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Submission to the Parliamentary Standing Committee on Public Works on the Proposed Redevelopment of the Villawood Immigration Detention Facility

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Proposed Redevelopment of the Villawood Immigration Detention Facility

Australian Human Rights Commission Submission to the Parliamentary Standing Committee on Public Works

18 September 2009

Table of Contents

1 Introduction

  1. The Australian Human Rights Commission (the Commission) welcomes the opportunity to make this submission to the Parliamentary Standing Committee on Public Works in its Inquiry into the Proposed Redevelopment of the Villawood Immigration Detention Facility (Villawood).
  2. The Commission has conducted extensive work in the area of immigration detention, including:
    • submissions to parliamentary inquiries
    • national inquiries into immigration detention, in particular A last resort: National Inquiry into Children in Immigration Detention (2004) and Those who’ve come across the seas: Detention of unauthorised arrivals (1998)
    • annual inspections and reports on conditions in Australia’s immigration detention facilities
    • investigating complaints from individuals in immigration detention
    • examining proposed legislation
    • commenting on policies and procedures relating to immigration detention
    • developing minimum standards for the protection of human rights in immigration detention.[1]
  3. This submission draws on the above work and, in particular, on the Commission’s more than ten years of experience conducting inspections of immigration detention facilities, including Villawood.

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2 Summary

  1. The Commission fully supports a comprehensive redevelopment of Villawood. This should be undertaken as a matter of priority, to ensure that conditions for immigration detainees are brought into line with internationally accepted human rights standards.
  2. The Commission has repeatedly raised concerns about the conditions at Villawood, in particular the prison-like and dilapidated infrastructure of Stage 1. It has recommended that Stage 1 be demolished as a matter of urgency, and replaced with a new facility, subject to there being a continuing need for such a facility.
  3. Although some minor interim works have commenced at Villawood, the Commission is of the view that a much more comprehensive redevelopment is required.
  4. The Villawood redevelopment should be guided by international human rights principles, some of which are reflected in the Australian Government’s Key Immigration Values.[2] For example, Value 7 reflects the right of people in immigration detention to be treated with respect for the inherent dignity of the human person.
  5. The Villawood redevelopment should take into account the likely impacts of the Australian Government’s New Directions in Detention, including the Key Immigration Values. In particular, Value 5 stipulates that detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time.
  6. The Commission opposes the mandatory immigration detention system and has recommended numerous times that the Migration Act 1958 (Cth) (Migration Act) be amended to ensure that detention takes place only when necessary, according to international law. However, when a person is detained, it should be the least restrictive form of detention possible.

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3 Recommendations

  1. Recommendation 1: The Commission supports a comprehensive redevelopment of Villawood to be undertaken as a matter of priority. This should include the demolition of Stage 1 as a matter of urgency, and its replacement with a new facility, subject to there being a continuing need for such a facility.
  2. Recommendation 2: The Villawood redevelopment should comply with the minimum standards for the treatment of detainees as set out in international human rights law.
  3. Recommendation 3: The Villawood redevelopment proposal should be considered in light of the Australian Government’s New Directions in Detention, including the Key Immigration Values. In particular, Value 5 states that detention in immigration detention centres is only to be used a last resort and for the shortest practicable time.
  4. Recommendation 4: The Villawood redevelopment should ensure that immigration detainees are accommodated in the least restrictive form of detention possible.
  5. Recommendation 5: The Villawood redevelopment should address relevant concerns raised by the Commission in its 2008 Immigration detention report.[3]
  6. Recommendation 6: The Standards for design and fitout of immigration detention facilities should be updated to reflect the Australian Government’s Key Immigration Values, and should be applied to the Villawood redevelopment.

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4 The Commission supports a comprehensive redevelopment of Villawood

