Report of an inquiry: Mr Zacharias Manongga

Report of an inquiry into a complaint by Mr Zacharias Manongga Consul for the Northern Territory, Consul of the Republic of Indonesia that the human rights of Indonesian Fishers detained on vessels in Darwin Harbour were breached by the Commonwealth of Australia

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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 by Mr Zacharias Manongga Consul for the Northern Territory, consul of the Republic of Indonesia that the human rights of Indonesian Fishers detained on vessels in Darwin Harbour were breached by the Commonwealth of Australia. I have found that acts or practices of the Commonwealth were inconsistent with or contrary to the human rights of Indonesian fishers detained on vessels in Darwin Harbour as provided for under article 10(1) of the International Covenant on Civil and Political Rights.

Yours sincerely,

John von Doussa QC

President

September 2005

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Table of Contents

• 1. INTRODUCTION
• 2. OUTLINE OF COMPLAINT
• 3. CONCILIATION
• 4. INQUIRY PROCESS
  • 4.1 Visit to Darwin
  • 4.2 Other information
  • 4.3 Tentative findings and recommendations
    • 4.3.1 Response of DIMIA to my tentative findings and recommendations
    • 4.3.2 Response of AFMA to my tentative findings and recommendations
• 5. SECTION 29 NOTICE
• 6. FINDINGS
  • 6.1 Overview of detention arrangements in Darwin and conditions
  • 6.2 Specific conditions
    • Accommodation and wet weather
    • Sleeping arrangements and bedding
    • Personal hygiene
    • Clothing
    • Recreational activities
    • Emergency procedures
  • 6.3 Summary of findings
• 7. RECOMMENDATIONS
• 8. RESPONSE OF THE COMMONWEALTH TO THE FINDINGS AND RECOMMENDATIONS
• APPENDIX ONE
• APPENDIX TWO
• ENDNOTES

1. INTRODUCTION

This report concerns my inquiry into a complaint made to the Human Rights and Equal Opportunity Commission (the Commission) by Mr Zacharias Manongga, Consul for the Northern Territory, Consul of the Republic of Indonesia (Consul for the NT) that the human rights of Indonesian Fishers detained on vessels in Darwin Harbour were breached by the Commonwealth of Australia, Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) and Australia Fisheries Management Authority (AFMA).

I have inquired into the complaint made by the Consul for the NT, pursuant to sections 11(1)(f) and 20(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act).1

As a result of my inquiry, I have found that acts or practices of the Commonwealth were inconsistent with or contrary to the human rights of the Indonesian fishers detained on vessels in Darwin Harbour as provided for by article 10(1) of the International Covenant on Civil and Political Rights (ICCPR).

2. OUTLINE OF COMPLAINT

On 23 December 2003 Mr Manongga made a complaint to the Commission on behalf of Indonesian fishers who are detained on vessels in Darwin Harbour. Mr Manongga states that his complaint relates to the conditions and standards of their detention.

Mr Manongga states that Indonesian fishing vessels which are apprehended in the Australian Fishing Zone (AFZ) are escorted by the Australian Navy into Darwin Harbour. Once they arrive in the Harbour, these vessels are anchored away from the shore with the crew members on board. He states that the Indonesian fishers are detained in this way for periods of weeks. Mr Manongga raises a number of specific concerns about the conditions under which the Indonesian fishers are detained, these include that:

• The vessels are small, fragile and open which means that the Indonesian fishers are exposed to high temperatures, wind, rain and storms with no adequate means of protection. In the wet season the situation is completely unsatisfactory.
• The fishers have no means to dry themselves and no clean dry clothes to change into if they become wet in the rain.
• The fishers do not have access to fresh running water, toilets or means to wash themselves or their clothes other than the ocean.
• The fishers spend their days sitting or lying inertly on their boats. They are not provided with physical movement or mental stimulation and only on rare occasions have they been allowed to come ashore for a few hours.

3. CONCILIATION

The Commission endeavoured without success to effect a settlement of the matters giving rise to the complaint.

4. INQUIRY PROCESS

On 15 January 2004 my Delegate wrote to AFMA and DIMIA, advising them of the complaint. The Delegate noted that article 10(1) of the ICCPR and the Standard Minimum Rules for the Treatment of Prisoners2 (the Standard Minimum Rules) were most relevant to the complaint and sought AFMA and DIMIA's response to the complaint. The Body of Principles for the Protection of all Persons under any form of Detention3 (the Body of Principles) was later also identified as being relevant to the complaint.

4.1 Visit to Darwin

On 28 and 29 June 2004, myself and two officers of the Commission visited Darwin to investigate the complaint and, if possible, to attempt to resolve this matter.

During the visit myself and the Commission officers met with relevant AFMA, DIMIA and Barefoot Marine managers and staff, the Consul for the NT and his staff and inspected the conditions on the vessels that were moored at the time in Darwin Harbour and associated facilities. Digital photographs were taken of the conditions on the vessels. The photographs relevant to my findings are contained in Appendix Two to this report.

During the visit the officers of the Commission went to the Berrimah prison and conducted interviews with some of the fishers who were being detained there, and viewed the conditions under which the fishers are held at the prison. Prior to being transferred to the prison system, these fishers had been detained on their boats in Darwin Harbour for periods of time varying from 16 days to 1 month and 16 days. The conditions of detention at the Berrimah prison were superior to those on the boats. Fishers were provided with beds, bedding, toilets and showers, clean clothes and a range of recreational activities and work opportunities. Three out of the four men interviewed said they would rather be held in the prison then on the boats.

While in Darwin, Barefoot Marine provided the Commission with a copy of its Occupational Health and Safety Policy and Quality Manual Work Instructions.

4.2 Other information

Decision of the Territory Coroner

Mr Manongga provided the Commission with a copy of the decision of the Territory Coroner, Mr Greg Cavanagh, in the Inquest into the death of Mansur La Ibu delivered on 19 March 2004. The Territory Coroner found that the evidence disclosed nothing to criticise in relation to the performance of the ambulance officers, employees of Barefoot Marine, and officers connected with AFMA or DIMIA that had some responsibility for Mr Ibu prior to his death. The deceased died extremely quickly and despite some apparent difficulty in emergency communication and medical treatment, such difficulties were not causative of death.

The Territory Coroner found (at paragraph 59) that the deceased was held by Federal Government agencies for some weeks against his will as a virtual prisoner without charges being laid against him, without trial and without access to judicial review. The standard of such detention is to be deprecated; to keep seven men on a vessel such as the Yamdena for some weeks where their only shelter and sleeping accommodation is a small box is unacceptable. The situation is not made acceptable by the fact (as AFMA opined) that the fishers do not seem to mind such conditions. The Coroner recommended that where the detained crew members are not charged with any offence, they be repatriated home, as soon as reasonably practicable.

The Territory Coroner also recommended that the vessels and crews detained in the detention area be provided with a horn, sounding or other signalling device to be used in case of emergency.

Commonwealth Ombudsman Report

In July 1998 the then Commonwealth Ombudsman published a report titled, Administrative Arrangements for Indonesian Fishers Detained in Australian Waters. In that report, the Ombudsman concluded, inter alia, that:

Whilst the current arrangements remain in place DIMIA should take a more active role to fulfil its statutory responsibilities. In particular, DIMIA should ensure that arrangements, including the way that delegations are exercised, conform with current migration statutory and policy requirements.

