree with that proposition?
MS GODWIN: Certainly challenging, yes.
MR WIGNEY: It perhaps would have been appropriate, with the benefit of hindsight, to have had some sort of formal training regime or experience in place in relation to the Department Managers of these facilities?
MS GODWIN: Well, the fact that we've now got training indicates that we think that's desirable. Would it have been desirable to have it earlier, as you say with the benefit of hindsight? As a general proposition, yes. Did we not attempt to support and prepare managers, I think we did, just not by way of formal training. What we've attempted to do, a point again that I made in my opening statement, throughout the last few years is to recognise where things would be better formalised, enhanced, consolidated, whatever, and to put that into practice and that's what we've done.
MR WIGNEY: Just dealing with the handbook is it the situation that the handbook is still - whilst there's an index - it hasn't been completed, all the chapters haven't been written yet?
MS GODWIN: I'll ask Christine to comment in a bit more detail but the general approach we took was that - and this is even a more general comment than just the Manager's Handbook - rather than waiting till we had a complete and final version of every single thing that we would want to put to Centre Managers for their assistance, that it was more important to start to feed out advice on a range of things. So we would regard the Centre Manager's Handbook as a continuing work in progress where we started by drafting a number of chapters, got those out and continued to work. Rather than holding back the work that had already been done until the rest of the work was completed, get the work out that had already been done and then continue to work on other issues.
The other point to make is the managers themselves have had an input into the issues that have gone into the handbook and over time I guess we've identified new topics that should go into the Manager's Handbook to make it as comprehensive as possible. I might ask Ms McPaul to comment.
MS McPAUL: As Ms Godwin said, we've worked on the premise that it was important to have some information available to support our managers and for those chapters that we've already released of the handbook we're of course reviewing those periodically and updating that as the situation changes and the legislative environment changes as well.
MR WIGNEY: In terms of what has been written for the handbook so far we, that is the Commission, does not appear to have been provided with a chapter 4.1 on the provision of education services, is that not complete yet?
MS McPAUL: I'd need to refresh my memory but you've been provided, as far as I understand, with all the chapters that have been completed.
MR WIGNEY: So if we haven't got provision of education services it probably hasn't been completed yet?
MS McPAUL: I accept that.
MR WIGNEY: We also haven't been provided with chapter 4.9(a) unaccompanied minors would that indicate that that also hasn't been completed yet?
MS McPAUL: There are a number of chapters that we're still developing.
MS GODWIN: If I could add to that there is now an MSI on unaccompanied minors which is available to Centre Managers. I think one of the things you'll see through the Manager's Handbook is that it refers to other documentation. The Centre Manger's Handbook is not the totality of advice to Centre Managers about various aspects of life or their responsibilities in the centre but what we wanted was something that brought together in some way the bulk of that documentation if not in the actual Centre Manager's Handbook then by reference to those other documents. But there are a range of other things, like MSIs and indeed the Act and the regulations themselves, which are I think referred to but not necessarily repeated in the Manager's Handbook.
MR WIGNEY: Well, with respect the Act and the regulations aren't going to provide much assistance for the overall management of a detention facility are they?
MS GODWIN: Well, there are some aspects of the regulations which specifically go to things that happen within detention centres so to that extent, yes, they would be references that the Centre Manager would need to draw on from time to time.
MR WIGNEY: The Migration Series Instruction, MSI, relating to unaccompanied minors or UAMs was completed on about the 2nd of September, is that correct?
MS GODWIN: I think it was issued on the 2nd of September, yes.
MR WIGNEY: So that's a fairly recent origin as well?
MS GODWIN: Yes.
MR WIGNEY: The other chapter of significance that we don't appear to have and therefore suggesting that it hasn't been written yet is chapter 4.9(c) torture and trauma victims, is that correct?
MS GODWIN: Well, as we've said we regard the whole thing as a work in progress and new topics are being added progressively.
MR WIGNEY: Well, in terms of the duty of care and provision of services to children in detention those three chapters that haven't been written yet are fairly significant chapters are they not?
MS GODWIN: Well, they're certainly important chapters but my point about the Manager's Handbook not being seen in isolation, I think we've said somewhere in the documentation we've provided to you that we have had regular phone hookups with Centre Managers going back now some considerable period of time, that's on a fortnightly basis. That was supplemented at some point, 13th of December last year, specific phone hookups looking at the issues to deal with unaccompanied minors, we specifically added a phone hookup on unaccompanied minors to the one that was happening as a more general discussion.
Issues to do with children have been a regular topic at those phone hookups and indeed at meetings we've had with managers and so forth because there have been general meetings with managers from time to time. So, I take your point about the chapters but I also need to make the point that they're not - we regard the Centre Manager's Handbook as an important document but not the totality of advice that Centre Managers would be drawing on at any given time.
MR WIGNEY: To put it bluntly and without wanting to sound too critical at least not at this stage anyway, the fact is that DIMIA have had managers in these detention facilities for the better part of five years now and you're still putting together a Manager's Handbook after five years of this, what's your explanation for that? Is there an explanation?
MS GODWIN: Well, the explanation is as we've put in our submission that when we had very small numbers and a small number of centres we relied much more on day to day contact and in a sense personal contact between centres and Central Office to work through these issues. As the number of centres increased, the number of detainees increased and the complexity of the issues that managers were being confronted with increased we moved to try to formalise what had been happening on a personal basis, I mean individual contact between Central Office and the centres, we moved to formalise that into the sorts of documents that we're talking about.
I have to say if what you're proposing is that you should start by creating a set of procedures and only then move into practice, that isn't the way that normal administration can or does work. I mean it's not uncommon in public administration to move from practical operations into formalised procedures and so forth and that's essentially the process that we've been engaged in in detention that we, as I say, relied early on when the numbers were small and it was an appropriate way to work on direct contact between Central Office and Centre Managers but over time, as I say, the whole thing got much bigger and more complex and we moved to formalise a lot of these things into procedures and support documents such as the ones we're talking about.
MR WIGNEY: As Mr Hunyor reminds me in fact DIMIA of course has been detaining people in immigration detention since 1992 so it's the better part of ten years, the relationship with ACM has been for the better part of five years. But you refer to as a form of administration practical operations first. I mean is practical operations putting in an untrained, unqualified DIMIA manager without a handbook or any other written guide, is that a proper form of administration for something so important as detention of asylum seekers?
MS GODWIN: Well, they may have been untrained in a sense of a formal training program about detention as such but we're talking about not junior officers, but middle management officers within the detention, generally speaking who had a range of experiences in state offices, in overseas posts, in Central Office, these were not brand new or generally speaking inexperienced officers moving into those centres. One of the things that we were looking for and continue to look for in detention centre managers is people who understand not just the operations within a detention centre but the broader context within which the Department is operating because they have to make, from time to time, a range of judgments in circumstances that in a sense are quite unpredictable. So we're looking for officers who've shown skill and experience and good judgment in their earlier work in the Department. So that's the sort of process we've been involved in.
Now, we've augmented that with specific training in relation to detention but they were not brand new or inexperienced officers that went in as Centre Managers.
MR WIGNEY: Just finally on that topic of the managers, when you refer to training is there in existence a document or a training curriculum for these people, we don't appear to have seen any such document in the course of considering the documents produced by the Department in answer to the notices?
MS GODWIN: There's not a formal curriculum, we actually had someone look at this issue of training for us early last year. We could certainly provide a summary or a course outline of the training that was provided to the Deputy Centre Managers earlier this year if that would be helpful.
MR WIGNEY: I think it may be helpful.
MS GODWIN: Sure.
DR OZDOWSKI: So we'll take this one on notice you'll provide that?
MS GODWIN: Yes. Someone will try and get it quickly.
MR WIGNEY: If we can now just go to the diagram, it's divided into two, the top part being reporting or monitoring generally and the second referring to incidents. I might just deal with the reporting of incidents firstly as part of the monitoring scenario. The situation is that certain incidents which occur at the detention facilities are required to be reported to DIMIA, is that correct?
MS GODWIN: That's right.
MR WIGNEY: The Detention Immigration Standards provide in article 13.3:
Any incident or occurrence which threatens or disturbs security and good order or the health, safety or welfare of detainees is reported fully in writing to the DIMIA facility manager immediately and in writing within 24 hours.
That sets out the incident reporting requirement in the detention standards, is that right?
MS GODWIN: Mm hm.
MR WIGNEY: Now, at first instance the incident reports would ordinarily be completed by an ACM officer or guard, call them what you will, is that right?
MS GODWIN: Detention officer, yes.
MR WIGNEY: And that's usually reporting an incident that they have witnessed, is that right?
MS GODWIN: Yes, or been involved with or whatever, yes.
MR WIGNEY: What about situations where there's a complaint by a detainee, particularly in relation to, for example, the conduct of an ACM guard, what's the system in place for dealing with such incidents?
MS GODWIN: They would often be reported as incidents but it would depend who the complaint was made to. I mean there's certainly been occasions when complaints have been made to people other than people in the centre and in that sort of situation clearly it wouldn't, at least at that point, prompt an incident report around the complaint per se. It may well be that whatever the event was that has resulted in the complaint may have been the subject of an incident report.
MR WIGNEY: In any event if one goes to the diagram I think we see the staff member filling out the report, providing it to the ACM Manager and if we're incorrect let us know, then that incident report would then be sent firstly to the ACM head office and secondly to the DIMIA Manager.
MS GODWIN: As we understand it it may well come to us contemporaneously, this is an area where we've, I guess, sort of refined our requirements over time. There are certain things that are required to be advised to us immediately by phone, including to the Detention Operations Manager in Central Office, so there would be - if you're trying to develop a flow chart of who gets which first things might well be being reported contemporaneously within the ACM line as well as to us.
