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Response to the 2010 Australian Human Rights Commission Report on Immigration Detention in Darwin

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Introduction

The Department of Immigration and Citizenship (DIAC) welcomes the opportunity to respond to the Australian Human Rights Commission (the AHRC) 2010 Public Statement on Immigration Detention in Darwin.

DIAC places a high value on the work of the Commission and appreciates the Commission’s substantial recognition of the hard and consistent efforts of all those staff supporting the management of clients in Darwin.

The Commission has outlined a number of key issues related to Immigration Detention in Darwin. DIAC comments in response to these recommendations are outlined below.

Response to Recommendations

Recommendation 1: Australia’s mandatory detention law should be repealed. The Migration Act should be amended so that immigration detention occurs only when necessary. This should be the exception, not the norm. It must be for a minimal period, be reasonable and be a proportionate means of achieving at least one of the aims outlined in international law. The limited grounds for detention should be clearly prescribed in the Migration Act.

People in immigration detention are managed in accordance with the Government’s Key Immigration Detention Values which ensure fair and humane treatment, and any claims for asylum are assessed as expeditiously as possible.

The retention of ‘excised offshore places’, the mandatory immigration detention of all irregular arrivals for the management of health, identity and security risks to the community, and the continued use of Christmas Island for the non-statutory Refugee Status Assessment (RSA) processing of people who arrive at excised offshore places, are matters of government policy. The government is committed to these policies as essential components of strong border control, and as important elements in ensuring the integrity of Australia’s immigration program.

The High Court of Australia has determined that the department’s RSA and Independent Merit Review (IMR) processes are valid. However, the High Court has determined that certain aspects of the process were legally flawed and need to be changed.

All irregular maritime arrivals (IMAs) who seek protection are able to seek judicial review if they receive a negative assessment. The government has also decided to give a new review to clients who received a negative IMR outcome prior to the High Court’s decision on 11 November 2010. This includes the High Court litigant’s clients with a negative IMR assessment that has been handed down and clients with a negative IMR assessment that is yet to be handed down. Clients on a voluntary removal pathway will continue to be assisted by the department and those who have already left Australia will have no further action taken in regards to their negative IMR assessment. The department will continue with normal removals planning (that is, general contingency planning for removals) but will not proceed with obtaining individual travel documents until the IMR outcome is known, and any related judicial review proceedings are finalised.

The government is satisfied that immigration detention is not inconsistent with Australia’s international obligations under the Refugees Convention and its Optional Protocols, in particular, Australia's non-refoulement obligations, and that a fair process is provided for the assessment of asylum claims. Article 9 (1) of the International Covenant on Civil and Political Rights (ICCPR) states that everyone has the right to liberty and security of person, and that no one shall be subjected to arbitrary arrest or detention. The government understands that the key elements in determining whether detention is arbitrary are whether the circumstances under which a person is detained are ‘reasonable’ and ‘necessary’ in all of the circumstances or otherwise arbitrary in that the detention is inappropriate, unjust or unpredictable. Detention will not be arbitrary if it is demonstrated to be proportional to the end that is sought. Both the law under which the detention is authorised and the manner in which it is carried out or enforced must meet these criteria. The government is satisfied that the detention is proportionate to the aim of processing peoples' claims as swiftly and humanely as possible while also protecting the security and welfare of the Australian community. Mandatory immigration detention is an exceptional measure primarily reserved for people who arrive in Australia without authorisation.

Recommendation 2: The Migration Act should be amended to accord with international law by requiring that a decision to detain a person, or a decision to continue a person’s detention, is subject to prompt review by a court.

Article 9 (4) of the ICCPR states that "anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful". This is based on the principle of habeas corpus that people detained must be able to bring proceedings to challenge the lawfulness of their detention. In Australia, every person who is detained is able to test the lawfulness of his or her detention before a court. Section 75 (v) of the Australian Constitution provides that the High Court of Australia has original jurisdiction in relation to every matter where a writ of mandamus, prohibition or injunction is sought against an officer of the Commonwealth.

