Breach of Ms CD's human rights at the Curtin Immigration Reception and Processing Centre

HREOC Report No. 36

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The Hon Philip Ruddock MP

Attorney General

House of Representatives

Parliament House

CANBERRA ACT 2600

Dear Attorney

Pursuant to section 11(1)(f)(ii) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), I attach a report of my inquiry into a complaint against the Commonwealth of Australia. I have found that the respondent failed to provide the complainant with a safe place of detention whilst she was detained at the Curtin Immigration Reception and Processing Centre and that such failure constituted a breach of her human rights pursuant to article 10(1) of the International Covenant on Civil and Political Rights.

Yours sincerely

John von Doussa QC

President

1 August 2006

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Table of Contents

1. Summary
   • 1.1 Findings
   • 1.2 Recommendations
   • 1.3 Response from the commonwealth
2. Inquiry Process
   • 2.1 The nature of the complaint
   • 2.2 Further information provided by Amnesty prior to receiving response from the Department
   • 2.3 Outline of response by Department
   • 2.4 Description of relevant evidence from the Department
   • 2.5 Amnesty's comments on response from Department
   • 2.6 Other information
3. Relevant Legal Framework
   • 3.1 HREOC Act
   • 3.2 International Covenant on Civil and Political Rights
   • 3.3 Other Relevant Standards
   • 3.4 Conclusions in relation to the obligations imposed by article 10.1 of the ICCPR
4. Preliminary Assessment Leading to a Tentative View
   • 4.1 Tentative findings of fact
   • 4.2 Tentative conclusions
5. The section 27 notice
6. Findings
7. Recommendations
   • 7.1 The power of Commission to make recommendations
   • 7.2 Submissions of the parties
8. Action taken by the respondent as a result of findings and recommendations
9. Attachment 1
10. Endnotes

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1. SUMMARY

This report is the outcome of an inquiry by the Human Rights and Equal Opportunity Commission (Commission) into a complaint made by Amnesty International Australia (Amnesty) on behalf of Ms CD. Amnesty alleged that the Commonwealth of Australia (Department of Immigration and Multicultural Affairs)1 breached Ms CD's human rights while she was detained at the Curtin Immigration Reception and Processing Centre (IRPC).2

In order to protect the privacy of Ms CD, I direct that the disclosure of Ms CD's identity is prohibited pursuant to s 14(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act). I also refer to Ms CD as the complainant in the remainder of this report.

1.1 Findings

I find that the Commonwealth continued to accommodate the complainant in the Charlie Compound of the Curtin IRPC despite being informed of her complaints that she was being harassed by other detainees since approximately September 2001. In particular, on 19 June 2002 the Commonwealth was informed of the complainant's allegation that another detainee attempted to sexually assault her and on 28 July 2002 the Commonwealth was informed of the complainant's allegation that another (different) detainee had physically assaulted her. The complainant was eventually transferred out of the Curtin IRPC on 7 September 2002.

I also find that from at least 5 June 2002 until 7 September 2002, the complainant and her daughter were the only females detained in Charlie Compound amongst a large group of male detainees. The complainant and her daughter were also members of a religious minority amongst that larger group.

In light of these findings, I conclude that the respondent failed to provide the complainant with a safe place of detention. This failure constituted a breach of her human rights pursuant to article 10.1 of the International Covenant on Civil and Political Rights that states:

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

1.2 Recommendations

As a result of my findings, I recommend that:

• The Commonwealth pay to the complainant $15,000.00 by way of compensation
• In addition to the general efforts made by the Department of Immigration and Multicultural Affairs (Department) to ensure that all immigration detainees are treated in a culturally sensitive ways, the Department should have particular regard to circumstances in which there may be a history of hostility between certain groups of people, whether for national, cultural, religious or ethnic reasons, and appropriate action should be taken, for example, by providing separate accommodation for those detainees. In particular, a detainee should not be accommodated with groups who are related to the detainee's claims of persecution.

1.3 Response from the Commonwealth

The respondent was invited to advise the Commission whether it has taken or is taking any action as a result of my findings and recommendations. The Department did so by letter dated 23 June 2006 and provided the following information:

The President recommends that, in addition to the general efforts of the department to ensure all immigration detainees are treated in a culturally appropriate way, the department should have particular regard and act appropriately to circumstances in which there may be a history of hostility between certain groups of people, whether for national, cultural, religious or ethnic reasons. DIMA accepts this. DIMA is currently developing a new client placement model that will take HREOC's recommendations into account.

DIMA will ensure that the new client placement model for the Immigration Detention Service Network takes into consideration the need to treat clients in a culturally sensitive way, with particular regard to circumstances in which there may be hostility between certain groups of people. The department will ensure that the reports findings are circulated widely to facility managers and GSL managers for their information. The HREOC recommendations will also be considered in a review of operational procedures.

We note the President's recommendation that [the complainant] be awarded the sum of $15000 in compensation for pain and suffering. As with HREOC's previously recommended sums of compensation from the department, we are currently considering our approach to this issue.

Please be assured that we are working on this matter as a high priority and will get back to you on this as soon as possible.

As of the date of the finalisation of this Report, the Commission has not received any further information from the Department concerning the compensation issue.

The remainder of this Report sets out in detail the investigation carried out into this complaint and the reasons supporting the findings and recommendations set out above.

2. INQUIRY PROCESS

2.1 The nature of the complaint

On 5 September 2002, Amnesty lodged a complaint on behalf of the complainant who was detained at the Curtin IRPC. Amnesty claims that during a period of her detention at the Curtin IRPC in July 2002, the complainant was the only woman and the only Mandaean in the Charlie compound with over fifty young single Muslim men.

Amnesty alleges that on 28 July 2002, a male detainee of approximately 18 years of age (referred to in this report as Mr P3) harassed the complainant by making derogatory sexual remarks and then spat on her when she reproved him. Amnesty alleges that later that evening, he seized the complainant outside her room, attempted to rape her, tried to take her clothes off, and punched her in the face and struggled with her when she resisted, causing facial bruising, an injury to her right hand, and a broken finger.

Amnesty alleges that the Department through its agent Australasian Correctional Management (ACM) breached the complainant's human rights by accommodating her in the Charlie Compound as the only female and only Mandaean with Muslim men and by not moving her even after it became aware that she was at risk of physical and/or sexual assault if she remained there. Amnesty alleges that despite the Department becoming aware of the incident by 30 July 2002 at the latest, no steps were taken to ensure her safety or to provide her with access to a qualified rape counsellor. Amnesty also states that Mr P has not been charged or taken into police custody.

The complainant and her children were transferred to the Baxter Immigration Detention Facility (IDF) on 7 September 2002.

2.2 Further information provided by Amnesty prior to receiving response from the Department

Amnesty states that on 30 July 2002, the President of the Sabian Mandaean Association in Australia Ltd (Sabian Mandaean Association) spoke with the complainant in the presence of the ACM Operations Manager and that the complainant gave the above account of the attempted rape. Amnesty states that on 30 July 2002, a representative of the Sabian Mandaean Association advised an officer of the Department of the attempted rape by telephone and then confirmed this in a facsimile to the Department on 30 July 2002. On 6 September 2002, Amnesty provided to the Commission a copy of this facsimile. This facsimile states that both the same representative of the Sabian Mandaean Association and the President of Association spoke with the complainant at 2pm that day and she provided them with her account of what occurred. The facsimile states:

During the day of the 28 July 2002, a man named [Mr P] (file number unknown) who is around 18 years of age harassed [the complainant] by passing derogatory sexual remarks. She reproved him and he spat on her. She left. Around 9pm [Mr P] attacked [the complainant] outside her room. He forcefully grabbed her and then attempted to rape her. She resisted his attempts and then he punched her in the face and proceeded to tear her clothes off of her. During the scuffle she badly injured her right hand. Throughout her ordeal she was screaming and soon thereafter, a number of men came and stopped [Mr P] from continuing his attempt. She claims that all the witnesses are Muslim and are sticking by [Mr P's] version of events. Furthermore, [the complainant] said that [Mr P] was still a threat to her and that she remained unprotected. [The President of the Sabian Mandaean Association] then spoke with [the ACM Operations Manager] who informed [the President] that [the complainant] would be thoroughly interviewed about the incident and that she would be afforded full protection and removed to a safe location as soon as possible.

On 22 November 2002, Amnesty provided the Commission with a letter written by the complainant in Farsi. The Commission had the letter translated into English on 7 January 2003. It is undated. The letter appears to be a statement she wrote to the Australian Federal Police (the AFP) regarding both alleged assaults. Amnesty advised on 7 September 2004 that the complainant was in fact requested by the Sabian Mandaean Association to write her account of what had happened in her own language and that this is that letter. In this letter, the complainant states that she has been in Curtin IRPC for 20 months. It may therefore be inferred that this letter was originally written around August 2002 (this letter will be referred to as the complainant's statement of August 2002). In this letter the complainant states:

On 10 June 2002 around 10pm I was resting in my room because of the dizziness caused by the tranquiliser that I have to take with my breakfast ..I heard a knock at the door. It was the messenger of the camp's officer. He gave me a letter and noticing my sleepy face rushed into my room and locked the door behind him. Being dizzy I could by no means defend myself. He, while indicating his intention of sexual abuse, tried hard to pull me towards the bed. Struggling to get rid of him my hand struck hard on the bed so that my bracelet was broken and also the cover of the bed was torn.

The complainant also writes in this statement:

For a long time I have been living together with my two children at the Charlie Compound where only single Afghani and Pakestani youths are living. Most of the time they are harassing me and my children and often, with the intention of sexual abuse. I have been routinely the target of abuse and offensive words. In spite of the fact that I have already informed the DIMIA and ACM of what is going on, my request for being transferred to another compound or being protected has been ignored.

She also states:

no authority in this camp is going to protect me from all sorts of harassment and even open sexual abuse.

The complainant also refers to an incident on 28 July 2002 . Ms CD states:

It is a long time since an Afghani man called [Mr P] instigated by someone else called [Mr N] keeps on harassing me and whenever he sees me from distance or close, he starts to insult me and uses abusive and offensive language. Afghanis call me a worthless person. On 28/7/02 I was sitting by myself at the door of my room and he was passing by. Suddenly he started to use abusive language towards me. On asking him for a reason, he began to physically assault. First I got a blow on the chest and then my mouth and head. My dress was torn on the front side. Being busy defending myself, I didn't notice that my little finger was injured. I was feeling a lot of pain. Now I can inform you that my little finger had been broken. Considering that my children were sleeping at the time, they suddenly woke up and rushed towards me. My daughter was attacked by the same person and the bruise on her arm is still quite visible.

Amnesty provided the Commission with an authority for it to act on behalf of the complainant on 17 June 2003 and a response was sought from the Department on 18 June 2003.

2.3 Outline of response by Department

A response to the complaint was sought on 18 June 2003 and was provided by the Department on 28 August 2003. The Department states that on 16 December 2000, the complainant arrived in Australia from Iran as an unauthorised boat arrival together with her husband and her two children. The Department advises that the family was detained at Curtin IRPC under section 189 of the Migration Act 1958 (Cth) ('Migration Act').

The Department states that by 30 December 2000, the complainant, her husband and two children were accommodated in Charlie Compound. The Department says that on this date, Charlie Compound accommodated 176 adult males, 18 adult females, 27 male children and 14 female children. The Department states that in late January 2001, the complainant and her two children were relocated to Delta Compound and in mid March 2001, the complainant and her two children were moved to Bravo Compound. The Department advises that in late September 2001, the complainant and her daughter were moved back to Charlie Compound whilst her husband and son were accommodated in Bravo Compound. The Department states that at this stage, Charlie Compound accommodated 125 males, 30 adult females, 30 male children and 26 female children, however due to visa grants, the number and mix of detainees in Charlie Compound changed over time until only the complainant, her two children and a number of male detainees remained. On 1 September 2004, the Department was requested again by the Commission to clarify the date on which the complainant became the only female in Charlie Compound. The Department advised on 3 November 2004 that it is unable to advise of the exact date but the complainant and her daughter were the only female detainees in Charlie Compound from at least 5 June 2002.

