HRC Report No. 12

Human Rights
and Equal Opportunity Commission

Report of an
Inquiry into a Complaint of Acts or Practices Inconsistent With or Contrary
to Human Rights in an Immigration Detention Centre

HRC Report No. 12

The report is also
available in PDF
format and Word
Format

Contents

1. Introduction

1.1 The Commission's jurisdiction

1.2 Outline of the complaint and the inquiry process

2. Process
of the inquiry

2.1 The complainants' evidence

• Common evidence
• Mr Quan's evidence
• Mr Su's evidence
  

2.2 The respondent's evidence

• segregated detention
• Mr Quan's requests
  for assistance
• Mr Su's requests
  for assistance
  

2.3 Other evidence

• Evidence provided
  by the Legal Aid Commission of Western Australia
• Evidence provided
  by other detainees at the Port Hedland IDC
• Evidence provided
  by the Centre Manager at the Port Hedland IDC

3. Issues
to be determined

3.1 Whether there is an
act or practice

3.2 Whether the act or practice is inconsistent with or contrary to
human rights

4. Findings
and recommendations

4.1 Findings

• Advice of the
  entitlement to legal advice
• Timely provision
  of legal assistance and application for refugee status
• Delays in assistance
  and arbitrary detention
• Separation
  detention

4.2 Recommendations

4.3 The respondent's reply
to the findings and recommendations.

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1.
Introduction

This report to the
Attorney-General concerns inquiries made by the Human Rights and Equal
Opportunity Commission ('the Commission') into complaints by Quan Ri Qing
and Su Yu Fei against the Commonwealth of Australia, Department of Immigration
and Multicultural Affairs ('the Department') concerning violations of
human rights under the Human Rights and Equal Opportunity Commission Act
1986 (Cth) ('the HREOC Act') which allegedly occurred during the detention
of the complainants as unauthorised arrivals at the Port Hedland Detention
Centre in 1996. The Act provides for the Human Rights Commissioner ('the
Commissioner') to perform these functions.

1.1 The Commission's jurisdiction

The Commission's
functions in relation to the investigation and conciliation of complaints
of human rights breaches against the Commonwealth of Australia and its
functions in relation to reporting on complaints with substance that have
not been resolved through the process of conciliation are outlined in
the Immigration Detention Report (1) and in the
Commission's 1998-99 Review of Immigration Detention ('the Immigration
Detention Review').(2) The human rights law and
principles relevant to this complaint are also outlined in the Immigration
Detention Report and the Immigration Detention Review.(3)

1.2 Outline of complaint and
the inquiry process

Mr Quan lodged his
complaint with the Commission on 11 April 1997, alleging that he had been
treated in a manner that constituted a breach of his human rights. He
alleged that

• he was not advised of his right to ask for legal assistance when
  he was taken into immigration custody
• his requests for legal assistance and to apply for refugee status
  were not responded to in a timely manner
• he was kept in a separated accommodation area for a period of around
  three months and was not able to make contact with the outside world
• these actions and omissions breach his human rights under the HREOC
  Act.

Mr Su lodged his
complaint with the Commission on 5 October 1996, alleging that he had
been treated in a manner that constituted a breach of his human rights
under the HREOC Act. Specifically, he alleged that

• he was not advised of his right to ask for legal assistance when
  he was taken into immigration custody
• his requests for legal assistance and to apply for refugee status
  were not responded to in a timely manner
• he was kept in a separated accommodation area for a period of around
  three months and was not able to make contact with the outside world.

Mr Quan's and Mr
Su's complaints were investigated by the Commission pursuant to section
11(1)(f) of the HREOC Act.

The Human Rights
Commissioner, Mr Chris Sidoti, carefully considered all the information
obtained through the inquiry into the complaints and through the Commission's
broader inquiry into the detention of asylum seekers which was tabled
in federal parliament in 1998 (the Immigration Detention Report). He formed
the view that these matters were not amenable to conciliation on the basis
that the matters about which Mr Quan and Mr Su complain are the result
of practices and procedures of the Department at the Port Hedland Immigration
Detention Centre ('IDC') in processing people who arrive by boat and in
handling their requests for assistance. The Department is very clear in
its view that its practices and procedures in relation to requests for
legal advice and the initial processing of people who arrive by boat without
entry documents are consistent with its obligations under the Migration
Act 1958 (Cth) ('the Migration Act').

On 2 March 1998 the
Human Rights Commissioner formed the preliminary view that the Department,
on behalf of the Commonwealth of Australia, had breached Mr Quan's and
Mr Su's human rights.

On 22 June 1998 the
Department provided its comments in relation to the Human Rights Commissioner's
preliminary findings.

On 13 August 2000,
pursuant to s.29(2) of the HREOC Act, the Commissioner forwarded to the
Department a notice of his inquiry into these complaints setting out his
findings, reasons and recommendations.

On 3 October 2000
the Department forwarded to the Commission its response regarding the
findings and recommendations of the Commission.

2.
Process of the inquiry

2.1. The complainants' evidence

Common evidence

The evidence of Mr
Quan and that of Mr Su had many common elements.

Mr Quan and Mr Su,
both nationals of the People's Republic of China of Han ethnicity, came
to Australia on the boat code named the Grevillea, which arrived in Darwin
on 15 June 1996. The boat departed from Qiao Gang, Bei Hai, China, on
11 May 1996.

Mr Quan stated that
as the boat neared Australia the people on board were very seasick and
the boat had run out of water and fuel. Another boat came alongside and
a few people came up onto the boat and they recorded people's names. He
knew that they were from the Australian government but did not know what
department. They were accompanied by an interpreter who said that they
had violated section 189 of the Migration Act.

Along with all the
other 65 people on board the Grevillea they were taken into immigration
custody and were transported from Darwin to Port Hedland by plane on 16
June 1996.

Mr Quan stated that
the centre manager met them when they arrived at the Port Hedland IDC.
The centre manager introduced the Australian Protective Service (APS)
manager and guards to them. The centre manager said, "Australia is a good
holiday spot. Welcome here for a holiday." Mr Quan stated that he could
not understand why the centre manager would consider them as coming for
a holiday. The centre manager also said that they had entered Australia
illegally.

Mr Su stated that
he arrived at Port Hedland IDC at 4.00 pm. The initial induction of the
group commenced that day. Mr Su states that at the induction the centre
manager said, "I can tell you this is the centre of holiday. After you
have a holiday, you will be sent back." He claimed that the centre manager
also said, "No one in Australia welcomes you". He states that at no point
in this initial induction process was he advised that he could ask to
see a lawyer nor was he informed that he might be able to make an application
to stay in Australia. Mr Su was interviewed by departmental officers on
17 and 19 June 1996.

When the Grevillea
detainees were transferred to Port Hedland IDC they were accommodated
in E block at the centre. It was a confined block with a small external
area, separated from other parts of the centre by high covered wire fences.
Detainees in E block have contact with each other but they are effectively
segregated from other detainees in the centre. They have little or no
access to information from outside the area in which they are confined
and very limited opportunity to make contact with anyone outside the area.

Mr Quan stated that
when he was in E block he wanted help but he did not have an opportunity
to obtain it. He could not make contact with the world outside the detention
centre. There was no telephone in E block. The television could only be
used for the video recorder. He does not know why the television was not
working. He thought it was the regulations. A lot of people wrote to the
centre manager because they wanted solicitors to help them with refugee
status but these letters were of no help. He did not write a letter at
this stage because the group in E block did not have a representative.
They did not realise that they could write to the manager to request legal
advice. He said that, if he had been able to get a lawyer at that time,
he would have asked for refugee status.

