2010 Immigration detention on Christmas Island
Immigration detention on Christmas Island
2010
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Contents
- 1 Introduction
- 2 Background
- 3 Summary
- 4 Recommendations
- 5 Overview: immigration detention on Christmas Island
PART B: Key policy and processing developments
- 6 Increasing detainee numbers and transfers to mainland detention facilities
- 7 Excision and offshore processing
- 8 Suspension of processing
- 9 Length of detention
- 10 Potential for indefinite or arbitrary detention
- 11 Under-utilisation of the Community Detention system
PART C: Children in detention on Christmas Island
- 12 Mandatory detention of children on Christmas Island
- 13 Detention placement for children on Christmas Island
- 14 Conditions and services for children in the Construction Camp
- 15 Child welfare and protection responsibilities
- 16 Unaccompanied minors in detention
PART D: Conditions and services in detention
- 17 Detention infrastructure and environment
- 18 Staff treatment
- 19 Access to health and mental health care
- 20 Provision of information to people in detention
- 21 Access to communication
- 22 Recreation and education
- 23 Religion
Part E: Monitoring conditions of detention on Christmas Island
PART
A: Introductory sections
1 Introduction
This
report contains a summary of observations made by the Australian Human Rights
Commission (the Commission) during its 2010 visit to the immigration detention
facilities on Christmas Island.
Three Commission staff members visited Christmas Island from 28 May to 3 June
2010. The purpose of the visit was to monitor conditions in immigration
detention against internationally accepted human rights standards. The
activities undertaken during the visit are set out in Appendix 1. This report
comments on conditions at the time of the Commission’s visit. The
Commission is aware that there have been developments between the time of its
visit and the publication of this report.
The Commission acknowledges the assistance provided by the Department of
Immigration and Citizenship (DIAC) in organising and facilitating the visit, and
the positive cooperation received from DIAC officers and detention service
provider staff members during the visit. The Commission also thanks local
representatives on Christmas Island for their willingness to spend time meeting
with Commission staff.
The Commission provided a copy of this report to DIAC in advance of its
publication, in order to provide DIAC with an opportunity to prepare a response.
DIAC’s response is available on the Commission’s website at www.humanrights.gov.au/human_rights/immigration/
idc2010_christmas_island_response.html.
2 Background
For more than a decade, the Commission has raised significant concerns about
Australia’s immigration detention system. During this time, the Commission
has investigated numerous complaints from individuals in detention and conducted
two national inquiries into the mandatory detention
system.[1] The Commission has concluded that this system breaches fundamental human
rights.[2]
Because of its concerns, the Commission undertakes a range of monitoring
activities.[3] These include
conducting inspections of Australia’s immigration detention facilities,
with the aim of ensuring that conditions meet internationally accepted human
rights standards. The relevant standards are set out in Appendix 2.
This report follows the Commission’s 2006, 2007 and 2008 annual reports
on inspections of immigration detention
facilities[4] and its 2009 report, Immigration
detention and offshore processing on Christmas
Island.[5]
The Commission’s 2009 report found that Christmas Island is not an
appropriate place in which to hold people in immigration detention for a range
of reasons including the nature of the detention facilities, the limited
infrastructure and lack of community-based accommodation options, and the
restrictions on asylum seekers’ access to essential services and support
networks.[6] The Commission also
expressed concerns about the ongoing excision regime and the practice of
assessing the claims of asylum seekers who arrive in excised offshore places
through a non-statutory
process.[7]
The key recommendations of the Commission’s 2009 report included that
people should not be held in immigration detention on Christmas Island; the
provisions of the Migration Act 1958 (Cth) (Migration Act) relating to
excised offshore places should be repealed; and all unauthorised arrivals who
make claims for asylum should have those claims assessed through the refugee
status determination system that applies under the Migration
Act.[8]
A range of other domestic and international organisations and experts have
also raised significant concerns about the Australian Government’s policy
of holding asylum seekers in detention on Christmas Island. These include
Amnesty International, the Refugee Council of Australia, local religious
leaders, United Nations treaty bodies and the United Nations Special Rapporteur
on the right to
health.[9]
Since the Commission’s 2009 visit to Christmas Island, there have been
a range of significant developments – some positive and others negative.
These have included an increase in the number of asylum seekers arriving by boat
and an increase in the number of people in detention on Christmas Island; the
transfer of some asylum seekers to mainland detention facilities; the re-opening
of the Curtin Immigration Detention Centre and the Port Augusta Immigration
Residential Housing; the establishment of new ‘alternative places of
detention’ on the mainland; and the suspension of processing of claims by
asylum seekers from Sri Lanka and Afghanistan.
The Commission’s 2010 visit to Christmas Island focused predominantly
on the conditions of detention for asylum seekers. However, this report also
considers some of the key policy and processing developments that have impacted
on those conditions over the past year. The report focuses on areas in which
there have been notable changes since the Commission’s 2009 Christmas
Island visit and report.
3 Summary
Since the Commission visited Christmas Island in 2009, there has been a
substantial increase in the number of people detained there. While there have
been some improvements in the operation of the detention facilities, the
increase in numbers has led to overcrowding and a significant deterioration in
conditions for many people.
DIAC officers and staff members of detention service providers are clearly
working under considerable pressures on Christmas Island, caused by a range of
factors including the number of people in detention, infrastructure constraints
and logistical difficulties resulting from the small size and remoteness of the
island. The Commission acknowledges the efforts being made by staff to ensure
that people in detention are treated appropriately despite the challenging
circumstances.
During its 2010 visit, the Commission was pleased to observe and hear reports
of some positive developments. These include the fact that the separation
detention system is no longer used; positive reports from people in detention
about most staff members; positive efforts to provide recreational activities in
detention; an increase in religious support for people in detention; a new
initiative of engaging some people in detention as teacher’s aides at the
local school; and increased DIAC efforts to engage with the local community.
However, the Commission’s overarching concerns about the
inappropriateness of holding asylum seekers in immigration detention on
Christmas Island remain. The Commission’s major concerns are summarised
below and discussed in further detail throughout this report.
Overarching policy concerns
- Asylum seekers who arrive by boat in an excised offshore place continue to
be subjected to mandatory detention on Christmas Island, despite the fact that
the Migration Act does not require this. Further, the Migration Act purports to
bar them from challenging the lawfulness of their detention in the Australian
courts.[10]
- Asylum seekers who arrive in an excised offshore place continue to be barred
from the refugee status determination system that applies under the Migration
Act. Instead, their claims are assessed through a non-statutory process governed
by policy guidelines.
- The decision to suspend processing of claims by asylum seekers from Sri
Lanka and Afghanistan led to the prolonged detention of a significant number of
people, including children.
- More people are being held in immigration detention on Christmas Island for
longer periods of time. There continues to be no set time limit on the period a
person may be detained.
- Community Detention is no longer available on Christmas Island, and is
barely being used on the mainland.
Detention of unaccompanied
minors and families with children
- Children continue to be subjected to mandatory detention on Christmas
Island, in breach of Australia’s obligations under the Convention on
the Rights of the Child (CRC).
- Families with children and unaccompanied minors are detained in an
immigration detention facility on Christmas Island (the Construction Camp),
rather than being placed in Community Detention. The Construction Camp is not an
appropriate environment for children, and has become increasingly overcrowded.
- There continues to be a lack of clarity about responsibilities for child
welfare and protection for children in immigration detention on Christmas
Island.
- There remains a conflict of interest in the Minister for Immigration and
Citizenship (the Minister) or DIAC officers acting as the legal guardian of
unaccompanied minors detained on Christmas Island.
Conditions
and services in detention
- The detention facilities on Christmas Island are not appropriate for asylum
seekers. The Commission has ongoing concerns about the prison-like nature of the
Christmas Island Immigration Detention Centre (IDC), the limited amenities at
the Phosphate Hill facility, and the inappropriateness of the Construction Camp
as a place for accommodating families with children and unaccompanied
minors.
- The substantial increase in the number of people in detention has led to
overcrowding in the detention facilities on Christmas Island. There has been a
significant deterioration in living conditions for many people, particularly
those accommodated in tents and dormitory bedrooms.
- The substantial increase in the number of people in detention has placed
further strain on their access to facilities and services including
communication facilities, recreational facilities, educational activities and
opportunities for people to leave the detention
environment.
Access to health and mental health care
- People in immigration detention on Christmas Island have limited access to
medical specialists and dental care.
- There is no psychiatrist on Christmas Island. Mental health staff are being
required to provide services to a high number of people in detention. There have
been a number of self-harm incidents in recent months.
- There is a need for rigorous, independent monitoring of the delivery of
health and mental health services for people in immigration detention.
While there have been some improvements since its last visit, the
Commission remains of the view that Christmas Island is not an appropriate place
in which to hold people in immigration detention. The Commission’s
long-held concerns about detaining asylum seekers in a place as small and remote
as Christmas Island have been compounded this year by the overcrowding and
deterioration in conditions. The Commission opposes the mandatory detention of
asylum seekers. However, if people must be detained, they should be accommodated
on the Australian mainland in metropolitan locations where they can access the
services and support they need.
The Commission also remains of the view that the excision regime should be
repealed. It establishes a two-tiered system under which asylum seekers are
treated differently based on their place and mode of arrival. Asylum seekers
arriving in excised offshore places are assessed through a non-statutory system
that affords them fewer legal safeguards than asylum seekers arriving on the
mainland. In the Commission’s view, all asylum seekers who arrive in
Australia should be permitted to apply for protection through the refugee status
determination system that applies under the Migration Act.
Regardless of how or where they arrive in Australia, all people are entitled
to protection of their fundamental human rights. These include the right to seek
asylum, the right not to be subjected to arbitrary detention, and the right to
be treated with humanity and respect if they are deprived of their
liberty.[11] The Commission continues to encourage the Australian Government to ensure that
the treatment of all asylum seekers arriving in Australia is in line with these
and other human rights obligations.
4 Recommendations
Recommendation 1: The Australian Government should stop using
Christmas Island as a place in which to hold people in immigration detention. If
people must be held in immigration detention facilities, they should be located
in metropolitan areas.
Recommendation 2: The Australian Government should repeal the
provisions of the Migration Act relating to excised offshore places and abandon
the policy of processing some asylum claims through a non-statutory refugee
status assessment process. All unauthorised arrivals who make claims for asylum
should have those claims assessed through the refugee status determination
system that applies under the Migration Act.
Recommendation 3: If the Australian Government intends to continue
to use Christmas Island for immigration detention purposes, it should avoid the
prolonged detention of asylum seekers by:
- Ensuring full implementation of the New Directions policy under which asylum
seekers should only be held in closed detention facilities while their health,
identity and security checks are conducted. After this, the presumption is that
they will be permitted to reside in the community unless a specific risk
justifies their ongoing detention in a facility.
- Ensuring that security clearances are conducted as quickly as
possible.
Recommendation 4: Section 494AA of the Migration
Act, which bars certain legal proceedings in relation to offshore entry persons,
should be repealed. The Migration Act should be amended to accord with
international law by requiring that a decision to detain a person, or a decision
to continue a person’s detention, is subject to prompt review by a
court.[12]
Recommendation 5: The Australian Government should make full use of
the Community Detention system for people detained on Christmas Island. All
eligible detainees should be referred for a Residence Determination on the
mainland. This should be an immediate priority for vulnerable groups including
families with children, unaccompanied minors, survivors of torture or trauma,
and people with health or mental health concerns.
Recommendation 6: The Australian Government should implement the
outstanding recommendations of the report of the National Inquiry into Children
in Immigration Detention, A last
resort?.[13] These include that
Australia’s immigration detention laws should be amended, as a matter of
urgency, to comply with the Convention on the Rights of the Child. In
particular, the new laws should incorporate the following minimum
features:
- There should be a presumption against the detention of children for
immigration purposes.
- A court or independent tribunal should assess whether there is a need to
detain children for immigration purposes within 72 hours of any initial
detention (for example, for the purposes of health, identity or security
checks).
- There should be prompt and periodic review by a court of the legality of
continuing detention of children for immigration purposes.
- All courts and independent tribunals should be guided by the following
principles:
- detention of children must be a measure of last resort and for the
shortest appropriate period of time
- the best interests of children must be a primary consideration
- the preservation of family unity
- special protection and assistance for unaccompanied
children.
- detention of children must be a measure of last resort and for the
Recommendation 7: If the Australian
Government intends to continue the practice of holding children in immigration
detention on Christmas Island it should, as a matter of priority:
- clarify through formal Memoranda of Understanding the respective roles and
responsibilities of state and federal authorities with regard to the welfare and
protection of children in immigration detention on Christmas Island
- clearly communicate these roles and responsibilities to all relevant state
and federal authorities
- finalise and implement clear policies and procedures regarding child welfare
and protection concerns that may arise in respect of children in immigration
detention on Christmas Island, and communicate these policies and procedures to
all relevant staff.
Recommendation 8: The Australian
Government should, as a matter of priority, implement the recommendations made
by the Commission in A last resort? that:
- Australia’s laws should be amended so that the Minister for
Immigration and Citizenship is no longer the legal guardian of unaccompanied
children.
- An independent guardian should be appointed for unaccompanied children and
they should receive appropriate support.
Recommendation 9:
If the Australian Government intends to continue to use the Christmas Island
IDC, it should implement the recommendation of the Joint Standing Committee on
Migration that all caged walkways, perspex barriers, and electrified fencing
should be removed and replaced with more appropriate security
infrastructure.[14]
Recommendation 10: If the Australian Government intends to continue
to use the Christmas Island IDC, it should take immediate measures to reduce
overcrowding. These should include:
- ceasing the practice of accommodating people in tents, and removing the
tents as soon as possible
- ceasing use of the surge areas that have been created by converting the
visitors’ and induction areas into large dormitories
- ceasing the practice of accommodating people in dormitory bedrooms in
Education 3 Compound, and returning the compound to its original use as space
for educational and recreational activities
- refraining from transforming additional areas into
accommodation.
Recommendation 11: If the Australian
Government intends to continue to use the Phosphate Hill immigration detention
facility, it should take immediate measures to reduce overcrowding in the
facility. These should include:
- ceasing the practice of accommodating people in tents, and removing the
tents as soon as possible
- ceasing the practice of accommodating any more than two people in the
bedrooms in the demountables.
Recommendation 12: If the
Australian Government intends to continue to use the Construction Camp
immigration detention facility, it should take immediate measures to reduce
overcrowding in the facility.
Recommendation 13: DIAC, Serco and other detention service providers
should refer to people in immigration detention by their name. Their
identification number should only be used as a secondary identifier where this
is necessary for clarification purposes.
Recommendation 14: DIAC and Serco should ensure that staff training
and performance management include a strong focus on treating all people in
immigration detention with humanity and with respect for their inherent
dignity.
Recommendation 15: An independent body should be charged with the
function of monitoring the provision of health and mental health services in
immigration detention. The Australian Government should ensure that adequate
resources are allocated to that body to fulfil this function.
Recommendation 16: If the Australian Government intends to continue
using Christmas Island for immigration detention purposes, DIAC should ensure
that detainees are provided with access to appropriate health services. In
particular, DIAC should ensure, as a matter of priority, that detainees on
Christmas Island are provided with adequate access to dental care and specialist
care.
Recommendation 17: If the Australian Government intends to continue
using Christmas Island for immigration detention purposes, DIAC should ensure
that detainees are provided with access to appropriate mental health services.
In particular, DIAC should ensure, as a matter of priority, that detainees on
Christmas Island are provided with adequate access to psychiatric care.
Recommendation 18: If the Australian Government intends to continue
using Christmas Island for immigration detention purposes, DIAC should ensure
that detainees are provided with adequate access to torture and trauma
services.
Recommendation 19: DIAC should ensure that its policy, Identification and Support of People in Immigration Detention who are
Survivors of Torture and Trauma is implemented on Christmas Island. Under
this policy, the continued detention of survivors of torture and trauma in an
IDC is only to occur as a measure of absolute last resort where risk to the
Australian community is considered unacceptable.
Recommendation 20: If the Australian Government intends to continue
using Christmas Island for immigration detention purposes, DIAC should:
- ensure that all detainees are provided with adequate access to telephones
and that they can make and receive telephone calls in privacy
- increase the number of internet terminals in each of the detention
facilities.
Recommendation 21: If the Australian
Government intends to continue using Christmas Island for immigration detention
purposes, DIAC should ensure that all detainees are provided with adequate
access to a range of recreational facilities and activities.
Recommendation 22: If the Australian Government intends to continue
using Christmas Island for immigration detention purposes, DIAC should ensure
that:
- all detainees have access to appropriate educational activities, including
ESL classes
- the Phosphate Hill and Construction Camp immigration detention facilities
have an adequate supply of reading materials in the principal languages spoken
by detainees.
Recommendation 23: If the Australian
Government intends to continue using Christmas Island for immigration detention
purposes, DIAC should:
- amend the detention service provider contract applicable to the three
detention facilities on Christmas Island to require that Serco provide regular
external excursions for people in detention on the island
- ensure that the detention service provider is allocated sufficient resources
to provide escorts for regular external
excursions.
Recommendation 24: If the Australian Government
intends to continue using Christmas Island for immigration detention purposes,
DIAC should:
- ensure that all detainees are provided with access to regular religious
services conducted by qualified religious representatives – in particular,
further efforts are required to provide this for detainees who practice a
religion other than Christianity
- ensure that detainees have access to religious services in the
community.
Recommendation 25: Legislation should be enacted
to set out minimum standards for conditions and treatment of detainees in all of
Australia’s immigration detention facilities, including those located in
excised offshore places. The minimum standards should be based on relevant
international human rights standards, should be enforceable and should make
provision for effective remedies.
Recommendation 26: The Australian Government should ratify the Optional Protocol to the Convention against Torture and establish an
independent and adequately resourced National Preventive Mechanism to conduct
regular inspections of all places of detention. This should include all
immigration detention facilities, including those located in excised offshore
places.
5 Overview:
immigration detention on Christmas Island
5.1 Who
is detained on Christmas Island?
The current policy of the Australian Government is that all non-citizens who
arrive by boat without a valid visa (irregular maritime arrivals) are taken to
Christmas Island and placed in immigration
detention.[15] This includes people
who arrive by boat in excised offshore places, and people who arrive by boat on
the Australian
mainland.[16]
The vast majority of these arrivals are asylum seekers. A small number are
crew members.
At the time of the Commission’s visit, the vast majority of people
detained on Christmas Island were from Afghanistan or Sri Lanka. Other major
nationalities included Iranian, Iraqi and Burmese. There were also a significant
number of stateless people in
detention.[17]
5.2 How
many people are detained on Christmas Island?
The number of people in immigration detention on Christmas Island has
increased significantly since the Commission’s July 2009 visit. At that
time, there were 733 people in immigration detention on the
island.[18]
At the start of the Commission’s 2010 visit, there were 2421 people in
immigration detention on Christmas Island, including 250
minors.[19] At the same time, there
were 1045 irregular maritime arrivals in detention on the mainland, including
246 minors.[20]
At the time of writing, there were 2409 people detained on Christmas Island,
including 217 minors. There were also 1950 irregular maritime arrivals in
detention on the mainland, including 439
minors.[21]
At the time of writing, the highest number detained on Christmas Island at
any one time was 2652 people in late July
2010.[22]
5.3 How
long are people detained on Christmas Island?
The majority of the 2421 people detained on Christmas Island at the time of
the Commission’s visit had been there for less than three
months.[23] However, 656 people had
been detained for three months or more. Of those 656 people, 305 had been
detained for six months or more; and of those 305 people, 121 had been detained
for nine months or more.[24]
The Commission is concerned that more people are being held in detention on
Christmas Island for longer periods of time, as discussed in section 9 of this
report.
5.4 Where
are people detained?
There are three immigration detention facilities on Christmas Island:
- The Christmas Island IDC – a high security detention centre used for
adult males. When the Commission visited, there were 1834 men detained in the
IDC.[25]
- The Construction Camp immigration detention facility – a low security
detention facility used primarily for unaccompanied minors and families with
children. When the Commission visited, there were 418 people detained in the
Construction Camp – 73 men, 75 women, 94 accompanied children, 152
unaccompanied minors and 24 male crew
members.[26]
- The Phosphate Hill immigration detention facility – a secure detention
facility used for adult males. When the Commission visited, there were 164 men
detained in the facility.[27]
At the time of the Commission’s visit, the detention
facilities were being operated by Serco Australia, the detention service
provider contracted by the Australian Government.
Some immigration detainees on Christmas Island were formerly placed in
Community Detention and accommodated in houses in the local
community.[28] During the
Commission’s 2010 visit, there were only three people in Community
Detention.[29] Since then, the use
of Community Detention on Christmas Island has ceased due to a lack of available
accommodation. The Commission is concerned about this development, as discussed
in section 11 of this report.
PART
B: Key policy and processing developments
Since the Commission’s 2009 visit to Christmas Island, there has been a
range of significant developments. This part of the report considers some of the
key policy and processing developments that have impacted on conditions for
people in detention on Christmas Island over the past year.
6 Increasing
detainee numbers and transfers to mainland detention facilities
there has been an increase in the number of asylum seekers arriving by boat and
a substantial increase in the number of people being held in immigration
detention on Christmas Island. There were 733 people in detention on Christmas
Island when the Commission visited in July 2009. By the time of the
Commission’s 2010 visit this had increased to 2421
people.[30]
The increase in arrivals has contributed to slower processing of asylum
applications and longer periods of detention, as discussed in the following
sections of this report. It has also placed increasing pressures on DIAC and
Serco staff, as they have been required to meet the needs of an ever-increasing
number of people in detention. A rise in the number of DIAC officers on
Christmas Island and an enhanced Case Management system appear to have assisted
in meeting these challenges. The Commission acknowledges that many staff are
making significant efforts to ensure that people in detention are treated
appropriately despite the difficult circumstances.
However, the detention facilities on Christmas Island were not designed to
accommodate such a high number of
people.[31] The substantial increase
in detainee numbers has led to overcrowding, a significant deterioration in
living conditions, increased pressure on services such as health and mental
health care, and restrictions on access to facilities such as telephones,
washing machines, ablutions and recreational facilities. These issues are
discussed further in Part D of this report.
The increasing pressure on the island’s detention facilities eventually
led to decisions by the Australian Government during the first half of 2010 to
transfer some people to existing immigration detention facilities on the
mainland, to re-open the Curtin IDC and the Port Augusta Immigration Residential
Housing, and to establish a range of other ‘alternative places of
detention’ on the
mainland.[32]
The Commission has long recommended that the Australian Government stop using
Christmas Island as a place for holding people in immigration
detention.[33] The overcrowding and the deteriorating conditions in the island’s
detention facilities add weight to that recommendation. The Commission therefore
welcomes the transfer of some detainees from Christmas Island to the mainland.
It is essential that these transfers continue in order to relieve the ongoing
pressures on detainees, staff, facilities and services on Christmas Island.
Transfers should be a matter of priority for all families with children,
unaccompanied minors, survivors of torture or trauma, and people with health or
mental health concerns.
However, the Commission regrets that the vast majority of people transferred
to the mainland to date have been placed in immigration detention facilities,
rather than being considered for a bridging visa or a Community Detention
placement. The Commission has also expressed concern about the decision to
detain people in remote locations such as Curtin, where their access to
appropriate services and support networks is limited and the accessibility and
transparency of their detention arrangements is
reduced.[34] In the
Commission’s view, many of the factors that make Christmas Island an
inappropriate place in which to detain people also make remote locations like
Curtin inappropriate. If people must be held in immigration detention
facilities, they should be located in metropolitan areas.
Christmas Island as a place in which to hold people in immigration detention. If
people must be held in immigration detention facilities, they should be located
in metropolitan areas.
7 Excision
and offshore processing
7.1 The
excision regime and the non-statutory RSA process
Under Australia’s excision regime, various islands are designated as
‘excised offshore places’, and a person who becomes an unlawful
non-citizen (a non-citizen without a valid visa) by entering Australia at one of
these places is referred to as an ‘offshore entry
person’.[35] An offshore entry
person is barred from submitting a visa application unless the Minister
determines that it is in the public interest to allow them to do
so.[36] Refugee claims made by
offshore entry persons are instead assessed through a non-statutory refugee
status assessment process (the RSA process).
The Commission’s 2009 report outlined the excision regime and the RSA
process in further detail.[37] The
Commission expressed concerns about excision and the policy of assessing the
claims of asylum seekers who arrive in excised offshore places through a
non-statutory process.[38]
DIAC’s response to the Commission’s report highlighted
improvements that had been made to the RSA process under the government’s
New Directions in Detention
reforms.[39] These improvements included access for asylum seekers to publicly funded
migration advice and assistance through the Immigration, Advice and Application
Assistance Scheme (IAAAS), independent review of unfavourable RSA decisions, and
an external scrutiny role for the Commonwealth Ombudsman.
The Commission has welcomed these
improvements.[40] The Commission
acknowledges that substantial reforms have been made in recent years which have
improved the processing of refugee claims made by offshore entry persons.
However, improvements in the operation of the process do not overcome the
Commission’s fundamental concerns about the system itself.