The Department advises that on 14 January 2002, the complainant's husband was remanded in custody at Broome Regional Prison after being charged with assault on another detainee. The Department states that on 8 April 2002, he was transferred to Hakea Prison and on 30 May 2002, he was transferred to Roeburne Prison. The Department states that as at 17 June 2002, the complainant was accommodated in the Charlie Compound with her two children. The Department states that at this time there were a total of 46 detainees accommodated in the Charlie Compound and with the exception of the complainant and her daughter, all of them were male. The Department states that two of these detainees were Christian, one detainee was from India whose religion was not confirmed, and the remaining detainees were Muslim.

The Department states that on 25 July 2002, the complainant's husband was returned to Curtin IRPC. The Department states that on 28 July 2002, the complainant and her two children were still accommodated in the Charlie Compound and at this time there were 43 detainees in that compound. The Department states that the complainant's husband was accommodated in the India Compound at this time due to marital difficulties. The Department states that apart from the complainant and her two children, the remainder of the detainees in Charlie Compound were male and with the exception of one Christian detainee, all the other detainees were Muslim. The Department states that on 7 September 2002, the complainant, her husband and their two children were transferred to Baxter IDF.

The Department states that ACM Incident Report dated 23 September 2001 details an allegation made by the complainant that on 14 September 2001, a male detainee had beaten her, ripped her clothes and hit her daughter. The Department says that the complainant was immediately taken to the Medical Centre for treatment and medical staff noted that there was no evidence of any bruising or other injury, nor was there evidence of any trauma. The Department states that this matter was referred to the ACM counsellor who stated that it was her opinion that this alleged assault was due to an ongoing dispute between the two families involved. The Department states that both families refused to move from their accommodation and the complainant threatened to kill herself if she was forced to move.

The Department advises that an offer was made to the complainant and her children to transfer to Echo Compound at Curtin IRPC, where all other Mandaean detainees were accommodated. The Department states that this accommodation was separate from any detainees identified as potentially causing problems for Mandaean detainees. The Department states that the complainant continued to decline the daily offers by ACM to be transferred to a more suitable compound and remained accommodated in the Charlie Compound which by then housed single male detainees. The Department states that the decision to remain in the Charlie Compound was made by the complainant.

The Department states that the ACM Operations Manager, who was employed at Curtin IRPC during the time that the complainant was accommodated there with her two children, has recalled that she made a number of verbal complaints to him about a detainee who was allegedly harassing her and calling her names. The Department states that on each of these occasions, the ACM Operations Manager offered the complainant alternative accommodation which she repeatedly refused. The Department says that the ACM Operations Manager has stated that each time the complainant complained of being harassed, he alerted staff to the situation and placed her on an unofficial watch. The Department says that he further recalled that on one occasion, the complainant accepted an offer to transfer to Echo Compound but the residents of Echo Compound complained and were opposed to the transfer and as a result, the complainant decided to remain in Charlie Compound.

The Department states that immigration detainees are in administrative detention and not in a correctional setting. The Department states that security at immigration detention facilities is low to medium level security and that although regular detainee head counts are held, persons in immigration detention are not under constant surveillance by ACM unless such surveillance is required for medical or safety reasons. The Department states that an adult such as the complainant is capable of deciding where she wishes to reside with her children. The Department states that the complainant was repeatedly offered the opportunity to transfer to another compound, which she refused. The Department states that on one occasion in September 2001, she threatened to kill herself if she was made to transfer. The Department states that as immigration detention is administrative in nature and there are few powers to compel compliance with directives, ACM cannot forcibly transfer a detainee who has expressed a desire to remain in their current accommodation without risking allegations of inappropriate use of force.

The Department states that the complainant made an allegation to the ACM Operations Manager at 5pm on 19 June 2002. The Department says that she stated that she was having difficulties with some of the detainees in Charlie Compound where she was accommodated. The Department states that the ACM Operations Manager asked the complainant to put her concerns in writing and he would then talk with the detainees concerned. The Department states that on 20 June 2002, the complainant provided a letter which made allegations of an attempted assault on or about 10 June 2002. The Department did not provide a copy of this letter with its response, however, a copy was provided by the AFP and is summarised below in section 2.6.2. The Department says that the complainant had not raised this allegation prior to 19 June 2002. The Department states that the complainant alleged that on or around 10 June 2002, a male detainee, Mr L, forced himself into her room, locked the door and then grabbed the complainant by the hand and attempted to drag her toward the bed. The Department states that the complainant claimed that after breaking free from Mr L she asked him to leave. The Department says that when the complainant threatened to call for help, Mr L left the room. The Department states that the complainant alleged that a bangle she was wearing was broken and a sheet hanging over her bed was torn.

The Department states that the complainant's Medical Progress Notes for the month of June 2002 show that she visited the Medical Centre several times for medical treatment and counselling sessions following the alleged attempted assault. The Department states that although the complainant did suggest that some of the detainees in Charlie Compound were bothering her, she did not make any mention of attempted assault.

The Department states that the matter was referred to the AFP and on 9 July 2002, the ACM Operations Manager received a letter from the AFP stating that they would not be able to accept the matter for investigation. The Department states that the matter was then referred to the Western Australian Police (WAPOL) in Derby. The Department states that WAPOL chose not to take further action as the detainees involved had moved interstate.

The Department states that at 10.45pm on 28 July 2002, the complainant approached the ACM Shift Supervisor and stated that she and her daughter had been assaulted by a detainee. The Department states that the ACM Shift Supervisor spoke with Mr P who had allegedly attacked the complainant. The Department states that Mr P explained that he had only acted in retaliation when the complainant accosted him. The Department says that Mr P denies ever attacking the complainant's daughter. The Department states that the complainant, Mr P and two detainees who claimed to have witnessed the incident were all requested to provide a written statement of the events.

The Department states that Mr P provided a statement that the complainant began the altercation by spitting on him near the TV room. The Department states that this is contrary to Amnesty's allegation that the complainant was spat on by Mr P. The Department says that Mr P stated that another detainee was nearby when the complainant began to slap him. The Department states that a statement from that detainee supported Mr P's claim that the complainant instigated the physical assault and that no children were present at the time. The Department says that a further detainee, Mr L, also supported the claim that the altercation began with the complainant slapping Mr P and also stated that the complainant's children were not present during the altercation.

The Department states that at the time that the complainant made the allegation of attempted assault, both she and her daughter were taken to Curtin IRPC Medical Centre. The Department states that the complainant had a swollen and bruised left ring finger which was treated with Hirudoid cream, Primapore and Panadiene for the pain. The Department states that the complainant's daughter had a small reddened area on her left upper arm and was treated with Hirudoid cream and Primapore. The Department says that the complainant was unable to explain how she injured her finger. The Department says that a full range of motion in the complainant's hand and finger was noted. The Department states that neither the Incident Report nor the medical notes record that the complainant's clothes were torn. The Department states that on 29 July 2002, the day after the alleged attempted assault, the complainant returned to the Medical Centre and medical staff noted that her right ring finger was swollen and bruised with a reduced range of motion. The Department states that her right ring finger was strapped and Panadiene was given to her for the pain. The Department states that the injured right ring finger was in addition to the left ring finger she had reported to medical staff the day before. The Department states that on 1 August 2002, the complainant was taken for an x-ray of her injured right ring finger and a fracture was noted.

The Department states that the matter was referred to the AFP on 1 August 2002. The Department states that the AFP advised that successful prosecution was unlikely and therefore did not accept the matter for further investigation. The Department states that the allegation that the complainant's daughter was assaulted was referred to the Department of Community Development.

The Department states that on 17 and 18 February 2003, members of the AFP visited Baxter IDF to conduct further investigations into the complainant's allegations of assault. The Department states that the complainant and witnesses were interviewed in relation to both the 19 June 2002 allegation and the 28 July 2002 allegation. The Department states that the AFP advised that following these interviews, they again decided that due to a lack of evidence to support a criminal prosecution, they would not take further action.

The Department states that on 7 September 2002, the complainant, her husband and two children were transferred to Baxter IDF. The Department states that the complainant and her husband are experiencing ongoing marital difficulties which have resulted in them being accommodated separately. The Department states that a management plan dated 5 March 2001 placed the two children in the care of the complainant with her husband being accommodated separately. The Department states that it has undertaken to assist with a divorce process, pending advice on the legality of the complainant and her husband obtaining a divorce in Australia where they are not legal residents.

The Department states that on 22 September 2002, two weeks after being transferred to Baxter IDF, the complainant lodged a request to see the Department form to discuss her and her daughter being relocated to the Blue 2 Compound where her husband was residing and where the other Sabian Mandaeans are accommodated. The Department states that this request followed a decision by her son to live with his father. The Department states that the complainant advised that she wished to move there to be in the same compound as her son. The Department states that on 23 September 2002, the complainant and her daughter were relocated to the Blue 2 Compound. The Department states that her husband and son also lived in Blue 2 Compound although they were located in a different accommodation unit. The Department has since advised on 8 November 2004, that the complainant, her husband and two children were released from detention on 21 June 2004 following the granting of a Permanent Visa (subclass 202) under Ministerial Intervention powers. The Department advised that transport to Sydney was arranged for the complainant and her daughter and transport to Adelaide was arranged for her husband and son. The Department has advised that it does not have the complainant's contact details.

Further information was requested from the Department on 9 December 2003 in relation to discussions with the complainant about her accommodation, a response to which was provided on 23 February 2004. The Department advised that it had provided all of the information and evidence that it had in relation to relocating the complainant.

2.4 Description of relevant evidence from the Department

2.4.1 ACM Incident Report dated 23 September 2001

This Incident Report provides details of an allegation made by the complainant that on 14 September 2001, a male detainee had beaten her, ripped her clothes and hit her daughter. The Incident Report states that the complainant was immediately taken to the Medical Centre for treatment where medical staff noted that there was no evidence of any bruising or other injury, nor was there evidence of any trauma. The Incident Report notes that this matter was referred to the ACM counsellor who stated it was her opinion that this alleged assault was due to an ongoing dispute between the two families involved. The Incident Report states that both families had made complaints about the other family and that ACM staff were providing counselling to both families to try to resolve the on-going problem. The Incident Report recommends that the two families be provided with separate accommodation. The Incident Report states however, that both families refused to move from their accommodation and the complainant threatened to kill herself if she was forced to move. The Incident Report states that the complainant was constantly making threats to her neighbours and causing disputes within the compound.

The Incident Report states that on 22 December [sic September] 2001, the complainant was escorted to the interpreter's office and was spoken to by the Assistant Operations Manager and the Detention Supervisor. The Incident Report states that numerous requests were made for her to cease her verbal abuse and aggressive behaviour towards the family located next to her room and she was advised that alternative accommodation arrangements had been made for her. The Incident Report states that the complainant refused to comply with these instructions and became aggressive. The Incident Report states that she was instructed on three occasions that she would be relocated to India Compound, however she refused to comply. The Incident Report states that two officers then assisted in relocating her, however she started to spit, bite, scratch and kick them. The Incident Report states that the complainant was met by an interpreter and a medical officer at India Compound and a full medical examination was conducted, during which bruising to right upper arm was noted and she complained of a headache and back pain. The Incident Report states that she was then relocated back to Charlie Compound.

2.4.2 Incident Report dated 20 June 2002

The Incident Report states that at 5pm on 19 June 2002, the complainant advised the ACM Operations Manager that she was having problems with some of the detainees in the compound. The Incident Report states that the complainant had previously been discussing a move of compounds with the ACM Operations Manager and arrangements were being put into place. The Incident Report states that the complainant told him that some of the men pick on her and make jokes about her and that she had had enough. The Incident Report states that the ACM Operations Manager told the complainant to put her concerns in writing and that he would speak with the detainees concerned.

