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HREOC Report No. 28

Report of an inquiry into complaints by immigration detainees concerning their
detention at the Curtin Immigration Reception and Processing Centre

HREOC Report
No. 28

© Commonwealth of Australia 2005

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 complaints
made by twenty six immigration detainees at the Curtin Immigration Reception
and Processing Centre. I have found that acts or practices of the Commonwealth,
namely placing some of the complainants in separation detention for periods
of between three and eight months, were inconsistent with or contrary to the
human rights of those detainees as provided for in Article 10(1) of the International
Covenant on Civil and Political Rights.

Yours sincerely,

John von Doussa QC

President, Human Rights and Equal Opportunity Commission

February 2005

Table of Contents

1. Introduction

2. Outline of the Complaints

3. Outline of the Response

4. Other Evidence

(i) Australasian Correctional Management Pty Limited, Detention Services,
Operating Manual – Separation Detention

5. Conciliation

6. Tentative View

(i) Provision of Tentative View

(ii) Response to Tentative View

7. Relevant Law

(i) HREOC Act

(ii) International Covenant on Civil and Political Rights (ICCPR)

8. Section 29 Notice

9. Findings

(i) Findings on length of separation detention

(ii) Findings relating to Mr C1

(iii) Findings relating to all complainants

10. Recommendations

11. Response of the Commonwealth to the Findings and Recommendations

Appendix A

Endnotes

1. Introduction

Under the Human Rights and Equal Opportunity Commission Act 1986 (Cth)
('HREOC Act') the Human Rights and Equal Opportunity Commission ('Commission')
has the function of inquiring 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.[1] One of those
instruments is the International Covenant on Civil and Political Rights ('ICCPR').[2]

The Commission is required to perform this inquiry function when requested
to do so by the Minister, when a complaint is made in writing to it that an
act or practice is inconsistent with or contrary to any human right, or it
appears to the Commission to be desirable to do so.[3] The
inquiry the subject of this report has been conducted in response to written
complaints received by the Commission.

Where the Commission is of the opinion that an act done or a practice engaged
in by a person is inconsistent with or contrary to any human right it is required
to report to the Attorney-General in relation to the inquiry.[4]
Section 8(6) of the HREOC Act provides that the Commission's functions of inquiring
into a complaint and reporting to the Attorney-General shall be performed by
the President. These functions are outlined in more detail in Appendix
A.

I have inquired into wide-ranging written complaints made in August and September
2001 by twenty six immigration detainees from the Curtin Immigration Reception
and Processing Centre ('Curtin IRPC') against the Commonwealth of Australia,
through the Department of Immigration and Multicultural and Indigenous Affairs
('DIMIA').[5]

The complainants each claimed that they had been kept for extended periods of time in separation detention contrary to their human rights, and each also alleged one or more other acts or practices inconsistent with or contrary to their human rights. I previously decided to decline all their various complaints apart from those relating to the length of time spent in separation detention, and a complaint made by Mr C1 concerning a refusal of a request by him to see a priest whilst he was in separation detention. (For reasons that follow, I consider that Mr C1's separate complaint should be treated as an aspect of his complaint about the duration of his time in separation detention.) All the complaints that I have previously decided were declined either under s 20(2)(a) of the HREOC Act, on the ground that the act or practice complained about was not inconsistent with or contrary to any human right, or under s 20(2)(c)(ii) of the HREOC Act, on the ground that the complaint was lacking in substance. There is no need to make further reference to these aspects of the complaints.

As a result of my inquiry I have found that acts or practices of the Commonwealth, namely placing some of the complainants in separation detention for periods of between three and eight months, were inconsistent with or contrary to the human rights of those detainees as provided for in Article 10(1) of the ICCPR.

2. Outline of the Complaints

The complainants allege that following their initial immigration interviews with officers of DIMIA they were held in closed camps at the Curtin IRPC for unjustifiably long periods of time and in two cases for nine months. They claim that while in separation detention they were not allowed to have any contact with the world outside of the closed camps in which they were held. In particular, they state that they were not allowed to contact their families in their country of origin.

The complainants allege that they were not able to communicate with detainees who were being held in other parts of the Curtin IRPC. In particular, Mr C2 alleges that during the seven months that he was held in the closed camps he was not allowed to communicate with his brother who was being held in another part of the Curtin IRPC.

The complainants state that there they were not allowed to use the telephone and there was no telephone in the closed camp. They state that they were not permitted to write or send letters. They further state that while in the closed camps they could not listen to the radio, watch television or read the newspaper. They claim that they were not provided with any recreational, educational or welfare facilities.

Mr C1 claims that while he was held in the closed camp he completed a request form to see a priest as he wanted to be baptised and become a Christian. Mr C1 claims that his request was not facilitated and he was not allowed to see a priest and change his religion.

3. Outline of the Response

DIMIA responded to the complaints in a series of letters between 21 May 2002 and 20 August 2003.

DIMIA states that new arrivals at IRPCs are placed in accommodation that is separate from the general detainee population, known as "separation detention".

In response to the complaints of twenty one of the complainants DIMIA gave the following reasons why they were in separation detention:

"Separation detention is an area or areas in a detention facility in which new arrivals are kept separate from other detainees. Separation detention is a management tool through which the integrity of Australia's visa determination process is maintained. Effective separation detention provides the Department with the assurance that any claims by unlawful non-citizens to remain in Australia are put forward by detainees without the embellishment or coaching of others.

In separation detention, detainees are not permitted to make telephone calls or correspond with people in the Australian community. They are however provided with reasonable facilities, upon request, to access legal advice, the United Nations Commission for Refugees, the Australian Red Cross and consular personnel. Any request by a detainee in separation detention to make contact with the Commonwealth Ombudsman or HREOC is facilitated and material from these statutory bodies such as posters is prominently displayed at all times."

