Australian Human Rights Commission Submission to the Joint Select Committee on Australia’s Immigration Detention Network (2011)

Legal

Joint Select Committee on Australia’s Immigration Detention Network

Australian Human Rights Commission
Submission to the Joint Select Committee on Australia’s Immigration
Detention Network

August 2011

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1 Introduction
2 Summary
3 Recommendations

PART 1: Immigration detention law, policy and practice

4 Mandatory detention
5 Security checks
6 Indefinite detention
7 Prolonged detention
8 Prolonged and indefinite detention of asylum seekers and refugees
9 Prolonged and indefinite detention of people who are stateless
10 Prolonged and indefinite detention of people who have received adverse ASIO security assessments
11 Prolonged and indefinite detention of people whose visas have been cancelled under section 501

PART 2: The impacts of mandatory, prolonged and indefinite detention

12 The mental health impacts of prolonged and indefinite detention
13 Self-harm and suicide in immigration detention facilities
14 Critical incident response
15 People who work in immigration detention facilities

PART 3: Immigration detention facilities and services

16 Detention in remote locations
17 Immigration detention infrastructure and accommodation
18 Physical and mental health services
19 Educational opportunities
20 Meaningful activities for people in detention
21 Opportunities to leave the detention environment on external excursions
22 Communications
23 Monitoring conditions of immigration detention

PART 4: Children in immigration detention

PART 5: Community-based alternatives

1 Introduction

The Australian Human Rights Commission (the Commission) makes this
submission to the Joint Select Committee on Australia’s Immigration
Detention Network.
For more than ten years the Commission has raised significant concerns about
Australia’s mandatory immigration detention system and the conditions in
Australia’s immigration detention facilities. This submission draws on the
extensive work the Commission has undertaken regarding Australia’s
immigration detention system, including:
- national inquiries, in particular A last resort?: National Inquiry
  into Children in Immigration
  Detention^[1] and Those
  who’ve come across the seas: Detention of unauthorised
  arrivals^[2]
- examining proposed legislation and making submissions to parliamentary
  inquiries^[3]
- inspections and reports on conditions in immigration detention
  facilities^[4]
- investigating complaints from individuals in immigration
  detention^[5]
- commenting on policies and procedures relating to immigration detention at
  the request of the Department of Immigration and Citizenship
  (DIAC).
Over
the past two years, the Commission has visited immigration detention facilities
on Christmas Island and in Darwin, Leonora, Villawood, Curtin, Maribyrnong and
Inverbrackie. The Commission has published reports regarding visits to Christmas
Island, Darwin, Leonora, and Villawood. A report of the visit to Curtin IDC will
be published in September 2011. Reports can be accessed at the
Commission’s website and have also been provided to the Joint Select Committee on Australia’s
Immigration Detention Network.^[6]This
submission draws heavily on the observations that were made and concerns that
arose during these visits.
The Commission acknowledges the assistance provided by DIAC in organising
and facilitating its visits to immigration detention facilities, as well as the
positive cooperation received from DIAC and detention services provider staff
members during such visits. In making its observations of immigration detention
facilities, the Commission also acknowledges that many staff are making
significant efforts to ensure that people in detention are treated appropriately
despite difficult circumstances.

2 Summary

The terms of reference for this Inquiry are extremely
broad.^[7] In this submission the
Commission does not seek to address the terms of reference exhaustively, but
rather to outline its principal concerns regarding immigration detention law,
policy and practice, conditions of detention and the impacts of prolonged and
indefinite detention.
The key reforms that the Commission wishes to see made to Australia’s
immigration detention system are outlined in the recommendations made in this
submission. These key reforms include:
- An end to the system of mandatory, prolonged and indefinite detention,
  especially in remote locations.
- Implementation of the Australian Government’s 2008 New Directions
  in Detention policy under which immigration detention is to be used as a
  last resort and for the shortest practicable period, people are to be detained
  in the least restrictive environment appropriate to their individual
  circumstances, and there is a presumption that people will be permitted to
  reside in the community unless they pose an unacceptable risk.
- Individual assessment of whether it is necessary, reasonable and
  proportionate to hold a person in an immigration detention facility. This
  assessment should be conducted when the person is taken into immigration
  detention or as soon as possible thereafter. A person should only be held in an
  immigration detention facility if they are individually assessed as posing an
  unacceptable risk to the Australian community and that risk cannot be met in a
  less restrictive way. Otherwise, they should be permitted to reside in
  community-based alternatives while their immigration status is resolved.
- Implementation of a system of judicial oversight of the decision to hold a
  person in an immigration detention facility.
- Urgent action to ensure that that all appropriate measures are taken to
  minimise the risk of suicide and self-harm within immigration detention
  facilities.
- Full use of community detention, particularly for people who meet the
  priority criteria under the Residence Determination Guidelines. This includes
  children and accompanying family members, people who may have experienced
  torture or trauma, people with significant physical or mental health concerns
  and people whose cases will take a considerable period to substantively
  resolve.
- Durable solutions for people who are stateless; who have received adverse
  security assessments from the Australian Security Intelligence Organisation
  (ASIO); or who have had their visas cancelled under s 501 of the Migration Act 1958 (Cth) (Migration Act).
- Implementation of the outstanding recommendations of the report of the
  National Inquiry into Children in Immigration Detention, A last resort?,
  to ensure any detention of a child is truly a measure of last resort and for the
  shortest appropriate period of time.
- Appointment of an independent guardian for unaccompanied minors in
  immigration detention.
- Legislation establishing minimum standards for conditions of immigration
  detention and the treatment of people in immigration detention.
- Ratification of the Optional Protocol to the Convention against
  Torture.
Australia’s mandatory detention system has led to prolonged and, in
some cases, indefinite immigration detention in breach of Australia’s
international obligations, including the obligation to ensure that no one is
arbitrarily detained.^[8] It has also
led to breaches of children’s rights, including the right to be detained
only as a matter of last resort and for the shortest appropriate period of
time.^[9]
The Commission does not claim that no one should be held in immigration
detention. Rather, the Commission has long argued that, instead of requiring the
mandatory detention of broad groups of people, a person should only be detained
if it is shown to be necessary in their individual case. Further, time limits
for detention and access to judicial oversight of detention should be introduced
to ensure that if a person is detained, they are not detained for any longer
than is necessary. These basic protections are both common sense and required of
the Australian Government under its international obligations.
The Commission recognises that use of immigration detention may be
legitimate for a strictly limited period of time. However, the need to detain
should be assessed on a case-by-case basis taking into consideration individual
circumstances. A person should only be held in an immigration detention facility
if they are individually assessed as posing an unacceptable risk to the
Australian community and that risk cannot be met in a less restrictive way.
Otherwise they should be permitted to reside in community-based alternatives
while their immigration status is resolved – if necessary, with
appropriate conditions imposed to manage any identified risk.
The Commission has serious concerns about the long periods of time for which
many people are held in immigration detention and the impact of prolonged
detention on mental health. In particular, the Commission is concerned about
delays in processing claims for asylum and about delays in the finalisation of
ASIO security assessments, both of which lead to the prolonged detention of
asylum seekers and refugees. The Commission is also concerned about the
prolonged and indefinite detention of long term residents whose visas have been
cancelled under s 501 of the Migration Act, of people who have received
adverse security assessments and of people who are found not to be owed
protection but who are stateless or who otherwise cannot be returned to their
country of origin or transferred to a third country.
The Commission has ongoing concerns about the conditions of immigration
detention. The Commission’s main concerns include the impacts of detention
in remote locations, overcrowding, inadequate health and mental health services
in some facilities, and inadequate provision of education, activities and
excursions in some facilities.
Conditions in immigration detention should meet international human rights
standards. The private provider of detention services is contractually obliged
to provide a minimum standard of services, and there is some external scrutiny
of services, including by the Commission. However, the Commission is concerned
that these mechanisms are inadequate to safeguard the treatment of people in
detention.
The Commission acknowledges that a significant number of people have been
released from detention over the past six months. This is the result of the
progressive placement of significant numbers of families and unaccompanied
minors into community detention since late 2010, and of the introduction in
early 2011 of new security indicator triage method for managing security
assessments.
The Commission urges the expansion of the community detention program so
that all families and unaccompanied minors as well as other vulnerable
individuals are placed into community detention. The Commission also urges the
Australian Government to consider all possible community-based alternatives to
immigration detention, including the use of bridging visas.

3 Recommendations

Recommendation 1: The Australian Government should end the current
system of mandatory and indefinite immigration detention.

The Australian Government should implement reforms it announced in 2008 under
which immigration detention is to be used as a last resort and for the shortest
practicable period, people are to be detained in the least restrictive
environment appropriate to their individual circumstances, and there is a
presumption that people will be permitted to reside in the community unless they
pose an unacceptable risk.

The need to detain should be assessed on a case-by-case basis taking into
consideration individual circumstances. A person should only be held in an
immigration detention facility if they are individually assessed as posing an
unacceptable risk to the Australian community and that risk cannot be met in a
less restrictive way. Otherwise, they should be permitted to reside in
community-based alternatives while their immigration status is resolved.

Recommendation 2: The Australian Government should avoid the prolonged
detention of asylum seekers by complying with its New Directions in Detention
policy under which detention of asylum seekers is for the purpose of conducting
health identity and security checks. The security check for the purpose of
release from detention should be a summary assessment of whether an individual
would pose an unacceptable risk to the Australian community. The assessment
should be made when the individual is taken into immigration detention, or as
soon as possible thereafter.

Recommendation 3: The Australian Government should comply with its
international human rights obligations by providing for a decision to detain a
person, or a decision to continue a person’s detention, to be subject to
prompt review by a court. To comply with article 9(4) of the International
Covenant on Civil and Political Rights, the court must have the power to
order the person’s release if their detention is not lawful. The
lawfulness of their detention is not limited to domestic legality – it
includes whether the detention is compatible with the requirements of article
9(1) of the International Covenant on Civil and Political Rights, which
affirms the right to liberty and prohibits arbitrary detention.

Recommendation 4: The Australian Government should ensure that durable
solutions are provided for individuals who have failed in their applications for
asylum and who cannot be returned to their country of origin or habitual
residence, including for people who are stateless. People in this situation
should not be subject to prolonged or indefinite detention; they should be
removed from immigration detention facilities as soon as possible.

Recommendation 5: The Australian Government should ensure that
durable solutions are provided for individuals who have received adverse
security assessments from the Australian Security Intelligence Organisation, and
that they are removed from immigration detention facilities as soon as
possible.

Recommendation 6: People whose visas have been cancelled under
s 501 should only be held in an immigration detention facility if they have
been individually assessed as posing an unacceptable risk to the Australian
community and that risk cannot be managed in a less restrictive way. Alternative
placement options should be considered for such people, including less
restrictive places of detention than immigration detention centres, and
community detention with imposition of conditions necessary to mitigate any
identified risks. Consideration of appropriate alternatives should begin as soon
as DIAC becomes aware that an individual is likely to have their visa cancelled
and be taken into immigration detention.

Recommendation 7: In relation to self-harm and suicide, DIAC
should:

Consult with organisations that specialise in suicide prevention, as well as
mental health professionals including members of the Detention Health Advisory
Group, for advice about measures that should be taken to mitigate the risk of
further suicides across the detention network and implement these measures as a
matter of urgency.
Ensure that safety audits are conducted at all facilities in the detention
network, and that all appropriate measures are taken to minimise the risk of
suicide and self-harm.
Ensure that there is a clear written policy in place at each detention
facility setting out the procedures for responding to threats of self-harm and
suicide and ensure that all relevant staff are provided with training on the
policy and procedures.
Ensure that all relevant staff have adequate Psychological Support Program
training.

Recommendation 8: DIAC should ensure that a full
critical incident review is conducted as soon as possible after a critical
incident occurs within an immigration detention facility, that Memoranda of
Understanding are agreed with state police and emergency services as soon as
possible and that all relevant staff working in immigration detention facilities
receive adequate training in critical incident response.

Recommendation 9: People should not be held in immigration detention
in remote locations. If people must be held in immigration detention facilities,
they should be located in or near metropolitan areas.

Recommendation 10: The Australian Government should implement all of
the recommendations made regarding immigration detention infrastructure and
accommodation in Commission reports from 2008 onwards. The most significant of
these recommendations are repeated below.

Recommendation 11: The Australian Government should stop using
Christmas Island as a place in which to hold people in immigration
detention.

Recommendation 12: The redevelopment of Villawood Immigration
Detention Centre should be undertaken as soon as possible. It should include the
demolition of Blaxland compound, ensure that people are detained in the least
restrictive form of detention possible, and address the infrastructure concerns
raised by the Commission in its 2008 Immigration detention report.

Recommendation 13: If people must be held in immigration detention
facilities, they should be held in less restrictive facilities such as
Immigration Residential Housing complexes rather than high-security immigration
detention centres, wherever possible.

Recommendation 14: An independent body should be charged with the
function of monitoring the provision of health and mental health services in
immigration detention. The Australian Government should ensure that adequate
resources are allocated to that body to fulfil this function.

Recommendation 15: In relation to the provision of physical and mental
health services, DIAC should:

Ensure that all people in immigration detention are provided with timely
access to appropriate health and mental health services, including dental care
and specialist care as required.
Conduct a review of the IHMS staffing levels in all immigration detention
facilities, and ensure as a matter of priority that there is a sufficient number
of staff in each facility to meet the needs of the number of people in detention
there.
Overhaul the clinical governance framework for the delivery of mental health
services across the detention network. This would involve a consultant
psychiatrist overseeing mental health service delivery, providing onsite
clinical supervision of staff and accepting clinical responsibility for the
provision of clinical care.
Ensure that active outreach work is conducted by IHMS mental health staff in
the accommodation compounds of all immigration detention
facilities.

Recommendation 16: DIAC should ensure that all
people in detention who are survivors of torture and trauma have adequate access
to specialist counselling services.

Recommendation 17: DIAC should ensure that its policy, Identification and Support of People in Immigration Detention who are
Survivors of Torture and Trauma, is implemented across the immigration
detention network. Under this policy, the continued detention of survivors of
torture and trauma in an immigration detention centre is to occur only as a last
resort where risk to the Australian community in considered unacceptable.

Recommendation 18: Children of all ages should be permitted to attend
school or participate in other appropriate educational programs outside the
detention environment.

Recommendation 19: All people in immigration detention should be
provided with access to a range of educational activities, including English
language classes, conducted on a regular and frequent basis.

Recommendation 20: DIAC should ensure that all people in immigration
detention have access to:

adequate outdoor recreation spaces including grassy and shaded areas
adequate indoor areas for recreational activities
a range of recreational activities conducted on a regular and frequent
basis
a freely accessible library area stocked with reading materials in languages
spoken by people in detention
opportunities to attend religious services in the community, should they
wish to do so.

Recommendation 21: DIAC should ensure that
people in immigration detention are provided with regular opportunities to leave
the detention environment on external excursions. DIAC should implement
consistent standards for external excursions across the detention network.
Standards for the conduct of a minimum number of external excursions should be
specified in the Serco contracts applicable to all detention facilities, and
financial penalties should be applied if those standards are not met.

Recommendation 22: DIAC should ensure that all people in immigration
detention have adequate access to communication facilities including internet
facilities and telephones.

Recommendation 23: Legislation should be enacted to set out minimum
standards for conditions and treatment of detainees in all of Australia’s
immigration detention facilities, including those located in excised offshore
places. The minimum standards should be based on relevant international human
rights standards, should be enforceable and should make provision for effective
remedies.

Recommendation 24: The Australian Government should ratify the Optional Protocol to the Convention against Torture and establish an
independent and adequately resourced National Preventive Mechanism to conduct
regular inspections of all places of detention. This should include all
immigration detention facilities, including those located in excised offshore
places.

Recommendation 25: The Australian Government should implement the
outstanding recommendations of the report of the National Inquiry into Children
in Immigration Detention, A last resort?. These include that
Australia’s immigration detention laws should be amended, as a matter of
urgency, to comply with the Convention on the Rights of the Child. In
particular, the new laws should incorporate the following minimum features:

There should be a presumption against the detention of children for
immigration purposes.
A court or independent tribunal should assess whether there is a need to
detain children for immigration purposes within 72 hours of any initial
detention (for example, for the purposes of health, identity or security
checks).
There should be prompt and periodic review by a court of the legality of
continuing detention of children for immigration purposes.
All courts and independent tribunals should be guided by the following
principles:
- detention of children must be a measure of last resort and for the
  shortest appropriate period of time
- the best interests of children must be a primary consideration
- the preservation of family unity
- special protection and assistance for unaccompanied
  children.

Recommendation 26: The Australian
Government should, as a matter of priority, implement the recommendations made
by the Commission in A last resort? that:

Australia’s laws should be amended so that the Minister for
Immigration and Citizenship is no longer the legal guardian of unaccompanied
minors in immigration detention.
An independent guardian should be appointed for unaccompanied minors in
immigration detention.

Recommendation 27: In the absence of
an independent guardian, DIAC officers and staff members of detention service
providers in each immigration detention location should be provided with a clear
written protocol setting out which DIAC officer has been delegated the
Minister’s powers of legal guardianship of unaccompanied minors in that
location, and how and when that guardian should be consulted.

Recommendation 28: DIAC should pursue the adoption of Memoranda of
Understanding with state and territory child welfare authorities regarding
responsibilities for the welfare and protection of children in immigration
detention.

Recommendation 29: DIAC should ensure that all relevant DIAC officers
and staff members of detention service providers are provided with a localised
protocol setting out the requirements, procedures and contact details for making
child welfare and protection notifications in relation to concerns that arise in
respect of children in immigration detention in the location in which they
work.

Recommendation 30: DIAC and the Minister for Immigration and
Citizenship should make greater use of community-based alternatives to holding
people in immigration detention facilities for prolonged and indefinite periods.
This should include alternatives to detention such as bridging visas, and
alternative forms of detention such as community detention.

Recommendation 31: DIAC and the Minister for Immigration and
Citizenship should make full use of community detention, particularly for people
who meet the priority criteria under the Residence Determination Guidelines.
This includes children and accompanying family members, people who may have
experienced torture or trauma, people with significant physical or mental health
concerns and people whose cases will take a considerable period to substantively
resolve.

PART 1: Immigration detention law, policy and practice

The terms of reference for this Inquiry largely concern the conditions of
detention and the impact of those conditions on people in detention. Prior to an
examination of the conditions of detention, it is important to consider how
current immigration detention law, policy and practice lead to people being held
in immigration detention for prolonged and sometimes indefinite periods of time.
Australia has one of the strictest immigration detention systems in the
world – it is mandatory, it is not time limited, and people are not able
to challenge the need for their detention in a court. The Commission has for
many years called for an end to this system because it leads to breaches of
Australia’s human rights obligations.

