Skip to main content

Commission Website: National Inquiry into Children in Immigration Detention

Click

here to return to the Submission Index

Submission to the National

Inquiry into Children in Immigration Detention from

Australian Lawyers for Human

Rights


Part

One - Introduction

Part

Two - Public Accountability, Monitoring and Intervention

Part

Three - Ideal Practice - Recommendations for Change


PART ONE - INTRODUCTION

Australian Lawyers

for Human Rights

Australian Lawyers

for Human Rights (ALHR) is a network of Australian lawyers interested

in furthering awareness and advocacy of human rights in Australia. ALHR

promotes the practice of human rights law in Australia and works with

Australian and international human rights organisations to achieve this

aim.

Outline of this

submission

This submission is

structured in three parts:

1. a statement

of ALHR's position in relation to the immigration detention of child

asylum seekers; its interim position; and an overview of the implications

of the current system of mandatory detention of asylum seekers, including

child asylum seekers, in terms of the relevant international legal normative

framework;

2. a review of

the current standards of accountability, monitoring and intervention

in relation to immigration detention, including a critique of the operation

of Immigration Detention Centres in the context of mandatory reporting

of child abuse;

3. a proposal of

an ideal model of accountability, monitoring and intervention in relation

to immigration detention.

Terms of Reference

This submission will

address the following selected terms of reference announced by the Human

Rights and Equal Opportunity Commission (HREOC):

1. The provisions

made by Australia to implement its international human rights obligations

regarding child asylum seekers, including unaccompanied minors;

2. The mandatory

detention of child asylum seekers and other children arriving in Australia

without visas, and alternatives to their detention;

3. The adequacy

and effectiveness of the policies, agreements, laws, rules and practices

governing children in immigration detention with particular reference

to the conditions under which children are detained, guardianship issues

and security practices in detention; and

4. The additional

measures and safeguards which may be required in detention facilities

to protect the human rights and the best interests of all detained children.

Mandatory Detention

of Asylum Seekers

Currently, under

the Migration Act 1958 (Cth) (Migration Act), all persons

who arrive in Australian without proper authorisation are detained. This

captures so-called 'onshore' asylum seekers as a class of people, that

is, people who arrive in Australia without authorisation and subsequently

seek to claim refugee status.

Mandatory detention

of all asylum seekers in this fashion is in breach of Australia's international

legal obligations. We outline the reasons for this below, with reference

to the applicable international legal standards and norms.

INTERNATIONAL

NORMATIVE FRAMEWORK

There are a number

of international conventions, guidelines and commentary relevant to Australia's

treatment of children within its jurisdiction, which necessarily extends

to child asylum seekers. These include:

  • Convention

    on the Rights of the Child (1989) (CROC);

  • Convention

    relating to the Status of Refugees (1951) and the associated Protocol

    (1967) (Refugee Convention);

  • International

    Covenant on Civil and Political Rights (1966) (ICCPR);

  • United Nations

    High Commissioner for Refugees Guidelines on Detention of Asylum Seekers

    (UNHCR Guidelines);

  • United Nations

    Standard Minimum Rules for the Administration of Juvenile Justice

    (1985) (Beijing Rules);

  • United Nations

    Rules for the Protection of Juveniles Deprived of their Liberty

    (1990) (Riyad Rules;)

  • Conclusions of

    the Executive Committee of the United Nations High Commissioner for

    Refugees (ExComm).

  • United Nations

    Convention against Torture and other Cruel, Inhuman or Degrading Treatment

    or Punishment (Torture Convention).

  • International

    Covenant on Economic Social and Cultural Rights (ICESCR)

In addition to the

instruments listed, Australia is bound by customary international law

obligations relating to the treatment of children, in particular, those

obligations which relate to the 'best interests' principle (mentioned

below in more detail). These obligations are applicable at all levels

of government and are not limited to the Commonwealth.

The background papers

prepared by HREOC provide a comprehensive description of the nature of

the international legal obligations incumbent upon Australia. We outline

some key points which are relevant to our submission.

Application of

international legal principles to child asylum seekers

Under the CROC, Australia

has the obligation, when passing legislation and implementing policy,

to respect the following four key principles:

1. the best interests

of the child as the primary consideration in all actions concerning

them (Art. 3(1);

2. the right of

all children to enjoy the rights under the Convention without discrimination

(Art. 2);

3. the right to

survival and development (Art. 6); and

4. the right of

all children to participate meaningfully in all matters affecting them

(Art. 12).