The Department of Immigration and Citizenship (DIAC) notes that subsection 494AA(3) of the Migration Act 1958 (the Migration Act) states that ‘nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution’. Clients are therefore able to seek judicial review of the lawfulness of their immigration detention under domestic law, pursuant to the High Court’s original jurisdiction.

Recommendation 3: Until the above legislative changes are implemented, the Australian Government should avoid the prolonged detention of asylum seekers by:

On 18 October 2010, the Minister announced his intention to use existing powers under the Migration Act to progressively place significant numbers of Unaccompanied Minors (UAM’s), vulnerable families and other vulnerable clients into Residence Determination arrangements. Placement into community detention will be made by the Minister on a case by case basis.

DIAC is managing the implementation of the expanded Residence Determination program, and the Minister's Council for Immigration Services and Status Resolution (CISSR) is working closely with DIAC to support this process. A project team drawing on relevant expertise across DIAC has been formed to develop and establish the expanded Residence Determination arrangements.

The expanded Residence Determination program will be rolled out progressively between now and 30 June 2011. The Australian Red Cross is the lead agency for the implementation of the expanded arrangements and will draw on the expertise of a wide range of experienced service providers and contributing organisations. Services can include sourcing of accommodation, case worker support and 24 hour carer support to UAM’s, among others. Immediate housing options have been identified and are being assessed for the first group of placements. Further housing is being sourced and will be staged to come on line from January through to June 2011.


The foundation of Australia’s layered approach to border security includes the universal visa system which enables the Department of Immigration and Citizenship (DIAC) and other agencies to conduct pre-arrival checks of visa applicants and prevent the entry of those who may pose a security, criminal or health risk to the community. The vast majority of IMA’s come to Australia undocumented and, in line with the Government’s immigration detention values, are held in immigration detention pending completion of health, identity and security checks.

An external agency is responsible for the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities. Security assessments undertaken by the external agency are treated individually and undertaken on a case-by-case basis. As such, there is no single or definitive timeframe within which each check is completed. Some cases are able to be finalised within a short timeframe; but others, because of the specific circumstances of the case, can take much longer.

DIAC regularly liaises with the external agency on caseload issues, and escalates individual cases of concern for priority assessment, such as UAM’s, families with young children, and clients with mental health concerns or other compassionate and compelling circumstances. DIAC also seeks from the external agency, updates on the progress of individual cases.

Recommendation 4: The Australian Government should implement the outstanding recommendations of the report of the National Inquiry into Children in Immigration Detention, A last resort? These include that Australia’s immigration detention laws should be amended, as a matter of urgency, to comply with the Convention on the Rights of the Child. In particular, the new laws should incorporate the following minimum features:

The government takes its international obligations seriously and acts consistently to comply with all of its treaty obligations, including the Convention on the Rights of the Child (CROC).

Minors and their accompanying families are accommodated at low-security sites, such as immigration transit accommodation (ITA) and immigration residential housing (IRH), or other alternative places of detention (APOD), which includes commercial accommodation such as motels, including Darwin Airport Lodge and Asti Motel.

UAM’s are subject to the same accommodation arrangements as other children, but are supported by appropriate foster carers and are held in an APOD while health, security and identity checks are completed. They may then be considered for a community placement if accommodation is available.

Section 4AA of the Migration Act currently states:

"(1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.

(2) For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination".

While section 4AA affirms the principle that children should only be detained as a last resort, the principle does not limit the location and nature of any such detention. The announcement of the Government’s Key Immigration Detention Values formalised arrangements already in place operationally within DIAC, noting that minors will not be detained in an immigration detention centre (IDC).

DIAC maintains that Key Immigration Detention Value 3, which provides that ‘children, including juvenile foreign fishers and, where possible, their families, will not be detained in an immigration detention centre’, broadly reflects our international obligations under Article 3(1) and Article 37 of the CROC. Although children fall under the broad mandatory detention framework, they are treated considerably differently than adults. Furthermore, detention currently is not, and will not, be for minors at an IDC under Key Immigration Detention Value 3.

Facilities at the Darwin Airport Lodge and Asti Motel are designed to ensure that children’s human rights are protected. The processing of asylum claims by children is accorded the highest priority to ensure compliance with our Article 37(b) obligations under the CROC and that children remain in facilities for the ‘shortest appropriate period of time’.

