Victorian Foundation for the Survivors of Torture Annual Oration
Catherine Branson QC, 23 June 2011
I would like to begin this evening by acknowledging the traditional owners of the land on which we meet, the Wurundjeri People of the Kulin Nation. I pay my respects to their elders past and present.
It is a great honour to have been invited to address you this evening, during Refugee Week. Australia has a long tradition of welcoming and successfully resettling refugees. Over many years, refugees have made a great contribution to our economy, culture and social fabric. We are all enriched by the life experience and diversity that they bring to our communities.
It is important to acknowledge the important work of Foundation House and other services for survivors of torture and trauma in helping asylum-seekers and refugees meet the very great challenges that come with resettlement. You provide a significant community service. I would particularly like to acknowledge the important work of your Director, Paris Aristotle, who makes a number of important contributions in his various roles, including as chair of the advisory body to the Minister for Immigration, the Council for Immigration Services and Status Resolution.
Unfortunately not all asylum-seekers and refugees are well treated when they arrive in Australia. Tonight there are approximately 5000 asylum seekers and refugees in immigration detention facilities around Australia.
I have been asked this evening to provide some reflections on the impact of immigration detention for asylum seekers and refugees. Some of you in this audience may have experienced immigration detention. Many of you will have worked with people who are or have been in detention. You will know from personal experience of the human impacts of prolonged and indefinite detention.
Tonight I will speak from the experience of the Australian Human Rights Commission which has monitored conditions in immigration detention for over a decade. Over the last year, the Commission has visited detention facilities in five locations around Australia – on Christmas Island, in Darwin, Leonora, Villawood and Curtin. We have spoken in private with very large numbers of people in detention. We have heard about and seen first-hand the very debilitating effects of prolonged detention on people’s mental health.
First, a few basic observations:
- Over the past two or three years there has been a very significant increase in the number of people held in immigration detention in Australia.
- People are being held in detention for increasing periods of time. Of those currently in detention, almost 70% of people have been detained for longer than 6 months and almost 30% of people have been detained for longer than 12 months.
- Many people in detention are suffering deteriorating mental health – in recent months there have been five apparent suicides, and a worrying number of self-harm incidents across detention facilities, including attempted hangings, lip sewing, ingestion of chemicals, people cutting themselves and voluntary starvation.
- We have also seen some very disturbing incidents in immigration detention centres including riots, fires, and break-outs at both Christmas Island and Villawood.
The Commission does not condone violence or the destruction of property. However, it is important to look behind the disturbances to try and understand what has caused these incidents.
In particular, we need to look at the impacts of prolonged and indefinite detention on the mental health and wellbeing of people in detention. These kinds of disturbances are, unfortunately, what happens when people are locked up for indefinite periods of time in remote locations. Frustrations are compounded by uncertainty, delays in processing and perceptions of unfairness in both scheduling interviews and the outcome of some decisions, and a lack of information about the progress of applications for asylum.
People in detention are frustrated and distressed because they are detained for long periods of time without any idea of when they might be released or what will happen to them when they are. Frustrations are further exacerbated by the very long periods of time that people are separated from their families.
Let us take, for example, Villawood, which the Commission visited in late February this year. At the time of this visit nearly half of the people detained at Villawood had been there for over 12 months.
People we met at Villawood spoke of feelings of frustration, distress and demoralisation about being detained for a long time, and of the uncertainty and anxiety associated with not knowing when they would be released. People detained at Villawood told us of high levels of sleeplessness, feelings of hopelessness, powerlessness, thoughts of self-harm or suicide, and of feeling too depressed or distracted to take part in recreational activities.
So why are people in detention for such a long time?
Australia has one of the strictest immigration detention regimes in the world. It is mandatory for unauthorised arrivals to be detained until they are either granted a visa or removed from Australia. There is no time limit on a person’s detention, and they are not able to challenge the need for their detention before a court.
There are also some specific factors that are currently leading to prolonged detention including significant delays in processing of asylum applications and, for some people including significant numbers of recognised refugees, long delays in obtaining security clearances.
We are particularly concerned about the delays in obtaining a review of a primary decision about refugee status. In late May, Commission staff visited Curtin immigration detention centre in the far north-west of Western Australia. Curtin largely holds single adult Afghan men who were affected by the suspension of processing. Many of these men have been in detention for over twelve months. Many of them are in the situation where the first assessment of their application for asylum has been negative and they are waiting for Independent Merits Review. Some people have been waiting for their Independent Merits Review interview for more than six months – this is an unacceptable delay when a person is held in immigration detention for the duration of the processing of their asylum application. It is unsurprising that a significant number of these men told Commission staff that frustration about these delays and ongoing detention was leading many of them to fear for their mental health.