The Commission remains opposed to the excision regime because it establishes
a two-tiered system under which asylum seekers are treated differently based on
their place and mode of arrival. Asylum seekers arriving in excised offshore
places are barred from the refugee status determination system that applies
under the Migration Act, and instead are assessed through a non-statutory system
that affords them fewer legal safeguards than asylum seekers arriving on the
mainland. In the Commission’s view, this differential treatment undermines
Australia’s obligations under the Refugee Convention and undermines asylum
seekers’ human rights.[41]
The key recommendations of the Commission’s 2009 report included that
the provisions of the Migration Act relating to excised offshore places be
repealed, the policy of processing some asylum claims through a non-statutory
process be abandoned, and all unauthorised arrivals who make claims for asylum
have those claims assessed through the system that applies under the Migration
Act.[42] The Commission reiterates
those recommendations.
The Commission is aware that several legal challenges relating to the RSA
process are under consideration by the High Court of Australia. The Commission
will monitor developments in this area.
provisions of the Migration Act relating to excised offshore places and abandon
the policy of processing some asylum claims through a non-statutory refugee
status assessment process. All unauthorised arrivals who make claims for asylum
should have those claims assessed through the refugee status determination
system that applies under the Migration Act.
7.2 RSA
processing times
At the time of the Commission’s 2009 visit to Christmas Island, it was
taking an average of 66 days from the time an asylum seeker lodged their
statement of claims under the RSA process until they were notified of their RSA
outcome.[43] The Commission welcomed
the fact that the majority of asylum seekers on Christmas Island were moving
through the RSA process relatively quickly, but expressed concern that this was
vulnerable to change because there are no binding timeframes under the
process.[44]
Since then, the increase in the number of asylum seekers arriving by boat has
contributed to slower RSA processing. As of July 2010, on average it was taking
41 days from a person’s arrival on Christmas Island until lodgement of
their statement of claims, and a further 72 days from that lodgement until their
protection visa grant. This means that those asylum seekers receiving a
successful RSA outcome were spending an average of 113 days (more than 16 weeks)
in detention before their protection visa
grant.[45]
However, these average processing figures fail to convey the current reality
that many asylum seekers are spending much longer periods in detention on
Christmas Island awaiting the outcome of the RSA process or the conduct of
security checks (as discussed in section 9 below).
Over the coming year, higher refusal rates are likely to lead to further
increases in average RSA processing times, as more asylum seekers will go
through independent merits review after receiving a negative primary decision.
As of July 2010, it was taking an average of 75 days from the lodgement of a
request for independent merits review until the review
outcome.[46] This is in addition to
the time taken from arrival on Christmas Island to receiving a negative primary
decision.
The Commission acknowledges the pressures on DIAC decision-makers caused by
the increased number of RSA claims lodged over the past year, and the efforts
being made by DIAC officers to keep processing times as short as possible. The
Commission’s major concern with slower processing times is that they can
lead to people being held in immigration detention for longer periods, and that
the prolonged detention of asylum seekers can have serious detrimental impacts
on their mental health – particularly when their detention is combined
with the uncertainty of not knowing what the outcome of their refugee claim will
be.
7.3 Independent
merits review
In its 2009 report, the Commission welcomed the introduction of access to
independent merits review for asylum seekers who receive a negative primary
decision through the RSA process. However, the Commission expressed concerns
that this did not constitute a sufficient legal safeguard for those asylum
seekers, primarily due to the lack of transparent and enforceable procedures for
decision-making.[47]
Unlike an asylum seeker who arrives on the mainland, one who arrives in an
excised offshore place does not have access to independent merits review by the
Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal
(AAT).[48] Instead they have access
to an Independent Reviewer who will consider their refugee claim and make a
non-binding recommendation to the Minister as to whether the Minister should
exercise his or her discretion to permit the person to apply for a protection
visa.[49]
As of July 2010, there were 432 people going through independent merits
review under the RSA process. This included 245 people waiting for a review
hearing to be scheduled, 150 people with a hearing currently taking place or
scheduled to take place within the next month, and 37 people whose hearings had
been completed and who were awaiting the review
outcome.[50]
The higher number of RSA claims being lodged and increasing refusal rates at
the primary stage have led to a need for the independent merits review system to
be expanded. The Commission has been informed that, in order to meet increased
demands, additional Independent Reviewers have been appointed and a new office
has been established to provide administrative support. This is known as the
Refugee Status Review Office. It will operate and be physically separate from
DIAC, but the CEO will report to the DIAC Secretary on the operations of the
Office.
The Commission supports the fact that additional reviewers have been
appointed to assist in meeting increased demands. However, the Commission
remains concerned about the limited transparency surrounding the independent
merits review system. As discussed, the Commission would prefer to see the
excision regime repealed and the non-statutory RSA process abandoned. However,
if the Australian Government intends to retain the RSA process, the Commission
recommends that steps be taken to increase transparency surrounding the
independent merits review system.
This could include measures such as ensuring that recruitment and appointment
processes for Independent Reviewers are fully transparent; making the RSA manual
and the independent merits review guidelines publicly available; publishing
de-identified independent merits review decisions; and regularly publishing
statistics on the number of primary decisions affirmed and overturned by
Independent Reviewers.
While DIAC might provide much of this information to the Commission and other
oversight bodies on request, in the Commission’s view it is important that
it be accessible to the general public.
8 Suspension
of processing
One of the most concerning developments over the past year occurred on 9
April 2010, when the Australian Government announced that it was suspending the
processing of claims lodged by asylum seekers arriving on or after that date
from Sri Lanka and Afghanistan, for three and six months
respectively.[51]
The Commission expressed serious concerns about this decision when it was
announced.[52] In the
Commission’s view, the suspension policy undermined Australia’s
international human rights obligations, including obligations under the CRC, the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial
Discrimination.
The Commission welcomed the lifting of the Sri Lankan suspension on 6 July
2010.[53] When it was lifted, there were 184 Sri Lankans who had arrived by boat subject
to the suspension, including 19 accompanied children and two unaccompanied
minors. These people were held in immigration detention in the Construction Camp
facility on Christmas Island and in facilities in Leonora and
Darwin.[54]
The Commission encouraged the Australian Government to lift the remaining
suspension on Afghan asylum seekers as a matter of
urgency.[55] That suspension
remained in place until it was lifted on 30 September 2010. At that time, there
were 1210 Afghans who had arrived by boat subject to the suspension, including
25 accompanied children and 208 unaccompanied minors. These people were in
various immigration detention facilities on Christmas Island and the
mainland.[56]
The Commission’s greatest concern about the suspension policy was that
it resulted in the prolonged detention of a significant number of people,
including children. All Afghan and Sri Lankan asylum seekers who arrived by boat
and who were subject to the suspension were detained for its duration. For
Afghans who arrived in April 2010, this means they spent six months in detention
before processing of their claims even began. Once the suspension was lifted,
this would be followed by another three to six months or more in detention
awaiting their primary RSA decision, and in some cases the outcome of
independent merits review.
Many of those who were subject to the suspension are children, including
unaccompanied minors. Under the CRC they should only be detained as a measure of
last resort and for the shortest appropriate period of
time.[57] The suspension policy was
inconsistent with this obligation. In addition, the prolonged or indefinite
detention of asylum seekers subject to the suspension may have led to breaches
of Australia’s obligations under the ICCPR not to subject anyone to
arbitrary detention.[58]
The Commission is particularly concerned that the prolonged detention of
asylum seekers who were subject to the suspension may have significant impacts
on their mental health, especially in the case of unaccompanied minors, families
with children, and survivors of torture or trauma. The Commission’s
National Inquiry into Children in Immigration Detention found a clear link
between uncertainty experienced by asylum seekers in detention and deterioration
of their mental health.[59] It also
found that children in detention for long periods of time are at high risk of
serious mental harm.[60]
When the Commission visited Christmas Island in 2010, there were almost 700
people in detention subject to the suspension. One group of Afghan men spoke
about the psychological impacts of the suspension, saying that most of them
could not sleep. They felt it was unfair that they could be detained for a long
time, given they had committed no
crime.[61] A group of Afghan women
at the Construction Camp raised concerns about the impact on their children of
being detained throughout the suspension
period.[62]
The impacts of the suspension policy were also evident in terms of the
increased number of people being held in the detention facilities on the island,
contributing to overcrowding and a deterioration in conditions (as discussed in
section 17 below).
The Commission has encouraged the Department of Immigration and Citizenship
to move quickly to process the backlog of asylum claims caused by the
suspension.[63]
9 Length
of detention
Under the government’s New Directions policy, detention is to be used
for the shortest practicable
period.[64] The Commission welcomed this commitment, and encouraged the government to embed
it in legislation. Last year, the Commission welcomed the introduction of the
Migration Amendment (Immigration Detention Reform) Bill 2009. While the
Commission raised some concerns about the Bill and suggested amendments, it is
disappointed that the Bill was not enacted as it would have gone some way
towards implementing this aspect of the New Directions
policy.[65] As the Migration Act stands, there is no time limit on the period a person may
be detained.[66]
The Commission is concerned that more people are being held in detention on
Christmas Island for longer periods of time. When the Commission visited
Christmas Island in July 2009, there were 114 people who had been detained for
three months or more, 15 of whom had been detained for six months or
more.[67] During its 2010 visit,
this had increased to 656 people who had been detained for three months or more,
305 of whom had been detained for six months or more. Of those 305 people, 121
had been detained for nine months or
more.[68]
Importantly, while some people spend their whole period of detention on
Christmas Island, others spend an initial period there before being transferred
to a detention facility on the mainland. For these people, the time they are
detained on Christmas Island does not reflect their total period in
detention.
The causes of longer periods of detention include the increase in the number
of asylum seekers arriving by boat; slower processing of asylum applications;
increasing refusal rates at the primary stage leading to more asylum seekers
going through independent merits review; and the fact that a significant number
of Afghan and Sri Lankan asylum seekers were subject to the processing
suspension.
A further factor having a significant impact on people’s length of
detention is delays in obtaining security clearances. Under the New Directions
policy, an asylum seeker should only be held in a closed detention facility for
as long as it takes to conduct their health, identity and security checks. After
this, the presumption is that they will be permitted to reside in the community
unless a specific risk justifies their ongoing detention in a
facility.[69]
Last year the Commission raised doubts as to whether detainees on Christmas
Island were being released into the community once their checks had been
completed, and expressed the view that the shortage of community-based
accommodation on the island was likely to be a key factor in preventing this
from happening.[70] This year, the
use of Community Detention on Christmas Island has ceased, due to the lack of
accommodation. This means that if any asylum seekers have their health, identity
and security checks completed in advance of their RSA outcome, there is nowhere
on Christmas Island outside of the detention facilities to move them to.
However, it appears that there are few people whose security clearances are
completed in advance of their RSA outcome, undermining this aspect of the New
Directions policy. Some asylum seekers are being detained for prolonged periods
while they await their security clearances. Some of these people may have gone
through the RSA process and been recognised as a refugee, but they will not be
granted a protection visa until they receive their security clearance.
During its visit to Christmas Island, the Commission spoke with a significant
number of Sri Lankan detainees who had gone through the RSA process and were
awaiting security clearances. Some of them had been detained for almost one
year. They expressed considerable frustrations about their situation, in
particular the lack of information provided about progress with their individual
cases, the reasons for delay with the security clearances, and the potential
timeframes they would have to remain in
detention.[71] One group said they
could not bear the waiting and the uncertainty – according to one man,
“We should have died in Sri Lanka or in the
ocean.”[72]
The Commission acknowledges that DIAC is not responsible for the delays in
the conduct of security clearances; these checks are carried out by the
Australian Security Intelligence Organisation (ASIO). The increase in the number
of asylum seekers arriving by boat has led to an increase in the number of
security clearances to be conducted by ASIO, contributing to the delays.
The Commission also acknowledges that the time periods asylum seekers are
currently spending in detention are not as long as the periods for which some
people were detained in the past. However, there are currently significant
numbers of people who have been detained for around one year, and the situation
has the potential to deteriorate further.
The Commission emphasises the need for the Australian Government to take all
appropriate steps to ensure that asylum seekers are not detained for prolonged
periods. This should include taking all practicable steps to ensure that
security clearances are conducted as quickly as possible. It should also include
full implementation of the New Directions policy that asylum seekers will only
be held in detention while their health, identity and security checks are
conducted. In the Commission’s view, after this they should be granted
bridging visas to reside in the community on the mainland while their claims are
processed.[73]
to use Christmas Island for immigration detention purposes, it should avoid the
prolonged detention of asylum seekers by:
- Ensuring full implementation of the New Directions policy under which asylum
seekers should only be held in closed detention facilities while their health,
identity and security checks are conducted. After this, the presumption is that
they will be permitted to reside in the community unless a specific risk
justifies their ongoing detention in a facility.
- Ensuring that security clearances are conducted as quickly as
possible.
10 Potential
for indefinite or arbitrary detention
The Commission has consistently called for the repeal of Australia’s
mandatory detention system because it leads to breaches of Australia’s
obligations to ensure that no one is arbitrarily
detained.[74] The government’s policy of mandatory detention of all irregular maritime
arrivals on Christmas Island is particularly concerning given that the Migration
Act does not require detention in excised offshore places – legally, it is
a matter of discretion.[75]
In its 2009 report, the Commission recommended that, if the Australian
Government intended to continue using Christmas Island for immigration detention
purposes, it should abolish the policy of mandatorily detaining all irregular
maritime arrivals.[76] The mandatory
detention policy is based on a blanket approach, rather than an assessment of
the need to detain in each person’s case. This is inconsistent with United
Nations High Commissioner for Refugees (UNHCR) guidelines, under which there
should be a presumption against the detention of asylum seekers – it
should be the exception rather than the norm. Detention should only be resorted
to if there is evidence to suggest that other alternatives will not be effective
in the individual
case.[77]
The Commission welcomed the inclusion of a key value in the New Directions
policy acknowledging that indefinite or otherwise arbitrary detention is not
acceptable, and committing to regular review of the length and conditions of
detention.[78] However, the
Commission expressed concern in its 2009 report that insufficient reforms had
been implemented to ensure that this value is realised in
practice.[79] These concerns were
reinforced during the Commission’s 2010 visit.
As discussed in section 8 above, the Commission is concerned that the
prolonged or indefinite detention of asylum seekers who were subject to the
suspension may have led to breaches of Australia’s obligations under the
ICCPR not to subject anyone to arbitrary
detention.[80] The mandatory
detention of children for a prolonged or indefinite period of time under the
suspension policy was also inconsistent with Australia’s obligations under
the CRC to avoid the arbitrary detention of children, and to only detain them as
a measure of last resort and for the shortest appropriate period of
time.[81]
The Commission was also concerned during its recent visit about the situation
of seven individuals who are facing an indefinite period in immigration
detention as a result of receiving adverse security assessments from
ASIO.[82] At the time, three of
these individuals had been detained on Christmas Island for five months. The
other four were parents with two young children – the mother and children
had been detained for five months, and the father for eleven months. The
Commission urges the Australian Government to ensure that durable solutions are
provided for these individuals, and they are removed from immigration detention
as soon as possible.
In addition, the Commission has concerns about the review mechanisms designed
to ensure that indefinite or otherwise arbitrary detention does not occur. The
New Directions introduced two new mechanisms: a three-monthly review by a senior
DIAC officer to certify that the further detention of the individual is
justified; and a six-monthly review by the Commonwealth Ombudsman to consider
the appropriateness of the person's ongoing detention and their detention
arrangements.[83] The Commission
welcomed these reforms in its 2009 report. However, the Commission expressed
concerns that these review processes would not be sufficient to ensure that
arbitrary detention did not occur, in particular because the DIAC reviews are
not conducted by an independent body, and the Ombudsman is not able to enforce
his assessments.[84]
In the intervening period, community representatives have raised concerns
with the Commission about the lack of transparency surrounding these review
processes. The Commission has also been informed by DIAC that there are
currently significant delays in undertaking these review processes for people
detained on Christmas Island. The Commission is concerned that this may lead to
some people being held in detention on Christmas Island for more than six months
before an independent body considers the appropriateness of their detention
arrangements.
The Commission encourages the Australian Government to ensure that adequate
resources are allocated to allow for the three and six month review processes to
be conducted on time for each person detained on Christmas Island. The reviews
should include consideration of any appropriate alternatives to the
individual’s ongoing detention in a facility on Christmas Island.
The Commission also encourages the Australian Government to increase
transparency surrounding these detention reviews. This could be done by
implementing the recommendations made by the Joint Standing Committee on
Migration, including that DIAC should publish details of the three month review
process and provide the review to the individual in detention; and that the
Ombudsman’s six month reports should be tabled in Parliament and the
Minister required to
respond.[85]
Finally, the Commission reiterates its long-held view that the essential
safeguard required to ensure that arbitrary detention does not occur is access
to review by a court of any decision to detain, or to continue a person’s
detention. Currently, in breach of its international obligations, Australia does
not provide this.[86] Further, the
Migration Act purports to bar offshore entry persons from taking legal
proceedings relating to the lawfulness of their
detention.[87]
In response to the Commission’s 2009 report, DIAC stated that the
matter of judicial review was being considered in the context of the
government’s response to the recommendations made by the Joint Standing
Committee on Migration in its Inquiry into Immigration Detention in
Australia.[88] This response has not
yet been released.
certain legal proceedings in relation to offshore entry persons, should be
repealed. The Migration Act should be amended to accord with international law
by requiring that a decision to detain a person, or a decision to continue a
person’s detention, is subject to prompt review by a
court.[89]
11 Under-utilisation
of the Community Detention system
When the Commission visited Christmas Island in July 2009, there were 44
people in Community Detention on the island. The Commission raised concerns that
the shortage of community-based accommodation appeared to be preventing the
release of some detainees from detention facilities into Community Detention. At
the time, DIAC had capacity to place up to 60 people in Community Detention on
the island, and steps were being taken to increase that capacity. However, given
the small size of the community and the number of people in detention, the
Commission raised doubts about the feasibility of securing an adequate level of
community-based accommodation.[90]
During its 2010 visit, there were only three people in Community Detention on
Christmas Island.[91] Shortly after
the Commission’s visit, the use of Community Detention ceased because of a
lack of available accommodation. The Commission has significant concerns about
this development. The Commission acknowledges that DIAC is working within
considerable constraints in terms of the accommodation available on Christmas
Island, and that there are significant needs for staff accommodation. However,
in the Commission’s view, the fact that there is not enough accommodation
to allow for use of Community Detention on Christmas Island reinforces the
conclusion that the island is not an appropriate place to detain people.
The Commission also has significant concerns that the Community Detention
system is barely being used on the mainland. While the Commission has welcomed
the transfer of some detainees from Christmas Island to the mainland, the
Commission regrets that the vast majority of these people have been transferred
to immigration detention facilities rather than placed in Community Detention.
At the time of writing, there were 1950 irregular maritime arrivals in detention
on the mainland, including 439 minors. Only seven of these people were in
Community Detention.[92]
The Community Detention system was established to ensure that people,
particularly vulnerable groups, would not be held in immigration detention
facilities for prolonged periods. Under the Residence Determination Guidelines,
priority for Community Detention is to be given to children and accompanying
family members; persons who may have experienced torture or trauma; persons with
significant physical or mental health problems; cases which will take a
considerable period to substantively resolve; and other cases with unique or
exceptional characteristics. Priority cases are to be assessed and referred to
the Minister ‘as soon as
practicable’.[93] Other cases may be referred where DIAC considers it appropriate to do
so.[94]
The Commission is concerned that these Guidelines are not being implemented
on Christmas Island or the mainland. Many of the people currently in immigration
detention facilities would appear to fit into the groups that are intended to be
prioritised for Community Detention. For example, this is the case for families
with children and unaccompanied minors (as discussed in section 13 below), and
survivors of torture or trauma (as discussed in section 19 below).
The Commission welcomes efforts by DIAC to ensure that some of these
vulnerable groups are located in low security detention facilities or
‘alternative places of detention’, rather than high security
immigration detention centres. However, it is important to note that being
detained in an ‘alternative place of detention’ (also referred to as
‘alternative temporary detention in the community’), is not the same
as being in Community Detention under a Residence Determination.
People in ‘alternative places of detention’ are usually in a
designated detention facility, camp or motel-type accommodation. They remain
under physical supervision and are not free to come and go. People in Community
Detention, on the other hand, are permitted to live at a specified residence in
the community – usually a house or apartment. They remain in immigration
detention in a legal sense and they must meet certain conditions, which usually
include reporting to DIAC on a regular basis, sleeping at their stipulated
residence every night, and refraining from engaging in paid work or a formal
course of study. However, they are not under physical supervision and they have
a much greater degree of privacy and autonomy.
DIAC has informed the Commission that one of the reasons for the current
under-utilisation of the Community Detention system is that most irregular
maritime arrivals in immigration detention facilities do not yet have their
security clearances. However, the Commission notes that, legally, a person in
Community Detention remains in immigration
detention.[95] The Community
Detention system allows for the imposition of a range of conditions which can be
used to mitigate particular risks that might be posed by an individual. This is
specifically acknowledged in the Residence Determination
Guidelines.[96]
The Commission encourages the Australian Government to make full use of the
Community Detention system for people detained on Christmas Island. While the
lack of accommodation on the island has limited the availability of Community
Detention there, those restrictions do not apply on the mainland. All eligible
detainees should be referred for a Residence Determination on the mainland.
The Commission also encourages further consideration of the proposal included
in the Migration Amendment (Immigration Detention Reform) Bill 2009, which would
have enabled the Minister to delegate to senior DIAC officers the
Minister’s power to issue Residence
Determinations.[97] In the
Commission’s view, allowing the Minister to delegate this power may assist
by reducing the burden on the Minister to personally consider individual cases,
and by speeding up decision-making so that people are not unduly held in
immigration detention facilities while awaiting a decision on a Residence
Determination.
the Community Detention system for people detained on Christmas Island. All
eligible detainees should be referred for a Residence Determination on the
mainland. This should be an immediate priority for vulnerable groups including
families with children, unaccompanied minors, survivors of torture or trauma,
and people with health or mental health concerns.
PART
C: Children in detention on Christmas Island
In its 2009 report, the Commission expressed significant concerns about the
detention of unaccompanied minors and families with children on Christmas
Island. The Commission expressed the view that Christmas Island is not an
appropriate place in which to hold people in immigration detention, especially
children.[98]
During the Commission’s 2010 visit, there were 247 minors in detention
on Christmas Island – 246 in the Construction Camp immigration detention
facility and one in Community
Detention.[99] Around half of these
minors were 16 or 17 years old, but there were a significant number of younger
children including 45 between the ages of zero and five
years.[100]
The Commission acknowledges the efforts being made by DIAC and Serco staff,
in challenging circumstances, to mitigate the impacts of immigration detention
on children. However, the Commission continues to have significant concerns
about the detention of families with children and unaccompanied minors on
Christmas Island. The Commission’s key concerns include the following:
- Children continue to be subjected to mandatory detention on Christmas
Island, despite the fact that this is not required by the Migration Act and is
inconsistent with Australia’s obligations under the CRC.
- Families with children and unaccompanied minors are detained in a closed
immigration detention facility – the Construction Camp. Community
Detention is no longer available on Christmas Island. Further, in the vast
majority of cases where families with children or unaccompanied minors are
transferred to the mainland, they are placed in detention facilities rather than
Community Detention.
- The Construction Camp is not an appropriate environment for families with
children or unaccompanied minors. There has been a substantial increase in the
number of people detained in the Construction Camp, significantly reducing the
level of amenity.
- There continues to be a lack of clarity surrounding responsibilities and
procedures relating to child welfare and protection for children in immigration
detention on Christmas Island.
- There continues to be a conflict of interest in the Minister or a DIAC
officer acting as the legal guardian of unaccompanied minors detained on
Christmas Island, while also being the detaining authority and the visa
decision-maker.
These concerns are outlined further below.
12 Mandatory detention
of children on Christmas Island
The Commission is concerned that families with children and unaccompanied
minors continue to be subjected to mandatory detention on Christmas Island. The
Commission has long opposed the mandatory detention of children because it leads
to fundamental breaches of their human rights.
In 2004, the Commission released A last resort?, the report of the
National Inquiry into Children in Immigration Detention. During the period of
the Inquiry, large numbers of children were detained for lengthy periods in
Australia’s high security immigration detention
centres.[101]
The Inquiry found that Australia’s immigration detention system was
fundamentally inconsistent with the CRC. In particular, the system failed to
ensure that:
- detention of children is a measure of last resort, for the shortest
appropriate period of time and subject to effective independent review
- the best interests of the child are a primary consideration in all actions
concerning children
- children are treated with humanity and respect for their inherent
dignity
- children seeking asylum receive appropriate assistance to enjoy, to the
maximum extent possible, their right to development and their right to live in
an environment which fosters the health, self-respect and dignity of children in
order to ensure recovery from past torture and
trauma.[102]
The
Inquiry also found that children in immigration detention for long periods of
time are at high risk of serious mental
harm.[103]
Since the release of A last resort?, the Commission has welcomed
positive changes including that children are no longer detained in high security
immigration detention centres, and the average length of detention for children
has decreased. However, children are still subjected to mandatory detention.