Mr Quan further stated
that in E Block there were restrictions on going outside. They could not
go freely outside E block. There was only one door in the block that went
outside and the door was always locked. Their meals were delivered to
E block and eaten there. They had breaks in the open air in the small
yard outside the block, but still within the segregated area, three times
a day and these were generally after the meals. The length of the breaks
depended on the availability of the APS. The longest time was 30 minutes.

Mr Quan was detained
in E block for three months and three days, after which time he was transferred
to H block in the main compound of the centre.

Mr Su stated that,
as E block is separated from the main part of the compound, he could not
speak to other groups of detainees in the centre. He claims that the windows
in E block were covered over so they could not see out and they were only
allowed outside the accommodation building for short breaks. He states
that he remained in E block for around a month and was then moved to J
Block, which is also a separated accommodation area. Mr Su claims that
he remained in J Block until 19 September 1996, when he was released into
the main compound. He states that while he was in these separate accommodation
areas he did not have access to a lawyer. He also claims that he did not
have access to television, radio or newspapers.

Mr Quan and Mr Su
both gave accounts of a meeting with the centre manager early in July
1996 at which the detainees sought advice and assistance with their protection
applications.

According to Mr Quan,
sometime in July 1996 the centre manager met with the people from the
Grevillea boat and read out an agreement between the Australian and Chinese
governments to the effect that any person who proves to be Vietnamese
Chinese will be sent back to China immediately. At this time another detainee
asked what would happen to the Chinese people, that is, people of Han
ethnicity. He recalled the centre manager's answer was that, after investigation,
they would also be sent back to China. This other detainee also asked
the centre manager for legal advice. The centre manager told him that
he could give him the address of legal people. After the meeting the manager
called the captain of the boat and this other detainee to his office.
The complainant did not know what was said at that meeting but the centre
manager gave them a list of legal people in Port Hedland. The other people
from his group thought that no one else had a right to this information
and to ask for legal assistance.

Mr Su claimed that
on 5 July 1996 the centre manager met with the people from the Grevillea
boat group and they were given a letter from the Department in Chinese.
This letter said that, according to an agreement between Australia and
China, all the Sino Vietnamese people on the boat would be returned to
China after their identities had been confirmed. Mr Su states that another
detainee in the Centre, Mr Yang, asked the centre manager what would happen
to the Han Chinese people and he was told that they would also be sent
back.

The accounts of Mr
Quan and Mr Su about events between 15 June and 5 July 1996 are substantially
the same. Each then deals with particular events concerning his own experiences.

Mr Quan's evidence

Mr Quan stated that
after he was moved from E block to the main compound he tried to write
a letter to the centre manager to clarify his identity and to progress
his application for refugee status. He talked with the centre manager
on 3 October 1996 about these matters. He did not receive a reply to these
requests until March 1997.

Mr Quan stated that
he would have liked to have access to legal advice but no one from his
group knew how to obtain it. He wrote a letter to the Department in October
1996 and sent this letter through a religious person. He also wrote a
letter to the Minister on the same day. He sent this letter through the
centre manager. In his letters he told the Department and the Minister
directly about his identity and requested information about the correct
legal procedure to follow to apply to become a refugee. When he gave the
centre manager his letter to the Minister, he also gave him a letter asking
for a refugee application form on the basis of his real identity and his
past experience in China. He thought that, when the Department had confirmed
his identity, they would advise him of the proper legal procedure to apply
for refugee status. He was not aware where he could get an application
form to apply to become a refugee. He had an address of a person to write
to only after he received the letter from the Department in March 1997
in response to his request of October 1996.

Mr Quan stated that
he wrote to the Department again at the beginning of March 1997 for advice
in relation to refugee status. He did not receive a response. After writing
this letter he asked the centre manager for the correct legal procedure
to follow and the address of the Legal Aid Commission of Western Australia
('the LAC'). The manager said that he would pass this request on to the
Department.

Mr Quan stated that
on 20 May 1997 he went to see the assistant centre manager and again requested
a form to fill in to make an application for refugee status, called an
application for a Protection Visa (866). The assistant manager said that
he would have to check with the centre manager. He asked Mr Quan to wait,
that he would send Mr Quan a note when he received a response from the
Department. Mr Quan says he waited until Tuesday 27 May 1997 and again
went to see the assistant manager who then gave him the application form.
The assistant manager promised him that he would send the form to the
Department immediately.

Mr Quan states that
on 29 May 1997 he received a response from the Department to his March
letter. It acknowledged his application for a protection visa and said
that he now had the correct forms to fill out.

On 30 May 1997 the
centre manager told him that Department had arranged a solicitor for him.
The centre manager also said that the solicitor would come to see him
with officers from the Department.

Mr Quan complained
that during the months it took for him to obtain a form to apply for a
protection visa he had trouble sleeping.

Mr Su's evidence

Mr Su stated that
on 6 July 1996, following the meeting with the centre manager the previous
day, he wrote a letter to the centre manager titled Application.
In this letter Mr Su

• asked what the criteria and definition of refugees were
• asked the Department to correct its views of him and regard him
  as a Chinese refugee who needed help and resettlement
• claimed that he wanted to stay in Australia and that if he was
  returned to China he would be punished by Chinese law and pursued
  and killed by the secret society
• asked if there were any "warmed hearted lawyers" who could help
  him remain in Australia and
• requested that this letter be forwarded to the Department, the
  media and solicitors to seek assistance for him.

Mr Su stated that
he did not provide all the details about his treatment in China in this
letter. He claimed he did not feel safe to do so because he had been told
that this was a holiday centre and that he would be returned to China.

Mr Su stated that
he waited for a response to this letter and did not write again. He claimed
that he met with the centre manager now and then and would ask him what
was happening with his letter. He states that the centre manager would
say that he was waiting for a response from the Department. He further
stated that the centre manager advised him that his role was only to pass
on letters to the Department. Mr Su stated that he did not know what else
he had to write to receive legal assistance, as he did not know what he
was entitled to ask for.

Mr Su claimed that
he heard nothing from the Department until September 1996 when he received
a letter which apologised for the delay in responding to him and advised
him that the centre manager would be able to assist him obtain legal advice.

On 9 September 1996
Mr Su wrote two letters to the centre manager expressing his gratitude
at being able to apply for legal aid and stating that he and his family
would cooperate with the government departments concerned to ensure that
their application for legal aid was processed smoothly.

On 15 September 1996
Mr Su wrote a letter addressed to Mr Lawyer. In this letter he stated
that

• he was glad that a lawyer has been appointed for his case
• he did not know the correct procedures to apply for legal aid
• the centre manager had advised him that he needed to ask for legal
  aid to assist with his application for refugee status
• in his letter of 6 July 1997 he had talked about making an application
  for refugee status
• he was afraid of political persecution if he was returned to China
• the centre manager, the lawyer and the Department should change
  their attitudes towards him and his family and regard them as Chinese
  refugees in need of help and resettlement.

On 17 September
1996 Mr Su met with a solicitor from the South Hedland office of the LAC.
He states that at the time he did not know that she was a solicitor, as
she did not introduce herself, and that he thought the telephone interpreter
was the solicitor. He states that, because he thought the solicitor was
someone from the centre who was just taking notes, he did not provide
her with much information about his situation and so he kept writing to
the centre manager asking for legal advice.

Mr Su stated that
on 14 October 1996 he wrote a letter to the Department titled Application
for Legal Aid. In this letter he stated that he has suffered from political
persecution from the Chinese communist regime for a long period of time
and that he feared that his life would be threatened if he were repatriated
to China. He asked for a chance to get legal aid so that he could apply
for refugee status.