Ongoing detention of the fishers on their boats in Darwin or in the present facility at Willie Creek, both involve unsatisfactory features, even for short stays. The fishers should be held in facilities of a reasonable standard appropriate to both the general length of detention and the particular circumstances of the fishers. .. A shore based facility near Darwin would also be warranted.

4.3 Tentative findings and recommendations

On 24 August 2004 I informed the parties of my tentative findings that the practice by the Commonwealth of detaining Indonesian fishers on their vessels in Darwin Harbour in the conditions and under the arrangements observed in June 2004 was contrary to article 10(1) of the ICCPR, even for short periods of detention. The conditions observed did not constitute humane conditions of detention as required by article 10(1) and are inconsistent with a number of AFMA's own Fisheries Detention Standards and certain standards articulated in the Standard Minimum Rules and the Body of Principles. The conditions were not safe or hygienic, did not provide adequate protection from the elements and only satisfied human needs at the most basic of levels.

On 24 August 2004 I also informed the parties of my tentative recommendations for preventing a repetition of the act or a continuation of the acts or practices identified in my tentative findings.

I invited the parties to make submissions in response to my tentative findings and recommendations. On 25 November 2004 and 3 February 2005 DIMIA made submissions. On 1 July 2005 AFMA made submissions. Those submissions are outlined in 4.3.1 and 4.3.2 respectively below.

4.3.1 Response of DIMIA to my tentative findings and recommendations

In its response, DIMIA submitted that the Standard Minimum Rules and Body of Principles are not binding on Australia. As such, my tentative view that the conditions and standards of detention are inconsistent with the Standard Minimum Rules and Body of Principles was not conclusive of the question of whether Australia is in breach of its obligations under article 10(1) of the ICCPR. DIMIA also stated that the Standard Minimum rules are intended to apply to penal institutions. As the fishers in question are not prisoners but held in administrative detention, there may therefore be significant differences in the application of the Standard Minimum Rules to immigration detention as compared with penal detention.

DIMIA stated that whilst the fishers in question may at some point be detained under the Migration Act 1958, the administration of their care and maintenance while in Australia is primarily handled by AFMA through its contractual relationship with Barefoot Marine. DIMIA does not have any contractual relationship with Barefoot Marine or any responsibilities for monitoring the performance of Barefoot Marine.

DIMIA also noted that, in order to clearly define the roles and responsibilities of DIMIA and AFMA in the detention and removal of illegal foreign fishers, DIMIA and AFMA are currently developing an Illegal Foreign Fishers Memorandum of Understanding and reviewing the current legislative framework regarding the responsibilities of officers under the Migration Act 1958 and Fisheries Management Act 1992 (FMA) for the detention of illegal foreign fishers.

DIMIA stated that its 'rapid repatriation policy' (introduced in July 2004) has reduced the average length of time fishers spend in detention from around five to six weeks to ten days. It stated that the success of the policy was, however, dependent on the timely provision of travel documents by the relevant consulates or embassies to enable illegal foreign fishers to return to their countries of origin.

DIMIA stated that Detention Facilities managed by DIMIA operate under the Immigration Detention Standards. However, it would be impracticable, if not impossible, to apply those standards to boat-based detention in Darwin Harbour.

DIMIA also noted that a multi-agency review currently being conducted into the long-term arrangements for the apprehension and detention of illegal foreign fishers in Australia's northern waters will consider the development of enhanced boat-based detention standards, enhanced procedures underpinning the rapid repatriation program and alternative detention arrangements.

In its letter of 3 February 2005, DIMIA sought to bring to the Commission's attention the Government's decision to implement new land based processing and detention arrangements for suspected illegal foreign fishers apprehended in the AFZ, attaching a copy of the media statement released by the Hon Senator Ian Macdonald, Minister for Fisheries, Forestry and Conservation on 31 January 2005.

4.3.2 Response of AFMA to my tentative findings and recommendations

In its response, AFMA stated that it takes seriously the dignity and welfare of fishers in boat-based detention and provides appropriate assistance to those in boat-based detention. It noted DIMIA's submission that the Standard Minimum Rules and the Body of Principles are not binding on Australia.

AFMA stated that fisheries detention occurs for a maximum period of 7 days and noted the rapid repatriation policy adopted by the Government in relation to illegal foreign fishers in July 2004.

AFMA stated that it has consulted DIMIA and other relevant government agencies to improve the standards of boat-based detention in Darwin Harbour and established a working group to consider suitable and practical actions to upgrade detention arrangements for suspected illegal fishers who are apprehended in the AFZ. It stated that it has implemented a range of new measures following the Commission's tentative findings and recommendations, though it acknowledged that further enhancements could be considered. It also stated that it has engaged a consultant to review the Fisheries Detention Standards and will closely monitor the compliance with those standards by Barefoot Marine (and any subsequent service provider).

AFMA also stated that AFMA and DIMIA are developing a Memorandum of Understanding to clearly define the roles and responsibilities of each in the detention of suspected illegal foreign fishers.

AFMA provided further detail about the proposals announced by the Minister for Fisheries, Forestry and Conservation on 31 January 2005. It stated that the land based facility to be established in Darwin will be managed by DIMIA as part of its network of immigration detention facilities, and meet the standards required by the Immigration Detention Standards. Legislative amendment will be required to enable the Darwin Detention Facility to operate as a fisheries/ immigration facility. AFMA stated that it has been informed by DIMIA that the construction aspects of the Darwin Detention Facility project attract scrutiny by the Public Works Committee, which process will have an impact on the timeframe for the commencement of the operation of the facility.

The transitory accommodation facility on Horn Island will also be land based, but operated by AFMA in accordance with the Fisheries Detention Standards. Fishers will remain on Horn Island until transferred to the Darwin Detention Facility. Fishers taken to Broome or Gove will be held in boat-based detention for short periods of time whilst initial processing and arrangements are being made to accommodate them on land or for removal as soon as reasonably practicable.

AFMA submitted that the establishment of the proposed land based detention facility in Darwin will address the Commission's findings and recommendations in relation to boat-based detention of suspected illegal fishers in Darwin Harbour.

AFMA advised that until the new arrangements are implemented the existing detention arrangements will apply: apprehended suspected illegal fishers will be detained in short term boat-based detention, police facilities or in existing DIMIA immigration detention facilities, depending upon their status.

AFMA stated that fishers held in boat-based detention are provided with safety and hygiene products, toiletries, mattresses (suitable within the practical constraints of the limited space on boats and exposure to the environment), new clothing, lamp oil and kerosene to fuel stoves on arrival in Darwin Harbour. Each fisher is also provided with a blanket and, on arrival into Darwin Harbour, given an appropriate briefing. Tarpaulins for protection and cover during inclement weather and additional cooking and heating fuel are made available on request.

AMFA stated that there are constraints as to what arrangements can be made in relation to the provision of toiletry and shower facilities whilst fishers are detained on their boats. It stated that it would consider alternative arrangements for fishers detained on their boat for a period exceeding 7 days.

AFMA also noted that it is currently considering the provision of reading materials and issue of recreational activities, and will seek advice from the Indonesian consulate with regard to the provision of culturally appropriate recreational activities.

5. SECTION 29 NOTICE

On 23 August 2005, I issued a notice to the respondent under s 29(2)(a) of the HREOC Act setting out my findings and reasons for them. Those findings and reasons are set out in section 6, below.