In 2005 the Migration Act was amended to insert section 4AA, affirming
‘as a principle’ that a minor should only be detained as a measure
of last resort.[104] The
Commission welcomed this development. However, as discussed in the
Commission’s 2009 report, section 4AA is not being implemented on
Christmas Island.[105] The
government’s policy is that all irregular maritime arrivals, including
families with children and unaccompanied minors, are mandatorily detained on
Christmas Island. This is despite the fact that the Migration Act does not
require the mandatory detention of unauthorised arrivals in excised offshore
places.[106]
In its 2009 report, the Commission observed that this mandatory detention
policy is inconsistent with Australia’s obligations under the CRC to only
detain a child as a measure of last resort, and recommended that the policy be
abolished.[107] In order to comply
with its obligations under the CRC, the government should consider any less
restrictive alternatives available to a child in deciding whether that child is
detained. A child should only be detained in exceptional
cases.[108]
The Commission has also long been concerned that Australia’s
immigration detention system breaches the CRC by failing to provide for child
detainees to challenge their detention in a court or another independent
authority.[109]
The Commission continues to advocate for changes to the Migration Act to
ensure that children are only detained if it truly is a measure of last resort;
and that if they are detained, it is for the shortest appropriate period of time
and subject to independent and judicial review
mechanisms.[110] In this regard,
the Commission welcomed the introduction of the Migration Amendment (Immigration
Detention Reform) Bill 2009. However, it expressed concerns that the Bill did
not include sufficient measures to ensure those protections would be in place
for children.[111]
The Commission’s concerns have increased over the past year as the
number of unaccompanied minors and families with children in detention has
increased substantially – at the time of writing, there were 217 minors in
detention on Christmas Island and 439 minors in detention on the
mainland.[112]
The Commission urges the Australian Government to address this issue as a
matter of the highest priority.
outstanding recommendations of the report of the National Inquiry into Children
in Immigration Detention, A last
resort?.[113] These include
that Australia’s immigration detention laws should be amended, as a matter
of urgency, to comply with the Convention on the Rights of the Child. In
particular, the new laws should incorporate the following minimum
features:
- There should be a presumption against the detention of children for
immigration purposes.
- A court or independent tribunal should assess whether there is a need to
detain children for immigration purposes within 72 hours of any initial
detention (for example, for the purposes of health, identity or security
checks).
- There should be prompt and periodic review by a court of the legality of
continuing detention of children for immigration purposes.
- All courts and independent tribunals should be guided by the following
principles:
- detention of children must be a measure of last resort and for the
shortest appropriate period of time
- the best interests of children must be a primary consideration
- the preservation of family unity
- special protection and assistance for unaccompanied
children.
- detention of children must be a measure of last resort and for the
13 Detention placement
for children on Christmas Island
The Commission is concerned that unaccompanied minors and families with
children are detained in a closed immigration detention facility on Christmas
Island (the Construction Camp), rather than being placed in Community
Detention.
13.1 Placement of
children in the Construction Camp facility
As noted above, the Commission has welcomed positive changes since the
release of A last resort?. In particular, the Commission welcomed the
inclusion in the government’s New Directions policy of a key value stating
that ‘[c]hildren, including juvenile foreign fishers and, where possible,
their families, will not be detained in an immigration detention
centre’.[114]
However, while children are no longer held in high security immigration
detention centres, they are still detained in lower security detention
facilities. On Christmas Island, they are detained in the Construction Camp
immigration detention facility.
In its 2009 report, the Commission expressed the view that the Construction
Camp is not an appropriate environment for
children.[115] While DIAC
categorises the Construction Camp as ‘alternative temporary detention in
the community’, the Commission reiterates its view that this is
misleading.[116] The Construction Camp is a low security facility – it is surrounded by a
residential style fence and does not have alarms, CCTV surveillance or other
intrusive security measures. The Commission welcomes this. However, it remains a
detention facility from which detainees are not free to come and go.
In order to meet its obligations under the CRC, the government should
consider any less restrictive alternatives before deciding to detain a child in
a closed facility such as the Construction Camp. This should include Community
Detention, as discussed below.
In response to the Commission’s 2009 report, DIAC noted efforts that
were underway to introduce reforms relating to the decision of where and how to
detain a child if that child was to be taken into immigration detention. In
particular, these included the Migration Amendment (Immigration Detention
Reform) Bill 2009 and a draft Ministerial Direction on the detention of
minors.[117] The Commission
welcomed these efforts and is disappointed that they have not progressed.
In particular, the Bill would have amended the Migration Act to require that
if a minor is detained, the minor must not be detained in an immigration
detention centre; and that if a minor is detained, the best interests of the
child must be a primary consideration in deciding where that child is
accommodated. While the Commission expressed concern that the Bill did not go
further in embedding protections for children and recommended a range of
amendments, the Commission is disappointed that even these modest reforms were
not adopted.[118]
13.2 Under-utilisation
of the Community Detention system
One of the most positive changes after the release of A last resort? was the introduction in 2005 of the Residence Determination power, under which
the Minister can permit an immigration detainee to be placed in Community
Detention.[119]
In its 2009 report, the Commission expressed concerns that some families with
children and unaccompanied minors were detained in the Construction Camp
facility on Christmas Island, rather than being placed in Community Detention.
The Commission recommended that if the government intended to continue the
practice of holding children in detention on Christmas Island, they should be
placed with their family members in community-based
accommodation.[120]
DIAC’s response to this recommendation stated that:
The priority is that minors and, where relevant their families, are promptly
accommodated in the Christmas Island community under residential determinations
once the appropriate checks, accommodation and supervision are in
place.[121]
The Commission is concerned that Community Detention is no longer available
on Christmas Island. During its 2010 visit, there were only three people in
Community Detention; at the same time there were 418 people detained in the
Construction Camp, including 94 accompanied children and 152 unaccompanied
minors.[122] Shortly after the
Commission’s visit, the use of Community Detention on Christmas Island
ceased because of a lack of available accommodation. While the Commission
acknowledges that DIAC is working within considerable constraints in terms of
the accommodation available on Christmas Island, the Commission has significant
concerns about this development, as discussed in section 11 above.
Further, while the Commission has welcomed the transfer of some families with
children and unaccompanied minors from Christmas Island to the mainland, the
Commission regrets that the vast majority have been transferred to immigration
detention facilities rather than being placed in Community
Detention.[123]
As noted in section 11, the Community Detention system was established in
order to ensure that people, particularly vulnerable groups, would not be held
in immigration detention facilities for prolonged periods. Under the Residence
Determination Guidelines, priority is to be given to groups including children
and their accompanying family members, and all minors are to be identified for a
Residence Determination ‘as soon as they are
detained’.[124] The
Commission is concerned that these guidelines are not being implemented on
Christmas Island or the mainland.
If children are to be detained, they should be placed in Community Detention
with their family members or with a suitable carer if they are unaccompanied.
While the lack of accommodation on Christmas Island has limited the availability
of Community Detention there, those restrictions do not apply on the mainland.
The Commission urges the Australian Government to implement the
recommendation in section 11 of this report to make full use of the Community
Detention system for people detained on Christmas Island. All eligible detainees
should be referred for a Residence Determination on the mainland. This should be
an immediate priority for vulnerable groups including families with children and
unaccompanied minors.
14 Conditions and
services for children in the Construction Camp
for them.” (Afghan parent, Construction Camp immigration detention
facility)
As noted above, the Commission has previously stated that the Construction
Camp immigration detention facility is not an appropriate environment for
children. The Commission remains of this view after its 2010 visit.
The Commission acknowledges that DIAC is working within considerable
infrastructure constraints, and that significant efforts are being made by staff
to provide appropriate conditions for families and unaccompanied minors.
However, the Commission’s concerns about conditions in the Construction
Camp have been exacerbated this year because of the significant increase in the
number of people detained there. The Commission’s key concerns include the
lack of open and grassy spaces inside the Construction Camp, the lack of indoor
recreation space, the overcrowding, and the impacts this is having on families
with young children. These issues are discussed in further detail in section 17
below.
This section provides a brief overview of access to appropriate education,
recreational activities and food for children detained in the Construction Camp.
14.1 Access to
education
Under international human rights standards, all children have a right to
education.[125] This right should
be recognised for all children in immigration detention. Children of compulsory
school age should be provided with access to education of a standard equivalent
to that in Australian schools. Children older than the compulsory school age
should also be provided with opportunities to continue their education. Wherever
possible, the education of children in detention should take place outside the
detention facility, in the general school
system.[126]
During its visit to Christmas Island, the Commission was pleased to observe
that positive efforts are being made to provide many school-aged children with
access to appropriate education. The Commission was informed that children
detained in the Construction Camp who are aged 15 years or under attend the
Christmas Island District High School on a daily basis. The Commission heard
positive feedback from parents in detention about their children’s
attendance and participation in classes at the local school. The Commission also
visited the school and was pleased to observe asylum seeker children fully
engaged in learning activities. Staff from the local school spoke highly of the
support provided by DIAC. The Commission is also pleased that under a new
initiative, some young adults detained in the Construction Camp are able to
volunteer at the school as teacher’s aides.
Generally, 16 and 17 year olds (mostly unaccompanied minors) do not attend
the local school. Instead, they attend classes in two demountable classrooms at
Phosphate Hill. The Commission welcomes the efforts that have been made to
establish these arrangements, but is concerned that not all older minors are
provided with access to classes. At the time of the Commission’s visit,
there were 114 minors on a waiting
list.[127] Since then, the
Commission has been informed by DIAC that two classes will be held in the
morning and two in the afternoon. Each class will have capacity for 18 students,
meaning that 72 minors will have the opportunity to attend one three hour class
each weekday. However, at times, this will still be insufficient to provide
access to classes for all older minors – for example, when the Commission
visited, there were 152 unaccompanied minors in
detention.[128]
The Commission urges DIAC to take appropriate steps to ensure that all minors
are provided with access either to the local school, or to educational classes
in the classrooms at Phosphate Hill. If this cannot be arranged due to capacity
constraints on Christmas Island, minors should be transferred to a location on
the mainland where they can be provided with access to education.
14.2 Recreational
activities and toys
Recreational and educational opportunities are particularly important for
children in immigration detention. The CRC protects the right of all children to
education, to engage in play and recreational activities appropriate to their
age, and to participate in cultural and artistic
activities.[129] UNHCR guidelines
state that if a child is detained, provision should be made for their recreation
and play, which is essential to a child’s mental development and will
alleviate stress and
trauma.[130]
As discussed further in section 22 below, the Commission is concerned about
the lack of appropriate recreational facilities inside the Construction Camp.
The Commission welcomes the extension of the fence line to incorporate an
existing basketball court into the facility, and the fact that detainees are
permitted to visit the oval and playground next to the Construction Camp each
weekday afternoon (under the supervision of Serco officers). However, the
Commission remains concerned that there is no open grassy area inside the
Construction Camp, and that there are very few indoor recreation spaces. The
Commission heard that this is of particular concern when it rains, as there are
very limited spaces for children to play.
Recreational activities for children detained in the Construction Camp are
conducted by the Australian League of Immigration Volunteers (ALIV). ALIV is
contracted by Serco, and staffed by volunteers. The Commission was pleased to
observe some ALIV volunteers running activities with children in the
Construction Camp, and heard positive feedback from some parents about the
activities provided.
The Commission was also pleased to hear about a new development under which
young children were being provided with the opportunity to attend a kindergarten
session three times a week. This was providing them with a valuable opportunity
to leave the detention environment and to engage in creative play. The
Commission is disappointed that this has since been discontinued.
The Commission had significant concerns about the lack of toys, games or
other materials for children’s independent play inside the Construction
Camp. This was a particular concern given the high number of children detained
there – at the time, there were 246 minors in the
facility.[131] This included 45
children aged five years or younger, 27 children aged between six and ten years,
and 49 children aged between 11 and 15
years.[132] Having materials
available for children to play with is especially important for young children
who are not old enough to attend school and who therefore spend the vast
majority of their time confined within the Construction Camp.
During its visit the Commission was provided with a list of toys ordered by
Serco in late June. The Commission encourages DIAC and Serco to continue to take
appropriate steps to ensure that all children detained in the Construction Camp
are provided with opportunities to engage in play and recreational activities
appropriate to their age.
14.3 Food
Under international human rights standards, appropriate meals should be
provided for babies and infants in immigration
detention.[133]
During its visit to Christmas Island, some concerns were raised with the
Commission about the suitability of the food provided at the Construction Camp
for small children. In particular, some parents raised concerns about access to
food appropriate for children aged between one and five years.
During the visit, the Commission attended a ‘Client Consultative
Committee’ meeting at the Construction Camp. The meeting was held in
response to reports from female detainees that the food was unpalatable, that
young children were failing to put on weight, and that there had been weight
loss among some adult detainees. Some detainees raised concerns about the
frequency with which they were served rice, and the lack of fresh produce such
as tomato, cucumber, lettuce and eggs.
Serco kitchen staff indicated that they would make efforts to amend the menu
in response to these concerns. However, they advised detainees that Christmas
Island’s remote location means that all food has to be ordered three
months in advance and shipped to the island, which significantly limits the
range and amount of fresh produce available.
15 Child welfare and
protection responsibilities
Under international human rights standards, Australia is obliged to take
‘all appropriate legislative, administrative, social and educational
measures’ to ensure that children are protected from all types of
violence, abuse or neglect caused by a child’s parent or any other person
who is caring for the child.[134] In the detention environment this means that DIAC and Serco must take positive
steps to ensure that children are protected from physical or mental violence,
abuse or neglect in detention, irrespective of its
source.[135]
For many years, the Commission has raised concerns about the lack of
coordination between DIAC and state child welfare authorities regarding
responsibilities for the welfare and protection of children in immigration
detention.[136] In its 2009
report, the Commission noted that those concerns are further exacerbated on
Christmas Island because of the lack of clarity regarding which laws apply and
which state and federal bodies have responsibilities for children detained on
the island.[137]
The Commission recommended that, with regard to the welfare and protection of
children in immigration detention on Christmas Island, the Australian Government
should clarify the applicable laws and jurisdiction of relevant state and
federal bodies; clarify through formal Memoranda of Understanding the respective
roles and responsibilities of state and federal authorities; clearly communicate
these roles and responsibilities to all relevant authorities; and ensure that
there are clear policies and procedures in place regarding child welfare and
protection concerns that may
arise.[138]
In response, DIAC noted the complexity of the legal framework in force on
Christmas Island, and accepted the need to clarify the respective roles and
responsibilities of DIAC, other Commonwealth agencies and state child welfare
authorities.[139]
DIAC has since provided the Commission with further written advice, which
confirms that the operation of laws relating to the welfare and protection of
children in immigration detention on Christmas Island is complex. DIAC has legal
responsibilities for children in immigration detention on Christmas Island as
the detaining authority under the Migration Act. At the same time, the
Commonwealth Minister for Home Affairs retains powers with respect to child
protection on Christmas Island under the Children and Community Services Act
2004 (WA). Further, while the Commissioner for Children and Young People
Act 2006 (WA) applies to Christmas Island, the WA Commissioner for Children
and Young People currently does not have jurisdiction over children on Christmas
Island. The Commissioner’s powers in this regard are vested in the
Commonwealth Minister for Home Affairs.
DIAC policy requires that if staff have concerns or suspicions about the
potential abuse or neglect of a child in immigration detention, they should be
immediately referred to the relevant state child welfare
agency.[140] In the case of
children detained on Christmas Island, DIAC has stated that the relevant agency
is the WA Department for Child
Protection.[141] However, the WA
Department for Child Protection has no legal powers or responsibilities
regarding children in detention on Christmas Island because those powers have
not been delegated to the WA State Government by the Commonwealth Minister for
Home Affairs.
The WA Department for Child Protection does provide some services to the
Christmas Island Administration under a Service Delivery Arrangement between the
Commonwealth and the WA State Government. However, DIAC does not have a formal
arrangement with the WA Department for Child Protection in respect of children
in immigration detention on the island.
The Commission understands that informal assistance has been provided by the
WA Department for Child Protection on two occasions where concerns were raised
about a child in detention on Christmas Island. The Commission welcomes this.
However, the Commission remains seriously concerned about the lack of clarity
surrounding legal responsibilities for children in detention on Christmas Island
and the fact that formal arrangements are not in place to ensure that their
welfare and protection needs are overseen by a child welfare agency.
The Commission also remains concerned that there are not clear policies and
procedures in place for DIAC and Serco staff regarding concerns that may arise
in respect of the welfare or protection of children in detention on Christmas
Island.
During its visit, the Commission was provided with a draft Serco policy
outlining procedures to ensure that Serco staff understand the rights, needs and
entitlements of children in detention. This document sets out an approach to
child protection
issues.[142] The Commission welcomes efforts that have gone into preparing the policy, but is
concerned that it remains in draft form more than nine months after Serco took
over operation of the detention facilities on Christmas Island.
DIAC has informed the Commission that a policy document regarding child
protection and guardianship on Christmas Island is currently being developed.
The Commission welcomes this, but is concerned that this has not been completed
after more than 12 months of consistently detaining significant numbers of
children on the island.
the practice of holding children in immigration detention on Christmas Island it
should, as a matter of priority:
- clarify through formal Memoranda of Understanding the respective roles and
responsibilities of state and federal authorities with regard to the welfare and
protection of children in immigration detention on Christmas Island
- clearly communicate these roles and responsibilities to all relevant state
and federal authorities
- finalise and implement clear policies and procedures regarding child welfare
and protection concerns that may arise in respect of children in immigration
detention on Christmas Island, and communicate these policies and procedures to
all relevant staff.
16 Unaccompanied minors
in detention
16.1 Care and support
for unaccompanied minors
Australia’s obligations under the CRC to only detain children as a
measure of last resort and for the shortest appropriate period of time apply to
unaccompanied minors.[143] UNHCR
guidelines also provide that unaccompanied minors should not be detained,
particularly in isolated
areas.[144] In addition, because
of their particular vulnerability, the CRC requires that the government provide
unaccompanied minors with special protection and
assistance.[145]
During the Commission’s visit to Christmas Island there were 152
unaccompanied minors detained in the Construction Camp, the majority of whom
were 16 or 17 years old.[146] This
was a significant increase from the Commission’s July 2009 visit, when
there were 54 unaccompanied minors detained on the island – 18 in
Community Detention and 36 in the Construction Camp.
The Commission is concerned about the high number of unaccompanied minors
detained on Christmas Island, and that they are all in a closed detention
facility rather than Community Detention. Unaccompanied minors in the
Construction Camp do not have dedicated carers. They are supervised by Serco
detention officers. Serco’s draft policy regarding minors states that all
minors will be allocated a Personal Officer whose role is to oversee a
minor’s Individual Management
Plan.[147] It also states that
there will be at least one staff member with child welfare qualifications onsite
at each detention facility where minors are
accommodated.[148] While the
Commission welcomes these measures, it is concerned that the draft policy is yet
to be finalised and fully implemented on Christmas Island.
One DIAC Case Manager has responsibility for unaccompanied minors detained in
the Construction Camp. The Case Manager’s role includes providing basic
information on arrival about the processes the minors will go through while
their asylum claims are assessed; facilitating access to services (such as
medical appointments) if requested; and providing minors with updates on
progress with their cases if requested.
As unaccompanied minors go through various interviews, an Independent
Observer is generally present at the interviews as a support person. DIAC
contracts the organisation Life Without Barriers (LWB) to provide Independent
Observers on Christmas Island. Their role is to provide ‘physical and
moral support and care’ to unaccompanied minors during
interviews.[149] They can
interject and recommend a break if they feel that the minor is distressed or
uncomfortable.
The Commission welcomes the roles played by the DIAC Case Manager and the
Independent Observers. However, the Commission is concerned that there remains
insufficient support provided to unaccompanied minors in detention.
The Commission is concerned about the limited capacity of the Case Manager
and the Independent Observers to meet the needs of such a high number of
unaccompanied minors. At the time of the Commission’s visit there was one
Case Manager and there were two Independent Observers for 152 unaccompanied
minors.[150]
The Commission is also concerned that Independent Observers are not required
to be present during an unaccompanied minor’s RSA interview. The
Commission understands that the minor’s IAAAS agent is considered to be
the independent person during that interview. However, in the Commission’s
view, an Independent Observer should also be present, given the significance of
the interview in determining the minor’s refugee claim and the fact that
the IAAAS agent’s role is to concentrate on the particulars of the case
rather than the minor’s immediate welfare. Some unaccompanied minors told
the Commission they felt scared or intimidated during their RSA
interview.[151]
There was also confusion among some unaccompanied minors about the roles and
responsibilities of the Independent Observers and the Case Manager. Some
unaccompanied minors thought the Independent Observers were their legal
guardians and did not understand why they had not seen them since the day they
arrived. Others did not appear to understand the role of the Case
Manager.[152] Clearer information
should be provided to ensure that unaccompanied minors understand these roles
and know who is responsible for which aspects of their care.
While the Commission welcomes the role played by the Independent Observers,
it is a limited role. They are there to observe interviews to ensure that the
minor is treated appropriately. They are not there to advocate or care for
unaccompanied minors in detention more generally and are not permitted to
provide advice or information to minors about the processes they go through
during assessment of their refugee claims. In the Commission’s view, this
is a gap that needs to be filled. The Commission has long advocated for
unaccompanied minors to be provided with an independent guardian and support
person, as discussed below.
16.2 Guardianship of
unaccompanied minors
The CRC requires Australia to ensure ‘alternative care’ for
unaccompanied minors.[153] Effective guardianship is an important element of the care that unaccompanied
minors need. The CRC also requires that the best interests of the child be the
‘basic concern’ of the child’s legal
guardian.[154] This suggests that
the best interests of an unaccompanied minor must not only be a primary
consideration (as required by article 3 of the CRC), but the primary
consideration for his or her legal guardian.
In Australia, the Minister for Immigration is the legal guardian of all
unaccompanied minors seeking
asylum.[155] The Minister can
delegate those powers to DIAC
officers.[156] The Commission has
for many years raised concerns about these
arrangements.[157] In the
Commission’s view, they create a fundamental conflict of interest. It is
not possible for the Minister or a DIAC officer to ensure that the best
interests of an unaccompanied minor are their primary consideration when they
are simultaneously the child’s guardian, the detaining authority and the
visa decision-maker.
The Commission has repeatedly recommended that an independent guardian should
be appointed for unaccompanied minors in immigration
detention.[158] This would be in
line with UNHCR
Guidelines.[159]
The Commission’s 2009 report noted that the lack of an independent
legal guardian is particularly concerning on Christmas Island given the number
of unaccompanied minors in detention, the limited access they have to external
scrutiny and advocacy bodies, and the shortage of accommodation options other
than closed detention facilities. The Commission encouraged urgent action on
this issue.[160]
In response to the Commission’s report, DIAC acknowledged the
‘perceived conflict of interest’ between the Minister’s role
as guardian and being the decision-maker under the Migration Act, and reported
that policy work was being progressed to improve the regime governing
guardianship.[161] The Commission
is aware that, since then, policy work regarding unaccompanied minors in the
community has progressed. However, the Commission is disappointed that little
progress has been made in terms of guardianship of unaccompanied minors in
detention.
The Commission urges the Australian Government to address this issue as a
matter of priority.
priority, implement the recommendations made by the Commission in A last
resort? that:
- Australia’s laws should be amended so that the Minister for
Immigration and Citizenship is no longer the legal guardian of unaccompanied
children.
- An independent guardian should be appointed for unaccompanied children and
they should receive appropriate support.
PART
D: Conditions and services in detention
At the time of the Commission’s 2010 visit
to Christmas Island, there were 2421 people in the immigration detention
facilities on the island.[162]
The Commission was pleased to observe that significant efforts were being
made by DIAC and detention service provider staff to provide conditions,
services and activities of an acceptable standard. The Commission also
acknowledges that staff are working in very challenging circumstances on
Christmas Island.
As in 2009, the Commission found during this visit that DIAC was making
significant efforts to manage the immigration detention operations on Christmas
Island in a positive way, particularly given the considerable constraints they
are working within.
However, the Commission continues to be of the view that many of those
constraints are imposed by the Australian Government’s decision to detain
people in a location as small and remote as Christmas Island. The immigration
detention facilities on the island are not appropriate for detaining asylum
seekers, and the remote location and small size of the local community mean that
people in detention have limited access to appropriate services and support
networks. The Commission maintains the view that those constraints make
Christmas Island an inappropriate place in which to hold people in immigration
detention.
During its visit, the Commission had some significant concerns about the
conditions for people in immigration detention on Christmas Island. The
Commission’s key concerns include the following:
- Ongoing concerns about the infrastructure and environment in the detention
facilities on the island – in particular the prison-like nature of the
Christmas Island IDC, the limited amenities at the Phosphate Hill facility, and
the inappropriateness of the Construction Camp as a place for accommodating
families with children and unaccompanied minors.
- The substantial increase in the number of people being held in the detention
facilities has led to overcrowding and a significant deterioration in living
conditions for many people, particularly those accommodated in tents and
dormitory rooms.
- The substantial increase in detainees has placed further strain on their
access to facilities and services including communication facilities, health and
mental health care, recreational facilities and educational activities.
- Most people in detention expressed positive views about their treatment by
most DIAC and Serco staff. However, a small number were concerned about specific
instances where they felt they had been treated in a degrading or racially
discriminatory way; and many expressed concerns about being referred to by their
identification number rather than their name.
- While some people in detention expressed positive views about aspects of
their conditions, others expressed frustrations about a range of issues
including limited access to facilities such as telephones, delays in accessing
medical care, limited opportunities to leave the detention environment, and a
lack of regular provision of information about progress with their asylum claims
and security clearances.
