Human Rights standards for immigration detention

Introduction

For more than a decade, the Commission has made periodic inspections of Australia’s immigration detention facilities to assess whether conditions of detention meet internationally-accepted human rights standards.  The Commission has also received complaints and conducted inquiries into conditions in immigration detention facilities.

This publication, Human rights standards for immigration detention, sets out benchmarks for the humane treatment of people held in immigration detention (referred to throughout the Standards as detainees). The Commission has prepared the Standards under section 11(1)(n) of the Australian Human Rights Commission Act, which enables the Commission to publish ‘guidelines for the avoidance of acts or practices’ which may be inconsistent with or contrary to any human right.  The Commission anticipates that the Standards may be revised in coming years, to reflect any issues that emerge from their practical application.

The purpose of these Standards is to assist independent monitors, such as the Australian Human Rights Commission, to monitor and inspect Australia’s immigration detention facilities.

The Standards should also assist in providing a framework for the monitoring and inspections that will be undertaken when Australia becomes party to the Optional Protocol to the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (OPCAT).

OPCAT, which Australia has signed, but not yet ratified, will require detention facilities within Australia, or otherwise within Australia’s jurisdiction and control, to be visited periodically by the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) in order to monitor how Australia meets its obligations to prevent torture and other cruel, inhuman or degrading treatment or punishment.

Under the OPCAT, State Parties must also grant ‘national preventive mechanisms’ (NPM’s), established within Australia, access to all places of detention and their installations and facilities.

The definition of a place of detention for the purposes of these Standards is the same as that contained in article 4(2) of OPCAT, which is applicable in the immigration context. This definition is ‘any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority’. As noted by the United Nations High Commissioner for Refugees, ‘detention can take place in a range of locations, including at land and sea borders, in the ‘international zones’ at airports, on islands, on boats, as well as in closed refugee camps, in one’s own home (house arrest) and even extraterritorially’ (UNHCR Guidelines p 9 [7]).

Immigration detainees should enjoy the least restrictive environment possible, and the maxim that human rights are a floor, not a ceiling, should be at the forefront of decisions relating to conditions of detention for immigration detainees. The primary concern of immigration detention authorities should be one of care for the well-being of detainees.