4 Mandatory
detention

It is mandatory under the Migration Act for any non-citizen in Australia
without a valid visa to be detained, regardless of his or her individual
circumstances.^[10] The Migration Act
provides that the detention of an ‘unlawful non-citizen’ who has
arrived at an ‘excised offshore place’ is discretionary, but current
Australian Government policy is that all such people are
detained.^[11] Once detained,
unlawful non-citizens must be kept in detention until they are removed from
Australia or granted a
visa.^[12]
While there are some mechanisms in place to grant people bridging visas and
release them into the community, or to place people into alternative forms of
detention,^[13] in practice the
majority of unlawful non-citizens are detained in secure immigration detention
facilities. Of the 6403 people in immigration detention at 30 June 2011, 5327 or
83% of these people were being held in secure immigration detention
facilities.^[14]
The Commission has raised concerns over many years that the system of
mandatory detention leads to breaches of Australia’s international human
rights obligations. For instance, Australia has binding obligations under
article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) and article 37(b) of the Convention on the Rights of the
Child (CRC) to ensure that no one is subjected to arbitrary
detention.^[15] The prohibition on
arbitrary detention includes detention which, while it may be lawful, is unjust
or unreasonable. The United Nations Human Rights Committee has stated that to
avoid being arbitrary, detention must be a proportionate means to achieve a
legitimate aim. In determining whether detention is proportionate to a
particular aim, consideration must be had to the availably of alternative means
for achieving that end which are less restrictive of a person’s
rights.^[16] The United Nations
Working Group on Arbitrary Detention has confirmed that this principle of
proportionality requires detention to be used only as a last
resort.^[17]
The Commission has also repeatedly raised concerns about the significant
human impact of mandatory immigration detention. During visits by the Commission
to immigration detention facilities, people have told the Commission of their
experiences of detention, making comments such as the
following:

There is no place for us in Afghanistan – people
are trying to kill us. In Pakistan, there are targeting killings and bombs. Here
the situation is like this. It seems like there is no place on earth for us
where we can live
peacefully.^[18]

First we were victims of Taliban, then of the Indonesian people smugglers
and now we come here and we are a victim of this
system.^[19]

We felt overjoyed when we were intercepted by the navy, because we thought
that the persecution and discrimination would end
then.^[20]
The Commission’s concerns about Australia’s system of mandatory
detention are shared internationally. A number of United Nations bodies have
criticised mandatory immigration detention in Australia, including the United
Nations High Commissioner for Refugees (UNHCR); the United Nations Human Rights
Committee; the United Nations Committee on Economic, Social and Cultural Rights;
the United Nations Committee on the Rights of the Child; the United Nations
Human Rights Council’s Working Group on the Universal Periodic Review; the
United Nations Human Rights Council’s Working Group on
Arbitrary Detention and the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental
health.^[21]
On 29 July 2008, the then Minister for Immigration and Citizenship, Senator
Chris Evans, announced the New Directions in Detention policy (the New
Directions policy).^[22] Minister Evans declared that the New Directions policy would
‘fundamentally change the premise underlying detention
policy’;^[23] that is, it would
reverse the presumption regarding detention by requiring DIAC to justify a
decision to place someone in immigration detention.
Under the New Directions policy, the Australian Government was to be guided
by a set of seven immigration detention values:
1. Mandatory detention is an essential component of strong border control.
2. To support the integrity of Australia’s immigration program, three
  groups will be subject to mandatory detention:
  - all unauthorised arrivals, for management of health, identity and security
    risks to the community
  - unlawful non-citizens who present unacceptable risks to the community
    and
  - unlawful non-citizens who have repeatedly refused to comply with their visa
    conditions.
3. Children, including juvenile foreign fishers and, where possible, their
  families, will not be detained in an immigration detention centre.
4. Detention that is indefinite or otherwise arbitrary is not acceptable and
  the length and conditions of detention, including the appropriateness of both
  the accommodation and the services provided, would be subject to regular
  review.
5. Detention in immigration detention centres is only to be used as a last
  resort and for the shortest practicable time.
6. People in detention will be treated fairly and reasonably within the
  law.
7. Conditions of detention will ensure the inherent dignity of the human
  person.
Under the New Directions policy, immigration detention is meant to be used
as a last resort, only for limited, specified purposes and for the shortest
practicable period; people are meant to be detained in the least restrictive
environment appropriate to their individual circumstances; and there is meant to
be a presumption that people will be permitted to reside in the community unless
they pose an unacceptable risk.
The Commission has long been concerned that the New Directions policy is not
being implemented in practice for asylum seekers, particularly those who arrive
by boat. Rather, most asylum seekers are held in detention facilities for the
duration of processing of their refugee claims. The Commission has more recently
become concerned that the Australian Government appears to have abandoned this
key aspect of the New Directions policy. The current position appears to be that
asylum seekers who have arrived by boat will remain in immigration detention
throughout processing of their refugee claims, including during judicial review
should they pursue that avenue.^[24] The Commission is concerned that this contradicts the intention of the New
Directions policy. It wrongly conflates the period of a person’s detention
with the resolution of their immigration status, instead of detaining a person
on the basis of the risk that they pose to the Australian community.
Detention is not being used only as a last resort and for the shortest
practicable time. Very high numbers of people continue to be held in detention
facilities across Australia, some of them for prolonged
periods;^[25] reviews of immigration
detention are not occurring regularly across the immigration detention
network;^[26] and conditions in some
detention facilities remain inconsistent with the inherent dignity of the people
detained within them.^[27]
The Commission recognises that detention may be legitimate for a strictly
limited period of time. However, the need to detain a person should be assessed
on a case-by-case basis taking into consideration their individual
circumstances.
To avoid detention being arbitrary, there should be an individual assessment
of the necessity of detention for each person, as soon as possible after a
person is taken into detention. A person should only be held in an immigration
detention facility if they are individually assessed as posing an unacceptable
risk to the Australian community and that risk cannot be managed in a less
restrictive way. Otherwise, they should be permitted to reside in
community-based alternatives while their immigration status is resolved –
if necessary, with appropriate conditions imposed to mitigate any identified
risks. Australia’s system of mandatory detention of all unlawful
non-citizens is fundamentally inconsistent with this
approach.

Recommendation 1: The Australian Government should
end the current system of mandatory and indefinite immigration detention.

5 Security
checks

According to the New Directions policy, detention of unauthorised arrivals
is for the purpose of conducting ‘health, identity and security
checks’. Once those checks have been successfully completed,
‘continued detention while immigration status is resolved is
unwarranted’. Thereafter, the presumption is that an individual will be
permitted to reside in the community unless he or she poses an unacceptable
risk.^[28]
In the Commission’s view, the ‘security check’ under the
New Directions policy should not be interpreted as requiring a full ASIO
security assessment prior to a person being released from an immigration
detention facility. In the Commission’s understanding, this is not
required under the Migration Act, the Migration Regulations 1994 (Cth) or
the Australian Security Intelligence Organisation Act 1979 (Cth).
The ‘security check’ should instead consist of a summary
assessment of whether there is reason to believe that an individual would pose
an unacceptable risk to the Australian community if they were given authority to
live in the community. That assessment should be made when the individual is
taken into immigration detention, or as soon as possible thereafter. A person
should only be held in an immigration detention facility if they are
individually assessed as posing an unacceptable risk to the Australian community
and that risk cannot be met in a less restrictive way. Otherwise, they should be
permitted to reside in community-based alternatives while their immigration
status is resolved. A full ASIO security assessment, if deemed necessary, prior
to the grant of a visa could be conducted while the person was residing in the
community.
For over a year, the Commission has held serious concerns about the
significant delays in the finalisation of ASIO security assessments, which have
led to prolonged detention for many asylum seekers and refugees. The Commission
welcomed the announcement in March of a new security indicator triage method
developed by ASIO. Under this method, people in detention who have been found to
be refugees are assessed according to several security indicators. The
Commission regards the security indicator triage method as preferable to the
system which it replaced and acknowledges that a large number of people have
been granted protection visas and released from detention in the approximately
five months since the triaging process began.
However, the Commission remains concerned that current policy requires the
majority of unauthorised arrivals seeking asylum to remain in detention for the
duration of the processing of their asylum claims. It is only after a person has
been found to be a refugee that the security indicator triage process
commences.
The Commission also remains seriously concerned about the ongoing and
prolonged detention of hundreds of recognised refugees who have been referred to
ASIO for a full security assessment. The Commission is concerned that people in
this situation have been in detention for long periods, in some cases for over a
year.^[29] The Commission urges the
speedy finalisation of all outstanding ASIO security assessments.
Finally, the Commission is concerned about the limited access asylum seekers
have to merits review or judicial review of adverse assessments. While the
Administrative Appeals Tribunal (AAT) has the power to review adverse
assessments, access to AAT review is denied to people who are not Australian
citizens or holds of either a valid permanent visa or special purpose visa. In
the Commission’s view, access to AAT review should be extended to refugee
applicants. There is also very little practical opportunity for substantive
judicial review of adverse assessments. While ASIO decisions are subject to
judicial review, the ability of ASIO to withhold from an applicant and the court
the information upon which it has relied means that challenging that information
is virtually impossible. The practical difficulties in obtaining the necessary
evidence and the restricted scope of procedural fairness in the context of ASIO
security assessments as interpreted by Australian courts make judicial review an
ineffective appeal avenue. The Commission recommends that the Australian
Government explore options for strengthening substantive judicial review of
adverse assessments, including options to ensure the provision of greater
information to applicants or another appropriate person, through for example,
the appointment of a Special Advocate.

Recommendation 2: The
Australian Government should avoid the prolonged detention of asylum seekers by
complying with its New Directions in Detention policy under which detention of
asylum seekers is for the purpose of conducting health identity and security
checks. The security check for the purpose of release from detention should be a
summary assessment of whether an individual would pose an unacceptable risk to
the Australian community. The assessment should be made when the individual is
taken into immigration detention, or as soon as possible thereafter.

6 Indefinite
detention

Australia’s system of mandatory detention permits indefinite
detention. There is no set time limit on the period a person may be held in
detention, and people are not able to challenge the need for their detention in
a court.^[30]
The Commission has, for many years, called for the introduction of
independent judicial oversight of immigration detention to protect against
breaches of fundamental human
rights.^[31] The Commission is
particularly concerned that currently the immigration detention of children is
not subject to judicial oversight.
Under Australia’s international human rights obligations, any person
deprived of their liberty should be able to challenge the lawfulness of their
detention. Article 9(4) of the ICCPR requires that this review be conducted by a
court, while article 37(d) of the CRC mandates review before a court or another
competent, independent and impartial
authority.^[32] The United Nations
Human Rights Committee has declared that for detention to be
‘lawful’ in this context, it must not only comply with domestic law
but also not be arbitrary.^[33]
Accordingly, in order to guarantee the prohibition on arbitrary detention in
article 9(1) of the ICCPR and article 37(b) of the CRC, judicial review of the
decision to detain, or to continue to detain, is
essential.^[34] The court must have
the power to review the lawfulness of detention under both domestic legislation
and Australia’s binding international obligations, including under article
9(1) of the ICCPR and article 37(b) of the CRC to not subject anyone to
arbitrary detention. The court must also have the authority to order the
person’s release if the detention is found to be arbitrary.
Currently, in breach of its international obligations, Australia does not
provide access to such review. While people in immigration detention may be able
to seek judicial review of the domestic legality of their detention, Australian
courts have no authority to order that a person be released from detention on
the grounds that the person’s continued detention is arbitrary, in breach
of the ICCPR or the CRC.
The United Nations Human Rights Committee has found Australia in breach of
article 9(4) of the ICCPR on a number of occasions. For example, in A v
Australia, the United Nations Human Rights Committee found that the
Migration Act precluded Australian courts from considering whether a
person’s detention was arbitrary or from ordering the release of any
person from detention, in breach of article 9(4) of the
ICCPR.^[35] In C v Australia, Bakhtiyari v Australia, Baban v Australia and Shams v
Australia, the Committee confirmed its view that an inability to challenge
detention that is incompatible with article 9(1) of the ICCPR will result in a
breach of Australia’s obligations relating to review of the lawfulness of
detention.^[36]
The Joint Standing Committee on Migration (JSCM) has previously recommended
that the Migration Act be amended to provide judicial review in respect of a
decision to continue immigration detention. In December 2008, after receiving
submissions from a diverse range of stakeholders, the JSCM published the first
report of its inquiry into immigration detention in Australia.. The JSCM stated
that it was not convinced that the necessary system of independent review could
be satisfied by a series of departmental reviews. The JSCM recommended that in
respect of a decision to continue immigration detention, ‘oversight by a
judicial body is warranted and appropriate as an important check on the
integrity of the
system’.^[37]
Under the New Directions policy, the Australian Government acknowledges that
‘detention that is indefinite or otherwise arbitrary is not
acceptable’. In the absence of judicial review of detention, the New
Directions policy committed to ‘regular review’ of the length and
conditions of detention. Once in detention, a person’s situation should be
reviewed by a senior DIAC officer every three months to ensure that their
continued detention is justified. In addition, each person should have their
detention reviewed by the Commonwealth Ombudsman every six months.
The Commission welcomed this announcement, but has since raised concerns
about the lack of transparency surrounding the review processes, the timeframes
in which the reviews are conducted, and the extent to which the review
recommendations are implemented.^[38] DIAC has informed the Commission that the Australian Government is considering
ways of improving the review of the appropriateness of
detention.^[39] The Commission has
encouraged the Australian Government to allocate adequate resources to allow for
the three and six month reviews to be conducted on time for each person in
detention, and to increase transparency surrounding the review processes and
outcomes.

Recommendation 3: The Australian Government should
comply with its international human rights obligations by providing for a
decision to detain a person, or a decision to continue a person’s
detention, to be subject to prompt review by a court. To comply with article
9(4) of the International Covenant on Civil and Political Rights, the
court must have the power to order the person’s release if their detention
is not lawful. The lawfulness of their detention is not limited to domestic
legality – it includes whether the detention is compatible with the
requirements of article 9(1) of the International Covenant on Civil and
Political Rights, which affirms the right to liberty and prohibits arbitrary
detention.

7 Prolonged
detention

Under the New Directions policy, immigration detention is to be used for the
shortest practicable period. However, this has not been enshrined in legislation
or fully implemented in practice. Many people are spending long periods of time
in immigration detention in Australia. According to the most recent public
figures issued by DIAC, 67.5% of people in detention had been detained for over
six months, 1800 people had been detained for longer than one year and 29 people
had been detained for over two
years.^[40]
The prolonged and indefinite detention of people for immigration purposes
may lead to violations of Australia’s international human rights
obligations. Prolonged detention can lead to breaches of Australia’s
obligations under article 9(1) of the ICCPR and article 37(b) of the CRC to
ensure that no one is subjected to arbitrary
detention.^[41] According to the
United Nations Human Rights Committee, ‘arbitrariness’ includes
elements of inappropriateness, injustice, lack of predictability and
proportionality.^[42] This finding
has been echoed by Australian courts.^[43]Detention may be found to be arbitrary where it is prolonged or indefinite
in circumstances which are inappropriate, are unjust or lack predictability or
proportionality. The United Nations Human Rights Committee has found that
prolonged detention for immigration purposes was not justifiable and amounted to
arbitrary detention in breach of Australia’s international human rights
obligations in cases such as A v Australia and Shams v
Australia.^[44]
Prolonged and indefinite detention may also amount to cruel, inhuman or
degrading treatment, in breach of Australia’s obligations under articles 7
and 10(1) of the ICCPR and article 37(a) of the CRC, because it can cause
serious psychological harm. Australia has been found to be in breach of its
obligations relating to cruel, inhuman or degrading treatment by subjecting
people to prolonged indefinite immigration detention. For example, in C v
Australia, the United Nations Human Rights Committee held that mandatory
immigration detention amounted to cruel, inhuman or degrading treatment in
circumstances where it was prolonged, arbitrary and contributed to a
detainee’s mental health problems, when the authorities were aware of this
but they delayed releasing the person from immigration
detention.^[45]
The Commission has serious concerns about the impacts of
prolonged detention on mental health, as discussed in section 12 below.
Prolonged detention has been shown to have a particularly negative impact on the
mental health of children, as discussed in Part 4 below.
Over the past year, the Commission has found that a range of factors have
contributed to asylum seekers being held in immigration detention facilities for
lengthy periods, including:
- the processing suspension imposed in April 2010 on asylum seekers from
  Afghanistan and Sri Lanka
- significant delays in the processing of claims for asylum
- delays with notification of decisions relating to refugee status for some
  asylum seekers in detention
- lengthy timeframes for security assessments conducted by ASIO
- the limited use of community-based alternatives to holding people in
  detention facilities.
The Commission is also concerned at the potential for the prolonged and
indefinite detention of people who are stateless, people who have received
adverse ASIO security assessments and people who have had their visas cancelled
under s 501 of the Migration Act. These issues are discussed further below.

8 Prolonged and
indefinite detention of asylum seekers and refugees

Australia receives very small numbers of asylum seekers, both by national
and international standards. In 2009-10, 8164 people applied for protection in
Australia: less than 1% of the total number of asylum seekers
worldwide.^[46] In the same financial
year, asylum seekers who arrived in Australia by boat comprised less than 3% of
the total migration intake.^[47] Australia also accommodates small numbers of refugees. Australia hosted 21 805
refugees in 2010,^[49] while
developing countries such as Pakistan, Iran and Syria hosted 1.9 million, 1.07
million and 1 million refugees respectively.^[49]
Despite the relatively small number of people seeking refuge in Australia,
most of the people held in immigration detention in recent years have been
asylum seekers or refugees. The Convention Relating to the Status of Refugees (Refugee Convention)^[50] defines
a refugee as a person outside his or her own country due to a well-founded fear
of persecution because of his or her race, religion, nationality, membership of
a particular social group or political opinion and who is unable, owing to such
fear, unwilling to return to that
country.^[51] Under international
law, as soon as a person in this situation crosses an international border, he
or she is a refugee.
There is a strong presumption against the detention of refugees under
international law.^[52] In addition,
the mandatory detention of asylum seekers is inconsistent with UNHCR guidelines,
under which there should be a presumption against the detention of asylum
seekers – it should be the exception rather than the norm. Detention
should only be resorted to in certain circumstances, and if there is evidence to
suggest that other alternatives will not be effective in the individual
case.^[53]
The Commission opposes the mandatory detention of both asylum seekers and
refugees. However, it is of particular concern that significant numbers of
recognised refugees have been held in immigration detention in Australia, often
for prolonged periods. This includes people who have been recognised as refugees
by the UNHCR but who have not yet had their cases assessed in Australia; people
who are waiting for ASIO security assessments; people who remain in detention
following an adverse ASIO security assessment and people who have received a
positive ASIO security assessment but are waiting for the finalisation of DIAC
checks.
The Commission has serious concerns about aspects of Australia’s
system for processing refugee claims which are both causing confusion and
frustration among asylum seekers in immigration detention and contributing to
prolonged detention of asylum seekers and refugees.
Recent Commission visits to immigration detention facilities have revealed a
palpable sense of frustration among many people that the process for determining
refugee status in Australia is unreasonably lengthy, as well as unfair and
disorderly. For example, people in detention have told the
Commission:

They told us that we wouldn’t be affected by
the suspension, but we were. They told us that we wouldn’t be moved, but
we were. Some of us had a two-stage review process, but others of us have missed
out. We feel as though all of the rule changes have affected us. We never
thought Australia would be so
unfair.^[54]

It is the uncertainty and indefinite nature that makes it so hard. We have
no idea when we will be interviewed or if we will be accepted. We are the
guardians and breadwinners for our families – the long delays make us
suffer a lot.^[55]

The length of time for processes and decisions feels very uneven. It feels
like Serco and DIAC are deliberately playing with our minds. They are kicking us
around like a football – it’s a game for them, they are just mucking
around.^[56]

Most people here feel unable to express how they are feeling. We
don’t have a way to express it. Please, please ask that the process be
quicker.^[57]
During recent visits to immigration detention facilities, the Commission has
heard numerous concerns expressed by asylum seekers relating to the processing
and assessment of their asylum claims. These concerns primarily relate to delays
with processing; the quality and fairness of decision-making; communication
about processes, timeframes, and progress with cases; and access to migration
agents and the quality of representation provided by migration agents. These
concerns fed into asylum seekers’ perceptions that the processing of their
claims was disorderly and
unfair.^[58]
The Commission acknowledges that these concerns are based on asylum
seekers’ perceptions of the process and that they may or may not be fully
borne out by the facts upon closer examination. Nevertheless, hearing such
concerns from a significant number of asylum seekers is troubling and indicates
the need for the Australian Government to ensure that ongoing steps are taken to
ensure the quality, fairness and rigour of the process used to assess
people’s claims for asylum and to assist asylum seekers in understanding
these processes.
The Commission has serious concerns about delays in the processing of claims
for asylum, particularly at the independent merits review (IMR) stage. For
example, during a recent visit to Curtin IDC, the Commission met people who had
been waiting between seven and ten months for their IMR interview. There are a
number of factors that have caused delays with IMR interviews across the
detention network, including issues relating to the remoteness of detention
facilities. Primary causes relate to the significant increase in the number of
cases and the limited number of IMR reviewers. While the number of reviewers has
been increased since late 2010, the processing suspension created a large
backlog of IMR cases. This should have been anticipated by the Australian
Government and steps should have been taken earlier to increase the number of
reviewers in preparation for managing that backlog. With the current number of
cases and reviewers, it will still take months to clear the IMR backlog. Further
reviewers should be appointed by the Australian Government to ensure that
waiting periods for IMR interviews and decisions are minimised.
The Commission is also concerned about the system for scheduling IMR
interviews. In March 2011, people in immigration detention, including those at
Curtin, were informed that the Minister had appointed additional reviewers and
that people who had not yet had an IMR and who had been in detention the longest
would be given priority.^[59] However, when the Commission visited Curtin IDC two months later, this new
priority system had not been implemented there. Many people were extremely
distressed and frustrated about this, perceiving the process to be unfair
because asylum claims were not being assessed in order of people’s length
of detention. The Commission has since been informed that the new IMR priority
system is being followed at Curtin IDC, but that factors other than length of
detention – such as operational reasons or particular vulnerabilities
– may also affect the order in which IMR interviews are
conducted.^[60]
Other concerns that the Commission has heard, primarily during the recent
visit to Curtin, include concerns about:
- The quality and fairness of decision-making. Specific concerns include
  allegations that decision records have contained factual inaccuracies on matters
  such as place of birth or the area a person lived in their country of origin;
  inconsistencies in decision-making with people in like circumstances receiving
  different decisions; and a perception that some decision-makers were
  biased.
- Communication about processes, timeframes and progress with cases. Some
  people in detention have expressed frustration at the lack of meaningful updates
  from their DIAC case managers, and some have reported a lack of regular contact
  with case managers.
- Access to migration agents and the quality of representation. Some people in
  detention have expressed concern at the limited time they have to consult with
  their agent in advance of an interview; some people have complained of limited
  notice of their IMR interview date; concerns have been expressed about the
  difficulty of maintaining contact with their agent, particularly from a remote
  location; and a significant number of people have complained about the quality
  of assistance and representation provided by their agent.
Over the past twelve months, the Commission has become aware of instances
where there have been delays of weeks and, in some cases, months in notifying
asylum seekers in detention about decisions regarding their refugee status. Such
delays may have the effect of prolonging people’s detention and could lead
to breaches of Australia’s obligations not to subject anyone to arbitrary
detention. DIAC has informed the Commission that new controls were introduced in
December 2010, including interim policy guidelines which set maximum timeframes
for notification of decisions. However, the Commission is concerned that there
continues to be an unacceptable level of delay in the timeframes for
notification of decisions.
The delays with processing asylum claims, and the impacts of those delays,
would not be as severe if asylum seekers were not held in immigration detention
facilities for the duration of processing of their claims. Under the New
Directions policy, this should not be the case. Rather, detention is meant to be
used for conducting health, identity and security checks, and once those checks
are completed, ‘continued detention while immigration status is resolved
is unwarranted’. Thereafter, the presumption is meant to be that people
will be allowed to live in the community unless they pose an unacceptable risk.
The Commission has long been concerned that this policy is not being implemented
in practice for most asylum seekers who arrive by boat, and continues to
encourage the Australian Government to implement it.
During its visit to Curtin IDC, people in detention expressed distress about
case managers telling them that they could return home through a
‘voluntary removal’ if they did not want to remain in detention. The
Commission was particularly troubled to hear that this option had been suggested
to recognised refugees who remained in detention while awaiting security
clearances or other checks. This issue was also raised by people in detention at
Villawood when the Commission visited in early
2011.^[61]
The Commission has recommended that DIAC reconsider its approach to case
managers’ engagement with refugees in detention about the option of
‘voluntary removal’. The Commission is concerned that the impacts of
prolonged and indefinite detention in combination with the offer of
reintegration assistance could potentially lead to refugees seeking
‘voluntary removal’ to their country of origin even though they may
face persecution or risks to their safety upon return. Rather than suggesting
that refugees may choose to return to their country of origin, case
managers’ efforts should be targeted towards ensuring that people are
removed from immigration detention facilities as quickly as possible.