MR WIGNEY: When you say us do you mean head office or do you mean -
MS GODWIN: Well us in DIMIA. Now there could be a couple of ways that would happen, it could be reported to the Centre Manager who would then immediately call Central Office or in some instances it may well be that someone in ACM will call the Detention Operations contact officer. It would depend to some extent on the nature of the incident.
MR WIGNEY: In terms of the reports there's a proforma type report that one can fill in with certain details and then the narrative of the incident, is that the ordinary course?
MS GODWIN: That's the proforma that ACM has generally used, yes.
MR WIGNEY: Are statistics - or is that entered into some sort of a database at any stage?
MS GODWIN: We have a database in Central Office and if I can go back a step all of the incident reporting operates on a paper basis so we actually get a faxed copy of the incident report. In Central Office staff enter into a database that we developed early last year various aspects of the incident report but clearly we don't enter every - I mean we don't sort of in effect re-enter or transcribe the whole incident report. That has enabled us to develop statistics since that period. Prior to that it was essentially a process of checking the paper records.
MR WIGNEY: So just in terms of this flowchart here, from what I understand you to be saying, whilst it shows the movement of the report on some occasions that report may move more directly to Central Office but apart from that it's an accurate portrayal?
MS GODWIN: Yes, I think as a general proposition it starts with the staff in the centre and feeds through to Central Office.
MR WIGNEY: Now, at the bottom of the diagram we have the dotted line and COG meetings, COG being the Contract Operations Group, that's a monthly meeting, is it not?
MS GODWIN: It is now, it was initially a three monthly meeting, we moved to increase the frequency of that I think again late 2000 early 2001.
MR WIGNEY: Just in general terms the members of the Contract Operations Group were the more senior members of both ACM and DIMIA, largely from their respective Central Offices?
MS GODWIN: Yes. What's not on your diagram though is another group.
MR WIGNEY: Yes, I was going to come to that.
MS GODWIN: Okay. Essentially senior operational officers from Central Office and from ACM would participate in the COG and that would be an attempt to try to draw out issues that had occurred which we thought needed further discussion or resolution.
MR WIGNEY: And as this diagram would suggest the members of the COG would tend to be the members from the Central Office, that's the Canberra based office of the Department and ACM based in Sydney, is that correct?
MS GODWIN: That is certainly the general membership. From time to time others would attend including Centre Managers if they were in Canberra or in Sydney at the time.
MR WIGNEY: But ordinarily it wasn't a forum for Centre Managers or people on the ground to confer about common issues?
MS GODWIN: No. The general proposition is that to the extent possible issues that arise within centres should be resolved on the ground and on the spot as far as possible. I guess there's a sort of process of escalation if you like where issues that require further discussion or where there might be questions about whether it's been adequately resolved, or whether it's been resolved in one centre but there's still an issue in another centre or something like that would generally be raised in the Contract Operations Group.
MR WIGNEY: If problems upon analysis of, for example, incident reports, the problems would appear to be coming systemic problems, then that's something that ought be discussed at the COG meetings?
MS GODWIN: Yes, as a general proposition, yes.
MR WIGNEY: And also, just to take one example, if there was a looming mental health issue in one of the facilities, that obviously would be an issue of significance to discuss at COG meetings?
MS GODWIN: I'm not quite sure of the point you're making. I mean when you say a mental health issue, if something was immediate and required immediate focus that would normally happen on the ground and if necessary Central Office staff would become involved, we wouldn't wait for a Contract Operations Group meeting to do that.
On the other hand if there'd been a number of issues raised or concerns about particular things and they came together then, yes, you'd raise them with the Contract Operations Group. But, as I say, we wouldn't wait for a Contract Operations Group if there was something that required urgent attention.
MR WIGNEY: In the Department's submissions you refer to monthly analysis of incident reports for systemic issues is that a reference to the COG?
MS GODWIN: No. We try to tease out, now using the database that I mentioned, an overview of the number of incidents, the type of incidents, in a sense the proportion of incidents, whether there's been an increase in incidents or a decrease in incidents in the centre, relative to the number of detainees and what we use, if you like, as a form of currency of detainee days because in a centre like Villawood for example you might have a similar number of detainees but a quite different number of detainee days depending on how long people have been in the centre. So it's an attempt to try to look at whether there are patterns or trends, and also I guess to identify if there are particular things that we ought to be picking up by way of more detailed discussion with the service provider. So it could lead into a COG but it's not the COG as such.
MR WIGNEY: When you say we, who was involved in monthly analysis of incident reports?
MS GODWIN: It happens in the Unauthorised Arrivals and Detention Services Branch.
MR WIGNEY: Who in fact in that branch was responsible for doing such analyses?
MS GODWIN: Well, there's a number of staff. We've got a Detention Operations Section which deals with the day to day operations as well as significant incidents. We've got the Contract Management Section which looks more generally but they would both be involved in the sort of analysis that we're talking about.
MR WIGNEY: The reason I ask is that amongst the documents that have been produced by the Department to the Commission there does not appear to be any documents recording any such analysis of incident reports for systemic problems. Was this a formal procedure or process that was documented in any way?
MS GODWIN: Well, it's a process that we've been doing now for some months, some considerable period of time. I mean bear in mind that what we've provided in response to the notices has been guided by the specific questions in the notices. If a document was regarded as not in scope for whatever reason then it wasn't provided. I don't think there's anything in particular to be read into the fact that we didn't provide them.
MR WIGNEY: Do you say that any such reports indicating analysis and analysis of these incidents were produced? If they were we'd rather like to see them.
MS GODWIN: Were produced or weren't produced?
MR WIGNEY: Were they produced?
MS GODWIN: I don't know. I'd have to go back through, as you know, the many folders worth of documents.
MR WIGNEY: I'm sorry, that was an unclear question. I meant not produced to us, were they created? Was this process of analysis documented in any way at the Department?
MS GODWIN: Yes, there are documents which cover this but not necessarily as a description, there's the actual analysis if you like.
MR WIGNEY: Well, in the event that those analyses or the documentation of those analyses wasn't called for production in any of the Commission notices can you take that on notice and produce such documents if they exist?
MS GODWIN: We'll certainly take it on notice, yes.
MR WIGNEY: Now, in any event you would agree, would you not, that accurate and timely incident reporting is very important if the Department is to properly monitor the detention facilities and respond properly to incidents?
MS GODWIN: Sure.
MR WIGNEY: Would you agree with this as a general proposition and I'll take you to some documents shortly, but the system as envisaged that is production of incident reports filtering through to the Central Offices was not always adequately complied with by ACM?
MS GODWIN: Well, bearing in mind the point that you're making about the fact that timely production of incident reports is an important functional feature of performance monitoring, obviously it is something itself that we monitor. Now, there have been instances where reports have not been provided within the timeframes and there are set timeframes for various types of incidents and so forth. That doesn't often mean that there was no incident report at all, mostly it's meant that the incident report was provided but outside the established timeframes and that's clearly something that's been a matter that we've discussed with the service provider over time and I have to say I think it's something where the service provider, over time, has looked at ways of responding to the issues we've raised, clarifying what the requirements are and so forth.
One of the issues about incident reporting and I don't mean this to sound silly but there's a fundamental question of what's an incident and there can be times when there'll be a view about, well we didn't think something was an incident, and we'll say we did and we'd like a report and so forth. Because it's one of those areas where it's hard to be absolutely definitive about every single thing that could possibly happen that we would expect to be reported on. I mean some things are reasonably clear cut, a major incident, you know a disturbance of some sort, are relatively clear. But there have been times when the issue between us has been, well, was it the sort of incident that would normally prompt an incident report.
We would agree as a general proposition with what you're saying that incident reporting is important. It's something that we've paid a lot of attention to and I think the service provider has paid a fair bit of attention to it as well.
MR WIGNEY: Well, at least in relation to some of the facilities it's been almost a constant source of criticism by DIMIA of ACM has it not?
MS GODWIN: Well, if you're referring to things like the manager's reports, yes, there are often references but that might mean, you know, an incident report or a small number of incident reports at a given point in time was not provided within the timeframes. Now, I'm not trying to minimise that, please don't get me wrong, but it can look like a constant source of criticism but in terms of the sort of broader scope of the numbers of detainees at a given point and the number of things that go on on a daily basis within detention centres is not necessarily indicative of a systemic problem in a particular centre.
But, as I say, I want to reiterate the point that I made before which is we do regard incident reporting as a very important aspect of the monitoring of service delivery and it's why we've paid particular attention to it and it's why you'd expect to see in manager's reports references to if they thought that an incident report hadn't been provided within the appropriate timeframes or perhaps a report provided at all for some reason then that would be an issue that we would want to pursue with the service provider.
MR WIGNEY: But if it appears in virtually every manager's report from the beginning of 2001 through to September 2002, that is a criticism of ACM's reporting of incidents, that would indicate a systemic problem, would it not?
MS GODWIN: Sorry, I just go back to the point that I made. If every manager's report mentions that there have been individual circumstances where a report wasn't provided within the appropriate timeframes, as I say, it's not something that we regard lightly and that's why they appear in the manager's reports so we can monitor it and focus on it in discussions with the service provider. But at the other end of the spectrum or on the other hand that may refer to one or two or three incident reports at a time when there were hundreds of detainees and, you know, hundreds of different things happening.