The Incident Report states that on 20 June 2002, the complainant delivered a letter in Farsi to the ACM Operations Manager. The complainant alleged that on or around 10 June 2002, a male detainee, Mr L, forced himself into her room, locked the door and then grabbed her and attempted to drag her towards the bed. The Incident Report states that the complainant claimed that after breaking free from Mr L, she asked him to leave and that when the complainant threatened to call for help, Mr L left the room. The Incident Report states that the complainant alleged that a bangle she was wearing was broken and a sheet hanging over her bed was torn. The ACM Operations Manager reports that he told the complainant that the best course of action was to refer the matter to the Police and she agreed. He said that he also informed her that he would speak with Mr L about his behaviour towards her and told her to inform an officer if she ever feels threatened. The Incident Report states that the Deputy DIMIA Business Manager was informed of the matter and a copy of this Report and the complainant's letter were faxed to the AFP.

2.4.3 Incident Follow-Up Report dated 9 July 2002

The Incident Report records that a letter was received from the AFP which states that it is not able to accept the matter for investigation and suggests that the matter be referred to WAPOL in Derby. The Incident Report states that the matter was referred to WAPOL.

2.4.4 Incident Follow-Up Report dated 24 September 2002

The Incident Report records that WAPOL advised that this incident has been placed on its files for future reference. However, due to the fact that the detainees involved have moved interstate, no further action will be taken.

2.4.5 Incident Report dated 29 July 2002

The Incident Report states that at approximately 10.45pm on 28 July 2002, the complainant approached the ACM Shift Supervisor and stated that she and her daughter had been assaulted by a detainee in her compound, Mr P. The Incident Report states that the complainant was escorted to the Medical Centre for examination and the complainant was found to have a swollen and bruised left ring finger and was treated with Hirudoid cream, Primapore and Panadiene. The Incident Report notes that the complainant's daughter was found to have a small reddened area on her left upper arm and was also treated with Hirudoid cream and Primapore.

The Incident Report states that the ACM Shift Supervisor spoke with Mr P, who stated that he had hit the complainant only in retaliation after she had accosted him and denied touching her daughter. The Incident Report states that the ACM Operations Manager spoke with the complainant on 29 July 2002 and she repeated her claims and requested that the police become involved. The Incident Report states that he spoke with Mr P who reiterated his statement to the ACM Shift Supervisor that he had only retaliated and he did not hit the young girl. The Incident Report states that the ACM Operations Manager requested Mr P and any other detainee who had witnessed the incident fill out a report and provide it to ACM as soon as possible. The Incident Report states that the complainant will also be requested to complete a written report of her version of events. The Incident Report states that Mr P has been ordered not to approach the complainant or her family. The Incident Report also states that once all of the information had been received the matter would be referred to the Australian Federal Police for investigation. The Incident Report states that the ACM Shift Supervisor informed the Acting Business Manager of the Department of the incident.

2.4.6 Incident Follow-Up Report dated 30 July 2002

The Incident Report states that at 1100 hours on 30 July 2002, the ACM Operations Manager spoke with the complainant and asked her again to put her allegations regarding this incident in writing. The Incident Report states that by 1700 hours, statements had been received from the complainant, Mr P and two witnesses. The Incident Report recommended that the matter be referred to the AFP.

2.4.7 Incident Follow-Up Report dated 4 August 2002

The Incident Report states that the complainant had x-rays of her right ring finger at Derby Regional Hospital on 2 August 2002 and the x-rays confirmed a transverse fracture of the finger. It is recommended in the Incident Report that the Department refer this matter to the AFP.

2.4.8 Incident Follow-Up Report dated 12 August 2002

The Incident Report states that on 12 August 2002 ACM received advice from the AFP that with successful prosecution being highly unlikely, the matter has not been accepted for investigation.

2.4.9 Complainant's statement dated 30 July 2002

The complainant states:

Due to a situation and conflict with my husband I was forced to leave my husband and live separately for the last 8 months. Now, as a result, I am living with my two children in difficult circumstances without any protection in this camp.

It is a long time that I am living with my children in the Charlie Compound. Here are many Afghan and Pakistani single resident who always are abusive to me and disturb our tranquillity. Even they are trying to sexually abuse and insult me by using course language.

With due attention to this I reported the issue to DIMIA and ACM and explained my conditions and requested to be transferred to another compound. Authorities in both offices did not pay any attention to the matter.

Recently, an Afghan boy by the name of [Mr P] with the provocation of another by the name of [Mr N] attacked me. Whenever this person passes me use bad language and treat me in inhumane and irrational manner.

On 28/07/02 he passed in front of my room where I was sitting at my door alone using bad language. When I asked him why he is doing this to me he then physically abused me. He beat at my chest and then mouth and head. In a self-defence I do not know how I injured my finger that caused a lot of pain. Now, I reporting that I feel it been broken (fourth finger).

My children were sleeping at the time; they came frightened to me, even this person beat her on the arm bruises are clear evidence.

The next day I met deputy centre manager and requested him to take action but faced with out paying attention to my complaint. Even he did not listen to me and nothing was recorded in writing about my complaint. I also visited the centre medical clinic for my daughter and my treatment; they ignored and made fun of me.

The complainant further states:

I came to Australia and hoped to be protected with my children. Whereas I realised that not only there is no respect for woman and children but been sexually assaulted and no body is protecting me in this centre. Therefore I am requesting the federal police to investigate my complaint because I do not feel my self and my children safe here.

2.4.10 Statement of Mr P dated 30 July 2002

Mr P states that on 28 July 2002, an Iranian woman:

spit on me near the tv room and then she left toward her room. I did not say anything to her on that moment. Later, I saw her near the toilet and asked her why did she done to me, [another detainee] was also nearby. She called me closer to her bit far from her room and started shouting and arguing then she slapped me at my face. The reason that she wanted me to be far from her room was that she told me her children are sleeping. Children were not involved in the incident; alleged involvement is a lie.

2.4.11 Statement of detainee who witnessed events on evening of 28 July 2002

This detainee stated:

I would like to say something as a witness in regards to [the complainant] and [Mr P]. On Sunday about 9-10 pm I wanted to go to toilet, near the toilet [the complainant] and [Mr P] were coming toward me. [The complainant] told me that this boy swear at and insulted me. I asked [Mr P] why did you insult or use bad language. At this point she slapped [Mr P] and got involved in an argument with him and insulting each other. At that moment they were only one, her son and daughter were not present.

2.4.12 Statement of Mr L dated 30 July 2002

Mr L states:

On 28/7/02 evening I was sitting at the garden of Charlie Compound. [Mr P] was coming toward Charlie, [the complainant] was also there by at the same time. I do not know what happened the argument broke out between them I was approaching them [the complainant] slapped [Mr P]. [Another detainee] was also present there, no body else were there including [the complainant's] daughter.

2.4.13 Complainant's medical progress notes

The Department was initially requested to provide the complainant's Medical Progress Notes from June and July 2002. On 1 September 2004, the Commission requested the Department to provide the complainant's medical progress notes from 1 September 2001 to 30 September 2002, which were provided on 3 November 2004.

It appears from the medical progress notes that the complainant saw a Counsellor on 5 September 2001 and 12 September 2001 and complained of problems with her next door neighbours whom she said disrespected her. The medical progress notes also indicate that she saw a Counsellor on 14 September 2001 and complained of being assaulted by a male detainee who was her next door neighbour. The medical progress notes state that the complainant claimed she had been assaulted that morning by a detainee who hit her in the arm. She then made allegations that this man had knocked on her room door and told her words to the effect of 'you are beautiful, I like you, can I come in your room'. The medical progress notes state that the complainant interpreted his actions as sexual propositions and said that this had happened five times in the previous four weeks and she wished to inform the police about this man's actions.

The medical progress notes indicate that on 16 September 2001 she stated that she did not want to move from Bravo compound but that if she had to then she would prefer to go to Delta Compound. On 15 September 2001, she became agitated when advised she would be moved to Charlie Compound and said she did not want to go there as she has no friends in Charlie Compound.

On 22 September she was escorted to the Medical Centre with her daughter sobbing hysterically after a physical altercation during an attempt to move her to India Compound. On 7 October 2001, the complainant expressed anxiety regarding verbal taunting of others in the camp, on 10 January 2002, she was distressed over an incident with a male detainee and on 3 May 2002, she was upset because of the way she and her daughter were being treated by other detainees.

The medical progress notes indicate that the complainant visited the Medical Centre several times for medical treatment and counselling sessions following the alleged attempted assault on 10 June 2002. She visited the Medical Centre on 11 June 2002 complaining of diarrhoea and abdominal pain. The notes state that on 14 June 2002, she attended a counselling session during which she stated that that she was depressed and felt lonely. The counsellor stated in the medical progress notes that coping strategies were discussed and emotional support and relaxation techniques were given. The complainant attended the medical centre again on 23 June 2002 and 27 June 2002 with unrelated medical problems. On 29 June 2002 she attended a counselling session during which she stated that some male detainees in the Charlie Compound were bothering her and sometimes knock on her door. The medical progress notes state that she decided to move to Echo Compound but some families there were not happy about it so she could not go, which made her very upset and angry. The medical progress notes state that on 1 July 2002, she attended another counselling session regarding her residence and was down and upset. She said that she did not want to move to Echo Compound and does not like other people to think about her in a humiliating way.

The medical progress notes indicate that on 28 July 2002, the complainant was brought to the Medical Centre in the company of her daughter and allegedly had been the victim of an assault by another detainee. The medical progress notes state that she was distressed but able to communicate, especially through her children. She said that she had been slapped several times around the head and somehow had injured her left ring finger. The medical progress notes indicated full range of movement in her hand and fingers, that the top of her left ring finger was swollen and warm to the touch and she was treated with Hirudoid, Primapore and Panadiene. On 29 July 2002, the complainant returned to the Medical Centre and it was noted that her right ring finger was swollen and bruised with a reduced range of motion. Her right ring finger was strapped and Panadeine was given to her for the pain. The medical progress notes confirm that on 1 August 2002, the complainant was taken for an x-ray of her injured right ring finger.

The complainant attended another counselling session 18 August 2002 during which her accommodation was discussed. The medical progress notes state that she said that she was feeling lonely as she is the only woman in the compound and that at times she feels unsafe. The medical progress notes state that she has already packed her bags and is ready to leave the compound and feels that wherever she is going would be better than where she is.

The Department also provided the medical progress notes of the complainant's daughter for 28 and 29 July 2002. The medical progress notes state that on 28 July 2002, she attended the Medical Centre with her mother after an alleged assault by another detainee. The medical progress notes state that she was upset and had sustained a punch on the upper arm. It is noted that she had a small reddened area and mark, similar to that which would be made by a knuckle striking the area. The medical progress notes state that she said that she had gone to help her mother and was then hit. She was treated with Hirudoid cream and Primapore.

2.4.14 Statement from the ACM Operations Manager dated 9 July 2003

The ACM Operations Manager states that he recalls that there were several families living in Charlie Compound but this number diminished as visas were granted until the complainant was the only female in the Compound with around twenty odd males. He states:

On a number of occasions [the complainant] would come to me and make a complaint about a certain detainee who she alleged was harassing her and calling her bad names. On each of these occasions she was offered alternative accommodation, which she refused. On one occasion she again stated that he had been rude to her and again I offered to shift her to Delta Compound with the other families, she said she would give me an answer the next day. On each occasion I organised for her to be placed on unofficial watch and alerted all staff to her alleged situation. No reports of any unusual activity were forthcoming. I spoke with the detainee concerned (just can't remember his name at the moment [Mr N], I think) and he denied any wrongdoing. He actually accused [the complainant] of making advances towards him and when he refuses she abuses him and says that she will get him into trouble. During this last incident [the complainant] told me she hurt her finger and broke a bangle in a scuffle with this [Mr N]. I asked her what she wanted to do and she said the Police should be informed. I then asked her to provide me with a full written statement as to what had occurred. She promised to do this the next day.