9 Prolonged
and indefinite detention of people who are stateless

The Commission has specific concerns relating to the prolonged detention of
people who have been assessed by the Australian Government as not being
refugees, but who are stateless or otherwise cannot be returned to their country
of origin or habitual residence.
Despite having obligations to stateless persons as a party to the Convention relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness, Australia does not have a
formal procedure for determining
statelessness.^[62] Further,
statelessness in itself is not a ground for claiming refugee status. Therefore,
while some stateless persons who seek asylum in Australia will be recognised as
refugees on other grounds and then granted protection visas, some will not.
These people are left in limbo, with the only chance of a lasting resolution
being the Minister for Immigration and Citizenship exercising his personal
discretion to grant a visa. Such people may face prolonged and indefinite
detention in the meantime, while Ministerial intervention is sought or while
DIAC attempts to find a third country willing to accept them.
The Commission has raised concerns about this issue for several years and
has urged the Australian Government to introduce a specific mechanism to address
the situation of stateless persons. This should include a statelessness
determination process, mechanisms to ensure that people are not subjected to
prolonged detention while they go through the assessment process and access to
sustainable outcomes such as permanent visas for stateless persons. This has
become a matter of urgency, given the high number of stateless persons currently
in immigration detention.
DIAC has informed the Commission that it is exploring options for case
resolution for stateless persons who are found not to be refugees.

Recommendation 4: The Australian Government should ensure
that durable solutions are provided for individuals who have failed in their
applications for asylum and who cannot be returned to their country of origin or
habitual residence, including for people who are stateless. People in this
situation should not be subject to prolonged or indefinite detention; they
should be removed from immigration detention facilities as soon as possible.

10 Prolonged and
indefinite detention of people who have received adverse ASIO security
assessments

The Commission has serious concerns about the prolonged and indefinite
detention of people who have been found to be refugees but who have received
adverse security assessments. People in this situation should not be returned to
their country of origin according to Australia’s non-refoulment obligations, and current government policy is that it is not appropriate for
individuals who have received an adverse security assessment to live in the
Australian community.^[63]
As of mid-July 2011, there were approximately 30 people in this situation
across the immigration detention
network.^[64] When the Commission met
some of these people on at Christmas Island, at Darwin and at Villawood, they
told the Commission of the impact of their situation:

Our lives
are at a zero point. We have not been told why we have been rejected. We have
not been told what will happen to us. We cannot fight against
ASIO.^[65]

The only thing that we can do is to go on hunger strike or kill ourselves.
We are powerless.^[66]

We need to be able to answer our children about when they can leave
detention.^[67]
The Commission has repeatedly raised concerns about people in this
situation, urging the Australian Government to ensure that durable solutions are
provided for these individuals and that they are removed from immigration
detention facilities as soon as
possible.^[68] Securing a durable
solution for people in this situation is particularly urgent when children are
involved.
The Commission is concerned that there does not appear to be a clear
framework for considering placement options for such people while their
immigration status is resolved. Some people with adverse security assessments
are detained in high-security immigration detention centres such as Villawood
IDC, Northern IDC and Curtin IDC; extremely restrictive environments in which to
hold people who could be facing a very long period in detention. In the
Commission’s view, alternative placement options should be considered for
individuals who have received adverse assessments, including less restrictive
places of detention and community detention with the imposition of conditions if
necessary to mitigate any identified risks.
The DIAC response to the Commission’s report regarding its 2011 visit
to Villawood states that

[t]he government is actively exploring
durable solutions for individuals with adverse security assessments that are
consistent with Australia’s international obligations, including its non-refoulement obligations. These solutions may include resettlement in
a third country or safe return to their country of origin where country
circumstances allow, where the risk of relevant harm occurring no longer exists
or where reliable and effective assurances can be received from the home
country.^[69]
The Commission has serious concerns that relying on diplomatic assurances
prior to returning a refugee to their home country could breach
Australia’s international non-refoulment obligations. The
Australian Government must not involuntarily remove a recognised refugee who has
an adverse assessment to their country of origin. Further, the Australian
Government should not propose the ‘voluntary removal’ of people in
this situation. The Commission is also concerned about the amount of time for
which some of these people have been in detention while the Australian
Government has been exploring durable solutions and urges the Australian
Government to resolve the situation of the prolonged and indefinite detention of
individuals with adverse security assessments as soon as possible.

Recommendation 5: The Australian Government should
ensure that durable solutions are provided for individuals who have received
adverse security assessments from the Australian Security Intelligence
Organisation, and that they are removed from immigration detention facilities as
soon as possible.

11 Prolonged and
indefinite detention of people whose visas have been cancelled under section
501

The Commission is particularly concerned about the prolonged detention of
people whose visas have been cancelled under s 501 of the Migration Act
(s 501 detainees). Many of these people have lived in Australia for years,
or even decades, and have strong ties to the Australian community including
through family members, friends and jobs. Some have Australian partners or
spouses, and some have children who are Australian citizens or were born in
Australia.
Usually a person’s visa is cancelled under s 501 because they
have been convicted of a criminal offence. If a prison sentence was imposed,
their visa is normally cancelled when they are at the end of serving their
sentence. They are then transferred from prison to immigration detention. Some
of them spend years in immigration detention while they challenge the decision
to cancel their visa, while travel documents are arranged, while diplomatic
assurances are sought from the country they will be returned to about their
safety on return, or while a claim for a protection visa is assessed.
The majority of s 501 detainees are held at Villawood IDC. At the time
of the Commission’s visit to Villawood in February 2011, there were 48
people in detention at Villawood because their visas had been cancelled. Eight
of those people had been detained for longer than two years; three of those
eight people had been detained for longer than three
years.^[70] These lengthy periods of
detention are extremely concerning.
Many s 501 detainees experience extremely restrictive conditions of
detention at Villawood IDC and other immigration detention facilities. One man
in detention at Villawood told the Commission: ‘This is worse than
prison. There we had more open space; I had a job; we had more education
classes’.^[71]
Under the New Directions policy, mandatory detention applies to
‘unlawful non-citizens who present unacceptable risks to the
community’; detention in an immigration detention centre is ‘only to
be used as a last resort and for the shortest practicable time’; and
detention should be in the ‘least restrictive form appropriate to an
individual’s
circumstances’.^[72] The
Commission is concerned that these principles are not being applied on an
individual basis for people whose visas have been cancelled under s 501.
Rather, these people are subject to mandatory detention, are virtually always
held in high-security immigration detention centres, and are often detained for
prolonged periods of time.
While many s 501 detainees have been convicted of a criminal offence,
once they are transferred to immigration detention they have completed any
prison sentence imposed. The ordinary expectation, as with Australian citizens,
is that they have been punished and rehabilitated by the correctional system.
Thereafter, these individuals should not be automatically categorised as posing
an unacceptable risk to the Australian community. Rather, the extent to which
they might pose any continuing risk should be determined on a case-by-case basis
through an assessment of their individual history and circumstances.
This concern has also been raised by the JSCM, which has stated that
‘risk assessments for s 501 detainees should focus on evidence, such
as a person’s recent pattern of behaviour, rather than suspicion or
discrimination based on a prior criminal
record’.^[73]

Recommendation
6: People whose visas have been cancelled under s 501 should only be
held in an immigration detention facility if they have been individually
assessed as posing an unacceptable risk to the Australian community and that
risk cannot be managed in a less restrictive way. Alternative placement options
should be considered for such people, including less restrictive places of
detention than immigration detention centres, and community detention with
imposition of conditions necessary to mitigate any identified risks.
Consideration of appropriate alternatives should begin as soon as DIAC becomes
aware that an individual is likely to have their visa cancelled and be taken
into immigration detention.

^Top

PART
2: The impacts of mandatory, prolonged and indefinite
detention

12 The
mental health impacts of prolonged and indefinite detention

The Commission has repeatedly found that mandatory, prolonged and indefinite
detention causes considerable distress among people in detention.
The Commission is troubled about a number of key factors that, in
combination, are placing extreme pressures on asylum seekers and refugees in
detention facilities. These include the psychological impacts of being detained
for long periods with no certainty about when they will be released or what will
happen to them when they are; confusion about the refugee status assessment
process and frustration about delays with processing; frustration and
uncertainty about ASIO security assessment processes and delays; and the fact
that they are informed that if they seek judicial review of their negative
refugee assessment, they will remain in immigration detention for the duration
of that process.
During monitoring visits conducted in 2010-11, the Commission spoke with
detainees who expressed immense frustration and a lack of comprehension about
why it was considered necessary to detain them for the duration of their
immigration processing.^[74] Some
people told the Commission that being in detention had made them feel as if they
were criminals; others said detention made them feel like
animals.^[75] On its recent visit to
immigration detention facilities at Villawood, the Commission spoke with people
who expressed disbelief and a sense of injustice that in a country like
Australia, they could be detained indefinitely without the ability to challenge
their detention before a judge. Many people spoke to the Commission of feelings
of frustration, distress, demoralisation and despair after being detained for a
long period of time, and many spoke of the uncertainty and anxiety caused by
being detained for an indefinite period of time.
During recent visits, the Commission heard from people in detention about
the psychological harm that prolonged detention was causing them. People at
Villawood spoke of experiencing high levels of sleeplessness, feelings of
hopelessness and powerlessness, thoughts of self-harm or suicide, and feeling
too depressed, anxious or distracted to take part in recreational or educational
activities. The Commission was troubled by the palpable sense of frustration and
incomprehension expressed by many people. This appeared to have contributed to
marked levels of anxiety, despair and depression, leading to high use of
sedative, hypnotic, antidepressant and antipsychotic medications and serious
self-harm incidents.^[76]
Conversations with people in detention over the past two years have
demonstrated that the mental health impacts of prolonged and indefinite
detention contribute to high rates of self-harm. People in detention have
expressed to the Commission their belief that some of the recent suicides by
people in detention have occurred due to the mental health impact of prolonged
and indefinite detention. Furthermore, people in detention are acutely aware
that the impact of detention on their mental health may impact on their
effective functioning and their capacity to make a contribution to Australian
society if they are granted a protection visa. The Commission is concerned that
for some people the mental health impacts of prolonged detention will lead to
significant levels of mental health support being required for lengthy periods
following release from detention.
Hundreds of people in detention have clearly articulated the impacts of
mandatory, prolonged and indefinite detention in numerous conversations with the
Commission over recent years For example:

I am really frustrated,
rejected so many times, no one is contacting me. I will get tired of this life.
Maybe day will come when I don’t have control of my feelings. It makes us
crazy, hopeless.^[77]

If they tell us you will be here for three years, maybe it will be easier
instead of always waiting for next month, next month and it never
comes.^[78]

Everyone’s problem is the same. We are all waiting here without
knowing how much longer we might be here with our family waiting on the other
side.^[79]

My hope has all gone now. I’m young but I’m feeling that my
life is destroyed. And my thinking is destroyed. There were things that I used
to be able to do that I can no longer
do.^[80]

We feel that we have lost everything here – our hope, our health,
our memories, our names, our ability to help our families, our minds. We are
more than half way to dead now. We are all dying here, from the inside out. We
see others who have gone mad and think that we are going there
too.^[8281

If I go mad in here, I’m no use to anyone. Not to Australian society
if I’m allowed to stay, and not to my family either way. When I try to
talk with my family I can’t because I just choke up now. I cannot speak
with them for the pain. Twice I have gone to kill myself and my friends have
helped me to not do it. Please be our voice out of
here.^[82]

And the people who get out after a long time, they are so depressed. They
cannot learn or help themselves. It is hard for them. If they give us English
classes when we are here, we will forget everything when we get out. The people
who left here are mad now, they are not healthy
people.^[83]

13 Self-harm
and suicide in immigration detention facilities

The Commission has become increasingly alarmed over the past year about the
high rates of self-harm across the detention network. The Commission is also
deeply concerned about the level of suicidality across the immigration detention
network. The Commission has raised these concerns in several of its recent
reports as well as directly with DIAC and the Minister for Immigration and
Citizenship.^[84]
During visits to various facilities, the Commission has both met with people
who have self-harmed and heard of numerous instances of self-harm. On its visit
to Villawood earlier this year, the Commission heard about a number of self-harm
incidents including voluntary starvation and ingestion of detergent and
chemicals. At Villawood IDC the Commission met with people who had visible scars
from self-harming, and with one person who had recently been hospitalised
following serious self-harm. During its recent visit to Curtin IDC the
Commission also heard of a number of serious self-harm incidents including two
instances of mass voluntary starvation and a case where a person detained in the
facility threw himself through a glass window.
Self-harm incidents are occurring across the immigration detention network.
Between 1 July 2010 and early June 2011, there were 322 recorded instances of
self-harm among people in immigration detention facilities, 564 episodes in
which detainees threatened to self-harm, and 34 instances of attempted serious
self-harm in detention.^[85]
The Commission is particularly concerned by the deaths of six men in
Australia’s immigration detention facilities in 2010 and 2011. This
includes five apparent suicides: one at Scherger IDC, one at Curtin IDC and
three at Villawood IDC. There have also been a significant number of reported
suicide attempts across the detention network.
People in immigration detention facilities have spoken with the Commission
about their serious concerns about both self-harm and suicide in detention. For
example, people in detention have told the
Commission:

[It’s] not something you always think about. It
is just something that happens because pressure is all too
much.^[86]

My room-mate...totally lost his mind...He was just walking around, not
talking... He threw himself through the glass after that. It was only then that
they took him seriously. There was a lot of blood. This happened 6 weeks ago and
we don’t know what has happened to him. They wouldn’t take him
seriously when he needed help earlier. I knew him before. He was very educated
and learning English. He lost his mind when he got
rejected.^[87]

No one came to kill themselves. They came here to live. Because of the
situation they are pushed to
suicide.^[88]

We are suffering emotionally terribly in detention. In six months three
people have killed themselves in here. It is becoming a normal thing.^[89]

Everyone is in a similar mental state – thinking about
dying.^[90]

The only thing that remains is that we can hang ourselves from a
tree.^[91]
The Commission is concerned about the aftermath of the suicides that have
occurred in the detention network. During the Commission’s visits to
Villawood and Curtin, the Commission held discussions with staff and people in
detention about the response to these deaths, ongoing factors that continue to
pose risks of suicide attempts, and the adequacy of measures taken to mitigate
those risks.
It appears that there were deficiencies in the response to the first death
at Villawood IDC, which occurred in September 2010. In particular, there was
delay in providing adequate counselling and psychological support to people in
detention at Villawood IDC in the aftermath. The Commission has been informed
that since that time steps have been taken to improve responsiveness and that
such delays did not occur after the subsequent deaths at Villawood IDC.
Given that four of the five apparent suicides appear to have resulted from
men hanging themselves, the Commission is concerned about the safety of the
infrastructure across the detention network. The Commission is troubled that
there does not appear to have been a comprehensive approach to safety across the
detention network. The Commission acknowledges that it can be difficult to
‘suicide-proof’ an environment. However, the Commission believes
that DIAC should ensure that a safety audit is conducted across all detention
facilities and that all appropriate measures are taken to improve the physical
environment to minimise the risk of suicide and self-harm.The Commission holds
grave concerns about the ongoing risk of suicide in immigration detention
facilities. The Commission has urged DIAC to consult with organisations that
specialise in suicide prevention as well as with mental health professionals,
including with members of the Detention Health Advisory Group, about measures
that could be taken to mitigate the risk of further suicides across the
detention network. In its response to the Commission’s report of its 2011
visit to immigration detention facilities at Villawood, DIAC advised that it
‘is working to engage expert advice to help mitigate the risk of further
suicides within immigration detention ... through a Suicide Prevention Working
Group’ and that it is working ‘to develop an appropriate tool to be
used for the purpose of conducting regular safety audits across the detention
network’.^[92] The Commission
calls for these initiatives to be completed as a matter of urgency.
The Commission also remains seriously concerned about the ongoing self-harm
that is occurring in immigration detention facilities. The prevention of
self-harm in detention and psychological support for people at risk of self-harm
are addressed by DIAC’s Psychological Support Program policy (PSP policy).
The Commission is concerned that the PSP policy has not been adequately
implemented across the detention network. In particular, the Commission has been
concerned during a number of detention visits to learn that many staff have not
received PSP training. It is not appropriate that monitoring is done by Serco
staff who do not have appropriate qualifications or training. There is a need
for a national framework for the delivery of PSP training on a rolling basis to
ensure that all relevant Serco, DIAC and IHMS staff are provided with initial
and refresher training.

Recommendation 7: In relation to
self-harm and suicide, DIAC should:

Consult with organisations that specialise in suicide prevention, as well as
mental health professionals including members of the Detention Health Advisory
Group, for advice about measures that should be taken to mitigate the risk of
further suicides across the detention network and implement these measures as a
matter of urgency.
Ensure that safety audits are conducted at all facilities in the detention
network, and that all appropriate measures are taken to minimise the risk of
suicide and self-harm.
Ensure that there is a clear written policy in place at each detention
facility setting out the procedures for responding to threats of self-harm and
suicide and ensure that all relevant staff are provided with training on the
policy and procedures.
Ensure that all relevant staff have adequate Psychological Support Program
training.

14 Critical incident
response

The Commission is concerned at the occurrence of disturbances within
immigration detention facilities, particularly the events on Christmas Island in
March 2011 and at Villawood IDC in April 2011.
The Commission does not condone acts of violence or property destruction in
immigration detention facilities. It is important to recognise, however, the
context which preceded these disturbances. The Commission believes that the
issues relating to the processing of claims for asylum described above have
contributed to the recent unrest in immigration detention facilities. Many
people had been held in detention for a year or more, with no end in sight, and
without the ability to challenge their ongoing detention in a court. Many were
acutely frustrated by the time being taken to process their refugee claims,
serious delays with security assessments and a lack of regular updates on
progress with cases. Some were feeling pressured to return to countries where
they believed they faced persecution or danger. The significant uncertainty,
frustrations and tensions experienced by people in detention may have
contributed to the unrest that has been seen in immigration detention facilities
in recent months.
The Commission’s recent visits to detention facilities have led to a
number of concerns about critical incident response within the detention
network, including:
- The adequacy of staff training, particularly for Serco officers in the areas
  of negotiation techniques; de-escalation of incidents that could potentially
  turn into critical incidents; and, as discussed above, on the monitoring and
  support of people in detention at risk of self-harm or suicide.
- At some detention facilities, the lack of a formal plan or policy setting
  out how staff should respond to threats of self-harm or suicide. For example,
  when the Commission visited Sydney Immigration Residential Housing in February
  2011 there was no such plan or policy in place – this was despite the fact
  that in the previous months there had been three apparent suicides at the
  adjacent Villawood IDC. The Commission has urged DIAC to ensure that there is a
  clear written policy in place at each detention facility setting out procedures
  for responding to threats of self-harm or suicide. All relevant staff should be
  provided with training on the policy and procedures.
- The apparent lack of a nationally consistent written policy or procedure for
  conducting a critical incident review after an event such as a death or
  ‘near miss’ attempt in detention. The Commission has urged DIAC to
  formalise, in conjunction with Serco, a critical incident review policy and
  procedure to apply across the detention network.
- In some cases, the critical incident reviews that are being conducted are
  not occurring in a timely manner. For example, at the time of the
  Commission’s visit to Curtin IDC in May 2011, while initial reviews had
  been conducted, full critical incident reviews had not been completed for an
  apparent suicide that occurred in March 2011 or a hunger strike involving a
  significant number of people in April 2011.
- The apparent lack of formal MOUs between DIAC and state and territory police
  and emergency services. The Commission was pleased to hear a recent report that
  this issue has now been raised at the National Standing Council on Police and
  Emergency
  Management.^[93]
The Commission also remains concerned about liaison and information sharing
between DIAC, Serco and the Australian Federal Police before and during the use
of force by the Australian Federal Police on Christmas Island, particularly
during the March disturbances, and looks forward to the release of the
Commonwealth Ombudsman’s inquiry regarding the use of force at this
time.