In response to the complaints of three other complainants DIMIA gave the following slightly expanded explanation for separation detention:

"New arrivals at IRPCs are placed in accommodation that is separate from the general detainee population. This is known as separation detention. Separation detention is maintained throughout initial entry screening, health checking and establishment of identity. Its purpose is to protect the integrity of the Protection visa process and to ensure that Australia's resources are directed toward those with genuine claims for protection and not those who would use the protection process in an attempt to achieve migration outcomes. Detainees remain separate from the general detainee population until it is established, direct from the detainee, who they are, their purpose and intention in coming to Australia, whether they have claims to remain in Australia and whether they pose a risk to the Australian community."

Subject to the above restrictions, DIMIA states that detainees in separation detention are free to interact with others in the same stage of processing, and detainees have ready access to DIMIA staff and the assistance of the centre's medical staff.

DIMIA states that upon arrival, detainees in separation detention are permitted to send a message to friends or relatives overseas to advise of their safe arrival and an address to which correspondence can be sent. DIMIA states that if they are unable to send a facsimile or letter to contact relatives they are able to make a short telephone call. DIMIA states that they can receive correspondence from family overseas.

DIMIA states that if they ask for a lawyer or for assistance to make an application for a visa, communication facilities are made available through the on-site DIMIA officer to contact appropriate service providers.

DIMIA states that the welfare and recreational services are equivalent to those in the main compound and that an educational service operates normally two days per week. Detainees have access to books and videos but there is no access to television, radio or newspapers under DIMIA's policy on separation detention.

DIMIA states that family groups are held in separation detention in the Echo compound which has a children's play area and that the family groups and single females are housed together, away from the single men.

In relation to the separate complaint by Mr C1, DIMIA states that on 5 December 2000 he completed a Request to See DIMIA Form in which he asked "to request an application or to see someone about changing my religion I am currently a Muslim but wish to change to the Christian faith could someone please help me with my beliefs". A copy of the form has been produced. It makes no reference to seeing a "priest", or to baptism. DIMIA states that on 12 December 2000 the DIMIA manager advised him that his request would be considered once he was moved from separation detention into the main compound. DIMIA states that detainees in separation detention are not permitted contact with members of the Australian community.

DIMIA states that Mr C1 was moved into the main compound on 30 March 2001 and that on 1 April 2001 he lodged another request for the same reasons. DIMIA states that the matter was referred to Ms Joanne Moore, an Australasian Correctional Management Pty Ltd ('ACM') Welfare Officer, on 3 April 2001 and that Mr C1 saw a Christian Minister on 13 May 2001 and that since then has been attending Christian services held at the Curtin IRPC.

4. Other Evidence

(i) Australasian Correctional Management Pty Limited, Detention Services, Operating Manual - Separation Detention

During the time that the complainants were separately detained, ACM was contracted to manage detention centres, including Curtin IRPC, on behalf of DIMIA.6 The ACM Operating Manual on Separation Detention states that the purpose of the policy of separation detention is to ensure that newly arrived detainees are kept separate, unable to communicate with or be seen by other detainees or persons not permitted by DIMIA at the facility. It is also to ensure that effective separation detention is maintained whilst still providing as much freedom of movement, association and individual expression as possible within an administrative detention environment. Detainees in separation detention are to be treated no differently to other detainees and will be subject to the same administrative and health processes as other detainees.

The manual states that while in separation detention, detainees are to have reasonable access to the full range of detention facilities and services including food, health, welfare and recreation. With services such as medical or educational that are usually only available in other areas of the detention centre, arrangements are to be made to ensure that such services are available to detainees without breaching the requirements of separation detention.

In relation to communication the manual states that, subject to written approval of DIMIA, detainees are on arrival able to communicate only by letter or fax to an overseas address to confirm safe arrival in Australia. Detainees in separation detention (except with written approval of DIMIA) are not permitted to:

  • Make or receive telephone calls
  • Have access to faxes for incoming or outgoing messages
  • Correspond with people in the Australian community
  • Have access to incoming mail
  • Have access to a computer with a modem.

The manual also states that detainees in separation detention may be provided with reasonable facilities UPON REQUEST to access:

  • Legal advice
  • UNHCR
  • Red Cross, and
  • Consular personnel.

It states that any attempt by a detainee in separation detention to make contact with the Commonwealth Ombudsman or the Commission is to be facilitated.

In relation to the media the manual states that while in separation detention detainees are not to have access to:

  • Television broadcasts
  • Radios
  • Newspapers or magazines.

They may have access to suitable videos and reading material in languages used by major groups of detainees.

The manual states that the length of time in which a detainee remains in separation detention can vary. The manual continues:

"5.16 In IDCs, some unauthorised air arrivals may remain in separation detention for only a matter of a few days before they are removed.

5.17 In IRPCs however, where most unauthorised boat arrivals are detained, new arrivals remain in separation detention until health screening, initial interviews and associated checks can be completed. Some detainees who do not put forward [sic-claims], or for whom there is no basis for Australian protection may remain in separation for an extended period of time."

5. Conciliation

Due to the subject nature of the complaints the Commission did not consider it appropriate to endeavour, by conciliation, to effect a settlement of the matters giving rise to the complaints.[7]

6. Tentative View

(i) Provision of Tentative View

On 29 January 2004 I informed the parties of my tentative view that, (with the exception of Mr C3, Mr C4 and Mr C5, who had been detained in separation detention for less than one month), the conditions of separation detention of the complainants at the Curtin IRPC were not in accordance with Article 10(1) of the ICCPR. I expressed the tentative view that separation detention in the conditions disclosed by the information before me for a period exceeding three to four weeks, save in exceptional circumstances, would not be in accordance with Article 10(1). Those conditions comprised an unreasonably long period of detention, the inability to effectively communicate with family and friends, and the lack of access to news through the media.