DIAC maintains that children in the Darwin Airport Lodge and Asti Motel have considerable liberties, and are free to attend school, outings and other organised activities in order to best permit them to live as unrestricted as possible while their claims (and those of their families) are assessed.

Policy documents relating to the treatment of children in detention are clear:

‘Children can be a vulnerable group of clients, particularly in the context of compliance operations and immigration detention. The case management of children presents particular challenges and requires special consideration of the child’s individual and family circumstances. Although a child will not be detained in an IDC, it is possible that a child may be subject to other detention arrangements such as community detention or immigration residential housing. If a child has been detained, whether or not this is with a parent or guardian, the child will be actively case managed. The only exceptions might be children who have been detained with their families and are on a rapid removal pathway or juvenile foreign fishers.’[1]

The Department acknowledges the AHRC’s concerns regarding assessments on the need to detain children and undertaking periodic reviews. As previously noted in the response to Recommendation 3, the Minister for Immigration and Citizenship announced the intention to use existing powers under the Migration Act to progressively place significant numbers of UAM’s, vulnerable families and other vulnerable clients in residence determination arrangements. Given this announcement the need for assessments and periodic reviews on children in detention should not be necessary.

This move is in recognition of the increasing numbers of families with children and UAM’s in immigration detention and the lengthening period of time which some may have been detained during processing of their claims or finalisation of their cases.

The residence determination arrangements will be rolled out progressively in partnership with community organisations over the coming months and should go a large way to providing suitable longer term accommodation for this group of clients.

A reference group has been formed involving key CISSR representatives, DIAC officers and other external members, including a representative from the Department of Families, Housing, Community Services and Indigenous Affairs.

Recommendation 5: DIAC should ensure that relevant DIAC officers and staff members of detention service providers are provided with information and training on:

DIAC and Detention Service Provider (DSP) officers have been provided with the Northern Territory (NT) toll free number to report any incidents involving child welfare and protection notifications. Arrangements are being made for the NT Department of Families and Children Services to deliver on-site training on mandatory reporting requirements for DIAC and DSP staff.

DIAC, DSP and Life Without Barriers (LWB) officers are aware of the DIAC officers delegated by the Minister with legal guardianship of unaccompanied minor asylum seekers in immigration detention in Darwin. Protocols on notification to the legal guardian and circumstances in which this is to occur are being developed and are anticipated to be completed by the end of January 2011.

Work is also being undertaken to put protocols in place to ensure that all UAMs are aware of the guardianship arrangements that are in place for them while they are in immigration detention. This is being done in conjunction with Serco and LWB and is anticipated to be completed by the end of January 2011.

Independent Observers from LWB are available to support UAM’s and attend interviews and other appointments with them. Necessary arrangements are in place to ensure that LWB Independent Observers are always present for interviews and other processes involving UAM’s.

Recommendation 6: The Australian Government should, as a matter of priority, implement the recommendations made by the Commission in A last resort? that:

The Immigration (Guardianship of Children) Act 1946 (IGOC Act) provides that the Minister for Immigration and Citizenship is the guardian of unaccompanied non-citizen children who arrive in Australia with the intention of becoming permanent residents. The Australian government recognises that the IGOC Act is outdated and not designed for the purpose for which it is now used. The department recognises the concerns which have been raised about the potential for a perceived conflict of interest between the Minister's role as guardian under the IGOC Act and as the decision-maker under the Migration Act 1958. The department is currently reviewing whether the current guardianship arrangements are appropriate and whether the IGOC Act can be used in a more effective way to further the best interests of children potentially within its scope.

The department ensures appropriate support for UAM’s by engaging LWB to provide an Independent Observer to attend interviews and meetings between UAM’s and the department and/or other agencies. The Independent Observer provides a support role for the minor to support them during the interview process, including providing them with moral support, ensuring that appropriate food and toilet breaks are provided, and ensuring the minor is given the opportunity to ask questions and has their questions answered. LWB provide a 24-hour on call support service.

