Risk management in immigration detention (2019)

Commissioner’s foreword

People held in immigration detention, as well as staff working in detention facilities, face genuine risks to their health, safety, security and their human rights more broadly.

International human rights law requires that the Australian Government identify these risks. The Government must then work diligently to eliminate, and in some cases mitigate, those risks.

In this report, the Australian Human Right Commission assesses how the Australian Government identifies and manages those risks. While identifying some positive practices and developments, the Commission expresses strong concern about a number of issues related to risk management.

No-one held in immigration detention has forfeited their human rights, and immigration detention must never be imposed as punishment. Australian law allows a person to be held in an immigration detention centre only for certain administrative purposes, such as to facilitate their removal from Australia when they do not have a legal right to be here.

It is therefore imperative that Australia adopts a risk management approach that protects the human rights of all people held in immigration detention.

Recent changes to the immigration detention population

The Commission has been conducting inspections of immigration detention facilities for well over two decades. Changes in law, policy and the external environment colour the human rights risks that arise in those facilities at any moment in time.

In recent years, the most marked change relates to the composition of Australia’s immigration detention population. The total number of people detained by Australia has decreased significantly in recent years, and this is to be commended.

However, the average length of immigration detention in Australia is currently close to 500 days—a period that is many orders of magnitude greater than almost any other developed country. In general, the risks to human rights increase the longer a person is held in immigration detention.

For much of the period since the mid-1990s, the majority of people in immigration detention were asylum seekers who arrived by boat. However, this has been changing significantly. In particular, there has been an increase in the number and proportion of people detained due to having their visa cancelled on character grounds (often due to their criminal history).

In turn, this has led to a significant shift in how the human rights risks that arise in immigration detention are assessed and managed.

Focus of this report and key observations

This report examines the human rights implications of current risk management practices in immigration detention. It is based on information gathered during inspections of four immigration detention facilities conducted in the latter part of 2018.

The Commission appreciates that the changing detention population has created significant risk management challenges.

However, the Commission considers that the strategies currently being used to manage these risks can limit the enjoyment of human rights, in a manner that is not necessary, reasonable and proportionate.

The Commission is especially concerned about the following issues:

• Inaccurate risk assessments may result in people in detention being subject to restrictions that are not warranted in their individual circumstances.
  
   
• The use of restraints during escort outside detention facilities has become routine, and may in some cases be disproportionate to the risk of absconding.
  
   
• Conditions in high-security accommodation compounds and single separation units are typically harsh, restrictive and prison-like.
  
   
• Restrictions relating to excursions, personal items and external visits are applied on a blanket basis, regardless of whether they are necessary in a person’s  individual circumstances.
  
   
• Australia’s system of mandatory immigration detention—combined with Ministerial guidelines that preclude the consideration of community alternatives to  detention for certain groups—continues to result in people being detained when there is no valid justification for their ongoing detention under international law.

As previously noted, immigration detention is administrative, not punitive. Any risk management practices used in this context should be the least restrictive possible and be properly tailored to individual circumstances.

The recommendations in this report are designed to assist in effectively managing genuine risks to safety and security, while also protecting the basic human rights of all people held in immigration detention.

Edward Santow

Human Rights Commissioner

May 2019

Department of Home Affairs Response