Mr Su further stated
that on 21 January 1997 he wrote another letter to the Department titled
Request for completing an application form for refugee status. In this
letter he stated that he had a well founded fear of going back to his
country of origin. He also stated that he had requested an application
for refugee status and legal assistance from the Department both orally
and in writing many times and had not heard anything. He stated that because
of this he was in a constant state of anxiety and desperation.

On 23 January 1997
a LAC solicitor visited Mr Su at the Centre and assisted him in filling
out a form to apply for a protection visa.

On 19 February 1997
Mr Su received a letter from the Department which thanked him for his
letters of 14 October 1996 and 21 January 1997 in which he had asked for
legal assistance to apply for refugee status and assured him that the
necessary arrangements would be made to provide him with application assistance.

On 18 April 1997
Mr Su received a letter advising him that his application for a protection
visa had been refused.

2.2 The respondent's evidence

The Department stated
that the boat code named the Grevillea was intercepted at Charles Point
at 18.40 on 15 June 1996. A departmental officer, through an interpreter,
read a formal notice advising Mr Quan, Mr Su and the other passengers
of the Grevillea of the reasons they were taken into immigration detention
under section 189 of the Migration Act. That day or the following day
the detainees were provided with information about their rights and privileges,
which included the role of the centre and its staff and the provision
of welfare, medical and education services. Information was also provided
on the procedures for the initial immigration interviews.

The Department stated
that the Migration Act does not place an onus on immigration officials
to advise people who are unauthorised arrivals of their options. It states
that the Migration Act places the onus on the unauthorised arrival to
raise protection claims and to request legal advice. Section 193 makes
it clear that officers have no obligation to advise unauthorised arrivals
of their options. Section 256 makes it clear that all reasonable facilities
for legal advice and other assistance are to be provided to a detainee
in connection with an application for a visa or with his or her detention
but only after the detainee makes a request for assistance.(4)

Segregated detention

The Department stated
that E, I and J blocks are generally used as separation accommodation
blocks for either new arrivals or detainees who are being prepared for
removal from Australia. Newly arrived residents are separated from those
in the main compound while health, quarantine, customs and initial immigration
processing takes place. Detainees in E, I and J Blocks are free to associate
with others in those blocks but not with residents in the main compound
until health screening and initial immigration processing is completed.

Time spent in separation
detention depends on the processing of a person's immigration status and
whether claims are raised which prima facie engage Australia's protection
obligations. If these obligations have been engaged, residents are generally
moved to the main compound after the initial interviews for protection
visas are completed. If not, detainees can stay in separation accommodation
until they are removed from Australia. The average time spent in separation
detention is 33 days.

The Department advised
that E, I and J blocks provide shared sleeping accommodation in private
rooms, toilets and showers, a common room for meals and for use of a television
and video and their own grounds for exercise and activities. There may
be periods when the television is not available as it needs to be repaired.
For example, in E block damage to the wiring and antenna mast in the January
1997 cyclone meant that free to air television programs could not be received
at times.

According to the
Department E, I and J blocks have provision for telephones. It is normal
practice on arrival and during initial processing for outgoing telephone
calls to be restricted. However, this restriction does not apply to detainees
who wish to contact a lawyer and seek legal advice.(5)

Mr Quan's requests for assistance

The Department stated
that Mr Quan wrote a letter to the Minister dated 2 March 1997. When received
by the Department the letter was referred to the Translating and Interpreting
Service ('TIS') for translation. An unofficial translation by an interpreter
at the Port Hedland IDC was received by the Compliance and Detention Section
of the Department on 19 March. The official translation by TIS was received
by the Department on 21 March 1997. In this letter Mr Quan outlined his
experiences in the Chinese Navy, requested legal assistance and asked
to be granted a protection visa on humanitarian grounds.

The Department stated
that Mr Quan wrote a further letter to the Department dated 26 March 1997,
which was forwarded to TIS on 12 April 1997. The Compliance and Detention
Section received an unofficial translation of Mr Quan's letter by an interpreter
at the IDC on 1 April 1997. An official translation was received from
TIS on 9 May 1997. This letter, titled Application for Refugee Status,
stated that he was making a specific application for refugee status from
the Department and requested legal assistance.

On 29 March 1997
Mr Quan met with the centre manager and asked for contact details for
Legal Aid. He then wrote to the LAC. On 18 April 1997 he met with the
assistant centre manger about a letter he had received from the LAC. It
advised him that the centre manager could arrange for him to call the
LAC to obtain legal advice. On 21 April 1997 arrangements were made for
Mr Quan to talk with a LAC solicitor.

According to the
Department Mr Quan approached the centre manager on 19 May 1997 to seek
an application form for a protection visa. On 26 May 1997 Mr Quan lodged
a completed Part A of the protection visa application form. A registered
migration agent provided him with application assistance. A departmental
case officer interviewed Mr Quan on 8 June 1997. Mr Quan's application
was refused at the primary stage on 8 July 1997 and he subsequently requested
a review of this decision by the Refugee Review Tribunal.

The Department stated
that Mr Quan was provided with reasonable facilities pursuant to section
256 of the Migration Act following receipt and translation of his letters
of 2 March 1997 and 26 March 1997. Although there was a delay in obtaining
a translation from TIS of his letter, Mr Quan also approached the LAC
directly by letter and phone. The Department facilitated a call between
him and the LAC on 21 April 1997.

The Department further
advised that the centre management referred all questions and requests,
written or oral, relating to immigration status to the central office
of the Department in Canberra for translation and advice. The Protection
and Family Residence Branch of the Department is responsible for responding
to requests from detainees for legal assistance or information or assistance
to make an application for refugee status. Requests are responded to as
soon as possible. Requests from people in detention are given priority.
Delays may occur due to the volume of correspondence received that requires
translation into English.

According to the
Department's account Mr Quan met with management at the centre on at least
five occasions in relation to obtaining legal assistance and applying
to become a refugee.

Mr Su's requests for assistance

The Department agreed
that Mr Su wrote several letters to the Department which expressed his
desire to seek asylum.

The Department stated
that in a group letter received by the Department on 3 July 1996 the people
from the Grevillea boat, including Mr Su, jointly requested the provision
of legal assistance. Reasonable facilities to access legal assistance
were provided on 5 July 1997. Because arrangements were in place to provide
the Grevillea boat group with reasonable facilities to access legal advice,
the official translation of and formal responses to Mr Su's correspondence
were accorded a lower priority.

The Department states
that, in response to a request from Mr Su for legal advice, assistance
was provided to facilitate his contact with a lawyer. A lawyer from the
South Hedland office of the LAC visited Mr Su to assist him lodge a protection
visa application.

The Department states
that Mr Su wrote to the Department by letter dated 6 July 1996. The Compliance
and Detention Section of the Department in Canberra referred the letter
to the TIS for translation and it received the translation sometime in
July 1996. This letter was the subject of an e-mail dated 30 July 1996
between that section in Canberra and an officer at the Port Hedland IDC.
The e-mail seeks advice on any action that should be taken as a result
of this letter.

Mr Su wrote again
in a letter dated 9 September 1996 which was faxed to the Compliance and
Detention Section in Canberra on 12 September 1996 by the centre manager
at the Port Hedland IDC. On the fax cover sheet the centre manager advised
that reasonable facilities would be arranged.