The following sections outline the
Commission’s concerns in greater detail. Where appropriate,
recommendations are made for improving conditions for people detained on
Christmas Island. This should not be construed as an endorsement of holding
people in detention on Christmas Island. Rather, it reflects the fact that if
the Australian Government intends to continue this practice, conditions should
comply with internationally accepted human rights standards.
17 Detention
infrastructure and environment
Under international standards, authorities should seek to minimise
differences between life in detention and life at liberty in the design and
delivery of detention services and
facilities.[163]
The Commission has previously raised concerns that the immigration detention
facilities on Christmas Island are not appropriate for asylum seekers,
particularly families with children and people with a background of torture or
trauma. The Commission acknowledges that DIAC is working within considerable
infrastructure constraints on Christmas Island. However, in the
Commission’s view, the fact that suitable infrastructure is not available
on Christmas Island is one reason why people should not be detained on the
island.
The Commission’s concerns about the detention infrastructure on
Christmas Island have been exacerbated this year, as the substantial increase in
the number of detainees has led to overcrowding and a significant deterioration
in the conditions of detention for many people. The Commission’s key
concerns about each detention facility are outlined below.
17.1 Christmas
Island IDC
have not committed a crime and still we are confined to a jail.” (Man
in Lilac Compound, Christmas Island IDC)
The Christmas Island IDC is a high security, purpose-built facility that was
completed in 2008. The IDC is located in a national park area at North-West
Point, about 17 kilometres from the island’s small town area. The IDC is
used to detain adult males. When the Commission visited, there were 1834 men in
the IDC.[164]
(a) Detention
infrastructure
Christmas Island IDC)
After its 2008 visit to Christmas Island, the Commission raised concerns
about the prison-like nature of the Christmas Island IDC and recommended that it
should not be used for accommodating asylum
seekers.[165] After its 2009
visit, the Commission reiterated this view. The Commission expressed particular
concerns about the excessive security measures including high wire fences,
walkways enclosed in cage-like structures, CCTV surveillance, metal reinforced
officer booths with perspex security screens, and metal grills on
detainees’ bedroom
windows.[166]
The Commission recommended that, if the Australian Government intended to
continue to use the Christmas Island IDC, it should take steps to modify the
security measures to make it a more appropriate environment for asylum seekers.
This should include implementation of the Joint Standing Committee on
Migration’s recommendation that all caged walkways, perspex barriers and
electrified fencing should be removed and replaced with more appropriate
infrastructure.[167]
In response, DIAC stated that it was ‘considering options for softening
the appearance of the IDC, including removal of a number of internal fences and
caged walkways and that this would occur ‘where it is possible to do so at
an acceptable cost’.[168] During the Commission’s 2010 visit, there had been no apparent progress
made in this regard. DIAC acknowledged that the IDC could be softened and made
more appropriate. However, funding constraints and competing priorities appear
to be preventing further action from being taken.
The Commission was pleased to note the following during its 2010 visit:
- The IDC is still being operated in a relatively open way – the
accommodation compounds are opened during the day (with the exception of meal
times), so that detainees can move around inside most parts of the centre.
- According to DIAC, the electrified fencing surrounding the IDC is not
activated.
- The separation detention system is no longer being used, meaning that newly
arrived detainees are no longer subjected to restrictions on their freedom of
movement inside the centre or their access to communication. At the time of the
Commission’s 2009 visit, these restrictions were causing some detainees
significant distress.[169] The
Commission understands that this change was a response to infrastructure
constraints, rather than a policy decision. However, given that it does not
appear to have had negative consequences, the Commission hopes that the system
will not be reintroduced.
Despite these positive aspects, the
Commission’s overarching concerns about the prison-like nature of the IDC
remain. In the Commission’s view, it is neither necessary nor appropriate
to hold asylum seekers in a high security detention centre on Christmas Island.
Asylum seekers are detained under the Migration Act because they do not have a
valid visa.[170] They are not
detained because they are under police arrest or because they have been charged
with or convicted of a criminal offence. The treatment of immigration detainees
should therefore be as favourable as possible, and in no way less favourable
than that of untried or convicted
prisoners.[171]
The use of a maximum security environment to detain virtually all single
adult males is also inconsistent with the government’s policy that people
should be detained in the least restrictive form of detention appropriate to an
individual’s
circumstances.[172] In addition,
many of the security measures appear unnecessary given the extreme isolation of
the IDC.
The Commission acknowledges that the IDC was not constructed by the current
government, and that DIAC is working within considerable constraints in terms of
the infrastructure and accommodation available on Christmas Island. However,
those constraints are largely a result of the government’s decision to
detain people in a location as small and remote as Christmas Island. The fact
that suitable infrastructure is not available on the island contributes to the
Commission’s view that it is not an appropriate place in which to detain
asylum seekers. If the government intends to continue this practice, it should
allocate sufficient resources to enable the IDC, particularly the security
measures, to be modified to make it a more appropriate environment.
to use the Christmas Island IDC, it should implement the recommendation of the
Joint Standing Committee on Migration that all caged walkways, perspex barriers,
and electrified fencing should be removed and replaced with more appropriate
security
infrastructure.[173]
(b) Overcrowding
During its visit, the Commission’s most significant new concerns about
the Christmas Island IDC related to overcrowding. When the Commission visited in
July 2009, there were 590 men detained in the IDC. By the start of the
Commission’s 2010 visit this had increased to 1834
men.[174] At the time of writing,
the highest number detained in the IDC at one time was 2037 people, including
238 in tents.[175]
The IDC was built with a standard operating capacity of 400 and a surge
capacity of 800. Its capacity has been progressively increased over the past
year by converting some of the recreation and education rooms to dormitory
bedrooms, installing seven large tents in the Red Compound, creating additional
surge capacity by converting a visitors’ area and an induction area into
large dormitories, and constructing two additional compounds.
The Commission was particularly concerned about overcrowding in the tents and
the dormitories, as discussed below. The major impacts of overcrowding include
that people detained in these areas have virtually no privacy, many of them have
no secure place to store their personal belongings, and there is limited access
to basic facilities such as showers, kettles, toasters and washing machines.
The Commission was most concerned about overcrowding and conditions in the
tents that have been installed in the open area of the Red Compound. There are
seven large tents – six for accommodation and one for meals. Each tent can
sleep up to 40 people in bunk beds. When the Commission visited, there were 169
people in the tents.[176] Since
then, the tents have housed 238 people at
once.[177]
The tents are crowded, and people have no privacy and nowhere to store their
belongings other than in large plastic bags or under their beds. The surrounding
area is mostly bare dirt and some people reported finding leeches and centipedes
on their beds. Others said they had to eat meals on their beds because of lack
of space in the dining tent. There is only one washing machine for all detainees
to share.
The accommodation provided in the tents is inappropriate and unacceptable by
Australian community standards. While it might be adequate as emergency
accommodation for a night or two, some people may be accommodated there for
weeks or even months. When the tents were installed in late 2009, DIAC informed
the Commission that they were intended to be used as a short-term measure. In
the Commission’s view, the tents should be dismantled as soon as possible
and people should be moved to more appropriate accommodation on Christmas Island
or the mainland.
The Commission also had significant concerns about overcrowding and
conditions in Education 3 Compound. This was formerly used for recreational and
educational activities, but has been turned into an accommodation compound by
placing bunk beds in all but two of the rooms. The Commission is disappointed
about this development – with the high number of people in the IDC, it has
added to the pressure on the recreational areas that remain.
When the Commission visited, there were 144 people accommodated in Education
3 Compound.[178] Each bedroom
sleeps up to 24 people, in very cramped conditions. People have no privacy, and
most have nowhere to store their belongings. There is no dining area in the
compound – people are served their meals in takeaway containers.
Since the Commission’s last visit, the induction and visitors’
areas have been converted into large dormitories. These areas, referred to as
Zulu 1 and Zulu 2, have a combined capacity of 142 people. In the
Commission’s view, this accommodation is inappropriate. The dormitories
are extremely cramped. People have very little space, no privacy and nowhere to
store their belongings. There is no dining room or recreation room, and no
additional showers or toilets have been installed to help meet demand when the
dormitories are in use. People accommodated in these dormitories would have
access to such facilities in the main centre during the day – but they
would be competing with high numbers of detainees in other compounds for
access.
These areas were not in use at the time of the Commission’s visit, but
they have been used at other times. DIAC informed the Commission that generally
people are only accommodated in these areas for a night or two. However, the
Commission heard from some people who said they spent five nights there.
Finally, the Commission was concerned about crowded conditions in the surge
areas in the original eight accommodation compounds – these consist of
dormitory bedrooms that each sleep up to 18 people. In addition, in some
accommodation compounds the recreation room has been converted into a dormitory
bedroom. People sleeping in these dormitory bedrooms told the Commission about
some of the challenges in sharing a room with 17 other people – including
difficulties sleeping if others make noise and the fast spread of colds if one
person gets sick.[179] As with the
other dormitories, people in these rooms have very little space, and many of
them hang a sheet over the bed in an attempt to create some privacy.
As noted above, the Commission acknowledges that DIAC is working within
considerable infrastructure constraints on Christmas Island, and that
significant efforts are being made by staff to provide appropriate conditions
for people in detention. However, the Christmas Island IDC was not designed to
accommodate such a high number of people. It is not appropriate for the
Australian Government to continue to detain high numbers of people in the
centre; nor to continually expand the capacity using measures such as tents and
large dormitories.
If the Australian Government intends to continue using the Christmas Island
IDC, it should take immediate measures to reduce the overcrowding. Current
conditions are not consistent with international human rights standards which
require accommodation in detention facilities to meet the requirements of health
and human dignity, with appropriate regard paid to issues including climatic
conditions, minimum floor space, lighting and
ventilation.[180] Each person in detention should also be provided with a secure space for storing
their personal belongings.[181]
to use the Christmas Island IDC, it should take immediate measures to reduce
overcrowding. These should include:
- ceasing the practice of accommodating people in tents, and removing the
tents as soon as possible
- ceasing use of the surge areas that have been created by converting the
visitors’ and induction areas into large dormitories
- ceasing the practice of accommodating people in dormitory bedrooms in
Education 3 Compound, and returning the compound to its original use as space
for educational and recreational activities
- refraining from transforming additional areas into
accommodation.
(c) Public
health impacts of overcrowding
The increase in the number of people being detained in the IDC has had some
obvious impacts in terms of access to essential facilities such as toilets and
showers, and has created concerns about cleanliness and public health issues.
Under international human rights standards, immigration detention authorities
should ensure that all parts of the detention facility are maintained and kept
clean to a standard which meets the requirements of health and
hygiene.[182] In every detention
facility, there should be adequate facilities available to enable each detainee
to maintain general hygiene by bathing or showering daily. Each detainee should
be provided with access to toiletries, ablution facilities and sanitary
installations which are necessary for health and cleanliness, enable people to
meet their physical needs in privacy, and are appropriate to the
climate.[183]
During its visit, the Commission had concerns about the number of toilet and
shower facilities available for people in detention, and the cleanliness of
those facilities.
The Commission was particularly concerned about the limited number of showers
and toilets in the tent area in Red Compound, Education 3 Compound and the new
Aqua Compound. For example, in Education 3 Compound there were ten showers being
shared by 144 people. In the tent area in Red Compound there was one shower
block and one toilet block being shared by 169 people. Some detainees reported
that only four showers were working; others said that two were
working.[184]
The Commission was also concerned that many of the toilet and shower blocks
were in a very unclean state. For example, in Aqua Compound the toilet block was
wet and muddy, and detainees complained that there was no toilet paper or
soap.[185] In the tent area in Red
Compound, the shower and toilet blocks were dirty and had wet floors. One
detainee described the conditions as “very
appalling”.[186] Some people
in detention told the Commission they were concerned that the limited number of
showers and the dirty state of the ablutions blocks were contributing to health
concerns such as skin rashes and eye
conditions.[187]
There appear to be a range of factors contributing to the unclean state of
the ablution blocks. The main factor appears to be the significant increase in
the number of people being held in the IDC. While some ablution blocks have been
added, these are not sufficient to meet the needs of so many people. In
addition, water restrictions have been introduced in some parts of the IDC. In
the eight original accommodation compounds, many of the bedrooms have a small
bathroom area built into the room. The water to these areas has been turned off
(except for one hour each day) in order to reduce water consumption. The result
has been much higher use of the common ablution blocks. With such a high number
of people using them, it appears that they are not being cleaned regularly
enough to maintain an acceptable standard of cleanliness and hygiene.
A further issue is cultural factors. Some people in detention are not
accustomed to using Western toilets and would prefer to use Eastern style
toilets such as squat toilets, with hoses available for hygiene purposes. DIAC
informed the Commission that they have investigated the possibility of
installing squat toilets in the IDC, but the cost is prohibitive. DIAC also
reported that they have organised some informational sessions for detainees
about the use of Western style toilet facilities and general hygiene. The
Commission encourages DIAC to expand these initiatives, to conduct them
regularly to ensure that new arrivals are included, and to ensure that they are
conducted in a culturally appropriate manner.
(d) New
compounds: Lilac and Aqua
Since the Commission’s 2009 visit to the IDC, two new compounds have
been added outside the original perimeter fence. The Commission found that
conditions in these compounds are harsher than in the original centre, and the
compounds – particularly Aqua – have a much lower level of
amenity.
At the time of the Commission’s visit, Lilac Compound had been in use
for approximately five months, and there were 206 people detained
there.[188] The compound consists
mostly of demountable buildings containing bedrooms and ablutions. Some concrete
paths have been installed, and there are wooden decks between the demountable
bedrooms. However, the surrounding area is bare dirt; there is no grass. There
are two undercover cabana areas with a pool table, table tennis and a television
(which can only be used for watching DVDs).
Detainees in this compound reported frustrations about being placed in an
area that is separated from the main centre, and that has fewer facilities. Some
detainees sleep in bedrooms shared by four or six people – they reported
having nowhere to store their belongings other than cardboard boxes they had
taken from the rubbish. Some of them had received refusals at the primary RSA
stage, and they reported that the combination of the refusals and their
detention conditions was leaving them in a “bad psychological
state”.[189]
Aqua Compound is the newest part of the IDC and has the harshest physical
conditions because of the heat, the dirt (which turns to mud in the rain) and
the lack of greenery and shade. In the words of one community representative who
visits the centre, “We thought that Lilac was bad until they opened
Aqua.”[190]
The compound was opened approximately two weeks prior to the
Commission’s visit. When the Commission visited, there were 341 people
detained in Aqua Compound.[191] At
the time, the compound was still being constructed. There were demountable
buildings containing bedrooms, ablutions and a dining area – but there
were no walkways (meaning that people often have to walk through mud), no grass,
and no dedicated recreational areas.
Detainees told the Commission they had very limited access to basic
facilities in Aqua Compound – for example, there was one washing machine
for all of them to share, and no landline telephones. They were also concerned
that there was no drinking fountain. They were required to drink water out of
the bathroom taps, which had a sign above them saying, ‘Do not drink this
water’. Serco informed the Commission that the water was nevertheless safe
to drink, and that the sign would be removed.
People detained in Aqua and Lilac Compounds are physically isolated from the
main centre. They are able to go into the centre to access facilities during the
day via a long fenced walkway – but they do not have free access. The
gates are unlocked by Serco officers at certain times of the day. Some detainees
reported that it took a significant amount of time to move from Aqua or Lilac to
the main centre. They claimed that this meant they were disadvantaged in terms
of trying to access facilities that are in high demand such as telephones, the
gymnasium, and internet terminals.
The Commission has significant concerns about the conditions and access to
facilities for people in these two compounds, particularly Aqua. In the
Commission’s view, Aqua Compound was opened for use before it was in an
acceptable state.
DIAC informed the Commission that there is a plan to develop the two
compounds further so that eventually they will form a separate, self-sufficient
centre including its own recreational facilities. According to DIAC, Aqua will
be improved by the addition of activities rooms, grass and three cabana areas.
The Commission hopes to see these improvements made as soon as possible.
In the mean time, people detained in Lilac and Aqua Compounds should be
provided with unrestricted access to the main IDC on an equal basis with other
detainees.
(e) Management
Support Unit
The Management Support Unit (MSU) is a self-contained, high-security unit in
the Red Compound at the IDC. In its 2008 and 2009 reports, the Commission raised
concerns about the MSU.[192] It
looks and feels extremely harsh and punitive. The bedrooms are essentially small
cells, with solid metal doors and grills on the windows. All furniture is hard
and bolted to the floor. There are CCTV cameras in the bedrooms –
including the toilet and bathroom areas – which cannot be turned off.
There is no outdoor space where detainees have an open view of the sky, and no
open space where they can freely walk or run.
During its 2009 visit the Commission welcomed the fact that the MSU had not
been used, and expressed the view that it should not
be.[193] In the Commission’s
view it is inappropriate for accommodating asylum seekers, particularly those
who may have experienced torture or trauma.
The Commission is disturbed that, between its 2009 and 2010 visits, the MSU
was used to accommodate detainees on three occasions, including six men detained
there for 16 days; three men detained there for 10 days; and 11 men detained
there for 17 days.[194] The
Commission has been assured that in none of these instances were people confined
to the bedrooms, and that efforts were made to take people out of the MSU for
short walks. Nevertheless, the Commission has significant concerns about the
placement of asylum seekers in such a punitive and restrictive facility.
Some of the people detained in the MSU have raised concerns with the
Commission about their placement there – in particular because of the
isolation and the impacts on their mental wellbeing. Some have raised concerns
about their conditions in the MSU, including the cramped nature of the bedrooms
and their lack of access to recreational facilities. Particular concerns have
been raised about the lack of privacy, given the constant CCTV surveillance. In
the words of one man, there were “cameras everywhere, even the
toilet”.
Under international human rights standards, people deprived of their liberty
should be treated with humanity and respect for their
dignity.[195] They should not be subjected to any form of cruel, inhuman or degrading
treatment or
punishment.[196] Further, they should be provided with access to ablution facilities that enable
them to carry out their bathing and other physical needs in
privacy.[197] The use of CCTV
cameras in bedrooms and bathrooms in the MSU does not provide people with this
privacy. In addition, it is arguably degrading and fails to show adequate
respect for their dignity. DIAC has informed the Commission that there are plans
to upgrade the CCTV system at the IDC. The Commission encourages DIAC to ensure
that the cameras in the MSU are removed or adjusted in order to provide people
with adequate privacy. In particular, cameras should not be placed in nor should
they monitor toilet or bathroom areas.
Human rights standards require that use of facilities such as the MSU should
take into account the person’s physical and mental
health.[198] The DIAC policy on the use of the MSU requires that if it is necessary for a
person to remain in the MSU for longer than 48 hours, a review of the placement,
including a health review, must be initiated and completed within 24
hours.[199] The Commission
welcomes this. However, in the Commission’s view the policy should require
that, prior to a decision being made to place a person in the MSU, consideration
is given to an assessment conducted by the health services provider of the
potential impacts of that placement on the person’s health and mental
health.
Moving a detainee from the general population to a high-security unit such as
the MSU can, in certain circumstances, lead to breaches of Australia’s
obligation under the ICCPR not to subject anyone to arbitrary
detention.[200] This obligation
may be breached if a detainee is moved from one part of the detention centre to
another where the move involves a further and serious deprivation of their
liberty.[201]
The Commission acknowledges that DIAC is operating within infrastructure
constraints in the IDC, and that the IDC was not built by the current
government. However, the Commission reiterates its view that the MSU is
inappropriate for accommodating asylum seekers, particularly those who may have
experienced torture or trauma.
Detention facilities should be constructed so that if there is a legitimate
need to separate one or more persons for a short period of time, that can be
done in an appropriate and non-punitive environment, taking into account the
person’s individual needs including their health and mental health.
17.2 Phosphate
Hill immigration detention facility
Phosphate Hill is made up of two areas – the Phosphate Hill immigration
detention facility (also referred to as Bravo Compound), and an open area
containing demountable buildings currently used as offices and staff
accommodation.
The Phosphate Hill immigration detention facility was opened in 2001. It is
located across the road from the Construction Camp facility, about 5 kilometres
from the island’s town area. The facility is used to detain adult males.
DIAC categorises the Phosphate Hill immigration detention facility as an
‘alternative place of detention’. In the detention statistics that
DIAC publishes, people in the facility are counted as being in
‘alternative temporary detention in the
community’.[202] In the
Commission’s view, this is misleading and should be corrected. The
Phosphate Hill immigration detention facility is a secure compound surrounded by
high wire fences, from which people in detention are not free to come and
go.
(a) Detention infrastructure
In its 2008 report, the Commission raised concerns about the infrastructure
at the Phosphate Hill immigration detention facility. At the time, there were no
detainees in the facility, but the Commission was concerned about the low
standard of accommodation, the lack of telephones and internet, and the lack of
recreational facilities. The Commission did, however, note that the Phosphate
Hill facility is preferable to the Christmas Island IDC in the sense that the
security measures are much less intrusive, and the central location on the
island makes it more
accessible.[203]
When the Commission visited in 2009, the facility was again empty. However,
in the second half of 2009 DIAC recommenced use of the facility as a place to
detain adult males. At the time of the Commission’s 2010 visit, there were
164 men detained there.[204] The
Commission was pleased to observe that some improvements have been made, in
particular the addition of four landline telephones and eight internet
terminals.
However, since 2009 there have also been some negative changes. In
particular, three large tents have been installed in the middle of the compound.
This has significantly reduced the amount of open green space in the facility,
which is now minimal. While the tents are in slightly better condition than
those at the Christmas Island IDC, they are still crowded and provide
inappropriate accommodation, as discussed below.
The Commission also remains concerned about the low standard of accommodation
in the original parts of the facility. The bedrooms, located in rows of
demountables, are very small. There is generally no furniture in them other than
beds. Each room has a small window with bars on it which appear to be totally
unnecessary.
The facility does not have a useable kitchen, so meals are transported in
take-away containers from the Construction Camp. People in detention are
required to line up to collect their meals, one by one, from the Serco office.
When the number of people is high, this can take some time. There is no shelter
around the office, and some people reported having to stand and wait in the
rain. There is also no dining room, so people generally eat their meals in one
of two undercover cabana areas. These areas are adequate when the weather is
fine, but they are not rain-proof.
The Phosphate Hill immigration detention facility still has very little in
the way of recreational facilities. Inside the compound there is no gym,
library, classroom or other indoor recreation space. There is one demountable
containing an internet room and a prayer room. The only other spaces for
recreational use are the two cabana areas. While there are some recreational
facilities in the open area outside the compound, detainees only have limited
access to them. These issues are discussed further in section 22 below.
The Phosphate Hill facility currently has the lowest level of amenity of the
three detention facilities on Christmas Island. The Commission acknowledges that
DIAC is working within considerable constraints in terms of the infrastructure
available. However, the fact that suitable infrastructure is not available on
Christmas Island contributes to the Commission’s view that it is not an
appropriate place in which to detain people.
If the Australian Government intends to continue to use the Phosphate Hill
immigration detention facility, it should upgrade it to ensure that people in
detention have access to appropriate accommodation, dining areas and
recreational facilities.
(b) Overcrowding
The regular capacity of the Phosphate Hill facility is 48 people. This has
been increased to a surge capacity of 168 people by adding three large tents.
When the Commission visited, there were 164 men detained in the
facility.[205] Higher numbers have
been detained there since. For example, in late July 2010 there were 187 men in
the facility – 19 more than its surge
capacity.[206]
During its visit to the Phosphate Hill facility, the Commission was concerned
about overcrowding in both the tents and the bedrooms.
The three tents each sleep up to 40 people in bunk beds. When the Commission
visited, there were 107 people in the
tents.[207] They have since been
used to accommodate 118 people at once. [208] Like the tents at the Christmas
Island IDC, the tents at the Phosphate Hill facility are crowded. People have no
privacy, and nowhere to store their belongings other than on or under their
beds.
Some people in detention told the Commission they found it hard to sleep in
the tents due to the high number of people and the noise. Others reported that
the climate was difficult to cope with. The heat and humidity on Christmas
Island can be extreme at times, and they claimed that the air conditioners did
not always work. Some reported that the humidity was making their mattresses
damp.
Conditions in the tents at Phosphate Hill are slightly better than the tents
at the Christmas Island IDC – largely due to the fact that they are
cleaner. However, the accommodation is inappropriate and unacceptable by
Australian community standards.
The Commission was also concerned about overcrowding in the bedrooms in the
demountables. These rooms are the smallest of any of the bedrooms in the
detention facilities on Christmas Island. Some are being used to sleep three
people. DIAC informed the Commission that people only sleep three to a room if
they request to do so. However, some detainees told the Commission they had no
choice.
The high number of people being detained in the facility is also placing
strain on ablution blocks. The number of toilets and showers was not increased
when the capacity of the compound was expanded from 48 to 168 people. Detainees
told the Commission that there were approximately 18 toilets and 18 showers for
all of them to share, and that this was not enough. Others were concerned that
there were only two washing machines for everyone to share.