Further, the CROC

provides at Article 37(b) that no child shall be deprived of his or her

liberty unlawfully or arbitrarily and that the detention of a child is

to be used only as a measure of last resort, and when it is used, only

for the shortest appropriate period of time.

The prohibition against

depriving a child of his or her liberty, which is similarly recognised

as a general prohibition at Article 9 of the ICCPR, is supported by the

Conclusion Number 44 of the ExComm, entitled Detention of Refugees

and Asylum Seekers (1986) UN Doc. A/AC.96/688 which sets out four

acceptable purposes for which asylum seekers may be detained:

(a) to verify identity;

(b) to determine

the elements on which the claim for refugee status or asylum is based;

(c) to deal with

cases where asylum seekers have destroyed their travel and/or identity

documents or have fraudulent documents with which they intend to mislead

the authorities of the state in which they intend to claim asylum;

(d) to protect

national security or public order. [1]

To detain asylum

seekers for reasons other than those listed above, or for an unjustifiable

period for whatever reason, risks detaining an asylum seeker arbitrarily

and therefore unlawfully, at international law. 'Lawfulness' of detention

is not the measure of 'arbitrariness' of detention at international law

- detention must be for a proper purpose, and proportionate,

to achieve its aim to be lawful. [2]

The special vulnerablity

of children is recognised at international law under the Riyad Rules and

the Beijing Rules, which emphasise that detention of children should be

a measure "of last resort" and, if it must occur, should be

as brief as possible. [3] The UNHCR's Guidelines on

Detention goes further when giving guidance to state parties in their

implementation of the Refugee Convention: it provides that "minors

who are asylum seekers should not be detained". Australia's current

practices of detention of asylum seekers, and in particular, child asylum

seekers, does not comply with international standards.

INADEQUACY OF

EXISTING REPORTS AND INQUIRIES

There have been a

number of inquiries into the running of Australia's IDCs [4].

While some of them have made reference to the inaccessibility of the content

of the government's contract with ACM [5], and made recommendations

for the improvement management practices within detention centres [6],

none has dealt in any detail with the issue of public accountability or

made recommendations in respect of that issue. This role would be better

played by an independent body with a mandate to inspect detention centres

on a regular basis and broad enough powers to allow them to monitor effectively.

RECOMMENDATIONS

1. That the current

system of mandatory detention of asylum seekers be dismantled.

2. That detention

of asylum seekers be restricted to circumstances in which is it is essential

and that health and security screening be expedited in cases involving

children.

3. That until mandatory

detention is discontinued the Commonwealth should look implementing

processes for regular, rigorous and independent monitoring of Australia's

detention centres.


PART TWO - PUBLIC ACCOUNTABILITY,

MONITORING & INTERVENTION

1. PUBLIC ACCOUNTABILITY

Private Management

of Australian Immigration Detention Centres

Four immigration

detention facilities (Curtin, Woomera, Maribyrnong and Villawood) are

currently managed by the firm Australasian Correctional Services Pty.

Ltd., also known as Australasian Correctional Management (ACM), pursuant

to a General Agreement with the Commonwealth dated 27 February, 1998,

and a Detention Services Contract dated 27 February, 1998. The full, unedited

version of these agreements are not publicly available due to commercial

confidentiality.

The arrangements

involving the detention of asylum seekers, many of whom are children,

raise issues involving Australia's obligations under international law,

as outlined above and, accordingly, should be subject to public scrutiny.

The arrangement for the provision of detention services by ACM to the

Commonwealth, through DIMIA, lacks transparency by virtue of commercial

confidentiality, and does not allow sufficient independent scrutiny.

In particular, the

actual contract performance measures for the General Agreement and the

Detention Services Contract are not available to the public. Clause 3.3(a)

of the Detention Services Contract states:

The Secretary

will measure the performance of the Contractor in delivering the Detention

services against the Immigration Detention Standards as measured in

Schedule (Performance Measures).

The actual assessment

indicators for the Standards are not provided because of commercial confidentiality.

