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2009 Immigration detention and offshore processing on Christmas Island

2009

Immigration detention and offshore processing on Christmas Island

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Table of Contents

PART A: Introductory sections

PART B: Excision and offshore processing

PART C: Immigration detention on Christmas Island


PART A: Introductory

sections

1 Introduction

This report contains a summary of observations by the Australian Human Rights

Commission (the Commission) following its July 2009 visit to Australia’s

immigration detention facilities on Christmas Island. It follows the

Commission’s 2006, 2007 and 2008 annual reports on inspections of

immigration detention

facilities.[1]

The Commission provided an advance copy of this report to the Department of

Immigration and Citizenship (DIAC). Their response is available on the

Commission’s website at www.humanrights.gov.au/human_rights/immigration/idc2009_xmas_island_response.html .

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2 Summary

In early 2008, the Commission commended the Australian Government for ending

the so-called ‘Pacific solution’ by closing the offshore immigration

detention centres on Nauru and Manus Island. Since then, the government has

initiated further positive reforms, in particular the July 2008 announcement of

‘New Directions’ for Australia’s immigration detention

system.[2]

However, despite these positive changes, the Commission has ongoing concerns

– one of the most critical being the mandatory detention and offshore

processing of asylum seekers on Christmas Island.

While there are clearly significant efforts being put into the detention and

offshore processing system on Christmas Island, those efforts cannot overcome

the fundamental problems with the system itself. The Commission’s major

concerns can be summarised as follows:

Excision and offshore processing

  • Asylum seekers who arrive in excised offshore places such as Christmas

    Island are barred from the refugee status determination system that applies on

    the mainland under Australian law. Instead, they go through a

    ‘non-statutory’ process governed by guidelines that are not legally

    binding. They have no access to the Refugee Review Tribunal and very limited

    access to the Australian courts. They must rely on a non-compellable and

    non-reviewable Ministerial discretion to be allowed to apply for a protection

    visa.

Mandatory detention, without judicial oversight

  • Asylum seekers (including children) who arrive by boat without a valid visa

    in an excised offshore place are mandatorily detained on Christmas Island

    despite the fact that the Migration Act does not require this. Further, the Migration Act 1958 (Cth) (Migration Act) purports to bar them from challenging the lawfulness of their

    detention in the Australian

    courts.[3]

Detention

of unaccompanied minors and families with children

  • Some children (including unaccompanied children) are detained in a closed

    immigration detention facility on Christmas Island – the

    ‘construction camp’. The Commission considers this a concerning

    regression from the 2005 changes to the Migration Act which affirmed the

    principle that children should only be detained as a last resort.

  • There is a conflict of interest created by having the Minister for

    Immigration and Citizenship or DIAC officers act as the legal guardian for

    unaccompanied minors detained on Christmas Island. There is also a lack of

    clarity about responsibilities and procedures relating to child welfare and

    protection for children in immigration detention on the

    island.

Detention in a small, remote community

  • Asylum seekers on Christmas Island are detained in a small community in a

    remote location where their access to appropriate services including health and

    mental health care, legal advice, cultural and religious support, and community-based advocacy and support networks is more limited than it would be on the

    mainland.

  • The remote location and limited facilities and infrastructure on Christmas

    Island make it a difficult place in which to ensure implementation of some key

    aspects of the government’s New Directions – in particular the

    intention to use immigration detention centres only as a last resort, and the

    presumption that unauthorised arrivals will be released into the community once

    their health, identity and security checks are completed. The shortage of

    community-based accommodation appears to be preventing the release of some

    detainees from closed detention facilities into community detention.

  • The remote location of Christmas Island makes the immigration detention

    operations there less visible and transparent to the Australian public, and less

    accessible for external scrutiny bodies.

Conditions and treatment

of detainees

  • The immigration detention facilities on Christmas Island are not appropriate

    for detaining asylum seekers, particularly those with a background of torture or

    trauma. The Christmas Island Immigration Detention Centre (IDC) is a high

    security detention centre that looks like a prison. The construction camp

    facility is not appropriate for unaccompanied minors or families with children.