(ii) Response to Tentative View

In a letter of 4 March 2004 DIMIA raised three issues in response to my tentative view.

First, DIMIA identified the key issue raised in the tentative view as being whether it is legitimate to continue separate detention after the initial screening process has been completed and it is found that no claims have been raised which may engage Australia's protection obligations under the Refugee Convention. DIMIA said:

"We submit that this is indeed legitimate and is required to maintain the integrity of the protection visa process. The Tentative View suggests that this concern could be satisfied by having a thorough initial interview process in separation detention and, if further claims are subsequently raised, having that delay considered essentially as an issue going to credibility. While this approach has an attraction in theory, we feel that it underestimates the opportunity for coaching and enhancement of claims. In our experience over time with many cases, dealing with this through credibility assessments after the event is problematic. In essence, our view is that the integrity of the process requires that this issue be dealt with by prevention rather than cure."

By a further letter of 21 April 2004 DIMIA elaborated on the meaning of the expression "integrity of the . . . process".

"'Integrity of the process' refers to the maintenance of reliability of the protection visa process, that is, its capacity to readily identify and protect refugees and to ensure that non-refugees are not encouraged to exploit the protection visa process. Separation detention upholds this integrity by minimising abuse of the protection visa system by applicants, and those that they may come into contact with. Separation detention provides applicants an opportunity to provide an accurate reflection of their claims and information available and minimises potential for others to encourage frivolous or fabricated protection visa claims. It needs to be borne in mind that fabrication or embellishment of claims can lead individuals to abandon legitimate claims for protection they might otherwise have made, and can seriously compromise their credibility.

Detainees have become increasingly inventive and creative in attempting to breach the separation between new arrivals and others in the facility. Methods of attempted communication have included hiding written messages in food prepared in centralised kitchens, and, as documented by Philip Flood AO in his Report of Inquiry into Immigration Detention Procedures, kicking balls over fences with 'coaching' information about migration processes written on them. Effective separation detention provides the department with the assurance that any claims by unlawful non citizens to remain in Australia are put forward by detainees without the embellishment or coaching of others."

Secondly, DIMIA said that a requirement proposed in the tentative view that separation detention beyond a period of three to four weeks be restricted only to exceptional cases is 'difficult'. DIMIA's letter continued:

"Instead, it is suggested that the appropriate test beyond that period is whether the legitimate purposes of separation detention continue to apply. For example, it is conceivable that identity and initial character assessments may last for an extended period due to non-cooperation of detainees in a large number of cases. Such a situation would not be 'exceptional', but the extended period of separation detention would be legitimate."

Thirdly, DIMIA stated that my tentative view was heavily reliant on the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of all Persons under any form of Detention which were concerned with penal or correctional detention rather than immigration detention. These instruments are discussed in the next section.

7. Relevant Law

(i) HREOC Act

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

(ii)International Covenant on Civil and Political Rights (ICCPR)

Article 10(1) of the ICCPR provides:

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

Relevant to Mr C1's separate complaint that he was denied access to a priest, Article 18 of the ICCPR provides:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. ....

Article 10(1) establishes a broad general standard of humaneness in detention. The content of this standard has been developed with the assistance of the Standard Minimum Rules for the Treatment of Prisoners (the 'Standard Minimum Rules') and the Body of Principles for the Protection of all Persons under any form of Detention (the 'Body of Principles').

The Third Committee of the General Assembly in its 1958 Report on the drafting of the ICCPR stated that the Standard Minimum Rules should be taken into account when interpreting and applying Article 10(l).[8] The Human Rights Committee established by the ICCPR as the most authoritative interpreter of the ICCPR has also indicated that compliance with the Standard Minimum Rules and the Body of Principles is the minimum requirement for compliance with the ICCPR's obligation that people in detention are to be treated humanely (Article 10). [9]

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

The Standard Minimum Rules are intended to describe in detail a model system of penal institutions. Immigration detention centres are not penal institutions in the sense that they house convicted criminals or people charged with a criminal offence. Nevertheless the Standard Minimum Rules are expressed to set out minimum conditions which are accepted as suitable by the United Nations for the general management of institutions housing all categories of prisoner, and I consider that they provide a helpful guide to the standards which Article 10(1) requires in the circumstances under consideration. Rules 37 and 39, under the heading "Contact with the outside world", provide:

37. Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.

39. Prisoners shall be kept informed regularly of the most important items of news by the reading of newspapers, periodicals or special institutional publications, by hearing wireless transmissions, by lectures or by any similar means as authorized or controlled by the administration.

Rule 41(3), under the heading "Religion" also provides:

Access to a qualified representative of any religion shall not be refused to any prisoner..

The Body of Principles, adopted by the General Assembly, resolution 43/173 of 9 December 1988 are expressed to apply for the protection of all persons under any form of detention or imprisonment. Principles 15 and 16 provide:

Principle 15

Notwithstanding the exceptions contained in principle 16, paragraph 4, and principle 18, paragraph 3, communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a few days.

Principle 16

1.Promptly after arrest and after each transfer from one place of detention or imprisonment to another, a detained or imprisoned person shall be entitled to notify or to require the competent authority to notify members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment or of the transfer and of the place where he is kept in custody.

2...

3...