Under section 29(2)(b) of the HREOC Act, I may include in a notice issued under section 29(2)(a) any recommendations for preventing a repetition of the act or a continuation of the practice. I 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.4 My recommendations appear in section 7, below.

Under section 29(2)(e) of the HREOC Act, I must state in this report whether, to the knowledge of the Commission, the respondent has taken or is taking any action as a result of my findings and recommendations. I therefore invited the respondent to advise the Commission of those matters. The Commonwealth's response to that invitation is contained in section 8, below.

6. FINDINGS

6.1 Overview of detention arrangements in Darwin and conditions

Since 1988 the Commonwealth of Australia has maintained a policy of apprehending and prosecuting fishers who are suspected of fishing illegally in the AFZ. Once the fishers are apprehended, they are towed to Darwin, Gove, Broome or Thursday Island for processing and investigation of potential prosecutions under sections 100 and/or 101 of the FMA and detained. The focus of my inquiry is the detention of the fishers on their vessels in Darwin Harbour.

Suspected illegal foreign fishers are detained by fisheries officers under section 84 of the FMA when they enter Australian Territorial waters. Under s 164B of the Migration Act 1958, an Enforcement Visa is issued. The Enforcement Visa expires and a person must be released from fisheries detention if, a decision is made not to charge them, or once they are brought before a magistrate following a decision to charge them, or at the end of 7 days in detention, whichever happens first. Once the Enforcement Visa has expired, Indonesian fishers become unlawful non-citizens and are held in immigration detention until they are removed or depart from Australia. The removal of unlawful non-citizens is the responsibility of DIMIA.

Indonesian fishers who are charged with offences under the FMA stay on their vessels while the charges are further investigated and proceed through the court system. Fishers convicted of an offence under the FMA are usually fined and transferred to the Berrimah prison, where they are held for around 30 days pending arrangements being made for their repatriation. The usual practice is only to charge the master of the vessel and crew members who have previously been apprehended fishing in the AFZ, or repeat offenders. In reality, this means that charges are only brought against one or two people on each vessel.

When a decision is made to not charge a fisher, the period of time that they will spend in immigration detention will depend on whether the owner wants to bond back the vessel or not. Once an offence is committed under the FMA, the vessel becomes the property of the Commonwealth. Article 73(2) of the Convention on the Law of the Sea, provides that arrested vessels and their crew shall be promptly released upon the posting of reasonable bond and other security. Prior to 1 July 2004, fishers who were not charged with any fisheries offence remained on their vessel in immigration detention while a bond was arranged. AFMA advised that on average the bonding process could take up to 30 days. The bonding process included a maritime surveyor valuing the boat, the owner (who is usually in Indonesia) being contacted through the Consul to ascertain whether they would post the bond, and the bond being paid to the Commonwealth. Once it was confirmed that the bond had been paid, the crew were given fuel and food and escorted to the heads so that they could sail back to Indonesia.

Under the Government's Rapid Repatriation Policy, which came into effect on 1 July 2004, crew are no longer able to stay with the vessel until the bond has been raised and posted. Fishers who are not charged are repatriated by air as soon as repatriation can be arranged. AFMA advised that this means that the vast majority of fishers will be repatriated within 7 days, depending on flight schedules.

Where no charges are laid and the owner decides not to bond back the vessel, the fishers are repatriated to Indonesia by air as soon as can be arranged. Crew are held in immigration detention from the time a decision not to charge them is made until they are removed from Australia. DIMIA advised that in these circumstances, the crew are usually repatriated within 4 to 10 days of apprehension, depending on flight schedules. If no bond is deposited, the boat will be destroyed.

AFMA and DIMIA share responsibility for the conditions under which the fishers are detained. While the Indonesian fishers are held in fisheries detention, AFMA is ultimately responsible for the conditions under which they are detained. AFMA has contracted Barefoot Marine to manage the detention of fishers. While the fishers are in immigration detention, DIMIA is ultimately responsible for the conditions of detention. However, the administration of immigration detention arrangements is primarily handled through AFMA with the day to day service delivery being undertaken by Barefoot Marine.

In Darwin, the Indonesian fishers are detained on their vessels in the Harbour. The vessels are moored in a quarantine zone that is 200 metres from the Stokes Hill Wharf. The mooring area is the approved place of detention. What this means is that the vessels themselves become the detention facilities provided by the Commonwealth. The Commission went to the quarantine area and inspected the Indonesian fishing vessels moored there on 28 June 2004. Barefoot Marine has a mothership in the quarantine area which is moored 100 to 150 metres from the Indonesian fishing vessels. The Commission was advised that the mothership is staffed by employees of Barefoot Marine 24 hours a day. Checks of boats are undertaken every 30 minutes by a Barefoot Marine staff member in a dinghy. Photo 21 depicts the mothership.

Barefoot Marine is responsible for maintaining the vessels and making sure they do not sink and the general conditions of detention and treatment of the fishers. This includes providing the fishers with food and water and providing other goods, services and facilities in accordance with the Fisheries Detention Standards.

At the time of the Commission's inspection, five Indonesian fishing vessels were in Darwin Harbour, these included boats 18, 19, 20 and 24 and the iceboat. All boats were waiting to be destroyed as the bond had not been paid by the owners. Only two vessels had crew on board. The Commission boarded and inspected the conditions on board both these vessels. The large iceboat was inspected first. There were 11 crew members on the iceboat, Nusantara, and they had been in detention since 18 May 2004, a period of more than five weeks. The master of this boat was in the Berrimah prison as he had been charged with an offence under the FMA. Boat number 24 was the second boat inspected by the Commission, it had five crew on board who had only been detained for a few days. They were held in this boat as their vessel had sunk. The circumstances of these men highlight that fishers can be detained on fishing vessels, other than those on which they were apprehended and on which they work. The structure, size and conditions on this boat is more typical of the fishing vessels used by Indonesian fishers.

A key issue that I need to consider in this matter is what standards should be used to assess the conditions under which suspected illegal fishers are detained. Implicit in some of the responses to certain aspects of the conditions by DIMIA and AFMA is that the conditions are in some respects justified because they are the same as the living conditions under which the men live when they are at sea.

I am of the view that the appropriate standards that need to apply to this matter are the international human rights standards as contained in the ICCPR and further articulated in the Standard Minimum Rules and the Body of Principles. Any assessment of whether the conditions constitute a breach of human rights will always depend on the consideration of the particular circumstances and context against these standards.

For the reasons outlined below, I am of the view that the practice by the Commonwealth of detaining suspected illegal fishers on their vessels in Darwin Harbour is inconsistent with article 10(1) of the ICCPR and human rights under the HREOC Act. The longer the period of the detention, the more extensive are the range of services and facilities that the detention service provider needs to deliver. AFMA has advised that from April 2003 to April 2004, the average period of time that fishers were detained on their vessels was 33 days. I consider that while the period of time the fishers spend in detention may decrease under the new policy of Rapid Repatriation to a period of 7 to 10 days, the conditions observed in June 2004 are not adequate even for this shorter period of time.