The ACM Operations Manager says in his statement that he received a telephone call from the Sabian Mandaean Association the following day questioning why nothing was being done for this woman. He says:

I explained what I knew and the person I was speaking to started alluding to attempted rape and assault. I assured him that I was not informed of anything of that type and would look into it. I gave him assurances that everything that could be done was being done for the woman and her family.

 

At one stage the family was set to move into Echo Compound (an enclosed compound) however the detainees resident in that compound complained bitterly and refused to let her enter. In the end she said it would be best if she stays where she is. Eventually we discovered that it was not her that the detainees were worried about but her son who was approximately 14 years old and they considered him a risk to be placed in the compound with young girls.

The ACM Operations Manager also states that the complainant:

would just complain and then go back to her compound as if nothing had happened. It was known that she had a 'boyfriend' or 'boyfriends' in Charlie compound and that this was the reason she did not want to leave.

2.4.15 Correspondence between the Department and the AFP

Copies of the correspondence referred to in the Incident Reports above were provided by the Department.

2.5 Amnesty's comments on response from Department

A copy of the response from the Department was provided to Amnesty on 17 March 2004 and Amnesty provided its comments on 7 June 2004. Amnesty states that it agrees that a woman alone with a group of men does not necessarily mean she is at risk. However, it states that the Department has failed to take into account the social background of this incident and to liken immigration detention to a 'social setting' in this case is highly inappropriate. Amnesty states that the Country reports and cases that it has received from the Islamic Republic of Iran provide strong evidence that Mandaean females are treated with contempt by some groups of Muslim males. Amnesty states that it is reasonable for the Department to accept that a number of these detainees have been living in a social context where any abuse, assault or the like is neither frowned upon by their society nor deemed unlawful under Islamic Shariah law. Amnesty states that therefore one cannot remove the possibility that such infractions will never happen and it is Amnesty's opinion that Mandaean females are thus at plausible risk if detained in a compound of Muslim males from Iran. Amnesty states that more consideration should therefore have been taken by the Department and/or ACM in the allocation of accommodation to Ms CD.

Amnesty provided a letter from the President of the Sabian Mandaean Association in response to the Department's response and to the Commission's request for further information. A summary of the information provided by the President is as follows.

The complainant made verbal requests to be transferred from the Charlie Compound to another compound on or about 29 and 30 July 2002 and the only alternatives that were offered to her were unsatisfactory.

The complainant has alleged that she was sexually assaulted by a Muslim male on the night of 28 July 2002. The next morning she telephoned her relatives in Sydney and told them what occurred and her relatives immediately telephoned him and he telephoned the Department in Sydney. These conversations were confirmed by email to the Department. The President of the Sabian Mandaean Association stated that on 30 July 2002, he had a telephone conversation with the manager of the Curtin IRPC and the complainant. He interpreted what the complainant was saying and it was during this conversation that the complainant alleged that a Muslim male had attempted to rape her the night before. This conversation was confirmed by fax to the Department on 30 July 2002 and by email to the Department. The President of the Sabian Mandaean Association then telephoned Amnesty to request assistance and Amnesty caused a letter to be faxed to the Department detailing the allegations.

When the complainant attended at the medical centre the following day for treatment for her injured finger, she was accompanied by her young daughter who acted as her interpreter. The President stated that under these circumstances it would be unsurprising if she did not mention the sexual assault in her daughter's hearing.

The President of the Sabian Mandaean Association also stated that the ACM Operations Manager's statement is of concern and that the vagueness of his claim that the complainant had a boyfriend shows, in the President's view, that he knew nothing of the kind but was merely repeating scurrilous gossip of people hostile to her and that these statements were made for prejudicial effect. He says that the suggestion that a mother with children in her care would engage in sexual promiscuity is highly unlikely and the police should have been called immediately. The fact that the ACM Operations Manager asked the complainant to provide him with a full written statement was inappropriate as she had very little command of the English language and was dependent upon the assistance of her daughter in composing the statement therefore this would inevitably restrict what she would feel free to say. The President of the Sabian Mandaean Association states that the matter should have been immediately placed in the hands of police officers trained in the interviewing of rape victims and she should have been interviewed through a qualified female interpreter.

The President also noted the ACM Operations Manager's statement that the other Mandaeans in Echo Compound did not want the complainant to move there as they were worried about young girls being in the same compound as her son who was 14 years old. The President questioned the view expressed by the ACM Operations Manager that it was inappropriate for a 14 year old Mandaean boy to be in the same compound as young Muslim girls but it was alright for the complainant and her young daughter to be the only females and the only Mandaeans in a compound with only young single Muslim men in circumstances where, in the ACM Operation Manager's view, the complainant was known to be sexually promiscuous.

The President of the Sabian Mandaean Association also noted that following representations on behalf of the Mandaeans by Amnesty, Minister Ruddock decided that upon the opening of Baxter IDF, the Mandaeans were to be placed in a separate compound by themselves. The President states that this was done and the Mandaeans including the complainant and her two children were placed in Blue Compound. He states that had there been any suggestion of sexual impropriety by anyone it is morally certain that it would have generated an immediate complaint to the Sabian Mandaean Association, however there has never been any such complaint.

The President states that the ACM Operations Manager's statement is not contemporaneous and his recollection is so poor that he does not recall correctly the name of the alleged rapist. He also notes that there has always been separate women's prisons for obvious reasons and says that the US Detention Standards require men and women to be segregated.

Amnesty provided further information on 7 September 2004. Amnesty states that on 26 July 2002, two days before the alleged assault, the Department was informed that the complainant was being sexually harassed and was in danger. Amnesty provided a copy of a facsimile from a representative of the Sabian Mandaean Association to an officer of the Department. It is undated but refers to a telephone conversation between them on 26 July 2002 regarding the complainant and states that the complainant is being sexually harassed by an Afghani Muslim detainee named [Mr L] and has made several complaints to employees of ACM but they have been fruitless. It also states that 'This woman is fearful of being raped as the man in question is becoming more daring in his pursuit of her' and a request is made for the complaint to be investigated as a matter of urgency.

Amnesty also provided three emails from the Department to the same representative of the Sabian Mandaean Association. The first is dated 30 July 2002 and states that the Department management seems aware of the complainant's circumstances in the camp and is investigating the allegations. The fax states that for reasons of her own choosing the complainant was not with the other Mandaeans in the detention centre. The second email is dated 2 August 2002 and states that he has passed on her message to Curtin IRPC and asked for clarification about the current care arrangements for the complainant. The third email is dated 5 August 2002 in which an officer of the Department states that he has been advised the complainant was offered the opportunity to move into another compound and refused to go so she is still in Charlie Compound by choice.

2.6 Other information

2.6.1 Australian Federal Police

The AFP provided a timeline of events which states that on 21 June 2002, ACM referred the complainant's allegation of assault on 10 June 2002 to the AFP for investigation. The AFP states that on 5 July 2002 it advised ACM that it could not investigate the referral and that due to the sexual nature of the assault, the matter should be referred to the WA Police. The AFP states that on 1 August 2002, ACM referred the complainant's allegation of assault on 28 July 2002 to the AFP for investigation. The AFP states that on 9 August 2002, it advised ACM that the referral had been rejected because it was unlikely that a prosecution could be sustained and its low priority relative to other matters being investigated by the AFP.

The AFP states that on 12 February 2003, a request for assistance was received by the AFP Perth Office from the AFP Adelaide Office and a review of the complainant's complaints was to be undertaken at the request of Amnesty. The AFP states that it attended Baxter IDF on 17 February 2003 and interviewed the complainant, Mr P, Mr N and Mr L and statements were taken from each. The complainant's statements to the police are summarised below. The AFP state that on 30 July 2003, it advised ACM that there was not enough evidence to institute any prosecutions as the evidence of the witnesses conflicted with the complainant's version of events and no other evidence was available.

2.6.2 The complainant's letter to the Department dated 20 June 2002 re incident on 10 June 2002

In this letter, the complainant states:

I would to report to you a case of sexual assault attempt by a Pakistani man against me. On or about June 10, I returned to my room after receiving some medication. Since I was tired I went to sleep. After a while, I heard someone was knocking on the door harshly. As I opened the door, I saw the compound runner, [Mr L], standing outside with a paper in his hand. He immediately forced himself into my room and locked the door behind him. He then grabbed my hand and tried to pull me toward the bed. After recovering from the initial shock due this unexpected incident, I clang to the doorknob and released my other hand from his hand. As a result of this struggle, my bangles were broken and the drapes hanging over the bed was torn. I stood firm and ordered him to leave the room immediately. After I threatened him that I would shout for help, he left the room.

It is noteworthy that prior to this incident I had complained to the Charlie officers about [Mr L's] harassment on different occasions.

Ever since, this man has been persistently harassing me by swearing at me and teasing me in front of everyone in the camp. As a result I am very fearful for the safety of my daughter and myself as other Afghans and Pakistani men also follow suit.

Please help me in this regard.

2.6.3 The complainant's police statement to the AFP dated 17 February 2003 re incident on 10 June 2002

The complainant states:

About 10am on 10 June 2002, I was asleep in my room after having just taken my medication at the medical centre of the facility. I had taken two Lithium and one Arapax tablet for depression I was suffering. My two children who share my room were in school at the time and the door to my room was locked. Whilst asleep I heard a loud knock at my door. I jumped from my bed in fright. I was very giddy and sleepy at the time and I opened the door. As I opened the door I saw a male detainee I know as [Mr L] standing just outside the door. [Mr L] is a Pakistani detainee who also resides and is the runner of Charlie compound. I would describe [Mr L] as about 30 years of age, of slim build, quite tall, clean shaven with short black hair. As the runner of the compound he delivers notices to the residents of Charlie compound when they have appointments with DIMIA or at the medical centre. I saw that he had a piece of paper in his hand, which he handed to me. It was a piece of paper with an appointment from DIMIA. At the time I did not see any other person outside the room.

I then saw [Mr L] look around and then suddenly he was in my room. He locked the door behind him and then grabbed me and held me around the chest from my front. I started crying and shouted for him to leave me alone. I grabbed a hold of the bed railing with my hand and tried to push myself away from, him. As I did this I leant into the curtain behind me which then fell down. Eventually he let go of his hold around my chest and tried to remove my hand off the bed rail with his hands. He kept trying to push me onto the bed. He then pulled my hand off the bed rail. As a result my hand knocked against the rail and the bracelet I was wearing broke off. I was then managed to grab a hold of the door handle with my other hand and I opened the door. When the door opened he ran out.

As soon as he left the room I locked the door behind him. I did not see anyone outside the room as he left. I was very frightened and sat on my bed to try to calm down. My hand was hurting and I felt pain in my chest and heart. About an hour later I left my room to try to find my friend in another compound. She was not in her room. I later found her in the medical centre and I told her what happened. I do not report my injuries to anyone at the medical centre.

A short time later I went to the Australian Correctional Management office with my friend. I told an ACM officer what had happened. That same day I explained what happened to a DIMIA officer. After speaking to the DIMIA officer I wrote a letter detailing what had happened. The letter was provided to a number of agencies.

2.6.4 The complainant's police statement to the AFP dated 17 February 2003 re incident on 28 July 2002

The complainant states:

About 10pm on 28 July 2002, I was in my room after having dinner. My two children were sleeping in their beds. Whilst I was sitting in the doorway to my room I saw a resident of Charlie compound I know as [Mr P] walk past my doorway a number of times. Each time he walked past me he would look at me and use bad language. He said things to me like "fuck you". As he walked past me again I stood up and stopped about a metre and a half in front of him. At this time I said something to him like "I am older than you, I have two children, I didn't do anything to you. You should stop and don't say these rude things to me, it is not correct". He then responded with more rude words. He then slapped me on my face with an open hand, pulled my hair and slapped me again in the head. He then punched me in the chest with a closed fist. I felt pain each time he struck me. He then pushed me and I fell to the ground. I did not see anyone else in the area at the time.