  • While some detainees on Christmas Island expressed positive views about

    their treatment, others expressed frustration about the restrictions placed on

    them during the initial ‘separation detention’ phase, the length of

    time they had been detained, their lack of access to external excursions, and

    difficulties accessing interpreters and translated documents.

Under

the Refugee Convention, asylum seekers should not be penalised because of their

method of arrival. Regardless of how or where they arrive in Australia, all

people are entitled to protection of their fundamental human rights, including

the right to seek asylum.

The excision and offshore processing regime establishes a two-tiered system

for determining refugee status. Asylum seekers who arrive in excised offshore

places such as Christmas Island have fewer legal safeguards than those who

arrive on the mainland. In the Commission’s view this undermines the core

principles of the Refugee Convention, jeopardises asylum seekers’ human

rights and increases the risk that a refugee may be sent back to a place where

their life or freedom would be threatened.

Further, the policy of detaining all unauthorised boat arrivals in a place as

small and remote as Christmas Island restricts asylum seekers’ access to

essential services and support networks, and limits the ability of the

Australian Government to ensure that those people are treated in accordance with

key aspects of its own New Directions policy.

The Commission therefore reiterates its past recommendations that the

provisions of the Migration Act relating to excised offshore places should be

repealed; people should not be held in immigration detention on Christmas

Island; and all unauthorised arrivals who make claims for asylum should have

those claims assessed through the refugee status determination system that

applies under the Migration Act.

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3 Recommendations

Recommendation 1: The Australian Government should repeal the

provisions of the Migration Act relating to excised offshore places.

Recommendation 2: The Australian Government should abandon the policy

of processing some asylum claims through a non-statutory refugee status

assessment process. All unauthorised arrivals who make claims for asylum should

have those claims assessed through the refugee status determination system that

applies under the Migration Act.

Recommendation 3: The Australian Government should stop using

Christmas Island as a place in which to hold people in immigration detention.

Recommendation 4: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, it should abolish the

policy of mandatorily detaining all unauthorised boat arrivals on the island.

The Migration Act does not require detention in excised offshore places.

Recommendation 5: Section 494AA of the Migration Act, which bars

certain legal proceedings in relation to offshore entry persons, should be

repealed. The Migration Act should be amended to accord with international law

by requiring that a decision to detain a person, or a decision to continue a

person’s detention, is subject to prompt review by a

court.[4]

Recommendation 6: 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 7: The Australian Government should accede to the Optional Protocol to the Convention against Torture and establish an

independent 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 8: If the Australian Government intends to

continue the practice of holding children in immigration detention on Christmas

Island, children should be accommodated with their family members in

community-based accommodation. They should not be detained in the construction

camp immigration detention facility, the secure compound of the Phosphate Hill

immigration detention facility, or the Christmas Island IDC.

Recommendation 9: The Australian Government should implement the

outstanding recommendations made by the Commission in the report of its national

inquiry into children in immigration detention, A last

resort.[5] 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 the child must be a primary

      consideration

    • the preservation of family unity
    • special protection and assistance for unaccompanied

      children.

Recommendation 10: If the

Australian Government intends to continue the practice of holding children in

immigration detention on Christmas Island it should, as a matter of

priority:

  • clarify the applicable laws and jurisdiction of relevant state and federal

    bodies

  • clarify through formal Memoranda of Understanding the respective roles and

    responsibilities of state and federal authorities with regard to the welfare and

    protection of children in all forms of immigration detention on Christmas

    Island

  • clearly communicate these roles and responsibilities to all relevant state

    and federal authorities, and to unaccompanied minors and their carers or

    representatives

  • ensure that there are clear policies and procedures in place regarding child

    welfare and protection concerns that may arise in respect of children in

    immigration detention on Christmas Island, and communicate these policies and

    procedures to all relevant staff.

Recommendation 11: 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

    children.

  • An independent guardian should be appointed for unaccompanied children and

    they should receive appropriate support.