  1. The Commission has raised significant concerns about the infrastructure and facilities at Villawood for more than ten years.[4]
  2. In its last three annual inspection reports the Commission raised serious concerns about Stage 1 in particular, which is used to accommodate detainees who are considered to be ‘high risk’. These concerns focused on the prison-like atmosphere of Stage 1, created by the use of physical measures such as high wire fencing, razor-wire and surveillance cameras; and the ageing and inappropriate nature of the infrastructure, including cramped dormitories and lack of outdoor recreational areas.
  3. The Commission has recommended that Stage 1 should be demolished as a matter of urgency, and replaced with a new facility if there is a continuing need for such a facility. The Commission has also made recommendations relating to infrastructure and facilities in Stage 2 and 3 of Villawood.[5]
  4. The Villawood redevelopment has been under discussion by successive federal governments for a significant period of time.[6] In the Human Rights Commissioner’s 1998-99 review of immigration detention, the Commission noted that the then Australian Government had proposed to replace Villawood with a purpose-built centre, but that plans had ‘stalled.’[7]
  5. In July 2008, almost a decade later, the Minister for Immigration and Citizenship acknowledged that the Commission’s criticisms of the facilities at Villawood were ‘totally justified’.[8] In the 2008-09 federal budget, $1.1 million was allocated to undertake a feasibility study for the redevelopment of Villawood. Finally, in the 2009-10 federal budget, the Australian Government announced $186.3 million in funding for the redevelopment of the facility over five years, including the demolition of Stage 1 and the construction of a new purpose-designed unit, as well as the refurbishment of Stages 2 and 3.
  6. The Commission welcomed this announcement.[9] However, in doing so, the then Human Rights Commissioner, Graeme Innes, also emphasised that:
    • the Australian Government’s stated intention for people to be detained in immigration detention centres as a last resort should be taken into account in the redevelopment
    • any immigration detention which does occur should be the least restrictive form of detention possible
    • any detention conditions must be humane and ensure the inherent dignity of the human person.
  7. The Commissioner also noted that if “the Government’s commitment to detention as a last resort is to be taken seriously, then we would expect that only a small number of people would be detained in facilities like Villawood, and only for very short periods of time”.[10]
  8. Recommendation 1: The Commission supports a comprehensive redevelopment of Villawood to be undertaken as a matter of priority. This should include the demolition of Stage 1 as a matter of urgency, and its replacement with a new facility, subject to there being a continuing need for such a facility.

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5 The Villawood redevelopment should comply with relevant human rights standards in respect of detainees

  1. The provision of appropriate infrastructure for immigration detention facilities is fundamental to ensuring that the treatment of immigration detainees complies with internationally accepted human rights standards.
  2. Conditions in immigration detention and treatment of detainees must comply with Australia’s international human rights obligations. These obligations are set out in a range of international human rights instruments including:
    • the International Covenant on Civil and Political Rights (ICCPR)[11]
    • the International Covenant on Economic, Social and Cultural Rights (ICESCR)[12]
    • the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Convention against Torture)[13]
    • the Convention on the Rights of the Child (CRC).[14]
  3. These instruments cover a broad range of rights and freedoms. Some of the key human rights relevant to people in immigration detention include the following:
    • Everyone has the right to liberty and security of the person. No one should be subjected to arbitrary arrest or detention.[15]
    • All persons deprived of their liberty should be treated with humanity and respect for the inherent dignity of the human person.[16]
    • No one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment.[17]
    • The detention of a child should be used only as a measure of last resort and for the shortest appropriate period of time.[18]
    • In all actions concerning children, the best interests of the child should be a primary consideration.[19]
    • Every detained person should have access to independent legal advice and assistance.[20]
    • All persons have a right to the highest attainable standard of physical and mental health.[21]
    • Every person is entitled to respect for their human rights without discrimination.[22]
  4. Specific international guidelines relating to the treatment of detained persons include:
    • The Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment.[23]
    • The Standard Minimum Rules for the Treatment of Prisoners.[24]
    • The United Nations Rules for the Protection of Juveniles Deprived of their Liberty.[25]
    • Guidelines issued by the United Nations High Commissioner for Refugees (UNHCR), including the Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers.[26]
  5. In 2000, the Commission used these relevant human rights standards and international guidelines as a basis in developing the Immigration Detention Guidelines (the Guidelines).[27] The Guidelines set out principles relevant to the design and operation of immigration detention facilities.
  6. Some of the fundamental principles included in the Guidelines are as follows:
    • Immigration detention is administrative detention, not a prison or correctional sentence. Immigration detainees are detained under the Migration Act because they do not have a valid visa. They are not detained because they are under arrest, or because they are charged with a criminal offence. Therefore, the treatment of immigration detainees should be as favourable as possible, and in no way less favourable than that of untried or convicted prisoners.
    • Each immigration detainee should be treated in a humane manner and with respect for the inherent dignity of the human person.
    • In the design and delivery of services, facilities, activities and programs, immigration detention authorities should seek:
    1. to minimise differences between life in detention and life at liberty and

    2. to meet the individual needs of each detainee taking into account his or her history and experiences, age, gender and cultural, religious and linguistic identity.