4. Any notification referred to in the present principle shall be made or
permitted to be made without delay. The competent authority may however delay
a notification for a reasonable period where exceptional needs of the investigation
so require.

(Principle 18 concerns communications with legal counsel, and is not presently relevant.)

DIMIA in its letter of 4 March 2004 contends that reliance should not be placed on the Standard Minimum Rules and the Body of Principles, as they relate to penal and correctional detention rather than immigration detention. However, the Body of Principles are expressed to apply for the protection of all persons under any form of detention, which I consider includes immigration detention; and for the reasons outlined above I consider that it is appropriate that I have reference to the Standard Minimum Rules in applying Article 10(1) of the ICCPR. I consider both the Standard Minimum Rules and the Body of Principles provide a guide to the standards which Article 10(1) requires.

8. Section 29 Notice

On 8 July 2004, 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 appear in section 9 below.

Pursuant to s 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. 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.[10] My recommendations
are set out in section 10 below.

Under s 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 DIMIA, on behalf of the respondent, to advise the Commission of those matters. DIMIA's response to that invitation is contained in section 11 below.

9. Findings

(i) Findings on length of separation detention

At the outset it is necessary to make a finding as to the length of time each of the complainants spent in separation detention.

The complainants generally specify the period of time spent in separation detention in months, whilst DIMIA's response provides the time each detainee spent in separation detention in days. See Table A below.

There was particular uncertainty about the amount of time Mr C6 spent in separation detention. By letter of 20 August 2003 DIMIA advised that Mr C6 arrived in Australia on 2 November 2000 and was taken into separation detention at the Curtin IRPC on the same day. DIMIA advised that it is not possible to determine the exact date that Mr C6 was transferred from separation detention to the general population of the centre. However, on 9 January 2001 he was transferred to the Perth Immigration Detention Centre for treatment at the Royal Perth Hospital for an injury sustained while playing volley ball at the Curtin IRPC. During this time he was receiving regular treatment at the hospital until 29 March 2001 when he was transferred back to the Curtin IRPC. Upon his return to this centre he was accommodated in the main compound, indicating that he was no longer being held in separation detention.

On balance I consider that it can be concluded that Mr C6 was held in separation detention from 2 November 2000 to 29 March 2001. DIMIA's response indicates that Mr C6 was transferred to the main compound on 29 March 2001. Mr C6 claims that he was held in separation detention for 5 months and his brother (C7) who arrived on the same boat as him was held in separation detention for a period of about 5 months.

Significant disparity exists between the period of time that Mr C4 and Mr C5 allege they spent in separation detention, and the information supplied by DIMIA as to how long they were separately detained. My findings about the duration of the separation detention are based on the following material.

Mr C4 and Mr C5 both allege that they were held in separation detention for a period of 5 months. In the response provided from DIMIA, it advised that Mr C4 was held in separation detention from 27 December 2000 to 22 January 2001, a period of 26 days and Mr C5 was held from 27 December 2000 to 23 January 2001, a period of 27 days. On 5 June 2003 further information was sought from DIMIA to clarify this discrepancy. DIMIA provided copies of its Integrated Client Service Environment database, which confirmed the dates provided in its initial response. Therefore, I consider that it should be concluded that Mr C4 spent 26 days in separation detention and Mr C5 spent 27 days in separation detention.

Table A

Detainee and HREOC file reference
Alleged by complainant
Alleged by DIMIA

(in days)
Mr C1 (2011384)
6 months
148
Mr C2 (2011494)
7 months
(27/9/00 – 10/5/01) 226
Mr C3 (2011670)
No time specified
19
Mr C4 (2011383)
21/12/00 -7/5/01
26
Mr C5 (2011383)
21/12/00 -5/5/01
27
Mr C6 (2100713)
5 months
(2/11/00 –29/3/01) 147
Mr C7 (2100713)
5 months
134
Mr C8 (2011821)
5 months
115
Mr C9 (2011699)
Few months
134
Mr C10 (2011426)
Few months
100
Mr C11 (2011647)
9 months
256
Mr C12 (2011647)
5 months
182
Mr C13 (2011647)
5 months
122
Mr C14 (2011647)
5 months
122
Mr C15 (2011647)
9 months
264
Mr C16 (2011647)
6 months
121
Mr C17 (2011646)
5 months
116
Mr C18 (2011645)
6 months
134
Mr C19 (2011427)
9/11/00 – 3/3/01
114
Mr C20 (2011428)
5 months
141
Mr C21 (2011381)
5 months
109
Mr C22 (202896)
7 months
246
Mr C23 (2011382)
6 months
117
Mr C24 (2011383)
21/12/00 -5/5/01
138
Mr C25 (2011425)
6 months
(1/10/00 – 1/3/01) 152
Mr C26 (2011644)
5 months
(9/11/00 – 4/3/01) 116

In relation to the other complainants, I accept that DIMIA's records, shown
above in column 3 of Table A, are an accurate record of the amount of time
the complainants spent in separation detention.

(ii) Findings relating to Mr C1

It is convenient to first discuss the separate complaint of Mr C1 that he was denied access to a priest. Article 18 of the ICCPR and Standard Minimum Rule 41(3) have already been set out.

I find that by declining Mr C1's request for "an application or to see someone about changing my religion" DIMIA did not act inconsistently with or contrary to the human right set out in Article 18 of the ICCPR. The refusal did not deny the freedom of Mr C1 to hold whatever thought, conscience or religion he chose. In his written complaint Mr C1 refers to an existing belief in Jesus Christ that DIMIA's refusal prevented him from expressing. His complaint thereby acknowledges that he was not prevented from holding that belief, and that he did in fact hold it whilst in separation detention. The refusal may have delayed formal recognition by others of a change in his beliefs, but he was nonetheless able to adopt and follow whatever beliefs and religion he chose.