Recommendation 12:

If the Australian Government intends to continue to use the Christmas Island

IDC, it should implement the recent recommendation of the Joint Standing

Committee on Migration that all caged walkways, perspex barriers, and

electrified fencing be removed and replaced with more appropriate security

infrastructure.[6]

Recommendation 13: DIAC should ensure that all immigration detainees

on Christmas Island, upon entering detention, are provided with up-to-date

induction materials with information on:

  • how to request an interpreter, including the phone number for the

    Translating and Interpreting Service (TIS)

  • how to lodge a complaint with DIAC or the detention service provider, and

    how soon that complaint will be responded to. It should include contact phone

    numbers so that detainees do not have to rely solely on submitting a written

    complaint or request form

  • how to lodge a complaint with the Commonwealth Ombudsman or the Australian

    Human Rights Commission. Current contact details, including phone and fax

    numbers, should be included

  • current contact details for the local police, including a phone number
  • what medical, dental and mental health services are available to detainees,

    and how a detainee can access those services

  • how to request an external excursion
  • what facilities are available for religious purposes
  • contact details for Legal Aid, the United Nations High Commissioner for

    Refugees (UNHCR), Australian Red Cross, major refugee and asylum seeker

    information and advice groups, and Immigration Advice and Application Assistance

    Scheme (IAAAS) providers.

These induction materials should be

translated into the main languages spoken by the detainee population. Each

detainee should be provided with a copy in a language they can understand. If

this is not possible, or a detainee cannot read, an interpreter should be

provided in person to go through the materials with the detainee in their

preferred language.

Recommendation 14: DIAC should ensure that all immigration detainees

are provided with clear information on their arrival in immigration detention

informing them of:

  • their right to seek asylum
  • their right to access independent legal advice and assistance
  • the scope of the IAAAS assistance that will be provided to them
  • the non-statutory refugee status assessment process, including the steps in the process and the

    approximate estimated timeframes for each of those steps. This should include

    information about what will be expected of the detainee during each step in the

    process, and who will make the decision at each step. It should also clearly

    indicate any timeframes that detainees are expected to comply

    with.

While this information may initially be provided verbally,

detainees should also be provided with a written copy in a language they can

understand. If this is not possible, or a detainee cannot read, an interpreter

should be provided in person to go through the written information with the

detainee in their preferred language.

Recommendation 15: If DIAC intends to continue to use the separation

detention system, it should ensure that all detainees are able to:

  • make an initial phone call to contact their family members
  • access communication facilities if they wish to contact a lawyer or

    migration agent.

DIAC should consider allowing detainees to have

more regular communication with family members while they are in separation

detention.

Recommendation 16: If the Australian Government intends to

continue using Christmas Island for immigration detention purposes, DIAC should

ensure that all detainees are provided with adequate access to phones, and that

detainees can make and receive phone calls in privacy.

Recommendation

17: Wherever possible, DIAC should ensure that official letters and

documents are provided to a detainee in a language the detainee can understand.

Where this is not possible, the detainee should be offered the assistance of an

interpreter to translate the contents of the letter or document. This should

include documents relating to decisions, and reasons for decisions, at the

primary and independent review stages of the non-statutory refugee status assessment process for

offshore entry persons; and the primary and Refugee Review Tribunal stages of the refugee status

determination system for detainees who are not offshore entry persons.

Recommendation 18: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that detainees on the island are provided with access to appropriate health and

mental health care services. These should be no less than the services available

to detainees on the mainland.

Recommendation 19: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that all detainees, including those at the construction camp, are provided with

a range of recreational facilities and activities. All detention facilities

should have open grassy space for sports and recreation.

Recommendation 20: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that:

  • detainees have access to appropriate educational activities, including ESL

    classes

  • each detention facility has an adequate supply of reading materials in the

    principal languages spoken by detainees.

Recommendation 21:

If the Australian Government intends to continue using Christmas Island for

immigration detention purposes, DIAC should:

  • adopt minimum standards for the conduct of regular external excursions from

    immigration detention facilities, including for detainees in separation

    detention

  • include these standards in the contract with the detention service provider
  • monitor compliance with these standards on an ongoing basis and take

    appropriate remedial action when they are not being complied with

  • ensure that the detention service provider is allocated sufficient resources

    to provide escorts for regular external

    excursions.

Recommendation 22: If the Australian Government

intends to continue using Christmas Island for immigration detention purposes,

DIAC should ensure that all detainees are provided with access to regular

religious services conducted by qualified religious representatives.