15 People who work in
immigration detention facilities

The conditions within some immigration detention facilities may have a
detrimental impact on staff as well as detainees, particularly on those who
respond to critical incidents. Staff who work within immigration detention
facilities include employees of DIAC; detention services provider officers
employed and subcontracted by Serco; health and mental health personnel employed
by International Health and Medical Services (IHMS), the company contracted to
provide onsite physical and mental health services to people in detention; and
others contracted to provide particular services.
Staff in many immigration detention facilities work within significant
resourcing constraints. In addition, some immigration detention facilities
experience chronic understaffing. This is of particular concern in facilities
where there has been ongoing tension and disturbances over recent months.
Further, the Commission is concerned that the training provided to many people
who work in immigration detention facilities is insufficient for the tasks that
such staff are being required to carry out.
The pressure placed on staff working in immigration detention facilities
could jeopardise their health, safety and wellbeing. The Union of Christmas
Island Workers, following episodes of unrest this year, has expressed concern
about its members who work within detention facilities on the
island.^[94] Perhaps most
troublingly, in July a man who was employed as a security officer at Curtin IDC,
and who had helped respond to the suicide by hanging of a detainee there, is
reported to have committed suicide by
hanging.^[95]
The Commission acknowledges that efforts are made to ensure that staff have
access to counselling if required. The Commission urges the investigation of
appropriate measures to support the health, safety and wellbeing of all people
who work in immigration detention facilities.

^Top

PART 3: Immigration
detention facilities and services

Description: Entrance, Villawood IDC

Entrance, Villawood IDC, February 2011.

The Commission’s role in monitoring places of immigration detention
enables the Commission to make observations regarding immigration detention
facilities and services.^[96] As
noted above, over the past two years, the Commission has visited immigration
detention facilities on Christmas Island and in Darwin, Leonora, Villawood,
Curtin, Maribyrnong and Inverbrackie. The Commission has published reports
regarding visits to Christmas Island, Darwin, Leonora and Villawood. A report of
the visit to Curtin IDC which will be published in September
2011.^[97] Reports can be accessed at
the Commission’s website.^[98]
This section outlines a range of the Commission’s key concerns
relating to:
- the location of immigration detention facilities
- infrastructure and accommodation
- communications in immigration detention
- health and mental health services for people in detention
- educational opportunities for people in detention
- meaningful activities for people in detention
- opportunities to leave the detention environment on external
  excursions.
Under international human rights standards, authorities should seek to
minimise differences between life in detention and life at liberty in the design
and delivery of detention services and
facilities.^[99] People are held in
immigration detention under the Migration Act because they do not have a valid
visa.^[100] They are not detained because they are under police arrest or because they have been charged
with or convicted of a criminal offence. The treatment of people in immigration
detention should therefore be as favourable as possible, and in no way less
favourable, than that of untried or convicted
prisoners.^[101]
Nevertheless, conditions of immigration detention in Australia remain, in
many places, restrictive, punitive and
prison-like.^[102] Some immigration
detention facilities are
overcrowded.^[103] Some are located
in very remote areas and in harsh physical environments characterised by extreme
weather conditions.^[104] Detainees
in some other facilities have limited access to health and mental health care,
restricted educational opportunities and few chances to leave the detention
environment on excursions.^[105]
In the Commission’s view, many of Australia’s immigration
detention facilities are not appropriate places in which to hold people,
especially given the high numbers of people who remain in immigration detention
for extended periods of time.

16 Detention in remote
locations

Description: Looking into Curtin IDC through perimeter fence, May 2011

Looking into Curtin IDC through perimeter fence, May 2011.

Description: Car park (outside fence of Leonora immigration detention
facility)

Car park outside fence of Leonora alternative place of detention, November
2010.

The Commission is concerned about the impacts of detaining people in
extremely remote locations, including facilities at Christmas Island, Leonora in
the Western Australian desert, Curtin IDC in far north Western Australia and the
Scherger RAAF base on Cape York Peninsula in far north Queensland.
People in detention frequently raise the impact of detention in remote
locations with the Commission. For example:

Everything is a
problem. There is dust and dirt everywhere. The showers are not clean. It is so
remote. How can this work? If you try living here in our situation for a month
you will understand the
problems.^[106]

We are cut off from the world and living in
isolation.^[107]
People detained in remote areas proximate only to small local communities
often have few opportunities for visitors and excursions and limited access to
services including health and mental health care, legal advice, and appropriate
cultural and religious
support.^[108] For example, Curtin
IDC has a regular capacity of 1200 and a surge capacity of 1500 people. The
nearest town of Derby, approximately 40 kilometres to the south-east, has a
local population of around 3000
people.^[109] A range of challenges
arise from the placement of such a large detainee population near a relatively
small town, including providing adequate access to specialist medical care and
ensuring that people in detention can get adequate access to legal assistance
and communications facilities.
Further challenges arise in attracting and retaining sufficient numbers of
qualified staff willing to be based in remote locations for extended periods and
in sourcing adequate staff accommodation in such small
communities.^[110] For example,
during the Commission’s recent visit to Curtin, the Commission heard that
there were insufficient staff, due in part to a shortage of suitable staff
accommodation nearby. This has also been a problem on Christmas Island.
In addition, holding asylum seekers in remote locations makes detention
operations less visible, transparent and accessible to public
scrutiny.^[111] For groups based on
the east coast of Australia, for example, travelling to Christmas Island is
extremely time consuming and expensive. This limits the ability of bodies such
as the Commission to visit these detention facilities on a regular basis, and
makes the trip virtually impossible for most non-government organisations and
community groups.^[112]
Finally, the physical environment in the remote immigration detention
facilities is often harsh. For example, at Leonora Alternative Place of
Detention, the heat is often extreme, and there is a limited amount of grassy
and shaded outdoor space and limited indoor recreation space within the
facility. A number of the outdoor areas consist only of red dirt. Similarly,
there are few trees and there is little grass inside the Northern IDC at Darwin.
The combination of heat, dirt and lack of shade at this centre means there are
few comfortable outdoor spaces.
In the Commission’s view, if people must be held in immigration
detention facilities, it is far preferable that these be located close to
metropolitan areas. Urban detention facilities have many benefits over those in
rural areas: they more likely to be adequately staffed; they are closer to
essential services; they are likely to provide greater opportunities for
excursions; they more readily allow for visitors; and they provide easier access
for scrutiny bodies such as the Commonwealth Ombudsman and the
Commission.

Recommendation 9: People should not be held in
immigration detention in remote locations. If people must be held in immigration
detention facilities, they should be located in or near metropolitan areas.

17 Immigration detention
infrastructure and accommodation

Description: Electrified fence separating North and South compounds, NIDC

Electrified fence separating North and South compounds, Northern IDC,
September 2010.

There is wide variation in the quality of infrastructure and the
accommodation provided to detainees across the immigration detention network.
- Immigration detention centres (IDCs) are the most secure of
  Australia’s immigration detention facilities.
- Immigration residential housing (IRH) facilities are closed detention
  facilities, but they have less intrusive security measures than IDCs. They
  provide more flexible accommodation including housing that can accommodate
  families.
- Immigration transit accommodation (ITA) facilities are closed detention
  facilities, but they have less intrusive security measures than IDCs.
- There are a number of low security immigration detention facilities that are
  classified by DIAC as alternative places of detention. These include the
  Construction Camp on Christmas Island and facilities in Perth, Leonora, Darwin,
  Brisbane and Inverbrackie. People detained in such facilities remain under
  supervision and are not free to come and go.
- Some immigration detainees are permitted to live in the community in what is
  known as ‘community detention’. These people are generally not under
  physical supervision. However, legally they remain in immigration detention.
  There are conditions attached to community detention, which usually include
  requirements such as reporting to DIAC on a regular basis, sleeping at their
  stipulated residence every night, and refraining from engaging in paid work or
  formal study.
On its visits to immigration detention facilities over many years, the
Commission has found the infrastructure and accommodation in some facilities
inappropriate for the purpose of immigration detention, particularly given the
prolonged periods of time for which some people are held in detention and the
needs and vulnerabilities of many of these people. Detailed assessments of the
immigration detention infrastructure and accommodation are contained in the
Commission’s reports on visits to immigration detention facilities,
including;
- 2008 – Immigration
  detention report (summary of observations following visits to all
  immigration detention facilities)
- 2009 – Immigration
  detention and offshore processing on Christmas Island
- 2010 – Immigration
  detention and offshore processing on Christmas Island; Immigration
  detention in Darwin
- 2011 – Immigration
  detention in Leonora; Immigration
  detention at Villawood.
The Commission holds particular concerns about the infrastructure and
accommodation in high-security immigration detention centres and in some
alternative places of detention that are used for families and unaccompanied
minors. The Commission has found some facilities to have harsh and prison like
conditions. In many centres, high wire fences, a lack of green open space,
walled-in courtyards, ageing buildings, pervasive security features, cramped
conditions and a lack of privacy combine to create an oppressive atmosphere.
Specific concerns include:
- The security-driven atmosphere in many immigration detention centres,
  created by the use of physical measures such as high wire fencing and razor wire
  and surveillance measures such as closed circuit television.
- The ageing and inappropriate infrastructure in some centres, including
  accommodation in overcrowded dormitories with little privacy and nowhere to
  store personal belongings.
- The fact that some centres have few trees and little grass, contributing to
  there being inadequate outdoor recreation spaces.
- The inappropriate nature of some facilities for detaining families and
  unaccompanied minors, including facilities with very little appropriate indoor
  or outdoor recreation spaces.

Recommendation 10: The Australian Government should implement all of the recommendations made
regarding immigration detention infrastructure and accommodation in Commission
reports from 2008 onwards. The most significant of these recommendations are
repeated below.

Following the Commission’s most recent visits it has particular
concerns about the infrastructure and accommodation at Christmas Island and
Villawood, which are discussed in more detail below.

17.1 Christmas
Island

The Commission has been critical of the conditions of accommodation for
people in immigration detention on Christmas
Island.^[113] At the time of the
Commission’s 2010 visit, people in detention at the Christmas Island IDC
were accommodated in dormitories and tents which were overcrowded. Detainees
living in these areas had virtually no privacy, little space to store their
personal belongings and limited access to basic facilities such as showers,
kettles, toasters and washing machines. People were being detained in such
places for weeks or even months at a time. Furthermore, excessive security
measures were employed at the centre, such as high wire fences, walkways
enclosed in cage-like structures, CCTV surveillance, metal reinforced officer
booths with perspex security screens, and metal grills on detainees’
bedroom windows.^[114]

Description: Entrance, Christmas Island IDC, May 2010

Entrance, Christmas Island IDC, May 2010.

The Commission has repeatedly raised concerns about the Management Support
Unit or the Red Compound at the Christmas Island
IDC.^[115] The Red Compound looks
and feels extremely harsh and punitive. The bedrooms are essentially small
cells, with solid metal doors and grills on the windows. All furniture is hard
and bolted to the floor. There are CCTV cameras in the bedrooms –
including in the toilet and bathroom areas – which cannot be turned off.
There is no outdoor space where detainees have an open view of the sky, and no
open space where they can freely walk or run. The Commission is concerned that
the Red Compound has been used on a number of occasions over the last two years.

$Description: R:\Current projects\Immigration\Immigration Detention\2010-11 Immigration Detention Visits\Christmas Island\Photos\North west point\Red compound\MSU\Christmas Island May June 2010 025.jpg$

Management Support Unit, Christmas Island IDC, May 2010.

There has been a substantial reduction in the number of people detained on
Christmas Island since the Commission’s 2010
visit.^[116] However, many of the
Commission’s concerns about accommodation on Christmas Island apply
regardless of the number of people detained there. The Commission continues to
recommend that the Australian Government stop using Christmas Island as a place
for holding people in immigration detention. It does so for a range of reasons,
including the island’s remoteness and the nature of the infrastructure and
accommodation in immigration detention facilities on the
island.^[117]

Recommendation 11: The Australian Government should stop
using Christmas Island as a place in which to hold people in immigration
detention.

17.2 Villawood

The Commission has raised serious concerns about the physical conditions at
Villawood IDC for a number of
years.^[118] The centre was not
purpose built, its infrastructure is aging and dilapidated, and, in the
Commission’s view, much of it is inappropriate for the purpose for which
it is being used. This places considerable strain on both detainees and staff.
The intrusive physical security measures at Villawood IDC create an
environment that feels harsh and punitive. The centre is surrounded by high wire
fences, some of which are alarmed or electrified; the internal compounds are
separated by further high wire or thick metal fences; many areas are under
camera surveillance; and there are static security guards stationed around
perimeter fences.

Description: External fences, Villawood IDC

External fences, Villawood IDC, February 2011.

The Commission’s most serious concerns about infrastructure and
accommodation at Villawood IDC relate to the physical conditions in Blaxland
compound, the highest security section of the centre. This compound remains one
of the most restrictive areas in the detention network. There are intrusive
security measures including prison-like perimeter fences, razor wire and camera
surveillance; a majority of detainees share crowded dormitory bedrooms with
virtually no privacy; and a complex mix of detainees is held together in a very
confined space. There is no dedicated space for educational activities,
virtually no library, and limited access to outdoor recreational areas. The
Commission has repeatedly recommended that Blaxland compound be
demolished.^[119]

Description: Blaxland compound, Villawood IDC

Blaxland compound, Villawood IDC, February 2011.

Description: Dormitory 1, Blaxland compound, Villawood IDC

Blaxland compound, Villawood IDC, February 2011.

Other compounds at Villawood IDC are also a source of concern for the
Commission. At the time of the Commission’s most recent visit, for
instance, people detained in Fowler compound were sharing small bedrooms with
two or three other people. They had very little space or privacy, and no
lockable space to store their personal
belongings.^[120]

Description: Bedroom, Fowler compound, Villawood IDC

Bedroom, Fowler compound, Villawood IDC, February 2011.

The Commission welcomed the announcement by the Australian Government in May
2009 that funding would be allocated for a major redevelopment of Villawood IDC,
and welcomes efforts made since that time in the planning and design phase.
Pending the major redevelopment, some smaller interim works have been undertaken
at Villawood IDC.^[121] While the
Commission welcomes these interim works, it remains of the view that the major
redevelopment should be undertaken as soon as
possible.^[122]

Recommendation 12: The redevelopment of Villawood IDC should
be undertaken as soon as possible. It should include the demolition of Blaxland
compound, ensure that people are detained in the least restrictive form of
detention possible, and address the infrastructure concerns raised by the
Commission in its 2008 Immigration detention report.

17.3 Residential
housing and alternative places of detention

The Commission has welcomed the commitment in the New Directions policy that
children, and where possible, their families, will not be detained in
immigration detention centres. The Commission has visited a significant number
of immigration residential housing complexes and alternative places of
detention.
In the Commission’s view, if people must be held in immigration
detention facilities, they should be held in less restrictive facilities such as
immigration residential housing complexes or alternative places of detention
rather than high-security immigration detention centres, wherever possible.
However, the conditions of detention in some alternative places of detention
are, in the Commission’s opinion, not appropriate for use as immigration
detention facilities, and are particularly unsuitable for families with children
and unaccompanied minors. For example, this is the case at Leonora alternative
place of detention which is a remote detention facility in a harsh physical
environment, with limited recreational
space.^[123]

Description: Accommodation blocks, Leonora immigration detention facility

Accommodation blocks, Leonora alternative place of detention, November
2010.

The Commission has also held concerns about the Construction Camp on
Christmas Island which has been used to detain families and unaccompanied
minors. Following the Commission’s visit in 2010, it held significant
concerns about the lack of open space in the Construction Camp, the fact that
there is no open grassy area inside the facility, and the lack of indoor
recreation space. People detained at the Construction Camp did have the
opportunity to visit an adjacent oval and playground, although access to this
area was completely restricted for a period of some months from late 2010
onwards.

Description: Construction Camp immigration detention facility, Christmas Island, May 2010

Construction Camp immigration detention facility, Christmas Island, May 2010.

Similarly, the Commission did not believe that the Asti Motel alternative
place of detention was an appropriate place to use as an immigration detention
facility; largely due to the lack of both indoor and outdoor recreation space
and that outdoor areas were all paved or concrete and had limited shade. The
Commission is pleased that it is no longer being used.
In contrast, the Commission generally welcomed the standard of accommodation
at the Darwin Airport Lodge alternative place of detention, though significant
concerns remained about the adequacy of the recreational space available in the
facility, especially given the high number of children detained
there.^[124]

Description: Offices and accommodation, Airport Lodge

Offices and accommodation, Darwin Airport Lodge, September 2010.

Similarly, Sydney IRH provides a much less punitive physical environment
than immigration detention centres. The facility is surrounded by residential
style fencing and external areas are monitored by cameras and an alarm system.
Sydney IRH is a purpose-built facility. Accommodation is in duplex houses which
provide people in detention with a greater level of privacy and autonomy. Often
people have their own bedroom, and they are able to cook their own meals. Perth
IRH provides a similar standard of accommodation to that at Sydney
IRH.^[125]

Description: Accommodation, Sydney IRH

Accommodation, Sydney IRH, February 2011.

The Commission also recently visited Inverbrackie alternative place of
detention in South Australia, where family groups are accommodated in
residential-style housing. Many aspects of life in Inverbrackie alternative
place of detention mirrored those in the wider community. For instance, people
were responsible for cooking and cleaning inside their own homes and they could
choose their own groceries. Several communal buildings were available for
detainees to use for a variety of purposes and there was a considerable amount
of open, grassed, shady space. The detention environment at Inverbrackie
alternative place of detention appeared to the Commission to afford the people
detained there a considerable degree more humanity than other immigration
detention facilities.

Description: Accommodation, Inverbrackie alternative place of detention, July 2011

Accommodation, Inverbrackie alternative place of detention, July 2011.

However, immigration residential housing complexes and alternative places of
detention are still closed detention facilities. People are not free to come and
go. They are only permitted to leave the facilities on escorted excursions.
Despite the preferable physical conditions, many people may still experience
psychological impacts as a result of the deprivation of their liberty. For
example, the Commission met with a number of people who spoke about the
detrimental impact of detention on its recent visit to the Sydney
IRH.

Recommendation 13: If people must be held in immigration
detention facilities, they should be held in less restrictive facilities such as
Immigration Residential Housing complexes rather than high-security immigration
detention centres, wherever possible.

18 Physical and mental
health services

Under international human rights standards, all people have a right to the
highest attainable standard of physical and mental
health.^[126] Each person in
detention is entitled to medical care and treatment provided in a culturally
appropriate manner and to a standard which is commensurate with that provided in
the general community. This should include preventive and remedial medical care
and treatment including dental, ophthalmological and mental health
care.^[127]
During visits to immigration detention facilities over the past several
years, the Commission has spoken with people in detention about the health and
mental health care with which they are provided; viewed the onsite health
facilities; and spoken with staff of IHMS. The Commission has held serious
concerns about the adequacy of physical and mental health services in some
facilities visited over the past few
years.^[128]
The Commission has repeatedly recommended that an independent body be
charged with monitoring the provision of physical and mental health services in
immigration detention, and that adequate resources to fulfil this function be
allocated to that body.^[129] While
the Detention Health Advisory Group currently plays an important advisory role,
it is not sufficiently resourced to monitor physical and mental health service
provision in detention facilities on a regular and ongoing basis.

Recommendation 14: An independent body should be charged
with the function of monitoring the provision of health and mental health
services in immigration detention. The Australian Government should ensure that
adequate resources are allocated to that body to fulfil this function.