The Commission acknowledges that DIAC is working within considerable
infrastructure constraints, and that efforts are being made by staff to provide
appropriate conditions in challenging circumstances. However, the Phosphate Hill
facility was not designed to accommodate the high number of people being
detained there. If the Australian Government intends to continue using the
facility, it should take immediate measures to reduce the overcrowding. Current
conditions are not consistent with international human rights
standards.[209]
to use the Phosphate Hill immigration detention facility, it should take
immediate measures to reduce overcrowding in the facility. These should
include:
- ceasing the practice of accommodating people in tents, and removing the
tents as soon as possible
- ceasing the practice of accommodating any more than two people in the
bedrooms in the demountables.
17.3 Construction
Camp immigration detention facility
The Construction Camp immigration detention facility is a low security
facility, which was formerly a camp used to accommodate construction workers. It
is located across the road from the Phosphate Hill facility, approximately 5
kilometres from the island’s town area. It is primarily used to detain
unaccompanied minors and families with children.
When the Commission visited, there were 418 people detained in the
Construction Camp – 73 men, 75 women, 94 accompanied children, 152
unaccompanied minors and 24 male crew
members.[210]
(a) Detention infrastructure
As discussed in section 13 above, it is misleading for the Construction Camp
to be categorised as ‘alternative temporary detention in the
community’.[211] While it is
a low security facility, it remains an immigration detention facility from which
people in detention are not free to come and go.
After its 2008 visit to Christmas Island, the Commission raised significant
concerns about the nature of the facilities at the Construction
Camp.[212] In its 2009 report, the
Commission welcomed some improvements, but expressed ongoing concerns about the
claustrophobic nature of the facility, the lack of grass and open space, and the
lack of recreation areas. The Commission expressed the view that the
Construction Camp is not an appropriate environment for unaccompanied minors or
families with children. [213]
During its 2010 visit, the Commission was pleased to observe some positive
changes at the Construction Camp. In particular, the fence line has been
extended to incorporate an existing basketball court into the facility. The
Commission is also pleased that the separation detention system is no longer
used for new arrivals.
Despite these improvements, the Commission’s concerns about the
Construction Camp have been further exacerbated this year because of the
substantial increase in the number of people detained there.
The Commission continues to have significant concerns about the lack of open
space in the Construction Camp, the fact that there is no open grassy area
inside the facility, and the lack of indoor recreation space. These issues are
discussed further in section 22 below.
During its visit, the Commission was concerned that people detained in the
Construction Camp were being subjected to further restrictions on their space
and movement inside the facility. The dining room and another large room nearby
are used for initial processing for all new arrivals on Christmas Island. This
means the rooms cannot be used for recreational activities, and people have to
take their meals back to their bedrooms when the dining room is in use for new
arrivals.
The Commission was also concerned about restrictions on Indonesian crew
members detained in the Construction Camp. DIAC informed the Commission that the
aim was to keep crew members separate from asylum seekers, in order to avoid
tensions that might arise. Because the Construction Camp does not have separate
internal compounds, this was being done by restricting crew members to their
accommodation block. They were only permitted to use the oval next to the
Construction Camp between 6am and 7am on weekdays, under supervision of Serco
officers. They also told the Commission they had very restricted access to the
telephones in the facility – although this was disputed by DIAC and Serco.
Again, the Commission acknowledges that DIAC is working within considerable
infrastructure constraints on Christmas Island. However, the fact that suitable
infrastructure is not available on the island contributes to the
Commission’s view that it is not an appropriate place in which to detain
people. In particular, the Commission reiterates its view that the Construction
Camp immigration detention facility is not an appropriate environment for
unaccompanied minors or families with children.
(b) Overcrowding
During its visit, the Commission was particularly concerned about the high
number of people being detained in the Construction Camp facility, which has led
to overcrowding and pressure on facilities. When the Commission visited in 2009,
there were 99 people in the Construction
Camp.[214] During the 2010 visit,
this had increased by more than four times, to 418
people.[215]
At the time of the Commission’s visit, the highest number of people
detained in the Construction Camp at any one time was 429 people in April
2010.[216] This is well above the
agreed capacity of the facility, which according to DIAC is 310 people.
The substantial increase in the number of people detained in the Construction
Camp has placed additional pressure on facilities. Some detainees told the
Commission they had difficulty accessing basic facilities such as washing
machines and kettles and supplies such as shampoo. There is also increased
pressure on telephones, internet terminals and recreational and educational
facilities, as discussed in sections 21 and 22 below.
The increase in the number of people detained in the facility has required
the conversion of some rooms, including interview rooms in Block A and a
recreation room, into dormitory bedrooms that are each shared by up to 14
people. These rooms are very cramped. People have no space or privacy, and
nowhere secure to store their belongings. In addition, neither Block A nor the
converted recreation room has dedicated bathroom facilities. When the Commission
visited, up to 90 people were being required to share one
shower.[217] This is
unacceptable.
The limited amount of space in the Construction Camp makes it a difficult
environment in which to mix people of various ages, ethnicities, religions,
cultures and genders. During its visit, the Commission had some concerns about
the groups co-located in the facility. The overcrowding has meant that families
with young children are often detained in close proximity to other detainees,
which may include unaccompanied minors (usually 16 or 17 year old boys) or
adults. Some parents expressed concerns about the difficulties of trying to
maintain a ‘normal’ routine for their young children in this
environment. In particular, some parents reported that their children were
disturbed at night by noise from other people in detention.
The limited amount of space and mixing of various groups can also be a
particular concern for some women from particular cultural or religious groups.
Some young women detained in the Construction Camp told the Commission they did
not feel very safe, partly due to the presence of a significant number of
unaccompanied 16 and 17 year old males. A few women also complained about a lack
of privacy and security in their bedrooms, which can be unlocked from the
outside.[218]
The Commission acknowledges that DIAC is working within considerable
infrastructure constraints, and that significant efforts are being made by staff
to provide appropriate conditions. However, the Construction Camp facility was
not designed to accommodate the high number of people being detained there. If
the Australian Government intends to continue using the facility, it should take
immediate measures to reduce the overcrowding. Current conditions for some
people are not consistent with international human rights
standards.[219]
As discussed in section 6 above, the Commission welcomes efforts to transfer
some families and unaccompanied minors from the Construction Camp to the
mainland. It is essential that these transfers continue in order to relieve the
ongoing pressures on detainees and staff in the Construction Camp. This should
be a matter of priority for all families with children and unaccompanied minors.
As recommended in section 11, these groups should be referred for Residence
Determinations on the mainland.
to use the Construction Camp immigration detention facility, it should take
immediate measures to reduce overcrowding in the facility.
18 Staff
treatment
Under international human rights standards, all people deprived of their
liberty are to be treated with humanity and with respect for the inherent
dignity of the human person.[220] The manner in which people in immigration detention are treated by DIAC, Serco
and other service provider staff can have significant impacts on their
experience in detention and on their physical and mental wellbeing.
The Commission acknowledges that there has been a significant cultural change
in the operation of immigration detention facilities over the past few years,
and that there is now an increased expectation that all staff who come into
contact with people in immigration detention should treat them with respect. The
Commission welcomed the inclusion in the government’s New Directions
policy of key values stating that people in detention will be treated fairly and
reasonably within the law, and that conditions of detention will ensure the
inherent dignity of the human
person.[221] The Commission has
urged the government to embed these values in
legislation.[222]
The Commission also welcomes that DIAC’s contract with Serco states
that Serco staff must treat people in detention ‘equitably and fairly,
with dignity and
respect’.[223]
During its visit to Christmas Island, the Commission was generally pleased to
observe positive interactions between staff and people in detention. In
addition, most detainees the Commission spoke to expressed positive views about
their treatment by DIAC and Serco staff. However, there were some significant
exceptions.
The Commission was concerned to hear from many detainees that Serco staff
refer to them by their identification number rather than their name. The
Commission witnessed this on several occasions. Some detainees said they
understood the reasons for this and were not concerned. However, others were
very disturbed by the practice. For example, one man said, “It makes us
feel like prisoners”.[224] Another said, “We feel like a herd of
sheep”.[225] The Commission
is concerned about this practice because it is dehumanising and fails to accord
respect to people in detention. In the Commission’s view, people in
detention should always be referred to by their name. Their identification
number should only be used as a secondary identifier where this is necessary for
clarification purposes.
The Commission was also concerned to hear from a small number of people in
detention about specific instances where they felt they had been treated in a
degrading or racially discriminatory way. For example, Sri Lankan men detained
in the Christmas Island IDC reported that a particular Serco officer had made
racist comments towards them.[226] In addition, a number of people detained in the Christmas Island IDC and the
Construction Camp said that particular Serco officers made comments suggesting
that they should go back to their own country and that they had not been invited
to Australia.[227]
A small number of people detained in the Christmas Island IDC also raised
concerns about overly prison-like treatment by particular officers. For example,
one man said, “They make us feel not like refugees, but like someone who
has committed a grave
crime.”[228] While these
reports were the exception rather than the rule, they are concerning.
The Commission has been informed that Serco staff training covers issues
relating to working with culturally diverse clients. The Commission urges DIAC
and Serco to ensure that staff training and performance management include a
strong focus on treating all people in immigration detention with humanity and
with respect for their inherent dignity.
Recommendation 13: DIAC, Serco and other detention service providers
should refer to people in immigration detention by their name. Their
identification number should only be used as a secondary identifier where this
is necessary for clarification purposes.
and performance management include a strong focus on treating all people in
immigration detention with humanity and with respect for their inherent dignity.
19 Access
to health and mental health care
Under international human rights standards, all people have a right to the
highest attainable standard of physical and mental
health.[229] Each person in
detention is entitled to medical care and treatment provided in a manner which
is culturally appropriate, and of a standard which is commensurate with that
provided in the general community. This should include preventive and remedial
medical care and treatment including dental, ophthalmological and mental health
care whenever necessary. Each immigration detainee should also be entitled to
obtain a second medical examination or
opinion.[230]
Since 2008 the Commission has expressed concerns regarding the availability
of health and mental health care for people detained on Christmas
Island.[231] The Commission
acknowledges that there have been positive developments during that time, in
particular the development of new mental health policies and associated training
for detention service providers and DIAC
staff.[232]
However, the Commission remains concerned about some aspects of the provision
of health and mental health care on Christmas Island. Many of the
Commission’s concerns relate to difficulties in providing adequate care
for a large detainee population in such a small and remote community. The
Commission’s key concerns include the very limited access to specialist
care, psychiatric care and dental care; the ratio of mental health professionals
to people in detention; and the extent to which torture and trauma policies are
being implemented. These issues are discussed further below.
The Commission also shares the view expressed by previous inquiries that
there is a need for more comprehensive monitoring of health and mental health
services in immigration
detention.[233] The 2005 Palmer Report recommended the establishment of an independent
Immigration Detention Health Review
Board.[234] In her review of the
implementation of the Palmer Report, Elizabeth Proust observed that
‘[w]hile DIAC regards the arrangements via the [Detention Health Advisory
Group (DeHAG)] to meet this recommendation, DeHAG itself believes that an
independent body is still
needed’.[235] This was also
noted by the Joint Standing Committee on Migration in its inquiry into
immigration detention in
Australia.[236]
The Commission is of the view that there is a need for rigorous, independent
and ongoing monitoring of the delivery of health and mental health services in
immigration detention facilities both on Christmas Island and the mainland. This
need was highlighted during the Commission’s visit to Christmas Island by
the significant number of cases in which people in detention raised concerns
about their access to health services.
function of monitoring the provision of health and mental health services in
immigration detention. The Australian Government should ensure that adequate
resources are allocated to that body to fulfil this function.
19.1 Health
care
(a) Health care for immigration detainees on
Christmas Island
Health care services for people in detention on Christmas Island are
primarily provided by IHMS, a private company contracted by DIAC. The health
staffing on Christmas Island has increased over the past year. The IHMS team
includes a Health Centre Manager, a Medical Director, four doctors, three nurse
team leaders, 15 general nurses, ten mental health nurses, two psychologists,
two paramedics and five administrative staff. IHMS provide services at the
Christmas Island IDC, the Construction Camp facility and the Phosphate Hill
facility.
The local hospital is run by the Indian Ocean Territories Health Service
(IOTHS). IOTHS provide services including ante-natal care, chest X-rays,
pathology tests and basic in-patient services.
At the Christmas Island IDC there is a well equipped medical clinic. People
in detention are required to fill out a form to request an appointment.
At the Construction Camp facility there is a basic clinic staffed by a nurse
24 hours a day. Shortly before the Commission’s visit, IHMS commenced a
trial allowing detainees to walk into the clinic seven days a week to request an
appointment.
At the time of the Commission’s visit, detainees in the Phosphate Hill
facility were attending medical appointments at the clinic in the Construction
Camp. IHMS informed the Commission that there were plans to establish a clinic
room at the Phosphate Hill facility.
(b) Concerns regarding the provision of health care
on Christmas Island
During its visit, the Commission was pleased to note some improvements in the
provision of health care to people in immigration detention on Christmas Island.
These included the presence of a paramedic at the Christmas Island IDC
overnight, and detainees’ increased access to the clinic at the
Construction Camp facility.
However, the Commission continues to hold many of the concerns expressed in
its 2009 report, including:
- the limited access to dental care on Christmas Island
- the lack of medical specialists (such as optometrists, physiotherapists,
radiologists or others) on Christmas Island
- the length of time some people in detention have to wait to see a nurse or
doctor
- the length of time it could take for an ambulance to arrive at one of the
detention facilities if needed in an
emergency.[237]
There
is very limited access to dental care for people detained on Christmas Island.
Some reported that they had experienced dental pain but had not been able to see
a dentist.[238] The health service
provider’s contract states that the offsite provision of dental services
by referral must be arranged.[239] The local dentist had been making an emergency dental appointment available each
day if it had not been taken by the local community, but this stopped shortly
before the Commission’s visit. A dental van was delivered to Christmas
Island in April, however DIAC has informed the Commission that it will not be
operational before the end of 2010.
Some people in detention raised concerns with the Commission about the length
of time they had to wait to see a nurse or doctor. The health service
provider’s contract states that no person in detention should be required
to wait more than three business days for a consultation with a general
practitioner.[240] IHMS reported
that people in detention do not have to wait longer than 48 hours for an
appointment. However, the Commission heard from many detainees who said they had
to wait between four and five
days.[241]
There is also very limited access to specialist care for people detained on
Christmas Island. Detainees are sometimes seen by visiting specialists, but
specialists generally only visit the island once every three to six months. DIAC
informed the Commission that if urgent specialist care is required, detainees
are transferred to the mainland. IHMS told the Commission that their
recommendations for detainees to see specialists are followed. However, the
Commission spoke with a number of detainees, some with significant visible
injuries, who felt that their requests to see medical specialists had not been
appropriately responded to. These included, for example, a man with an amputated
leg, several men who claimed to have bullets or shrapnel lodged in their bodies,
and several people with visibly disfigured limbs.
The Commission acknowledges that there may be differing opinions about when
access to specialist care is required and in what time frame. However, the
remoteness of Christmas Island means that people in detention who feel that they
have not been provided with appropriate or prompt access to specialist care are
not able to initiate that access independently, even if they are able to pay for
it themselves.
If the Australian Government intends to continue to detain people on
Christmas Island, those people should be provided with adequate access to health
services. Further, as discussed in section 11 above, the Residence Determination
Guidelines state that priority for Community Detention placements will be given
to groups including persons with significant physical or mental health problems.
These priority cases are to be assessed and referred to the Minister ‘as
soon as practicable’.[242] The Australian Government should make full use of the Community Detention system
for people in detention on Christmas Island. All eligible detainees should be
referred for a Residence Determination on the mainland. This should be an
immediate priority for vulnerable groups including people with health
concerns.
using Christmas Island for immigration detention purposes, DIAC should ensure
that detainees are provided with access to appropriate health services. In
particular, DIAC should ensure, as a matter of priority, that detainees on
Christmas Island are provided with adequate access to dental care and specialist
care.
19.2 Mental
health care
(a) Mental health care for immigration detainees on
Christmas Island
Under international human rights standards, all people have a right to the
highest attainable standard of mental
health.[243] Every immigration
detention facility should have at least one medical officer available with some
knowledge of
psychiatry.[244]
Mental health services for detainees on Christmas Island are primarily
provided by IHMS, which has two psychologists and ten mental health nurses on
staff.
Under DIAC’s policy on mental health screening for people in
immigration detention, IHMS does initial screening within 72 hours of a
person’s arrival, and a mental health assessment within a week. People in
detention can request an appointment at any time, and DIAC, Serco or IHMS staff
can flag concerns that a person may be in need of mental health care or
treatment.[245]
People in immigration detention who are considered to be at risk of self-harm
or suicide are managed through the Psychological Support Program (PSP), which
was introduced on Christmas Island in March
2010.[246] Under the PSP,
detainees who are identified to be at risk of self-harm or suicide are managed
according to one of three levels of risk, with observation by IHMS, DIAC or
Serco staff.
(b) Concerns regarding the provision of mental
health care on Christmas Island
The Commission welcomes the introduction of the DIAC policies noted above,
and acknowledges the efforts being made by IHMS staff to provide mental health
care for people in detention on Christmas Island. However, the Commission
remains concerned about the extent to which appropriate mental health services
can be provided to such a high detainee population in a community as small and
remote as Christmas Island. This is a particular concern given that many people
are spending longer periods in detention.
It is well established that holding people in immigration detention,
particularly for prolonged periods, can have devastating impacts on their mental
health.[247] During its visit, the
Commission heard from some people in detention that the time they had spent in
detention was having detrimental psychological impacts. For example, detainees
told the Commission the following:
“It has been 112 days since we came. There are people who have been
waiting for 11 months. We can tolerate the conditions. The problem is with our
mental ability to cope with detention and the period of time it is taking to
make decisions.”[248]
“We will not be productive members of society when we get out of here
because of the mental damage being
done.”[249]
“We have stayed too long and we feel so
bad.”[250]
The Commission spoke to a significant number of people in detention regarding
their perceptions of the mental health services on Christmas Island. Some
detainees said that appointments were readily available and that the mental
health care was helpful.[251] Others felt that the sessions were of little utility, as the main cause of their
distress was the fact that they were in detention for an uncertain period of
time without knowing what would happen to them at the end of that period.
The Commission has noted in past reports the difficulties associated with
treating people who are in detention for prolonged and uncertain
periods.[252] Often, detention
itself causes or exacerbates mental health concerns. Because mental health staff
do not control the length of a person’s detention, they cannot effectively
address this cause of distress for detainees. The Commission has consistently
called for the repeal of the mandatory detention system, in part because of the
effects it can have on the mental health and wellbeing of people
detained.[253]
It is critical to ensure that if people must be held in detention, they are
in a location that provides easy access to appropriate mental health services
and support networks. The Commission continues to hold significant concerns
about the limited capacity of the services on Christmas Island to meet the
mental health needs of people in detention. The Commission’s key concerns
include the following:
- There are significant demands on the mental health professionals on
Christmas Island, given the high number of people in detention.
- There is no local psychiatrist on Christmas Island and no psychiatrist on
the IHMS team. DIAC informed the Commission that if a detainee requires
psychiatric care they can be referred to a psychiatrist on the mainland, but it
is not clear in what proportion of cases this has occurred. In comparison, on
the mainland the health services contract requires that IDCs have a mental
health clinic with psychiatric services available, including onsite
consultations.[254]
- There have been a number of self-harm incidents on Christmas Island in
recent months. The Commission was informed that between 1 January and 18 June
2010, there were eight recorded instances of actual self-harm and two recorded
instances of attempted
self-harm.[255] The Commission is
concerned that the increasing length of detention and the increasing refusal
rate may lead to increases in the rate of
self-harm.
using Christmas Island for immigration detention purposes, DIAC should ensure
that detainees are provided with access to appropriate mental health services.
In particular, DIAC should ensure, as a matter of priority, that detainees on
Christmas Island are provided with adequate access to psychiatric care.
19.3 Torture and
trauma services
(a) Torture and trauma services for immigration
detainees on Christmas Island
Under international human rights standards, survivors of torture and trauma
should have access, without delay, to assessment and treatment by a qualified
professional with expertise in the assessment and treatment of torture and
trauma. Where an appropriately qualified professional is not on the staff in a
detention facility, referral should be made to an external specialist
agency.[256]
On Christmas Island, IHMS refers people in detention to IOTHS for torture and
trauma counselling if a concern is identified. IOTHS has four dedicated
counsellors. Individual torture and trauma counselling is usually done at the
local hospital, while some group sessions are conducted within the immigration
detention facilities.
The management of people in immigration detention who have experienced
torture or trauma is governed by the DIAC policy, Identification and Support
of People in Immigration Detention Who are Survivors of Torture and Trauma (Torture and Trauma
Policy).[257] The policy sets out
measures to identify and provide services to survivors of torture and trauma in
immigration detention.
(b) Concerns regarding torture and trauma services
on Christmas Island
The Commission welcomes efforts by DIAC to prepare a policy aimed at
identifying and providing appropriate services to survivors of torture and
trauma in immigration detention. The Commission also acknowledges the efforts
being made by IOTHS and IHMS staff to identify and respond to the needs of
survivors of torture and trauma on Christmas Island.
However, the Commission continues to have significant concerns about the
capacity of the services on the island to meet the needs of the high number of
detainees.
The Commission is concerned that there are only four torture and trauma
counsellors for a large detainee population of which a significant number are
likely to have experienced some degree of torture or trauma. The Commission also
heard from IOTHS that one of the major challenges they face in providing torture
and trauma counselling is a shortage of dedicated facilities, as they often do
not have enough rooms in which to work.
The Commission is also concerned about the extent to which people who have
experienced torture or trauma can be appropriately cared for in a detention
environment. One detainee told the Commission, “We cannot be staying in
this situation for a long time. It is difficult to tolerate trauma. Trauma is
being repeated
here.”[258]
Under DIAC’s Torture and Trauma Policy, the aim is to ensure that
people who have experienced torture or trauma:
are encouraged and supported, wherever possible following consideration of
health, character and security risks, to reside legally in the community while
their immigration status is being resolved or, where this is not possible, in
the least restrictive form of detention to minimise the potential for
immigration detention to exacerbate any vulnerabilities associated with their
previous experience of torture and trauma. [259]
Under the policy, the continued detention of survivors of torture and trauma
in an IDC is only to occur ‘as a measure of absolute last resort where
risk to the Australian community is considered
unacceptable’.[260] Under
the Residence Determination Guidelines, persons who may have experienced torture
or trauma are to be prioritised for consideration of a Community Detention
placement.[261]
During its visit, the Commission was concerned about the extent to which
these policies were being implemented on Christmas Island. The Commission heard
from health services staff that some individuals identified as high priority
torture and trauma cases have remained in detention on Christmas Island. There
were more than 2400 detainees on the island at the time, many of whom are likely
to have experienced some degree of torture or trauma. However, there were only
three people in Community Detention on the island, and only seven people in
Community Detention on the
mainland.[262]
reported that while their recommendations are always considered by DIAC, the
combination of the lack of community-based accommodation on Christmas Island,
and a reluctance to move people to Community Detention prior to the completion
of their security clearances was limiting the availability of Community
Detention for survivors of torture and trauma.
If the Australian Government intends to continue to detain people on
Christmas Island, those people should be provided with adequate access to
torture and trauma services, and DIAC should ensure the full implementation of
its Torture and Trauma Policy. Further, as recommended in section 11 above, the
Australian Government should make full use of the Community Detention system.
All eligible detainees should be referred for a Residence Determination on the
mainland. This should be an immediate priority for vulnerable groups including
survivors of torture or trauma.
using Christmas Island for immigration detention purposes, DIAC should ensure
that detainees are provided with adequate access to torture and trauma
services.
19: DIAC should ensure that its policy, Identification and Support of
People in Immigration Detention who are Survivors of Torture and Trauma is
implemented on Christmas Island. Under this policy, the continued detention of
survivors of torture and trauma in an IDC is only to occur as a measure of
absolute last resort where risk to the Australian community is considered
unacceptable.
20 Provision of
information to people in detention
Under international human rights standards, people in immigration detention
should be provided with information, within a reasonable time of being detained
and in a language they understand, about their right to seek asylum; the reasons
for their detention; the services provided in detention; their right to
independent legal assistance; the refugee assessment process; and their right to
the services of an interpreter when
needed.[263]
20.1 Induction
information about accessing services in detention
The Commission’s 2009 report recommended that written induction
materials should be provided to all people on their arrival in immigration
detention, setting out information about accessing services while in detention
and contact details for key
bodies.[264]
The Serco contract requires that an induction booklet be provided to people
in detention.[265] The Commission
has been provided with copies of Serco induction materials for people in
immigration detention. Serco has informed the Commission that these materials
are translated into the main languages spoken by the detainee population, and
that they are provided to people shortly after their arrival in detention on
Christmas Island.
The Commission welcomes these efforts. The Commission would like to see some
additional information included in the induction materials including telephone
numbers for the Translating and Interpreting Service (TIS) and the local police;
information about how to request an external excursion; information about
accessing religious services; and contact details for Legal Aid, the United
Nations High Commissioner for Refugees, key refugee and asylum seeker
information and advice groups, and IAAAS providers.