There are viable alternatives to prolonged detention of asylum seekers and refugees – alternatives which the Australian Government is obliged to pursue under its international obligations.
The Commission has welcomed the roll-out in Australia of one such alternative over the last eight months. In October last year, the Minister for Immigration announced that the majority of families and unaccompanied children in detention would be placed in community detention by the end of June, a date we are rapidly approaching. As many of you will know, community detention essentially means that people can live in community-based accommodation, with few restrictions on their movement. By the end of last week, the Minister had approved 1343 people for placement in community detention. Of these, 1069 people were already living in the community or were about to be transferred. The remainder have already been granted a permanent protection visa. Early this year it seemed that the progress with placing people into community detention was slow. However, it must be acknowledged that to have placed this number of people into community based accommodation within a relatively short timeframe is a significant achievement.
The use of community detention is not radical. In moving people into community detention, the Minister has used powers that have existed since 2005, established in response to deep public concern about the impact of holding people, including children, in immigration detention facilities for long periods of time. The decision to place families and unaccompanied children into community detention was essentially a decision to implement current government policy. Government guidelines say that all children should be assessed for community detention as soon as they are detained. Until recently, this has not been happening, which has been of serious concern to the Commission.
We believe that other individuals should also be placed in community detention as a matter of priority. Government policy says that vulnerable people, including people who have experienced torture and trauma and people with significant physical or mental health problems should be prioritised for community detention. In visits to immigration detention facilities over the past twelve months, the Commission has met a large number of people who have met these criteria and yet who remain in detention. These people include survivors of torture and trauma; people with serious mental health issues, including people with major depression and post-traumatic stress disorder; and people with serious physical health problems, including people with visible war injuries and people who have lost limbs.
We continue to urge the government to consider expanding the community detention program to include these vulnerable groups of people as an urgent priority.
However, much more than this will need to be done to ensure that Australia meets its international human rights obligations to people in immigration detention. Currently, Australia’s system of mandatory and indefinite detention leads to breaches of fundamental human rights, including the right to liberty and to be free from arbitrary detention.
For immigration detention to avoid being arbitrary, there needs to be an individual assessment of whether it is necessary to detain someone. A person should only be held in a detention facility if they are individually assessed as posing an unacceptable risk to the Australian community and if that risk cannot be met in a less restrictive way. Otherwise, they should be allowed to live in community-based alternatives while their immigration status is resolved. Such an assessment should be done as soon as possible after a person is detained. Currently this is not happening – most asylum seekers are held in detention for the entirety of the processing of their asylum application and security checks are done at the end of the process.
We know from bitter experience that prolonged detention causes serious mental harm. We must not forget that there are people in our communities who are still damaged from their experience of detention up to ten years ago. Our government is still paying compensation to people whose human rights were not protected while they were in immigration detention at this time. We know from experience that we must use community-based alternatives to avoid doing irreparable mental harm to people in detention facilities.
There are alternatives to prolonged and indefinite detention. Alternatives that have been tried and tested in Australia and elsewhere. Community-based alternatives can be cheaper and more effective, and are certainly more humane than holding people in immigration detention facilities for prolonged periods. We encourage the government to use all viable alternatives, including both community detention and bridging visas. Australia’s international human rights obligations require consideration of the use of community based alternatives so that detention is truly always a matter of last resort. I would also like to acknowledge that important research setting out numerous examples of effective alternatives to detention has just been released by both the UNHCR and the International Detention Coalition.
In Australia, we have a relatively small population of asylum-seekers, most of whom should be able to be live in the community while their applications are assessed. Asylum-seekers and refugees have made significant contributions to Australian society. Many of those people currently in detention will be found to be refugees and will come to live in our communities. They, like the many thousands of refugees before them who Australia has welcomed, will make significant contributions to life in Australia. We have a responsibility to ensure that asylum seekers and refugees are not irreparably harmed as a consequence of lengthy periods in immigration detention in Australia.
Prolonged and indefinite detention is dehumanising – not only for the people who are in detention; not only for those people working in detention facilities, doing a very challenging job in very difficult circumstances; but arguably for us all. We can do better. We must do better.