An e-mail of 16
September 1996 titled Appointment with Lawyer recorded that a departmental
officer at the Port Hedland IDC met with the group from the Grevillea
including Mr Su in relation to their request for legal advice. It records
that the group was advised the Department would arrange for a telephone
call to the South Hedland office of the LAC and for the services of an
interpreter from the TIS. It states that by agreement Mr Su and Mr Zeng
Lan Sheng would speak to the LAC on behalf of the group. It notes that,
as a solicitor from the LAC was coming to the centre the next day to see
other members of the Grevillea, she would also speak to Mr Su and Mr Zeng.

An e-mail between
departmental officers on 17 September 1996 titled Request for access
to lawyers recorded that the members of the Grevillea group were being
kept in separate accommodation areas in E and J blocks for safety and
security reasons. It records that those living upstairs in J block had
all requested to speak to a lawyer and reasonable facilities would be
arranged later that day. The Department states that Mr Su was a member
of this group.

An e-mail of 18 September
1996 titled Appointment with Lawyer Legal Aid stated that the members
of the Grevillea group living upstairs in J block would move to the main
compound on 19 September 1996 and were going to see a lawyer about staying
in Australia. It stated that this matter might ultimately be re-submitted
to Canberra to consider the appointment of contract lawyers.

An e-mail dated 23
January 1997 titled Correspondence states that a solicitor from the LAC
visited Mr Su and his wife at the centre so that they could complete Part
A of the form Application for a Protection Visa (866) by a person in
detention.

2.3 Other evidence

Evidence provided by the Legal Aid Commission of Western Australia

The Commission obtained
records from the LAC which show that the first time a LAC solicitor spoke
to Mr Su was on 17 September 1996, when a LAC solicitor visited the Port
Hedland IDC.

Evidence provided by other detainees at the Port Hedland IDC

During the Commission's
visits to Port Hedland IDC since 1996 a number of detainees expressed
concern at the time it had taken for the Department to respond to their
requests to see a lawyer and to apply for refugee status. The detainees
to whom the Commission spoke stated that these delays had caused them
a great deal of distress, anxiety and uncertainty. Detainees were also
confused about what rights they had and what they had to do to make an
application to stay in Australia. They commonly thought that their requests
for assistance constituted an application for refugee status. It should
also be noted that the detainees to whom the Commission spoke, particularly
those from China, did not have a clear understanding of the role played
by lawyers in a society like Australia.

During these visits
a number of people spoke about being detained in accommodation areas separate
from the main compound. They gave very similar accounts of the conditions
that exist in E, I and J blocks.

• Evidence provided by the centre manager at the Port Hedland
  IDC

During the Commission's
visit to this Centre in May 1997 the centre manager advised that, while
letters to relatives overseas are posted during the initial period of
separation, detainees are not permitted to make telephone calls to or
correspond with people in the Australian community.

3.
Issues to be determined

One of the functions
conferred on the Commission is to inquire into any act or practice that
may be inconsistent with or contrary to human rights (section11(1)(f)
of the HREOC Act). In deciding whether the matters complained of fall
within the terms of section 11(1)(f) of the HREOC Act, I was required
to consider two main issues:

• whether there is an act or practice under the HREOC Act; and if
  so

• whether the act or practice is inconsistent with or contrary to
  any human right under the HREOC Act.

3.1 Whether there is an act
or practice

Section 3 of the
HREOC Act defines an 'act' or 'practice' as including an act or practice
done by or on behalf of the Commonwealth or an authority of the Commonwealth.

The Department is
a federal government department, under the Minister for Immigration and
Multicultural Affairs. The Migration Act 1958 (Cth) gives the Minister
authority to establish immigration detention centres and make regulations
for the operation of detention centres, including the conduct and supervision
of detainees and the powers of persons performing functions in connection
with the supervision of detainees.

The acts or practices
complained of relate to the conditions in which the complainants were
held and the treatment of the complainants in detention under the Migration
Act 1958.

I agree with the
Department that section 256 of the Migration Act does not require its
officers to advise detainees that they have a right to seek independent
legal advice when they are taken into detention. This issue was considered
by the Full Federal Court in Fang and Others v Minister for Immigration
and Ethnic Affairs and Another.(6)
Justice Nicholson for the majority confined himself to examining domestic
law and found that section 256 of the Migration Act does not place an
obligation on the Department to advise detainees of their entitlement
to seek legal assistance. Similarly, section 193(2), which relates to
legal advice in relation to visas, does not require officers to provide
detainees with this information.

However, these sections
do not prohibit the provision of this advice. They are in fact silent
on the issue. They in fact neither require nor prohibit officers advising
detainees of their right to request legal advice. The Migration Act clearly
gives the Department and its officers a discretion in relation to this
issue. Under that Act this discretion can be exercised by either advising
or not advising people in detention of their entitlement to seek independent
legal assistance. The failure to provide advice is therefore an act or
practice within the scope of the HREOC Act.

3.2 Whether the act or practice
is inconsistent with or contrary to human rights

Section 3 of the
HREOC Act defines 'human rights' as including the rights and freedoms
recognised in the ICCPR, which is Schedule 2 to the Act.

Articles 9(1) and
10(1) of the ICCPR are relevant to this complaint.

Article 9(1) of
the ICCPR states:

Everyone has the
right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are established
by law.

Article 10(1) of
the ICCPR states:

All persons deprived
of their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person.

Article 10(1) is
particularly relevant to this complaint. The provision itself establishes
a broad general standard of humaneness in detention. The content of this
standard has been developed with the assistance of the Standard Minimum
Rules for the Treatment of Prisoners (the Standard Minimum Rules) and
the Body of Principles for the Protection of all Persons under any form
of Detention (the Body of Principles). The rules and principles most relevant
to this complaint are Standard Minimum Rules 35, 36, 37, 93 and 94 and
Body of Principles numbers 1, 13, 15, 17, 18 and 33.

The Third Committee
of the General Assembly in its 1958 Report on the drafting of the ICCPR
stated that the Standard Minimum Rules should be taken into account when
interpreting and applying Article 10(l).(7) Also,
the Human Rights Committee established by the ICCPR as the most authoritative
interpreter of the ICCPR has held that compliance with the Standard Minimum
Rules and the Body of Principles is the minimum requirement for compliance
with the ICCPR's obligation that people in detention are to be treated
humanely (article 10).(8)

As a matter of international
law, the Standard Minimum Rules are not binding of themselves on Australia
and there is no specific obligation to implement them in Australia. However,
the Standard Minimum Rules do elaborate the standards which the international
community considers acceptable and are relevant to interpreting the scope
and content of the protection given to persons deprived of their liberty
in article 10 of the ICCPR.

I am satisfied that
the acts or practices complained of relate to 'human rights' under the
ICCPR and HREOC Act.

4.
Findings and recommendations

On 13 August 2000
the Human Rights Commissioner forwarded the Notice of his inquiry into
these complaints to the parties. The findings contained in that notice
are set out below.

4.1 Findings

Advice of the entitlement to legal advice

I have considered
the evidence provided by Mr Quan, Mr Su and the Department in relation
to the provision of legal advice to the complainants. The Department has
indicated that in its view both complainants were advised on 5 July 1996,
within 3 weeks of entering detention, that facilities were available for
accessing legal advice. It is clear from what transpired between that
date and the dates when Mr Quan and Mr Su finally lodged their applications
for protection visas, that they were not aware in any meaningful way of
their right to request legal assistance and so there is some doubt as
to the effectiveness of the communication to them. However, there is no
doubt that no advice was provided between 15 June 1996, when Mr Quan and
Mr Su were taken into detention, and 5 July 1996.