20.2 Information
about the refugee status assessment process
In its 2009 report the Commission recommended that all people should be
provided with clear information on their arrival in immigration detention about
their right to seek asylum; their right to access independent legal advice and
assistance; the scope of the IAAAS assistance that will be provided to them; and
the non-statutory RSA
process.[266]
In response, DIAC stated that people who arrive on Christmas Island are
provided with the opportunity to raise any claims that may prevent their return,
including any protection claims; are provided with reasonable facilities to
access legal advice during their initial processing; and are advised of the
scope of the IAAAS assistance to which they are
entitled.[267]
The Commission welcomes the fact that people are advised of the assistance
they will be provided under the IAAAS. The Commission also welcomes efforts by
DIAC over the past year to develop basic information sheets for irregular
maritime arrivals, which provide an outline of the refugee status assessment
process.
However, the Commission remains concerned that people taken into immigration
detention on Christmas Island are not provided with explicit information on
their arrival about their right to seek asylum or their right to access
independent legal advice and assistance.
During its 2010 visit to Christmas Island, the Commission heard concerns from
some people in detention that they had not been provided with adequate details
about the RSA process. DIAC informed the Commission that they would attempt to
address this concern by holding follow-up information sessions with people after
providing basic information on their initial arrival.
The Commission also heard concerns from some people in detention about a lack
of regular provision of information about progress with their
cases.[268] In particular, as
discussed in section 9 above, the Commission spoke with a significant number of
Sri Lankan detainees who had gone through the RSA process and were awaiting
security clearances. Some of them had been detained for almost one year. They
expressed considerable frustrations about the lack of information provided about
progress with their cases and the reasons for delay with their security
clearances.[269]
The Commission welcomes the role played by DIAC Case Managers in ensuring
that immigration cases progress towards an outcome as soon as possible, and in
providing information to people in detention. However, the Commission encourages
DIAC to take further steps to ensure that people in immigration detention on
Christmas Island are able to request and receive regular updates about progress
with their RSA claims and their security clearances.
21 Access to
communication
For people deprived of their liberty, the capacity to communicate with the
outside world is critical to allow regular contact with family members, friends
and support networks, and to ensure effective contact with legal advisers and
migration agents.
Under international human rights standards, people in detention should be
able to enjoy regular contact with family, friends and community members,
facilitated through visits, correspondence and access to telephones. They should
also be provided with facilities to communicate and consult in private with
legal representatives.[270]
In
its 2008 and 2009 reports, the Commission raised concerns about the ability of
people in detention on Christmas Island to maintain regular contact with the
outside world. The remote location and the small size of the community mean that
detainees have very limited face-to-face access to legal or community support
groups, and the limited communications infrastructure makes it difficult for
people in detention to maintain regular contact with legal representatives,
family members and support networks on the mainland or
overseas.[271] These issues remain
of concern after the Commission’s 2010 visit.
21.1 Access to
communication facilities
In its 2009 report, the Commission raised concerns about detainees’
limited access to telephones, internet and mail. In particular, the Commission
recommended that DIAC should ensure that people in detention are provided with
adequate access to telephones and that they are able to make and receive
telephone calls in privacy.[272] In response, DIAC recognised that access to telephones had been a
‘longstanding technical difficulty’, but stated that this issue had
been resolved.[273]
However, the Commission still has significant concerns about access to
telephones for people detained on Christmas Island. During its 2010 visit, the
Commission heard complaints from people in every detention facility about
limited access to telephones. This has become even more of a concern with the
substantial increase in the number of people detained in each facility.
In the Christmas Island IDC, there are two or three landline phones in each
original accommodation compound to be shared by around 120 people per compound.
In Education 3 Compound there are two phones for around 140 people, and in the
tents in Red Compound there are four phones for around 170 people. The phones
are in outdoor areas with little privacy, and in many compounds there is a 10
minute limit. When the Commission visited Aqua Compound, there were no landline
phones in the compound, which was accommodating 341 people. While DIAC informed
the Commission that there were four Serco mobiles that detainees could request
to use until landlines were installed, detainees said they had to line up in
other compounds to make phone calls.
At the Construction Camp facility there are only three landline phones for
detainees to share. At the time of the Commission’s visit there were 418
people detained in the facility. The phones are located in an outdoor area with
no privacy, and there is a 10 minute limit. Detainees told the Commission that
the limited number of telephones was a significant concern; that they had to
wait in line for an hour or two; and that it led to tensions between people
detained in the facility.
At the Phosphate Hill facility there are four landline phones for detainees
to share. At the time of the Commission’s visit there were 164 men
detained in the facility. Again, the telephones are located in outdoor areas
with no privacy.
DIAC informed the Commission that people in detention are able to request to
use a private telephone for making calls to IAAAS agents or lawyers. A small
number of people reported that they were aware of this and had done so, but many
did not appear to be aware and raised significant concerns about limited phone
access.
The Commission is concerned that people in detention on Christmas Island are
not permitted to have mobile telephones. This would assist in easing the
pressure on landline telephones, and would greatly enhance detainees’
ability to maintain regular contact with family members, legal representatives
and migration agents.
The Commission also remains concerned about detainees’ limited access
to the internet in the detention facilities on Christmas Island. Again, this
concern has been exacerbated because of the substantial increase in the number
of people detained. Internet access can be a valuable way for people in
detention to maintain contact with the outside world, and is all the more
important when there are so few telephones available.
At the time of the Commission’s visit, there were 23 internet terminals
for the use of 1834 detainees at the Christmas Island IDC; eight terminals for
164 detainees at Phosphate Hill; and 12 internet terminals for 418 detainees at
the Construction Camp. Internet access is generally much slower than on the
mainland. Many detainees expressed frustrations about the limited number of
internet terminals, having to wait in long queues to use a terminal, then not
being able to use it effectively within the time allotted because of the slow
internet speed.[274]
using Christmas Island for immigration detention purposes, DIAC should:
- ensure that all detainees are provided with adequate access to telephones
and that they can make and receive telephone calls in privacy
- increase the number of internet terminals in each of the detention
facilities.
21.2 Access to
interpreters
Under international human rights standards, all written and oral communications concerning a person in immigration detention and the refugee assessment process should be conveyed in a language and in terms which the person can understand. People who do not understand English, or whose English is not adequate, should be provided with an interpreter when information concerning them is being obtained or conveyed.[275]
As
noted in the Commission’s 2009 report, DIAC has a group of interpreters on
Christmas Island, each of whom stays for a few weeks or months at a time. The
Commission welcomes this; it is a positive contrast to many mainland detention
facilities which rely on telephone interpreters.
At the time of the Commission’s 2010 visit there were 62 interpreters
working on Christmas Island. Interpreters are in very heavy demand for a range
of activities including entry interviews, RSA interviews, security related
interviews, health and mental health appointments and everyday communications
between people in detention and staff.
During its visit, the Commission heard several complaints from people in
detention that interpreters were not always available when requested. For
example, one person told the Commission, “There are problems with
interpreters. There are not enough interpreters for interviews and medical
appointments. Sometimes interviews or appointments are cancelled because there
is no interpreter and rescheduling can take a week or
more.”[276]
However, the main issue raised by detainees was concern expressed by some
people from Afghanistan about not being provided with a Hazaragi speaking
interpreter, and being required to use a Dari speaking interpreter instead. Some
Afghans were concerned that Dari interpreters did not always fully understand
what they said, and did not always accurately interpret for them in
interviews.[277]
This concern was also raised during the Commission’s 2009 visit to
Christmas Island. At the time, DIAC informed the Commission that the problem was
a result of the fact that the National Accreditation Authority for Translators
and Interpreters (NAATI) did not offer accreditation for Hazaragi interpreters,
and that steps had been taken in order to rectify this. In its 2009 report, the
Commission encouraged DIAC to address the matter as soon as
possible.[278]
The Commission is pleased that since then, NAATI has begun accreditation of
Hazaragi interpreters. However, the Commission understands that currently there
is a limited number of accredited Hazaragi interpreters. The Commission urges
DIAC to work with NAATI to ensure that a sufficient number of Hazaragi
interpreters is available to people in immigration detention, including those on
Christmas Island.
22 Recreation and
education
International human rights standards require that people in immigration
detention should have access to materials and facilities for exercise,
recreation, cultural expression and intellectual and educational pursuits to
utilise their time in detention in a constructive manner, and for the benefit of
their physical and mental
health.[279] In addition, each
immigration detention facility should have a library stocked with recreational
materials in the principal languages spoken by people in
detention.[280]
In its 2008 and 2009 reports, the Commission raised concerns about the
limited recreational facilities at Phosphate Hill and the Construction Camp,
about detainees’ limited access to reading materials and educational
activities and about the limited opportunities for people to leave the detention
environment on recreational
excursions.[281]
Since then, Serco has taken over operation of the detention facilities on
Christmas Island. Under its contract, Serco is required to:
develop, manage and deliver structured and unstructured Programs and
Activities designed to provide educational and recreational opportunities, and
provide meaningful activities that will enhance the mental health and well-being
of individuals in Immigration
Detention.[282]
During its 2010 visit, the Commission was pleased to observe that DIAC and
Serco staff are making positive efforts to provide recreational and educational
activities for people in detention on Christmas Island. The Commission welcomes
a number of positive developments, including a weekly women’s group at the
local community centre, a plan for some detainees to participate in a furniture
restoration program organised by the community centre, and efforts to allow some
detainees to participate in community sporting events.
Despite these efforts, the Commission remains concerned that not all people
in detention are provided with adequate access to recreational facilities and
activities, and educational opportunities. The significant increase in the
number of people detained on Christmas Island has increased the strain in this
regard.
The Commission’s key concerns include the following:
- the lack of appropriate recreational facilities, particularly in the
Construction Camp and Phosphate Hill immigration detention facilities
- the impact of overcrowding on detainees’ access to recreational and
educational opportunities in all detention facilities
- the limited access to reading materials for people detained in the
Construction Camp and Phosphate Hill
- the very limited opportunities to leave the detention environment,
particularly for people detained in the Christmas Island IDC and the Phosphate
Hill facility.
These concerns are discussed below.
22.1 Recreational
facilities and activities
(a) Christmas Island IDC
The Commission’s 2009 report observed that there are good recreational
and educational facilities at the Christmas Island IDC including a gym, a
library room, classrooms, and an art room. There is also a significant amount of
open grassy space that can be used for sports such as cricket and soccer.
The Commission observed extensive use of these facilities during its 2010
visit. As noted last year, it is clear that these facilities are extremely
beneficial in terms of providing people in detention with positive ways to pass
their time.
However, while the recreational facilities at the IDC may be appropriate for
when the centre is operating at its normal capacity of 400 people, they are not
sufficient to meet the needs of a much higher number of detainees. When the
Commission visited, there were 1834 men in the IDC and the facilities were under
serious strain.
In addition, some areas previously used for recreation or education have now
been converted into accommodation. The whole of Education 3 Compound is now
being used for accommodation, and some recreation rooms within the original
accommodation compounds have been converted into dormitory bedrooms.
As discussed in section 17 above, the Commission is particularly concerned
about the lack of recreational facilities in the new Aqua Compound, and the
restricted access that people in Aqua and Lilac Compounds have to the
recreational facilities in the main centre.
Recreational activities are provided by five Serco officers and four ALIV
volunteers in the IDC. According to ALIV’s weekly timetable, art, sewing
and cooking activities are offered each day. Each night different activities are
offered, for example bingo and movie nights.
The Commission welcomes these efforts. However, some people in detention told
the Commission that access to recreational activities was limited due to the
high number of people in the
centre.[283]
(b) Phosphate Hill immigration detention
facility
In its 2008 report, the Commission raised concerns about the lack of
recreational facilities at the Phosphate Hill immigration detention facility.
This concern has been exacerbated by the substantial increase in the number of
people being detained there.
Inside the compound, there is no gym or other indoor recreation space. There
is one demountable containing an internet room and a prayer room. The only other
spaces for recreational use are the two cabana areas, which each contain tables
and chairs, a television and some very basic kitchen facilities. Detainees
reported that when it rains, the rain comes into the cabana areas making it
difficult to use the areas for recreational purposes.
There is a small gym room in a demountable building in the open area at
Phosphate Hill. However, detainees do not have free access to the gym, as it is
outside the compound they are confined to. They can sign up to use the gym
during designated sessions, but only a small number of people can use it each
session and it is shared with people detained in the Construction Camp.
Detainees raised concerns about their limited access to the gym.
There are some organised recreational activities offered inside the Phosphate
Hill facility including yoga, games, music, bingo and movie nights. However,
these appear to be fewer than the activities offered to people in detention in
the Construction Camp or the Christmas Island IDC.
(c) Construction Camp immigration detention
facility
The Commission’s 2009 report expressed significant concerns about the
lack of adequate recreational facilities in the Construction
Camp.[284] As noted in sections 14
and 17 above, those concerns remain, and have been exacerbated by the
substantial increase in the number of people detained in the Construction
Camp.
The Commission continues to have significant concerns about the lack of open
space inside the Construction Camp. As noted above, the Commission welcomes the
extension of the fence line to include the basketball court, as it provides a
much needed area for sports and recreation inside the facility. However, when
the Commission visited, the court was locked and detainees were only being
provided with access to it for two hours each afternoon or
evening.[285]
The Commission also welcomes the fact that detainees are permitted to visit
the oval and playground next to the Construction Camp each weekday afternoon,
under the supervision of Serco officers. However, the Commission remains
concerned that there is no open grassy area inside the Construction Camp
facility that detainees have unrestricted access to, particularly given the high
number of children detained there.
The Commission is also concerned about the lack of indoor recreation space in
the Construction Camp, which means that there are very limited opportunities for
recreation during wet weather. There is one undercover area that can be used for
recreational activities, but it has a concrete floor so it is not particularly
comfortable or appropriate for babies or toddlers. There is also one classroom,
but it is generally only opened for scheduled activities. There are two other
rooms that could be used for recreational activities – the dining room and
another large room nearby. However, these rooms are often being used for initial
processing for new arrivals. Some detainees told the Commission that when it is
raining, there is nowhere to go except inside their
bedrooms.[286]
There is a small gym room inside the Construction Camp that is currently used
as a women’s only gym. While this is positive for female detainees, some
male detainees complained about only being provided with limited access to the
gym room across the road, outside the Phosphate Hill facility.
There are some organised recreational activities provided for people detained
in the Construction Camp including bingo, arts and crafts, games nights and
yoga. Activities specifically for children are discussed in section 14 above.
The Commission welcomes these efforts.
The Commission also welcomes efforts to offer some activities specifically
for women, in particular a weekly women’s group at the local community
centre. However, the Commission also heard some concerns from women in the
Construction Camp about the need for further women’s activities, for
example the opportunity for women to be taken to the oval at a separate time to
male detainees (who greatly outnumber the women).
using Christmas Island for immigration detention purposes, DIAC should ensure
that all detainees are provided with adequate access to a range of recreational
facilities and activities.
22.2 Educational
activities
Under international human rights standards, opportunities for English
language instruction and further education, including technical and vocational
education should be provided for people in immigration detention where
possible.[287]
The provision of education for children in immigration detention on Christmas
Island is discussed in section 14 above.
The Commission’s 2009 report raised concerns about the inadequacy of
the educational opportunities provided for adults detained on Christmas Island,
and the limited availability of reading materials in the detention
facilities.[288]
In response, DIAC noted that a number of ESL classes were being held each
day. DIAC acknowledged that more reading materials in relevant languages were
required for the detention facilities, and noted that the provision of reading
materials was a requirement under Serco’s
contract.[289]
During its 2010 visit, the Commission was pleased to observe that there has
been a significant improvement in the number and range of materials in the
library room at the Christmas Island IDC. However, there remains a lack of
access to appropriate reading materials for people detained in the other
facilities. At Phosphate Hill, there is no library inside the facility. There is
a small library room in a demountable building outside the compound, but people
in detention do not have free access to it. At the Construction Camp there are a
few shelves of donated books in the internet room. While this is an improvement
since the Commission’s last visit, it is not adequate to meet the needs of
the high number of people detained in the Construction Camp.
The Commission also continues to have concerns about detainees’ limited
access to educational activities. Serco records provided to the Commission
indicate that English classes are offered in all detention facilities on a daily
basis. The Commission welcomes these efforts. However, the substantial increase
in the number of people being held in each facility has limited access to these
classes for some people. In particular, many detainees at the Christmas Island
IDC said that classes were overcrowded, or that there was not enough space and
they had been told they would have to wait for several
weeks.[290]
using Christmas Island for immigration detention purposes, DIAC should ensure
that:
- all detainees have access to appropriate educational activities, including
ESL classes
- the Phosphate Hill and Construction Camp immigration detention facilities
have an adequate supply of reading materials in the principal languages spoken
by detainees.
22.3 Opportunities
to leave the detention environment
The Commission’s most significant concerns about recreational
activities for people in immigration detention on Christmas Island relate to
opportunities to leave the detention environment. This is critical for the
physical and mental wellbeing of people in detention, particularly those
detained for prolonged periods.
In its 2009 report the Commission raised concerns about detainees’
limited access to excursions. The Commission recommended that minimum standards
for the conduct of regular external excursions should be included in the
contract with the detention service provider; that compliance should be
monitored and remedial action taken when the standards are not complied with;
and that sufficient resources should be allocated to ensure that the detention
service provider is able to provide escorts for the conduct of regular
excursions.[291]
In response, DIAC noted that the detention service provider contract includes
a monitoring regime with penalty clauses for
breaches.[292] The contract
governing the three detention facilities on Christmas Island requires that Serco
must include supervised external excursions in the range of programs and
activities offered to people in immigration
detention.[293] However, it does
not specify the number, frequency or type of excursions that must be offered.
During its 2010 visit to Christmas Island, the Commission was pleased to
observe that some positive efforts were being made by DIAC and Serco staff to
provide people in detention with access to excursions. In particular, the
Commission welcomes efforts to provide women at the Construction Camp with the
opportunity to attend a weekly women’s group at the local community
centre, and opportunities for a small number of detainees to participate in a
weekly community sporting activity.
However, because of the high number of people detained on the island, the
limited number of excursions provided is nowhere near enough to ensure that all
detainees – or even a significant proportion of them – are able to
participate. The vast majority of people interviewed by the Commission reported
that they had never been taken on an organised excursion.
The Commission is particularly concerned that people detained in the
Christmas Island IDC and the Phosphate Hill facility are being provided with
very limited opportunities to leave the detention environment. For example, the
Commission was provided with records which indicate that over a one month
period, 41 people were taken from the IDC to visit a local
park.[294] In the four weeks prior
to the Commission’s visit, people detained in the Phosphate Hill facility
were not taken on any organised excursions, although up to 40 people were able
to visit the oval next to the facility on average twice per
week.[295]
At the Construction Camp facility, the Commission welcomes that people are
provided with the opportunity to visit the adjacent oval for a few hours each
weekday afternoon (under the supervision of Serco officers). There are also some
organised excursions from the Construction Camp, including visits to the local
recreation centre and the outdoor cinema. The Commission welcomes efforts by
Serco to organise these excursions. However, only a few people are able to
participate.
using Christmas Island for immigration detention purposes, DIAC should:
- amend the detention service provider contract applicable to the three
detention facilities on Christmas Island to require that Serco provide regular
external excursions for people in detention on the island
- ensure that the detention service provider is allocated sufficient resources
to provide escorts for regular external excursions.
23 Religion
Under international human rights standards, all people have a right to
practise their religion, either individually or in community with others.
Qualified religious representatives should be allowed to hold regular services
and to pay pastoral visits to people in immigration detention, subject only to
reasonable conditions and restrictions specified by
law.[296]
In 2008 and 2009, the Commission raised concerns about the level of religious
support available to people detained on Christmas
Island.[297] During its 2009
visit, the Commission was concerned that there were no services being conducted
on a regular basis inside the detention facilities, and only a handful of people
were being taken to services outside detention. The Commission recommended that
DIAC ensure that all people in detention are provided with access to regular
religious services conducted by qualified religious
representatives.[298]
In response, DIAC stated that the detention service provider is contracted to
ensure suitable religious services are available at the detention facilities,
and that these are conducted by qualified individuals. DIAC also stated that
excursions to religious services in the community are facilitated where
possible, but this is dependent on available transport and escort
services.[299]
During its 2010 visit to Christmas Island, the Commission was pleased to
observe that efforts have been made to provide people in detention with greater
access to religious representatives, religious services and general pastoral
support. However, further efforts are needed to meet the religious needs of the
high number of people detained on the island.
Some local religious groups on Christmas Island are making significant
efforts to provide as much support to people in detention as they can. However,
as noted in past reports, the small size and limited resources of the Christmas
Island community mean that local groups are not able to meet the religious needs
of such a high number of
detainees.[300]
Local efforts have been bolstered over the past year by increased efforts
from DIAC and Serco to facilitate visits by religious representatives from the
mainland. For example, some support has been provided to the Australian Catholic
Bishops Conference, Jesuit Refugee Service and the Sisters of Mercy to allow
them to maintain a pastoral presence on the island by sending one or two
volunteers for a few weeks or months at a time. This has increased
detainees’ access to general pastoral support, as well as access to
organised religious services for Catholic detainees.
The Commission welcomes this initiative and encourages DIAC and Serco to
extend it to other religions as well. Given the substantial increase in the
number of people detained on Christmas Island, further efforts are required to
ensure that all people in detention – particularly those who practice a
religion other than Christianity – are provided with adequate access to
religious support. In particular, Hindu and Muslim detainees told the Commission
they would appreciate more religious visits, support and
services.[301]
In addition, the Commission remains concerned that many people in detention
are not provided with the opportunity to attend religious services outside the
detention environment. This may be particularly beneficial for those who have
been in detention for a prolonged period.
23.1 Christmas
Island IDC
At the Christmas Island IDC, there are two rooms in Education 2 Compound that
can be used for religious services, and occasionally large services are held in
the open court area in the gym. Some accommodation compounds have a small room
that can be used by detainees for prayer.
There is a Catholic mass in the IDC each Sunday for people who wish to
attend. However, there do not appear to be regular organised services for
detainees of other religions. Some Hindu detainees told the Commission there are
no Hindu visitors.[302] For Muslim
detainees, Serco informed the Commission that the local Imam visits each Friday.
However, some Muslim detainees told the Commission there are no organised prayer
services for them.[303] They also
said they had made several requests for watering cans to allow them to wash
before and after prayers. DIAC informed the Commission they would consider
introducing watering cans or buckets to address this request.
The Commission remains concerned that very few people detained in the
Christmas Island IDC are provided with access to religious services outside the
detention environment. For a time, some Muslim detainees were taken to prayer
services at the island’s mosque, but these visits are no longer conducted.
Serco informed the Commission that visits are conducted to the Christian
Fellowship service and occasional visits are conducted to the island’s
temple. However, it is unclear how regular these visits are. One detainee told
the Commission he was taken out to a weekly Church
service.[304] Others said they do
not get the opportunity to attend services outside the
IDC.[305] Records provided by
Serco indicate that over a month long period during April and May 2010, no
detainees from the IDC were taken to a religious service in the
community.[306]
23.2 Phosphate
Hill immigration detention facility
Inside the Phosphate Hill immigration detention facility, there is a small
prayer room mostly used by Muslim detainees, but no other indoor space in which
to conduct organised religious services.
There is a Catholic mass once each week for detainees who wish to attend,
held in one of the classrooms located outside the fence line of the facility.
However, there do not appear to be any regular services organised for people of
other religions inside the facility.
The Commission is concerned that not all detainees in the Phosphate Hill
facility are provided with regular access to religious services outside the
detention environment. While Catholic detainees are able to attend a weekly mass
in a classroom next to the facility, they are not able to attend the Catholic
mass at the local Church, despite the Church being happy to have
them.[307] Records provided by
Serco indicate that over a month long period during April and May 2010, the only
religious visits conducted from Phosphate Hill were for nine detainees taken to
the mosque.[308]
23.3 Construction
Camp immigration detention facility
At the Construction Camp immigration detention facility, some accommodation
blocks have a small room that detainees can use for prayers. In other blocks,
detainees pray in their own bedrooms.
Some detainees receive pastoral care visits from a Catholic priest and nun.
However, Muslim and Hindu detainees said they received no visits from
representatives of their
religion.[309]
The Commission is pleased that efforts are being made to take detainees from
the Construction Camp to religious services in the community. Hindu detainees
told the Commission they were taken to the temple on the weekend, and Catholic
detainees told the Commission they were taken to a weekly Church
service.[310] Some Burmese
detainees said they were taken to prayers at the mosque, although some other
Muslim detainees said they were not provided with this
opportunity.[311]
using Christmas Island for immigration detention purposes, DIAC should:
- ensure that all detainees are provided with access to regular religious
services conducted by qualified religious representatives – in particular,
further efforts are required to provide this for detainees who practice a
religion other than Christianity
- ensure that detainees have access to religious services in the
community.
Part E: Monitoring
conditions of detention on Christmas
Island
24 Minimum
standards
The Commission has repeatedly raised concerns about the lack of transparent
and enforceable standards for conditions in immigration detention, and has
called numerous times for minimum standards to be codified in
legislation.[312] These should be
based on relevant international human rights standards, in order to ensure that
people in detention are treated in line with Australia’s human rights
obligations.