For UAM’s who have been found to be refugees (known as unaccompanied humanitarian minors), the department, working with state governments or service providers, organises suitable accommodation and appropriate care arrangements. Services provided to unaccompanied humanitarian minors include: monitoring of care arrangements by a case worker, assistance with clothing, food, housing and educational requirements. Services for unaccompanied humanitarian minors are provided by the relevant State Child Welfare Agency or, where this is not possible, by a not-for-profit service provider.

Recommendation 7: DIAC should ensure that people in immigration detention in Darwin are provided with timely access to appropriate health and mental health services. In particular, DIAC should enhance clinical governance of the mental health service by ensuring that a psychiatrist is available to provide clinical guidance and supervision of the clinical decision making of mental health staff.

The provision of all health care services to people in immigration detention at the Northern Immigration Detention Centre (NIDC), Darwin Airport Lodge APOD, and the Darwin Asti Motel APOD is managed by a Regional Health Services Manager (RHSM) who is a qualified Registered Nurse with appropriate experience in managing the provision of health services in regional areas. The RHSM, who is based at NIDC, works with the International Health and Medical Services (IHMS) Medical Director, Medical Services Operations Manager and the Psychological Services Manager to monitor and ensure the provision of both primary health care and mental health care to clients in Immigration. The RHSM provides a consultancy role to all Network Health care providers within his/her Region and oversees the after-hours Triage and Advice line that is available to DIAC case managers and Serco.

The health care model implemented by the Detention Health Services Provider at all centres relies on the RHSM to coordinate services, freeing up GPs and specialists such as Psychiatrists to focus on patient care. The RHSM has the clinical knowledge, skills and experience to be able to recognise when issues need to be escalated or referred to specialists, and is able to provide those external specialists with information so that they can make an informed clinical decision that is in the best interests of their patient.

Two different processes are operating for clients to access medical services in immigration detention facilities in Darwin; one at the NIDC and the other at the Darwin Airport Lodge and Asti Motel.

At the NIDC, clients need to complete a Medical Access Request Form and place it in an IHMS post-box which is located in each compound. The request forms are collected each morning and triaged by a Registered Nurse who schedules appointments based on the severity of the client's described condition. Clients with serious or urgent symptoms such as chest pain will be seen on the same day. Clients with less urgent symptoms may be scheduled up to two days later. Clients are escorted by DIAC or DSP staff to either of the two medical clinics at NIDC (one at the North compound and one at the South compound). Clients who would like to see the Mental Health Team are not required to make an appointment if they require support.

IHMS has confirmed that all initial triage nurse appointments are scheduled to occur within 72 hours of IHMS receiving a request form. Clients are advised of their appointment via a list which is displayed in each compound the evening before the scheduled clinic. If a client misses their appointment, up to two more appointments are scheduled for them before IHMS require the submission of another Medical Access Request Form.

The medical access request process, including the need for clients to check the appointment schedule daily, is explained at client induction. IHMS also attends Client Consultative meetings in order to remind clients about the process.

IHMS are unaware of any cases of clients being forced to wait six to seven days for initial medical attention due to over-booked schedules, although where clients miss their initial appointment, or where request forms are not submitted directly to IHMS post-boxes (eg. handed to a DSP officer), they may have to wait longer than 72 hours before the initial medical assessment. In addition, previously scheduled appointments may be delayed when medical personnel are called away to respond to emergency medical situations, these may take precedence over previously scheduled appointments. IHMS report that such instances are rare at NIDC.

It should also be reiterated that, clients are expected to check the appointment schedule, attend requested appointment times, and inform IHMS if they no longer require an appointment. The DSP is not responsible to collect or remind the clients of their appointment.

At the Darwin Airport Lodge and Asti Motel, medical and mental health clinics operate five days a week, using a Triage arrangement to allocate priority to clients. Clients can also make appointments, and are generally seen within 72 hours. Urgent client needs are given priority. IHMS is currently developing a proposal to implement in the new year a weekend clinic at the Darwin Airport Lodge and the Asti Motel. ,

Outside of clinic hours, there is also a 24 hour Triage and Advice line, which DIAC or a DSP can call should any emergency situation or unexpected injury occur. They will then be given advice as to whether or not the client needs transfer to an emergency service provider.