Mr C1 was not subjected to coercion as to his beliefs, and he was not constrained or limited in his ability to profess or manifest the beliefs or religion of his choice. The request made by him was not a specific request to see a priest or qualified representative of a Christian religion; rather it appears to be a request to comply with whatever formality may be required to formally record a change of religion. In the circumstances I think it is doubtful that the letter of Rule 41(3) of the Standard Minimum Rules has been broken, but in any event I consider that the requirements of the Standard Minimum Rules must, in this case, be understood in the context of Article 18, the requirements of which are in issue. As I have observed, I do not think the act or practice complained of is inconsistent with or contrary to the requirements of that Article.

I consider the refusal of the request made by Mr C1 in the Request to See form should be considered as an act demonstrating the nature and extent of the restricted and isolating environment which characterised separation detention.

(iii) Findings relating to all complainants

In relation to the complaints by all complainants concerning their separation detention I make the following findings of fact:

(a) The complainants, as new arrivals at the Curtin IRPC on various dates between 21 June 2000 and 27 December 2000, were placed in accommodation that is separate from the general detainee population in accordance with DIMIA's policy of separation detention.

(b) The period of time spent by each of the complainants in separation detention is the period contained in column three of Table A above.

(c) The complainants Mr C3, Mr C4 and Mr C5 were held for periods of less than one month in separation detention. The remainder of the complainants were held in separation detention for periods of three months or more. Four of the complainants were held for periods of time in excess of seven months.

(d) On their admission into separation detention the complainants' ability to advise family of their safety and whereabouts was extremely limited.

(e) Throughout the period of separation detention the complainants were not permitted to make or receive telephone calls or to send or receive correspondence with people in the Australian community or elsewhere, apart from contact with a legal advisor, the UNHCR, the Australian Red Cross, consular personnel, or the Ombudsman or HREOC where this had been specifically requested by the detainee.

(f) Throughout the period of separation detention the complainants were not able to have contact with members of their families or friends who were in Australia, even those who were in general sections of the Curtin IRPC.

(g) Throughout the period of separation detention the complainants had no access to free-to-air television, the radio or newspapers, and for that reason were cut off from news about events occurring in the outside world.

(h) Throughout the period of separation detention, the complainants had access to books supplied by or on behalf of DIMIA, and to televisions which were used only for the screening of videos. They also had access to basic recreational facilities similar to those in the general sections of the Curtin IRPC.

(i) Whilst in separation detention, the reasons for the restrictions on communication and contact with the outside world, and the intended duration of those restrictions, were not clearly explained to the complainants. From their view points separation detention with all the above restrictions was indeterminate.

In further explanation of findings (d) and (e) above, I note that DIMIA states that detainees in separation detention are able to send a message to their friends or relatives overseas to advise of their safe arrival and if they are unable to send a letter or a facsimile they can make a short telephone call. DIMIA states that detainees in separation detention can provide their families with an address to which correspondence can be sent and can receive correspondence from their families overseas.

However, after considering all the information submitted in this matter, I find that the evidence indicates that the only communication that was permitted with family members and friends overseas consisted of a one page standard facsimile/letter to be sent on behalf of the complainant on arrival. In the letters of complaint the complainants consistently state that during the period of separation detention they were not able to communicate with their families overseas by post or by telephone. In fact the only communication that the complainants state that they were told that they were allowed to have was the sending of a facsimile. The ACM Manual on separation detention provides that detainees are not permitted to make or receive phone calls except with the written approval of DIMIA. The evidence before me does not indicate that during their periods of separation detention any of the complainants were able to contact their families by phone to advise of their safe arrival in Australia.

DIMIA has advised that detainees in separation detention can provide their families with an address to which correspondence can be sent and can receive correspondence from their families overseas. However, the ACM Manual on separation detention does not support that as a normal operating procedure detainees held in separation detention would be able to receive mail from their families overseas. The ACM Manual states that detainees in separation detention are (except with written approval from DIMIA) not permitted to have access to incoming mail. I also note that the text of the standard letter which has been provided by DIMIA does not support its position that detainees could provide their families with an address which they could write to and that detainees could receive correspondence from them. The standard letter does not provide any address at which the detainee can be written to and specifically states that "Return faxes will not be accepted".

I note that in the Commission's letter of investigation of 22 October 2001 DIMIA was asked to provide for each of the complainants named in the letter details of whether they were able to contact family members and, if so, when and how this took place. In response DIMIA outlined its general position on the contact which it states is permitted during separation detention but did not provide the specific details requested. On 5 June 2003 the Commission wrote to DIMIA and provided it with the opportunity to provide any submissions it would like to make on the apparent discrepancies between the complainants' evidence, ACM's documents and DIMIA's views on the matter and these issues. DIMIA was specifically asked to confirm whether these detainees were able to communicate with their families overseas while in separation detention by means other than the sending of a standard facsimile.

In its letter of 20 August 2003 DIMIA stated that ACM management has advised that upon arrival in Australia, detainees are permitted to send a short standard facsimile to their family overseas stating that they have arrived safely in Australia. ACM management have stated that they are not aware of telephone calls being permitted in this situation. If telephone calls were permitted, it would have occurred in the DIMIA office as detainees in separation detention do not have access to telephones, radio, television or newspapers.