In its 2009 report, the Commission noted that this concern is heightened on
Christmas Island, as the remote location makes it more difficult for external
bodies to monitor detention conditions
there.[313]
In response to the Commission’s report, DIAC highlighted measures taken
to ensure minimum standards for the treatment of people in immigration detention
including Detention Instructions for departmental staff and service providers;
standards contained in contracts with the detention and health service providers
and monitoring of these by DIAC’s contract management area; and
development by the Royal Australian College of General Practitioners of Standards for Health Services in Australian IDCs (RACGP
Standards).[314]
The Commission welcomes these initiatives. However, other than the RACGP
Standards, these standards are not freely available to the public, there is very
little public reporting about whether the standards are being complied with and
the standards are not legally enforceable.
DIAC’s response to the Commission’s 2009 report also noted that
reform processes were underway to support the implementation of the key values
set out in the government’s New Directions policy – including value
6 which states that people in detention will be treated fairly and reasonably
within the law, and value 7 which states that conditions of detention will
ensure the inherent dignity of the human
person.[315] In this regard, DIAC
highlighted the Migration Amendment (Immigration Detention Reform) Bill 2009.
The Commission welcomed the introduction of the Bill in 2009, but expressed
disappointment at the time that the Bill did not incorporate key values 6 and 7
about treatment and conditions in
detention.[316] Despite this
limitation, the Commission is disappointed that the Bill was not passed.
In the Commission’s view, the most appropriate way to ensure that
standards for detention conditions are adequately and consistently implemented
is to embed minimum standards in legislation. This would be in line with UNHCR
guidelines which require conditions of detention for asylum seekers to be
prescribed by law.[317]
In the mean time, the Commission supports the recommendation made by the
Joint Standing Committee on Migration in 2009 that DIAC should make the contract
standards available on its website and report on detention service
providers’ compliance with the standards in its annual
report.[318]
standards for conditions and treatment of detainees in all of Australia’s
immigration detention facilities, including those located in excised offshore
places. The minimum standards should be based on relevant international human
rights standards, should be enforceable and should make provision for effective
remedies.
25 Independent
monitoring
Regular independent monitoring of immigration detention facilities is
essential in order to increase accountability and transparency, and to monitor
conditions in order to ensure that they meet internationally accepted human
rights standards.
The Commission acknowledges positive efforts by DIAC to facilitate the
Commission’s visit to Christmas Island, as well as visits by other
monitoring bodies and non-government organisations. The Commission also welcomes
the increased transparency of DIAC’s operations over the past few years.
However, the Commission remains concerned that there is minimal information
available to the general public about the operation of Australia’s
immigration detention facilities and the people detained in them. There is very
little information about the Christmas Island detention facilities on the DIAC
website, and the information that is there is out of
date.[319] During 2010, an
increasing number of places of immigration detention have been established on
the mainland. However there is limited public information about those
facilities, who is detained in them or for how long.
A number of bodies play a role in monitoring the immigration detention
facilities on Christmas
Island.[320] Those bodies have
each visited Christmas Island during 2010. However, the remote location makes
this exercise logistically difficult, time consuming and expensive. It is
difficult for monitoring bodies to visit the detention facilities regularly.
The Commission remains of the view that there is a need for a more
comprehensive monitoring mechanism for Australia’s immigration detention
facilities, particularly those in remote locations such as Christmas Island.
Currently, there is no monitoring body with all of the key features necessary to
be fully effective: independence from DIAC; adequate funding to fulfil the role;
the capacity to maintain an ongoing or regular presence on Christmas Island; a
specific statutory power to enter immigration detention facilities;
comprehensive public reporting for transparency; and the capacity to require a
public response from government.
A more comprehensive monitoring mechanism to ensure that conditions in
immigration detention meet human rights standards could be achieved through the
ratification of the Optional Protocol to the Convention against Torture (OPCAT). In its response to the Commission’s 2009 report, DIAC reported
that the Australian Government was working towards ratification of OPCAT in
2010. The Commission urges the government to work towards this goal as a matter
of priority.
Further, as discussed in section 19 above, the Commission is of the view that
there is a need for rigorous, independent and ongoing monitoring of the delivery
of health and mental health services in immigration detention facilities on
Christmas Island and the mainland. An independent body should be charged with
this function and the Australian Government should ensure that adequate
resources are allocated to that body to fulfil the function.
independent and adequately resourced National Preventive Mechanism to conduct
regular inspections of all places of detention. This should include all
immigration detention facilities, including those located in excised offshore
places.
Appendix
1: Conduct of visit
The Commission conducted a visit to Australia’s immigration detention
facilities on Christmas Island from 28 May to 3 June 2010. The visit was
conducted by three Commission staff members.
The Commission’s visit to Christmas Island was arranged with DIAC in
advance.
During its visit the Commission undertook the following activities:
- entry and exit meetings with DIAC and Serco management
- meetings with DIAC Case Managers
- meetings with Serco staff
- meetings with staff members of health and mental health service providers
- inspections of the Christmas Island IDC, the Construction Camp immigration
detention facility and the Phosphate Hill immigration detention facility
- individual and group meetings with people detained at the Christmas Island
IDC, the Construction Camp immigration detention facility and the Phosphate Hill
immigration detention facility
- participation in a ‘Client Consultative Committee’ meeting at
the Construction Camp immigration detention facility
- a meeting with Life Without Barriers Independent Observers
- meetings with representatives of the Attorney-General’s Department and
the Christmas Island Shire Council
- meetings with representatives of the Christmas Island District High School,
local religious groups and other local community
representatives.
Positive developments and key concerns arising from
the visit were discussed with DIAC and Serco management in exit meetings on
Christmas Island on 3 June 2010. The Commission subsequently raised key concerns
in discussions with a range of senior DIAC officers following the visit.
Appendix 2: Relevant
human rights standards
Human
rights for all people in immigration detention
Conditions in immigration detention should comply with Australia’s
international human rights obligations. These are contained in a range of
treaties the Australian Government has voluntarily become a party to,
including:
- the International Covenant on Civil and Political
Rights[321]
- the International Covenant on Economic, Social and Cultural
Rights[322]
- the Convention against Torture and Other Cruel, Inhuman and Degrading
Treatment or
Punishment[323]
- the Convention Relating to the Status of Refugees and Protocol
Relating to the Status of
Refugees[324]
- the Convention on the Rights of the
Child.[325]
These
treaties protect a wide range of fundamental rights and freedoms. Those most
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.[326]
lawfulness of his or her detention before a
court.[327]
assistance.[328]
respect for the inherent dignity of the human
person.[329]
treatment or
punishment.[330]
and for the shortest appropriate period of
time.[331]
discrimination.[332]
a refugee to a country where his or her life or freedom would be
threatened.[333]
In addition, there are a range of international guidelines relating
specifically to the treatment of persons in detention. These include:
- the Body of Principles for the Protection of all Persons under Any Form
of Detention or
Imprisonment[334]
- the Standard Minimum Rules for the Treatment of
Prisoners[335]
- the United Nations Rules for the Protection of Juveniles Deprived of
their Liberty[336]
- UNHCR guidelines, including the Revised Guidelines on Applicable Criteria
and Standards Relating to the Detention of Asylum Seekers and the Guidelines on Policies and Procedures in Dealing with Unaccompanied Children
Seeking
Asylum.[337]
In
2000, the Commission drew upon relevant human rights treaties and international
guidelines as a basis for developing the Immigration Detention
Guidelines.[338] These
Guidelines are intended to act as a minimum benchmark against which conditions
in Australia’s immigration detention facilities can be measured.
Human
rights for children in immigration detention
The international human rights that apply to adults (set out above) also
apply to children. In addition, all children are entitled to enjoy the human
rights set out in the Convention on the Rights of the Child, which
Australia is a party to. Human rights of particular importance for
asylum-seeking children and children in immigration detention include the
following:
actions concerning
children.[339]
and for the shortest appropriate period of time. Children must not be deprived
of their liberty unlawfully or
arbitrarily.[340]
treatment or punishment. Children in detention have the right to be treated with
humanity and respect for their inherent dignity, and in a manner which takes
into account the needs of persons of their
age.[341]
before a court or other competent, independent and impartial
authority.[342]
and assistance.[343]
except when competent authorities subject to judicial review determine that
separation is necessary for the best interests of the
child.[344]
protection and assistance from the government. The government must arrange
alternative care for such
children.[345]
development and recovery from past
trauma.[346]
non-discrimination.[347]
[1] The Commission’s reports
of complaints about alleged human rights breaches in immigration detention are
available at http://humanrights.gov.au/legal/humanrightsreports/index.html.
The Commission’s national inquiry reports are A last resort? National
inquiry into Children in Immigration Detention (2004) (A last resort), at http://humanrights.gov.au/human_rights/children_detention_report/index.html (viewed 2 August 2010), and Those who’ve come across the seas:
Detention of unauthorised arrivals (1998) (Those who’ve come across
the seas), at http://humanrights.gov.au/human_rights/immigration/seas.html (viewed 2 August 2010).
[2] See,
for example A last resort, note 1; Those who’ve come across the seas, note 1.
[3] The Commission’s activities have included two national inquiries;
inspections of immigration detention facilities; developing minimum standards
for the protection of human rights in immigration detention; submissions to
parliamentary inquiries; investigating complaints from individuals in detention;
examining proposed legislation and commenting on government policies; and
raising public awareness. Further details are available at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9.
[4] The Commission’s 2006,
2007 and 2008 immigration detention inspection reports are available at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9_4.
[5] Australian Human Rights
Commission, 2009 Immigration detention and offshore processing on Christmas
Island (2009) (2009 Christmas Island report). At http://humanrights.gov.au/human_rights/immigration/idc2009_xmas_island.html (viewed 2 August 2010).
[6] See
2009 Christmas Island report, note 5, sections 2,
9-13.
[7] See 2009 Christmas Island
report, note 5, sections 2,
6-8.
[8] See 2009 Christmas Island
report, note 5, section
3.
[9] See, for example Amnesty
International, Australia: Submission to the United Nations Universal Periodic
Review: Tenth Session of the UPR Working Group of the Human Rights Council (2010), at http://amnesty.name/en/library/info/ASA12/001/2010/en (viewed 2 August 2010); Refugee Council of Australia, Submission to the
United Nations Human Rights Council Towards the Universal Periodic Review of
Australia (2010), at http://www.refugeecouncil.org.au/resources/submissions.html (viewed 6 August 2010); Refugee Council of Australia, Australia’s
Refugee and Humanitarian Program 2010/2011: Community Views on Current
Challenges and Future Directions (2010), pp 52-53, at http://www.refugeecouncil.org.au/resources/consultations.html (viewed 2 August 2010); Uniting Church in Australia National Assembly &
Anglican Church, Diocese of Perth, ‘Church leaders voice concerns for
wellbeing of asylum seekers on Christmas Island’ (Media Release, 2 March
2010), at http://www.unitingjustice.org.au/component/content/article/8-refugeesandasylum/212-mrchristmasisland020310.html (viewed 2 August 2010); United Nations Human Rights Committee, Concluding
observations of the Human Rights Committee: Australia, UN Doc.
CCPR/C/AUS/CO/5 (2009), para 23, at http://www2.ohchr.org/english/bodies/hrc/docs/co/CCPR-C-AUS-CO-5.doc (viewed 2 August 2010); United Nations Committee on Economic, Social and
Cultural Rights, Concluding observations of the Committee on Economic, Social
and Cultural Rights: Australia, UN Doc. E/C.12/AUS/CO/4 (2009), para 25, at http://www2.ohchr.org/english/bodies/cescr/docs/AdvanceVersions/E-C12-AUS-CO-4.doc (viewed 2 August 2010); A Grover, Report of the Special Rapporteur on the
right of everyone to the enjoyment of the highest attainable standard of
physical and mental health: Mission to Australia, UN Doc A/HRC/14/30/Add.4
(2010), pp 21-24, at http://www.unhcr.org/refworld/docid/49faf7652.html (viewed 2 August 2010).
[10] Section 494AA(1)(c) of the Migration Act 1958 (Cth) states that:
‘The following proceedings against the Commonwealth may not be instituted
or continued in any court: (c) proceedings relating to the lawfulness of the
detention of an offshore entry person during the ineligibility period, being a
detention based on the status of the person as an unlawful non-citizen’.
Note, however, that section 494AA(3) states that nothing in section 494AA is
intended to affect the jurisdiction of the High Court under section 75 of the
Australian Constitution.
[11] See Universal Declaration of Human Rights (1948) (UDHR), arts 9, 14, at http://www.un.org/en/documents/udhr/ (viewed 5 August 2010); International Covenant on Civil and Political
Rights (1966) (ICCPR), arts 9, 10, at http://www2.ohchr.org/english/law/ccpr.htm (viewed 5 August 2010); Convention on the Rights of the Child (1989)
(CRC), art 37, at http://www2.ohchr.org/english/law/crc.htm (viewed 5 August 2010).
[12] To
comply with article 9(4) of the ICCPR, the court must have the power to order
the person’s release if their detention is not lawful. The lawfulness of
their detention is not limited to domestic legality – it includes whether
the detention is compatible with the requirements of article 9(1) of the ICCPR.
See, for example, United Nations Human Rights Committee, A v Australia,
Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), para 9.5. At http://www.unhchr.ch/tbs/doc.nsf/
0/30c417539ddd944380256713005e80d3?Opendocument (viewed 16 September 2010).
[13] See A last resort, note 1, chapter
17.
[14] See Joint Standing
Committee on Migration, Immigration detention in Australia: Facilities,
services and transparency (2009), p 57. At http://www.aph.gov.au/house/committee/MIG/detention/report3/fullreport.pdf (viewed 15 September 2010).
[15] See, for example Minister for Immigration and Citizenship, ‘Rudd
Government committed to Christmas Island detention’ (Media Release, 18
August 2009), at http://www.minister.immi.gov.au/media/media-releases/2009/ce09074.htm (viewed 2 August 2010); Department of Immigration and Citizenship, Processing
Irregular Maritime Arrivals, Fact Sheet 75, at http://www.immi.gov.au/media/fact-sheets/75processing-irregular-maritime-arrivals.htm (viewed 2 August 2010).
[16] In
2001, the Migration Act was amended to designate a number of islands as
‘excised offshore places’. See Migration Act 1958 (Cth), s
5(1). The amendments were made pursuant to the Migration Amendment (Excision
from the Migration Zone) Act 2001 (Cth). Further islands were excised by the Migration Amendment Regulations 2005 (No. 6) (Cth), reg
5.15C.
[17] DIAC provided the
Commission with figures current as of 27 May 2010. These figures list the
nationality of the 2421 people in immigration detention on Christmas Island as
follows: 1322 from Afghanistan, 640 from Sri Lanka, 166 stateless, 103 from
Iran, 85 from Iraq, 33 Burmese, 24 from Indonesia, 10 not yet known, 8 from
Vietnam, 7 from Kuwait, 7 from Somalia, 6 Beduin, 4 from Myanmar, 3 Kurdish, 1
from Bangladesh, 1 from Pakistan and 1 from Yemen.
[18] See 2009 Christmas Island
report, note 5, section
5.3.
[19] Figures provided by
DIAC, current as of 27 May 2010. The number of detainees on Christmas Island
fluctuated during the Commission’s visit. On the final day of the visit (3
June 2010), there were 2435 people in immigration detention on the
island.
[20] Figures provided by
DIAC, current as of 27 May
2010.
[21] Figures provided by
DIAC, current as of 5 August
2010.
[22] As of 10 August 2010,
the highest number of people detained on Christmas Island at any one time was
2652 people on 22 July 2010. Figures provided by DIAC.
[23] Of the 2421 people detained
on Christmas Island, 1765 had been detained for less than three months. This
figure is taken from statistics provided by DIAC, current as of 27 May
2010.
[24] These figures are
taken from statistics provided by DIAC, current as of 27 May
2010.
[25] When the Commission
visited the Christmas Island IDC on 28 May 2010, there were 1834 men detained
there. This had increased to 1877 men by the final day of the Commission’s
visit to Christmas Island (3 June 2010). Figures provided by
DIAC.
[26] Figures provided by
DIAC, current as of 28 May 2010. The number of people detained in the
Construction Camp had decreased to 391 by the final day of the
Commission’s visit to Christmas Island (3 June 2010).
[27] Figures provided by DIAC,
current as of 28 May 2010.
[28] Under section 197AB of the Migration Act 1958 (Cth), the Minister for
Immigration has the power to issue a Residence Determination permitting an
immigration detainee to live at a specified location in the community. This is
known as Community Detention.
[29] As of 27 May 2010, there
were three people in Community Detention on Christmas Island including one adult
male, one adult female and one three year old boy. Figures provided by DIAC.
[30] Figures provided by DIAC,
current as of 27 May 2010. The number of detainees on Christmas Island
fluctuated during the Commission’s visit. On the final day of the visit (3
June 2010), there were 2435 people in immigration detention on the
island.
[31] The Christmas Island
IDC was constructed with a regular capacity of 400 and a surge capacity of 800.
Its capacity has since been progressively increased. When the Commission
visited, there were 1834 men detained in the IDC. The capacity of the
Construction Camp facility is 310 people, according to DIAC. During the
Commission’s visit, there were 418 people detained in the Camp. The
regular capacity of the Phosphate Hill facility is 48 people. It has been
increased to a surge capacity of 168 by adding three large tents. When the
Commission visited, there were 164 men detained in the facility. Figures
provided by DIAC, current as of 28 May 2010.
[32] These ‘alternative
places of detention’ include a detention facility established in Leonora,
Western Australia and several hotels and lodges used on a temporary basis in
Perth, Brisbane and Darwin. People detained in these ‘alternative places
of detention’ remain under supervision in immigration detention. They are
not free to come and go.
[33] See, for example 2009 Christmas Island report, note 5, recommendation 3;
Australian Human Rights Commission, 2008 Immigration detention report:
Summary of observations following visits to Australia’s immigration
detention facilities (2008 Immigration detention report), section 13, at http://humanrights.gov.au/human_rights/immigration/idc2008.pdf (viewed 15 September 2010).
[34] See, for example Australian Human Rights Commission, ‘World Refugee Day
should remind us of our responsibilities to people seeking asylum’ (Media
Release, 20 June 2010). At http://humanrights.gov.au/about/media/media_releases/2010/60_10.html (viewed 2 August 2010).
[35] Migration Act 1958 (Cth), s 5(1). See further note 16.
[36] Migration Act 1958 (Cth), s 46A.
[37] See 2009 Christmas Island
report, note 5, sections
6-8.
[38] See 2009 Christmas
Island report, note 5, sections 2, 6-8.
[39] Department of Immigration
and Citizenship, Response to the Australian Human Rights Commission’s
2009 Immigration Detention and Offshore Processing on Christmas Island
Report (2009) (DIAC 2009 response), pp 4-5. At http://humanrights.gov.au/human_rights/immigration/idc2009_xmas_island_response.html (viewed 3 August 2010).
[40] See,
for example 2009 Christmas Island report, note 5, sections 8.2,
12.4.
[41] See further 2009
Christmas Island report, note 5, sections 2,
8.
[42] See 2009 Christmas Island
report, note 5, sections 3,
8.
[43] Figures provided by DIAC,
current as of 7 July 2009.
[44] See 2009 Christmas Island report, note 5, section
8.2.
[45] Figures provided by
DIAC, current as of 14 July
2010.
[46] Figures provided by
DIAC, current as of 14 July
2010.
[47] See further 2009
Christmas Island report, note 5, section
8.
[48] An asylum seeker who
arrives on the mainland or in another non-excised part of Australia has access
to the refugee status determination system under the Migration Act. As a general
rule, they have access to independent merits review by either the Refugee Review
Tribunal (RRT) or, in some circumstances, the Administrative Appeals Tribunal
(AAT), if they are refused a protection visa. See Migration Act 1958 (Cth), ss 411(1)(c), 500(1)(b), 500(1)(c), 501(1). Asylum seekers who arrive in
excised offshore places are barred from accessing these mechanisms, by virtue of
the bar in section 46A(1) of the Migration Act which prevents these asylum
seekers from lodging a ‘valid application’ for a visa, including a
protection visa.
[49] The
Minister’s discretionary power is provided in section 46A(2) of the Migration Act 1958 (Cth).
[50] Figures provided by DIAC,
current as of 14 July 2010.
[51] See C Evans, Minister for Immigration and Citizenship, ‘Changes to
Australia's Immigration Processing System’ (Joint Media Release with
Stephen Smith, Minister for Foreign Affairs and Brendan
O’Connor, Minister for Home Affairs, 9 April 2010). At http://www.minister.immi.gov.au/media/media-releases/2010/ce10029.htm (viewed 2 August 2010).
[52] See
Australian Human Rights Commission, ‘Suspension of processing asylum
seekers raises serious concerns’ (Media Release, 9 April 2010). At http://humanrights.gov.au/about/media/media_releases/2010/29_10.html (viewed 2 August 2010).
[53] See
Australian Human Rights Commission, ‘More detail needed on new asylum
seeker policy’ (Media Release, 6 July 2010). At http://humanrights.gov.au/about/media/media_releases/2010/71_10.html (viewed 2 August 2010).
[54] Information provided by DIAC on 10 August
2010.
[55] See Australian Human
Rights Commission, ‘More detail needed on new asylum seeker policy’,
note 53.
[56] Information provided by
DIAC on 7 October 2010.
[57] CRC,
note 11, art 37.
[58] ICCPR, note 11, art
9.
[59] See A last resort, note 1, chapter
9.
[60] See A last resort, note 1, chapter 9 and Executive Summary, Part A, Major
Finding 2.
[61] Interview with
approximately 40-50 Afghan men, Christmas Island IDC, 1 June
2010.
[62] Interview with Afghan
women and their children, Construction Camp, 30 May
2010.
[63] See Australian Human
Rights Commission, ‘Lifting the suspension of processing of Afghan asylum
claims a positive step’ (Media Release, 30 September 2010). At http://humanrights.gov.au/about/media/media_releases/2010/94_10.html (viewed 7 October 2010).
[64] 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, Australian National University, Canberra,
29 July 2008) (New Directions). At http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 10 August 2010).
[65] See
further Australian Human Rights Commission, Submission to the Senate Standing
Committee on Legal and Constitutional Affairs on the Migration Amendment
(Immigration Detention Reform) Bill 2009 (2009). At http://humanrights.gov.au/legal/submissions/2009/20090731_migration.html (viewed 2 August 2010).
[66] Under section 196(1) of the Migration Act 1958 (Cth), an unlawful
non-citizen detained under section 189 of the Act must be kept in immigration
detention until he or she is granted a visa or removed or deported from
Australia.
[67] Figures based on
statistics provided by DIAC, current as of 15 July
2009.
[68] Figures based on
statistics provided by DIAC, current as of 27 May
2010.
[69] See New Directions,
note 64.
[70] See 2009 Christmas Island report, note 5, section
9.3.
[71] Interviews with two
groups of Sri Lankan men, Christmas Island IDC, 1 June 2010. One group consisted
of approximately 20 people; the other consisted of approximately 50
people.
[72] Interview at
Christmas Island IDC, 1 June
2010.
[73] Offshore entry persons
are prevented from lodging a ‘valid application’ for a visa,
including a bridging visa, by section 46A(1) of the Migration Act. However, the
Minister could exercise his or her discretion under section 46A(2) of the Act to
permit an individual to apply for a bridging visa. Alternatively, the Minister
could exercise his or her discretion under section 195A of the Act to grant an
individual a bridging visa.
[74] See, for example Those who’ve come across the seas, note 1; A last
resort, note 1; Human Rights and Equal Opportunity Commission, Submission to the Joint Standing Committee on Migration Inquiry into
Immigration Detention in Australia (2008), at http://humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html (viewed 10 August 2010).
[75] See Migration Act 1958 (Cth), ss 189(3),
189(4).
[76] See 2009 Christmas
Island report, note 5, section
9.1.
[77] United Nations High
Commissioner for Refugees, Revised Guidelines on Applicable Criteria and
Standards relating to the Detention of Asylum Seekers (1999), guideline 3.
At http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3c2b3f844 (viewed 9 August 2010).
[78] See
New Directions, note 64.
[79] See 2009 Christmas Island report, note 5, section
9.2.
[80] ICCPR, note 11,
art 9.
[81] CRC, note 11,
art 37(b).
[82] Four of these
individuals are members of a family, consisting of parents with two young
children. In this case, the parents received adverse security assessments from
ASIO.
[83] See New Directions,
note 64; DIAC 2009 response, note 39, p
6.
[84] See 2009 Christmas Island
report, note 5, section
9.2.
[85] See Joint Standing
Committee on Migration, First report of the inquiry into immigration
detention: Immigration detention in Australia, A new beginning (2008),
recommendations 10, 11. At http://www.aph.gov.au/house/committee/mig/detention/report.htm (viewed 9 August 2010).
[86] Under article 9(4) of the ICCPR, any person arrested or otherwise detained is to
be brought before a court without delay: ‘Anyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay on the lawfulness of
his detention and order his release if the detention is not lawful.’ The
lawfulness of the person’s detention is not limited to domestic legality
– it includes whether the detention is compatible with the requirements of
article 9(1) of the ICCPR. See, for example A v Australia, note 12.
[87] See note 10.
[88] See DIAC 2009 response, note 39, p 6; Joint Standing Committee on Migration,
note 85, recommendation
14.
[89] See note 12.
[90] See 2009 Christmas Island report, note 5, sections 9.3, 9.4,
13.1.
[91] As of 27 May 2010,
there were three people in Community Detention on Christmas Island including one
adult male, one adult female and one three year old boy. Figures provided by
DIAC.