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4 Background

4.1 Conduct

of visit

The Commission visited Christmas Island from 13 to 18 July 2009. The visit

was conducted by Catherine Branson QC (President of the Commission and Human

Rights Commissioner), Graeme Innes AM (Race Discrimination Commissioner and

Disability Discrimination Commissioner), and two staff members from the Human

Rights Unit.

During the visit the Commission undertook the following activities:

  • inspection of the Christmas Island IDC, the construction camp immigration

    detention facility and the Phosphate Hill immigration detention facility

  • meetings with detainees at the Christmas Island IDC, the construction camp

    immigration detention facility and in community detention

  • meetings with DIAC and G4S Australia management and staff
  • meetings with staff members of health and mental health service providers,

    Australian Red Cross and Life Without Barriers

  • meetings with representatives of the Attorney-General’s Department,

    Christmas Island Shire Council, Christmas Island District High School, local

    religious groups and other community representatives.

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4.2 Purpose of

visit

For more than a decade, the Commission has raised significant concerns about

Australia’s immigration detention system. During this time, the Commission

has investigated numerous complaints from individuals in immigration detention

and conducted two national inquiries into the mandatory detention

system.[7] The Commission has concluded that this system breaches fundamental human

rights.[8]

Because of its ongoing concerns, the Commission has undertaken a range of activities aimed at ensuring that the immigration detention system complies with Australia's international human rights obligations.[9] One of these activities has been monitoring conditions in immigration detention. The Commission has conducted numerous visits to Australia’s immigration detention facilities, including annual inspections of mainland facilities over the last three years. In 2008, these inspections also included the detention facilities on Christmas Island.

This year the Commission conducted a stand-alone visit to Christmas Island

due to the significant number of people being held in immigration detention on

the island; the limited access those people have to the Australian legal system;

and the lack of publicly available information about the detention operations on

the island.

The overarching purpose of the Commission’s visit was to assess the

extent to which the immigration detention operations on Christmas Island comply

with internationally accepted human rights standards.

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4.3 Relevant human

rights standards

Conditions in immigration detention should comply with Australia’s

international human rights obligations. These are contained in a range of

treaties the Australian Government has voluntarily become a party to,

including:

  • the International Covenant on Civil and Political Rights (ICCPR)[10]
  • the International Covenant on Economic, Social and Cultural Rights (ICESCR)[11]
  • the Convention against Torture and Other Cruel, Inhuman and Degrading

    Treatment or Punishment (Convention against

    Torture)[12]

  • the Convention Relating to the Status of Refugees and Protocol

    Relating to the Status of Refugees (Refugee

    Convention)[13]

  • the Convention on the Rights of the Child (CRC).[14]

These

treaties protect a wide range of fundamental rights and freedoms. Those most

relevant to people in immigration detention include the following:

Everyone has the right to liberty and security of the person. No one should

be subjected to arbitrary arrest or

detention.[15]

Anyone deprived of his or her liberty has the right to challenge the

lawfulness of his or her detention before a

court.[16]

Anyone detained should have access to independent legal advice and

assistance.[17]

All persons deprived of their liberty should be treated with humanity and

respect for the inherent dignity of the human

person.[18]

No one should be subjected to torture or to cruel, inhuman or degrading

treatment or punishment.[19]

The detention of a child should be used only as a measure of last resort

and for the shortest appropriate period of

time.[20]

In all actions concerning children, the best interests of the child should

be a primary consideration.[21]

Everyone is entitled to respect for their human rights without

discrimination.[22]

The principle of non-refoulement prohibits Australia from returning

a refugee to a country where his or her life or freedom would be

threatened.[23]

In addition, there are a range of international guidelines relating

specifically to the treatment of persons in detention. These include:

  • the Body of Principles for the Protection of all Persons under Any Form

    of Detention or

    Imprisonment[24]

  • the Standard Minimum Rules for the Treatment of

    Prisoners[25]

  • the United Nations Rules for the Protection of Juveniles Deprived of

    their Liberty[26]

  • UNHCR guidelines, including the Revised Guidelines on Applicable Criteria

    and Standards Relating to the Detention of Asylum Seekers and the Guidelines on Policies and Procedures in Dealing with Unaccompanied Children

    Seeking

    Asylum.[27]

In 2000,

the Commission used these human rights standards and international guidelines as

a basis for developing the Immigration Detention

Guidelines.[28] These guidelines are intended to act as a minimum benchmark against which

conditions in Australia’s immigration detention facilities can be

measured.