Specific details of the contact allowed were provided in response to the complaint by Mr C8. DIMIA states that in accordance with policy at the time of his separation detention he was able to write to his family a standard form letter, which informed them that he arrived in Australia safely. The standard letter is printed, in English and translated into the first language of the sender. It states the following:

"This is to let you know that have arrived safely in Australia and am being detained in Immigration Detention. I am currently unable to telephone or write a letter to you but as soon as I can I will be in touch. I am in good health and being looked after. Return faxes will not be accepted."

It appears that for DIMIA the preferred means of sending this letter is by facsimile. The complainants all originally came from Iran and Iraq. I am of the view that most families in these countries would not have fax machines or a fax number on which they could be contacted. Therefore, in the cases of these complainants it is difficult to see that there was any real communication between them and their families and friends overseas whilst they were in separation detention.

In relation to finding (h) above, I note that the complainants have also claimed that they had limited recreational facilities whilst in separation detention. DIMIA states that the welfare and recreational services are equivalent to those in the main compound.

DIMIA further states that an educational service operates normally two days per week and that detainees have access to books and videos. However, DIMIA does not particularise what recreational facilities found in the main compound actually consist of and are provided to the detainees in separation detention. Even though there may be access to educational facilities in the main compound, it is questionable whether the detainees in separation detention would be able to use them if the purpose of the separation detention is to ensure there is no contact between those detainees and the detainees in the main compound. However, on the vague state of the material available I do not think any finding about recreational facilities, beyond that identified in finding (h), can be made.

Separation detention for the purpose of public risk assessment, health checking and establishing the identity of newly arrived unlawful non-citizens may be accepted as a necessary measure to ensure the security of Australia's borders. The Commission has previously noted that:

"A short period of initial segregation for the purposes of undertaking identity, health and other public risk assessments is not controversial provided that detainees are not held in conditions that are comparable to being held incommunicado".[11]

I also consider it is reasonable and appropriate that a newly arrived unlawful non-citizen should be kept in separation detention whilst undergoing initial screening and interviewing processes during which a full opportunity is given to explain the reason for travel to Australia, and to give an account of his or her situation. That account may indicate a possible entitlement to engage the protection of Australia as a refugee. It is notorious that at times asylum seekers make false claims about persecution in the country of their nationality, and it is reasonable that during the initial screening process, separation detention occur to ensure, as DIMIA says in its explanation of the purpose of such detention, that claims to engage Australia's protection are put forward without embellishment or coaching from others.

Separation detention for a reasonable time to allow newly arrived unlawful non-citizens to explain their situation in a formal interview may be regarded as part of an investigation of the kind that engages the exception to Principle 16 of the Body of Principles contained in Principle 16(4).

The essential issue in the case of each of the complainants is what period of separation detention was reasonable for these purposes?

Precise detail of the screening processes followed in the case of each complainant is not disclosed by the information available to me. I must therefore decide these complaints on general considerations.

An initial interview is likely to involve no more than a few hours at the most, but practical considerations where new arrivals come in large groups, as was the case with these complainants, mean that there may be delay before appropriately experienced DIMIA officers are available to conduct an interview. Moreover, time is necessary to appropriately house new arrivals, possibly at a location distant from the point of arrival. Further time is necessary for health, identity and security risk assessment. Once an interview takes place, time is necessary thereafter to assess the implications of information given, and possibly to conduct a further interview to clear up uncertainties. The time necessary for these processes may vary according to the circumstances of each individual person. In the absence of detail that suggests in the case of any one of the complainants that some shorter time should have been adequate to complete these processes I adhere to my tentative view expressed on 29 January 2004 that, save in an exceptional case, a period not exceeding three to four weeks would represent the outside limit of what could be reasonable.

In my opinion such a period would allow adequate time for properly trained and experienced interviewers to obtain from a new arrival a comprehensive account of that person's situation, and to elicit by the interview process whether the person asserts facts which might engage the protection obligations of Australia. Reported judicial decisions on applications for review of decisions by the Refugee Review Tribunal indicate that not uncommonly belated claims for recognition as a refugee are made by unlawful non-citizens in which facts are asserted which were not recounted at the time of initial interview. It is understandable therefore that the initial screening process must be sufficiently thorough to ensure that relevant facts and circumstances that might attract Australia's obligations are elicited during the interview.

By the use of appropriately trained and experienced interviewers this should be achievable during the interview process in a way that leaves no room for a later assertion by the interviewee that relevant information was not given as the purpose of the interview was not understood. In this respect I note that the introductory remarks read to unauthorised arrivals at the commencement of their formal interview do not invite them to explain why they left their country of residence or nationality, nor why they cannot return to that country. However, omissions in the provision of assistance of that kind, cannot provide reasonable justification for extending the period of separation detention.

If the interview process, and other information independently supplied by an unlawful non-citizen does not raise the possibility that the person could engage the protection obligations of Australia, I consider that there is no justification thereafter for continuing separation detention. To meet the human rights standard required by Article 10(1) of the ICCPR such a person should be moved into the general area of a detention facility, and the absolute restrictions against communication and the receipt of radio and television broadcasts of news lifted. If the person thereafter seeks to engage Australia's obligations and makes claims that were not disclosed in the initial screening process, so long as the initial screening process was appropriately conducted, it can be assumed that at every level of decision-making thereafter, the failure to make the belated claims at the outset when the opportunity was available to do so will be given proper consideration and weight in deciding whether Australia has protection obligations to that person.

If a person is kept in separation detention for a period longer than three to four weeks, save in exceptional circumstances, I consider that the detention is inconsistent with, or contrary to, the human right recognised in Article 10(1) of the ICCPR. In particular the length of detention is inconsistent with the standards of humanity recognised in Standard Minimum Rule 37 which states the detainee should be allowed to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits. The restrictions imposed during separation detention are also inconsistent with Principle 15 of the Body of Principles which provides that the communication of the detained person with the outside world, and in particular his family, should not be denied for more than a matter of days.