[92] Figures provided by
DIAC, current as of 5 August
2010.
[93] Minister for
Immigration and Citizenship, Minister’s Residence Determination Power
Under S. 197AB and S. 197AD of the Migration Act 1958: Guidelines (2009)
(Residence Determination Guidelines), paras 4.14,
4.15.
[94] Residence
Determination Guidelines, above, para
5.2.1.
[95] See Migration Act
1958 (Cth), ss 5, 197AC.
[96] See Residence Determination
Guidelines, note 93, paras 5.12,
5.13.
[97] See further Australian
Human Rights Commission, Submission to the Senate Standing Committee on Legal
and Constitutional Affairs on the Migration Amendment (Immigration Detention
Reform) Bill 2009, note 65, section
14.
[98] See 2009 Christmas
Island report, note 5, section
11.
[99] Figures provided by
DIAC, current as of 28 May
2010.
[100] Figures provided by
DIAC, current as of 27 May 2010.
[101] See A last resort, note 1, chapter
3.
[102] See A last resort,
note 1, Executive Summary, Part A, Major Finding 1.
[103] See A last resort, note 1, chapter 9 and Executive Summary, Part A, Major
Finding 2.
[104] Migration
Act 1958 (Cth), s
4AA.
[105] See 2009 Christmas
Island report, note 5, section
11.2.
[106] See Migration
Act 1958 (Cth), ss 189(3), 189(4).
[107] See 2009 Christmas
Island report, note 5, section
11.2.
[108] See further A last
resort, note 1, section 4.3.2; UNHCR, Guidelines on
Policies and Procedures in Dealing with Unaccompanied Children Seeking
Asylum (1997), guidelines 7.6, 7.7, at http://www.unhcr.org/3d4f91cf4.html (viewed 10 August 2010); UNHCR, Revised Guidelines on Applicable Criteria and
Standards Relating to the Detention of Asylum Seekers, note 77, guideline
6.
[109] See further A last
resort, note 1, chapters 6, 17; 2009 Christmas Island report,
note 5, section
11.5.
[110] See, for example
Australian Human Rights Commission, Submission to the Senate Standing
Committee on Legal and Constitutional Affairs on the Migration Amendment
(Immigration Detention Reform) Bill 2009, note 65, section 7; 2009
Christmas Island report, note 5, section
11.
[111] See Australian Human
Rights Commission, Submission to the Senate Standing Committee on Legal and
Constitutional Affairs on the Migration Amendment (Immigration Detention Reform)
Bill 2009, note 65.
[112] Figures provided by DIAC, current as of 5 August
2010.
[113] See A last resort,
note 1, chapter
17.
[114] See New Directions,
note 64.
[115] See 2009 Christmas Island report, note 5, section
11.3.
[116] In DIAC’s
published statistics, people detained at the Construction Camp are counted as
being in ‘Alternative Temporary Detention in the Community’ on
Christmas Island. See, for example Department of Immigration and Citizenship, Immigration detention statistics summary (30 July 2010). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 16 September
2010).
[117] See DIAC 2009
response, note 39, pp
10-11.
[118] See further
Australian Human Rights Commission, Submission to the Senate Standing
Committee on Legal and Constitutional Affairs on the Migration Amendment
(Immigration Detention Reform) Bill 2009, note 65.
[119] See Migration Act 1958 (Cth), s
197AB.
[120] See 2009 Christmas
Island report, note 5, section 11.
[121] See DIAC 2009 response,
note 39, p
10.
[122] Figures provided by
DIAC, current as of 28 May 2010.
[123] At the time of writing,
there were 1950 irregular maritime arrivals in detention on the mainland,
including 439 minors. Only seven of these people were in Community Detention.
Figures provided by DIAC, current as of 5 August 2010.
[124] Residence Determination
Guidelines, note 93, paras 4.1.4, 6.1.2.
[125] See CRC, note 11,
art 28.
[126] See Human Rights
and Equal Opportunity Commission, Immigration Detention Guidelines (2000), section 6. At http://humanrights.gov.au/human_rights/immigration/idc_guidelines2000.html (viewed 10 August 2010).
[127] Information provided by DIAC, current as of 28 May
2010.
[128] Figures provided by
DIAC, current as of 28 May
2010.
[129] CRC, note 11,
arts 28, 31. See further A last resort, note 1, chapters 12, 13,
15.
[130] UNHCR, Revised
Guidelines on Applicable Criteria and Standards Relating to the Detention of
Asylum Seekers, note 77, guideline
6.
[131] Figures provided by
DIAC, current as of 28 May
2010.
[132] Figures provided by
DIAC, current as of 27 May
2010.
[133] See Immigration
Detention Guidelines, note 126, section 8.2. See also CRC, note 11,
arts 6(2), 24, 27; United Nations Rules for the Protection of Juveniles
Deprived of their Liberty (1990), rules 37, 49, at http://www2.ohchr.org/english/law/res45_113.htm (viewed 10 August 2010).
[134] See CRC, note 11, art
19(1).
[135] See further A last
resort, note 1, chapter
8.
[136] See, for example A
last resort, note 1, chapter 5.
[137] See 2009 Christmas
Island report, note 5, section
11.6.
[138] As above.
[139] See DIAC 2009 response,
note 39, p 12.
[140] Department of
Immigration, Procedures Advice Manual 3 (PAM 3), Detention Services Manual,
Chapter 2, Client placement, Minors in detention, para 18.3 (November
2009).
[141] See DIAC 2009
response, note 39, p
12.
[142] Serco, Immigration
Detention Centres – Other Places of Detention (APOD): People in Detention
Under 18 Years, Draft Procedure (Serco draft policy on children) (13
April 2010), section 14.
[143] CRC, note 11, art
37(b).
[144] UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children
Seeking Asylum, note 108, guidelines 7.6, 7.7. See also UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to the
Detention of Asylum Seekers, note 77, guideline
6.
[145] CRC, note 11,
art 20.
[146] Figures provided
by DIAC, current as of 28 May
2010.
[147] Serco draft policy
on children, note 142, section
3.1.
[148] Serco draft policy
on children, note 142, section
5.3.
[149] DIAC, The role of
Independent Person (document provided by DIAC, 29 June 2010).
[150] Current as of 28 May
2010.
[151] Interview with
group of unaccompanied minors, Construction Camp, 30 May
2010.
[152] Interview with
group of unaccompanied minors, Construction Camp, 30 May
2010.
[153] CRC, note 11,
art 20.
[154] CRC, note 11,
art 18(1).
[155] See Immigration (Guardianship of Children) Act 1946 (Cth), s
6.
[156] See Immigration
(Guardianship of Children) Act 1946 (Cth), s
5.
[157] See, for example A
last resort, note 1, chapter 14; 2008 Immigration detention report,
note 33, section 14.5; 2009 Christmas Island report,
note 5, section
11.8.
[158] See for example, A
last resort, note 1, chapters 14, 17; 2009 Christmas Island report,
note 5, section
11.8.
[159] UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children
Seeking Asylum, note 108, guideline 5.7.
[160] See 2009 Christmas
Island report, note 5, section
11.8.
[161] See DIAC 2009
response, note 39, p
13.
[162] Figures provided by
DIAC, current as of 27 May 2010. The number of detainees fluctuated during the
Commission’s visit. On the final day of the Commission’s visit (3
June 2010), there were 2435 people in immigration detention on Christmas
Island.
[163] See Immigration
Detention Guidelines, note 126, section
1.4(a).
[164] When the
Commission visited the Christmas Island IDC on 28 May 2010, there were 1834 men
detained there. This had increased to 1877 men by the final day of the
Commission’s visit to Christmas Island (3 June 2010). Figures provided by
DIAC.
[165] See 2008
Immigration detention report, note 33, section
13.5.
[166] See 2009 Christmas
Island report, note 5, section
12.1.
[167] See note 14.
[168] See DIAC 2009 response, note 39, p
14.
[169] See 2009 Christmas
Island report, note 5, sections 12.2,
12.3.
[170] Migration Act
1958 (Cth), ss 13, 14,
189.
[171] See Immigration
Detention Guidelines, note 126, section
1.1.
[172] See New Directions,
note 64.
[173] See note 14.
[174] See note 164.
[175] On 22 July 2010, there were 2037 people detained in the Christmas Island IDC.
Figures provided by DIAC, August
2010.
[176] Figures provided by
DIAC, current as of 28 May 2010.
[177] On 22 July 2010, there
were 238 people in the tents at the Christmas Island IDC. Figures provided by
DIAC, August 2010.
[178] Figures provided by DIAC, current as of 28 May
2010.
[179] Interview with
group of male detainees, Gold Compound, Christmas Island IDC, 1 June 2010.
[180] See Immigration
Detention Guidelines, note 126, section
9.1.
[181] See Immigration
Detention Guidelines, note 126, section
11.2.
[182] See Immigration
Detention Guidelines, note 126, section
9.3.
[183] See Immigration
Detention Guidelines, note 126, section
9.7.
[184] Interviews with male
detainees, tents in Red Compound, Christmas Island IDC, 29 May 2010.
[185] Interview with group of
male detainees, Aqua Compound, Christmas Island IDC, 29 May 2010.
[186] Interview with male
detainee, tents in Red Compound, Christmas Island IDC, 29 May
2010.
[187] For example,
interview with group of male detainees, tents in Red Compound, Christmas Island
IDC, 29 May 2010.
[188] Figures
provided by DIAC, current as of 28 May
2010.
[189] Interview with
group of male detainees, Lilac Compound, Christmas Island IDC, 29 May
2010.
[190] Interview with
community representative on Christmas Island, 31 May
2010.
[191] Figures provided by
DIAC, current as of 28 May
2010.
[192] See 2008
Immigration detention report, note 33, section 13.5; 2009 Christmas Island
report, note 5, section
12.1.
[193] 2009 Christmas
Island report, note 5, section
12.1.
[194] Information
provided by DIAC, current as of 29 June
2010.
[195] See, for example
ICCPR, note 11, art 10; Immigration Detention Guidelines,
note 126, section 1.3; Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment (1988)
(Body of Principles), principle 1, at http://www2.ohchr.org/english/law/bodyprinciples.htm (viewed 10 August 2010).
[196] See, for example ICCPR, note 11, art 7; Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (CAT), art
2(1), at http://www2.ohchr.org/english/law/cat.htm (viewed 10 August 2010); Immigration Detention Guidelines, note 126, section
17.1; Body of Principles, note 195, principle
6.
[197] See Immigration
Detention Guidelines, note 126, section
9.7.
[198] See Immigration
Detention Guidelines, note 126, section 17.7. See also International
Covenant on Economic, Social and Cultural Rights (1966) (ICESCR), art 12. At http://www2.ohchr.org/english/law/cescr.htm (viewed 10 August 2010).
[199] DIAC, Use of Red Compound, North West Point IDC (document provided by
DIAC, current as of 29 June
2010).
[200] ICCPR, note 11,
art 9.
[201] See, for example
Human Rights and Equal Opportunity Commission, Report of an inquiry into
complaints by five asylum seekers concerning their detention in the separation
and management block at the Port Hedland Immigration Reception and Processing
Centre, HREOC Report No. 24 (2002). At http://humanrights.gov.au/legal/humanrightsreports/hrc_24.html (viewed 11 August 2010).
[202] See, for example Department of Immigration and Citizenship, Immigration
detention statistics summary (30 July 2010). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 16 September
2010).
[203] See 2008
Immigration detention report, note 33, section
13.5.
[204] Figures provided by
DIAC, current as of 28 May
2010.
[205] Figures provided by
DIAC, current as of 28 May
2010.
[206] On 22 July 2010,
there were 187 people detained in the Phosphate Hill immigration detention
facility, including 118 in tents. Figures provided by
DIAC.
[207] Figures provided by
DIAC, current as of 28 May
2010.
[208] On 22 July 2010,
there were 187 detainees in the Phosphate Hill immigration detention facility,
including 118 in tents. Figures provided by
DIAC.
[209] See Immigration
Detention Guidelines, note 126, sections 9.1,
11.2.
[210] Figures provided by
DIAC, current as of 28 May 2010. The number of people detained in the
Construction Camp had decreased to 391 by the final day of the
Commission’s visit to Christmas Island (3 June 2010).
[211] See note 116.
[212] See 2008 Immigration
detention report, note 33, section
13.5.
[213] See 2009 Christmas
Island report, note 5, sections 11.3,
12.1.
[214] When the Commission
visited the Construction Camp in July 2009, there were 99 people detained there
– 25 men, 21 women, 17 accompanied children and 36 unaccompanied
children.
[215] See note 210.
[216] On 19 April 2010 there
were 429 people detained in the Construction Camp facility. Information provided
by DIAC, 3 June 2010.
[217] 76
people in Block A, and 14 people in the converted recreation
room.
[218] Interview with
group of young women, Construction Camp, 1 June 2010.
[219] See Immigration
Detention Guidelines, note 126, sections 9.1, 9.7,
11.2.
[220] See note 195.
[221] See New Directions, note 64, key immigration values 6 and
7.
[222] See, for example 2008
Immigration detention report, note 33, section 2.
[223] Contract between
Commonwealth of Australia represented by Department of Immigration and
Citizenship and Serco Australia Pty Limited, Detention Services Contract
– Immigration Detention Centres (Serco IDC Contract), Schedule 2
Statement of Work, Section 2.2.1, clause
1.1.
[224] Interview with
Afghan man, Construction Camp, 30 May
2010.
[225] Interview with
Iranian man, Christmas Island IDC, 29 May
2010.
[226] Interview with Sri
Lankan men, Christmas Island IDC, 29 May
2010.
[227] For example,
interview with large group of Afghan men, Christmas Island IDC, 29 May
2010.
[228] Interview with Sri
Lankan men, Christmas Island IDC, 29 May 2010.
[229] See ICESCR, note 198, art 12; CRC, note 11, art 24.
[230] See Immigration
Detention Guidelines, note 126, section
13.
[231] See 2008 Immigration
detention report, note 33, section 13; 2009 Christmas Island report,
note 5, section
12.5.
[232] These include DIAC, Identification and Support of People in Immigration Detention who are
Survivors of Torture and Trauma (April 2009); DIAC, Psychological Support
Program for the Prevention of Self Harm in Immigration Detention (April
2009); DIAC, Mental Health Screening for People in Immigration Detention (April 2009).
[233] See, for
example MJ Palmer, Inquiry into the Circumstances of the Immigration
Detention of Cornelia Rau (2005) (Palmer report), recommendations 6.11,
6.12, 6.13, at www.immi.gov.au/media/publications/pdf/palmer-report.pdf (viewed 10 August 2010); A Grover, note 9, para
90.
[234] Palmer report, above,
recommendation 6.11.
[235] E
Proust, Evaluation of the Palmer and Comrie Reform Agenda – including
related Ombudsman Reports (2008). At http://www.immi.gov.au/about/department/perf-progress/evaluation-report/ (viewed 10 August 2010).
[236] Joint Standing Committee on Migration, note 14, p
91.
[237] See 2009 Christmas
Island report, note 5, section
12.5.
[238] For example,
interview with group of male detainees, Christmas Island IDC, 29 May 2010.
[239] Australian Government,
Department of Immigration and Citizenship, Health Services Contract,
Schedule 2 Statement of Work, clause
24.1(g)(i).
[240] Australian
Government, Department of Immigration and Citizenship, Health Services
Contract, Schedule 2 Statement of Work, clause
17.1(d).
[241] For example,
interviews with male detainees, Christmas Island IDC, 29 May 2010.
[242] Residence Determination
Guidelines, note 93, paras 4.14,
4.15.
[243] See ICESCR, note 198, art 12; CRC, note 11, art 24.
[244] See Immigration
Detention Guidelines, note 126, section 14; Standard Minimum Rules for
the Treatment of Prisoners (1955), rule 22(1), at http://www2.ohchr.org/english/law/treatmentprisoners.htm (viewed 10 August 2010).
[245] DIAC, Mental health screening for people in immigration detention (April
2009).
[246] DIAC, Psychological Support Program for the Prevention of Self-Harm in Immigration
Detention (April 2009).
[247] See, for example A last
resort, note 1, chapter 9; GJ Coffey et al., ‘The
meaning and mental health consequences of long-term immigration detention for
people seeking asylum’ (2010) 70(12) Social Science & Medicine 2070.
[248] Interview with Sri
Lankan man, Christmas Island IDC, 29 May 2010.
[249] Interview with Arabic
speaking man, Christmas Island IDC, 29 May
2010.
[250] Interview with
group of asylum seekers, Construction Camp, 31 May
2010.
[251] Interview with
group of Sri Lankan men, Christmas Island IDC, 29 May
2010.
[252] See, for example
2008 Immigration detention report, note 33, section
8.
[253] See, for example Human
Rights and Equal Opportunity Commission, Submission to Joint Standing
Committee on Migration, note 74; A last resort, note 1.
[254] Australian Government, Department of Immigration and Citizenship, Health
Services Contract, Schedule 2 Statement of Work, clause 24.1(b)(i). Note the
one current exception to this is Northern IDC in
Darwin.
[255] Information
provided by DIAC, 29 June
2010.
[256] See Immigration
Detention Guidelines, note 126, section
14.4.
[257] DIAC, Identification and Support of People in Immigration Detention Who are
Survivors of Torture and Trauma (April 2009).
[258] Interview with group of
male detainees, Christmas Island IDC, 29 May
2010.
[259] DIAC, Identification and Support of People in Immigration Detention Who are
Survivors of Torture and Trauma (April 2009), p 3.
[260] As
above.
[261] Residence
Determination Guidelines, note 93, para
4.1.4.
[262] Figures provided
by DIAC, current as of 27 May 2010.
[263] See Immigration
Detention Guidelines, note 126, sections
2.1-2.6.
[264] See 2009
Christmas Island report, note 5, section 12.2.
[265] Serco IDC Contract, note 223, Schedule 2 Statement of Work, Section 2.2.1,
clause 2.4.2.
[266] See 2009
Christmas Island report, note 5, section 12.2.
[267] See DIAC 2009 response,
note 39,
p16.
[268] For example,
interviews with unaccompanied minors, Construction Camp, 30 May 2010.
[269] Interviews with two
groups of Sri Lankan males, Christmas Island IDC, 1 June 2010.
[270] See Immigration
Detention Guidelines, note 126, section
4.
[271] See 2008 Immigration
detention report, note 33, section 13; 2009 Christmas Island report,
note 5, sections 12.3,
12.4.
[272] See 2009 Christmas
Island report, note 5, section
12.3.
[273] See DIAC 2009
response, note 39, p 17.
[274] For example, interviews
with male detainees in Lilac Compound, Education 3 Compound and tents in Red
Compound at Christmas Island IDC, 29 May 2010; interview with group of families
at Construction Camp, 30 May
2010.
[275] See Immigration
Detention Guidelines, note 126, section 2.6.
[276] Interview with Afghan
man, Christmas Island IDC, 29 May
2010.
[277] For example,
interview with group of Afghan men, Construction Camp, 30 May 2010.
[278] See 2009 Christmas
Island report, note 5, section
12.3.
[279] See Immigration
Detention Guidelines, note 126, section
7.2.
[280] See Immigration
Detention Guidelines, note 126, section 4.6.
[281] See 2008 Immigration
detention report, note 33, section 13; 2009 Christmas Island report,
note 5, section
12.6.
[282] Serco IDC Contract,
note 223, Schedule 2 Statement of Work, Section 2.2.1,
clause 1.10.1(a)(ii).
[283] For
example, interviews with male detainees in Aqua Compound and Gold Compounds,
Christmas Island IDC, 29 May
2010.
[284] See 2009 Christmas
Island report, note 5, section
12.6.
[285] Serco informed the
Commission that the court is opened each afternoon from 2.30 to 4.30pm.
Detainees told the Commission it is locked during the day and opened from 7 to
9pm.
[286] Interviews with
detainees, Construction Camp, 30 May
2010.
[287] See Immigration
Detention Guidelines, note 126, section
6.6.
[288] See 2009 Christmas
Island report, note 5, section
12.6.
[289] See DIAC 2009
response, note 39, p 20.
[290] For example, interview
with detainees in tents in Red Compound, Christmas Island IDC, 29 May
2010.
[291] See 2009 Christmas
Island report, note 5, section
12.6.
[292] See DIAC 2009
response, note 39, p
20.
[293] Serco IDC Contract,
note 223, Schedule 2 Statement of Work, Section 2.2.1,
clause 1.10.1(v).
[294] Serco
client movement records, 12 April 2010 - 11 May 2010.
[295] Serco weekly activity
attendance records, May
2010.
[296] See ICCPR, note 11,
art 18; CRC, note 11, art 30; Immigration Detention Guidelines, note 126, section
5.
[297] See 2008 Immigration
detention report, note 33, section 13; 2009 Christmas Island report,
note 5, section
12.7.
[298] See 2009 Christmas
Island report, note 5, section
12.7.
[299] See DIAC 2009
response, note 39, p
21.
[300] See 2009 Christmas
Island report, note 5, section
12.7.
[301] For example,
interview with Sri Lankan men, Christmas Island IDC, 1 June 2010; interview with
Sri Lankan families, Construction Camp, 1 June 2010.
[302] Interview with Sri
Lankan men, Christmas Island IDC, 1 June
2010.
[303] Interviews with
male detainees in various compounds, Christmas Island IDC, 1 June
2010.
[304] Interview with Sri
Lankan male, Christmas Island IDC, 29 May
2010.
[305] For example,
interview with group of Afghan men, Christmas Island IDC, 1 June
2010.
[306] Serco client
movement records, 12 April 2010 – 11 May 2010.
[307] Interview with community
representative, Christmas Island, 31 May
2010.
[308] According to Serco
client movement records for the period 12 April 2010 – 11 May 2010, nine
individuals were taken from the Phosphate Hill immigration detention facility to
the mosque.
[309] Interviews
with Sri Lankan and Afghan people in detention, Construction Camp, 30 May 2010.
[310] Interviews with Sri
Lankan and Vietnamese people in detention, Construction Camp, 31 May
2010.
[311] Interviews with
people in detention, Construction Camp, 30 May and 1 June
2010.
[312] See, for example
2009 Christmas Island report, note 5, section 10; 2008 Immigration
detention report, note 33, section 6; Human Rights and Equal Opportunity
Commission, Submission to the Joint Standing Committee on Migration Inquiry
into Immigration Detention in Australia, note 74, para
114.
[313] See 2009 Christmas
Island report, note 5, section 10.
[314] See DIAC 2009 response,
note 39, pp
7-8.
[315] As
above.
[316] See Australian
Human Rights Commission, Submission to the Senate Legal and Constitutional
Affairs Committee Inquiry into the Migration Amendment (Immigration Detention
Reform) Bill 2009, note 65.
[317] See UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating
to the Detention of Asylum Seekers, note 77, guideline 10.
[318] See Joint Standing
Committee on Migration, note 14, p
100.
[319] See DIAC website, Accommodation at the Christmas Island Detention Centre, at http://www.immi.gov.au/managing-australias-borders/detention/facilities/locations/christmas-island/accommodation.htm (viewed 10 August 2010).
[320] These include the Australian Human Rights Commission, the Commonwealth
Ombudsman, Australian Red Cross, and the United Nations High Commissioner for
Refugees.
[321] ICCPR, note 11.
[322] ICESCR, note 198.
[323] CAT, note 196.
[324] Convention Relating to the Status of Refugees (1951) and Protocol
Relating to the Status of Refugees (1967) (Refugee Convention). At http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf (viewed 10 August 2010).
[325] CRC, note 11.
[326] ICCPR, note 11, art 9(1); CRC, note 11, art
37(b).
[327] ICCPR, note 11,
art 9(4); CRC, note 11, art
37(d).
[328] CRC, note 11,
art 37(d); Body of Principles, note 195, principle
17.
[329] ICCPR, note 11,
art 10(1); CRC, note 11, art
37(c).
[330] ICCPR, note 11,
art 7; CRC, note 11, art 37(a); CAT, note 323.
[331] CRC, note 11, art
37(b).
[332] ICCPR, note 11,
art 2(1), 26; CRC, note 11, art 2(1); ICESCR, note 198, art
2(2).
[333] Refugee Convention,
note 324, art 33(1). This obligation is also implied
in ICCPR, note 11, arts 6, 7; CAT, note 323, art 3;
CRC, note 11, arts 6,
37.
[334] Body of Principles,
note 195.
[335] Standard Minimum Rules for the Treatment of Prisoners, note 244.
[336] United Nations Rules for the Protection of Juveniles Deprived of their
Liberty, note 133.
[337] UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to
the Detention of Asylum Seekers, note 77; UNHCR, Guidelines on Policies
and Procedures in Dealing with Unaccompanied Children Seeking Asylum, note 108.
[338] Immigration Detention Guidelines, note 126.
[339] CRC, note 11, art 3(1).
[340] CRC, note 11, art 37(b).
See also United Nations Rules for the Protection of Juveniles Deprived of
their Liberty, note 133, rule 2.
[341] CRC, note 11, art 37(a),
37(c).
[342] CRC, note 11,
art 37(d).
[343] CRC, note 11,
art 22(1).
[344] CRC, note 11,
art 9(1).
[345] CRC, note 11,
art 20.
[346] CRC, note 11,
art 6(2), 39.
[347] CRC, note 11, art 2.