So it's that question of keeping an appropriate focus on it because we do regard it as important and it's why it's one of the things that managers report on specifically but the fact that it's referred to in each report doesn't necessarily mean that there's a systemic problem. But it's something that we require the service provider to focus on and it's therefore something that we discuss with them on a regular basis.
If I could make one other point. The incident report isn't the only source of information. It's clearly one of the most significant sources of information about what's happening day to day but it's not the only source of information about what's happening in a detention centre and the fact that we're in a position to raise with the service provider that an incident report may have been late or whatever is often because we've been keeping an eye on what else has been happening at the centre.
MR WIGNEY: You indicated that the incident reports were not the main source of information or may not have been the main source of information.
MS GODWIN: No, I said they weren't the only source.
MR WIGNEY: But they were certainly the main source of information in relation to incidents for head office, right? Head office aren't on the ground, how are they going to become aware of incidents?
MS GODWIN: Well, because for example our Centre Manager would let us know something was happening and that may be the source of a discussion between us and the service provider. If the Centre Manager let us know something was happening but we hadn't been advised simultaneously by the service provider we may in fact take that up with the service provider. The other source, of course, can be detainees themselves who say something happened and we'll check back and that would then be something we'd raise with the service provider.
But in a context where we've had something like probably more than 10,000 individuals through detention in the last couple of years and some hundreds of incident reports provided on a monthly basis, as I say we regard this as a very significant part of the reporting relationship between ourselves and the service provider but what we're interested in is making sure it works properly and that's what the whole point of monitoring whether or not the timeframes and so forth have been met is intended to do.
MR WIGNEY: To save time I was going to take you to a series of documents as you probably anticipated but to save time can you just - the manager's reports that we have for both Port Hedland and Woomera would seem to suggest that in virtually every month - sorry, initially the manager's reports were quarterly, but in virtually every manager's report that we have the issue of inadequate incident reporting was raised as an issue. Now, the point is that that would suggest a systemic problem in relation to incident reporting would it not?
MS GODWIN: I'm not sure how much I can add to what I've said. It indicates that it's an issue that we pay very particular attention to because we regard it as such an important element of the reporting relationship. But, as I say, if in a centre where you had some hundreds of detainees over a three month period there were mistakes made with incident reporting I would certainly expect that a Centre Manager would raise that but the question of whether it's a systemic problem I think goes to a broader problem.
Individual incident reports not provided on time or not being sufficiently comprehensive or where we've had to go back and ask for further information, those are all things that can happen and all things that we would discuss with the service provider because, as I say, we regard it as an important issue. So, as I say, the fact that it appears in numbers of manager's reports I think simply points to the fact that this is something we have paid particular attention to.
MR WIGNEY: Very well. Now, that largely deals with the system in place in relation to dealing with incidents. Is there anything you wish to add to the diagram on this particular bottom half of the page other than the Contract Management Group which I'll come to in due course?
MS GODWIN: Well, as I've said as a basic representation I think that's right. I mean clearly you can't chart all the sort of to-ing and fro-ing that might happen around particular incidents or issues but as a general description, yes, that's fine.
DR OZDOWSKI: Could we ask maybe ACM, Mr Rushton, is there anything to add?
MR RUSHTON, SC: No, thank you.
MR WIGNEY: Can we move to the other aspect of monitoring and that's depicted hopefully at the top of this page and you will see firstly I suppose the dotted line between the DIMIA Manager and the ACM Manager depicting largely liaison between those two managers that are on the ground at the detention facilities. That liaison occurred on a daily basis did it?
MS GODWIN: Yes, usually there would be daily - well, yes, there would be daily contact. If the Centre Manager wasn't there for some reason, they had to go to court or something, it might not happen but as a general proposition there would be daily contact between the DIMIA Manager and the ACM Manager.
MR WIGNEY: And that was largely informal and undocumented liaison, was it?
MS GODWIN: I'd say largely undocumented, although in some centres it was formalised into either briefing sessions of a morning or weekly meetings to look at sort of issues that were emerging in the centre but I'm not aware that there would have been formal documentation generally speaking around those.
MR WIGNEY: Nextly we see on this diagram on the DIMIA side of the equation a report going from the manager on site to the Central Office?
MS GODWIN: Yes.
MR WIGNEY: Now, initially that report I think was a quarterly report, is that right?
MS GODWIN: It was quarterly to start with.
MR WIGNEY: And did it start to become monthly some time in mid 2001?
MS GODWIN: Yes, perhaps if I could just set a little bit of context. Towards the end of 2000 we essentially had a look at our overall contract management arrangements and that was the point at which we'd decided to establish - well sorry we did a couple of things, we increased the frequency of the Contract Operations Group from quarterly to monthly and we created, if you like, two levels which was the Contract Operations Group and the Contract Management Group. Up until that time the Contract Operations Group which had met quarterly essentially looked at both operational and more overall contract issues including to do with finances and those sorts of things and around the end of 2000 we decided to change that and simultaneous with that making the Contract Operations Group monthly we decided to move to a system of monthly reporting from Centre Managers rather than quarterly.
MR WIGNEY: So prior to about mid 2001 there was really only one - there were four reports each year from the DIMIA Manager back to Central Office?
MS GODWIN: Yes, four formal reports, four full written reports but this goes back to the point that I made I think before which was that we had a very active interrelationship between Detention Operations Section in Central Office and the individual centres where there would often be daily contact between Central Office and the centres and those were an opportunity to raise issues or report on things that were happening and so forth. Clearly, and I made this point before, as the number of centres and the number of detainees and the complexity of the issues increased we decided we wanted to formalise that into the sort of arrangements we have today.
MR WIGNEY: Now, in terms of the manager reports they're largely in the form of a proforma document which follows the sort of headings that are in the Immigration Detention Standards is that right?
MS GODWIN: Broadly speaking but with opportunity for managers to raise other issues, in fact I think there's an Other Issues heading.
MR WIGNEY: Broadly, they are intended to report on each of the relevant standards set out in the Immigration Detention Standards, whether ACM has or has not provided an adequate service in respect of those standards.
MS GODWIN: Broadly speaking that's correct, yes.
MR WIGNEY: I think in each report ACM's performance is ranked as either exceptional, good, adequate or below standard is that right, at least in relation to some of them?
MS GODWIN: I think that was the early format and clearly at that point what was being asked for was that individual centre's Centre Manager's view but at that time that manager would only be focussed on the things that happened within that particular centre.
MR WIGNEY: Well, it was a way of head office being informed, formally, by the DIMIA Manager on site as to whether ACM's performance of the key standards was up to scratch to put it bluntly?
MS GODWIN: Well, it's a view from the Centre Manager about whether in the manager's opinion there were issues.
MR WIGNEY: We've got a report, I think, for Port Hedland as recently as September 2002 which still sets out these ratings of exceptional, good, adequate or below standard and I'll show you those documents in a moment.
MS GODWIN: Yes, I think I'm familiar with it. I think there may well be some places where the old format is still being used.
MR WIGNEY: That may be the case in Woomera. But in any event would you agree that on the whole, particularly in relation to some centres the reports tend to be fairly spartan and devoid of any real detail, would you agree with that?
MS GODWIN: Well, I think there are centres where I guess for a range of reasons there have been either other things happening which the manager has focussed on in their report or either no particular issues of concern to the manager at that point or - I mean I'm just thinking there are presumably - particularly some of the smaller centres, there just may not have been an issue around a particular thing.
MR WIGNEY: Well, if I indicate to you that Woomera, not being one of the smaller centres I think you'd agree.
MS GODWIN: Sure.
MR WIGNEY: Its manager's reports tended to be just over one page or sometimes two pages, that being a formal reporting each month, that would tend to indicate that they were fairly spartan and devoid of details, wouldn't it? I can show you the documents if you wish?
MS GODWIN: No. I accept the point you're making. As I say, they're your words not mine. I think the other point to make, and I think I made this point before, I think from probably early last year we were having regular teleconferences with Centre Managers, they're formal teleconferences, where generally speaking managers or some representative from the centre is required to participate and so it may well be that a Centre Manager would view themselves as having already raised issues through the teleconference and therefore not needing to repeat them in their written report.
MR WIGNEY: But you have in place a formal system of reporting, right?
MS GODWIN: Mm hm.
MR WIGNEY: And this is really the main way, I suggest, that head office is informed of whether the ACM service providers are fulfilling the standards that are set out in the contract on a monthly basis, that's right isn't it?
MS GODWIN: No, it's obviously an important source of information, but it's not the only source of information.
MR WIGNEY: I'm not suggesting it's the only source but it's the main source is it not?
MS GODWIN: No. I've already talked about the almost daily contact between the centres and Central Office, about the fact that we receive and review incident reports in Central Office, that we augmented that process of daily receipt and checking of incident reports within Central Office with a database which enabled us to look at trends over time and the teleconferences that are held to raise issues and so forth. So clearly the reports are integral to the overall framework of the monitoring and knowing what's going on in the centres but they're not the only or on their own the most important source of information.
MR WIGNEY: You'd agree that in administering such important facilities as these detention facilities it's important to keep a permanent record of the performance by ACM of their obligations under the contract?
MS GODWIN: An appropriate record, yes, sure.
MR WIGNEY: And these manager's reports are certainly the formal record of ACM's performance, right?
MS GODWIN: Well, I've said they're one of a range of ways in which we keep an eye on what's happening in the centres and views about performance.
MR WIGNEY: I'm interested at the moment in documentation. Are there minutes of these teleconferences that you say occurred?
MS GODWIN: I think the UAM teleconference is formally minuted but I'm not aware that we've been in the practice of formally minuting the other one.