I think it is open to doubt whether the standard letter permitted by DIMIA on arrival satisfies Standard Minimum Rule 37. The letter consists only of a few sentences not written by the detainee. It is impersonal and does not allow for any further communication from the person to whom it is sent. Be that as it may, the letter, if it were received, would be the only form of communication from the detainee to their family or friends outside of Australia for the entire period of separation detention. As the separation detention under consideration extended for more than a short period, I consider that the lack of any better communication constituted inhumane treatment, inconsistent with Article 10(1) of the ICCPR.

Further, in the case of the immigration detainees who were kept in separation detention for more than a period of three to four weeks I consider that the detention was inconsistent with Standard Minimum Rule 39 which requires that detainees be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications and by hearing radio transmissions.

The human right recognised in Article 10(1) of the ICCPR was considered by the United Nations Human Rights Committee in Carolina Teillier Arredondo v Peru (Communication No.688/1996). That case concerned the conditions of detention of the author's mother in a high security prison following her conviction for membership of a terrorist organisation. The security considerations considered in that case differ considerably from those which apply in immigration detention. Nevertheless, I consider the statements of the Human Rights Committee are apposite in so far as the Committee, at para. 10.4 of the Communication, observe that where conditions of detention such as restrictions on watching television and receiving current news, are claimed by the State to be justified, it is for the State to establish that the restrictions were justified.

In its responses to the present complaints, DIMIA has not asserted that any one of the complainants falls into an exceptional case. Nor has it been suggested that any of the complainants was kept in separation detention due to 'non-cooperation'. No particular reason has been advanced to justify separation detention save that it was necessary for the standard processes of initial entry screening, health checking and establishment of identity.

In other cases it may be necessary to explore the factors which will render a particular case exceptional so as to justify separation detention beyond the period necessary in the circumstances for initial screening. It may also be necessary to explore the circumstances where non cooperation by a detained person could for this purpose constitute exceptional circumstances. However, these questions do not arise here. Nor is it necessary to fix an exact point in time when the separation detention became inconsistent with the human right recognised by Article 10(1) of the ICCPR. In the case of those complainants who were in separation detention for three months or more, in my opinion the point was well and truly passed.

I consider that the separation detention of Mr C3, Mr C4 and Mr C5 for periods of less than one month has not been shown to be inconsistent with or contrary to any human right and their respective complaints are declined. However, I find that no sufficient justification has been advanced for detaining the remainder of the complainants in separation detention for substantially longer periods - between three and eight months. I find that the conditions of their separation detention at the Curtin IRPC for these periods were not in accordance with Article 10(1) of the ICCPR, and therefore were inconsistent with the human right recognised by that Article, and by the HREOC Act.

10. Recommendations

Each of the complainants has long since been released from separation detention, and there is no occasion to recommend any action under s 29(2)(c)(ii) to remedy or reduce loss or damage suffered by those complainants who were detained too long in separation detention.

Further, I do not make any recommendation under s 29(2)(c)(i) for the payment of monetary compensation to any complainant. My reasons for not recommending monetary compensation are as follows. No claims for monetary compensation have been made by any complainant. Each of the complainants would have been detained in immigration detention, in the general section of the Curtin IRPC, in any event. Any loss or damage suffered by a complainant would be limited to the consequences of being deprived of access and communication with family and media for the period beyond that necessary for initial processing. The situation of each complainant would be different. Information that is necessary to assess if any particular complainant suffered consequences that would sound in monetary compensation is not available. Most of the complainants have now returned to their countries of origin, and their whereabouts is not known. It is not practicable at this late stage, in the absence of monetary compensation claims from the complainants, to explore possible compensation remedies.

Pursuant to s 29(2)(b) of the HREOC Act I can make recommendations for preventing a repetition of the respondent's acts and practices in relation to persons detained in separation detention, and I consider it is appropriate to do so.

Recommendation 1

I recommend that DIMIA ensure that no later than four days after a detainee enters separation detention the detainee be provided with means to effectively communicate with his or her family, including by sending letters or, if that is not possible, by making arrangements for contact by telephone.

Recommendation 2

Whilst a detainee remains in separation detention the detainee be permitted under supervision[12] to communicate with his or her family and reputable friends by sending and receiving letters and other written material.

Recommendation 3

Whilst a detainee remains in separation detention the detainee be kept informed regularly of important items of news. DIMIA should develop mechanisms for doing so in a meaningful way that edits out only information that could compromise the purpose of holding detainees in separation detention during the initial screening process.

Recommendation 4

As soon as the initial screening process is complete a detainee who does not make claims that may engage Australia's protection obligations should be released from separation detention and placed in the general area of a detention facility. The restrictions on communication with family and friends, and on access to newspapers, radio and television which apply in separation detention should be lifted.

Recommendation 5

Detention in separation detention should not continue beyond a maximum of 28 days, save in exceptional circumstances.

11. Response of the Commonwealth to the Findings and Recommendations

By letter dated 17 November 2004 DIMIA provided the following response:

The department appreciates the reasonable and constructive approach taken by HREOC in determining its findings and recommendations in this matter. It is pleasing that HREOC and the department share the view that it is reasonable and appropriate that a newly arrived non-citizen should be kept in separation detention whilst undergoing initial screening and interviewing processes.

That said, the department notes the President's recommendations and recognises that it would be beneficial if some current practices regarding separation detention were to be revised. In this regard, the department can advise the following:

Recommendation 1: That DIMIA ensure that no later than four days after a detainee enters separation detention the detainee be provided with means to effectively communicate with his or her family, including by sending letters or, if that is not possible, by making arrangements for contact by telephone.