One of the overarching principles of the guidelines is that, because

immigration detention is administrative detention not a correctional sentence,

the treatment of immigration detainees should be as favourable as possible and

in no way less favourable than that of untried or convicted

prisoners.[29] People in immigration

detention are detained under the Migration Act

because they do not have a valid

visa.[30] They are not detained

because they are under arrest, or because they have been charged with or

convicted of a criminal offence.

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5 Snapshot: immigration

detainees on Christmas Island

5.1 Where is

Christmas Island?

Christmas Island is a remote territory of Australia, located in the Indian

Ocean. It is approximately 2650km north-west of Perth, 2800km west of Darwin and

360km south of Java. The island is three hours behind Australian Eastern

Standard Time. It consists of approximately 135 square kilometres of land, more

than 60 percent of which is national park. The current local population is

around 1100 people.

Map of Australia with the location of Christmas Island and Cocos Island

Location of Christmas Island relative to the Australian

mainland[31]

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5.2 Who is detained

on Christmas Island?

The current policy of the Australian Government is that all people who arrive

by boat without a valid visa (unauthorised boat arrivals) are taken into

immigration detention on Christmas

Island.[32] This includes people who arrive by boat in excised offshore places such as

Christmas Island, the Ashmore and Cartier Islands, the Cocos (Keeling) Islands

and others.[33] It also includes

people who arrive by boat on the mainland or in any non-excised part of

Australia. For example, in November 2008 a group of people was detained on

Christmas Island after arriving at Shark Bay on the Western Australia coast.

Almost all detainees on Christmas Island are asylum seekers. At the time of

the Commission’s visit, the vast majority were from Afghanistan or Sri

Lanka. The other two major nationalities were Iraqi and Iranian. Six detainees

were stateless.[34]

At any given time, there may also be a small number of crew members in

immigration detention awaiting removal from Australia, or waiting while

Australian Federal Police (AFP) investigations are ongoing.

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5.3 How many people

are detained?

The number of people in immigration detention on Christmas Island varies at

any given time, as some detainees may be granted visas and resettled on the

mainland, while others may arrive in the meantime.

When the Commission visited in August 2008, there were only four people in

immigration detention on Christmas Island. At the time of the Commission’s

July 2009 visit, this had increased significantly to 733 people, including 82

children, 28 women and 623 men. Of the 82 children, 54 were unaccompanied.

At the time of writing, there had been 828 new arrivals since the

Commission’s visit.

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5.4 How long are

people detained?

Of the 733 immigration detainees on Christmas Island at the time of the

Commission’s visit, the majority had been there for less than three

months. However, 114 detainees (16 percent) had been there for more than three

months, and 15 had been there for six months or longer.

Of the 82 detained children, 16 of them (20 percent) had been there for more

than three months. This included seven children under ten years of age. One 17

year old boy had been there for more than six months.

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5.5 Where

are people detained?

People in immigration detention on Christmas Island may be held in a range of

places including:

  • The Christmas Island IDC, a high security detention centre used for adult

    males. During the Commission’s visit there were 590 detainees in the

    IDC.

  • The construction camp, a low security immigration detention facility used

    primarily for groups including unaccompanied minors or families with children.

    When the Commission visited, there were 99 detainees including 25 men, 21 women,

    17 accompanied children and 36 unaccompanied children.

  • The Phosphate Hill immigration detention facility, which includes the secure

    bravo compound for adult males and the open alpha compound for people in

    community detention. When the Commission visited, there were five men in

    community detention in the alpha compound. No one was detained in the bravo

    compound at that time.[35]

  • Duplex houses in the community, used for people in community detention. When

    the Commission visited, there were 39 people in community detention in the

    duplexes including 3 men, 7 women, 11 accompanied children and 18 unaccompanied

    children.