The Commonwealth, through AFMA and DIMIA, detain suspected illegal fishers apprehended in the AFZ until they are removed or depart from Australia. I am of the view that, irrespective of the living conditions in a person's country of origin, if the Commonwealth of Australia is detaining a person and depriving them of their liberty, the standards that apply to the conditions under which they are held are those which are outlined in the ICCPR and the Standard Minimum Rules and the Body of Principles which assist in its interpretation. While there may be similarities between the conditions on the boats in Darwin Harbour and the conditions under which the fishers live on fishing trips at sea, there is one important difference. While fishing at sea, the fishers are engaged in employment, they are free to decide where they sail and where and when they moor their boats and for how long. This is not the case when they are detained in their boats in Darwin Harbour.

The Commonwealth has engaged in the practice of detaining suspected illegal fishers on their vessels since 1988. The situation has evolved over time. Each year Indonesian fishers continue to be apprehended in the AFZ and detained while charges against them are pursued or they wait for their vessel to be bonded or their repatriation by air to be arranged. The number of Indonesian fishers that are detained is not insignificant. DIMIA advised that from 1 January to 1 December 2003, 325 people from 83 vessels were held in Darwin Harbour. The conditions observed in June 2004 have been the subject of criticism in both the Commonwealth Ombudsman's report of 1998 and the Territory Coroner's report of March 2004.

I am of the view that insufficient attention has been paid to the management and planning of detention arrangements for Indonesian fishers over the years. It appears that insufficient Commonwealth funds have been allocated to provide humane conditions of detention for the fishers. Despite the suspected illegal fishers spending the majority of their time in immigration detention pursuant to the Migration Act 1958, I consider that DIMIA has not paid sufficient policy attention to this issue and has left management of the detention of the fishers primarily to AFMA. I am of the view that DIMIA needs to be more active in fulfilling its statutory and human rights obligations. AFMA has borne the primary responsibility for detention arrangements. It has developed the Fisheries Detention Standards and Barefoot Marine has been contracted to deliver services and conditions in accordance with these standards. As discussed below, I am of the view that the arrangements observed in June 2004 did not result in conditions of detention and treatment of the fishers consistent with Australia's human rights obligations.

I now turn to address some specific aspects of the conditions observed in June 2004 under which suspected illegal fishers were held in Darwin Harbour.

6.2 Specific conditions

Accommodation and wet weather

In his complaint to the Commission Mr Manongga stated that the vessels are small, fragile and open which mean that the Indonesian fishers are exposed to high temperatures, wind, rain and storms with no adequate means of protection. In the wet season the situation is completely unsatisfactory.

DIMIA advised that, if required, tarpaulins are issued to fishers to protect them from the harsh climatic conditions. AFMA advised that each vessel is provided with extra covering in the form of a tarpaulin and crews on board can erect it to counter any adverse weather. Generally, the crews have chosen not to erect them.

The fishing vessels moored in Darwin Harbour provide the accommodation for the Indonesian fishers. The vessels moored in Darwin Harbour on 28 June 2004 were inspected by the Commission. Photos of the vessels and the shelter they provide their crew can be seen in photos 9, 12, 16, 24, 26, 27, 29 and 30. The standard type of wooden fishing vessel that is used by the fishers is small and fairly fragile and does not provide adequate protection from the elements. While these vessels are used to accommodate fishers on their usual fishing trips, for the reasons outlined below, I consider that they do not constitute detention facilities provided by the Commonwealth that are consistent with Australia's human rights obligations. The nature of the living conditions provided by the boats are very different when a crew is living and fishing at sea, then when they are moored in one place in a harbour and are not free to come and go as they please.

It is clear that on the fishing vessels the crew generally finds protection from the elements in the cabin near the stern of boat. The Yamdena, which was the vessel that was the subject of the Coroner's inquiry, is typical of the fishing vessels used by Indonesian fishers. The dimensions of the wheelhouse where the seven crew slept was estimated as being 3 feet high, 4 to 5 feet wide and 5 to 6 feet long. The cabins on the standard fishing vessels are low and fairly narrow. This creates a confined space where the crew sleep and into which the crew have to crowd to be protected from the elements. The cabins generally have gaps or windows/ports at the side of the boat, which means that in heavy rain/storms the crew can be exposed to the elements through water coming in the sides.

During the inspection of the vessels, only one tarpaulin was observed that had been erected that looked as though it was in a good condition and had been provided by Barefoot Marine. This is depicted in photo 26.

During the visit to Darwin in June 2004, officers of the Commission interviewed four Indonesian fishers who were being held at the Berrimah Prison after being convicted of offences under the FMA. Three fishers advised that when it rained they got wet and they were not given tarpaulins. For example, Liken Wanton stated:

On Boat 18 there were 3 of us. . The boat has shelter on top but no shelter on the sides. There was a gap on the sides.It rained while I was on the boats. We just got wet. We were never given tarps.

Boat 18 is depicted in photo 24.

The Quality Manual provided by Barefoot Marine documents that the issuing of tarpaulins to the fishers can form part of the arrival procedures.

I am of the view that the accommodation and arrangements observed in June 2004 for the fishers in Darwin Harbour do not provide them with sufficient protection from the elements and in particular during harsh weather conditions.

I also consider that improvements need to be made to the processes for evacuating the fishers from their vessels in times of harsh/heavy weather conditions. DIMIA and AFMA has advised that in times of extreme weather, such as pending cyclonic conditions, the fishers are removed from their vessels and housed ashore. DIMIA advised that the Darwin Showground has been used in the past and most recently in February 2003.

While it is clear that the fishers would be evacuated if a cyclone warning had been issued, it, however, is not clear whether the fishers are evacuated from their boats in other quite harsh but not as extreme weather conditions, such as violent storms or periods of heavy and persistent rain in the wet season. The Barefoot Marine Occupational Health and Safety Policy, outlines the procedures to be followed in the event of the Bureau of Meteorology issuing a Tropical Cyclone Watch and when a Tropical Cyclone warning is issued. When a cyclone warning is issued, vessels are moved to cyclone anchorages in Bleesers or Hudson Creeks and the fishers are moved from their vessels and evacuated to a safe place until the cyclone is over.

I note that in March 2004 Mr Manongga wrote to AFMA expressing his concerns that despite bad weather, the fishers were not removed from their boats. AFMA has advised that during March 2004, 31 fishers were apprehended and taken to Darwin Harbour. Weather data from the Bureau of Meteorology for Darwin in March 2004 records that 413.8mm of rain fell during the month. From 18 March 2004 to 23 March 2004 during five of the six days more than 30mm of rain fell. There is no information before the Commission to suggest that the fishers were evacuated from their boats during this weather.

Two of the four fishers interviewed stated that they were on the boats during storms and were not evacuated from them. I consider that those arrangements were not adequate and inconsistent with the requirements of Standard Minimum Rule 10 which relates to accommodation. They did not provide sufficient protection from the elements and did not meet the requirements of health. Nor were they appropriate to the climatic conditions in Darwin. If fishers are detained on vessels, even for short periods of a few days, more detailed procedures and protocols need to be developed in relation to their evacuation and the management of heavy weather conditions. Due to the poor condition of most of the boats and the nature of the weather patterns in Darwin Harbour, I consider that evacuation of crews from boats should be extended to periods of very heavy and persistent rain in the wet season.

Sleeping arrangements and bedding

I am of the view that the sleeping arrangements in place in June 2004 were not consistent with the human rights of the Indonesian fishers being held on their boats. In the standard fishing vessel the crew sleep in the cabin near the stern of the boat, as this is the only part of the vessel that provides some protection from the elements. The sleeping arrangements in boat 24 which was inspected by the Commission are typical of the usual arrangements on the fishing boats. Generally, the sleeping area is small and confined. By necessity the four to six men usually detained on the boats sleep closely together and in cramped conditions. The roof of the cabin is low, which means that crew members cannot stand up straight in the cabin. The sleeping area also does not provide the fishers with any privacy. As outlined above, the cabins on these small fishing vessels allow the rain in through the gaps or windows/ports at the side of the vessel.