The complainant also states:

Whilst on the ground I started shouting and crying. My children came outside near me and also started crying. Around this time a number of other detainees approached and stood around me. A few Iranian detainees spoke to me and tried to settle me down. Once I had settled down one of the Iranian detainees took my son back into our room. Another two Iranian detainees I know as and helped me to my feet and took my daughter and I to the medical facility. As I stood up I saw that my right ring finger was bleeding and I felt a lot of pain.

When I looked around I saw a few other detainees from Charlie compound standing around [Mr P]. I recognised one of these males as [Mr L]. I then walked with the two Iranian detainees to the medical centre. When I got to the medical centre a nurse looked at my finger and I told her what happened. The nurse treated my finger and told me she would make a report. I was given medication for the pain in my finger and head. Whilst in the medical centre my daughter showed the nurse a bruise she had received to her arm. As I left the medical centre I ran into an ACM officer [and told him] what had happened to me and asked to speak to Police.

The next day I spoke with several ACM and DIMIA officers to find out what was happening and I received no response. About a week later I wrote a letter detailing what had happened and I gave it to an ACM officer. The following week I received no further treatment for my finger, it was very painful and I could not sleep properly. I eventually went to Derby hospital where an x-ray found that I had a fractured finger. I received treatment for my fractured finger.

3 RELEVANT LEGAL FRAMEWORK

3.1 HREOC Act

Section 11(1)(f) of the HREOC Act provides that the Commission has the function of inquiring into any act or practice that may be inconsistent with or contrary to any human right. Section 20 (1)(b) requires the Commission to perform that function when a complaint in writing is made to it alleging such an act or practice. The expressions 'act' and 'practice' are defined in section 3 to include an act or practice by or on behalf of the Commonwealth, or under an enactment. Section 3(3) of the HREOC Act also provides that a reference to, or to the doing of, an act includes a reference to a refusal or failure to do an act. The expression 'human rights' is also defined in section 3 and includes the rights and freedoms recognised in the ICCPR, which is set out in Schedule 2 to the HREOC Act.

3.2 International Covenant on Civil and Political Rights

Article 10.1 of the ICCPR provides:

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

Article 10.1 extends to all deprivations of liberty, including that which occurs when a person enters immigration detention, and requires that minimum standards of humane treatment be observed in the conditions of detention. The United Nations Human Rights Committee (UNHRC) has stated that: 4

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

It is clear from UNHRC jurisprudence that the threshold for establishing a breach of article 10.1 is lower than the threshold for establishing 'cruel, inhuman or degrading treatment' within the meaning of article 7 of the ICCPR.5

Professor Manfred Nowak summarises this jurisprudence as follows:6

several general conclusions may be drawn for the interpretation of article 10.1: In contrast to article 7, article 10 relates only to the treatment of persons who have been deprived of their liberty. Whereas article 7 primarily is directed at specific, usually violent attacks on personal integrity, article 10 relates more to the general state of a detention facility or some other closed institution and to the specific conditions of detention. As a result, article 7 principally accords a claim that State organs refrain from certain action (prohibition of mistreatment), while article 10 also covers positive State duties to ensure certain conduct: Regardless of economic difficulties, the State must establish a minimum standard for humane conditions of detention (requirement of human treatment).

In other words, it must provide detainees and prisoners with a minimum of services to satisfy their basic needs (food, clothing, medical care, sanitary facilities, communication, light, opportunity to move about, privacy, etc). Finally it is stressed that the requirement of humane treatment pursuant to article 10 goes beyond the mere prohibition of inhuman treatment under article 7 with regard to the extent of the necessary 'respect for the inherent dignity of the human person'.

In my view, another basic need of detainees is that their safety and security whilst detained is guaranteed and that ensuring this is necessary for State Parties to fulfil their obligation to treat detainees with humanity and respect for the inherent dignity of the human person.

I also note that Joseph et al suggest that article 10.1 obliges States to provide protection for detainees from other detainees7 drawing from Concluding Observations on Croatia made by the UNHRC in which it was stated that the 'Committee is concerned at reports about abuse of prisoners by fellow prisoners and regrets that it was not provided with information by the State party on these reports and on the steps taken by the State party to ensure full compliance with article 10 of the [ICCPR]'.8

The content of article 10.1 has also been developed with the assistance of a number of United Nations instruments that articulate minimum international standards in relation to people deprived of their liberty, including the Standard Minimum Rules for the Treatment of Prisoners9 (the 'Standard Minimum Rules') and the Body of Principles for the Protection of all Persons under Any Form of Detention10 (the 'Body of Principles').

The Third Committee of the General Assembly in its 1958 report on the drafting of the ICCPR stated that the Standard Minimum Rules should be taken into account when interpreting and applying article 10.1.11 The UNHRC, established by the ICCPR as the most authoritative interpreter of the ICCPR, has also indicated that compliance with the Standard Minimum Rules and the Body of Principles is the minimum requirement for compliance with the obligation imposed by the ICCPR that people in detention are to be treated humanely under article 10.12

As a matter of international law, the Standard Minimum Rules and Body of Principles are not binding of themselves on Australia and there is no specific obligation to implement them in Australia. However, the Standard Minimum Rules and the Body of Principles do elaborate the standards which the international community considers acceptable and are relevant to interpreting the scope and content of the protection given to persons deprived of their liberty in article 10 of the ICCPR.

The Standard Minimum Rules and the Body of Principles are intended to describe in detail a model system of penal institutions. Immigration detention facilities are not penal institutions in the sense that they do not house convicted criminal or people charged with a criminal offence. Nevertheless, the Standard Minimum Rules and Body of Principles are expressed to set out minimum conditions which are accepted as suitable by the United Nations for the general management of institutions housing all categories of prisoner, and I consider that they provide valuable guidance in interpreting and applying article 10 of the ICCPR.

The Body of Principles is expressed to apply for the protection of all persons under any form of detention or imprisonment.

Principle 1 provides:

All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person.

Rule 8(a) of the Standard Minimum Rules provides:

Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate.

I note that immigration detention centres in Australia generally receive married, single and unaccompanied men and women as well as families, including children. Immigration detention centres are not penal institutions and I note the importance of keeping families together in circumstances of immigration detention. However, I consider that article 8(a) of the Standard Minimum Rules provides a guiding principle and that unaccompanied women should be accommodated separately from men.

3.3 Other Relevant Standards

I note that the Department advises that its detention services are provided in accordance with the Immigration Detention Standards (IDS), which were developed by the Department in consultation with the Commonwealth Ombudsman's Office. The Department states that the IDS relate to the quality of care and quality of life expected in immigration detention facilities in Australia and form the basis for the contract between the Department and the detention service provider. The Department states that the principles listed in the IDS underpin the provision of immigration detention services and the standard of care to be provided and the actions of the Services Provider must be guided by these principles.

I consider that the following principles and standards in the IDS are relevant to this complaint.

Under the section entitled 'Principles Underlying Care and Security' the IDS provides:

Respect for and the dignity of immigration detainees is to be observed and maintained in culturally, linguistically, gender and age appropriate ways.

Standard 1.3.2 provides that:

A secure and safe detention environment is established and maintained.

The performance measure for this standard is:

No instance of a detainee coming to harm as a result of risk not being identified, assessed, managed and ameliorated.

Standard 1.4.3.3 provides that:

All staff have an understanding of and are responsive to the cultural diversity, social and religious differences of detainees and how these may affect behaviour in the detention environment.

Standard 2.1.4.1 provides that:

Detainees have access to safe and secure accommodation.

Standard 2.1.4.2 provides that:

To the extent practicable and subject to the good order and security of the detention facility, and the safety of all those within it, detainees have access to accommodation which recognises the special needs of particular groups, including but not limited to families, unaccompanied minors/women/men and persons who are ill and/or have a disability.

Standard 6.8.2 provides that:

Detainees are protected from assault by other detainees, detention officers and others.

3.4 Conclusions in relation to the obligations imposed by article 10.1 of the ICCPR

Article 10.1 of the ICCPR imposes a positive obligation on its signatories to ensure that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Due consideration must be given to the conditions of detention under which people are held and this includes people in immigration detention. I consider that Rule 8(a) of the Standard Minimum Rules provides a guiding principle regarding the accommodation of men and women while they are detained. I also note that the IDS create a self imposed duty of care on the Department to provide detainees with safe and secure accommodation, free from the threat of assault by other detainees and that consideration must be given to those with special needs such as unaccompanied women and people of a religious minority.

I am therefore of the view that being provided with a safe place of detention, free from the threat of harassment, assault or sexual assault by other detainees, is part of the right to be treated with humanity and with respect for the inherent dignity of the human person and therefore forms part of the Department's obligations to detainees pursuant to article 10.1 of the ICCPR. Not providing a safe place of detention, especially where there is a known risk of potential harm, may lead to a State party being in breach of article 10.1.

4. PRELIMINARY ASSESSMENT LEADING TO A TENTATIVE VIEW

In this matter, I made a preliminary assessment of the available information. I then formed a tentative view that an act or practice of the respondent was inconsistent with or contrary to human rights. My preliminary assessment as to the tentative findings of fact and conclusions was as follows.

4.1 Tentative findings of fact

1. I formed the tentative view that on 22 September 2001 the complainant made an allegation of assault to the ACM Operations Manager.

   The Incident Report of 23 September 2001 and the statement of the ACM Operations Manager indicate that the complainant made an allegation of assault against a male detainee in her compound on 22 September 2001. He said in his statement that the complainant made a number of complaints about a detainee harassing her whilst she was accommodated in Charlie Compound. I noted that the ACM Operations Manager states that it was 'known' that she had a boyfriend or boyfriends in Charlie Compound, however I did not see how this was relevant to her allegation at the time or to her current complaint.

2. I formed the tentative view that the complainant and her daughter were the only female detainees in Charlie Compound with over 40 other male detainees from at least 5 June 2002 and may have been the only female detainees in that compound for a period of time prior to that date.

   The Department advised that the complainant and her daughter were accommodated in Charlie Compound at Curtin IRPC from late September 2001 until they were transferred to Baxter IDF on 7 September 2002. The Department was unable to advise of the exact date when the complainant and her daughter became the only female detainees in the Charlie Compound at Curtin IRPC, however it advised that by 5 June 2002, the complainant and her daughter were the only female detainees in Charlie Compound.

3. I formed the tentative view that from 17 June 2002, and possibly for a period of time prior to this date, the complainant and her two children were the only people of the Mandaean faith in Charlie Compound and that the majority of the other male detainees in Charlie Compound during this time were of a different faith and in particular, of the Muslim faith.

   The Department stated that as at 17 June 2002, the complainant was accommodated in the Charlie Compound with her two children. The Department stated that at this time there were a total of 46 detainees accommodated in the Charlie Compound and with the exception of the complainant and her daughter, all of them were male. The Department stated that two of these detainees were Christian, one detainee was from India whose religion was not confirmed, and the remaining detainees were Muslim.

4. I formed the tentative view that the complainant made a verbal complaint on 19 June 2002 and a written complaint on 20 June 2002 to ACM and the Department that on 10 June 2002 she had been the subject of an attempted sexual assault by a male detainee, Mr L. I was of the tentative view that the Department was aware of the fact and substance of this complaint from at least 20 June 2002 and that the complainant remained in Charlie Compound despite her complaints about this incident.