  7. Clause 9 of the Guidelines deals specifically with the standard of accommodation which should be provided. This covers, for example, climatic conditions, cubic content of air, minimum floor space, lighting, heating, ventilation, window area, sanitary facilities, sleeping arrangements, and provision of separate accommodation for men, women and families.
  8. Clause 17 of the Guidelines specifies that no person should be held in solitary confinement or placed in a dark cell or subjected to other forms of cruel, inhuman or degrading treatment or punishment. This should be kept in mind when considering the design and construction of any ‘management units’.
  9. The full content of the Guidelines should be considered and applied in the Villawood redevelopment.
  10. As noted above, the Guidelines require immigration detention authorities to meet the individual needs of each detainee. In this regard, the Villawood redevelopment should also take into account the needs of immigration detainees with disabilities, as outlined in the Convention on the Rights of Persons with Disabilities[28]. The redevelopment should comply with the Disability Discrimination Act 1992 (Cth) and relevant standards under that Act.[29]
  11. Recommendation 2: The Villawood redevelopment should comply with the minimum standards for the treatment of detainees as set out in international human rights law.

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6 The Villawood redevelopment should reflect the Australian Government’s New Directions in Detention

  1. In July 2008, the Minister for Immigration and Citizenship announced the Australian Government’s ‘New Directions in Detention’ policy.[30] The New Directions policy is based on seven Key Immigration Values. Of these values, the Commission welcomed the following:
    • Value 3: Children and, where possible, their families, will not be detained in an immigration detention centre.
    • Value 4: Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, will be subject to regular review.
    • Value 5: Detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time.
    • Value 6: People in detention will be treated fairly and reasonably within the law.
    • Value 7: Conditions of detention will ensure the inherent dignity of the human person.
  2. The Villawood redevelopment proposal should be considered in light of these Values and any policy and legislative developments should support their implementation.
  3. In particular, if Value 5 was fully implemented, this could lead to a reduction in the need for secure detention facilities, in favour of alternative forms of detention (such as immigration residential housing or community detention), or alternatives to being held in detention (such as residing in the community on a bridging visa).
  4. While mandatory detention of certain groups has been retained by the Australian Government under the New Directions, Value 5 indicates that alternatives to detention in immigration detention centres should be considered for all unlawful non-citizens. The Villawood redevelopment is an ideal opportunity to implement this Value by considering creative and flexible alternatives to secure detention.
  5. The Commission opposes the mandatory immigration detention system and has recommended numerous times that the Migration Act should be amended to ensure that detention takes place only when necessary, in accordance with international law. It should be used as the exception rather than the norm. However, when a person is detained, it should be the least restrictive form of detention possible. This standard applies to all immigration detainees, including those whose visas have been cancelled under section 501 of the Migration Act.
  6. Recommendation 3: The Villawood redevelopment proposal should be considered in light of the Australian Government’s New Directions in Detention, including the Key Immigration Values. In particular, Value 5 states that detention in immigration detention centres is only to be used a last resort and for the shortest practicable time.
  7. Recommendation 4: The Villawood redevelopment should ensure that immigration detainees are accommodated in the least restrictive form of detention possible.

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7 The Commission’s specific concerns about infrastructure at Villawood