The Standard Minimum
Rules and the Body of Principles provide that persons in detention be
advised of their right to legal advice. Even if, as the Department argues,
those instruments are not incorporated into ICCPR Article 10.1, I consider
that the right to be advised of the availability of independent legal
advice is an essential element of the humane treatment that a person who
is deprived of liberty is entitled to receive under Article 10.1.

I find that the
Department's acts and practice in not informing Mr Quan and Mr Su of this
right between 15 June and 5 July 1996 breached their right under ICCPR
Article 10.1 and therefore their human right under the HREOC Act to be
treated humanely and in accordance with human dignity while in detention.
Although I am not satisfied that the communication on 5 July 1996 was
effectively understood by the complainants, I make no finding on this
issue in relation to the period after this date.

Timely provision of legal assistance and application for refugee
status

I note the Department's
comments that reasonable facilities to access legal advice in accordance
with section 256 of the Migration Act were offered to Mr Quan and Mr Su,
along with other Grevillea detainees, at a meeting between the centre
manager and all the Grevillea group on 5 July 1996 in response to a request
received from them on 2 July 1996. The complainants' concerns, however,
relate not to what occurred and what was offered on 5 July 1996 but to
what transpired after that.

In Mr Quan's case,
the relevant period was between October 1996 and May 1997. He first sought
assistance in letters of October 1996. In his letter of 2 March 1997 he
expressed a strong desire to seek asylum in Australia and asked for legal
assistance to help him do this. On 19 March 1997 the Compliance and Detention
Section of the Department received a translation of this letter. On 26
March 1997 Mr Quan again wrote to the Department asking to apply for refugee
status and to be provided with a form. On 1 April 1997 the Compliance
and Detention Section received a translation of this letter.

Mr Quan spoke to
a solicitor at the South Hedland LAC office on 21 April 1997, after he
had initiated contact with that office in writing. This was the first
occasion on which Mr Quan spoke to a lawyer. This contact was organised
by the assistant manager at the centre after Mr Quan showed him a letter
he had received from the LAC. This contact was a result of direct approaches
Mr Quan had made to the LAC and took place independently from the letters
he had written to the Department.

The Department responded
to Mr Quan's letters of 2 March 1997 and 26 March 1997 by providing him
with a protection visa application form on 27 May 1997 and by writing
to him on 28 May 1997. This letter thanked him for his previous correspondence
and stated that he had received the appropriate application form.

The Department provided
Mr Quan with an opportunity to apply for a protection visa seven months
after his first letter, ten weeks after he expressed a desire in very
specific terms to seek asylum and to obtain legal assistance and over
11 months after he was taken into detention. Application assistance was
also approved at this time. Mr Quan was detained throughout the period
of many months he waited for an effective response to his requests. He
suffered stress and anxiety as a result of delays in handling his requests.

In the case of Mr
Su, the relevant period was between 6 July 1996 and February 1997. He
made many requests for legal assistance:

• On 6 July 1996 he wrote a letter titled Application, which was
  received by the centre manager and forwarded to the Compliance and
  Detention Section of the Department in Canberra, expressing a strong
  desire to seek asylum in Australia and requesting legal assistance
  to help him with this.
• On 9 September 1996 he wrote two letters to the centre manager,
  expressing his gratitude that arrangements were to be made for him
  to receive legal assistance and stating that he and his family would
  cooperate with the government to ensure their application ran smoothly.
• On 15 September 1996 he wrote a letter addressed to Mr Lawyer to
  obtain legal assistance to apply for refugee status.
• On 14 October 1996 he wrote a letter titled Application for Legal
  Aid to the Department, asking for legal aid so that he could apply
  for refugee status.
• On 21 January 1997 he wrote a further letter to the Department
  titled Request for completing an application form for refugee status,
  stating that he had asked the Department for an application for refugee
  status and for legal assistance both orally and in writing many times
  and to date had not heard anything.

The Department responded
to Mr Su's requests for legal assistance on a number of occasions and
in a number of ways:

• A letter on 9 September 1996 advised him that, if he required legal
  assistance, he should speak to the centre manager who would make the
  necessary arrangements.
• Arrangements were made for him to speak with a solicitor from the
  LAC on 17 September 1996.
• On 23 January 1997 Ms Zimmerman of the LAC attended the Port Hedland
  IDC and helped Mr Su and his wife complete application forms to apply
  for protection visas.
• On 19 February 1997 the Department replied to Mr Su's letters of
  14 October 1996 and 21 January 1997 and advised him that he would
  receive assistance for his application for refugee status.

Mr Su's letters
were not responded to by the Department in a timely manner. His letter
of 6 July 1996 was not responded to until more than two months later.
His clear requests for assistance in September and October 1996 and January
1997 were not responded to by the Department until 19 February 1997.

The Department stated
in its reply to my preliminary report that "[t]he advice given on
5 July 1996 was that those wanting access to legal advice should let the
DIMA staff at the centre know and arrangements would be made to provide
a room, telephone, writing materials, interpreter and list of lawyers
from the telephone book". Mr Su sought it almost immediately but
no assistance was provided until 17 September 1996, more than two months
later. Even then Mr Su misunderstood the nature and purpose of meeting
with a solicitor on that day.

In its reply to
my preliminary report, the Department states that "protection visa
forms are also held at Port Hedland and are provided on request by the
DIMA Centre Manager". Mr Su requested one, or at least he requested
advice as to what he should do to apply for protection, from as early
as 6 July 1996. It is not clear to me what else Mr Su should have done
to indicate that he wished to apply for a protection visa in addition
to the steps which he took to obtain assistance.

I do not accept
the Department's justification for its decision to accord a lower priority
to Mr Su's letters relating to his individual situation and his desire
to seek asylum and to obtain legal assistance.

The Department states
that in my preliminary report I was assuming that the right in question
here is "an unqualified right to application assistance publicly
funded through DIMA and of a right of entry into the protection visa system
and legal procedures to determine refugee status". I agree with the
Department that there is no such right. Rather, the right in question
is a right to actual, adequate and effective access. That may require
publicly funded assistance for some people but equally it need not. The
issue in relation to Mr Quan and Mr Su is that, for whatever reason, in
spite of their repeated requests for legal advice and application assistance
they were not provided with any effective advice and assistance for several
months.

ICCPR Article 10.1
requires that a person in detention be treated in a humane manner. The
Standard Minimum Rules and the Body of Principles provide a minimum standard
for humane treatment. In particular Standard Minimum Rules 93 and 94 are
applicable to this case. The requirement that people in administrative
detention shall not be treated less favourably than untried prisoners
imposes an obligation on the Department to provide timely access to a
legal advisor for the purposes of providing general legal advice and,
where appropriate, assisting with an application for refugee status.

In Australia it is
unthinkable that an untried prisoner charged with a criminal offence would
have to wait months for legal assistance for advice and/or the preparation
of a defence. In the criminal jurisdiction normal practice is to provide
legal assistance on the same day it is requested. I am therefore satisfied
that the Department's treatment of Mr Quan's and Mr Su's requests is inconsistent
with the principles in Rules 93 and 94, as they were treated in a manner
less favourable than untried prisoners. More relevantly, the treatment
breaches ICCPR Article 10.1.

Rule 36 of the Standard
Minimum Rules and Principle 33 of the Body of Principles provide that
every request or complaint from a prisoner or detainee shall be promptly
dealt with and replied to without undue delay. The Human Rights Committee
has held that ICCPR Article 10.1 also requires prompt dealing with such
requests. It has interpreted "promptly" to the effect that delays must
not exceed a few days.(9)

In October 1996
Mr Quan wrote to the Department to request advice on applying for refugee
status. On 2 March 1997 he requested asylum in Australia and asked for
legal assistance. He did not receive legal assistance until 21 April 1997,
seven weeks later, as a direct result of approaches he had made to the
local LAC office. It was not organised by the Department in response to
the letters he wrote in October 1996 and March 1997. He was not provided
with a protection vise application form until 27 May 1997, more than seven
months after his first request and twelve weeks after his letter of 2
March 1997.