   The complainant's statement to the Department on 20 June 2002, her letter of August 2002, her statement to the AFP on 17 February 2003 and the ACM Incident Reports all indicate that the complainant claimed that on 10 June 2002, a male detainee, Mr L, forced himself into her room, locked the door and then grabbed the complainant by the hand and attempted to drag her toward the bed. The statements indicate that after breaking free from Mr L she asked him to leave and when she threatened to call for help, Mr L left the room. The statements indicate that a bangle she was wearing was broken and a sheet hanging over her bed was torn. I noted that the complainant did not mention this incident to the medical staff when she attended the Medical Centre for other reasons during the month of June 2002. I also noted that Incident Report dated 20 June 2002 indicates that while the ACM Operations Manager advised the complainant that he would speak with the detainee concerned about the incident, the Department has not provided any evidence of an investigation into the incident or of any statements taken from the detainee involved. Apart from the complainant's statements there is no available evidence to corroborate or disprove her version of events. I did note that the complainant's statements are consistent and that her version of events regarding this incident does not change over time and is the same no matter to whom she is relaying these events. While I am unable to determine on the evidence before me whether the incident occurred as alleged, I formed the tentative view that the Department and ACM were aware of the fact of the complaint and the substance of the complaint from at least 19 or 20 June 2002 and that the complainant and her daughter remained in Charlie Compound despite the complainant's complaints about this alleged assault.

5. I formed the tentative view that the complainant made a verbal complaint on 28 July 2002 and a written complaint on 30 July 2002 to ACM and the Department that on 28 July 2002 she had been the subject of a physical assault by a male detainee, Mr P. I was of the tentative view that the Department was aware of the fact and substance of this complaint from at least 30 July 2002 and that the complainant remained in Charlie Compound despite her complaints about this incident.

   The complainant's statement to the Department on 30 July 2002, her letter of August 2002, her statement to the AFP on 17 February 2003, and the ACM Incident Reports indicate that she claimed that at about 10pm on 28 July 2002, Mr P walked past her room where she was sitting in her doorway, and made offensive comments to her. The statements indicate that a verbal and then a physical altercation ensued and that Mr P slapped the complainant and punched her in her chest.

   I noted that Amnesty alleged in the original complaint that on 28 July 2002, Mr P harassed the complainant by making derogatory sexual remarks and then spat on her when she reproved him.

   Amnesty alleged that later that evening, he seized the complainant outside her room, attempted to rape her, tried to take her clothes off, and punched her in the face and struggled with her when she resisted, causing facial bruising, an injury to her right hand, and a broken finger.

   I noted that Amnesty's version of events in the original complaint is at odds with the complainant's statements and the information and evidence outlined above. Amnesty appears to allege that there were two incidents which occurred on 28 July 2002. Amnesty alleged that during the first incident, Mr P harassed the complainant by making derogatory sexual comments and then spat on her when she reproved him. Amnesty alleged that a second incident occurred later that evening. Amnesty alleged that during the second incident, Mr P seized the complainant outside her room, attempted to take her clothes off, tried to rape her and punched her in the face causing facial bruising an injury to her right hand and a broken finger.

   I noted that in her statement to the Department on 30 July 2002, her letter of August 2002 and her statement to the AFP on 17 February 2003, the complainant speaks of one single event during which Mr P made comments of an offensive nature to her and slapped her face and her head when she reproved him. The complainant alleges that he punched her in the chest and pushed her and that during the scuffle her dress was torn and she injured her finger. The complainant does not in any of these statements mention that there was a sexual element to the alleged assault or that there was a second incident later that night which involved a sexual assault or attempted rape. I note Amnesty's submission that due to cultural reasons, the complainant may not have felt comfortable complaining of an attempted rape, especially in front of her daughter, however I also note that the complainant had recently made a complaint of an assault involving a sexual element on 10 June 2002. I formed the tentative view that if there was a second incident on 28 July 2002 which involved an element of sexual assault or attempted sexual assault then the complainant would have included this in her statements to ACM or the Department or at least in her statement to the AFP which was given through a qualified interpreter some seven months later.

   Also of note is the differing evidence concerning the complainant's injured finger. The Department stated that during the incident on 28 July 2002, the complainant injured her left ring finger. The complainant's Medical Progress Notes indicate that following the incident, the complainant's left ring finger was swollen and tender to the touch but that there was a full range of movement in the hand and fingers. The Department stated that the following day, on 29 July 2002, the complainant attended at the Medical Centre again, complaining of an injured right ring finger and that this was in addition to the left ring finger that she had injured the day before. The Department stated that the complainant was unable to explain how this occurred. The Medical Progress Notes indicate that on 29 July 2002, the complainant's right ring finger was swollen and bruised with a reduced range of movement and that on 1 August 2002, an x-ray showed that her right finger was broken.

   In the original complaint, Amnesty alleged that the complainant's finger was broken during the attempted rape of her by Mr P. Amnesty did not specify which finger. In her statement of August 2002, the complainant says that after Mr P used abusive language to her, he began to physically assault her. She says that her dress was torn and that 'Being busy defending myself, I didn't notice that my little finger was injured. I was feeling a lot of pain. Now I can inform you that my little finger had been broken. 'In her statement of 30 July 2002 to ACM, she stated that Mr P used bad language and when she asked him why, he physically abused her. She stated that 'in a self defence I do not know how I injured my finger that caused a lot of pain. Now I reporting that I feel it been broken (fourth finger)'.In her statement to the AFP on 17 February 2003, the complainant describes Mr P passing by her using bad language and then physically assaulting her. She stated 'As I stood up, I saw that my right ring finger was bleeding and I felt a lot of pain'.

   The complainant stated 'the following week I received no further treatment for my finger, it was very painful and I could not sleep properly. I eventually went to Derby hospital where an x-ray found that I had a fractured finger. I received treatment for my fractured finger'.

   I noted that the complainant refers to only one injured finger which she states was broken. She does not mention two injured fingers in her statements. The Medical Progress Notes, while noting on one day that the injured finger was on the left hand and the following day that it was on the right hand, also did not state that there were two injured fingers. It is possible then, that there was an error in the Medical Progress Notes and that the complainant injured only one finger during the incident on 28 July 2002.

   For all of these reasons, I formed the tentative view that there was only one incident of assault complained of by the complainant on 28 July 2002 and that at the time the complaint was made the allegation was not of a sexual assault.

   I also noted that the statements from Mr P and the alleged witnesses to the incident indicated that there is some dispute over who began the altercation and what exactly occurred. There is also some dispute over whether the complainant's daughter was injured during the altercation although on the basis of the evidence I was of the tentative view that she did sustain a bruise to her upper arm. I was unable to conclude however whether this was as a result of being hit by Mr P, as alleged by the complainant. I was of the view that I did not need to make a finding on these facts. Whilst I was unable to determine whether the incident occurred as alleged by the complainant, I was of the tentative view that the Department and ACM were aware of the fact of the complainant's complaint of physical assault and of the substance of this complaint from at least 30 July 2002 when she put her complaint in writing.

6. I was of the tentative view that the Department was made aware of each of the complaints made by the complainant shortly after each alleged assault occurred, the first alleged assault occurring in September 2001. I was also of the tentative view that in light of the further allegations of assault in June 2002 and July 2002, the Department was clearly aware of the potential risks for the complainant (and her daughter) if she continued to be detained in Charlie Compound. Even if the Department did not entirely accept the complainant's version of events, the fact that from at least 5 June 2002, she and her daughter were the only female detainees in amongst a large group of male detainees, and of a religious minority amongst that group, should have led the Department to accommodate them separately from the male detainees.

The complainant says in both her statement of August 2002 and her statement to the Department and ACM dated 30 July 2002 that she had been living in Charlie Compound for a long time with single male youths who are continually harassing her and who she believes intend to sexually assault her. She stated that despite informing the Department of the incidents, her requests to be protected or to be transferred to another compound have been ignored. Amnesty also stated in its comments on the Department's response that the complainant had made verbal requests to be transferred to another compound on 29 and 30 July 2002. The complainant's Medical Progress Notes also indicate that on 18 August 2002, she attended a counselling session during which she said that she is the only woman in the compound and feels unsafe and has already packed her bags and is ready to leave the compound and feels that wherever she is going would be better than where she is.

The Department states that the decision to remain in Charlie Compound was made by the complainant and that she continued to decline the daily offers by ACM to be transferred to a more suitable compound. I noted however that the Department does not advise of the dates these offers were made, who made them, where it was proposed that the complainant would move and what her response was. In his statement dated 9 July 2003, the ACM Operations Manager states that on one occasion he offered to shift her to Delta Compound with the other families but does not advise when this offer was made or of her response.

The Department stated that the complainant and her children were offered to transfer to Echo Compound, however the detainees in that compound complained and refused to let her enter. I noted that the Medical Progress Notes indicate that on 29 June 2002 and 1 July 2002 the option of moving to Echo Compound was discussed with the complainant, however I considered that it appears that the complainant was told that she was not wanted there and that on the basis of this information, she decided not to move there.

I noted that the Department states several times in its response that the complainant was offered to move to India Compound, and attempts were made to physically move her there, however she violently resisted and threatened to kill herself if she was forced to move there. I understood that at the time of the attempt to move her to India Compound, it was an isolation compound, with a higher level of security and was used mainly to accommodate detainees who were exhibiting difficult behaviour or were at risk of self harm. I also noted that the incident involving the attempted move to India Compound took place just prior to being transferred to Charlie Compound and that she may have been taken to India Compound as punishment for not complying with the proposed move to Charlie Compound. I did not consider that the complainant's response in these circumstances was indicative of a general refusal to move to another suitable compound and did not justify the decision not to move her from Charlie Compound in June or July 2002 after the Department became aware of her complaints and of the potential risks for her if she continued to be detained there.

I also noted that the Incident Reports relating to the alleged assaults on 10 June 2002 and 28 July 2002 and the Incident Follow-Up Reports contain a section entitled 'Recommendations'. This section includes notes recommending referral to the AFP. I was of the tentative view that if offers were made to the complainant as a result of these incidents, as alleged by the Department, then they ought to have been noted as formal recommendations.

I was of the view that it was unnecessary for me to determine whether the complainant made requests to move compounds or offers were made to her to move and she refused. I considered that it sufficed to note that the complainant was under the care and control of the Department and that the obligation is on the Department to provide a safe and secure environment for her. I noted that the Department was made aware of the complainant's complaints of assault in September 2001 and again in June 2002 and July 2002, and despite being aware of the potential risks for the complainant if she continued to be detained in Charlie Compound, did not accommodate her and her daughter separately from the male detainees in Charlie Compound until she and her children were transferred to Baxter IDF on 7 September 2002.

4.2 Tentative conclusions

Having formed these tentative findings of fact, I then considered whether there was an act or practice done by or on behalf of the Commonwealth which was inconsistent with or contrary to the complainant's human rights.

4.2.1 Was there an act or practice done by or on behalf of the Commonwealth?

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

repeated conduct.13

An 'act' or 'practice' only invokes the human rights complaints jurisdiction of the Commission where the relevant act or practice is within the discretion of the Commonwealth, its officer or agents. If the automatic operation of a law requires that the act or practice be done by or on behalf of the Commonwealth, its officers or its agents, and there is no discretion involved, these actions and practices will be outside the scope of the Commission's human rights complaints jurisdiction.14

The Migration Act establishes a system of mandatory detention whereby all 'unlawful non-citizens'15 must be held in immigration detention16 until they are granted a valid visa or leave the country.17 The Commission in its report, Those who've come across the seas: Detention of unauthorised arrivals,18 found that these provisions in the Migration Act contravene Australia's human rights obligations under article 9 of the ICCPR and article 37 of the Convention on the Rights of the Child.19 Consequently, the Commission recommended that these provisions be amended.20 However, while this law remains in place, a person's detention under the Migration Act occurs by reason of the automatic operation of the law and would not constitute an act or practice into which the Commission could inquire.

On the other hand, the relevant decision in this case did not involve the automatic application of the law. The decision of where to accommodate a detainee within a detention centre is a decision which involves the exercise of discretion by the Department, its officers and the detention centre operators as the agent of the Commonwealth under the Detention Services Contract dated 27 February 1998. Decisions concerning where detainees are to be accommodated within a detention centre are, therefore, 'acts' done by the Commonwealth, as defined in section 3 of the HREOC Act, and within the Commission's complaints jurisdiction.