Section 12 of this report contains detailed observations

and concerns about the Christmas Island IDC and the construction camp facility.

Comments about the Phosphate Hill facility and community detention accommodation

are set out in section 13.

At the time of the Commission’s visit, the detention facilities on the

island were being operated by G4S Australia. However, the new service provider,

Serco Australia, was due to take over at the beginning of October 2009.

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PART B: Excision and

offshore

processing

6 What

are excised offshore places?

In 2001, the Migration Act was amended to designate a number of islands,

including Christmas Island, as ‘excised offshore

places’.[36] A person who

becomes an unlawful non-citizen (a non-citizen without a valid visa) by entering

Australia at such a place is referred to as an ‘offshore entry

person’.[37]

The purpose of these amendments was to bar offshore entry persons from being

able to apply for a visa, unless the Minister for Immigration and Citizenship

(the Minister) determines that it is in the public interest to allow them to do

so.[38] The Migration Act also

purports to bar them from taking certain legal proceedings in the Australian

courts, including in relation to the lawfulness of their

detention.[39]

Further, under the Migration Act, an offshore entry person can be removed to

a ‘declared country’ using ‘such force as is necessary and

reasonable’.[40] Previously,

asylum seekers were transferred to immigration detention centres on Nauru and

Manus Island as part of the Howard Government’s ‘Pacific

solution’.

The Commission commended the current Australian Government for closing those

detention centres in 2008. However, the government has stated its commitment to

retaining the excision of offshore islands, and to detaining unauthorised boat

arrivals on Christmas Island.[41]

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7 What is the offshore

processing system?

The Australian Government’s current policy is that unauthorised boat

arrivals in excised offshore places are taken into immigration detention on

Christmas Island and their refugee claims are processed through a

‘non-statutory’ refugee status assessment process (the non-statutory

RSA process).[42] This is an

administrative process which applies only to asylum seekers who arrive in

excised offshore places. The process is not governed by the Migration Act. It is

governed by draft policy guidelines developed by

DIAC.[43]

The key steps in this process are as follows:

  • The person arrives in an excised offshore place and is taken into

    immigration detention on Christmas Island, initially in separation detention. An

    initial entry interview is conducted. If the person raises fears of returning to

    their country of origin, a full entry interview is conducted and the person is

    moved from separation detention into the general detainee population. After the

    full entry interview, the interviewing officer submits details about the case to

    a senior DIAC officer.

  • That senior DIAC officer assesses whether the person has raised claims that

    may engage Australia’s protection obligations. If they have not, DIAC can

    commence arrangements for the person to be removed from Australia. If they have,

    the person is provided with IAAAS assistance to lodge a statement of claims and

    request for refugee status assessment.

  • The person is interviewed by a DIAC officer, who assesses their refugee

    claims and makes a determination as to whether they are a refugee.

  • If the person is assessed as being a refugee, DIAC prepares a submission to

    the Minister seeking his or her agreement to ‘lift the bar’ in

    section 46A of the Migration Act. If the Minister does so, the person is

    permitted to apply for a protection visa.

  • If the person is assessed as not being a refugee, they can request a review

    of that assessment by an Independent Reviewer. The Independent Reviewer

    considers the person’s refugee claims and recommends to the Minister

    whether he or she should consider lifting the section 46A bar to allow the

    person to apply for a protection visa.

The Commission has

significant concerns about the non-statutory RSA process, as discussed

below.

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8 What are the

Commission’s concerns about excision and offshore processing?

8.1 A two-tiered

system for determining refugee status

The provisions of the Migration Act relating to excised offshore places

create a two-tiered system for determining whether an asylum seeker is a

refugee.