On 6 July 1996 Mr
Su indicated a wish to apply for asylum in Australia and requested legal
assistance. He did not receive legal assistance until 17 September, more
than 10 weeks later, and even then the interview was clearly unsatisfactory.
He did not receive effective legal assistance for a further three months,
until 23 January 1997. He did not receive an application form for a protection
visa until late January 1997, almost seven months after his initial request.

I accept that the
level of correspondence and the need to translate letters may mean that
it is not always possible to respond to letters within one or two days.
However, due to the fundamental rights that Mr Quan and Mr Su are seeking
to exercise and the fact that every day they wait to gain access to the
formal refugee determination process is an extra day they spend in detention,
I find that the delays experienced in their cases are unjustifiable and
inexcusable.

The Department's
handling of Mr Quan's and Mr Su's requests was not timely and thus inconsistent
with the international standards contained in the Standard Minimum Rules
and the Body of Principles. I find that the Department's handling of these
requests does not constitute humane treatment in detention and therefore
breached Mr Quan's and Mr Su's rights under article 10(1) and their rights
under the HREOC Act.

Delays in assistance and arbitrary detention

The complainants
allege that the delays in providing access to legal assistance and applications
for a protection visa prolonged their time in detention. The Department
states that Mr Quan's and Mr Su's detention was not manifestly unpredictable
or indefinite so as to be arbitrary and in breach of ICCPR Article 9.1
because the reasons for and the conditions defining the duration of the
detention are set out in domestic legislation and because during the period
of their detention the Department was actively working to finalise arrangements
for their removal from Australia.

In A v Australia
the Human Rights Committee stated that arbitrariness must not be equated
with unlawfulness but must be interpreted more broadly to include such
elements as inappropriateness and injustice.(10)
It also stated that remand in custody should be considered arbitrary if
it is not necessary in all the circumstances of the case.

In its Immigration
Detention Report, the Commission found that Australia's policy of mandatory
detention of unauthorised arrivals was arbitrary and so in breach of ICCPR
Article 9.1. That practice is required by law and so is not subject to
the Commission's complaint jurisdiction, as I have already indicated.
However, discretionary acts and practices that prolong the process of
determining an application for a protection visa are capable of being
the subject of a complaint.

Acts and practices
that delay the provision of legal advice and of application forms for
protection visas prolong detention by delaying the determination of status.
They therefore make the resultant detention arbitrary as detainees cannot
predict when they would be able to make an application for refugee status
or when their immigration status would be finally determined and they
could be released.

I find that Mr Quan's
detention from October 1996 until 27 May 1997 and Mr Su's detention from
July 1996 to February 1997 were arbitrary within the meaning of ICCPR
article 9(1) and constituted a breach of their human rights under the
HREOC Act. Over these months they were detained without appropriate justification.

Separation detention

From 16 June 1996
to 19 September 1996 Mr Quan was detained in E block at the Port Hedland
IDC and Mr Su was held in E and J blocks. These accommodation blocks are
separated by a series of internal fences from the rest of the centre.
While in separation detainees are limited in their ability to contact
the outside world through restrictions or prohibitions on using the telephone,
obtaining news and receiving correspondence. Separated detainees are not
allowed to receive visits from other people in the IDC or people outside
the centre, other than legal advisors. While in separation detention detainees
are required to eat in the common room of the accommodation block rather
than in the main dining area with other detainees in the centre.

Mr Quan and Mr Su
spent 96 days in separation accommodation. This is almost three times
the average period of time which the Department said was 33 days at that
stage.

Some of the conditions
of the separation detention at Port Hedland distinguish the practice of
segregation from the commonly held understanding of 'incommunicado detention'.
Incommunicado detention occurs when people in detention are unable to
communicate with the world outside the place of detention. A person in
detention should have access to a lawyer, family members and a doctor.
A person who is being held incommunicado does not have access to any of
these. The Human Rights Committee has found that incommunicado detention
for even brief periods will be in breach of ICCPR article 10(1). In Arzuaga
(Gilboa) v Uruguay a period of incommunicado detention of 15 days was
found to breach article 10(1).(11) The Human Rights
Committee has repeatedly taken the view that incommunicado detention does
not constitute humane conditions of detention and is in breach of article
10(1).

The Department argues
that it is incorrect to describe Mr Quan and Mr Su as being in incommunicado
detention and that rather they were held in 'separation detention'. It
points to the fact that during the initial period of isolation detainees
who arrive with friends and family members are not separated from each
other or held in solitary confinement but are accommodated together. There
is regular contact with the centre's medical and welfare staff. Detainees
are able to speak with a lawyer if they are aware of their right to ask
for legal assistance and make this request to officers of the Department.
They may also be able to write to relatives and others in their home country,
although there may also be severe restrictions on correspondence. Also,
the circumstances of their detention are open to public scrutiny.

As the Department
noted itself, however, "the conditions in separation detention may
have a cumulative effect which over an extended period of time may raise
issues of consistency with obligations under article 10.1 of the ICCPR".

I consider that many
aspects of separation detention are comparable to incommunicado detention.

• Legal assistance is difficult to obtain. Detainees first have to
  know that they have a right to legal advice before they can ask for
  it. Even if they are aware of this right, in many cases requests for
  legal assistance are not responded to in reasonable time frames.
• The period of separation is indeterminate and the reason for the
  separation is not explained clearly.
• Tight restrictions are placed on the use of the telephone and detainees
  are not permitted to make telephone calls to or correspond with people
  in the Australian community.
• Detainees do not have access to the outside world through the radio
  and newspaper and for some periods of time the television.
• Apart from legal advisors, detainees in separation detention are
  not permitted to have visits from other people inside or outside the
  centre.

The period of time
Mr Quan and Mr Su spent in separation detention was excessive and is not
justified on any grounds. No good reason has been advanced for keeping
them in the isolated accommodation area past the first fortnight in July
1996. This treatment is inconsistent with Principle 15 which provides
that communication of a detained person with the outside world, and in
particular his legal counsel and family, should not be denied for more
than a matter of days. It is also inconsistent with Rule 37 which provides
that detainees should be allowed to communicate with family and friends
through correspondence and visits. It is not humane treatment and so it
violates ICCPR article 10.1.

I find that Mr Quan
and Mr Su were held for periods exceeding 90 days in conditions which
in many respects are identical to incommunicado detention. The conditions
of their detention were in breach of Principle 15 and Rule 37 and of ICCPR
article 10.1 and therefore of human rights under the HREOC Act.

I note the Department's
advice, in its reply to my preliminary findings, of the improvements effected
to the separation detention regime and to the separation blocks at Port
Hedland. While I endorse the efforts that have been made to reduce the
periods of separation detention at Port Hedland, I consider that separation
detention should be used sparingly and in compliance with the Standard
Minimum Rules and the Body of Principles to comply with the obligation
in ICCPR article 10.1. Detainees who are in separation detention should
be informed of the reasons and the likely time-frame for their separation.

NOTICE OF FINDINGS

I find that the
Department's acts and practice in not informing Mr Quan and Mr Su of their
right to legal advice between 15 June and 5 July 1996 breached their right
under ICCPR Article 10.1 and therefore their human right under the HREOC
Act to be treated humanely and in accordance with human dignity while
in detention.