  1. The Commission has raised a range of specific concerns about the infrastructure and facilities at Villawood in each of its annual inspection reports.[31]
  2. In its 2008 Immigration detention report, the Commission’s major concerns about Stage 1 included:
    • the high-security environment of the building, surrounded by high wire fencing with razor wire in some parts
    • an overwhelming feeling of being closed in by walls and fences, and a tense atmosphere
    • ageing and dilapidated buildings
    • cramped dormitory bedrooms almost completely lacking in privacy
    • no grassy outdoor space for sports or recreation
    • bleak and inhospitable dining room and visitors’ facilities.
  3. The Commission’s 2008 report also included concerns relevant to both Stage 1 and other areas of Villawood, including the following:
    • The suicide and self-harm (SASH) observation rooms in Stage 1 are not appropriate for use by detainees at risk of suicide or self-harm. Detainees from Stages 2 and 3 on SASH observation should not be transferred to observation rooms in Stage 1. Purpose-built observation rooms should be constructed in Stages 2 and 3, and detainees should be observed in their own rooms when appropriate.
    • The Management Support Unit (MSU) is a small building used for separating detainees for behaviour management purposes. It is surrounded by a steel fence at the front, and a cage-like structure enclosing a small gravel courtyard at the back. The MSU is a grim, bare and uncomfortable place. Detainees are observed in their rooms on closed-circuit television, so they have virtually no privacy. There are no recreational facilities, and the only view out is through bars and wire fencing. The Commission is aware that DIAC plans to redevelop the MSU to turn it into a ‘high care unit’ for SASH observation and behaviour management purposes. The Commission is of the view that the MSU would need a complete overhaul in order for it to be turned into a facility appropriate for accommodating detainees at risk of self-harm.
    • The Commission is concerned that detainees, including those in Stage 1, do not have regular access to a range of organised recreational and sporting activities. All detainees, including those in Stage 1, should be permitted to use the soccer pitch in Stage 3 for sporting activities on a regular basis.
    • The Commission is concerned about the lack of dedicated space for educational activities in Stage 1.
    • The visitors’ facilities in Stage 1 are inhospitable and lacking in privacy. In Stage 2 and 3 there is no indoor area for detainees to meet with visitors.
    • The interview rooms in Stages 2 and 3, and one of the interview rooms in Stage 1, are not private or soundproofed. This is a particular concern for detainees meeting with legal representatives or migration agents, or detainees speaking with representatives of the Commission or the Commonwealth Ombudsman.
  4. In addition, the Commission’s 2008 report made a series of recommendations aimed at addressing cross-cutting concerns across Australia’s immigration detention facilities. Some of these are particularly relevant to the Villawood redevelopment, including:
    • DIAC should ensure that all detainees are provided with adequate access to open grassy space for sport and recreation.
    • DIAC should ensure that each immigration detention centre has an onsite library area stocked with reading materials in the principal languages spoken by detainees at the centre. All detainees should have regular access to this area.
    • DIAC should ensure that each immigration detention facility has adequate space dedicated to educational activities.
    • DIAC should continue to expand access to the internet for immigration detainees.
    • DIAC should ensure that all immigration detention centres have appropriate facilities for detainees to meet with visitors. These should include indoor and outdoor areas. Rooms should be available for private visits. The visitors’ areas should be safe, hospitable and appropriate for children.
    • DIAC should ensure that the interview rooms at all immigration detention centres are private and soundproofed.
    • DIAC should continue to explore ways to provide people in immigration detention centres with greater choice over what they eat, and more opportunities to prepare their own food if they wish to do so. DIAC should consider including more self-catering facilities at the immigration detention centres. This could include kitchenette facilities with cooking equipment in common areas, or activities kitchens (similar to the activities kitchen that previously existed at Baxter Immigration Detention Centre).
    • DIAC should ensure that immigration detention centres have appropriate facilities, and follow necessary kitchen practices, to provide meals and snacks to any detainees who wish to be provided with halal food.
  5. The Commission is aware that since the release of its 2008 report, DIAC has commenced some interim works at Villawood. These include:
    • removal of some razor-wire from Stage 1
    • construction of a ‘high-care’ unit in Stage 1
    • improvements to the visitors’ areas in Stage 1
    • modifying the MSU.
  6. The Commission welcomes these interim works, and considers them absolutely necessary to improve immediate conditions for some detainees. However, a much more comprehensive redevelopment is required to address the broader problems in all parts of the Villawood facility.
  7. Recommendation 5: The Villawood redevelopment should address relevant concerns raised by the Commission in its 2008 Immigration detention report.[32]

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8 The DIAC Standards for design and fitout of immigration detention facilities should be updated

  1. DIAC has developed the Standards for design and fitout of immigration detention facilities (DIAC Standards).[33] The stated intention of the DIAC Standards is to provide people in immigration detention with ‘accommodation commensurate with Australian community standards and expectations.’[34]
  2. The Villawood redevelopment provides an opportunity for the DIAC Standards to be applied in practice. However, the DIAC Standards require updating to reflect the Australian Government’s New Directions in Detention, in particular the Key Immigration Values, and the various policy developments which have taken place since they were announced.
  3. Further, while many of the objectives described in the DIAC Standards reflect a humane approach, it is not clear whether there are adequate mechanisms in place to ensure that the DIAC Standards are actually applied in the development of detention infrastructure.
  4. For example, the DIAC Standards state that ‘[t]he underlying principle for security systems at all detention facilities is that security must be as unobtrusive as possible’ and that ‘[c]rude containment devices such as razor wire, observation platforms, correctional fencing should be avoided wherever possible.’[35] However, this standard was clearly not applied in the design and fitout of the one immigration detention centre that has been designed and constructed in recent years – the Christmas Island Immigration Detention Centre. The Commission has raised significant concerns about the excessive security measures at the Christmas Island IDC.[36] Steps should be taken as part of the Villawood redevelopment to ensure that the new Villawood facility does not replicate such measures.
  5. Recommendation 6: The Standards for design and fitout of immigration detention facilities should be updated to reflect the Australian Government’s Key Immigration Values, and should be applied to the Villawood redevelopment.