However, the Standards cover the following subject matter:

  • Lawfulness of

    Detention

  • Dignity
  • Privacy
  • Social Interaction
  • Safety
  • Selection and

    Training of Personnel

Management and

Security of Detention Facility

  • Operational Orders
  • Security
  • Detainee Records
  • Reception
  • Retention of

    Detainee's Property

  • Transport of

    Detainees

  • Accommodation
  • Discipline and

    Control

  • Use of Force
  • Instruments of

    Restraint

  • Complaints Mechanism

Management of

Detainees

  • Quarantine and

    Public Health Requirements

  • Clothing and Bedding
  • Health Care Needs
  • Food
  • Personal Hygiene

Individual Care

Needs

  • Unaccompanied

    Minors

  • Infants and Young

    Children

  • Children
  • Expectant Mothers

    and Infants in Detention

  • Psychiatrically

    Disturbed

  • Religion
  • Community Contacts
  • Notification of

    Death, Illness, Transfer

  • Monitoring and

    Reporting

Several of these

issues go to the very heart of Australia's obligations under the CROC,

and the Refugee Convention. Accordingly, the actual performance measures

for these issues should be publicly available to allow assessment of the

degree to which management and operation of the Immigration detention

facilities comply with Australia's international obligations.

Record of ACM's

public accountability in Australia

In April 1997 ACM

entered into a contract with the Victorian Government for the management

and operation of the Fulham low/medium security prison, located in Gippsland.

Requests for copies of the unedited service agreements by prison advocates

were initially refused, with the Service Delivery Outcome section of the

contract claimed as commercially confidential. Access to these sections

was eventually obtained by virtue of a Freedom of Information Application

which was ultimately decided by the Victorian Civil and Administrative

Tribunal in July 1998. The full, unedited service is agreement is now

publicly available on the Victorian Government website (www.vgpb.vic.gov.au/major/fulham.htm).

Service Delivery

Outcomes previously considered commercially confidential include the following:

CORRECTIONAL

SERVICES

REQUIRED

OUTCOMES

PRISON

OPERATION (25%)

Escapes 1

Prisoner per year

Number

of incidents of self mutilation/attempted suicide as a proportion

of the average muster

2.19%

per year

Assaults

on Prisoners

(a) by other

Prisoners where an incident is recorded

(b) by staff where charges are proven

 

0.1038 per

Prisoner Year

0.000 per Prisoner

Year

Assaults

on staff or other persons where an incident is recorded

0.035

per Prisoner Year

Percentage of Prisoners testing positive for non-prescribed drug use,

as a result of random testing over time

7.9%

per year

EDUCATION

& TRAINING (12.5%)

Adult

Basic Education (for Prisoners Identified as requiring Adult Basic

Education in their individual Management Plans):

(a) Enrolment

in ABE modules and

(b) Completion/certification

achieved in ABE

(c) Enrolment

in vocational training Modules

(d) Completion/certification

achieved

2 modules per

Prisoner Year

1 module per

Prisoner Year

3 modules per

Prisoner Year

2 modules per

Prisoner Year

Vocational

Training (For Prisoners not Requiring Adult Basic Education in their

Individual Management Plans).

(a) Enrolment

in modules and

(b) Completion/certification

achieved

(A module

is defined as 40 student hours.)

5 modules per

Prisoner Year

4 modules per

Prisoner Year

PRISON

INDUSTRIES 12.5%

(a) Number

of skill areas or functions in which Prisoners are able to participate.

(b) Participation

Rate

3

85%

HEALTH

10%

(a) Percentage

of Prisoners who are medically

screened by a health professional within 24 hoursof reception

into the Prison as a proportion of all Prisoners received.

(b) Percentage of Prisoners considered a risk to themselves and

who are assessed by a psychiatric professional within 2 hours

of referral as a proportion of all Prisoners who are so referred.

(c) Complaints received regarding health issues or access to appropriate

health care which the Commissioner receives directly and/or via

the Ombudsman and proven to the Commissioner's Satisfaction to

be valid.

100%

100%

0.000 per Prisoner

Year

OTHER

PROGRAMS 5%

Substance

Abuse Programs

(a) Percentage

of Prisoners provided with the following courses programs against

the number of Prisoners who require them as set out in the Individual

Management Plans:

- substance abuse awareness

- substance abuse education

(b) Percentage

of Prisoners who successfully complete the residential drug program

as a proportion of all Prisoners who commenced the program.