I find that the
Department's handling of Mr Quan's and Mr Su's requests for access to
legal advice and for application forms for protection visas was not timely
and so inconsistent with their humane treatment in detention and therefore
breached Mr Quan's and Mr Su's rights under ICCPR Article 10(1) and therefore
their rights under the HREOC Act.

I find that Mr Quan's
detention from October 1996 until 27 May 1997 and Mr Su's detention from
July 1996 to February 1997 were arbitrary within the meaning of ICCPR
Article 9(1) and constituted a breach of their human rights under the
HREOC Act.

I find that Mr Quan
and Mr Su were held for 96 days in separation detention in conditions
which in many respects are identical to incommunicado detention, in breach
of ICCPR Article 10.1 and therefore of human rights under the HREOC Act.

4.2 Recommendations

On 13 August 2000
the Human Rights Commissioner forwarded the Notice of his Inquiry to the
parties. The recommendations contained in that Notice are set out below:

The HREOC Act requires
that, where I conclude that an act or practice breaches a human right,
I should then make findings to that effect and such recommendations, including
where appropriate recommendations for compensation, as may be desirable
to compensate and make good, to the extent possible, the harm or damage
caused. Having found violations of human rights under the Act I now turn
to recommendations.

Australia's policy
of mandatory detention of>unlawful non-citizens' should be revised with
a view to maintaining an immigration process which is not in violation
of Australia's human rights obligations and which strives to implement
a best practice approach to compliance with the ICCPR article 10.1, the
Standard Minimum Rules and the Body of Principles(12).
To this end, I recommended in the Immigration Detention Report that sections
189 and 196 of the Migration Act 1958 (Cth), which require the detention
of almost all unauthorised arrivals regardless of their individual circumstances,
be repealed and replaced with a system requiring that all unauthorised
arrivals be assessed to gauge their suitability for release on a bridging
visa. At present only limited classes of detainees held under sections
189 and 196 may be released from detention if they satisfy the restrictive
criteria for bridging visas.(13)

I make the following
further recommendations directed to preventing further acts or practices
such as those in these complaints:

• In compliance with the ICCPR detainees should be informed promptly
  and effectively of their right to apply for a protection visa and
  to access independent legal advice and assistance.
• In compliance with the ICCPR, once a detainee has requested legal
  advice and assistance, that advice and assistance and any necessary
  interpretive services should be provided in a timely and effective
  fashion that does not delay the determination of the detainee's status
  or prolong the detention.
• Separation detention should be used sparingly for the shortest
  possible period of time and in compliance with the Standard Minimum
  Rules and the Body of Principles. Detainees who are in separate detention
  should be informed of the reasons for and the likely time-frame of
  their separation.

The HREOCA Act also
provides that I may make recommendations as to compensation to be paid
to those who are subjected to human rights violations. I have been reluctant
to make such recommendations but I am conscious of the seriousness of
the allegations and findings in these complaints. In our criminal justice
system deprivation of liberty is the most severe form of punishment for
the most serious crimes. Yet here I have found that two persons not accused
let alone convicted of a crime have been subjected to significant periods
of arbitrary detention as a result of human rights violations. Under these
circumstances I consider it appropriate that I recommend the payment of
compensation.

Compensation in
human rights cases is difficult to assess. There is no formal or informal
schedule. The level of damages awarded in discrimination cases, which
constitute by far the great majority of human rights cases decided, is
modest compared to damages in other jurisdictions such as tort. I am required
to take this into account when assessing the appropriate sums to recommend.

I also take into
account the somewhat longer period of arbitrary detention to which Mr
Su was subjected compared with Mr Quan. It is appropriate that this difference
be reflected in the amounts recommended.

Finally I indicate
that I have not attempted to fix a level of damages for each element of
human rights violation I have found. Rather, I have attempted to determine
an appropriate amount to compensate for the damage done as a whole as
a result of the violations.

Accordingly I recommend
that the Department pay Mr Su the sum of $20 000 and Mr Quan the sum of
$15 000 by way of compensation for the damages each suffered as a result
of the human rights violations to which he was subjected. I appreciate
that these sums are modest and that no financial payment can truly compensate
those unjustly deprived of their liberty and subjected to human rights
violations for prolonged periods.

NOTICE OF RECOMMENDATIONS

I make the following
recommendations directed to preventing further acts or practices such
as those in these complaints.

1. In compliance with the ICCPR detainees should be informed promptly
and effectively of their right to apply for a protection visa and
to access independent legal advice and assistance.

2. In compliance with the ICCPR, once a detainee has requested
legal advice and assistance, that advice and assistance and any necessary
interpretive services should be provided in a timely and effective
fashion that does not delay the determination of the detainee's status
or prolong the detention.

3. Separation detention should be used sparingly for the shortest
possible period of time and in compliance with the Standard Minimum
Rules and the Body of Principles. Detainees who are in separate detention
should be informed of the reasons for and the likely time-frame of
their separation.

I also recommend
that the Department pay Mr Su the sum of $20 000 and Mr Quan the sum of
$15 000 by way of compensation for the damages each suffered as a result
of the human rights violations to which he was subjected.

4.3 Respondent's reply

On 3 October 2000,
the respondent replied to the notice. Pursuant to section 29(2)(e) of
the Act I have set out their reply in full.

"DIMA disputes the Commissioner's findings that it has
breached the ICCPR in its treatment of either Mr Quan or Mr Su. The
Department therefore declines to follow the Commissioner's recommendation
to pay compensation to the two individuals. DIMA's Full response to
the Notice of findings and recommendations is at Attachment One".

Pursuant to s.29(2)(e)
of the HREOC Act, I propose to quote that response in full:

1. Detainees should be informed promptly and effectively of their
right to apply for a protection visa and to access independent legal
advice.

As the Commissioner
has noted, under section 256 of the Migration Act 1958 there is no
onus on departmental officers to advise persons in detention of their
right to obtain legal advice. The obligation to provide reasonable
facilities for obtaining legal advice only arises once an officer
has received a request. Departmental policy in this regard is based
on the clear intent of legislation passed by Parliament.(14)

The Commissioner
argues that the United Nations Human Rights Committee (HRC) has held
that compliance with the Standard Minimum Rules for the Treatment
of Prisoners (SMR) and the Body of Principles for the Protection of
all Persons under any form of Detention (BoP) represent the minimum
requirement for complying with Article 10(1) of the ICCPR.

The BoP principle
relevant to advice on the right to obtain legal advice is Principle
13. It requires information about how detainees can avail themselves
of their rights to be given to them at the commencement of detention
or promptly thereafter. Relying on the MSR and BoP, the Commissioner
states that he considers 'the right to be advised of the availability
of independent legal advice is an essential element of the humane
treatment that a person who is deprived of their liberty is entitled
to receive under Article 10(1).'

Consistent
with its legal advice and its response to the Commissioner's preliminary
findings, the Department agrees that while the SMR and BoP represent
much of the current international thinking on detention, they are
not binding instruments. The SMR and the BoP have not been incorporated
into the ICCPR.

In the Department's
view, to find a right to be advised of the availability of independent
legal advice arising from the ICCPR represents a significant extension
of the text of the Convention and goes well beyond the ordinary meaning
of its terms. This is inconsistent with the settled approach to the
interpretation of the Convention, as provided for in the Vienna Convention
on the Law of Treaties.(15)

In the circumstances
of this complaint, Mr Su and Mr Quan, together with the other members
of the Grevillea boat, were advised of the facilities available for
accessing legal advice on 5 July 1996, within 3 weeks of entering
detention. The Department believes that this action and the subsequent
actions of the Department satisfied both the requirements of the Migration
Act as well as the ICCPR.