18.1 Physical health
services

During recent visits to immigration detention facilities, the Commission
welcomed efforts by health staff to ensure that people in detention have access
to appropriate services and treatment. The Commission met IHMS staff who
appeared hardworking and committed and heard positive feedback from some people
in detention about the assistance provided by health staff.
However, many people also complained to the Commission of the standard of
health care they received in detention. For example, people have told the
Commission:

There are insufficient doctors and nurses. We have
many diseases here, but they just give us water and Panadol. It takes three days
to receive an appointment after you make a written
request.^[130]

People who are sick and really need attention cannot get it. If you go to
see them you get told no, fill in the form and
wait.^[131]

I waited 25 days to see someone after putting in a
request.^[132]
There are a number of issues relating to physical health care that detainees
across the detention network have repeatedly raised with the Commission. These
relate to:
- Delays with people in detention receiving an appointment to see a nurse or
  doctor.^[133] These delays appeared
  to occur, in some facilities, because of the IHMS staffing level being
  inadequate to meet the needs of the number of detainees in the
  facility.^[134]
- Extremely limited access to dental, optical or other allied health
  services.^[135]
- Limited access to specialist care and lengthy delays in seeing a specialist
  after requesting an
  appointment.^[136]
- Instances where individuals have not been provided with prompt or
  appropriate treatment for a range of serious medical issues including kidney
  stones and shrapnel wounds.^[137]
- Delays in providing test results and information about progress with
  requests for treatment.^[138]

18.2 Mental health
services

During its recent visits to immigration detention facilities, the Commission
has noted the efforts being made by IHMS staff to provide mental health care to
people in immigration detention. Some detainees told the Commission that
appointments were readily available and that the mental health care was
beneficial.^[139] Others, however,
spoke to the Commission of the prevalence of mental health issues in immigration
detention and the inadequacy of the mental health treatment available. For
example, people told the Commission:

They don’t check on
us. They just give us sleeping
pills.^[140]

These people are dying from the inside because of their
depression.^[141]

Most have mental problems – shaky hands, suicide thoughts, harm
themselves, can’t sleep,
fighting...^[142]

Almost every night we have nightmares about
death.^[143]

We tell the managers about our problems mentally, but we are told you will
be ok because we have a hospital for people who go
mental.^[144]
As discussed above in section 12, the Commission has long held serious
concerns about the detrimental impacts on people’s mental health and
wellbeing of being held in immigration detention facilities for prolonged and
indefinite periods of time. These concerns have escalated over the past year as
clear evidence has become available of the poor mental health of many people in
detention, including high rates of self-harm and five apparent suicides in
immigration detention facilities.
The Commission’s observations regarding mental health have been
informed by the presence of a consultant psychiatrist on the Commission’s
monitoring team for visits to immigration detention facilities at Darwin,
Villawood and Curtin.
The Commission has a number of concerns regarding provision of mental health
services across the immigration detention network.
The Commission’s primary concern relates to the model of clinical
governance of mental health services. In each of the facilities the Commission
has recently visited, clinical responsibility fell on the mental health team
leader, who was usually a mental health nurse or a psychologist. In the
Commission’s view, this is not appropriate, given the high number of
people being detained for prolonged periods, the mental health impacts of
prolonged detention and the complex nature of the caseload in some facilities.
Mental health services should be overseen by a psychiatrist who can provide
onsite clinical supervision of staff and accept clinical responsibility for the
provision of clinical care. DIAC has advised the Commission advised that it was
considering this issue.^[145] DIAC
should ensure that this matter is addressed in a consistent way across the
detention network as a matter of urgency.
Other concerns that the Commission holds regarding mental health service
provision include:

Inadequate staffing levels in a number of facilities, including those at
Villawood and in Darwin.^[146]
The lack of onsite IHMS mental health staff at immigration residential
housing facilities.^[147] DIAC has
reported that it is reviewing this
situation.^[148]
The lack of onsite access to a psychiatrist in remote centres, such as those
at Christmas Island and in Leonora and
Curtin.^[149]
That in some facilities, for example at Villawood, mental health services do
not extend to active outreach into the accommodation compounds. This means that
IHMS staff are unable to gain an accurate appreciation of the psychological
environment within the centre; they may be unable to identify individuals at
risk of psychiatric disorder and/or self-harm at an early stage and cannot
adequately monitor the mental state of individuals who have been referred to
them for treatment.^[150] In its
response to the Commission’s report of its 2011 visit to Villawood, DIAC
acknowledged the Commission’s concerns about the lack of outreach services
at that facility and ‘reconfirmed the need for outreach services with
IHMS’.^[151]
The high level of prescription and use of psychotropic medications,
including antipsychotics and antidepressants, for their sedative effect in order
to manage the high levels of sleeplessness among people in
detention.^[152]
That the PSP policy has not been adequately implemented across the detention
network and that not all relevant staff working across the network have had PSP
training.^[153]

Recommendation
15: In relation to the provision of physical and mental health services,
DIAC should:

Ensure that all people in immigration detention are provided with timely
access to appropriate health and mental health services, including dental care
and specialist care as required.
Conduct a review of the IHMS staffing levels in all immigration detention
facilities, and ensure as a matter of priority that there is a sufficient number
of staff in each facility to meet the needs of the number of people in detention
there.
Overhaul the clinical governance framework for the delivery of mental health
services across the detention network. This would involve a consultant
psychiatrist overseeing mental health service delivery, providing onsite
clinical supervision of staff and accepting clinical responsibility for the
provision of clinical care.
Ensure that active outreach work is conducted by IHMS mental health staff in
the accommodation compounds of all immigration detention
facilities.

18.3 Torture
and trauma services

Under international human rights standards, survivors of torture and trauma
should have access, without delay, to assessment and treatment by a qualified
professional with expertise in the assessment and treatment of torture and
trauma. Where an appropriately qualified professional is not on the staff in a
detention facility, referral should be made to an external specialist
agency.^[154]
Torture and trauma services are provided for people in immigration detention
by specialist torture and trauma services. In metropolitan centres such as
Villawood, Maribyrnong and Darwin IDCs, torture and trauma counselling is
usually conducted outside of the immigration detention centre. However, in some
remote centres such as Leonora and Curtin, the counselling is conducted within
the detention facility.
The Commission has a number of concerns regarding access to torture and
trauma services, including:
- The apparently low rate of referral to torture and trauma services for
  counselling in some facilities, including those at Darwin and Curtin, given the
  high number of people in detention who are likely to have experienced torture
  and trauma.^[155]
- The low numbers of torture and trauma counselling staff in some facilities,
  given the high number of people in detention who are likely to have experienced
  torture and trauma.^[156]
- The shortage of dedicated rooms in which counselling sessions can be
  conducted at some
  facilities.^[157]
The Commission is also concerned about the extent to which people who have
experienced torture and trauma can be appropriately cared for in a detention
environment. For example, on Christmas Island, one person in detention told the
Commission: ‘We cannot be staying in this situation for a long time. It
is difficult to tolerate trauma. Trauma is being repeated
here.’^[158]
The aim of DIAC’s Torture and Trauma Policy is to ensure that people
who have experienced torture or trauma:

are encouraged and
supported, wherever possible following consideration of health, character and
security risks, to reside legally in the community while their immigration
status is being resolved or, where this is not possible, in the least
restrictive form of detention to minimise the potential for immigration
detention to exacerbate any vulnerabilities associated with their previous
experience of torture and trauma.^[159]
Under the policy, the continued detention of survivors of torture and trauma
in an immigration detention centre is only to occur ‘as a measure of
absolute last resort where risk to the Australian community is considered
unacceptable’.^[160] Under
the Residence Determination Guidelines, persons who may have experienced torture
or trauma are to be prioritised for consideration of a Community Detention
placement.^[161]
Over the past two years, the Commission has had serious concerns regarding
the extent to which these policies are being implemented. For example, the
Commission heard from health services staff on Christmas Island in mid-2010 that
some individuals identified as high priority torture and trauma cases had
remained in detention on Christmas Island. The Commission has urged the
Australian Government to provide adequate access to torture and trauma services,
to ensure full implementation of the Torture and Trauma Policy, and full use of
the community detention system, particularly for vulnerable groups including
torture and trauma survivors.

Recommendation 16: DIAC should
ensure that all people in detention who are survivors of torture and trauma have
adequate access to specialist counselling services.

Recommendation 17: DIAC should ensure that its policy, Identification and Support of People in Immigration Detention who are
Survivors of Torture and Trauma is implemented across the immigration
detention network. Under this policy, the continued detention of survivors of
torture and trauma in an immigration detention centre is to occur only as a last
resort where risk to the Australian community in considered unacceptable.

19 Educational
opportunities

19.1 Children

The Commission has many serious concerns about holding children in
immigration detention as discussed in Part 5 below. One of these relates to the
provision of education. The CRC protects the rights of all children to
education, to engage in play and recreational activities appropriate to their
age, and to participate in cultural and artistic
activities.^[162] Wherever
possible, the education of children in immigration detention should take place
outside the detention facility, in the general school
system.^[163]
Attending local schools provides children with the opportunity to enjoy
their right to education as well as the chance to play and engage with other
children in a ‘normal’ environment, outside the detention facility.
During recent visits to immigration detention facilities, the Commission heard
of the high importance placed on education by many children in detention. For
example, one unaccompanied child, who was not allowed to attend external
schooling at that time, told the Commission, ‘it is very important for
us to be in society. We are segregated. We don’t learn anything here. We
should be
learning’.^[164]
The availability of education to children in detention varies across the
immigration detention network.
For example, at the time of the Commission’s visit to Christmas Island
in 2010, children aged 15 or under were able to attend the Christmas Island
District High School on a daily basis. The Commission heard positive feedback
from parents in detention about their children’s attendance and
participation in classes at the local school. Generally, however, 16 and 17 year
olds (mostly unaccompanied minors) did not attend the local school on Christmas
Island. Some older minors attended classes in two demountable buildings inside
the detention facility but insufficient classes were being held to accommodate
all children who wished to participate.
School-aged children detained at Leonora alternative place of detention and
the Sydney IRH were permitted to attend local schools at the time of the
Commission’s visits to these places in November 2010 and February 2011
respectively.^[165] However,
children too young to attend primary school were not being provided with
opportunities to participate in active learning and play activities outside the
detention facility. In contrast, children detained at Inverbrackie alternative
place of detention could attend local pre-schools in addition to local primary
schools and high schools.
The Commission was very concerned that children detained at the Asti motel
and the Airport Lodge in Darwin were unable to attend external schools for a
protracted period in 2010. At the time of the Commission’s visit in
September 2010, there were 248 children (including unaccompanied minors) in
immigration detention facilities at Darwin and none of them was attending an
external school or kindergarten. While the majority had been in detention for less than three months, 50 children
had been there for longer than three
months.^[166] Access to external education for children detained in immigration detention
facilities in Darwin commenced in late October 2010.

Recommendation 18: Children of
all ages should be permitted to attend school or participate in other
appropriate educational programs outside the detention environment.

19.2 Adults

Description: Educational space, Curtin IDC, May 2011

Educational space, Curtin IDC, May 2011.

Under international human rights standards, opportunities for English
language instruction and further education, including technical and vocational
training, should be provided for people in immigration detention where
possible.^[167] These opportunities
are important both in providing people with a constructive way to spend their
time in detention and in assisting people to improve their English communication
skills. People who ultimately stay in Australia are likely to experience easier
integration into the community and be better able to meaningfully contribute to
society upon release from detention if they have had such opportunities.
The Commission has been concerned during recent visits to some immigration
detention facilities about the limited availability of opportunities for adult
education. For instance, during its 2010 visit to Christmas Island, the
Commission was concerned about the limited access adults had to educational
activities. The substantial increase in the number of people being held in each
facility at the time of the Commission’s visit had led to overcrowded
classes and long waiting periods for people to attend
lessons.^[168]
Similarly, when the Commission visited Leonora alternative place of
detention, it heard numerous complaints from people in detention about the
insufficient number of English classes for adults. Many people claimed that they
were only able to attend one English class each week, and that often the level
of instruction was not appropriate for
them.^[169]
Furthermore, at Curtin IDC, detainees told the Commission that classes were
overcrowded, sometimes to the extent that there were an insufficient number of
seats to accommodate the people who wished to participate and people had to sit
on the floor.^[170]

Recommendation 19: All people in immigration detention
should be provided with access to a range of educational activities, including
English language classes, conducted on a regular and frequent basis.

20 Meaningful activities
for people in detention

International human rights standards require that people in immigration
detention have access to materials and facilities for exercise, recreation,
cultural expression and intellectual pursuits to utilise their time in detention
in a constructive manner, and for the benefit of their physical and mental
health.^[171] International
standards provide that children in immigration detention in particular should be
provided with opportunities to engage in recreational
activities.^[172] The provision of regular, engaging and constructive activities is vital to
people’s capacity to cope in immigration detention, particularly when they
are detained for long periods of time.
The Commission has welcomed efforts in some of the immigration detention
facilities it has recently visited to provide detainees with opportunities to
spend their time in detention in an appropriate and meaningful way. For example,
at Leonora alternative place of detention, detainees could participate in
sewing, knitting, arts and crafts and occasional cultural cooking sessions.
However, in some immigration detention facilities, opportunities to
participate in engaging and constructive activities were limited. For instance,
at Darwin, people in immigration detention did not have access to an appropriate
library area; there was a lack of space for young children to play and most
detainees did not have access to a
gym.^[173] At the time of the
Commission’s visit in 2010, there were limited reading materials available
to detainees in the Construction Camp and Phosphate Hill facilities, and other
recreational opportunities were limited across all facilities on the island due
to overcrowding.^[174] The
Commission was concerned to hear that, at the time of its 2011 visit to
Villawood IDC, there was a period for which Serco was not meeting its
contractual requirements in relation to the provision of recreational
activities.^[175]

Description: Gym, Dormitory 3, Blaxland compound, Villawood IDC

Gym, Dormitory 3, Blaxland compound, Villawood IDC, February 2011.

Description: Marquee used as recreational space, Curtin IDC, May 2011

Marquee used as recreational space, Curtin IDC, May 2011.

The limited availability of regular purposeful activities in some places of
detention appears to have resulted in high levels of boredom, frustration and
tension.^[176] In some places,
space constraints and a lack of recreational facilities and toys appeared to be
creating tensions between children and associated friction between
parents.^[177] Moreover, people at
some facilities said the lack of activities was affecting their physical and
mental health.^[178]
People in detention at some facilities told the Commission they would like
to be provided with further opportunities to spend their time in detention in an
engaged and constructive way.^[179] Some people expressed a specific desire to engage in some form of constructive
voluntary activity, either inside or outside the detention
environment.^[180]
Meanwhile, other people in detention spoke of feeling too depressed or
distracted to take part in activities. This was a particular issue for people
who had been detained for long periods. For example, one man detained at
Villawood IDC, acknowledged the activities available there but said:
‘How can we participate when we are psychologically
tired?’^[181]

Recommendation 20: DIAC should ensure that all people in
immigration detention have access to:

adequate outdoor recreation spaces including grassy and shaded areas
adequate indoor areas for recreational activities
a range of recreational activities conducted on a regular and frequent
basis
a freely accessible library area stocked with reading materials in languages
spoken by people in detention
opportunities to attend religious services in the community, should they
wish to do so.

21 Opportunities to
leave the detention environment on external excursions

The Commission has long expressed the view that people in immigration
detention should be provided with regular opportunities to leave the detention
environment through participation in external excursions. This can be vital in
assisting people to cope with the deprivation of their liberty, particularly
when they are detained for prolonged periods, and may attenuate the development
of self-harming and suicidal behaviours.
During recent visits to immigration detention facilities, the Commission
heard from many people in detention about the negative impact on them of the
lack or infrequency of excursions. People – some of them young children
– told the Commission:

I want to be allowed to go outside
to somewhere else.^[182]

We are going crazy without
excursions.^[183]

We have been more than one year inside Curtin and we have no idea what it
is like outside.^[184]

We are all forgetting what it is like to be out. We want to see what
Darwin looks like. I’m forgetting the shape of a
city.^[185]

If you let us go out once a week we will be very
relaxed.^[186]
The Commission welcomes efforts to provide some people in immigration
detention with the opportunity to take part in escorted excursions, including to
parks, libraries, shopping centres, recreational centres and
museums.^[187]
There are, however, significant inconsistencies across the detention network
in the frequency of excursions for detainees. When the Commission visited Darwin
in September 2010, regular excursions were not being conducted for any of the
people in detention there, with the exception of a small number of unaccompanied
minors detained at Berrimah
House.^[188] Similarly, people
detained at Villawood IDC had not been given the opportunity to participate in
recreational excursions for over a year at the time the Commission visited that
facility in February 2011.^[189] In
addition, no external excursions from Curtin IDC were conducted from the time
the facility reopened in June 2010 until approximately one week before the
Commission visited in May 2011.
In the Commission’s view, there should be consistent standards for
access to external excursions across the detention network. Standards for the
conduct of a minimum number of external excursions should be specified in the
Serco contracts applicable to all detention facilities, and financial penalties
should be applied if those standards are not met.

Recommendation
21: DIAC should ensure that people in immigration detention are provided
with regular opportunities to leave the detention environment on external
excursions. DIAC should implement consistent standards for external excursions
across the detention network. Standards for the conduct of a minimum number of
external excursions should be specified in the Serco contracts applicable to all
detention facilities, and financial penalties should be applied if those
standards are not met.

22 Communications

$Description: R:\Current projects\Immigration\Immigration Detention\2010-11 Immigration Detention Visits\Villawood\Photos\VIDC\Fowler\Picture 144.jpg$

Telephones, Villawood IDC, February 2011.

$Description: R:\Current projects\Immigration\Immigration Detention\2011-12 Immigration Detention Visits\Inverbrackie\Photos\All photos\IMG_2554.JPG$

Computers, Inverbrackie alternative place of detention.

It is critical for people deprived of their liberty to be able to
communicate with the outside world, in order to maintain regular communication
with family members, friends and support networks, and to ensure effective
contact with legal advisers and migration agents.
Under international human rights standards, people in detention should be
able to enjoy regular contact with family, friends and community members,
facilitated through visits, correspondence and access to telephones. They should
also be provided with facilities to communicate and consult in private with
legal representatives.^[190]
The Commission is concerned that there is inadequate access to
communications facilities, including telephones and internet terminals, in many
immigration detention facilities.
For example, at the time of the Commission’s visit to Christmas Island
in 2010, there was a serious shortage of telephones available for use by people
in detention. In the Christmas Island IDC, there were at most four landline
telephones available for use per compound, each of which accommodated over one
hundred people. One compound, which accommodated 341 people, had no landline
telephones at the time of the Commission’s visit. At the Construction Camp
facility, there were three telephones for the use of 418
people.^[192]
The Commission has found similar problems in other detention facilities. For
example, in one compound at the Northern IDC, there were two telephones for the
use of 211 detainees at the time of the Commission’s visit in September
2010.^[193] At Curtin IDC, there
was only one incoming phone line available for use by 1433 people during the
Commission’s May 2011 visit.
Internet facilities are also limited in immigration detention facilities.
For example, when the Commission visited Christmas Island in 2010, there were 23
internet terminals for the use of 1834 people at the Christmas Island IDC; 12
terminals shared by 418 people detained at the Construction Camp; and eight
terminals shared by 164 people detained at the Phosphate Hill
facility.^[193] When the Commission
visited Curtin IDC in May 2011, there were only 18 computers for the use of the
1433 people detained in the facility.
Limited access to functioning telephones and internet terminals is a
particular problem at remote detention facilities such as those at Christmas
Island and Curtin IDC, where detainees have very limited face-to-face access to
legal or community support groups. For example, the Commission was concerned
during its recent visit to Curtin IDC about the significant impact that the
limited communications facilities there was having on people’s ability to
access legal assistance if they were seeking judicial review of decisions
regarding their refugee status.
The Commission has heard from people in immigration detention facilities of
the impact of limited communications. For example, people have
said:

I had to wait a month for a password to be issued to me for
the internet. And the new arrivals don’t have one yet. Some have been
waiting a month; some a
week.^[194]

They have made it so hard for a lawyer to call us. We have to make an
appointment and it takes three days to organise appointment for lawyer to call
us back.^[195]

In other camps you can use mobile phones. Why not allow this here,
especially with how far we are away and the cost of
calls?^[196]

Recommendation 22: DIAC should ensure that all people in immigration
detention have adequate access to communication facilities including internet
facilities and telephones.

23 Monitoring conditions
of immigration detention

23.1 Minimum
standards

The Commission has repeatedly raised concerns about the lack of transparent
and enforceable standards for conditions in immigration detention, and has
called numerous times for minimum standards to be codified in
legislation.^[197] These should be
based on relevant international human rights standards, in order to ensure that
people in detention are treated in line with Australia’s human rights
obligations.
In DIAC’s response to the Commission’s most recent
recommendation that minimum standards be enacted in legislation, DIAC stated
that detention services are subject to an ‘external scrutiny and
accountability framework’; that people in immigration detention can access
legal advice and representation; and that ‘new contractual arrangements
for detention services have a strong focus on the rights and wellbeing of people
in immigration detention’.^[198] However, DIAC also stated that it
did

not consider it necessary to enact standards in legislation in
order to meet Australia’s human rights obligations. While the large
numbers of irregular maritime arrivals have increased the challenges in
providing detention services, DIAC and its detention services provider always
endeavour to meet relevant
standards.^[199]
In the Commission’s view, the most appropriate way to ensure that
standards for detention conditions are adequately and consistently implemented
is to embed minimum standards in legislation. This would be in line with UNHCR
guidelines which require conditions of detention for asylum seekers to be
prescribed by law.^[200]
In the meantime, the Commission supports the recommendation made by the JSCM
in 2009 that DIAC should make the contract standards available on its website
and report on detention service providers’ compliance with the standards
in its annual
report.^[201]

Recommendation
23: Legislation should be enacted to set out minimum standards for
conditions and treatment of detainees in all of Australia’s immigration
detention facilities, including those located in excised offshore places. The
minimum standards should be based on relevant international human rights
standards, should be enforceable and should make provision for effective
remedies.

23.2 Independent
monitoring

Regular independent monitoring of immigration detention facilities is
essential in order to increase accountability and transparency, and to monitor
to ensure that they meet internationally accepted human rights standards.
The Commission acknowledges positive efforts by DIAC to facilitate the
Commission’s visits to immigration detention facilities across the
network, as well as visits by other monitoring bodies and non-government
organisations.^[202] The Commission
also welcomes the increased transparency of DIAC’s operations over the
past few years.
However, the Commission remains concerned that there is minimal information
available to the general public about the operation of Australia’s
immigration detention facilities and the people detained in them. At the time of
writing, for example, the Detention Statistics Summary page of DIAC’s
website had been unavailable for some
months.^[203]
The Commission remains of the view that there is a need for a more
comprehensive monitoring mechanism for Australia’s immigration detention
facilities, particularly those in remote locations. Currently, there is no
monitoring body with all of the key features necessary to be fully effective:
independence from DIAC; adequate funding to fulfil the role; the capacity to
maintain an ongoing or regular presence at immigration detention facilities; a
specific statutory power to enter immigration detention facilities;
comprehensive public reporting for transparency; and the capacity to require a
public response from government.
A more comprehensive monitoring mechanism to ensure that conditions in
immigration detention meet human rights standards could be achieved through the
ratification of the Optional Protocol to the Convention against Torture (OPCAT). The Commission is aware that the Attorney-General’s Department is
currently working towards the ratification and implementation of the Optional
Protocol. The Commission urges the Australian Government to ratify and implement
OPCAT as a matter of priority.

Recommendation 24: The
Australian Government should ratify the Optional Protocol to the Convention
against Torture and establish an independent and adequately resourced
National Preventive Mechanism to conduct regular inspections of all places of
detention. This should include all immigration detention facilities, including
those located in excised offshore places.

^Top

PART 4: Children in
immigration detention

Description: Child’s painting, Leonora alternative place of detention (2010)

Child’s painting, Leonora alternative place of detention (2010).