The department agrees, where possible, to provide a detainee with the means to communicate with their family no later than four days after they enter separation detention.

Detainees entering separation detention will be given the means to send a postcard sized letter to an overseas address advising of their safe arrival in Australia and where return correspondence should be addressed. The department will arrange for the letter to be sent by air, land or facsimile, as available at both the points of origin and destination.

If a detainee requires assistance in locating relatives, access to the tracing and messaging services of the Red Cross will be facilitated under the Memorandum of Understanding between the department and the Australian Red Cross.

Recommendation 2: Whilst a detainee remains in separation detention the detainee be permitted under supervision to communicate with his or her family and reputable friends by sending and receiving letters and other written material.

After sending an initial letter advising of their safe arrival in Australia, detainees in separation detention will be permitted to send a postcard sized letter every two weeks to an overseas address advising that they remain safe.

In relation to incoming correspondence and other written material, we have re-examined this issue carefully and thoughtfully. However, we have been unable to identify an effective, lawful process for the department to vet incoming mail for any inappropriate 'coaching' to manufacture protection claims. Accordingly, at this stage we propose to maintain current policy whereby the detention services provider holds unopened mail in-trust for detainees in separation detention until they are moved into general detention or removed from Australia. If you have any further suggestions that we could consider in this regard, we would be happy to continue to discuss this matter.

Recommendation 3: Whilst a detainee remains in separation detention the detainee be kept informed regularly of important items of news. DIMIA should develop mechanisms for doing so in a meaningful way that edits out only information that could compromise the purpose of holding detainees in separation detention during the initial screening process.

The department supports detainees in separation detention having access to significant news stories from within Australia and from the detainee's homeland. This will be done using some or all of the following mechanisms, as available and appropriate:

  • providing access to Australian Multicultural Media newspapers subject
    to the removal of material liable to compromise the purposes for which
    a detainee is in separation detention;
  • printing off articles of interest from the Internet; and
  • video taping and showing television news programs in the detainee's language or television programs about the detainee's
    homeland, subject to any copyright restrictions.

The decision as to the precise mechanisms and information to be made available will be determined on a case by case basis.

Recommendation 4: As soon as the initial screening process is complete a detainee who does not make claims that may engage Australia's protection obligations should be released from separation detention and placed in the general area of a detention facility. The restrictions on communication with family and friends, and access to newspapers, radio and television which apply in separation detention should be lifted.

Please see our response below to Recommendation 5.

Recommendation 5: Detention in separation detention should not continue beyond a maximum of 28 days, save in exceptional circumstances.

The department will aim to keep detainees in separation detention for a minimum period of time and, where possible, no longer than 28 days, save for exceptional circumstances.

The department considers exceptional circumstances may include where:

  • a person who has made claims for Australia's protection obligations
    but has not yet been interviewed by an agent under the Immigration Advice
    Application Assistance Scheme and a departmental Onshore Protection Officer,
    despite reasonable efforts on the part of the department;
  • a person is available for removal (eg because he or she does not make
    claims that engage Australia's protection obligations) and the person's
    removal is reasonably practicable;
  • the identity of a person has not been established; and
  • a person is not cooperating in processes associated with the above circumstances.

All cases of extended separation detention will be included in the agenda of the department's Detention Review Committee and Executive Detention Review Committee. This will ensure regular fortnightly review by senior officers of the department of the appropriateness of continuing separation detention in exceptional circumstances.

Finally, the department would like to stress that while people in separation
detention may have limited contact with the outside world, they do have reasonable
access to the full range of services to have their care needs met, including
access to outside specialist health care where required.

I report accordingly to the Attorney-General.

John von Doussa QC

President

February 2005

APPENDIX A

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

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

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

1. The functions of the Commission are:

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

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

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

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

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

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

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

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

(s 29(2)(b) and (c) of the HREOC Act).

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

It should be noted that the Commission has a discretion to cease inquiry
into an act or practice in certain circumstances (s 20(2) of the HREOC Act),
including where the Commission is satisfied that the act or practice complained
about is not inconsistent with or contrary to any human right (s 20(2)(a) of
the HREOC Act), and where the Commission is of the opinion that the complaint
is lacking in substance (s 20(2)(c)(ii) of the HREOC Act).

Endnotes:

1. Section 11(1)(f) of the HREOC Act.

2. Section 3, Schedule 2 of the HREOC Act.

3. Section 20(1) of the HREOC Act.

4. Section 11(1)(f)(ii) of the HREOC Act.

5. In order to protect the privacy and human rights of the complainants
they are identified respectively in this report by the identifiers C1 through
to C26.

6. DIMIA’s contract is with Australian Correctional Services
Pty Ltd (‘ACS’), but the services are delivered through ACS’s
operational company, Australasian Correctional Management Pty Limited (‘ACM’).

7. Section 11(1)(f)(i) of the HREOC Act.

8. United Nations, Official Records of the General Assembly,
Thirteenth Session, Third Committee, 16 September to 8 December 1958, pages 160-173
and 227-241.

9. Human Rights Committee General Comment No. 21 (1992), paragraph
5. See also Mukong v Cameroon (1994)
HRC Comm No 458/1991, UN Doc CCPR/C/51/458/1991 at para 9.3.

10. Section 29(2)(c) of the HREOC Act.

11. Human Rights and Equal Opportunity Report: “Those
Who’ve Come Across the Seas: Detention of Unauthorised Arrivals”.
HREOC Report, 11 May 1998, page 138.

12. Standard Minimum Rule 37.

Last
updated 25 May 2005.