MR WIGNEY: Please understand I'm dealing with documentation relevant to monitoring, so the teleconferences may be a means of communication but they're not a way of recording ACM's performance under the contract are they?
MS GODWIN: Well, if I can draw a distinction between formally minuting the whole of a teleconference and noting particular issues that have been raised by a particular centre manager, that would happen and that would then become, if necessary, part of the range of issues that we would talk through with ACM at the next Contract Operations Group or, indeed, if it was of sufficient urgency or something that needed to be attended to before the next Contract Operations Group that would then be taken up with ACM. I understand what you're talking about is documentation but I think you're drawing a conclusion that because there aren't formal minutes of every aspect of a teleconference that means that issues that arise out of the teleconference wouldn't then be noted and raised with ACM. I mean that may well happen after the teleconference, the person managing the teleconference may make a notation of issues that they then want to raise with ACM that day or the next day.
MR WIGNEY: We could at least expect if issues of significance arose in these teleconferences and they were issues to be discussed with the service provider that they would ultimately be discussed in the COG meetings?
MS GODWIN: Not necessarily. If something is happening and needs to be resolved and it has been resolved then you wouldn't necessarily escalate it to the Contract Operations Group. So if something comes out at the teleconference and, as I say the person managing that teleconference thinks okay there's some issues there that I need to talk through with ACM and they do that and they're resolved, then it wouldn't necessarily get escalated to the next Contract Operations Group.
MR WIGNEY: I'm focussing on issues of significance not minor matters that are resolved in the space of days, surely if they're issues of significance in relation to ACM's performance of services or even events that are occurring in these facilities they would be discussed and documented appropriately at the very least at the COG meeting?
MS GODWIN: I'm sorry to disagree but I do. I mean the objective here is to identify issues of concern and to resolve them as quickly as possible and if an issue is identified and resolved then that is the objective of the relationship between us and the service provider. You wouldn't normally then escalate that to a Contract Operations Group unless, for example, and this could happen, something has been raised in relation to an individual centre and it's been resolved in relation to that individual centre but it was something that you wanted to raise so that it could be looked at across other centres, then, you know, that's the sort of thing that would get raised at Contract Operations Group as an example.
You're making an assumption that the only things that would be resolved immediately in the way that I've described are reasonably minor matters, not necessarily. And, as I say, if it's something important but it's resolved then you don't necessarily need to go through it again at the Contract Operations Group.
MR WIGNEY: Now, in any event, in terms of these monthly reports one of their functions was that they were used in ultimately assessing the level of fees payable to ACM is that right?
MS GODWIN: Well, they would contribute to the overall performance assessment for the quarter.
MR WIGNEY: ACM's fees at least in part were performance linked, that is points were added or subtracted from their performance to arrive ultimately at a quarterly fee, is that right?
MS GODWIN: There is a point system, yes.
MR WIGNEY: And these forms were used in conjunction with that point system or to assist in that point system?
MS GODWIN: Well, they would certainly contribute to it but the compilation of that would happen in Central Office because it needed to obviously look across all of the centres.
MR WIGNEY: Were these DIMIA Managers reports provided to ACM?
MS GODWIN: I don't think so, certainly not routinely by us in Central Office, it may well have been that from time to time they would be raised with managers in individual centres but no, not routinely at all.
MR WIGNEY: I see.
Now, if we go back to the diagram I think you'll also see in this diagram that ACM also provide a monthly report to their Central Office and again this particular diagram depicts discussions at the COG meetings, that is that one would expect significant issues arising in these business managers reports would be discussed at the COG meeting?
MS GODWIN: Do you mean the DIMIA Manager or the ACM Manager's report?
MR WIGNEY: Sorry, the DIMIA Manager reports.
MS GODWIN: Well, it goes to the same issue. If something has been raised in a manager's report but has been worked through and resolved we wouldn't necessarily go over that territory again at the Contract Operations Group.
MR WIGNEY: I see. In any event you will see also on this, just to complete this diagram, that the next communication it seems between the respective head offices is called a Performance Linked Fee Report, that was a report that was issued quarterly, was it not?
MS GODWIN: Yes.
MR WIGNEY: And it was in that report that DIMIA either subtracted points or on occasion added points to ACM's performance in terms of its performance fees?
MS GODWIN: Yes.
MR WIGNEY: And also on this document is depicted ACM Central Office responding to that report, you would agree usually trying to convince DIMIA not to deduct points in relation to issues each quarter?
MS GODWIN: I'm not sure of the point precisely you're making. There's no formal requirement for an ACM response nor is there generally an obligation on us to adjust.
MR WIGNEY: But as a matter of course they did tend to respond if points were deducted did they not?
MS GODWIN: Well, I don't know about as a matter of course, there's certainly been times when they have, if they've regarded something as having been inappropriately assessed by us and then there's a process sometimes of discussion and whether we accept that response or not will depend a bit on what it is. I mean if we've got something factually wrong, and that can happen from time to time, then clearly we would regard it as fair and reasonable to amend it. But, as I say, it's not a formal part of the process.
MR WIGNEY: One thing that has been left off this diagram I think as you indicated before is the CMG or the Contract Management Group meeting which was a quarterly meeting and that meeting largely related to the Performance Linked Fee Report and the level of fees that were to be payable to ACM during any one quarter, was it not?
MS GODWIN: No, not necessarily. There may be issues that appeared in that report which would have been the subject of discussion. But no there were a number of standing items, for example we looked at financial issues, infrastructure issues and if we thought there were general contract issues there there may well have been concerns about things that hadn't been able to be resolved at either the sort of local level or at the Contract Operations Group, they may well be raised.
MR WIGNEY: Now, was one of the objects of the reporting mechanism, in particular the monthly reports that we've spoken about, so that any deficiencies in ACM's delivery of service could be in due course identified and remedied? Is that one of the main functions of it?
MS GODWIN: Well, to the extent that it identified issues that needed to be addressed and which the manager didn't think had necessarily been addressed locally. But, I mean, some of the reports if you've looked at them, simply reflect on the manager's own overall sense of the mood in the centres or the way things were going. So, they would obviously, as I've said, have contributed to our overall examination and monitoring but they weren't exclusively for that purpose.
MR WIGNEY: But one of the reasons for reporting on a monthly basis for example a deficiency in one aspect of the standards would be in the hope that constant reporting of that deficiency would ultimately lead to a remedy, would you agree?
MS GODWIN: Well certainly to alert the fact that something had happened, yes.
MR WIGNEY: And would it be a concern to the Department if deficiencies continued to be raised in relation to some of the standards in these reports and yet they were not acted on or remedied by Central Office?
MS GODWIN: I guess it's fair to say it would be a concern if it was the same issue, if I can put it that way, but something might be reported under one heading but wouldn't necessarily go to precisely the same issue that had been reported under that same heading the month before or the month before that. So it would be possible for different issues to arise from time to time. I mean if I can make as a general point the observation that clearly the objective in any service delivery arrangement such as this is to try to have arrangements in place that address issues or know what's going to be done before they arise or even prevent them arising or act in a way that ensures they don't arise. It's equally important to have an arrangement in place which says, look, 95 or 98 or whatever per cent of issues in relation to detainees worked well but there were these individual things or particular items that we want to focus on because they need to be addressed.
I guess it goes to the point that I was making before and that you were raising in relation to incident reporting. The fact that something - that there is something mentioned under a particular heading in a number of reports may or may not point to a systemic problem, depending on the nature of the individual incidents or whatever that give rise to the mention of that in the report.
MR WIGNEY: Let me try and deal with a slightly more concrete example. We're still at this stage dealing with the monitoring process, I think it's an obvious statement that many of the detainees in these facilities couldn't speak English, right?
MS GODWIN: Mm hm.
MR WIGNEY: And to effectively deliver many of the services that were necessary to be provided at these facilities there was a need for an interpreter or sufficient interpreters for the detainee population, right?
MS GODWIN: Yes.
MR WIGNEY: Amongst other things it's not really going to be possible, and let's just focus on the delivery of these services to children, to provide adequate education services to children without interpreters, putting aside English classes for the moment.
MS GODWIN: Yes, but in relation to those sorts of programs it has been possible and indeed appropriate I think that the formal tuition provided by teachers would be augmented by teachers aids and in some instances those teachers aids would come from within the detainee population precisely because they were bilingual. So, I mean the requirement as I recall it and I'd need to double check but I think the requirement is that communication is able to happen in a way that recognises the detainees' cultural and linguistic requirements. So in certain circumstances it's not inappropriate in my view or generally speaking in other people's views that some of what you would regard as an interpreting function would be carried out in different ways within the centre. So you wouldn't necessarily expect to see in a centre a formal external interpreter for each class, for example.
MR WIGNEY: Let's put education aside for the moment. What about assessment of the mental health or the health generally of children in detention, that's something that an interpreter is going to be necessary for is it not?
MS GODWIN: Well, as a general proposition I think our position with the service provider is that it would be better in most instances to have an external interpreter. Now, whether that's an on the spot interpreter or you make use of the Telephone Interpreting Service and a number of centres do that.
MR WIGNEY: For the assessment of the mental health of children?
MS GODWIN: Well, yes, the Telephone Interpreting Service is a comprehensive service available and has access to people with appropriate language skills, trained in interpreting. From time to time depending on the circumstances and I guess more recently than in the past where we've developed videoconferencing capacity, that can be used as well. So there could be a variety of ways of getting proper interpretation in that sort of a situation. On site interpreting is obviously one way and I wouldn't suggest it's not important but it's not the only way.