Recommendation 8: DIAC should ensure that all people in immigration detention in Darwin have access to:

Amenity improvements since the AHRC visit to the NIDC have continued and now include the addition of flower beds for the use of clients. There is also a substantial infrastructure program being undertaken that will significantly increase indoor and outdoor amenities at the NIDC. All works at NIDC will be completed progressively between October 2010 and June 2011.

Included in the infrastructure program is a broad range of improvements to the centre including additional classrooms, improved internet access, new soccer fields, volleyball and basketball courts and a synthetic walking/fitness track. New fitness equipment has already been installed at all compounds. Improvements will be made to all existing cabanas, including a new recreation building on the edge of the new soccer field in North compound and general improvements to the landscaping around the centre including the addition of vegetable gardens for the use of clients. The infrastructure program includes a proposal to improve amenities for minors accommodated in Berrimah House, adjacent to the IDC.

Clients detained at Berrimah House have their own activity program that includes indoor and outdoor activities. Clients at Berrimah House are taken on regular excursions to the swimming pool, bowling, churches and mosques, and other various outdoor activities, and can participate in IDC activities and use the IDC facilities.

Since the AHRC visit, the owner of the Darwin Airport Lodge has installed a shade cover over the play equipment. Other recent works at the Darwin Airport Lodge include an educational block which comprises of a computer room, classroom, library, and activity rooms. It is also proposed that additional recreational areas be made available including gym equipment, BBQs, outdoor seating, basketball hoops, and mobile play equipment for children.

The department notes the AHRC’s concerns regarding the use of the Asti Motel. The department considers the Asti Motel as a short term detention site and as soon as additional capacity can be developed elsewhere all clients at the Asti Motel will be moved as a priority.

In the meantime, clients at the Asti Motel have access to the motel swimming pool and other indoor and outdoor recreation facilities. As an alternative to on-site grassed areas, regular sporting and recreation excursions are provided for clients at the Asti Motel, as well as a variety of on-site activities.

In addition to the above improvements at the Darwin Airport Lodge and the Asti Motel, six new sewing machines were recently distributed between the Darwin APODs for the use of clients.

The Botanic Gardens Apartments APOD is used as short term accommodation only. There are outdoor shaded areas for client use at the Botanic Gardens Apartments APOD, and activities and excursions are arranged for clients on a case-by-case basis.

During the school term, all school aged children have access to indoor and outdoor activities as part of their education program.

All NT detention facilities have a collection of resources in various languages. Clients are also able to access reading materials through any of the internet computers that are available to them.

A mobile library service is currently provided at the NIDC and further enhancements at the site will include a permanent library for clients to access reading materials.

The recent expansion of amenities at the Darwin Airport Lodge included a library and the Asti Motel has a collection of reading materials available for clients to access and borrow.


Clients in immigration detention in Darwin are given access to a variety of telecommunication equipment including fixed land line telephones and internet terminals. There is no restriction on the amount of calls a client can make when in immigration detention in Darwin, other than the need to extend courtesy to other clients who might be wishing to make a call themselves.

Since the AHRC visit to the NIDC, an additional 10 new client phones were installed. There are now 19 client phones available throughout the centre. Usage of the telecommunication equipment will continue to be monitored and facilities will be expanded if clients have difficulties accessing services.

Computer access at the NIDC is to be improved as part of the broader works currently being undertaken. Serco have been authorised to purchase desks and chairs to enable installation of a further 28 computers, this will effectively double the capacity. Additional computers are anticipated to be in place by April 2011.

As at 25 November 2010 there were a total of:

A regular program of excursions is in place for clients in the Darwin Airport Lodge and Asti Motel. This includes visits to a local bowling alley, recreational excursions and sporting activities such as soccer and dance classes.

Excursions are regularly arranged for clients at the NIDC. This includes religious excursions to local churches and mosques and bus tours of Darwin. An expansion of the excursion program is currently being planned and is anticipated to be in place by March 2011.