Section 3(3) of the HREOC Act also provides that a reference to, or to the doing of, an act includes a reference to a refusal or failure to do an act. The act or practice alleged is the decision by the Department and its agent to continue to accommodate the complainant and her two children in Charlie Compound after becoming aware of her complaints of verbal, physical and sexual assault. This act or practice may also be defined as a failure to act to move the complainant from Charlie Compound to another more suitable compound after becoming aware of her complaints. I came to the view that the failure to move the complainant was a 'failure to do an act' within the meaning of section 3(3) of the HREOCA and was therefore covered by this section.

I was of the tentative view that the act of the Department of continuing to accommodate the complainant in Charlie Compound throughout June, July and August 2002 and failing to move her to a more suitable compound in the circumstances, constituted an act or practice by or on behalf of the Commonwealth within the meaning defined in section 3(3) of the HREOC Act and which may be inquired into pursuant to section 11(1)(f) of the HREOC Act.

4.2.2 Was the act or practice inconsistent with or contrary to any human right?

As discussed under heading 3.4 above (Conclusions in relation to the obligations imposed by article 10.1 of the ICCPR), I formed the tentative view that being provided with a safe place of detention, free from the threat of harassment, assault or sexual assault by other detainees, is part of the right to be treated with humanity and respect for the human person pursuant to article 10.1 of the ICCPR and that not providing a safe place of detention, especially where there is a known risk of potential harm, may lead to a State party being in breach of article 10.1.

As noted above, I was of the tentative view that the complainant and her daughter were the only female detainees in Charlie Compound from at least 5 June 2002 and possibly were the only females in that compound for some time prior to that date until 7 September 2002.

I was also of the tentative view that the complainant made several complaints about problems with the men in her compound between September 2001 and September 2002 and that the Department was aware of these complaints. In particular, I was of the tentative view that the complainant complained that she had been physically assaulted and there had been an attempted sexual assault of her by a male detainee in her compound on 10 June 2002 and that the Department was aware of these allegations on 19 or 20 June 2002. I was also of the tentative view that the complainant complained that she had been verbally and physically assaulted by a male detainee in her compound on 28 July 2002. I was also of the tentative view that while some discussion took place regarding the complainant's continued accommodation in Charlie Compound through the months of June, July and August 2002, she continued to be accommodated with the male detainees in Charlie Compound until 7 September 2002.

I was of the tentative view that the Department was aware or should have been aware of the risks in accommodating the complainant, as a female and of a religious minority, in Charlie Compound with unaccompanied men of a different faith and that it did not take the necessary steps to protect her from those risks. I was of the tentative view that the Department had a duty of care to provide the complainant and her children with a safe place of detention, free from the threat of harassment and that failing to do so constitutes a breach of her human right pursuant to article 10.1 of the ICCPR to be treated with humanity and with respect for the inherent dignity of the human person. I was of the tentative view that regardless of whether the complainant requested to be transferred to another compound or offers were made to her to move and they were refused, the Department had an overriding duty of care to move the complainant to a safe place of detention once it became aware of the threat to her safety. I also considered that the complainant's resistance to the attempt to move her to India Compound in September 2001 was no justification for the decision not to move her from Charlie Compound to another more suitable compound once the Department became aware that she and her daughter were at risk and the conditions of their detention in Charlie Compound were not safe.

I was therefore of the tentative view that continuing to accommodate the complainant in Charlie Compound after becoming aware of her complaints of verbal, physical and sexual assault, in the circumstances that from at least 5 June 2002, she and her daughter were the only females in amongst a large group of male detainees and of a religious minority amongst that group, resulted in the Department failing to provide the complainant with a safe place of detention. I was of the tentative view that not providing her with a safe place of detention in these circumstances, especially where there was a known risk of potential harm, constituted a breach of her human rights pursuant to article 10.1 of the ICCPR.

5. THE SECTION 27 NOTICE

In accordance with section 27 of the HREOC Act, notice of my tentative view was given to the respondent (section 27 notice) and the respondent was invited to make further submissions orally or in writing or both. As a matter of procedural fairness, the complainant was also provided with a copy of the section 27 notice.

By letter dated 2 September 2005, the respondent stated:

I refer to the letter dated 13 May 2005 from Hon John von Doussa QC, President of the Human Rights and Equal Opportunity Commission (HREOC) inviting submissions from the Department of Immigration and Multicultural and Indigenous Affairs (the Department) under section 27 of the Human Rights and Equal Opportunity Commission Act 1986 ('the HREOC Act') about the Tentative View of the Commission in the complaint by Amnesty International Australia on behalf of former immigration detainee, [the complainant], into events at Curtin Immigration Reception and Processing Centre (Curtin) in 2002.

In June 2005, the Department advised that a large number of assorted records from the Curtin and Woomera detention facilities had recently returned to the Department which needed to be logged and collated. On that basis, the Department requested an extension of the 28 day period given to the Department for its response to the President's tentative view. Examinations of the files have not revealed any that relate to [the complainant].

The President found that the Department failed to provide [the complainant] with a safe place of detention because the Department continued to accommodate [the complainant] in Charlie Compound for several months after becoming aware of her complaints of verbal, physical and sexual assault, and because from at least 5 June 2002, [the complainant] and her daughter were the only females amongst a large group of male detainees. Furthermore, [the complainant] and her children were members of a religious minority amongst that group, in that they were Sabean Mandaeans in an otherwise all-Moslem compound.

The President stated that notwithstanding [the complainant's] express view that she remain in the compound, that not providing her with a safe place of detention, especially where there was a known risk of potential harm, constituted a breach of her human rights as defined by the HREOC Act.

The President stated that the department had an overriding duty of care to move [the complainant] to a safe place of detention once it became aware of the threat to her safety and that 'her resistance to an attempt to move her to India Compound in September 2001 is no justification for the decision not to move her from Charlie Compound'.

The Department accepts that [the complainant] should have been transferred to another place of detention regardless of her resistance to such a move.

The Department has sent a letter of regret to [the complainant] in respect of this matter. A copy of this letter is included at ATTACHMENT A.

You may also be aware that on 21 June 2005, the Migration Amendment (Detention Arrangements) Bill 2005 was introduced into the House of Representatives. The Bill was passed by the Senate on 24 June 2005 and given the Royal Assent on 29 June 2005, thus becoming the Migration Amendment (Detention Arrangements) Act 2005 ('the MADA Act'). In summary, the amendments made by the MADA Act now allow greater flexibility in tailoring detention arrangements, particularly for children and their families, which are appropriate for individual circumstances or, where appropriate; allowing release from detention. They also provide for formal independent monitoring of long-term detainees by the Ombudsman.

The letter of regret to the complainant referred to in the response from the Department states as follows:

I am writing to you on behalf of the Department to apologise to you and express regret about the circumstances surrounding your detention in the Curtin Immigration Reception and Processing Centre (CIRPC) between 19 June 2002 and 7 September 2002.

The Department accepts that the accommodation arrangements made for you were inappropriate in the circumstances of your particular case. The Department regrets that it did not take action to move you and your children into more appropriate accommodation at the time of your complaints of assault and attempted sexual assault in June and July of 2002.

Once again, please accept the Department's apologies for its lack of action in this particular case.

Yours sincerely

 

First Assistant Secretary

Unauthorised Arrivals and Detention Division

2 September 2005

6. FINDINGS

I have reviewed this inquiry in light of the letter of 2 September 2005 from the respondent and considered all the information afresh. As a result, I confirm all of the tentative findings of fact and conclusions set out under heading 4 above (Preliminary assessment leading to tentative view) and contained in the section 27 notice provided to the parties.

The respondent continued to accommodate the complainant in Charlie Compound after becoming aware of her complaints of harassment from other detainees since September 2001. This included being made aware on 19 June 2002 of an allegation that the complainant had been the subject of an alleged attempted sexual assault and being made aware on 28 July 2002 of an allegation that the complainant had been the subject of a physical assault. In addition, from at least 5 June 2002, the complainant and her daughter were the only females in amongst a large group of male detainees and of a religious minority amongst that group. The complainant and her children were transferred out of Charlie Compound to the Baxter IDF on 7 September 2002. In light of these findings, I conclude that the respondent failed to provide the complainant with a safe place of detention and that such failure constituted a breach of her human rights pursuant to article 10.1 of the ICCPR.

7. RECOMMENDATIONS

7.1 The power of the Commission to make recommendations

Where, after an inquiry, the Commission finds that an act or practice engaged in by a respondent is inconsistent with or contrary to any human right, the Commission is required to serve notice on the respondent setting out its findings and reasons for those findings. The Commission may include in the notice any recommendation for preventing a repetition of the act or a continuation of the practice.21 The Commission may also recommend (i) the payment of compensation to, or in respect of, a person who has suffered loss or damage, and (ii) the taking of other action to remedy or reduce the loss or damage suffered by a person.22

7.2 Submissions of the parties

In light of the letter of regret provided to the complainant by the Department referred to under heading 5 above, I invited the complainant's representative to make a submission on what, if any, recommendation I should make beyond the acknowledgement already made by the Department in its letter dated 2 September 2005 that the complainant should have been transferred to another place of regardless of her resistance to such a move and its written apology of the same date. If the complainant's representative was of the view that any further recommendations should include a recommendation for the payment of compensation, I asked that the submission address how such compensation should be quantified.

7.2.1 Submission of the complainant on recommendations

In a letter dated 28 September 2005, Amnesty provided the following submission:

In response to your letter dated 13th September 2005. Amnesty International welcomes the apology issued by the DIMIA; however we feel that several issues need to be clarified.

Firstly DIMIA make reference to [the complainant's] resistance to the Department's offers to relocate her. It is disingenuous for this to be referred to without recognition of the fact that the only alternative being offered to [the complainant] was to move back to the compound housing her ex-partner. Effectively the Department limited their offer to a choice between two alternate hostile environments. The subtext of the letter is that India compound constituted a 'safe place of detention' where [the complainant] should have been moved despite her resistance. This is incorrect and misleading, neither India nor Charlie compound represented a 'safe place of detention'. Possibilities which might have constituted a safe option for [the complainant] may have included relocation to a different detention centre or release into the community; however these were never offered by the department.

Secondly, Amnesty International welcomes DIMIA's indication in its letter to HREOC that in cases such as this, where appropriate detention arrangements are not available, the MADA Act could be used to allow release from detention.

Thirdly, in their letter to HREOC, DIMIA restate the Presidents finding that they were at fault in placing [the complainant], a Mandaean, in an all Muslim compound. However this isn't mentioned in their letter of apology to the complainant. Amnesty International feels that this issue is a central cause of the trauma experienced by [the complainant] and should be acknowledged in DIMIA's apology to her.

Amnesty International hopes that the Department is able to clarify these issues and would like to make the following suggestions as to the recommendations the President should make, with a view to compensating [the complainant] and ensuring that a human rights violation of this type does not take place again in a detention facility:

1. That DIMIA recognise that certain national, cultural, religious and ethnic groups are systemically hostile to other national, cultural, religious and ethnic groups and that the members of such groups should not be accommodated in the same compounds in detention facilities. In particular, a detainee should never be accommodated with groups who are related to the detainee's claims of persecution. This includes, but is not limited to, Mandaean and Muslim groups.
2. That DIMIA pay damages to [the complainant] amounting to, at a minimum, $500,000 to compensate for the psychological and physical trauma experienced by [the complainant] and her children, caused by DIMIA's failure in its duty of care. This sum would also compensate for future psychological problems suffered by [the complainant] and her children incurred as a result of the traumatic events in question and any consequent loss of earnings and treatment costs.
3. In line with the comments of the Sabian Mandaean Association (Appendix A) DIMIA provide a more substantive apology to [the complainant] which is in proportion to the fear and distress caused to [the complainant] as a result of DIMIA's mistakes.

    

7.2.2 Submission of the respondent on recommendations

The respondent was provided with a copy of the submissions made by Amnesty including the letter from the Sabian Mandaean Association in Australian Ltd. A response was provided on 26 October 2005, an extract of which is as follows:

DIMIA's responses to Amnesty's three recommendations are provided below.