MR WIGNEY: It may not be the only way but it would be inappropriate, for example, if detainees were used to provide interpreting or translating services wouldn't it? Let's be specific, in the context firstly of mental health or health assessments of children?
MS GODWIN: Well, it would generally not be the best way of doing it but there may be circumstances, this is not unknown in the community where someone wants someone known to them to act in an interpreting capacity. But generally speaking we would look to having properly qualified interpreters in that sort of situation.
MR WIGNEY: Let me ask you this question, what did the Department expect of ACM in terms of the provision of interpreter services, what was expected?
MS GODWIN: Well, there are so many different circumstances within a detention centre it is not possible to say there is one response to the language issue in a detention centre and only one. Our requirement is that the service provider look at the different needs of or the different circumstances and provide accordingly. Now, in certain circumstances and we've just agreed that mental health may well be one of them, you'd be looking for an external interpreter, whether that's on the telephone or an onsite interpreter. In other circumstances it may well be appropriate for other arrangements including bilingual staff or other detainees to act in an interpreting capacity but it would depend on the circumstances and the issues that were needing to be pursued.
MR WIGNEY: My question was simply what did you expect, did the Department expect there to be onsite interpreters on the ground in these detention facilities or not?
MS GODWIN: No, not as a general proposition. What we expected was that the service provider would find appropriate ways to communicate with the detainee. Look, if you're looking at a centre like Villawood where there is 60 or 70 different language groupings quite clearly there can't be 60 or 70 on site interpreters for that vast array of different nationalities and language groups. But if there isn't some capacity such as an on site interpreter or a staff member who's bilingual then we would expect the service provider to make other appropriate provision. That can vary.
I mean if a group of people turn up in a detention centre and it's the first time that in that detention centre that language group has been seen it may well be that there isn't an on site interpreter at that particular point in time. So, as I say, our requirement is that the service provider look at the circumstances and respond to the variety of those circumstances but that may well be either through the provision of an on site interpreter or through other mechanisms.
MR WIGNEY: In general terms you would agree that it would be of concern to DIMIA being the body with ultimate duty of care, it would be a major concern if there were inadequate provision of interpreters or interpreting services particularly in relation to children in these facilities, would that not be a concern to you?
MS GODWIN: Well, I'm sorry, but it's not possible to answer this question in the absence of looking at the sorts of circumstances. If a child is with a family and the parents are able to be communicated with and they are then able to communicate with the children then it wouldn't necessarily be of concern. So, you know, there are a variety of circumstances where we may well have concerns but there are also circumstances where we wouldn't necessarily have concerns.
DR OZDOWSKI: I think it is time to take a break, we can return to that topic a bit later, we'll meet at 10 to 4.00 in the same room, thank you.
SHORT BREAK [3.40pm]
RESUMES [3.55pm]
DR OZDOWSKI: Okay, so we are starting the last session for the day and I must say it looks to me that we are going a bit slower through the material than was anticipated. We're supposed to be dealing with families already and we still are not there. Really I would like to avoid extending the hearings to include Friday, so if you could in a way try to work through the material a bit faster.
Also perhaps if I could say, having worked a long time in a multicultural affairs and also in a role of interpreting and translating I was quite - well I wasn't convinced by the arguments coming from DIMIA about the issue of interpreters in immigration detention centres. So perhaps I would like to give DIMIA another opportunity maybe to state clearly what the policy of the Department is in terms of provision of interpreting and translating services in detention centres.
MS GODWIN: Well, I'm not sure that I can say much more than I've already said which is that we expect that the service provider be in a position to communicate with detainees of other languages and that the way in which that happens will take account of the circumstances that exist and the nature of the issue which requires interpretation. I've already made the point, I think, that it would seem to us unreasonable as it is in the community to assume that every issue requiring some degree of interpretation would require the provision of an on site interpreter because the availability of the interpreters, the broad range of language groups that might be necessary and the different sorts of circumstances that might apply would mean, as I say, just as it's true in the community that it would not be possible to have on site interpreters in every situation.
So, we would expect the service provider to look to a variety of mechanisms including the availability of written material in other languages, the use of technology such as Telephone Interpreting Services as well as on site interpreting and there may well be in certain circumstances the appropriate use of other detainees who have language services as well as staff who are bilingual. So, as I say, we would expect a range of methodologies to be used to meet the basic requirement of a need to communicate with detainees in a variety of different circumstances.
DR OZDOWSKI: And this expectation of an ability to communicate in a whole range of circumstances using different methods is a part of an expectation which is known to ACM?
MS GODWIN: Well, I believe so. I think it's discussed in general terms in the current Immigration Detention Standards but it's certainly something that we have discussed with them over time in terms of what that requirement is.
DR OZDOWSKI: Are there any specific provisions relating to on site interpreting - when it needs to be used?
MS GODWIN: No, there aren't any specifics.
DR OZDOWSKI: Thank you. Mr Wigney?
MR WIGNEY: Perhaps I might cut to the chase of why I raised the issue of interpreters at this stage. Paragraph 2.4 of the existing Immigration Detention Standards provides amongst other things that:
An interpreter is always provided for a detainee who does not understand English when discussing with them matters relating to their management.
MS GODWIN: That's what it says, yes.
MR WIGNEY: So, one of the standards is that an interpreter is always to be provided for a detainee when they're discussing matters relating to their management and management means really the services that are provided to them and all sorts of things that would take place on a daily basis in a centre, right? Now, I want to go through some documents to indicate why I've raised the question of interpreters at this stage when we're dealing with monitoring. I'll just provide you with a folder. I want to take you to the documents behind tab 1 in this folder and they, I think you will find, are a series of DIMIA Manager proforma reports for the Port Hedland Detention Centre. The top one is September 2002 and then they go backwards in time to a quarterly report for the period 1 January, 2001 to 31 March, 2001.
I think you will see that in the top right hand corner the pages have been numbered and I want to take you to a series of entries in this document. Can you start, perhaps, on page 35 of the bundle, that's the proforma report for the period 1 January 2001 to 31 March 2001 and then go to the second page, 36, under the heading 'Privacy'. There ACM is ranked as 'adequate' for that month and it records that: "Broadly adequate, with one exception, which is below standard: there are no on-site interpreters employed by ACM and none are brought in, TIS..." I gather that's the Telephone Interpreting Service?
MS GODWIN: Yes.
MR WIGNEY: "...is used where possible (ie. in an office with a phone) but in all other cases English-speaking detainees are used. These people have not signed confidentiality documents, have no code of conduct or quality assurance measures and, since they are directly involved in the same processes themselves, the practice is also unethical. I've brought this to the attention of the manager as a breach of detainees' privacy."
So, it would seem that the Manager of the Port Hedland facility at that time regarded the fact that there were no on site interpreters as a significant problem, would you agree?
MS GODWIN: Well, I agree that the Centre Manager regarded it as being of concern and took it up with the ACM Manager.
MR WIGNEY: And also took it up in the report that was sent to head office, right?
MS GODWIN: Mm hm.
MR WIGNEY: And then if you next go to page 31 that, you will see, is a Port Hedland Manager's report for November 2001 under the heading 'Dignity' it's reported again "Still no on site interpreters". Also again under 'Privacy' there's also a reference to that and indeed ACM has been ranked as below standard in this report in relation to privacy: "Ongoing issue is the lack of on site interpreters, in the absence of which ACM officers use other residents as interpreters. Situation exacerbated by the fact that they rarely use TIS. Serious implications in the sensitive area of medical care and attention".
So again that would suggest that the Port Hedland Manager, at least, regarded that as a serious deficiency in the provision of services by ACM for that month.
MR RUSHTON: I must have a different document because mine doesn't say that.
MR WIGNEY: You'll see that the 'below standard' is in italics. Next in this bundle you will see at page 29 indeed a memorandum from ACM, [name deleted], who would appear to be the General Manager to the Centre Manager for Port Hedland and without reading the document in its entirety [name deleted] is suggesting that he is none too happy with the deficiency in service in relation to interpreters at the Port Hedland centre in that timeframe, do you agree with that?
MS GODWIN: I'm not trying to be difficult, what do you want me to agree with, the fact is there is a document there and it says what you've said, I agree.
MR WIGNEY: Yes. If one then goes to page 25, we've got the report for March 2002, 'Dignity', "Lack of on site interpreters a perennial problem". Also under 'Privacy', page 26 "Lack of on site interpreters, combined with the cramped conditions under which medical staff operate, means the lack of privacy is a particular issue for residents attending the clinic." If you go to page 20 you've got another report for the next month, April 2002, and you'll see, I think, identical references to lack of on site interpreters under both the headings for 'Dignity' and 'Privacy' on page 21.
If you then go forward to page 15 you will see the next assessment or the next manager's report, May 2002, again reporting on the lack of on site interpreters being an ongoing deficit and I think again the identical reference under 'Privacy' to the preceding month. March forth again, now to June 2002 and I think you'll see under both the headings for 'Dignity' and 'Privacy' identical problems and a reference to the fact that it is unchanged from previous months.
Jump forward to July 2002, again, identical references under both the headings for 'Dignity' and 'Privacy' in respect of lack of interpreters. We have jumping again forward to August 2002, page 4, reference again to the lack of on site interpreters as an ongoing deficit, that's under 'Dignity'. Under 'Privacy', again, the same entry there suggesting the difficulties it's causing for privacy particularly in relation to medical assessments.
Again we come forward to September 2002, page 1 of the bundle, under 'Dignity' and 'Privacy' we have 'below standard' assessment for 'Dignity' and again reference to lack of on site interpreters being an ongoing deficit. Now, what you would agree we have here is a deficiency and I would suggest a serious deficiency being drawn to the attention of the head office of DIMIA for the better part of 18 months and it has not been fixed, would you agree with that?