In addition to the external excursions, a range of activities are in place in the NIDC. Activities on-site include courses in Australian history, social development, sewing, cooking classes, trivia, movie nights, bingo, music classes, arts and crafts, yoga, gym and cardio training, billiards and other organised sporting activities.

In addition, Serco have commenced gardening projects where clients are involved in the production of vegetables as well as flower beds. Fortnightly BBQs are also held in the NIDC where separate compounds mix, clients cook for themselves and activities are arranged.

A range of religious services are provided to clients within the detention environment. The DSP has a Religious Liaison Officer (RLO) who is responsible for the coordination of religious and cultural services for all clients in immigration detention. Celebration of religious events such as Eid is organised on-site by the RLO in conjunction with DIAC and LWB.

The main compounds within the NIDC have Muslim prayer rooms with a purpose built washing facility to prepare for prayers; and multi faith prayer rooms. The Darwin Airport Lodge and the Asti Motel have multi purpose rooms that are used as prayer rooms. Clients are provided with a range of religious items including Koran, prayer mats, songkoks, and Bibles.

Weekly excursions are now in place for clients from the NIDC to attend the mosque. In consultation with the NT Islamic Society, a maximum of 50 clients are able to attend each week. Clients are put on a weekly rotating roster of who is able to attend the mosque.

Religious excursions are also in place for clients from the Darwin Airport Lodge and the Asti Motel to attend the mosque, church services and the Hindu Temple on a weekly basis.

The local Imam visits clients at the NIDC, Darwin Airport Lodge and the Asti Motel three times a week to meet with clients and to provide pastoral care and guidance.

The NT Islamic Society and the department are currently discussing further services that may assist clients in detention such as Islamic education and personal development classes over the school holidays.

Recommendation 9: The Australian Government should ensure that all school-aged children in immigration detention in Darwin and elsewhere are provided with access to educational opportunities of a standard and quality equivalent to that in Australian schools. Wherever possible, this should take place outside the detention environment by facilitating access to the Australian school system.

On 7 September 2010, a Memorandum Of Understanding between DIAC and the NT Department of Education and Training was signed. The department and its DSP has worked closely with local schools to ensure school-aged children have access to schooling that is appropriate to their age, level of maturity and cultural and linguistic backgrounds.

The department’s policy is that all school-aged children, aged 5-15 have access to education in public schools. This is in line with the ‘Best Interests of the Child’ guidelines from the United Nations High Commissioner for Refugees Charter on the Rights of Children and the relevant state legislation on education.

Older children, aged 17, and young adults attend English language lessons and special life-skills classes.

A school holiday program is being organised for all minors - aged 5-15 and 16-17. The program will run over the period of 13 December 2010 to 21 January 2011.

The department is also exploring options for formal offsite activities for those aged 0-4, as well as schooling for those aged 16-17.

Playgroup sessions are held at the APODs twice weekly for young children aged 0-4 with their parents. In addition, early childhood experts from Charles Darwin University visited families at the Darwin Airport Lodge and Asti Motel to specifically work with children aged 0-4 and their parents.

Soft toys, puzzles and games are available for children.

Recommendation 10: The Australian Government should stop using the Asti Motel in Darwin as an ‘alternative place of detention’ as soon as possible.

The Asti Motel in Darwin is viewed as a short-term APOD arrangement. When additional capacity is developed and constructed, clients at the Asti Motel will be moved as a priority.

On 18 October 2010, the Prime Minister and the Minister for Immigration and Citizenship announced the establishment of new detention accommodation on mainland Australia to relieve the strain on the detention network. Inverbrackie in South Australia, located approximately 37km east of Adelaide, will be used to accommodate up to 400 family members.

In response to the limitations of the Asti Motel, there has been an increase in excursions for clients. This has included bus tours, beach walks, outdoor and indoor soccer, bowling and dance classes. Clients also participate in off-site visits to religious sites, such as the mosque, Hindu temple and churches. Clients are also able to engage in some sporting activities at the rear of the Asti Motel.

[1] Migration > 21/8/2010 - > P. 21/8/2010 - > PAM3 - MIGRATION ACT > Compliance instructions > Compliance, case management & detention > Treatment of children - Guiding principles