The Commission has repeatedly raised concerns about the mandatory detention
of children, the number of children in immigration detention and the prolonged
periods for which many children are
detained.^[204]
The Commission welcomes the movement of a significant number of families and
unaccompanied minors from secure detention facilities into community detention
since October 2010. Between 18 October 2010 and 27 July 2011, 735 children were
moved into community
detention.^[205]
However, the Commission is concerned that a substantial number of children,
including unaccompanied minors, remain in immigration detention. At 30 June
2011, 991 children were in immigration detention in Australia, including 478 in
closed immigration detention
facilities.^[206] The Commission
remains opposed to the mandatory detention of children because it breaches
Australia’s international human rights obligations and creates a high risk
of serious mental harm.

24 Mandatory detention
of children

The CRC requires that a child should only be detained as a measure of last
resort and for the shortest appropriate period of
time.^[207] Australia’s
system of mandatory detention breaches this obligation. The mandatory detention
of children is also inconsistent with s 4AA of the Migration Act, under
which children should only be detained as a measure of last resort.
In 2004, the Commission released A last resort?, the report of the
National Inquiry into Children in Immigration Detention (the Inquiry). During
the period of the Inquiry, large numbers of children were detained for lengthy
periods in Australia’s high security immigration detention
centres.^[208]
The Inquiry found that Australia’s immigration detention system was
fundamentally inconsistent with the CRC. In particular, the system failed to
ensure that:
- detention of children is a measure of last resort, for the shortest
  appropriate period of time and subject to effective independent review
- the best interests of the child are a primary consideration in all actions
  concerning children
- children are treated with humanity and respect for their inherent
  dignity
- children seeking asylum receive appropriate assistance to enjoy, to the
  maximum extent possible, their right to development and their right to live in
  an environment which fosters the health, self-respect and dignity of children in
  order to ensure recovery from past torture and
  trauma.^[209]
The Inquiry also found that children in immigration detention for long
periods of time are at high risk of serious mental
harm.^[210]
Since the release of A last resort?, the Commission has welcomed
positive changes including that children are no longer detained in high security
immigration detention centres. However, children are still subjected to
mandatory detention.
In 2005 the Migration Act was amended to insert s 4AA, affirming
‘as a principle’ that a minor should only be detained as a measure
of last resort.^[211] The
Commission welcomed this development. However, the Commission is concerned that
s 4AA is not being adequately
implemented.^[212]The Australian
Government’s policy is that all irregular maritime arrivals, including
families with children and unaccompanied minors, are mandatorily detained on
Christmas Island. This is despite the fact that the Migration Act does not
require the mandatory detention of unauthorised arrivals in excised offshore
places.^[213] Children are also
held in secure immigration detention facilities on the mainland unless they are
moved into community detention.

25 Detention placement
for children

While children are no longer held in Australia’s high security
immigration detention centres, there are many children in other closed
immigration detention facilities, including immigration residential housing,
immigration transit accommodation, and alternative places of detention.
As discussed in section 17.3 above, while the physical environment at some
such places is preferable to that inside high-security immigration detention
centres, they are still detention facilities from which children and their
families are not free to come and go. Children might be escorted to an external
school during the day, or they might take part in supervised excursions, but
during the remainder of their time they are restricted to the detention
facility. In line with its obligations to only detain children as a last resort,
the Australian Government should consider less restrictive alternatives before
deciding to detain a child in a closed immigration detention facility. The
detention of children in such facilities should only occur in exceptional
circumstances.^[214]
The Commission has numerous concerns about the conditions of detention in
some facilities, many of which impact upon children held in detention. The
Commission’s primary concerns include:
- The impact of detention in remote locations, including the harsh physical
  environment of some detention facilities, for example at
  Leonora.^[215]
- Detention infrastructure and accommodation which is inappropriate for
  families and unaccompanied children due to a lack of open grassy spaces and
  inadequate indoor and outdoor recreation spaces, for example at Leonora, Darwin
  and the Construction Camp on Christmas
  Island.^[216]
- The impact of overcrowding in some facilities, for example at the
  Construction Camp during
  2010.^[217]
- Inadequate provision of access to education for children in detention in
  some locations, including the Construction Camp and
  Darwin.^[218]
- Inadequate provision of suitable recreational opportunities for children in
  detention in some facilities, including those at the Construction Camp, Darwin
  and Leonora.^[219]
As noted above, the Commission has welcomed the placement of significant
numbers of families and unaccompanied minors into community detention. Prior to
the October 2010 announcement that the majority of children would be placed into
community detention by June 2011, the Commission had expressed serious concerns
about the under-utilisation of community
detention.^[220] The Commission
urges the Australian Government to place all families and unaccompanied minors
into community detention and to move towards such placement being routine
practice within weeks of a family or unaccompanied minor who would otherwise be
held in a secure immigration detention facility arriving in
Australia.

26 Prolonged and
indefinite detention of children

Over the past two years, the Commission has held serious concerns at the
prolonged and indefinite detention of some children in immigration detention
facilities. For example, at the time of the Commission’s visit to the
Sydney IRH in February 2011, all of the eight children there had been held in
detention for longer than three months; seven had been in detention for longer
than six months; and three had been in detention for longer than a
year.^[221] At the time of the
Commission’s visit to Leonora in November 2011, there were 66 children in
the facility. More than 80% of these children had been detained for longer than
three months; fifty children had been detained for longer than six months; and
three had been detained for ten
months.^[222]
In addition, some children are facing indefinite detention. There are three
children who remain in a closed immigration detention facility with no imminent
prospect of release as their parents have received adverse ASIO security
assessments.^[223] Holding children
in immigration detention facilities for prolonged and indefinite periods is
inconsistent with Australia’s obligations under the CRC to hold children
in detention only for the shortest appropriate period of
time.^[224]
The Commission is also concerned that the immigration detention of children
is still not subject to judicial oversight to ensure its continuing legality and
appropriateness. This is despite Australia being obliged under the CRC to
provide for children in detention to challenge their detention before a court or
other independent authority.^[225] The Commission has raised concerns about this for many years and continues to
recommend legislative change to ensure that if children are detained, their
detention is subject to judicial and other independent review
mechanisms.^[226]
It has been well demonstrated that prolonged and indefinite immigration
detention can have significant adverse impacts on the health, safety and welfare
of the children subject to detention and their families. During the Inquiry, the
Commission found that prolonged detention in remote facilities prevented
children from enjoying their right to the highest attainable standard of
health.^[227] Significant numbers
of children in immigration detention experienced psychiatric illnesses, such as
depression and post-traumatic stress disorder, that were either caused or
exacerbated by long-term
detention.^[228] The Inquiry also
found evidence that the detention environment contributed to developmental delay
in some young children.^[229] Further, the Inquiry was presented with numerous examples of self-harm by
children in immigration detention, particularly among longer-term detainee
children.^[230]
The Commission has spoken to many children and their families on recent
visits to immigration detention facilities about their experiences of detention.
A significant number of them expressed confusion, frustration and distress about
their situation. For instance, one unaccompanied child in detention at Darwin
told the Commission that, in detention, ‘one day looks like a year. It
looks like the day is not going
anywhere.’^[231] Many
parents were extremely worried about the effects of detention on their children,
telling the Commission:

My children come home from school and
ask, “Why are they doing this to us Mum? Why are we still
here?”^[232]

Adults can tolerate [being in detention]. Children don’t understand.
It is hard for them.^[233]

This has scarred [my
daughter].^[234]

No parent would want their children to have that
environment.^[235]

We want our kids to be happy. We want them to have a peaceful
life.^[236]
Given the significant numbers of children remaining in immigration detention
facilities, the Commission continues to recommend legislative changes to ensure
that children will only be detained in the first place if it is truly a measure
of last resort, and that if they are detained, it is for the shortest
appropriate period of time and subject to independent and judicial review
mechanisms.

27 Unaccompanied minors
in immigration detention

Australia has specific international obligations relating to the care and
protection of unaccompanied minors in immigration detention. The requirements to
detain children only as a measure of last resort and only for the shortest
appropriate period of time apply equally to unaccompanied
minors.^[237] UNHCR guidelines also
provide that unaccompanied minors should not be detained, particularly in
isolated areas.^[238] Additionally,
because of their particular vulnerability, the CRC requires the Australian
Government to provide unaccompanied minors with special protection and
assistance.^[239]
The Commission has a range of concerns relating particularly to
unaccompanied minors in immigration detention. Most significantly, the
Commission is concerned that there continues to be an inherent conflict of
interest in having the Minister or his DIAC delegate act as the legal guardian
of unaccompanied minors in immigration detention. The Commission has repeatedly
recommended that an independent guardian should be appointed for all
unaccompanied minors in immigration
detention.^[240] DIAC has informed
the Commission that it acknowledges the ‘perceived conflict of
interest’ and has informed the Commission that policy work is being
progressed to improve the guardianship
regime.^[24`]
The Commission is concerned that in the absence of an independent guardian,
there is no localised written policy within detention facilities setting out who
is the delegated legal guardian and when that guardian should be consulted. DIAC
officers and staff members of detention service providers in each detention
location should be provided with a clear written policy setting out which DIAC
officer has been delegated the Ministers powers of legal guardianship of
unaccompanied minors in that location, and how and when that guardian should be
consulted.
DIAC has established a scheme whereby an independent observer is present at
all interviews that unaccompanied minors undergo. The Commission has welcomed
this scheme, but has had concerns that it is not uniformly applied throughout
the detention network, with staff in some facilities being unaware of the
requirement for independent
observers.^[242] DIAC should ensure
that the policy of requiring an independent observer to be present in interviews
involving unaccompanied minors is complied with in all locations where
unaccompanied minors are held in immigration detention.

28 Child welfare and
protection responsibilities

Under international human rights standards, Australia is obliged to take
‘all appropriate legislative, administrative, social and educational
measures’ to ensure that children are protected from all types of
violence, abuse, or neglect caused by a child’s parent or any other person
who is caring for the child.^[243] In the detention environment this means that DIAC and the detention services
provider must take positive steps to ensure that children are protected from
physical and mental violence, abuse and neglect in detention, irrespective of
its source.
For many years, the Commission has raised concerns about the lack of
coordination between DIAC and state and territory child welfare authorities
regarding responsibilities for the welfare and protection of children in
immigration detention.^[244]
The Commission has repeatedly recommended that the Australian Government
clarify the applicable laws and jurisdictions of relevant state and federal
bodies; clarify through formal Memoranda of Understanding the respective roles
and responsibilities of state and federal authorities; clearly communicate these
roles and responsibilities to all relevant authorities; and ensure that there
are clear policies and procedures in place regarding child welfare and
protection concerns that may
arise.^[245]
The Commission has held particular concerns that there have not been
localised written protocols in each detention facility setting out the procedure
to follow in the case of concerns arising about the welfare or protection of a
child in detention.^[246] In the
Commission’s view, all relevant DIAC officers and staff members of
detention service providers should be provided with a localised protocol setting
out the requirements, procedures and contact details for making child welfare
and protection notifications.

Recommendation 25: The
Australian Government should implement the outstanding recommendations of the
report of the National Inquiry into Children in Immigration Detention, A last
resort?. These include that Australia’s immigration detention laws
should be amended, as a matter of urgency, to comply with the Convention on
the Rights of the Child. In particular, the new laws should incorporate the
following minimum features:

There should be a presumption against the detention of children for
immigration purposes.
A court or independent tribunal should assess whether there is a need to
detain children for immigration purposes within 72 hours of any initial
detention (for example, for the purposes of health, identity or security
checks).
There should be prompt and periodic review by a court of the legality of
continuing detention of children for immigration purposes.
All courts and independent tribunals should be guided by the following
principles:
- detention of children must be a measure of last resort and for the
  shortest appropriate period of time
- the best interests of children must be a primary consideration
- the preservation of family unity
- special protection and assistance for unaccompanied
  children.

Recommendation 26: The Australian
Government should, as a matter of priority, implement the recommendations made
by the Commission in A last resort? that:

Australia’s laws should be amended so that the Minister for
Immigration and Citizenship is no longer the legal guardian of unaccompanied
minors in immigration detention.
An independent guardian should be appointed for unaccompanied minors in
immigration detention.

^Top

PART
5: Community-based alternatives

There are viable alternatives to mandatory and indefinite immigration
detention. A range of community-based alternatives are being increasingly used
in nations across the world. Such alternatives have proven to be effective means
of managing people seeking protection and others whose immigration status is
uncertain; many are cheaper than mandatory detention; and all are more humane.
The Commission believes that Australia should follow this global trend and
replace its system of mandatory and indefinite detention with effective
community-based alternatives.
People in immigration detention facilities have spoken with the Commission
about the possibility of community-based alternatives. They have
said:

They could monitor us in the community if they needed to,
this happens in other
countries.^[247]

We are very hard working people. Let us out of here. We won’t ask
for Centrelink money. We will work hard. We will be good workers for the
Australian community. All we need is a peaceful
life.^[248]

29 Principles of
community-based alternatives

Models of community-based alternatives are developed around some key
principles. These include a presumption against detention; the use of individual
screening and assessment processes; and a risk-based approach to the need for
detention. One example of a system consistent with these principles is the CAP
Model, or Community Assessment and Placement Model. Developed by the
International Detention Coalition and drawing on two years of research
undertaken in partnership with La Trobe University, CAP is a five-step
decision-making model designed to prevent unnecessary immigration detention. The
five steps incorporated by CAP are:
- Presume detention is not necessary.
- Screen and assess the individual case.
- Assess the community setting.
- Apply conditions in the community if necessary.
- Detain only as a last resort in exceptional
  cases.^[249]
The CAP Model may be a useful tool with which to develop a system of
community-based alternatives to mandatory and indefinite immigration detention.
There are a host of benefits associated with community-based alternatives.
For example:
- Community based alternatives can be much cheaper than facility-based
  detention, especially the Australian model of prolonged and indefinite
  detention, often in remote locations. For example, in Canada, providing for
  asylum seekers living in the community has been costed at $10-12 per person per
  day, compared with $179 for
  detention.^[250] In Australia, the
  Community Assistance Support program, a service for certain vulnerable asylum
  seekers living in the community, has been costed at a minimum of $38 per day, as
  opposed to a minimum of $125 per day for
  detention.^[251] Community-based
  alternatives also do not require the construction, maintenance and staffing of
  immigration detention facilities, which is especially expensive in remote
  locations.
- It can be much quicker and easier to process asylum seekers’ claims
  for protection when they are living in the community in metropolitan areas,
  rather than in remote detention facilities.
- Community-based alternatives allow for much readier transition to life in
  the community for those asylum seekers who are permitted to stay in Australia.
  Notably, a significant majority of people who apply for protection in Australia
  are granted permanent protection
  visas.^[252]
- Where people are found not to be owed protection and are to be returned to
  their country of origin, people living in the community are more willing to
  return than those living in
  detention.^[253] Returns are also
  less costly to effect from the community.
- Community-based alternatives pose far less dangers for immigration detainees
  and detention staff: they entail fewer risks to health, mental health, safety
  and wellbeing.^[254] Consequently,
  they are likely to lead to fewer claims for compensation and lower rates of
  suicide and self-harm.
- There are very low rates of absconding from community-based alternatives to
  detention.^[255]
- There are community-based alternatives that allow for release from secure
  detention facilities while still enforcing immigration law and providing
  protection for the community. For example, community-based alternatives may be
  subject to conditions, such as travel restrictions, curfews, daily reporting to
  authorities and sleeping at a specified residence every night.

30 International approaches to community-based
alternatives

A variety of systems are used worldwide as
alternatives to mandatory and indefinite immigration detention. In Spain, for
instance, asylum seekers who enter the refugee determination process are either
released into the broader community or accommodated in an open reception centre
from which they are free to come and go, depending on their means. They are
given a small monthly allowance and permitted to access medical and
psychological services, a social worker, legal aid and educational
opportunities. Asylum seekers can be housed in reception centres for up to six
months, after which time they are assisted to find independent housing and
employment or, if they are vulnerable, they may apply for an
extension.^[256]
Similarly, Sweden has a ‘reception program’ rather than a system
of mandatory detention. A person seeking protection is issued with
identification documents upon arrival which are used by immigration officials to
track the person’s case. After spending about one week in an initial
transit or processing centre, asylum seekers will be released into the community
and can use their documentation to access some basic services. They are
permitted to work in a range of circumstances, and if they do, they must
contribute to the costs of their food and
accommodation.^[257]
There are many alternatives in use that allow release from detention while
protecting the community and maintaining the integrity of a country’s
immigration process. For example, in Canada, people may be released
from immigration detention with conditions of bond or bail and incur negative
financial consequences if they breach the conditions of their
release.^[258] New Zealand employs
a combined system incorporating detention and monitoring that uses reporting and
residence requirements to manage people’s cases rather than secure
detention.^[259] If asylum seekers
living in the community fail to comply with certain requirements, they are
subject to arrest and detention.^[260]

31 Community-based
alternatives in Australia

The New Directions policy dictates that people should be detained in the
least restrictive environment appropriate to their individual circumstances and
that there should be a presumption that people will be permitted to reside in
the community unless they pose an unacceptable risk to the Australian
community.^[261] There are already
some positive and progressive community-based alternatives which correspond with
this policy being used in Australia, including bridging visas and community
detention.
Many asylum seekers who arrive by plane are not detained for prolonged
periods, but receive bridging visas while their claims for protection are
processed. Some bridging visas entail work rights, which allow asylum seekers to
support themselves and their families in the community. The Commission supports
the use of bridging visas as a community-based alternative.
The Commission has also consistently supported the use of community
detention for vulnerable asylum seekers including families with children. As
noted above, since 2005, the Minister has been empowered under the Migration Act
to make a Residence Determination, which allows a person in immigration
detention to live in a specified residence in the
community.^[262] People in
community detention remain in immigration detention at law but they are
generally not under supervision and can move freely about in the community.
Conditions may attach to a residence determination to mitigate any identified
risks, such as curfews, travel restrictions and strict reporting requirements.
In the Commission’s view, if a person must be taken into immigration
detention, in most cases the appropriate form of detention will be community
detention.
The Commission welcomed the Minister for Immigration and Citizenship’s
announcement of 29 June 2011 that 513, or 58%, of children in immigration
detention had been moved out of secure immigration detention facilities and into
community detention.^[263] By 27
July 2011, 735 children had been moved in community
detention.^[264]
However, the Commission also remains concerned about the limited use of
community-based alternatives in Australia. There is an urgent need for the
Australian Government to implement the New Directions policy and make greater
use of alternatives to holding people in high-security immigration detention
facilities.
For example, bridging visas could – and under the Australian
Government’s own New Directions policy, should – be used more
extensively to prevent the prolonged detention people who arrive by boat seeking
asylum.
In addition, the Commission has repeatedly raised concerns about the
under-utilisation of community detention
nationally.^[265] A significant
number of people remain in immigration detention facilities despite appearing to
meet one or more of the criteria for community detention under the Residence
Determination Guidelines.^[266] This includes people with significant medical issues, people with significant
mental health concerns, people who have self-harmed and torture and trauma
survivors. The Commission continues to urge the Minister and DIAC to make full
use of community detention, particularly for people who meet the priority
criteria under the Residence Determination
Guidelines.^[267]The Commission is
particularly troubled by the limited use of community detention as an
alternative to facility-based detention for people with mental health concerns
or backgrounds of torture or trauma.
The Commission believes there is considerable scope for Australia to expand
and develop its use of community-based alternatives to mandatory and indefinite
immigration detention. There is a wealth of international experience to draw
from as well as successful initiatives already in place in Australia.