2. Advice and
assistance should be provided in a timely and effective fashion that
does not prolong detention.

The
Department agrees with this recommendation as it applies to people
who have prima facie claims to protection (see point 3 below for elaboration).
The Department recognises that the timely provision of advice and
application assistance is in the interests of both detainees and the
Government. The speedy resolution of possible asylum claims facilitates
both the regularisation of the migration status of those unauthorised
arrivals ultimately granted protection, and the removal of those individuals
to whom Australia does not owe protection obligations.

Turning to the
circumstances of the instant complaint, the Department disputes that
the complainants had to wait months for legal assistance. As stated
in the Department's response to the Commissioner's preliminary findings,
reasonable facilities to access legal advice in accordance with section
256 of the Migration Act 1958 were offered to both men, along with
other Grevillea boat arrivals at a meeting with the Centre Manager
on 5 July 1996, within three weeks of entering detention, in response
to a request received from them on 2 July 1996.

Both complainants
were provided with assistance in applying for protection visas in
an effective manner, through the Immigration Advice and Application
Assistance Scheme (IAAAS) funded by the Department. The Commissioner
refers to SMR (Rule 36) and BoP (Principle 33) which require requests
from detainees to be dealt with promptly. He states "promptly" has
been interpreted as meaning not exceeding a few days. In the Department's
view it is implausible to rely on these provisions to argue that any
delay exceeding a few days amounts to treating detainees without humanity
and without respect for the inherent dignity of the human person.
It may amount to a breach of the SMR or the BoP but these are not
formally incorporated into the ICCPR.

While accepting
that there were administrative delays in translation of correspondence
and in providing forms to the complainants, the Department does not
consider that their consequences led to a breach of Article 10(1)
of the ICCPR.

The Department
has made continuous improvements in the provision of advice and assistance
for detainees, notwithstanding the unprecedented boat arrivals since
mid 1999.

3. Separation
detention should be used sparingly and detainees in separation should
be informed of the reasons for, and the likely time frame of, their
separation.

Separation detention
is employed in the processing of all new unauthorised boat arrivals.
Its purpose is to protect the integrity of the protection visa process
and to ensure that Australia's resources are directed at those with
genuine claims for protection not those who would use the protection
process in an attempt to achieve migration outcomes.

To recommend
that separation detention be used sparingly and that detainees be
informed of the reasons for them being held in separation detention,
demonstrates a fundamental misunderstanding of its purpose and application.
All unauthorised arrivals are actively questioned to identify any
concerns they may have about returning to their homeland. If they
raise claims that prima facie may engage our protection obligations,
they are provided, as soon as possible, with assistance to complete
a protection visa application. As soon as their protection visa interview
has been completed, they are transferred out of separation detention.

In relation to
the complaint, the Department disputes that many aspects of separation
detention experienced by Mr Su and Mr Quan are comparable to incommunicado
detention and therefore in breach ICCPR Article 10(1). 'Incommunicado
detention' has been defined by the Special Rapporteur on Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment as follows:

In incommunicado
detention the detained person is totally cut off from any contact
with the outside world. Visits by lawyers and relatives are not allowed.
Information on the conditions of detention are not available. The
detainee is not allowed to write letters or send requests to anyone
outside. (16)

The conditions
of separation detention experienced by the complainants fall far short
of incommunicado detention. The complainants were free to write to
relatives and others in their home country. Information on the conditions
of their detention was, and is, publicly available.

The Department
acknowledged in its response to the Commissioner's preliminary finding
that conditions in separation detention may have a cumulative effect,
which over an extended period of time may raise issues of consistency
with obligations under Article 10(1) of the ICCPR. However, separation
detention did not have such an effect in this case.

4. The Department
should pay compensation for the damages suffered by the complainants
as a result of the human rights violations which they suffered.

The Department
does not accept that its acts and practices are inconsistent with,
or contrary to, the complainants' human rights, or have resulted in
a breach of Articles 9(1) or 10(1) of the ICCPR in respect of the
complainants. Consequently, the Department rejects the Commissioner's
recommendation pursuant to section 29(2)(c)(i) of the Human Rights
and Equal Opportunity Act 1986 to pay compensation to the complainants.

---

Footnotes

1.
Human Rights and Equal Opportunity Commission, Those who've come across
the seas: Detention of unauthorised arrivals 1998.

2.
Section 1.8, located on the Commission's website at http://www.humanrights.gov.au/human_rights/asylum_seekers/index.html#idc_review.

3.
Chapter 3 of the Report and sections 7.2.2 and 8.7 of the Immigration
Detention Review.

4.
The Department's policies and procedures for providing detainees with
access to legal advice and the refugee determination process are outlined
in chapter 14 of the Immigration Detention Report.

5.
The conditions in the separated accommodation blocks at the Port Hedland
IDC are outlined in chapter 7 of the Immigration Detention Report and
section 7.2 of the Immigration Detention Review.

6.
(1995) 135 ALR 583.

7.
United Nations, Official Records of the General Assembly, Thirteenth Session,
Third Committee, 16 September to 8 December 1958, pages 160-173 and 227-241.

8.
Human Rights Committee General Comment No. 21 (1992), paragraph 5.

9.
General Comment No.8 Article 9 (Sixteenth session, 1982), paragraph 2,
as compiled in UN Doc. HRI/GEN/1/Rev.3 dated 15 August 1997.

10.
Communication No. 560/1993, UN doc.CCPR/C/59/D/560/1993, 30 April 1997.

11.
Communication No. 147/1983, selected decisions of the Human Rights Committee
under the Optional Protocol, UN doc. CCPR/C/OP/2, 1990 p. 176.

12.
On 28 July 2000 the 69th session of the Human Rights Committee issued
its Observations and Recommendations on Australia's periodic report under
the ICCPR [CCPR/CO/69/AUS]. Relevantly, the Committee considered that
mandatory detention under the Migration Act of 'unlawful non-citizens',
including asylum-seekers, raised questions of compliance with the Covenant.
The Committee made the following comments:

The Committee considers that the mandatory detention under the Migration
Act of "unlawful non-citizens", including asylum seekers, raises questions
of compliance with article 9, paragraph 1, of the Covenant, which provides
that no person shall be subjected to arbitrary detention. The Committee
is concerned at the State party's policy, in this context of mandatory
detention, of not informing the detainees of their right to seek legal
advice and of not allowing access of non-governmental human rights organizations
to the detainees in order to inform them of this right.

The Committee urges
the State party to reconsider its policy of mandatory detention of "unlawful
non-citizens" with a view to instituting alternative mechanisms of maintaining
an orderly immigration process. The Committee recommends that the State
party inform all detainees of their legal rights, including their right
to seek legal counsel.

13.
Bridging visas are described in the Australian Report, CCPR/C/AUS/98/3,
paras. 490-495. Regarding restrictiveness, note that only two children
out of 581 child detainees were released on a bridging visa between 1994
and 1998, as it has been held that it is more in the child's interests
to stay with his or her parents, who are usually not eligible for bridging
visas. See Immigration Detention Report, p.22.

14.
Compare with section 193(2) of the Migration Act 1958.

15.
Confirmed by the Human Rights Committee in Alberta Union v Canada Communication
11811982 actions of the Department satisfied both the requirements of
the Migration Act as well as the ICCPR.

16.
Report by the Special Rapporteur, Mr P Kooijmans, Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, E/CNA/1986115, 19 February
1986, paragraph 109.

Last
updated 24 February 2006.