MS GODWIN: Well, I'd need to look at the particular circumstances. I mean clearly there's been, as you correctly point out, an issue with on site interpreting but whether that applies to all language groups at all times in a place like Port Hedland there may well be from time to time issues about having the range of language groups, as I discussed before. Now, clearly it's something that required regular review by the manager, perfectly appropriately. The letter from [the General Manager] clearly indicated that it was also regarded seriously by ACM in that sort of situation and yes there is an ongoing issue there. As I say I would regard the fact that it's continually being raised as appropriate on the part of the manager to raise it.
But, as I say, the reports as you pointed out before I think are sometimes reasonably staccato or summaries, I don't think you used the word staccato. In some respects you'd need to go behind that to look at the particular circumstances as to whether the particular issue being referred to in each of those reports was in fact the same issue or a different manifestation of a similar issue occurring at different times.
MR WIGNEY: Well, it's obvious from these reports is it not that the DIMIA Manager on site at Port Hedland regarded it as a significant deficit as the word he uses.
MS GODWIN: Sure.
MR WIGNEY: Well, if this is part of the monitoring process why isn't it getting fixed up?
MS GODWIN: Well, it may well be, as I say, given that there are different - there are numbers of language groups - - -
DR OZDOWSKI: How many language groups do you have there?
MS GODWIN: I don't know the number at the moment, Commissioner, that would vary over time but I would need to go behind the reports to - sorry, just to finish the point that you're raising - it would be possible to work out over time what the pattern of language groups was and so forth but as you're probably aware there have been, although Port Hedland was used predominantly for unauthorised boat arrivals from time to time there have been other people there, either transferred from Perth because Perth is not ideal for long term detention and people transferred from other centres, so there have been a variety of different language groups at different times.
DR OZDOWSKI: But it's difficult for me to believe that if you have, say, an occasional Russian or Romanian and there was no interpreting facility available for that particular person the manager would be regularly reporting it over one and a half years time.
MS GODWIN: Well, I guess I'm saying if there are different language groups and even within those language groups different requirements for interpreters that it may well be that there is an on site interpreter at a particular point in time for a couple of those language groups but there is difficulty getting an interpreter for the third language group or something like that. All I'm saying is that in order to answer the question that's being asked or the proposition that's being put you would need to go behind, I would need to go behind the particular circumstances that were applying at the time. It may well be that there was a problem over time of on site interpreters but that, as I say, it didn't impact on the same group of detainees all the time or different sorts of circumstances arose, that's the only point I'm making.
DR OZDOWSKI: It certainly would help me to make a judgment if you could provide me with some explanation why this pattern happened.
MS GODWIN: We could certainly attempt to do that.
DR OZDOWSKI: If you attempt to, thank you.
MR WIGNEY: You're now the Deputy Secretary of the Department?
MS GODWIN: I am.
MR WIGNEY: Does it not concern you at all that a deficiency has been raised in a report from the Port Hedland Manager to the Central Office for the better part of 18 months and it doesn't appear to have been remedied at all?
MS GODWIN: Well, that's essentially the point that I'm making, it's hard, without going behind those reports, to comment on the part of your proposition which is "and haven't been remedied at all", there may well have been different arrangements made at different times to try to address those issues that were being raised but the fact that they were raised in subsequent reports doesn't mean that nothing was done in response to whatever the previous issue was. It may well be that it was an issue that continued to be raised and continued to be addressed in different sorts of ways. I am not trying to be difficult here but, as I say, with changing populations, changing groups, just as an example there have been times at centres where there have been particular on site interpreters for particular groups and then a new language group turns up and almost by definition there isn't an interpreter for that group for a period of time until something can be addressed.
So I'm not trying to suggest that there's not an issue here but, as I say, I'd need to go behind those individual reports to try to find out precisely what the issue was.
MR WIGNEY: Can I suggest to you that it demonstrates a deficiency in the monitoring and reporting mechanisms or systems in place at DIMIA in relation to the operation of these facilities, what do you say about that?
MS GODWIN: Well, it's not a proposition with which I would agree. For a start the fact that the Centre Manager has raised it is quite proper, obviously, in terms of alerting to issues that have arisen over time. As I say whether it's exactly the same issue being referred to in each of those reports it's something that I think the COG minutes will show was raised as a more general issue, so something that we focussed on. As I say the letter from ACM's head office back to the centre to say look there's an issue here indicates that it was something that was being focused on and attempting to be addressed.
But equally there is, as I understand it, or has been over time, from time to time, but probably at various points in time, difficulty in attracting on site interpreters to Port Hedland for a variety of reasons. I mean someone is needed over the holiday period but they don't want to take a contract over the holiday period because they're doing something else. I mean I'm not suggesting that this isn't something that we would not take seriously, clearly the manager was taking it seriously, we were raising it at COG and the ACM Operations Management was also focussed on it. So to say that it reflects a failure of monitoring, it's not a proposition that I can accept.
MR WIGNEY: You've indicated on a number of occasions that you'd need to go back behind these reports, indeed at least until relatively recent times you were the First Assistant Secretary for the Unauthorised Arrivals and Detention Division, were you not?
MS GODWIN: Yes, I was.
MR WIGNEY: You attended both the COG and CMG meetings?
MS GODWIN: No, not the COG generally, the CMG.
MR WIGNEY: Do you recall the lack of on site interpreters being raised as an ongoing issue at a CMG. Perhaps that's unfair I should direct you to a document. If you go to page 86 you will see that's in fact a letter signed by you to ACM and it's enclosing the performance assessment certificate for the December 2001 quarter. If you go over to page 89:
There was a lack of on site interpreters at Port Hedland throughout the majority of 2001, this issue has serious implications in the sensitive area of induction and medical care and has been raised with ACM formally on many occasions including at COG and in correspondence. Whilst acknowledging the difficulties ACM had in attracting staff to Port Hedland DIMIA urges ACM to resolve this issue urgently and will apply sanctions for this quarter given the serious implications.
Now that suggests that even you regarded this as quite a serious breach, that's right isn't it?
MS GODWIN: At that time, yes.
MR WIGNEY: Indeed you docked, if that's the right word, ACM 10 points for that particular deficiency. What was the maximum points deduction that you could impose?
MS GODWIN: I don't know that we can answer that.
MR WIGNEY: In any event it doesn't much matter but it was regarded by you as a serious issue, right?
MS GODWIN: At that time that's right.
MR WIGNEY: And this is for the period ending 31 December 2001 and yet as we've seen, going through the manager's reports it was still unresolved by September 2002, some 9 months later. That's correct isn't it?
MS GODWIN: Well, it's referred to in the manager's reports, yes.
MR WIGNEY: We might just move on to another topic since we really have got to move things on. Would you agree with this proposition that - and I think you actually said as much before our most recent adjournment - that part of the monitoring and reporting system that was in place was intended to identify potential problems, and your words were address those issues before they arise, that is address potential problems before they come real problems at these facilities. Is that part of the monitoring and reporting - - -
MS GODWIN: Yes, but I think I was making also a more general point which was clearly the objective is to do that but also to have a capacity to respond and rectify issues that arise when they're identified.
MR WIGNEY: But obviously it would be desirable if you were able to pick up problems when they were still only a potential and nip them in the bud, so to speak, right?
MS GODWIN: As a general proposition, yes.
MR WIGNEY: And if the Department monitoring is to ensure that DIMIA acquits its duty of care properly it must also be able to pick up emerging stresses and strains and potential problems in the system before they become real problems, you'd agree with that generally wouldn't you?
MS GODWIN: Well, sir, I think you just said it must also be possible. I agree that as a general proposition it's desirable if you can identify stresses and strains in the system before they become real ones but it's not always possible to do that.
MR WIGNEY: But it would be desirable for the monitoring and reporting system to be pro-active rather than re-active to problems in these facilities?
MS GODWIN: Yes, generally speaking that's right.
MR WIGNEY: And would you agree with this general proposition that in the past at least the Department has not been able to adequately anticipate problems in these facilities before they arise, at least through these reports and monitoring system?
MS GODWIN: Well, I'm certainly aware of numbers of problems that have arisen that we didn't predict before they arose. Whether it's correct to say that it's not possible or that we were not able to in every situation I don't think - that's not, as a proposition, something I'd agree to. I think there are examples where we've sort of identified things that might happen and tried to take action and indeed the service provider has as well tried to take action to manage or ameliorate or prevent those things happening. So, as I say, I'd agree that there are times when it hasn't been possible but I think there are times when we've also identified things and looked to resolving them.
MR WIGNEY: Can I just give you one example and I'll see if you will agree with the proposition without me having to take you through all of the documents again. Throughout 2001 there were a number of unaccompanied minors in custody in the Woomera facility.
MS GODWIN: In 2001 there certainly were a number of unaccompanied minors there, yes.
MR WIGNEY: And I think you've already accepted that the Department accepts that it really owes a special duty of care towards unaccompanied minors because of their vulnerable position, right?
MS GODWIN: Yes.
MR WIGNEY: And just trying to deal with this example as quickly as possible and we can go to specific documents if need be but you're certainly aware of the fact that in late January of 2002 the mental state of a large number of the unaccompanied minors had declined to such an extent that the Family and Youth Services, part of the Department of Human Services in South Australia expressed serious concerns to the Department about the mental health and safety and wellbeing of those unaccompanied minors.
MS GODWIN: I think we touched on this some time earlier in the day. It's certainly true that there were concerns both on their part and ours at that time, yes.