 

 

100%

100%

90%

The issues raised

in the Service Delivery Outcomes are of concern in terms of transparency

of operations and their impact on key human rights issues. Real issues

of performance, however, can only be gauged by accessing the operation

manuals and contractual specifications. In Victoria, these were also subject

to commercial confidentiality.

The Victorian Auditor-General

found the service delivery outcomes, in and of themselves, to be inadequate

to encouraging a high standard of service delivery. In his Special Report

No. 60, Victoria's Prison system: Community protection and prisoner

welfare, the Auditor-General expressed concerns that the Service Delivery

Outcomes are:

  • essentially quantitative

    in nature, with little or no emphasis placed on the quality of programs

    provided or outcomes for prisoners in terms of increased skills;

  • not reflective

    of key aspects of the operators' performance - e.g. issues of rehabilitation

    are not adequately addressed;

  • focused on the

    short-term, and fail to cover matters which may not have an immediate

    impact but contribute to the good management of a prison in the longer

    term. [7]

IMPLICATIONS FOR

IMMIGRATION DETENTION CENTRES

The record of ACM

in terms of public accountability for its operation of Fulham Prison in

Victoria raises concerns for the level of accountability for the management

of the four Immigration Detention facilities under its control. The details

of the performance measures under the General Agreement and the Detention

Services Contract between ACM and the Commonwealth are not available for

public scrutiny. In addition, there is no public access to the Operation

Manuals or the monitoring reports which operationalise the performance

measures and contract specifications. It is therefore impossible for an

independent assessment of the degree to which the operations and management

of Immigration Detention Centres comply with Australia's international

obligations in relation to the protection of children deprived of their

liberty, as outlined in the United Nations Rules for the Protection of

Juveniles Deprived of their Liberty (Riyad Rules).

The Western Australian

Inspector of Custodial Services, Professor Richard Harding, has described

the Immigration Detention Centres as "an absolute disgrace in terms

of conditions and standards that are applied." [8]

He states that "….. whilst there are several factors contributing

to this, one of the most important is that there is a complete absence

of proper accountability and transparency across the whole system. Immigration

Detention Centres need an autonomous Inspectorate of the kind that now

exists in Western Australia."

Under the General

Agreement and the Detention Services Contract, DIMIA officials are on

site at all Immigration detention facilities, purporting to monitor adherence

to the Immigration Detention Standards outlined above. In Professor Harding's

view, this purported mechanism of monitoring and accountability of the

contractor is quite illusory. While conducting a nine-hour visit to Curtin

Detention Centre in June, 2001, Professor Harding made the following observations:

What soon emerged,

however, is that the DIMIA representatives and the ACM personnel see

themselves as part of a unitary team. There is absolutely no differentiation

in the day-to-day behaviour of their roles. As I walked around the facility,

I was accompanied by two representatives of ACM and two of DIMIA. In

asking questions, I found that they deferred to each other on operational

and policy matters quite indiscriminately. There was absolutely no role

differentiation apparent between them. When I probed about this, I was

informed that DIMIA was not at liberty to discuss monitoring or accountability

arrangements as these were dealt with in Canberra, and were in any case,

commercial-in-confidence. [9]

The operation and

management of Immigration Detention Centres in Australia lacks transparency

and public accountability. ALHR shares the concerns expressed by the Inspector

of Custodial Services of Western Australia, that monitoring mechanisms

put in place by DIMIA are manifestly inadequate to ensure compliance with

Australia's international obligations, and the protection of human rights

and well being for children and young people currently held in detention.

(C) MONITORING

& INTERVENTION

Confidentiality

Undertakings and Mandatory Reporting

ALHR is deeply concerned

about the obstruction of information regarding alleged incidents of child

abuse and mistreatment occurring within Australian Immigration Detention

Centres. In particular, those centres for which Australasian Correctional

Management has responsibility for administration - Curtin (WA), Maribyrnong

(Victoria), Woomera (SA) and Villawood (NSW) - give rise to particular

concerns regarding confidentiality undertakings sought by ACM from professionals

working within each of the centres.

In three of the four

states in which ACM is responsible for the administration of Immigration

Detention Centres, New South Wales, South Australia, and Victoria, State

Parliaments have enacted mandatory reporting obligations for incidents

of suspected child abuse or mistreatment for various classes of professionals.