An asylum seeker who arrives on the mainland or in another non-excised part

of Australia has access to the refugee status determination system regulated by

the Migration Act. This means that they:

  • are able to submit a valid application for a protection

    visa[44]

  • have access to independent merits review by the Refugee Review Tribunal

    (RRT), or in some circumstances the Administrative Appeals Tribunal (AAT), if

    they are refused a protection

    visa[45]

  • have limited access to judicial review by the Federal Magistrates Court and

    the Federal Court of decisions made by the RRT or the

    AAT.[46]

However, an

asylum seeker who arrives in an excised offshore place does not have access to

this system. Instead, they go through the non-statutory RSA process described

above. These people:

  • are barred by the Migration Act from submitting a valid application for any

    visa, including a protection visa - this only becomes possible if the

    Minister exercises his or her discretion to allow an application to be

    submitted[47]

  • do not have access to independent merits review by the RRT or the AAT

    - instead they have access to an Independent Reviewer who conducts a review

    of the initial RSA decision and makes a non-binding recommendation to the

    Minister

  • have very limited access, if any, to judicial review of a decision made by a

    DIAC officer or an Independent Reviewer that the person is not a

    refugee.[48]

In

the Commission’s view, this two-tiered system undermines Australia’s

obligations under the Refugee Convention and jeopardises fundamental human

rights.

In particular, article 31 of the Refugee Convention prohibits state parties

from penalising asylum seekers on account of their unlawful entry where they are

coming directly from a territory where their life or freedom was

threatened.[49] Australia’s differential treatment of asylum seekers based on their place

and method of arrival arguably breaches this obligation, as well as the right to

equality and non-discrimination in article 26 of the

ICCPR.[50] The lack of legal

safeguards under the non-statutory RSA process also increases the risk of refoulement, as discussed in section 8.2 below.

Further, the CRC affirms the right of child asylum seekers and refugees to

receive appropriate protection and

assistance.[51] The principle of

non-discrimination in the CRC means that all children seeking asylum are

entitled to the same level of assistance and protection of their rights,

regardless of how or where they

arrive.[52] In A last resort,

the Commission found that Australia was breaching these obligations by providing

children arriving in excised offshore places with inferior access to legal

assistance and review procedures compared to those arriving on the

mainland.[53]

In April 2009, the

United Nations (UN) Human Rights Committee raised concerns about

Australia’s excision regime. The Committee recommended that the Australian

Government should ‘enact in legislation a comprehensive immigration

framework’ in compliance with the ICCPR, and that it should implement the

recommendations made by the Commission in its 2008 Immigration detention

report.[54] Those recommendations included repealing the provisions of the Migration Act

relating to excised offshore

places.[55]

Recommendation 1: The Australian Government should repeal the

provisions of the Migration Act relating to excised offshore places.

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8.2 Lack of legal

safeguards

The Commission has previously raised concerns about processing the refugee

claims of people who arrive in excised offshore places through a separate

non-statutory

process.[56] In his July 2008 New Directions speech, the Minister acknowledged that there has

been ‘strong criticism’ of offshore

processing.[57] The Minister

announced several key reforms, including providing asylum seekers on Christmas

Island with access to the Immigration Advice and Application Assistance Scheme

(IAAAS), independent review of negative RSA decisions, and an external scrutiny

role for the Commonwealth

Ombudsman.[58]

The Commission

welcomes these reforms, and considers them indispensable. However, even with

these reforms, the Commission has serious concerns about the non-statutory RSA

process. These primarily relate to the lack of transparent and enforceable

procedures for decision-making, and the failure to provide sufficient legal

safeguards for asylum seekers. The Commission’s key concerns are as

follows:

  • The non-statutory RSA process is governed by draft policy guidelines. The

    guidelines are neither legally binding nor publicly available. Decision-makers

    are not bound by the Migration Act, the Migration Regulations or Australian case

    law regarding the definition of a refugee.

  • Asylum seekers who arrive in excised offshore places are barred by the

    Migration Act from applying for a protection

    visa.[59] They must rely on the

    Minister exercising his or her personal discretion to lift that

    bar.[60] This discretion is

    non-compellable and non-reviewable. Even if a DIAC officer or an Independent

    Reviewer assesses that a person is a refugee, the Minister is under no

    obligation to consider exercising the discretion.

  • While the provision of independent review is a positive reform, it is not a

    sufficient safeguard. The Independent Reviewers operate under draft guidelines

    which are neither legally binding nor publicly available. Unlike the RRT and the

    AAT, the Independent Reviewers do not have the power to overturn a DIAC decision

    or to grant a protection visa. Their recommendations to the Minister are not

    binding.