MR WIGNEY: Indeed the point really reached a crisis stage, did it not, with the Family and Youth Services in January of 2002 recommending to the Department that the unaccompanied minors should be removed from the Woomera detention facility as a matter of urgency?
MS GODWIN: Well, there was certainly a discussion of that type and that's what happened, so yes.
MR WIGNEY: And once the state authority raised that with the Department then the Department ultimately did move some of those unaccompanied minors to alternative detention arrangements, is that right?
MS GODWIN: Well, I guess there's two points I'd want to make. As I said, I don't know that it was just that they raised it with us, we were also concerned and there were ongoing discussions between us and to say some of them were removed, my understanding is that I think all of the unaccompanied minors - they were moved in two groups I'm being told within a couple of days of each other.
MR WIGNEY: But the situation really reached a crisis point, did it not, in about January of 2002 and there were incidents of self harm and hunger strikes and lip sewing and the like occurring?
MS GODWIN: Well, there was a particular set of issues and demonstrations going on at the time which certainly involved hunger striking and lip sewing et cetera, yes.
MR WIGNEY: What I want to suggest to you is that that particular crisis point was not anticipated at all in any of the documents that formed part of the monitoring and recording system in the preceding months to January 2002, do you accept that?
MS GODWIN: Well, yes. As I said before I'm certainly aware of a number of incidents or situations that have arisen that we were not able to predict occurring before they occurred and this is one of them.
MR WIGNEY: You accept that it appears from the correspondence from Family and Youth Services and I'll take you to it if needs be that the problems with these unaccompanied minors had really built up in the preceding months, that is the stresses and their mental state had deteriorated significantly over the preceding months, right?
MS GODWIN: I mean certainly there had been ongoing contact between us and Human Services around that particular set of issues, the unaccompanied minors, yes.
MR WIGNEY: Is that not one of the sorts of stresses and looming problems that really ought be picked up by the monitoring and reporting system that we've been discussing over the last hour or two?
MS GODWIN: Again, as a general proposition yes but I'd need to go back and refresh my memory at this point on a number of points but my recollection is that a number of things were done to try to focus on the management of that group including moving them from one part of the centre to another where it was regarded they might be better able to be supervised and so forth. So if you're making the point that we had not been focussed on their needs or done anything proactively prior to January I don't believe that's reflective of the case.
Now clearly what we hadn't done was move them to an alternative place of detention and that was done in January but there had been continued focus on that group of unaccompanied minors for a period in consultation with Human Services.
MR WIGNEY: Well, what I'm really focussing on at this stage because we've been discussing the monitoring system, that is the Department monitoring ACM in acquitting the duty of care towards these children, what I'm addressing is the deficiency in the monitoring and reporting system, that is an occasion where a serious build up of stress and pressure was not picked up at all in the reporting mechanism.
MS GODWIN: Well, not picked up in the - if you're referring to the monthly reports from the Centre Manager, but I've already reflected on the fact that there are a number of sources of information including the teleconferences and things like that and I've also made the point that the issue of that group of unaccompanied minors was something which had been exercising us for a period prior to things coming to a head in January.
MR WIGNEY: Well, you would expect if there was a serious discussion about this looming problem it would appear at the very least in the minutes of the Contract Operations Group in the preceding months, would you not?
MS GODWIN: Well, not necessarily if it had been the subject of other discussions or indeed discussions on the ground which clearly it had been.
MR WIGNEY: But you would expect such a potential issue to be discussed at the highest levels of the Department would you not? To try and head off such a serious situation?
MS GODWIN: Well, I'd expect it to be discussed at an appropriate level to try to address the issues that were emerging and, as I say, quite clearly there had been a range of discussions at an operational level including with Human Services and between ourselves and the service provider within the centre looking at different ways of responding to the needs of that particular group. So I think I've made the point before that things wouldn't necessarily be raised to the Contract Operations Group level if they were being focussed on within the centre and this was the situation, as I recall it, where there had been considerable focus.
MR WIGNEY: Well, you would expect if it was at all anticipated as a result of the monitoring system that it would have been picked up and discussed at the unaccompanied minor teleconferences that seem to have commenced at about this time.
MS GODWIN: About December I think the unaccompanied minors - -
MR WIGNEY: I want to go to page 133 of the bundle you see that's I think the first of the unaccompanied minor teleconferences, 13 December 2001. Take a moment to look through it if you wish but it seems to include some case studies but nowhere in that document or in the attached case studies is there any suggestion that the looming problem with these unaccompanied minors that really came to crisis point the following month was anticipated at all by the Department.
MS GODWIN: Well, if I can draw a distinction. The fact that it became the particular issue that it became in January was part of a very specific set of circumstances in Woomera in January involving a much broader group of detainees than the unaccompanied minors and in fact as I recall part of the issue at the time was that in the circumstances of that broader set of incidents that an appropriate step at that time in relation to the unaccompanied minors would be to transfer them to alternative places of detention. But the fact that that very particular set of circumstances that emerged in January was not predicted ahead of time does not at the same time mean that there wasn't a focus on or awareness of the needs of that particular group. What wasn't predicted was the way in which it manifested itself in January but at that time, as I say, there were a very particular set of circumstances in Woomera which went much more broadly than the unaccompanied minors.
MR WIGNEY: But I'm just dealing with the unaccompanied minors at the moment. If you go to page 138 we actually have the minutes of the meeting for the unaccompanied minors teleconference, 17 January 2002, that's in the midst of this crisis and yet there's no discussion, it would appear, whatsoever, at least recorded in those minutes of this issue or this problem.
MS GODWIN: Well, the date of that's the 17th and I'd need to check precisely but as I said the particular set of circumstances that happened at Woomera at the end of January occurred shortly after that but as I say it was a much bigger set of issues than the unaccompanied minors and it emerged very quickly and quite unexpectedly in relation to the broader group of detainees. So the fact, as I say that we didn't anticipate at that point that unaccompanied minors would be involved or would be impacted by that significant incident that happened at Woomera at the end of January, you know I've already agreed that there are incidents that have happened in detention centres which we were not able to predict, that was one of them. But we, at the same time, had a focus on the needs of those unaccompanied minors, we just didn't predict the particular circumstance that emerged in late January.
MR WIGNEY: Well, you say you had a particular focus, it doesn't seem to be a focus that's been recorded in any of these documents that we got from Woomera at the time. The point that you make that the - -
MR BROMWICH: Commissioner, I object to that, that's just an unfair representation of what these documents say. They indicate very much a focus of the kind that the witness is referring to. What she is saying is that they aren't picking up this particular issue and you can see there are various problems being addressed and then something unexpected has blown up. Counsel assisting seems to be advocating counsel of perfection, it's just not fair, not realistic and the question is unfair.
MR WIGNEY: Well, I think when you're talking about the mental health of unaccompanied minors in immigration detention we're entitled to counsel of perfection to a certain extent. There's not a mention in any of these documents of this problem, not a single mention in these unaccompanied minor teleconference minutes.
MR BROMWICH: The witness has said that that is not something that's been anticipated that particular degree of difficulty but she has said that their general situation was being considered and that's what these minutes represent. The recollection at least that I have is that this thing happened very very quickly with very little notice.
MR WIGNEY: What about - you recall the incidents of self harm, and I can take you to the documents if needs be, first started to manifest themselves in November 2001 at Woomera?
MS GODWIN: There has certainly been a range of self harm incidents at Woomera, yes.
MR WIGNEY: I should have made that more specific. Incidents of self harm amongst the unaccompanied minors who in due course were moved to alternate detention in January and February of 2002 first manifested itself in November of 2001. Do you want me to take you to the documents or do you accept that that's so?
MS GODWIN: Well, if I recall there was a particular incident which happened around that time and I've already, I think, referred to the fact that one of the things that we were seeking to do was to relocate a group of unaccompanied minors to an area of the centre where we thought they could be given better and more appropriate supervision. But in the circumstances they objected to that and there were a number of self harm incidents. So to the extent that they manifested in November, and I think it was around that time, then yes there were a series of self harm incidents. But if you're suggesting that we could thereby have predicted that there was going to be the issue that arose at the end of January I'm not sure that that's a link that could have been drawn at that time.
MR WIGNEY: Well, shouldn't you have at least been discussing it and perhaps trying to head off anything that may arise from these manifestations that were taking place in November?
MS GODWIN: Well, I think there's a reference in those documents to - excuse me - I think the point you're making was wouldn't you expect to have seen some reference. The reference in the minutes is to individual case management plans, you were saying there's no reference, well there's no individual reference to the individual detainees but there is that generalised reference and it's my understanding and it was our requirement that was developed around that time that we develop this sort of mechanism to focus and monitor particularly unaccompanied minors.
So what I thought you were saying to me was that you'd expect to see them individually referred to and I guess what seems to me to have been happening, bearing in mind that this was a developing process in terms of minuting the issues and so forth, was that the reference to individual case management plans was a reference to the work that was going on on the ground to focus on the particular group of unaccompanied minors.
MR WIGNEY: Can I just take you up on that, stay with the document of the teleconference of 13 December 2001, that commences at 133 and it attaches what appears to be a list of unaccompanied minors. Now, I'm not going to use the names so I'll just have to count entries down the page to try and identify people but if you go for example seven entries down there's an individual referred to there, obviously I'm not going to name that individual, but you can take it from me that that's one of the individuals that in due course the state authorities recommended ought be released as a matter of urgency in January and the case management notes referable to that person says:
Gets along with others. Goes on excursions.
Now, this is a person that in one month's time the state authorities are saying was in such a mental state that he ought be released from Woomera immediately and the entry is: "Gets along, goes on excursions".