The respective legislative arrangements in respect of reporting of child

abuse for New South Wales, South Australia, Victoria and Western Australia

are outlined below:

New South Wales

Under Section 27

of the Children and Young Persons (Care and Protection) Act 1998

(NSW), the following professionals are required to report incidents of

suspected abuse or maltreatment of children:

any person who, in

the course of his or her professional work or other paid employment delivers

health care, welfare, education, children's services, residential services,

or law enforcement, wholly or partly, to children, and a person who holds

a management position in an organisation the duties of which include direct

responsibility for, or direct supervision of, the provision of health

care, welfare, education, children's services, residential services, or

law enforcement, wholly or partly, to children.

This includes:

  • Medical practitioners;
  • Principals, deputy

    principals, teachers via their principals, school social workers and

    counsellors;

  • Police;
  • Department of

    Health workers (under their own departmental guidelines).

The following matters

are required to be reported (Section 23):

  • Suspicion on reasonable

    grounds of physical/psychological needs not being met;

  • Suspicion on

    reasonable grounds of incidents where medical care has not been provided

    when necessary;

  • Suspicion on

    reasonable grounds of physical or sexual abuse or ill-treatment;

  • Suspicion on

    reasonable grounds of situation where the child lives in a house where

    there has been domestic violence and as a result the child is at serious

    risk of physical/psychological harm;

  • Suspicion on reasonable

    grounds that a parent or other caregiver has behaved in such a way towards

    the child or young person that the child or young person has suffered

    or is at risk of suffering serious psychological harm.

Any reports of alleged

child abuse or mistreatment must be made to the NSW Department of Community

Services as soon as possible. A failure to do so is a criminal offence

and may be subject to a fine of not more than 200 penalty units (Section

27).

South Australia

Under Section 11

of the Children's Protection Act 1993 (SA), where a person to whom the

Act applies suspects on reasonable grounds that a child has been or is

being abused or neglected and the suspicion is formed in the course of

the person's work (whether paid or voluntary) or of carrying out official

duties, then the person must notify the SA Department of Human Services

of that suspicion as soon as practicable after he or she forms the suspicion.

The maximum penalty for failing to do so is $2500.

The Act applies to

the following professionals:

  • Medical practitioners,

    nurses, dentists;

  • Pharmacists;
  • Psychologists;
  • Police;
  • Probation officers;
  • Social Workers;
  • Teachers;
  • Family day care

    providers;

  • Employees of,

    or volunteers in, government departments, agencies or local government

    or non-government agencies that provide health, welfare, education,

    childcare or residential services wholly or partly for children.

Suspicion on reasonable

grounds of the matters which must be reported are (Section 6):

  • sexual abuse of

    the child;

  • physical or emotional

    abuse of the child, or neglect of the child, to the extent that

  • the child has

    suffered, or is likely to suffer, physical or psychological injury detrimental

    to the child's wellbeing; or

  • the child's physical

    or psychological development is in jeopardy.

Victoria

Under Section 64

of the Children and Young Persons Act 1989 (VIC), a person referred

to in sub-section (1C) of Section 64 who, in the course of practising

his or her profession or carrying out the duties of his or her office,

position or employment as described in that paragraph, forms the belief

on reasonable grounds that a child is in need of protection must notify

the Victorian Department of Human Services of that belief and of the reasonable

grounds for it as soon as practicable-

(a) after forming

the belief; and

after each occasion

on which he or she becomes aware of any further reasonable grounds for

the belief.

The maximum penalty

for failing to do so is $1000.

The professions referred

to are:

  • Doctors, nurses;
  • Psychologists;
  • Police;
  • Primary and secondary

    school teachers and principals;

  • Youth and welfare

    workers;

  • Probation officers

    and youth parole officers;

  • Other workers

    in related community and welfare services fields.

For the purposes

of the Act, a child is in need of protection if any of the following grounds

exist (Section 63):

(a) the child has

been abandoned by his or her parents and after reasonable inquiries:

the parents cannot

be found; and no other suitable person can be found who is willing and

able to care for the child; the child's parents are dead or incapacitated

and there is no other suitable person willing and able to care for the

child; the child has suffered, or is likely to suffer, significant harm

as a result of physical injury and the child's parents have not protected,

or are unlikely to protect, the child from harm of that type; the child

has suffered, or is likely to suffer, significant harm as a result of

sexual abuse and the child's parents have not protected, or are unlikely

to protect, the child from harm of that type; the child has suffered,

or is likely to suffer, emotional or psychological harm of such a kind

that the child's emotional or intellectual development is, or is likely

to be, significantly damaged and the child's parents have not protected,

or are unlikely to protect, the child from harm of that type; the child's

physical development or health has been, or is likely to be, significantly

harmed and the child's parents have not provided, arranged or allowed

the provision of, or are unlikely to provide, arrange or allow the provision

of, basic care or effective medical, surgical or other remedial care.