While the sleeping area in the iceboat was protected from the elements, the conditions were also crowded for the 11 crew members sleeping there.

Photos 1, 3, 4, 5 and 6 which were taken during the inspection document the sleeping conditions on the iceboat. The bedding on the boat included some cardboard boxes, a few old foam mattresses with torn covers and one or two blankets and pillows. The photographs show the crowded nature of the facilities. These arrangements do not meet the general standards of cleanliness required in detention facilities. Also relevant to the issue of hygiene and cleanliness, is that the iceboat's hull contained rotting reef fish. These fish had been held there for more than five weeks in ice, the stench of which pervaded the whole boat.

During the visit to Darwin in June 2004, Barefoot Marine advised that if the fishers complain that they are cold, blankets are bought from St Vincent de Paul and handed out. The detainees interviewed generally stated that they were not given blankets and that they were cold on the boats. For example, Leo Tobing stated:

We slept in the wheel house on the wooden floor. We were not given mattresses or blankets. It was cold during the night and we huddled together.

AFMA advised that in June 2004, nine fishers were apprehended and taken to Darwin Harbour. Data from the Bureau of Meteorology records that the minimum temperature in Darwin in June 2004 was 13.3 C. During this month there were 14 days were the minimum temperature was 18 C or below.

The Quality Manual provided by Barefoot Marine documents that the issuing of blankets to the fishers can form part of the arrival procedures. In its response to my tentative findings, AFMA advised that detained fishers are now issued with a blanket on their arrival into Darwin Harbour and mattresses suitable within the constraints of the limited space on boats and exposure to the environment.

I am of the view that in June 2004 Indonesian fishers were not provided with sufficient bedding to meet their basic human needs. They were not provided with mattresses, sheets or pillows by the Commonwealth. While blankets or other coverings had been obtained from St Vincent de Paul by Barefoot Marine in response to individual complaints, these were not in a sufficient quantity to keep the fishers warm during the winter months while detained in the middle of the harbour. Special attention also needs to be paid to the needs of fishers who are held on vacant boats because their boats have sunk, as they may not have any of their personal items with them. I am of the view that there was no overall system in place to ensure that the fishers were warm and had adequate bedding.

I am of the view that the sleeping accommodation and arrangements observed in June 2004 were not consistent with Standard Minimum Rules 10 or 19. The general accommodation arrangements were cramped and unhygienic and did not meet the health needs of the fishers. The fishers were not provided with a bed or sufficient bedding or bedding that was clean, inconsistent with Standard Minimum Rule 19.

Personal hygiene

In his complaint Mr Manongga states that the fishers do not have access to fresh running water, toilets or a means to wash themselves.

DIMIA and AFMA have advised in their responses that while no toilet or shower facilities exist on the vessels, fresh water for bathing is provided by Barefoot Marine on a daily basis. They state that the fishers have access to the same services and facilities that they would normally have while at sea.

Through the site inspection and interviews with detainees, the Commission ascertained that the fishers go to the toilet on the boat by either defecating or urinating off the edge of the boat or through a hole cut in the deck of the vessel. The raw sewerage goes straight into Darwin Harbour. The fishers wash themselves by splashing the cold water provided by Barefoot Marine over themselves or with the water from the ocean. Barefoot Marine provides soap for bathing. The fishers are not provided with towels to dry themselves. In its response to my tentative findings, AFMA advised that procedures have now been put into place to ensure that each fisher is provided with a towel on arrival into Darwin Harbour.

I am of the view that while these sanitation arrangements may be similar to those used by the fishers while fishing at sea, they fell well below minimum international human rights standards that detention facilities need to comply with. For example, Standard Minimum Rule 12 states that, sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature where necessary and in a clean and decent manner. Standard Minimum Rule 13 provides that adequate bathing and shower installations be provided. Clearly, these standards are not met by the conditions of detention observed in June 2004. Additionally, those arrangements were not consistent with AFMA's own Fisheries Detention Standards which state that toilet and sanitary facilities are provided for detainees to use as required, and these are kept in a clean condition and adequate bathing and shower installations are provided to enable every detainee to maintain hygiene by bathing or showering daily at a temperature suitable for the climate.

Clothing

Mr Manongga complains that the fishers do not have access to fresh running water to wash their clothes and have no clean dry clothes to change into when they become wet.

AFMA and DIMIA advised that the fishers are provided with products to allow them to clean their own clothes on board the vessel. Clothes are then hung on a suitable area of the boat to dry. DIMIA stated that where fishers only have one set of clothes, extra clothing is provided by AFMA on a needs basis. AFMA has advised that when drying is not able to be achieved, alternative arrangements are used, like taking the clothes to a laundrette.

During the visit to Darwin, the Commission was advised that the fishers receive extra clothes that are donated by the Muslim community, or if a fisher complains about not having sufficient clothing, clothes are purchased from St Vincent de Paul.

The Commission observed clothes hung on lines to dry on the outside areas of the boats. Photo 7 depicts clothes drying on the iceboat. The Commission also observed 200 and 500 litre drums of fresh water that could be used to wash clothes. Clothes are also washed in the ocean. One fisher who was interviewed stated that he was given no clothes. Another fisher stated that the Consul gave the crew a bag of clothes which included dresses. The detainees commonly complained about being cold on the boats. No detainees reported that they were given dry clothes after becoming wet in a storm.

I note that Standard Minimum Rule 18 provides that where a detainee is allowed to wear their own clothes, arrangements shall be made on their admission to ensure that it shall be clean and fit for use. Further steps need to be taken to actively assess whether fishers have adequate clothing, which is appropriate to the climatic conditions and the needs of hygiene. This would require the Commonwealth and the service provider going beyond responding to individual complaints that might be made about this issue and actively assessing the requirements of individual fishers and whether this can be met by the clothing they have with them. The Commonwealth and the service provider also needs to pay special attention to needs of fishers whose boats have sunk, particularly when they are held in vacant boats and may not have any of their personal items with them. Arrangements also need to be put in place to ensure that fishers can dry themselves and have a set of dry clothes to change into if they become wet in a storm. I am of the view that the arrangements observed in June 2004 were not adequate to meet the requirements of Standard Minimum Rule 18.

Recreational activities

Mr Manongga in his complaint stated that fishers spend their days sitting or lying inertly on their boats. They are not provided with physical movement or mental stimulation and only on rare occasions have they been allowed to come ashore for a few hours.

DIMIA stated that AFMA had advised them that in relation to exercise periods the fishers are taken off their boats for recreational or exercise activities at least twice weekly. AFMA advised that the activities last for around three hours. This activity depended on the number of persons detained. On most occasions recreational activities take the form of soccer or some other ball game. Additionally, persons are afforded, where possible, exercise during court appearances and consular visits. AFMA advised that it is considering the provision of reading material to fishers in detention.