^Top

^[1] Human Rights and Equality
Opportunity Commission, A last resort? National Inquiry into Children in
Immigration Detention (2004) (A last resort?), at http://www.humanrights.gov.au/human_rights/children_detention_report/index.html (viewed 5 August 2011).
^[2] Human
Rights and Equal Opportunity Commission, Those who’ve come across the
seas: Detention of unauthorised arrivals (1998), at http://www.humanrights.gov.au/human_rights/immigration/seas.html (viewed 5 August 2011).
^[3] The
Commission’s submissions on immigration issues are available at http://www.humanrights.gov.au/legal/submissions/index.html#refugees (viewed 5 August 2011).
^[4] The
Commission’s reports on inspections of immigration detention facilities
are available at http://www.humanrights.gov.au/human_rights/immigration/detention_rights.html#9_4 (viewed 5 August 2011).
^[5] The
Commission’s Reports to Parliament under the Australian Human Rights
Commission Act 1986 (Cth) are available at http://www.humanrights.gov.au/legal/humanrightsreports/index.html (viewed 5 August 2011).
^[6] See http://www.humanrights.gov.au/human_rights/immigration/index.html (viewed 9 August 2011).
^[7] See http://www.aph.gov.au/Senate/committee/immigration_detention_ctte/immigration_detention/tor.htm (viewed 9 August 2011).
^[8] See International Covenant on Civil and Political Rights (1966), art
9(1), at http://www2.ohchr.org/english/law/ccpr.htm (viewed 8 August 2011).
^[9] See Convention on the Rights of the Child (1989), art 37(b),
at http://www2.ohchr.org/english/law/crc.htm (viewed 8 August 2011).
^[10] Migration Act 1958 (Cth), s
189.
^[11] Migration Act
1958 (Cth), s 189(3).
^[12] Migration Act 1958 (Cth), s
196.
^[13] The Minister for
Immigration and Citizenship can make a Residence Determination permitting a
person in immigration detention to live in the community rather than a detention
facility under s 197AB of the Migration Act 1958 (Cth). The Minister
also has the discretion to grant a visa, including a bridging visa, to a person
in immigration detention when it is in the public interest to do so, according
to s 195A of the Migration Act 1958 (Cth).
^[14] The Department of
Immigration and Citizenship's answers to questions on notice, received by the
Joint Select Committee on Australia’s Immigration Detention Network 10
August 2011, question 3. At http://www.aph.gov.au/Senate/committee/immigration_detention_ctte/immigration_detention/submissions.htm (viewed 11 August 2011).
^[15] International Covenant on Civil and Political Rights, note 8, art 9(1); Convention on the Rights of the Child, note 9, art
37(b).
^[16] See United Nations
Human Rights Committee, A v Australia, Communication No 560/1993, UN Doc
CCPR/C/59/D/560/1993 (1997), para 9.2, at http://www.unhcr.org/refworld/docid/3ae6b71a0.html (viewed 8 August 2011).
^[17] Working Group on Arbitrary Detention, Report of the Working Group on
Arbitrary Detention (15 January 2010), UN Doc A/HRC/13/130, para 59. At http://daccess-ods.un.org/TMP/4851485.19277573.html (viewed 8 August 2011).
^[18] Afghan man in detention, Curtin Immigration Detention Centre, May 2011.
^[19] Afghan man in detention,
Curtin Immigration Detention Centre, May
2011.
^[20] Afghan man in
detention, Curtin Immigration Detention Centre, May 2011.
^[21] See, for example,
‘UNHCR urges Australia to review policy of detaining asylum seekers’
(Media Release, 1 February 2002), at http://www.un.org/apps/news/story.asp?NewsID=2785&Cr=australia&Cr1=asylum;
‘Changes to Australian detention arrangements’ (Media Release, 19
April 2010), at http://unhcr.org.au/unhcr/index.php?option=com_content&view=article&id=175&catid=35&Itemid=63;
United Nations Human Rights Committee, Concluding observations of the Human
Rights Committee: Australia, UN Doc CCPR/C/AUS/CO/5 (2009), para 23, at http://www2.ohchr.org/english/bodies/hrc/docs/co/CCPR-C-AUS-CO-5.doc;
United Nations Committee on Economic, Social and Cultural Rights, Concluding
observations of the Committee on Economic, Social and Cultural Rights:
Australia, UN Doc E/C.12/AUS/CO/4 (2009), para 25, at http://www2.ohchr.org/english/bodies/cescr/docs/AdvanceVersions/E-C12-AUS-CO-4.doc;
A Grover, Report of the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health:
Mission to Australia, UN Doc A/HRC/14/30/Add.4 (2010), pp 21-24, at http://www.unhcr.org/refworld/docid/49faf7652.html;
United Nations Human Rights Council, Report of the Working Group on the
Universal Periodic Review: Australia (2011), see paras 28, 42, 49, 78,
86.123, 86.127, 86.131 and 86.132, at http://www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx;
United Nations Commission on Human Rights, Report of the Working Group on
Arbitrary Detention: Visit to Australia (2002), UN Doc E/CN.4/2003/8/Add.2,
see Executive Summary, at http://www2.ohchr.org/english/issues/detention/visits.htm;
United Nations Committee on the Rights of the Child, Concluding Observations:
Australia (2005), UN Doc CRC/C/15/Add.268, para 62, at http://www.unhcr.org/refworld/publisher,CRC,,AUS,45377eac0,0.html (all viewed 8 August 2011).
^[22] See C Evans, New Directions in Detention – Restoring Integrity to
Australia’s Immigration System (Speech delivered at the Centre for
International and Public Law Seminar, Australian National University, Canberra,
29 July 2008), at http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 8 August 2011).
^[23] Above.
^[24] See for example
Department of Immigration and Citizenship, Questions and Answers - Impact of
the High Court of Australia’s decision on Refugee Status Assessment (RSA)
clients (2011), at http://www.immi.gov.au/visas/humanitarian/onshore/protection-obligations-determination.htm (viewed 8 August 2011); Department of Immigration and Citizenship, Changes to
refugee status determination - Questions and answers (2011), at http://www.immi.gov.au/visas/humanitarian/onshore/protection-obligations-determination.htm (viewed 8 August 2011).
^[25] See
para 45 of this submission.
^[26] See, for instance, Australian Human Rights Commission, 2010 Immigration
detention in Darwin, section 5, at http://www.humanrights.gov.au/human_rights/immigration/idc2010_darwin.html (viewed 8 August 2011).
^[27] See Part 3: Immigration detention facilities and services in this submission.
^[28] New Directions in
Detention, note 22.
^[29] Australian Human Rights Commission, 2011 Immigration detention at
Villawood, section 8.2, at http://www.humanrights.gov.au/human_rights/immigration/idc2011_villawood.html (viewed 8 August 2011).
^[30] Migration Act 1958 (Cth), s 474.
^[31] See, for example, Australian Human Rights Commission, Submission to the Senate Standing
Committee on Legal and Constitutional Affairs Inquiry Migration Amendment
(Immigration Detention Reform) Bill 2009, section 12, at http://www.humanrights.gov.au/legal/submissions/2009/20090731_migration.html;
Australian Human Rights Commission, Submission to the Joint Standing
Committee on Migration Inquiry into Immigration Detention in Australia (2008), pp 13-15 and 24-25, at http://www.humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html (both viewed 15 June 2011).
^[32] International Covenant on
Civil and Political Rights, note 8, art 9(4); Convention on the Rights of
the Child, note 9, art 37(d).
^[33] In A v Australia,
note 16, at para 9.5, the United Nations Human Rights Committee said:

court review of the lawfulness of detention under article 9, paragraph 4 [of
the ICCPR], which must include the possibility of ordering release, is not
limited to mere compliance of the detention with domestic law. While domestic
legal systems may institute differing methods for ensuring court review of
administrative detention, what is decisive for the purposes of article 9,
paragraph 4, is that such review is, in its effects, real and not merely formal.
By stipulating that the court must have the power to order release ‘if the
detention is not lawful’, article 9, paragraph 4, requires that the court
be empowered to order release, if the detention is incompatible with the
requirements in article 9, paragraph 1, or in other provisions of the [ICCPR].