Western Australia

In Western Australia,

there are no mandatory reporting provisions for child abuse or neglect

under the Child Welfare Act 1947 (WA) or the Community Services

Act 1972 (WA). However, any person may report their concern to the

WA Department of Family and Children's Services. The WA system is based

on there being a duty of care owed by those involved in the provision

of health, welfare and police services, which provides for a moral duty

to report any concerns. Certain professionals may be subject to internal

or departmental obligations imposed by their relevant Government Department.

As well, section

31A of the Child Welfare Act 1947 (WA) provides punishment provisions

for misconduct or neglect causing a child to be in need of care and protection.

It states:

(1) Any person

who has, either by wilful misconduct or habitual neglect, or by any

wrongful or immoral act or omission caused or suffered any child to

become, or to continue to be, a child in need of care and protection,

or contributed to any child becoming, or continuing to be, a child in

need of care and protection, shall be guilty of an offence.

Penalty:

$10 000 or imprisonment for 12 months, or both.

Relevance to Immigration

Detention Centres under ACM Management

In each of NSW, Victoria

and South Australia, professionals covered by the respective legislative

instruments are regularly engaged in their professional capacity within

Immigration Detention Centres. This includes medical practitioners, nurses,

psychologists, social workers and teachers. To obtain entry into the detention

centres, these professionals are required to provide confidentiality undertakings

to ACM which effectively prevents them from disclosing to third parties

any information regarding detainees or the administration of the centre.

This is a clear conflict with the professional's obligation to report

suspected incidents of child abuse/mistreatment as outlined in the above

legislative instruments. The failure to report such incidents constitutes

a criminal offence, for which the confidentiality undertaking provided

by the professional offers no defence for the professional concerned.

ALHR is concerned

that professionals who comply with their mandatory reporting obligations

under the State legislative instruments, may be denied entry into ACM

managed facilities, on the basis of a perceived breach of their confidentiality

undertakings. By requiring confidentiality undertakings from professionals

with mandatory reporting obligations under the relevant legislation, ACM

is causing these professionals to be in breach of:

(a) section 27 of

the Children and Young Persons (Care and Protection) Act 1998 (NSW);

section 11 of the Children's Protection Act 1993 (SA); and

section 64 of the Children and Young Persons Act 1989 (VIC),

as relevant.

Under Clause 7.1

of the General Agreement between the Commonwealth of Australia and Australasian

Correctional Services Pty. Ltd, dated 27 February, 1998, the contractor

must, when delivering Services under the Service Contract, comply with

all Relevant Legislation, Policy and Procedures. ALHR submits that the

confidentiality agreements place ACM in breach of its service agreement

with the Commonwealth.

ALHR is further concerned

that ACM's confidentiality requirements puts it at odds with the spirit

and purpose of the International Covenant on Civil and Political Rights,

which provides for the right and freedom to seek, receive and impart information

and ideas of all kinds (Art 19(2)).

Accordingly, ALHR makes the following recommendations.

RECOMMENDATIONS

4. That the confidentiality

undertakings which ACM requires of professionals entering into immigration

detention facilities which it manages and operates, be assessed by HREOC

to determine whether they infringe the mandatory reporting provisions

of the Children and Young Persons (Care and Protection) Act 1998 (NSW),

the Children's Protection Act 1993 (SA), and the Children and Young Persons

Act 1989 (VIC) to the extent that such reporting provisions are necessary

to avoid breaches of human rights enshrined in State Law.

5. That HREOC investigate

whether seeking undertakings which produce these infringements, amounts

to a breach of the General Agreement and Service Contract between the

Commonwealth and Australasian Correctional Services Pty. Ltd.

6. That HREOC investigate

whether seeking such confidentiality undertakings which produce the above

mentioned infringements may expose ACM to criminal prosecution.