MS GODWIN: Well these are just notations, this isn't the totality of the case management plan as I understand it.
MR WIGNEY: Well the next person on the list is also someone - I should say in relation to that person that we're first referring to, that person also was involved in a self harm incident in the preceding month and there's no reference to that in the case management notes whatsoever.
MS GODWIN: But the focus is on trying to ensure that the individual detainees are - what their circumstances are at a particular point. So if at this point, notwithstanding that a month earlier they were involved in something, they were generally appearing to be getting along well with others, et cetera, that would be the reason for such a notation. I guess I'm just not sure.
MR WIGNEY: Well, the next person on the list there's no notation for whatsoever, he was also, you can take it from me, someone that was ultimately the recommendation of an urgent release from the state authorities in January. Then, if you go eight entries up from the bottom that's another unaccompanied minor who was the subject of serious concerns on the part of the state authorities in January, that's one month later, and the entry there is: "In main". Now what does that mean?
MS GODWIN: Just in main compound.
MR WIGNEY: What was main compound?
MS GODWIN: Woomera is essentially divided into two sort of segments if I can put it that way, there are some sub-segments within them but main is what was the original part of Woomera and I think it's on the eastern side of the centre. It's essentially anyway the older part of the centre, the part that was first established.
MR WIGNEY: And that's the entry in relation to that young person that was ultimately the subject of concern in January, that he was just in the main compound, no other note at all in relation to his case management.
MS McPAUL: I think what we're referring to here with this document is just - it was a list of the individuals that were discussed. Of course there would be more detailed case management plans available at the centres for each of these children and there were other people available at the teleconference who provided the day to day support from the detention operations area. So I think to imply that this note would have been the only handwritten note or only information taken away from that meeting for action would be not the case. Clearly there were other people there also focussed on the issues that were being discussed.
MR WIGNEY: Do you know that this is a fact or are you speculating that that may have taken place?
MS McPAUL: No, I was at that teleconference.
MR WIGNEY: I see. You say that there's more detailed case management reports in relation to these minors somewhere, do you?
MS McPAUL: Yes, I do.
MR WIGNEY: Well, can you take that one on notice as well and produce that document.
MS McPAUL: I believe that some of these case management claims have already been provided to the Commission.
MR WIGNEY: We can perhaps take that up in due course. Sorry, while we're dealing with this, I was trying to avoid taking you to too many of these documents, but I asked you some questions about the Contract Operations Group meetings preceding this incident. Now, can I just take you to the minutes of one of those meetings, it's one that occurs in January, 2002, it commences at page 79. Now, on the first page of that document we deal with matters arising from the November COG meeting and putting aside the issue of centipedes on Christmas Island there doesn't seem to be any reference whatsoever to issues or incidents at Woomera in the preceding month discussed at this meeting.
MS GODWIN: Well, they're matters arising from the November meeting so if they weren't - I mean there may not have been a particular agenda item on that at the November meeting.
MR WIGNEY: Now, if you go over to the next page on page 80 you've got the December incidents and you'll see the third paragraph down there is the reference to the incident which had occurred in November of 2001, the self harm incident and it would appear that the action recommended in relation to that incident was ACM to undertake to look into whether sharps container control would be effective in immigration detention, that meaning containers specially dedicated to razor blades and other sharps. That seems to be the only action recommended out of that incident arising in November of 2001.
MS GODWIN: Well, it's a specific reference to a particular action that can be taken to prevent people being in a situation where they can self harm. I mean we already had developed the process of case management plans and trying to look individually at the individual detainees. This may well be a reference, and I'm now trying to project myself back and not having been at that meeting myself but, a reference to whether there is any other action that needs to be taken. For example is there a way of preventing people getting access to razor blades because that's obviously an important aspect of managing self harm and preventing or reducing the possibility of it happening.
MR WIGNEY: I want to wrap this topic of monitoring up, can I just ask you one final thing, it's really actually putting something to you and asking for your response. The Commission has heard on a confidential basis and therefore I'm not at liberty to reveal the particular source, that at least at one detention facility the ACM reports to the Department including such things as the hours of education and delivery of certain programs were inflated or exaggerated, that is ACM provided false information about those programs and the hours of education to the Department people. And that ACM workers created the appearance that services were being provided when they were not, amongst other things so that penalties weren't imposed. Now, were you aware of any such practices or aware of the reports of any such practice or do you have any other comment to make about that matter?
MS GODWIN: Well, I'm certainly not aware of reports of it. We often go through a process of checking and double checking to make sure that a general statement about what's available or what's being provided is accurate. There are regular processes of updating those sorts of things because circumstances change over time and sometimes quite quickly. So, as I say, no, I'm not aware of those reports in particular. I am aware that we would attempt to check information as comprehensively as we can and sometimes the information gets modified. What was accurate a month ago may not be accurate now, what's accurate now may not be accurate when we do it next month. So we do attempt to check but I really don't have any other comment to make.
DR OZDOWSKI: But did you discover any information which was provided to you that was incorrect?
MS GODWIN: Well, people will often - I mean often when we ask a question about what's available people will give a general answer, you know about, for example, I don't know, a number of nurses. When you go back and check and say okay can you tell us precisely what the number was and when they were available and what their qualifications were or whatever, you'll find that there are discrepancies but the sorts of discrepancies may well be there were 12 rather than 13 nurses or something of that sort. So, as I say, it's a process of checking and also of ensuring that the information you've got at a particular point in time remains accurate or has changed.
I think it would certainly be true and we've probably found ourselves in this position as well that we've had information at a particular point of time which we then subsequently used to say okay this is what's available, when you check you find that it may well have been correct when you got it but a week later something else has happened, someone has come or someone has gone or whatever. So I would not want to say there's never been any inaccuracies in information but that seems to me to be a process where there's a regular process of checking in order to try to ensure that information is as accurate as possible.
DR OZDOWSKI: Would you say that on occasion there were some deliberate inaccuracies or that there were systemic inaccuracies?
MS GODWIN: I'm not aware of systemic inaccuracies as such. As I say, I'm certainly aware of times when information has been inaccurate for a variety of reasons but it just seems to me that in the sort of circumstances within which we're operating that those inaccuracies could arise and that's why you're probably aware, for example, the thing we call the facilities table that we put together from time to time. We're always very careful to try to check the information is accurate at a point in time and to explain what the point in time is. Because from time to time people have said, well that's not right. It may well be that it's not right at the time that it's raised but it was right at the time that the document was compiled.
DR OZDOWSKI: My question was also not about systemic but about deliberate inaccuracies.
MR RUSHTON, SC: Can I raise an objection in relation to that. In my respectful submission it's quite inappropriate for my learned friend to put in the public arena an allegation from an unknown source alleging in effect dishonesty or fraud which prima facie in my respectful submission seems to have nothing to do with the Terms of Reference. Let's assume for argument's sake that some employee of ACM made a false claim, on no view in my respectful submission can that have anything to do with children or the Terms of Reference. Worse than that, we're not in a position to deal with it because we don't know what was said, who said it or in what circumstances.
MR WIGNEY: Well, in my respectful submission it is in the Terms of Reference because one of the topics which we will be exploring in these hearings is the provision of education services and the records as to, for example, how many hours of education were provided to children in amongst other places in these various facilities and it's relevant to that as to whether accurate records of hours of education were kept. So it is within the terms of reference. Secondly, I'm simply raising - and I put it in careful terms - to ask for any comment as a matter of fairness in relation to that allegation that has been made on a confidential basis and that's the only fair way to deal with it in my respectful submission.
MR RUSHTON, SC: Well, I'd add to that that that's not the only fair way to deal with it, there's a fundamental denial of any sort of procedural fairness to allow hidden accusers to be able to hide behind a veil of confidentiality and make what amounts to character attacks on other people and that's not what an organisation like this should be doing.
DR OZDOWSKI: Okay. I will withdraw that question. Another question I would like to ask, what was the standard procedure if you found some information was inaccurate?
MS GODWIN: Just to correct it.
DR OZDOWSKI: Did you discuss it with the service provider, determine information was inaccurate or was it taken up with the service provider?
MS GODWIN: It would depend very much on the nature of the information, if it just seemed to be a simple inaccuracy or something that had changed over time we'd just correct it.
DR OZDOWSKI: Thank you.
MR WIGNEY: I have nothing further.
DR OZDOWSKI: Okay, so we are slowly coming to an end today but I would like first to offer another opportunity for counsel for DIMIA to address any issues which are outstanding and then I will ask the counsel for AsCM to add any comments you would like before we end the proceedings.
MR BROMWICH: The only issue is one which I can discuss directly with Mr Wigney and that is the timetable for tomorrow and the remaining days in order that I can organise for people to be here, that's the major one. I don't need to do that right now. I can do it in a few minutes time when we rise.
DR OZDOWSKI: Yes. Well, as I foreshadowed earlier I am intending to have everything finished on Thursday but I would prefer to go through all the evidence and if we are unable to cover all the topics by Thursday I certainly will consider extending the hearings.
MR BROMWICH: I'm not in a position to indicate what our position is in relation to that. But until you'd mentioned it earlier, Commissioner, the idea of extending beyond Thursday had not been raised. I'm not sure what our position is in relation to that.
DR OZDOWSKI: Thank you. Mr Rushton?
MR RUSHTON, SC: I have nothing to put at the moment at all.
DR OZDOWSKI: So I declare today's hearing closed. Thank you to everyone.
ADJOURNED UNTIL TUESDAY, 3 DECEMBER 2002 [5.05pm]
Last Updated 5 February 2003.