During the visit to Darwin the two open areas near Stokes Hill Wharf used for recreational activities were inspected. The recreation areas are open grassed space near the shore of Darwin Harbour with shade provided for by trees. There are no table or chairs provided for the fishers. The first recreation area is depicted in photos 31 to 34. The second recreation area is depicted in photos 35 and 36. The Commission was advised that the fishers are taken to one of these two areas for three to four hours and they can play soccer or sit around and talk. While they are there they are given water. The Commission was advised that all the fishers are taken together and they walk from Stokes Hill Wharf to the recreation area and they are taken there a couple of times a week. This is supervised by three Barefoot Marine staff.

During the inspection of boat 24 and the iceboat, the only recreational facility observed was playing cards. The fishers on boat 24 were playing cards at the time of the visit.

The fishers that were interviewed at the Berrimah prison all independently and consistently told the Commission that the only recreational activity provided for them was being taken to an open area on a Sunday to play soccer and walk around. This was for periods of two to three hours. For example, Ridwan stated:

We were taken every Sunday off the boats to play soccer and walk around. We were given nothing to read on the boats.

Barefoot Marine has also provided the Commission with its Quality Manual Work Instructions. In the section dealing with Housekeeping and Extra duties at page 24 it states under the heading, Exercise Indonesian Crews, that every Sunday day shift are to transport all Indonesian crews to wharf area for exercise (a) soccer (b) walk.

I am of the view that the only planned recreational activities provided to the fishers was taking them to one of the two recreation areas for two to three hours on a Sunday where they can play soccer, sit on the ground and walk around. I consider that the opportunities for exercise, and to engage in meaningful recreational activities provided by the Commonwealth through its agent was inadequate. The boredom experienced by the fishers and lack of exercise and recreational activities needs to be addressed by the Commonwealth. I consider that the fishers should be provided with the opportunity to participate in meaningful work like activities, where they are able to earn points for work performed. These points could be used to purchase small personal items. If it is not feasible to develop a scheme of this nature for fishers detained on their vessels, fishers should be provided with a credit on a weekly basis which can be used to order through the service provider items of their choice.

The extent of the opportunities for exercise and recreational activities that the Commonwealth needs to provide the fishers will depend on the period of time they spend in detention. More activities will need to be provided the longer the period of detention. The services and facilities provided to fishers held on boats for periods of less than 7 days will not need to be as extensive that required for periods of detention of three weeks to a month. I am of the view that the recreational opportunities and facilities provided to the Indonesian fishers in June 2004, where the average time that they were detained on boats was at least one month, was inadequate and not consistent with human rights.

The recreational services and opportunities fell well below the standards articulated in the Fisheries Detention Standards. These standards require that detainees are provided with appropriate recreational activities and all detainees have access to recreation and leisure programs and facilities which provide them with an opportunity to utilise their time in detention in a constructive and beneficial manner within the constraints of the vessel. In the Fisheries Detention Standards recreation/leisure activities and programs are defined to include indoor and outdoor exercise and sport, sporting equipment, games and outings, books, newspapers, television, videos, craft activities, English language tuition, vocational activities. Clearly, in June 2004, the fishers were not provided with a range of activities or programs that would allow them to utilise the time that are held in detention in a constructive manner. Additionally, the provision of recreational activities was not consistent with Standard Minimum Rule 21 which provides that people in detention are to be provided with one hour of suitable exercise daily. Nor were they consistent with Standard Minimum Rule 78 which provides that recreational and cultural activities shall be provided in all institutions. The non-provision of reading material to the fishers such as newspapers also means that the conditions of detention are not consistent with Standard Minimum Rule 39 which states that people in detention are to be kept informed of important items of news, through among other things reading of newspapers and periodicals.

Emergency procedures

The adequacy of emergency procedures is an issue that emerged during the course of this inquiry. In his report, the Territory Coroner found that there were some difficulties with the emergency communication and recommended that the vessels and crews detained in the detention area be provided with a horn, sounding or other signalling device to be used in case of emergency.

During the visit to Darwin the Commission was advised that emergency devices issued to the Indonesian crew included a cylume florescent stick to be used in emergency situations at night to gain the attention of Barefoot Marine Staff. The Commission was also advised that each vessel had been issued with a horn. The Commission was advised that the use of a strobe light was also being considered and a prototype being developed. That light would be simple to use and tamper proof and affixed to each vessel. During the inspection in June 2004, these emergency devices were not observed.

The fishers interviewed by the Commission provided the following information about emergency procedures. One fisher said they were given a light to signal Barefoot Marine, which they regularly used in emergencies and Barefoot Marine came to the crew. Another stated that they were given a fluorescent light to communicate with Barefoot Marine and they used it twice when someone was sick and it took Barefoot Marine half an hour to come. Another stated that they had a can with a horn to contact Barefoot Marine and they used it when a person had a tooth ache and it took a long time for them to come. Another advised that they were given a glow stick and often when they called Barefoot Marine they were ignored.

The Commission was advised during the visit by AFMA and Barefoot Marine that the fishers frequently misuse the horns during the day. The Commission was also advised that Barefoot Marine carry out checks of each vessel by dinghy every 30 minutes.

Barefoot Marine's Quality Manual outlines the procedures to be followed by staff in the management of incidents such as a crew member missing, disputes among crew members, disputes between crew members and staff and vessels sinking. The manual also includes procedures addressing how to deal with medical emergencies.

While AFMA and Barefoot Marine have improved the emergency devices available to the fishers, since June 2004, providing each boat with a horn and a cylume stick, at the time of the Commission's visit, the emergency devices available to the fishers on their vessels were still not adequate to ensure their safety while detained at sea. The situation that existed at the time of the death of Mr Ibu where the crew had to break the mooring of the boat to gain attention is clearly not acceptable. I am not convinced that a cylume stick would be sufficient to attract attention at night in the middle of a storm or that the horn could always be heard in harsh weather conditions. To ensure the safety and physical well being of the fishers, it is critical that each vessel has emergency devices which mean that they can arouse the immediate attention of Barefoot Marine staff in the mothership in the event of an emergency such as a medical emergency, man overboard, violence among crew members or fire. The absence of sufficient emergency devices and procedures could result in the death or serious injury of a fisher. I am of the view that the conditions observed in June 2004 did not sufficiently ensure the day-to-day personal safety of the fishers consistent with the need to provide humane conditions of detention as required by principle 1 of the Body of Principles and article 10(1) of the ICCPR.

6.3 Summary of findings

In summary, my findings are that:

1. The practice by the Commonwealth of detaining Indonesian fishers on their vessels in Darwin Harbour in the conditions and arrangements observed in June 2004 constitutes a breach of human rights under article 10(1) of the ICCPR, even for short periods of detention. Those conditions do not constitute humane conditions of detention as required by this article and are inconsistent with a number of AFMA's own Fisheries Detention Standards and certain standards articulated in the Standard Minimum Rules and the Body of Principles. Those conditions were not safe or hygienic, did not provide adequate protection from the elements and only met human needs at the most basic of levels.
2. The largest portion of the time that Indonesian fishers spend in detention on vessels in Darwin Harbour is in immigration detention pursuant to the Migration Act 1958. DIMIA is ultimately responsible for this detention. There is a need for DIMIA to play a more active role in fulfilling its statutory obligations and articulating appropriate standards of detention in relation to the Indonesian fishers and ensuring that the services, facilities and overall conditions meet these standards and are consistent with article 10(1) of the ICCPR. This should not be left primarily to AFMA or to a private contractor.
3. The general accommodation and arrangements observed in Darwin Harbour in June 2004 did not provide sufficient protection from the elements and the living conditions were in general cramped, unhygienic and only provided for the most basic of human needs. The fishers were not provided with adequate blankets in the winter months. The accommodation and sleeping arrangements were not consistent with Standard Minimum Rules 10 and 19. The general accommodation and the sleeping arrangements, in particular, did not meet the needs of health. The fishers were not provided with a bed, sufficient bedding or bedding which is clean.
4. The sanitary and shower/bathing arrangements in place on the vessels were not consistent with human rights. The ablution facilities did not allow the fishers to meet the needs of nature in a clean and decent manner. Fishers were not able to shower or bath at a temperature suitable to the climate. Those arrangements were not sufficient to meet the requirements of Standard Minimum Rules 12 and 13.
5. While some clothing is provided on request and fishers can wash and dry their clothes on board the vessel, the arrangements observed in June 2004 to provide the fishers with clothing were not sufficient to meet the requirements of Standard Minimum Rule 18.
6. That the level of recreational programs and activities provided to the fishers fell well below the Fisheries Detention Standards and were inconsistent with Standard Minimum Rules 21, 39 and 78, even for short periods of detention. The fishers were not provided with sufficient opportunities for exercise nor were they provided with activities which would mean that they can use their time in detention in a constructive manner. They were also not provided with newspapers in their own language which would inform them of important items of news.
7. While some improvements had been made to emergency procedures and devices, the arrangements observed in June 2004 did not meet the level required to constitute humane conditions of detention as required by Principle 1 of the Body of Principles and article 10(1) of the ICCPR.

7. RECOMMENDATIONS

Under section 29(2)(b) of the HREOC Act, I may include in a notice issued under s 29(2)(a) any recommendations for preventing a repetition of the act or a continuation of the practice identified in the notice. I 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.5

I do not make any recommendation under section 29(2)(c)(i) for the payment of monetary compensation to the complainant, or the Indonesian fishers on whose behalf the Consul for the NT has brought the complaint. My reasons for not recommending monetary compensation are as follows. No claim for monetary compensation has been made by the Consul. The situation of each fisher would be different. Many of the Indonesian fishers detained in Darwin Harbour at the time that the complaint was made to the Commission would have been repatriated to Indonesia, making it difficult to gain the information necessary to assess if any particular fisher held in boat-based detention suffered consequences that would sound in monetary compensation. It is not practicable at this late stage, in the absence of a claim for monetary compensation from the complainant, to explore possible compensation remedies.

In its response to my tentative view, AFMA submitted that the establishment of the proposed land based detention facility in Darwin will address the Commission's concerns in relation to boat-based detention of suspected illegal fishers in Darwin Harbour. Apart from noting DIMIA's advice that the Public Works Committee process will impact on the timeframe for the commencement of the operation of the Darwin Detention Facility, it did not provide any indication as to the date on which that facility would become operational.

Whilst I consider that the proposed Darwin Detention Facility may alleviate many of my concerns about the conditions in which Indonesian fishers are detained in boat-based detention in Darwin Harbour, until it commences operation, Indonesian fishers suspected of illegally fishing in the AFZ will continue to be detained under arrangements that do not meet article 10(1) of the ICCPR.

I note that AFMA has advised that boat-based detention will continue to play a small part in the new detention arrangements. Fishers taken to Gove and Broome will be held in boat-based detention until they can be transferred to the Darwin Detention Facility.

My recommendations are as follows:

1. That DIMIA plays a more active role managing the arrangements for the detention of the Indonesian fishers. DIMIA needs to increase its involvement in articulating appropriate standards of detention in relation to the Indonesian fishers and ensuring that the services, facilities and overall conditions meet these standards and the Commonwealth's obligations under article 10(1) of the ICCPR.
2. That DIMIA and AFMA develop a more detailed set of detention standards covering the detention of the Indonesian fishers. This document should articulate the standards in a higher level of detail than the existing AFMA standards, so it is abundantly clear the standard of the conditions, services and facilities that any private contractor has to deliver. The standards should not be so general that it is left up to the private operator to decide how they are to be fulfilled. Any standards should reflect and comply with the standards contained in the relevant human rights instruments such as the ICCPR, the Standard Minimum Rules and the Body of Principles. The standards should reflect best practice in the area of administrative detention and should apply irrespective of whether the facilities are managed directly by the Commonwealth or a private service provider. The standards should also be consistent with the standards promulgated by DIMIA for shore based detention.
3. AFMA and DIMIA also need to improve the systems they have in place for monitoring and ensuring the standards are met by the private provider. Compliance with the standards must be central to the fulfilment of any contract between the Commonwealth and the private provider.
4. A land based detention facility should be established. The facility should provide conditions, services and facilities which are comparable with existing immigration detention centres, but reflect the period of time the fishers in general spend in detention and the level of security risk they pose. The fishers should be detained on land, apart from during the first few days after arrival, whilst initial processing and arrangements are being made to accommodate them on land, or for immediate removal from Australia.
5. In the event that a land based facility is not built, and the fishers continue to be detained on their vessels in Darwin Harbour the following actions need to be taken to improve the conditions under which the fishers are held.
   

   5.1. That upon arrival in Darwin Harbour each crew member undergoes a detailed induction process.

   5.2. That the induction process covers the fisher's rights in detention and the services and facilities that are available to them and how they can make a complaint to the service provider, AFMA or the Consul. That the induction also covers the medical, harsh weather and other emergency procedures and appropriate use of emergency warning devices. That the induction is carried out orally in the fisher's own language and this is supported by a written document in Bahasa which also contains this information.

   5.3. That the induction process also includes assessing bedding needs of each fisher. Each fisher is to be issued with a clean mattress, blanket (in the winter months) and pillow if they do not have their own or their own supplies of bedding are not of a suitable standard. Bedding should be purchased from appropriate sources, and the Commonwealth and service provider should not be reliant on supplies from St Vincent de Paul or other charity organisations. That the bedding is issued for the duration of the detention.

   5.4. That during the induction the service provider ascertains if each fisher has clothing of sufficient quality and quantity to meet their needs during the duration of their detention. In winter months particular attention must be paid to whether the fishers have clothing of sufficient warmth. The Commonwealth and service provider should not primarily rely on obtaining clothing from the community sector or second hand stores and should purchase new clothes as is appropriate. Particular attention should be paid to the needs of fishers whose boats have sunk.

   5.5. That during induction the fishers are provided with a toiletries kit, this would include a toothbrush, toothpaste, comb, razor, soap and towel.

   5.6. That within 24 hours of arrival, the Commonwealth and the service provider work with the fishers to ensure that the vessel provides adequate protection for the crew from the weather. This could include erecting extra tarpaulins and providing means to seal off any gaps or windows/ports that are present in the sides of the cabin where the crew sleep to protect against rain, particularly in the wet season.

   5.7. That arrangements are put in place to ensure bedding is laundered and maintained in a clean and hygienic state.

   5.8. That adequate toileting and shower facilities are available for the fishers to allow them to meet the needs of nature with privacy and dignity. What is adequate in this respect will depend on the period of time that the fishers are detained on their vessels. If the detention exceeds 7 days, arrangements need to be put in place that will allow the fishers to be taken every second day from the boat and provided with a shower/bath at a temperature suitable to the climate.

   5.9 That standards and procedures are developed which extend to the removal of fishers from their boats in periods of heavy and persistent rain in the wet season.