^[34] The CRC allows for review
by ‘other competent, independent and impartial authorit[ies]’ than
courts. However, it is not clear whether any such authority that can make
enforceable orders currently exists in Australia. In the Commission’s
view, the most appropriate authority to review the detention of children is a
court.
^[35] A v
Australia, note 16, para 9.5.
^[36] United Nations Human Rights
Committee, C v Australia, Communication No 900/1999, UN Doc
CCPR/C/76/D/900/1999 (2002), para 8.3, at http://www.unhchr.ch/tbs/doc.nsf/0/f8755fbb0a55e15ac1256c7f002f17bd?Opendocument (viewed 28 July 2011); United Nations Human Rights Committee, Bakhtiyari v
Australia, Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003),
para 9.4, at http://www.unhchr.ch/tbs/doc.nsf/0/8662db397d948638c1256de2003b3d6a?Opendocument (viewed 28 July 2011); United Nations Human Rights Committee, Baban v
Australia, Communication No 1014/2001, UN Doc CCPR/C/78/D/1014/2001 (2003),
para 7.2, at http://www.unhcr.org/refworld/docid/404887ee3.html (viewed 28 July 2011); United Nations Human Rights Committee, Shams v
Australia, Communication Nos 1255,1256,1259,1260,1266,1268,1270,1288/2004,
UN Doc CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270 & 1288/2004
(2007), para 7.3, at http://www.bayefsky.com/pdf/australia_iccpr_t5_1255-56-59-60-66-68-70-88_2004.pdf (viewed 28 July 2009).
^[37] Joint
Standing Committee on Migration, Immigration detention in Australia: A new
beginning – First report of the inquiry into immigration detention in
Australia (2008), para 4.110, at http://www.aph.gov.au/house/committee/mig/detention/report/fullreport.pdf (viewed 28 July 2011). In making this statement, the Committee noted testimony
given to the inquiry by the Commonwealth Ombudsman, Professor John McMillan.
^[38] See, for example 2011
Immigration detention at Villawood, note 29, section 6; Australian Human
Rights Commission, 2010 Immigration detention on Christmas Island (2010),
section 10, at http://humanrights.gov.au/human_rights/immigration/idc2010_christmas_island.html (viewed 2 August 2011).
^[39] Department of Immigration and Citizenship, Response to the 2011 Australian
Human Rights Commission Statement on Immigration Detention in Villawood, p
2. At http://www.humanrights.gov.au/human_rights/immigration/idc2011_villawood_response.pdf (viewed 8 August 2011).
^[40] Of
a total of 6729 people in immigration detention at 20 May 2011. See Department
of Immigration and Citizenship, Immigration Detention Statistics Summary (20 May 2011), at http://www.immi.gov.au/managing-australias-borders/detention/_pdf/immigration-detention-statistics-20110520.pdf (viewed 19 June 2011).
^[41] International Covenant on Civil and Political Rights, note 8, art 9(1); Convention on the Rights of the Child, note 9, art 37(b).
⁴² See A v Australia, note 16, para
9.2.
^[42] See Van Alphen v The
Netherlands, Communication No 305/1988, UN Doc
CCPR/C/39/D/305/1988 (1990), para 5.8, at http://www1.umn.edu/humanrts/undocs/session39/305-1988.html (viewed 8 August 2011); A v Australia, above, para 9.2.
^[43] See, for example, MIMIA v Al Masri (2003) 126 FCR 54,
[152].
^[44] A v Australia,
note 16, para 9.4; Shams v Australia, note 36, para 7.2.
^[45] C v Australia, note
36, para 8.4.
^[46] United Nations
High Commissioner for Refugees, Asylum
Levels and Trends in Industrialised Countries, First Half 2010 (2011). At http://www.unhcr.org/statistics/asylum-levels&trends-first-quater-2010.zip (viewed 8 August 2011).
^[47] Commonwealth, Official Committee Hansard: Senate Legal and Constitutional
Affairs Legislation Committee – Estimates (23 May 20110), p 16 (Andrew
Metcalfe, Secretary, Department of Immigration and Citizenship). At http://www.aph.gov.au/hansard/senate/commttee/s39.pdf (viewed 8 August 2011).
^[48] United Nations High Commissioner for Refugees, 2010 Global Trends (2011),
Statistical Annex, Table 1, at http://www.unhcr.org/4dfa11499.html (viewed 8 August 2011).
^[49] Above, p 14.
^[50] Convention
Relating to the Status of Refugees, opened for signature 28 July 1951, 189
UNTS 150, (entered into force 22 April 1954), at http://www2.ohchr.org/english/law/refugees.htm (viewed 8 August 2011). See also Protocol Relating to the Status of
Refugees, 606 UNTS 267 (entered into force 4 October 1967), at http://www2.ohchr.org/english/law/protocolrefugees.htm (viewed 8 August 2011).
^[51] Convention Relating to the Status of Refugees, above, art
1(a).
^[52] Above, art 31(1) and
(2).
^[53] United Nations High
Commissioner for Refugees, UNHCR Revised Guidelines on Applicable Criteria
and Standards Relating to the Detention of Asylum Seekers (1999), guideline
3. At www.unhcr.org.au/pdfs/detentionguidelines.pdf (viewed 8 August 2011).
^[54] Afghan man in detention, Curtin Immigration Detention Centre, May
2011.
^[55] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[56] Iranian man in
detention, Curtin Immigration Detention Centre, May
2011.
^[57] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[58] See, for example, 2011 Immigration Detention at Villawood, note 29, section
8.3.
^[59] Australian Government, Mainland detention centres: a notice to immigration detention clients (17
March 2011). At http://www.newsroom.immi.gov.au/media_releases/913 (viewed 4 August 2011).
^[60] Information provided by Independent Protection Assessment
Office.
^[61] 2011 Immigration
Detention at Villawood, note 29, section
8.5.
^[62] Convention relating
to the Status of Stateless Persons (1954), at http://www2.ohchr.org/english/law/stateless.htm (viewed 2 August 2011); Convention on the Reduction of Statelessness (1961), at http://www2.ohchr.org/english/law/statelessness.htm (viewed 2 August 2011).
^[63] Australia has binding non-refoulement obligations under the Convention
Relating to the Status of Refugees, the International Covenant on Civil
and Political Rights, the Convention on the Rights of the Child, and
the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984), at http://www2.ohchr.org/english/law/cat.htm (viewed 8 August 2011). See notes 8, 9 and 50. See also Response to the 2011
Australian Human Rights Commission Statement on Immigration Detention in
Villawood, note 39, p 5.
^[64] Figures provided by the Department of Immigration and Citizenship, current as of
12 July 2011.
^[65] Man in
detention at Villawood Immigration Detention Centre who received an adverse
security assessment, February
2011.
^[66] Man in detention at
Villawood Immigration Detention Centre who received an adverse security
assessment, February 2011.
^[67] Woman, who received an adverse security assessment, in detention at Sydney
Immigration Residential Housing with her husband, who also received an adverse
assessment, and their children, February
2011.
^[68] See 2010
Immigration detention on Christmas Island, note 38, section 10; 2011
Immigration detention at Villawood, note 29, section
8.4.
^[69] Response to the 2011
Australian Human Rights Commission Statement on Immigration Detention in
Villawood, note 39, p 5.
^[70] Figures based on statistics
provided by Department of Immigration and Citizenship, current as of 23 February
2011.
^[71] Man in detention in
Blaxland compound at Villawood Immigration Detention Centre, whose visa had been
cancelled under s 501, February
2011.
^[72] New Directions in
Detention, note 22.
^[73] See Immigration detention in Australia: A new beginning, note 37, p
53.
^[74] 2011 Immigration
detention at Villawood, above 29, section
9.
^[75] Comments made by, among
others, man in detention in Hughes compound, Villawood Immigration Detention
Centre and man in detention in Fowler compound, Villawood Immigration Detention
Centre, February 2011.
^[76] 2011 Immigration detention at Villawood, note 29, section
11.2(a).
^[77] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[78] Sri Lankan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[79] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[80] Man in detention in
Fowler compound, Villawood Immigration Detention Centre, February
2011.
^[81] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[82] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[83] Man in detention in
Fowler compound, Villawood Immigration Detention Centre, February
2011.
^[84] 2010 Immigration
detention on Christmas Island, note 38, section 19.2; 2010 Immigration
detention in Darwin, above 26, section 8.2; 2011 Immigration
detention at Villawood, note 29, section
11.3.
^[85] Statistics provided to
the Commission by the Department of Immigration and Citizenship, covering the
period 1 July 2010-9 June
2011.
^[86] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[87] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[88] Man in detention in
Fowler compound, Villawood Immigration Detention Centre, February
2011.
^[89] Man in detention in
Fowler compound, Villawood Immigration Detention Centre, February
2011.
^[90] Man in detention in
Fowler compound, Villawood Immigration Detention Centre, February
2011.
^[91] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[92] Response to the
2011 Australian Human Rights Commission Statement on Immigration Detention in
Villawood, above 39, pp 8-9.
^[93] ‘Police open gates to
detention centres’, PS News, 9 August 2011, at http://www.psnews.com.au/Page_psn2772.html (viewed 12 August 2011).
^[94] See
‘Claims Christmas Island staff in danger’, ABC News, 22 July
2011, at http://www.abc.net.au/news/2011-07-22/malaysia-deal/2805558 (viewed 8 August 2011).
^[95] See
‘“Living hell hole” still taking a toll’, Sydney
Morning Herald, 12 July 2011, at http://www.theage.com.au/national/living-hell-hole-still-taking-a-toll-20110712-1hbr4.html (viewed 8 August 2011).
^[96] See,
for example, Australian Human Rights Commission, 2009 Immigration detention
and offshore processing on Christmas Island, at http://humanrights.gov.au/human_rights/immigration/idc2009_xmas_island.html (viewed 8 August 2011); 2010 Immigration detention on Christmas Island,
note 38; 2010 Immigration detention in Darwin, note 26; Australian Human
Rights Commission, 2011 Immigration detention in Leonora, at http://www.humanrights.gov.au/human_rights/immigration/idc2011_leonora.html (viewed 8 August 2011); 2011 Immigration detention at Villawood, note
29.
^[97] The Commission visited
immigration detention facilities on Christmas Island in May-June 2010, in Darwin
in September 2010, Leonora in November 2010, Villawood in February 2011 and
Curtin in May 2011. The President of the Commission, Catherine Branson QC, also
made a short visit to detention facilities at Inverbrackie in July 2011. Reports
of the Commission’s visits are available at: http://www.humanrights.gov.au/human_rights/immigration/index.html (viewed 5 August 2011).
^[98] See http://www.humanrights.gov.au/human_rights/immigration/index.html (viewed 5 August 2011).
^[99] See Human Rights and Equal Opportunity Commission, Immigration Detention
Guidelines (2000), section 1.4(a), at http://www.humanrights.gov.au/human_rights/immigration/idc_guidelines2000.html (viewed 22 April 2011).
^[100] Migration Act 1958 (Cth), ss 13, 14,
189.
^[101] See Immigration
Detention Guidelines, note 99, section
1.1.
^[102] 2010 Immigration
detention on Christmas Island, note 38, section 17.1(a) and (e); 2010
Immigration detention in Darwin, note 26, section 6.1; 2011 Immigration
detention at Villawood, note 29, section 10.1(a) and
(b).
^[103] See, for example, 2010 Immigration detention on Christmas Island, above, sections 17.1(b),
17.2(b) and 17.3(b); 2011 Immigration detention at Villawood, above,
section 10.1(b).
^[104] 2010
Immigration detention on Christmas Island, above, sections 17.1(d) and
17.2(b); 2010 Immigration detention in Darwin, note 26, section 6.1; 2011 Immigration detention in Leonora, note 96, section
6.
^[105] 2010 Immigration
detention on Christmas Island, above, sections 19, 22.1 and 22.3; 2010
Immigration detention in Darwin, note 26, sections 8, 9.2 and 9.3; 2011
Immigration detention in Leonora, note 96, sections 8, 9.2 and 9.3; 2011
Immigration detention at Villawood, note 29, sections 11 and 13.
^[106] Iranian man in
detention, Curtin Immigration Detention Centre, May
2011.
^[107] Sri Lankan man in
detention, Curtin Immigration Detention Centre, May 2011.
^[108] 2009 Immigration
detention and offshore processing on Christmas Island, note 96, section 2; 2010 Immigration detention on Christmas Island, note 38, section 6; 2011 Immigration detention in Leonora, note 96, section
6.
^[109] The most recent
Australian census counted 3093 people usually resident in Derby. See Australian
Bureau of Statistics, 2006 Census QuickStats: Derby (Urban
Centre/Locality). At http://www.censusdata.abs.gov.au/ABSNavigation/prenav/LocationSearch?collection=Census&period=2006&areacode=UCL507000&producttype=QuickStats&breadcrumb=PL&action=401 (viewed 8 August 2011).
^[110] See for example 2011 Immigration detention in Leonora, note 96, section
6.
^[111] 2009 Immigration
detention and offshore processing on Christmas Island, note 96, section 10; 2010 Immigration detention on Christmas Island, note 38, Part
E.
^[112] 2009 Immigration
detention and offshore processing on Christmas Island, above, section 10.2
and endnote 99; 2010 Immigration detention on Christmas Island, above,
section 25.
^[113] 2009
Immigration detention and offshore processing on Christmas Island, above; 2010 Immigration detention on Christmas Island,
above.
^[114] 2009
Immigration detention and offshore processing on Christmas Island, above,
section 12.1; 2010 Immigration detention on Christmas Island, above,
section 17.1(a).
^[115] See
Australian Human Rights Commission, 2008 Immigration detention report:
Summary of observations following visits to Australia’s immigration
detention facilities, section 13.5, at http://humanrights.gov.au/human_rights/immigration/idc2008.html (viewed 8 August 2011); 2009 Immigration detention and offshore processing on
Christmas Island, above, section 12.1; 2010 Immigration detention on
Christmas Island, above, section
17.1.
^[116] At various times
during the Commission’s visit to Christmas Island in 2010, there were
between 2421 and 2435 people in immigration detention on the island, whereas at
30 June 2011, there were 1102 people in immigration detention on the island.
Figures provided by Department of Immigration and Citizenship, current as of 27
May 2010; Department of Immigration and Citizenship's answers to questions on
notice, received by the Joint Select Committee on Australia’s Immigration
Detention Network, note 14, question
3.
^[117] 2010 Immigration
detention on Christmas Island, note 38, recommendation 1; 2009
Immigration detention and offshore processing on Christmas Island, note 96,
recommendation 3; 2008 Immigration detention report, note 115, section
13.
^[118] Australian Human
Rights Commission, Summary of Observations following the Inspection of
Mainland Immigration Detention Facilities 2007, at http://humanrights.gov.au/human_rights/immigration/idc2007.html (viewed 8 August 2011), section 21; 2008 Immigration detention report,
above, section 13; 2011 Immigration detention at Villawood, note 29.
^[119] See 2008 Immigration
detention report, above, sections 3, 10 and 11.1; Australian Human Rights
Commission, Submission to the Parliamentary Standing Committee on Public
Works (2009), section 4, at http://humanrights.gov.au/legal/submissions/2009/20090918_villawood_immigration.html (viewed 8 August 2011); 2011 Immigration detention at Villawood, above,
section 10.1(a).
^[120] 2011
Immigration detention at Villawood, above, section
10.1(b).
^[121] These interim
works include the installation of a new visitors’ building and additional
interview rooms for Hughes and Fowler compounds; refurbishment of the Murray
Unit; and refurbishment of the visitors’ area and outdoor courtyards in
Blaxland compound. See 2011 Immigration detention at Villawood, above,
section 10.1(a).
^[122] Further
detail about the Commission’s visits to Villawood Immigration Detention
Centre can be found in Summary of Observations following the Inspection of
Mainland Immigration Detention Facilities 2007, note 118, section 21; 2008 Immigration detention report, note 115, section 13; 2011
Immigration detention at Villawood, note
29.
^[123] See 2011
Immigration detention in Leonora, note 96, section
6.
^[124] See 2010
Immigration detention in Darwin, note 26, section
6.2.
^[125] See 2008
Immigration detention report, note 115, section
12.1(b).
^[126] See International Covenant on Economic, Social and Cultural Rights (1966),
art 12, at http://www2.ohchr.org/english/law/cescr.htm (viewed 8 August 2011); Convention on the Rights of the Child, note 9,
art 24.
^[127] See Immigration Detention Guidelines, note 99, section
13.
^[128] 2011 Immigration
detention at Villawood, note 29, section 11; 2011 Immigration detention
in Leonora, note 96, section 8; 2010 Immigration detention in Darwin,
note 26, section 8; 2010 Immigration detention on Christmas Island, note
38, section 19; 2009 Immigration detention and offshore processing on
Christmas Island, note 96, section 12.5; 2008 Immigration detention
report, note 115, sections 10.2, 10.3 and
13.2.
^[129] See 2010
Immigration detention on Christmas Island, above, section 19; 2010
Immigration detention in Darwin, above, section 8; 2011 Immigration
detention in Leonora, above, section
8.
^[130] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[131] Sri Lankan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[132] Sri Lankan man in
detention, Curtin Immigration Detention Centre, May 2011.
^[133] 2010 Immigration
detention on Christmas Island, note 38, section 19.1; 2010 Immigration
detention in Darwin, note 26, section
8.1.
^[134] 2011 Immigration
detention at Villawood, note 29, section 11.1(a); 2008 Immigration
detention report, note 115, section 12.1(b).
^[135] 2010 Immigration
detention on Christmas Island, above, section 19.1; 2010 Immigration
detention in Darwin, note 26, section 8.1; 2011 Immigration detention in
Leonora, note 96, section
8.1.
^[136] 2010 Immigration
detention on Christmas Island, above, section 19.1; 2010 Immigration
detention in Darwin, section 8.1; 2011 Immigration detention in
Leonora, above, section 8.1.
^[137] 2010 Immigration
detention in Darwin, above, section 8.1.
^[138] Above.
^[139] 2010 Immigration
detention on Christmas Island, note 38, section
19.2(b).
^[140] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[141] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[142] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[143] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[144] Afghan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[145] Response to the
2011 Australian Human Rights Commission Statement on Immigration Detention in
Villawood, note 39, p
8.
^[146] 2011 Immigration
detention at Villawood, note 29, section 11.2; 2010 Immigration detention
in Darwin, note 26, section 8.
^[147] 2011 Immigration
detention at Villawood, above, section 11.2(c); 2008 Immigration
detention report, note 115, section 12.1(a) and
(b).
^[148] Response to the
2011 Australian Human Rights Commission Statement on Immigration Detention in
Villawood, note 39, p
8.
^[149] 2010 Immigration
detention on Christmas Island, note 38, section
19.2.
^[150] 2010 Immigration
detention in Darwin, note 26, section 8; Villawood, section
11.2.
^[151] Response to the
2011 Australian Human Rights Commission Statement on Immigration Detention in
Villawood, note 39, p
9.
^[152] 2011 Immigration
detention at Villawood, note 29, section
11.2.
^[153] See para 97 of this
submission.
^[154] See Immigration Detention Guidelines, note 99, section
14.4.
^[155] 2010 Immigration
detention on Christmas Island, note 38, section 19.3; 2010 Immigration
detention in Darwin, note 26, section
8.2.
^[156] 2010 Immigration
detention on Christmas Island, above, section
19.3.
^[157] Above; the
Commission also observed that this was an issue at Curtin Immigration Detention
Centre during its May 2011
visit.
^[158] Interview with
group of men in detention, Christmas Island Immigration Detention Centre, May
2010.
^[159] Department of
Immigration and Citizenship, Identification and Support of People in
Immigration Detention Who are Survivors of Torture and Trauma (April 2009),
p 3.
^[160] Above.
^[161] See also Minister
for Immigration and Citizenship, Minister’s Residence Determination
Power Under s. 197AB and s. 197AD of the Migration Act 1958:
Guidelines (2009), para
4.1.4.
^[162] Convention on
the Rights of the Child, note 9, arts 28 and 31. See further A last
resort?, note 1, chapters 12, 13 and
15.
^[163] See Immigration
Detention Guidelines, note
99.
^[164] Unaccompanied minor
in detention at Darwin Airport Lodge, September
2010.
^[165] 2011 Immigration
detention in Leonora, note 96, section 9.1(a); 2011 Immigration detention
at Villawood, note 29, section 12.
^[166] 2010 Immigration
detention in Darwin, note 26, section 9.1, endnotes 38 and 39.
^[167] Immigration Detention
Guidelines, note 99, section
6.6.
^[168] 2010 Immigration
detention on Christmas Island, note 38, section
22.2.
^[169] 2011 Immigration
detention in Leonora, note 96, section
9.1(b).
^[170] Men in detention
told the Commission of this arrangement during its visit to Curtin Immigration
Detention Centre, May
2011.
^[171] See Immigration
Detention Guidelines, note 99, section
7.2.
^[172] The importance to
children of play is recognised by the Convention on the Rights of the
Child. Additionally, UHNCR guidelines say that if a child is detained,
provision should be made to their recreation and play, which is essential to
mental development and will alleviate stress and trauma. See Convention on
the Rights of the Child, note 9, art 31; Revised Guidelines on Applicable
Criteria and Standards Relating to the Detention of Asylum Seekers, note 53,
guideline 6.
^[173] 2010
Immigration detention in Darwin, note 26, section 9.2.
^[174] 2010 Immigration
detention on Christmas Island, note 38, section
22.
^[175] 2011 Immigration
detention at Villawood, note 29, section
15.
^[176] See, for example, 2011 Immigration detention in Leonora, note 96, section
9.2.
^[177] See, for example, 2010 Immigration detention in Darwin, note 26, section
9.2.
^[178] See, for example, 2011 Immigration detention in Leonora, note 96, section 9.2.
^[179] See, for example, 2010 Immigration detention on Christmas Island, note 38, section 22.1; 2011 Immigration detention in Leonora, above, section 9.2.
^[180] 2011 Immigration
detention in Leonora, above, section
9.2.
^[181] 2011 Immigration
detention at Villawood, note 29, section
15.
^[182] 10-year-old-girl in
detention, Darwin Airport Lodge, September 2010.
^[183] Man in detention in
Fowler compound, Villawood Immigration Detention Centre, February 2011.
^[184] Sri Lankan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[185] Man in detention,
Northern Immigration Detention Centre, September 2011.
^[186] Man in detention in
Hughes compound, Villawood Immigration Detention Centre, February
2011.
^[187] 2011 Immigration
detention in Leonora, note 96, section 9.3; 2011 Immigration detention at
Villawood, note 29, section
13.
^[188] At the time of the
Commission’s visit to immigration detention facilities at Darwin, there
were no excursions at all for irregular maritime arrivals detained at the
Northern Immigration Detention Centre, for anyone detained at the Airport Lodge
or for unaccompanied minors detained at the Asti Motel. Family groups at the
Asti were being taken on infrequent excursions to a local park. Each family was
able to participate once every few weeks. 2010 Immigration detention in
Darwin, note 26, section
9.3.
^[189] 2011 Immigration
detention at Villawood, note 29, section
13.
^[190] See Immigration
Detention Guidelines, note 99, section
4.
^[191] 2010 Immigration
detention on Christmas Island, note 38, section 21.1.
^[192] 2010 Immigration
detention in Darwin, note 26, section
10.
^[193] 2010 Immigration
detention on Christmas Island, note 38, section
21.1.
^[194] Iranian man in
detention, Curtin Immigration Detention Centre, May
2011.
^[195] Sri Lankan man in
detention, Curtin Immigration Detention Centre, May 2011.
^[196] Sri Lankan man in
detention, Curtin Immigration Detention Centre, May
2011.
^[197] See, for example, 2010 Immigration detention on Christmas Island, note 38, Part E; 2009
Immigration detention and offshore processing on Christmas Island, note 96,
section 10; 2008 Immigration detention report, note 115, section 6; Submission to the Joint Standing Committee on Migration Inquiry into
Immigration Detention in Australia, note 31, para
114.
^[198] Response to the
2010 Australian Human Rights Commission Report on Immigration Detention on
Christmas Island, note 39, p 20.
^[199] Above.
^[200] See Revised
Guidelines on Applicable Criteria and Standards Relating to the Detention of
Asylum Seekers, note 53, guideline 10.
^[201] See Joint Standing
Committee on Migration, Immigration detention in Australia: Facilities,
services and transparency (2009), p 57. At http://www.aph.gov.au/house/committee/MIG/detention/report3/fullreport.pdf (viewed 8 August 2010), p
100.
^[202] These include the
Commonwealth Ombudsman, the Australian Red Cross and the United Nations High
Commissioner for Refugees.
^[203] Department of
Immigration and Citizenship, Detention Statistics, at http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 12 August 2011).
^[204] See, for example 2008 Immigration detention report, note 115, section 14; 2009 Immigration detention and offshore processing on Christmas Island,
note 96, section 11; 2010 Immigration detention on Christmas
Island, note 38, Part C; 2010 Immigration detention in Darwin, note
26, section 7; 2011 Immigration detention in Leonora, note 96, section
7.
^[205] The Department of
Immigration and Citizenship's answers to questions on notice, received by the
Joint Select Committee on Australia’s Immigration Detention Network 10
August 2011, note 14, question
42.
^[206] Above, question 4.
^[207] Convention on the
Rights of the Child, note 9, art
37(b).
^[208] See A last
resort?, note 1, chapter
3.
^[209] Above, Executive
Summary, Part A, Major Finding 1.
^[210] Above, chapter 9 and
Executive Summary, Part A, Major Finding 2.
^[211] Migration Act
1958 (Cth), s 4AA.
^[212] See 2009 Immigration detention and offshore processing on Christmas
Island, note 96, section 11.2; 2010 Immigration detention on Christmas
Island, note 38, section
12.
^[213] See Migration Act
1958 (Cth), ss 189(3) and 189(4).
^[214] See further A last
resort?, note 1, sections 4.3.2 and 6.6; United Nations High Commissioner
for Refugees, Guidelines on Policies and Procedures in Dealing with
Unaccompanied Children Seeking Asylum (1997), guidelines 7.6 and 7.7, at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&docid=3ae6b3360 (viewed 26 April 2011).
^[215] 2011 Immigration detention in Leonora, note 96, section
6.
^[216] Above, section 6; 2010 Immigration detention on Christmas Island, note 38, section
14.2; 2010 Immigration detention in Darwin, note 26, sections 6.2 and
6.3.
^[217] 2010 Immigration detention on Christmas Island, above, section
17.3.
^[218] Above, section
14.1; 2010 Immigration detention in Darwin, note 26, section
9.1.
^[219] 2010 Immigration detention on Christmas Island, note 38, section 14.2; 2010
Immigration detention in Darwin, above, section 9.2; 2011 Immigration
detention in Leonora, note 96, section
9.2.
^[220] 2010 Immigration detention on Christmas Island, above, section
13.2.
^[221] 2011 Immigration
detention at Villawood, note 29, section 12.
^[222] 2011 Immigration
detention in Leonora, note 96, section 7.
^[223] See section 10 of this
submission.
^[224] Convention on the Rights of the Child, note 9, art
37(b).
^[225] Above, art 37(d).
See also International Covenant on Civil and Political Rights, note 8,
art 9(4).
^[226] See A last
resort?, note 1, chapters 6 and 17; 2009 Immigration detention and
offshore processing on Christmas Island, note 96, section 11.5; 2010
Immigration detention and offshore processing on Christmas Island, note 38,
section 12.
^[227] A last
resort?, note 1, section
10.5.
^[228] Above, section
9.4.2.
^[229] Above, section
9.4.1
^[230] Above, section
9.4.3.
^[231] Unaccompanied
minor in detention, Darwin Airport Lodge, September 2010.
^[232] 2011 Immigration
detention in Leonora, note 96, section
7.
^[233] 2010 Immigration
detention and offshore processing on Christmas Island, note 38, section
14.
^[234] Woman in detention,
Sydney Immigration Residential Housing, February 2011.
^[235] 2011 Immigration
detention at Villawood, note 29, section 12.
^[236] Above.
^[237] Convention on the
Rights of the Child, note 9, art
37(b).
^[238] Guidelines on
Policies and Procedures in Dealing with Unaccompanied Children Seeking
Asylum, note 215, guidelines 7.6 and 7.7. See also Revised Guidelines on
Applicable Criteria and Standards Relating to the Detention of Asylum
Seekers, note 53, guideline
6.
^[239] Convention on the
Rights of the Child, note 9, art 20.
^[240] See, for example, A
last resort?, note 1; 2008 Immigration detention report, note 115; 2009 Immigration detention and offshore processing on Christmas Island,
note 96; 2010 Immigration detention on Christmas Island, note 38; 2010
Immigration detention in Darwin, note 26; 2011 Immigration detention at
Villawood, note 29.
^[241] Response to the 2011 Australian Human Rights Commission Statement on
Immigration Detention in Villawood, note 39,
p11.
^[242] 2011 Immigration
detention at Villawood, note 29, section 12.
^[243] See Convention on the
Rights of the Child, note 9, art
19(1).
^[244] See, for example A last resort?, note 1, chapter
5.
^[245] See 2009
Immigration detention and offshore processing on Christmas Island, note 96,
section 11.6; 2011 Immigration detention at Villawood, note 29, section
12; 2011 Immigration detention in Leonora, note 96, section 7; 2010
Immigration detention in Darwin, note 26, section 7; 2010 Immigration
detention on Christmas Island, note 38, section
15.
^[246] 2010 Immigration
detention in Darwin, note 26, section 7; 2011 Immigration detention in
Leonora, note 96, section 7; 2011 Immigration detention at Villawood,
note 29, section 12.
^[247] Man
in detention his wife and children, Sydney Immigration Residential Housing,
February 2011.
^[248] Afghan man
in detention, Curtin Immigration Detention Centre, May
2011.
^[249] See further
International Detention Coalition and La Trobe Refugee Research Centre, There
are Alternatives: A handbook for preventing unnecessary immigration
detention (2011). At http://idcoalition.org/cap/handbook/ (viewed 8 August 2011).
^[250] Costs calculated in Canadian dollars. United Nations High Commissioner for
Refugees, Back to Basics: The Right to Liberty and Security of Person and
‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless
Persons and Other Migrants, p 60. At http://www.unhcr.org/refworld/docid/4dc935fd2.html (viewed 8 August 2011).
^[251] There are Alternatives, note 249, box 12.
^[252] See, for example,
figures at J Phillips, Asylum seekers and refugees: what are the facts?,
Department of Parliamentary Services Background note (22 July 2011). At
www.aph.gov.au/library/pubs/bn/sp/AsylumFacts.pdf (viewed 8 August 2011).
^[253] There are
Alternatives, note 249, section 4.3.3 and endnotes 51-54.
^[254] See above, section 5.
^[255] Recent research
indicates that less than 10% of asylum applicants abscond when released to
proper supervision and facilities, or, in other words, 90% of asylum applicants
comply with their conditions of release. See Back to Basics, note 250,
Executive Summary; There are alternatives, above, sections 3.2 and 5.1
and box 12.
^[256] There are
Alternatives, above, box
8.
^[257] Above, box
9.
^[258] Above, box
14.
^[259] New Zealand
Department of Labor, A summary of the Immigration Bill as passed at third
reading (2010). At http://www.dol.govt.nz/actreview/update/immigration-bill-third-reading-summary.asp,
viewed 9 August 2011. See also above, box
2.
^[260] There are
Alternatives, above, box 2.
^[261] New Directions in
Detention, note 22.
^[262] Migration Act 1958 (Cth), s
197AB.
^[263] Minister for
Immigration and Citizenship, ‘Government meets commitment on Community
Detention’ (Media Release: 29 June 2011), at http://www.minister.immi.gov.au/media/cb/2011/cb167699.htm (viewed 8 August 2011); Minister for Immigration and Citizenship, Doorstop
Interview (Darwin, 29 June 2011), at http://www.minister.immi.gov.au/media/cb/2011/cb167721.htm (viewed 8 August 2011).
^[264] The Department of Immigration and Citizenship's answers to questions on notice,
received by the Joint Select Committee on Australia’s Immigration
Detention Network 10 August 2011, note 14, question
42.
^[265] The Commission has
repeatedly raised concerns about underuse of community detention. See, for
instance, 2010 Immigration detention on Christmas Island, note 38,
sections 11 and 13.2; 2011 Immigration detention at Villawood, note 29,
section 7.
^[266] At the time of
the Commission’s visit to Curtin Immigration Detention Centre in May 2011,
only one man in detention there had been referred for a Residence Determination.
Similarly, at the time of the Commission’s visit to immigration detention
facilities at Villawood, only three people who had been detained at Villawood
Immigration Detention Centre and Sydney Immigration Residential Housing had been
referred for a Residence Determination. See 2011 Immigration detention at
Villawood, note 29, section 7. See also Minister’s Residence
Determination Power Guidelines, note
162.
^[267] Under the Residence
Determination Guidelines, children and their accompanying family members,
persons who may have experienced torture or trauma, persons with significant
physical or mental health concerns, persons whose cases will take a considerable
period to substantively resolve, and other cases with unique or exceptional
characteristics are to be given priority consideration for Community Detention.
See Minister’s Residence Determination Power Guidelines, above,
para 4.1.4.

Australian Human Rights Commission Submission to the Joint Select Committee on Australia’s Immigration Detention Network (2011)

Joint Select Committee on Australia’s Immigration Detention Network

Australian Human Rights Commission Submission to the Joint Select Committee on Australia’s Immigration Detention Network

August 2011

Table of Contents

1 Introduction

2 Summary

3 Recommendations

PART 1: Immigration detention law, policy and practice

4 Mandatory detention

5 Security checks

6 Indefinite detention

7 Prolonged detention

8 Prolonged and indefinite detention of asylum seekers and refugees

9 Prolonged and indefinite detention of people who are stateless

10 Prolonged and indefinite detention of people who have received adverse ASIO security assessments

11 Prolonged and indefinite detention of people whose visas have been cancelled under section 501

PART 2: The impacts of mandatory, prolonged and indefinite detention

12 The mental health impacts of prolonged and indefinite detention

13 Self-harm and suicide in immigration detention facilities

14 Critical incident response

15 People who work in immigration detention facilities

PART 3: Immigration detention facilities and services

16 Detention in remote locations

17 Immigration detention infrastructure and accommodation

17.1 Christmas Island

17.2 Villawood

17.3 Residential housing and alternative places of detention

18 Physical and mental health services

18.1 Physical health services

18.2 Mental health services

18.3 Torture and trauma services

19 Educational opportunities

19.1 Children

19.2 Adults

20 Meaningful activities for people in detention

21 Opportunities to leave the detention environment on external excursions

22 Communications

23 Monitoring conditions of immigration detention

23.1 Minimum standards

23.2 Independent monitoring

PART 4: Children in immigration detention

24 Mandatory detention of children

25 Detention placement for children

26 Prolonged and indefinite detention of children

27 Unaccompanied minors in immigration detention

28 Child welfare and protection responsibilities

PART 5: Community-based alternatives

29 Principles of community-based alternatives

30 International approaches to community-based alternatives

31 Community-based alternatives in Australia

Australian Human Rights Commission
Submission to the Joint Select Committee on Australia’s Immigration
Detention Network

4 Mandatory
detention

5 Security
checks

6 Indefinite
detention

7 Prolonged
detention

8 Prolonged and
indefinite detention of asylum seekers and refugees

9 Prolonged
and indefinite detention of people who are stateless

10 Prolonged and
indefinite detention of people who have received adverse ASIO security
assessments

11 Prolonged and
indefinite detention of people whose visas have been cancelled under section
501

PART
2: The impacts of mandatory, prolonged and indefinite
detention

12 The
mental health impacts of prolonged and indefinite detention

13 Self-harm
and suicide in immigration detention facilities

14 Critical incident
response

15 People who work in
immigration detention facilities

PART 3: Immigration
detention facilities and services

16 Detention in remote
locations

17 Immigration detention
infrastructure and accommodation

17.1 Christmas
Island

17.3 Residential
housing and alternative places of detention

18 Physical and mental
health services

18.1 Physical health
services

18.2 Mental health
services

18.3 Torture
and trauma services

19 Educational
opportunities

20 Meaningful activities
for people in detention

21 Opportunities to
leave the detention environment on external excursions

23 Monitoring conditions
of immigration detention

23.1 Minimum
standards

23.2 Independent
monitoring

PART 4: Children in
immigration detention

24 Mandatory detention
of children

25 Detention placement
for children

26 Prolonged and
indefinite detention of children

27 Unaccompanied minors
in immigration detention

28 Child welfare and
protection responsibilities

PART
5: Community-based alternatives

29 Principles of
community-based alternatives

30 International approaches to community-based
alternatives

31 Community-based
alternatives in Australia