7. That the possibility

of initiating a private prosecution against ACM for seeking confidentiality

undertakings which undermine human rights enshrined in the Children and

Young Persons (Care and Protection) Act 1998 (NSW), the Children's Protection

Act 1993 (SA), and the Children and Young Persons Act 1989 (VIC) be investigated.

PART THREE - IDEAL PRACTICE.

RECOMMENDATIONS FOR CHANGE

INSPECTION

OF PRIVATELY RUN CORRECTIONAL FACILITIES - A USEFUL POINT OF COMPARISON

The experience of

the private prison system in Australia provides some perspective and depth

of knowledge on the issue of making private contractors accountable. For

those working in the prison sector, the issue of privatisation has been

a matter of ongoing concern, and the issue of accountability has been

a common subject for discussion and debate. [10]

In a number of jurisdictions

the problem of monitoring private correctional facilities has been dealt

with by the creation of independent watchdog type bodies. Notable among

these is the Inspector of Custodial Services in WA and in The Office of

Correctional Services in Victoria. These bodies have been established

to monitor the management of correctional facilities within their respective

states and to recommend action where standards fall below what is acceptable.

These bodies are largely responsible for developing best practice standards

and for providing guidelines for correctional facilities management.

The Inspector

of Custodial Services - WA

Western Australia

established the office of Inspector of Custodial Services in 2000. The

powers and scope are set out in the Prisons Act 1981 (WA) (Prisons

Act). The Inspector has broad powers to gain access to vehicles, prisons,

persons and documents, including documents in the possession of contractors

or subcontractors involved in prison management [11].

Importantly, the Inspector has the power to inspect prisons in Westerm

Australia at any time without having to give any notice. [12]

The Prisons Act

also provides significant penalties for hindering inspections under the

Act or for victimising people who assist the Inspector in the performance

of the Inspector's functions under the Act. [13]

Office of the

Correctional Services Commissioner - Victoria

As in Western Australia,

the Office of the Correctional Services Commissioner was created in Victoria

in response to the need for an independent monitor of private prison management.

The role of this office is to develop policy and standards and to play

an independent monitoring role to ensure the safe custody and welfare

of prisoners. The monitoring framework of the Office includes a brief

to provide detailed feedback to the providers of correctional services,

and to measure performance against best practice standards. [14]

Lack of systemic

safeguards in Immigration Detention

TheWestern Australian

Inspector of Correctional Services Professor Richard Harding has described

the condition of Australia's Immigration Detention Centres is 'almost

intolerable'. [15] Professor Harding's comments throw

into relief the nature and extent of the problems in Australia's IDCs.

In some Australian jurisdictions, a system for reviewing the ways in which

private prisons are managed, and for monitoring the treatment and wellbeing

of the prisoners within those correctional institutions, is being developed,

yet there is no equivalent systemic safeguard or ongoing formalised mechanism

for doing the same in relation to people in administrative detention.

ALHR endorses the

approach taken by Western Australia in respect of its correctional services,

and submits that such a system is necessary for the ongoing management

of IDCs, and in particular for ensuring the public accountability of ACM

in respect of the IDCs.

HREOC has a specific

role to play in relation to monitoring the agreement between the Commonwealth

Government and ACM or any other contractor taking on the management of

immigration detention facilities. HREOC should maintain a watching brief

in relation to Australia's IDCs with a view to intervening in cases with

in the detention centres where there may be breaches of human rights.

HREOC Legislative

Framework

Currently HREOC has

a broad discretion to inquire into acts or practices, examine bills or

legislation, and to report on anything which it determines as necessary

to fulfil its role of promoting human rights in Australia. [16]

The Migration

Act, however, prevents HREOC from contacting illegal non-citizens

unless they have been contracted in writing by that person. [17]

This restriction extends to contact with the Commonwealth Ombudsman. The

effect of this section of the Migration Act is that HREOC is prevented

from accessing asylum seekers who could have legitimate human rights claims

unless those individuals request HREOC's assistance.

Given that most people

do not have a sufficiently developed appreciation of the Australian legal

and administrative system to understand that they have a right to contact

the HREOC, this provision works in practice as a bar to contact with asylum

seekers. The existence of such a provision is not in the best interest

of those within detention centres in Australia, it impedes HREOC's capacity

to fulfil its proper function and by doing so it offends the United Nations

Principles relating to the status of national institutions (Paris Principles).

The Paris Principles provide minimum standards for the status and advisory

role of national human rights institutions and include the capacity of

such national institutions to hear any person or obtain any information

necessary for assessing situations falling within its competence.