   5.10 That procedures are established and the necessary supplies of clothing and dry towels are available to ensure that fishers can dry themselves in the event that they get wet during a storm and have a dry set of clothes to change into.

   5.11 That food and water deliveries are maintained to at least the standards applying in June 2004 and ensure that adequate fuel is provided for cooking and lighting. That the Commonwealth looks at expanding the variety of the food that is provided to the fishers.

   5.12 That the recreational activities and programs provided to the fishers are improved. The extent of the activities and programs that need to be provided will depend on the period of time the fishers are held in detention.

   5.12.1 For periods of detention less than 7 days the fishers should be provided with reading material such as newspapers and periodicals in Bahasa and at least one structured exercise/recreational activity off their boat. During this first week, opportunities for exercise should be included in any visits to court, the Consul, police or AFMA/DIMIA offices. I note that the Office of the Consul for the NT has advised that it is able to provide the fishers with reading material in Bahasa, such as newspapers and magazines.

   5.12.2 If the period of detention exceeds 7 days, a broader range of reading materials and recreational activities and facilities should be provided to the fishers. At a minimum, this should include the Indonesian fishers being provided with opportunities to leave the boat and exercise at least every second day. This is very important for the majority of the fishers who are held on the smaller vessels which provide limited opportunities to walk around or stand up straight.

   5.12.3 After a period of detention of 7 days or more, the fishers should be provided with the opportunity to participate in meaningful work like activities, where they are able to earn points for work performed. These points could be used to purchase small personal items. If it is not feasible to develop a scheme of this nature for fishers detained on their vessels, each fishers should be provided with a credit of say $25 per week to be used solely for ordering through the service provider items of their choice of the kind that would otherwise be available through meaningful activities/points schemes in land based detention/prison facilities.

   5.13 That all crews detained on their vessels are provided with emergency devices which will enable them to immediately attract the attention of the Commonwealth and/or the service provider in the event of a medical or other emergency. The strobe light which is currently under development should go some way to addressing this need, but an adequate auditory alarm is also necessary.

   5.14 The Fisheries Detention Standards and the procedures of the private provider should include standards and procedures in relation to the provision and use of and response to emergency devices.

8. RESPONSE OF THE COMMONWEALTH TO THE FINDINGS AND RECOMMENDATIONS

On 7 September 2005, AFMA advised the Commission that:

[O]n 24 June 2005 [AFMA] ceased the practice of detaining fishers on board vessels (other than the period of time it takes to bring the fishers to a port). AFMA is now using alternative land based facilities to accommodate suspected illegal foreign fishers. Fishers who are in immigration detention are also being held in immigration detention facilities in Southern Australia pending their prosecution and/or removal. These arrangements have been adopted as an interim measure until the Darwin Detention Facility is operational in mid 2006.

As you have noted in your report, AFMA is establishing a transitory accommodation facility on Horn Island in the Torres Strait to accommodate suspected illegal foreign fishers who arrive at Thursday Island for a short period in circumstances where air transport to the Darwin Detention Facility is not immediately available. AFMA is currently exploring long-term transit detention arrangements as the alternative to boat-based detention in Gove and Broome which would accommodate fishers for a short period prior to their transfer to the Darwin facility.

The Fisheries Management Act 1991, the Torres Strait Fisheries Act 1984 and the Migration Act 1958 were amended on 23 August 2005 to provide the legislative framework that will enable fishers who hold an enforcement visa and are, therefore, lawful non-citizens to be accommodated in an immigration detention facility while they await prosecution or repatriation. Where such fishers are held in an immigration detention facility, that facility effectively operates as a joint fisheries/immigration detention facility.

As AFMA has discontinued its practice of boat-based detention, we are of the view that your tentative recommendations of 24 August 2004 concerning improvements to boat-based detention arrangements are no longer applicable.

On 21 September 2005, DIMIA advised the Commission that:

At the end of June 2005, AFMA ceased the practice of boat-based detention. Fishers are now removed from their boats to land-based accommodation usually within four hours of arrival at port. Since then, key agencies, including DIMIA and AFMA, have been developing revised interim arrangements to manage apprehended illegal foreign fishers pending the completion of the upgrade works at the DDF. These arrangements include DIMIA transferring fishers as soon as reasonably practicable to existing IDFs in southern Australia and their prosecution in Port Augusta or Perth, as appropriate. For example, fishers brought to Darwin or Gove would be transferred to Baxter IDF, while fishers brought to Broome would be transferred to Perth IDF.

Under these arrangements, fishers are transferred from their vessel to land-based accommodation as soon as reasonably practicable following their arrival in port. In the absence of any dedicated detention facilities in northern Australia, the fishers are held in transit accommodation, including hostels, hotels/motels, correctional facilities or police watchhouses until arrangements are made to transfer them to immigration detention facilities in southern Australia. This occurs within 24-72 hours of their arrival, depending on air charter availability and medical clearances, including 'fitness to travel'.

.

Fishers being charged with suspected fisheries offences are detained at Perth IDC or Baxter IDF until their judicial proceedings are completed in Perth, Adelaide or Port Augusta, as appropriate. Those not being charged are detained while arrangements are made for their removal via Perth. Their removal is undertaken as soon as is practicable, in accordance with the Migration Act 1958.

This interim process obviates the need to transfer fishers to and from Darwin or Broome for court and ensures that they are held in a detention facility where the Immigration Detention Standards are applied.

DIMIA advised that the Darwin Detention Facility announced by the Minister for Fisheries, Forestry and Conservation on 31 January 2005, is expected to be operational by mid-2006 and will:

• be managed by DIMIA and operated by a contracted detention services provider;
• operate in accordance with the Immigration Detention Standards;
• provide northern Australia, particularly the Northern Territory, with an appropriate immigration detention facility;
• operate as a joint fisheries/immigration detention facility;
• enable fishers in fisheries of immigration detention to be immediately accommodated on land following their arrival in Darwin or transfer from Gove, Horn Island and, where appropriate, Broome;
• enable fishers accommodated at the Darwin facility who are available for removal to be repatriated directly from Darwin so they can re-join their families as soon as reasonably practicable and continue with their lives in Indonesia.

I report accordingly to the Attorney-General.

John von Doussa QC

President

September 2005

APPENDIX ONE

Functions of the Human Rights and Equal Opportunity Commission

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:

1. 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;
2. 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.

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

APPENDIX TWO

Photographs taken by the Commission during its visit to Darwin Harbour in June 2004

Photo 1

Photo 3

Photo 4

Photo 5

Photo 7

Photo 9

Photo 12

Photo 16

Photo 21

Photo 24

Photo 26

Photo 27

Photo 29

Photo 30

Photo 31

Photo 32

Photo 33

Photo 34

Photo 35

Photo 36

ENDNOTES

1. The jurisdiction of the Commission in relation to the inquiry into acts or practices 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 is set out in Appendix One.
2. Adopted August 30, 1955, by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I and approved by the Economic and Social Council by resolution 663C, 24 U.N. ESCOR Supp. (No. 1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, U.N. Doc. E/5988 (1977).
3. Adopted by resolution 43/173 of the UN General Assembly on 9 December 1988, UN Doc A/RES/43/173.
4. Section 29(2)(c) of the HREOC Act.
5. Section 29(2)(c) of the HREOC Act.

Last
updated 7 December 2005.