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[1] All Australian Human Rights Commission publications relating to this work are available at http://www.humanrights.gov.au/human_rights/immigration/index.html.

[2] See C Evans, New Directions in Detention – Restoring Integrity to Australia’s Immigration System (Speech delivered at the Centre for International and Public Law Seminar, ANU, Canberra, 29 July 2008). At http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 15 September 2009).

[3] Australian Human Rights Commission, 2008 Immigration detention report (2009). At http://www.humanrights.gov.au/human_rights/immigration/idc2008.html (viewed 15 September 2009).

[4] See, for example, Human Rights and Equal Opportunity Commission, Immigration Detention: Human Rights Commissioner’s 1998-99 Review (1999), at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/idc_review.pdf; Human Rights and Equal Opportunity Commission, Those who’ve come across the seas: Detention of unauthorised arrivals (1998), at http://humanrights.gov.au/human_rights/immigration/seas.html; Australian Human Rights Commission, 2008 Immigration detention report, note 3.

[5] Australian Human Rights Commission, 2008 Immigration detention report (2009), pp 5-13, note 3.

[6] Note that the Commission made a submission to the previous inquiry into a proposal to redevelop Villawood, conducted by the Public Works Committee in 2006.

[7] Human Rights and Equal Opportunity Commission, Immigration Detention: Human Rights Commissioner’s 1998-99 Review, note 4, p 7.

[8] C Evans, note 2.

[9] Australian Human Rights Commission, ‘Redevelopment of Villawood should be for detention as a last resort’ (Media Release, 12 May 2009). At http://humanrights.gov.au/about/media/media_releases/2009/34_09.html (viewed 15 September 2009).

[10] As above.

[11] International Covenant on Civil and Political Rights (ICCPR) (1966). At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 15 September 2009).

[12] International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966). At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 15 September 2009).

[13] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) (1984). At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 15 September 2009).

[14] Convention on the Rights of the Child (CRC) (1989). At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 15 September 2009).

[15] ICCPR, art 9(1); CRC, art 37(b).

[16] ICCPR, art 10(1); CRC, art 37(c).

[17] Convention against Torture; ICCPR, art 7.

[18] CRC, art 37(b).

[19] CRC, art 3.

[20] CRC, art 37(d); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), principle 17, at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 15 September 2009).

[21] ICESCR, art 12(1).

[22] ICCPR, art 2(1), 26; CRC art 2(1).

[23] Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988). At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 15 September 2009).

[24] Standard Minimum Rules for the Treatment of Prisoners (1955). At https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 15 September 2009).

[25] United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990). At http://www2.ohchr.org/english/law/res45_113.htm (viewed 15 September 2009).

[26] UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (1999). At http://www.unhcr.org/refworld/docid/3c2b3f844.html (viewed 15 September 2009).

[27] Human Rights and Equal Opportunity Commission, Immigration Detention Guidelines (2000). At http://humanrights.gov.au/pdf/human_rights/asylum_seekers/idc_guidelines.pdf (viewed 15 September 2009).

[28] Convention on the Rights of Persons with Disabilities (2006) at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx.

[29] See information on the Disability Discrimination Act at http://humanrights.gov.au/disability_rights/index.html.

[30] C Evans, note 2.

[31] The Commission’s inspections reports are available at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9_4 (viewed 15 September 2009).

[32] Australian Human Rights Commission, 2008 Immigration detention report, note 3.

[33] DIAC, Standards for the design and fitout of immigration detention facilities (October 2007) (DIAC Standards).

[34] DIAC, above, p 7.

[35] DIAC, note 33, section 14.

[36] See Australian Human Rights Commission, 2008 Immigration detention report, note 3, pp 75-76.