RECOMMENDATIONS

8. That as soon as

practicable, the Federal Government establish an autonomous Office of

Inspector of Immigration Detention Services, with the responsibility of

reporting directly to Parliament of the state of Immigration Detention

Centres in Australia, and in particular, the level of compliance with

human rights standards. Such an Inspector should have the right of free

and unfettered access to any immigration detention facility at any time,

and take whatever equipment is deemed necessary to carry out his/her lawful

activities. The Inspector should be able to make unannounced inspections

of Immigration Detention Centres, as well as requiring the production

of any documents from DIMIA and/or the managers/operators of Immigration

Detention Centres.

9. That until the

Office of the Inspector of Immigration Detention Services is established

the following documents should be reviewed in their entirety by HREOC

to assess whether they comply with all international instruments and conventions

annexed to the Human Rights and Equal Opportunity Act 1986.

  • all service agreements

    with private companies for the provision of detention services for asylum

    seekers together with Operating Manuals or Operating Rules, prior to

    their execution

  • all current Operating

    Manuals or Operating Rules for the operation of immigration detention

    centres by private companies.

10. That this review

role be handed over to the Office of the Inspector of Immigration Detention

Services once it has been established

11. That the Migration

Act be amended to repeal S193(3) - which excludes access by HREOC to detainees

without the written request of the detainee


1.

See ExComm Conclusion Number 44, UN Doc. A/AC.96/688,

paragraph 128. Note further Note on International Protection, 15 August

1988: UN Doc. A/AC/96/713, paragraph 19 which provides that asylum seekers

who arrive without documentation because they are unable to obtain any

in their country of origin should not be detained solely for that reason.

2.

See M Bossuyt, Guide to the Travaux Preparatoires of the

International Convenant on Civil and Political Rights, Martinus Nijhoff,

Dordrecht 1987, p. 343. See also the comments of the Human Rights Committee

in A v Australia, Communication No. 560/1993; Views of the Human Rights

Committee, 30 April 1997: UN Doc. CCPR/C/59/D/560/1993.

3.

See in particular, Riyad Rules (1990), Rules 1 & 2.

4.

Some of the more recent reports include:

5.

Those who've come across the Seas: Detention of Unauthorised

Arrivals HREOC (1999);

6.

Joint Standing Committee on Foreign Affairs Defence and

Trade- Human Rights sub-committee - A report on visits to Immigration

Detention Centres - tabled 18 June 2001;

7.

The Flood Report - Inquiry into Immigration Detention Procedures in February

2001;

8.

Two reports by the Commonwealth Ombudsman in March 2001

- Report of an Own Motion Investigation in the Department of Immigration

and Multicultural Affairs Immigration Detention Centres; Report of an

Own Motion Investigation into Immigration Detainees held in State Correctional

Facilities;

9.

Joint Standing Committee on Migration produced Not the

Hilton - Immigration Detention Centres: Inspection Report in September

2001

10.

Report of an Own Motion Investigation into the Department

of Immigration and Multicultural Affairs' Immigration Detention Centres

- p 25; Flood Report - Inquiry into Immigration Detention Procedures -

February 2001 at p16

11.

Flood Report - Inquiry into Immigration Detention Procedures - February

2001 at p 39

12.

Paragraph 7.36, Victorian Office of the Auditor-General,

Special Report No. 60 - Victoria's prison system: Community Protection

and Prisoner welfare.

13.

Prof. Richard Harding, Inspector of Custodial Services of Western Australia,

Standards and Accountability in the Administration of Prisons and Immigrations

Detention Centres: A Description of the Role of the Western Australian

Inspector of Custodial Services and a Proposal for Bringing Equity and

Decency tot he Operation of Australia's Immigration Detention Centres,

A Speech to the International Corrections and Prisons Association Conference.

14.

Prof. Richard Harding, Ibid.

15.

See for example "Contracting out Community Correction : the judicial

perspective" Justice Frank Vincent, Supreme Court Victoria - Paper

presented at AIC Conference Privatisation and public policy: A Correctional

Case Study, Melbourne 16, 17 June 1997.

16.

Prisons Act 1981 (WA) s 109K (g)(ii).

17. Prisons

Act 1981 (WA) s 109J(2).

Last

Updated 10 October 2002.