1. That DIMIA recognise that certain national, cultural, religious and ethnic groups are systematically hostile to other national, cultural, religious and ethnic groups and that the members of such groups should not be accommodated in the same compounds in detention facilities. In particular, a detainee should never be accommodated with groups who are related to the detainee's claims of persecution. This includes, but is not limited to, Mande an and Muslim groups.

DIMIA makes every effort to ensure that all immigration detainees are treated, to the fullest extent possible, with dignity, humanity, in a culturally sensitive way, without discrimination of any sort, and with respect for their privacy, beliefs and differences. In doing so DIMIA is guided by relevant Commonwealth, State and Territory legislation, and takes into account Australia's international obligations. In addition there are a number of memoranda of understanding, protocols, and guidelines which supplement key documents such as the detentions services contract (the Contract) between the Commonwealth and the Detention Services Provider, Migration Series Instructions and Operational Procedures.

DIMIA's dedication to implementing the above mentioned principles is evidenced by the Immigration Detention Standards, which were developed in consultation with HREOC and other agencies such as the Commonwealth Ombudsman. DIMIA seeks to continuously improve the immigration detention framework, and new laws and policies implemented since the time when these incidents took place provide greater flexibility in the management and care of immigration detainees.

2. That DIMIA pay damages to [the complainant] amounting to, at a minimum, $500,000 to compensate for the psychological and physical trauma experienced by [the complainant] and her children, caused by DIMIA's failure in its duty of care. This sum would also compensate for future psychological problems suffered by [the complainant] and her children incurred as a result of the traumatic events in question and any consequent loss of earnings and treatment costs.

DIMIA regrets that it did not move [the complainant] into more appropriate accommodation within the network of Immigration Detention Facilities or seek alternative detention arrangements for her and her children. If [the complainant] wishes to pursue compensation, it would be best for her to seek legal advice in that matter.

3. In line with the comments of the Sabian Mande an Association [including that the letter of apology is trifling, inadequate and would cause [the complainant] further distress] DIMIA provide a more substantive apology to [the complainant] which is in proportion to the fear and distress caused to [the complainant] as a result of DIMIA's mistakes.

I take on board these comments and DIMIA is preparing a further, more fulsome apology to [the complainant] in regard to the conditions she experienced while in immigration detention. Once signed, a copy will be sent to you for your information.

7.2.3 Further submission by complainant on recommendations

In light of the complainant's submission dated 28 September 2005 and the Department's response, I brought the following matters to the attention of the complainant and asked that any amended submission be provided by 9 January 2006:

• The complaint currently before me was made on behalf of the complainant and not her children. Any recommendations made would therefore relate only to the complainant and not her children.
• There is no medical or other supporting evidence provided on behalf of the complainant (other than her medical progress notes and statements taken during a counselling session in August 2002) that goes to the trauma experienced by the complainant for which Amnesty International claimed $500,000 should recommended as compensation.

Amnesty responded by letter dated 24 January 2006 as follows:

I refer to your letter of 9 December 2005, and apologise for the delay in Amnesty International's response. In this letter you noted that [the complainant's] file contained no medical or supporting evidence (other than in her medical progress notes and statements during a counselling session in August 2002) that supports a compensatory claim of $500,000.00.

Amnesty International maintains that in view of the considerable trauma undergone by [the complainant], a compensatory claim is an appropriate response. Amnesty International considers that the evidence currently before the Commission provides a strong base to support a claim for compensation.

Prior to the assault on 28 July 2002, medical documents outline the psychological strain imposed on [the complainant] due to her living conditions in the Charlie Compound. From at least 5 June 2002, [the complainant] and her daughter were the only females among the 46 persons detained in the compound. Medical progress notes make reference to [the complainant's] anti-depressant use. In the report of 29 June 2002, the medical examiner reports:

'she [the complainant] looked gloomy and upset and crying. She stated that she's living in Charlie Compound some male detainees bother her and sometimes knock her door "

The report documents both the psychological strain of [the complainant's] living conditions and DIMIA's awareness of the problems facing [the complainant].

Medical evidence following the 28 July 2002 attack provides evidence of both physical and psychological harm. The report of 28 July 2002 documents [the complainant's] claim that she had been slapped several times around the head. The records show treatment for a finger injury resulting from the attack (later found to be fractured).

Amnesty International accepts that any findings made by HREOC will relate only to [the complainant] and not to her children. However, we submit that the medical report made on behalf of [her daughter] substantiates [the complainant's] claim for compensation, in that it speaks to the violence of the incident. The medical notes of 28 July 2002 state:

'Child upset and stated she sustained a punch to her upper arm - O/E small reddened area (similar to that which would be made by a punch to the area). Child stated she went to her mothers defence and was punched'.

In the medical interview on 28 July 2002, [the complainant] did not discuss the sexual element of the assault. It is of significance that [the complainant's] young daughter was present at the interview, and acted as a translator for her mother. The presence of her children may explain [the complainant's] hesitation in discussing the assault. [The complainant] gave a full account of the incident to the Manager of the detention centre on 30 July 2002. It appears that [the complainant] was at no stage given access to a qualified rape counsellor.

Amnesty International submits that the medical progress notes and statements during the August counselling session provide evidence of ongoing trauma experienced by [the complainant], resulting from her living conditions, her growing fear, and the two alleged assaults. Given this evidence, Amnesty International submits that a measure of compensation is appropriate in the present case.

The level of compensation submitted by Amnesty International is based on independent legal assessments received by the organisation. However, Amnesty International is not a legal organisation and as such is not qualified to stipulate the amount appropriate. We leave such determinations in the hands of the Commission.

Yours sincerely

7.2.4 My findings on a recommendation for financial compensation

I am satisfied that the complainant experienced feelings of anxiety and depression as a result of the actions of the respondent which I have found to have been a breach of her human rights and that it is appropriate that compensation be paid to her.

There is no judicial guidance dealing with the assessment of recommendations for financial compensation for breaches of human rights under the HREOC Act.

However, in considering the assessment of a recommendation for compensation under section 35 of the HREOC Act (relating to discrimination matters under Part II, Division 4 of the HREOC Act), the Federal Court has indicated that tort principles for the assessment of damages should be applied: Peacock v The Commonwealth (2000) 104 FCR 464 per Wilcox J at 483. I am of the view that it is the appropriate approach to take to the present matter. As such, so far as is possible by a recommendation for compensation, the object should be to place the injured party in the same position as if the wrong had not occurred: see also Hall v A & A Sheiban Pty Limited (1989) 20 FCR 217 per Lockhart J at 239.

The compensation claimed on behalf of the complainant in respect of general damages for pain and suffering would, in tort law, be characterised as 'non-economic loss'. There is no obvious monetary equivalent for such loss and courts therefore strive to achieve fair rather than full or perfect compensation: Sharman v Evans (1977) 138 CLR 563 at 589.

In reaching an appropriate figure I have made considered the following factors:

• the complainant experienced anxiety and feelings of depression as a result of the actions of the respondent which I have found to have been a breach of her human rights. This is evident from the information contained in the medical progress notes prepared during the course of the complainant's detention (summarised under heading 2.4.13 above).

• the complainant was detained in these circumstances for a significant period of time. She first made complaints of general harassment by other detainees in September 2001 and made specific allegations of an attempted sexual assault on 19 June 2002 and of another assault on 28 July 2002. From at least 5 June 2002, she and her daughter were the only females in amongst a large group of male detainees and of a religious minority amongst that group. The complainant and her children were not removed from Charlie Compound until 7 September 2002. Therefore, even after becoming aware of a complaint of an attempted sexual assault, the complainant continued to be detained in Charlie Compound for a further 11 and a half weeks.

• I note that the complaint before me was made only on behalf of the complainant and did not include a complaint by her children.

• No evidence has been provided to support the submission made on behalf of the complainant that compensation should be provided for future psychological problems.

• No evidence been provided to support the claim of a loss of earnings or treatment costs.

• I have made reference, in reaching a figure, to awards for general damages in discrimination cases such as sexual harassment cases in which there has been an element of 'pain and suffering' but no ongoing injury: see Federal Discrimination Law 2005 (HREOC, 2005), pp 276-294.

Taking into account all of these matters, I recommend that $15,000.00 be paid to the complainant by the Commonwealth.

7.2.5 My findings on other recommendations

7.2.5.1 Circumstances of detention

In relation to the first of Amnesty's submissions on recommendations set out at 7.2.1 above concerning the way in which people of different national, cultural and ethnic groups ethnic should be accommodated whilst in detention, the Department, in response, appears to suggest that the range of legislative mechanisms and standards already in place give the Department the ability to address the suggested recommendation, although they have not referred to anything that deals with the specific issue raised. In correspondence dated 2 September 2005 (set out under heading 5 above), the Department refers to the Migration Amendment (Detention Arrangements) Act 2005 that came into effect in June 2005 and states that this 'allows greater flexibility in tailoring detention arrangements, particularly for children and their families, which are appropriate for individual circumstances or, where appropriate, allowing release from detention. They also provide for independent monitoring of long term detainees by the Ombudsman'.

Clearly, the Department has a broad discretion as to the manner in which people are held in immigration detention. It is also clear that various immigration detention standards and other policy documents make reference to the need for the dignity of immigration detainees to be observed and maintained in culturally, linguistically and gender appropriate ways.

Nevertheless, I have formed the view that it is appropriate to make a recommendation in the terms suggested by Amnesty in order to address the specific circumstances raised by this complaint. Therefore, I recommend that in addition to the general efforts made by the Department to ensure that all immigration detainees are treated in a culturally sensitive ways, the Department should have particular regard to circumstances in which there may be a history of hostility between certain groups of people, whether for national, cultural, religious or ethnic reasons, and appropriate action should be taken, for example, by providing separate accommodation for those detainees. In particular, a detainee should not be accommodated with groups who are related to the detainee's claims of persecution.

7.2.5.2 Apology

As noted under heading 5 above, by letter dated 2 September 2005, the Department provided a written apology to the complainant. As a result of concerns raised by Amnesty and the Sabian Mandaean Association, by letter dated 26 October 2005, the Department agreed to provide a further, more fulsome apology and that a copy would be provided to the Commission (see 7.2.2 above). By letter dated 23 June 2006, the Commission was provided with a copy of a letter addressed to the complainant of the same date that states as follows:

I am writing to you on behalf of the Department of Immigration and Multicultural Affairs (DIMA).

On behalf of DIMA, I apologise for the treatment you received when you were in immigration detention at the Curtin Immigration Reception and processing Centre (IRPC). I acknowledge that your accommodation arrangements were not appropriate. We regret that we did not take action to move you at the time.

DIMA seeks to continuously improve the immigration detention framework and has made many enhancements since your time at Curtin IRPC. There are new laws and policies in place allowing greater flexibility in tailoring detention arrangements, particularly for children and their families. These enhancements will help to ensure that a situation such as that endured by you while in immigration detention could not occur again.

Once again, please know that DIMA deeply regrets the manner in which you were treated.

Yours sincerely

 

8. Action taken by the respondent as a result of the findings and recommendations

If the Commission finds a breach of human rights and it furnishes a report on the matter to the Attorney-General, the Commission is to include in the report particulars of any recommendations made in the notice23 and details of any actions that the person is taking as a result of the findings and recommendations of the Commission.24

Accordingly, the respondent was asked to advise the Commission whether it has taken or is taking any action as a result of my findings and recommendations. The Department's response to the recommendations is set out in the Introduction (heading 1.3 above).

I report accordingly to the Attorney General.

John von Doussa QC

President

1 August 2006 

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ATTACHMENT 1

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

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

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

(1) The functions of the Commission are:

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

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

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

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

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

In addition, the Commission is obliged to perform all of its functions in accordance with the principles set out in section 10A of the HREOC Act, namely with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights.

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

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

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

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Last updated 6 October, 2006.