  • The Commission welcomes the fact that the majority of asylum seekers on

    Christmas Island currently appear to be moving through the non-statutory RSA

    process relatively quickly.[61] However, the Commission is concerned that this situation is vulnerable to

    change, as there are no binding timeframes under the process.

These various weaknesses increase the risk of people being held in

immigration detention on Christmas Island for prolonged or indefinite periods,

which could lead to breaches of Australia’s obligations under article 9 of

the ICCPR. They also undermine Australia’s non-refoulement obligations under the Refugee Convention by increasing the risk of a refugee

being returned to a place where their life or freedom would be threatened.

Further, the non-statutory RSA process fails to adequately implement

Australia’s non-refoulement obligations under the ICCPR, CRC and

CAT. Those obligations prohibit the return of people who do not fit the

definition of ‘refugee’, but who may nevertheless face significant

human rights abuses such as torture if returned to their country of origin.

Currently, such people must rely on the Minister exercising his or her

discretion to grant them a protection visa. The Commission has previously

recommended the introduction of a legislative system of complementary protection

to implement Australia’s non-refoulement obligations under the

ICCPR, CRC and CAT.[62] The

Commission therefore welcomed the recent introduction of the Migration Amendment

(Complementary Protection) Bill 2009 (Cth). However, the system proposed by the

Bill will not provide statutory protection for offshore entry persons.

Under the non-statutory RSA process, people seeking Australia’s

protection are essentially reliant on the Minister’s personal discretion.

A system based on the exercise of a non-compellable and non-reviewable

Ministerial discretion does not provide adequate legal safeguards for such

people. As stated recently by the Parliamentary Secretary for Multicultural

Affairs and Settlement Services, Laurie Ferguson:

[D]ecisions may only be made by the minister personally; no-one can compel

the minister to exercise the powers; there is no specific requirement to provide

natural justice; there is no requirement to provide reasons if the minister does

not exercise the power; and there is no merits review of decisions by the

minister.

While there can be no doubt that ministers take very seriously their

obligations to consider whether a visa should be granted to meet

Australia’s human rights obligations, the very nature of ministerial

intervention powers is such that they do not provide a sufficient guarantee of

fairness and integrity for decisions in which a person’s life may be in

the balance.[63]

The UN Human

Rights Committee recently raised concerns about Australia’s non-statutory

decision-making process for refugee claims, and recommended that the Australian

Government should implement the recommendations made by the Commission in its 2008 Immigration detention

report.[64] These included

ending the offshore processing of asylum

seekers.[65]

Recommendation 2: The Australian Government should abandon the policy

of processing some asylum claims through a non-statutory refugee status

assessment process. All unauthorised arrivals who make claims for asylum should

have those claims assessed through the refugee status determination system that

applies under the Migration Act.

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PART

C: Immigration detention on Christmas Island

The current policy of the Australian Government is that all unauthorised boat

arrivals (in both excised offshore places and non-excised places) are taken to

Christmas Island and held in immigration detention until they have been granted

a visa or removed from

Australia.[66]

At the time of the Commission’s visit, there were 733 people detained

on Christmas Island. The Commission was pleased to observe that DIAC is making

efforts to manage the immigration detention operations on the island in a

positive way, given the considerable constraints they are working within.

However, in the Commission’s view, those constraints are created

primarily by the Australian Government’s decision to detain people in a

community as small and remote as Christmas Island. The key constraints include

the following:

  • the remote location and limited infrastructure and facilities make Christmas

    Island a difficult place in which to comply with some key aspects of the

    government’s New Directions

  • the remote location makes detention operations on the island less visible,

    transparent and accessible to public scrutiny

  • the immigration detention facilities on the island are not appropriate for

    detaining asylum seekers, particularly those with a background of torture or

    trauma

  • the remote location and the small size of the local community mean that

    detainees have limited access to appropriate services including health and

    mental health care, legal advice, and cultural and religious support.

In the Commission’s view, those constraints make Christmas

Island an inappropriate place in which to hold people in immigration detention.

The Commission also has concerns about the manner in which the immigration

detention system is currently being operated on Christmas Island, including the

following:

  • asylum seekers who arrive in excised offshore places are mandatorily

    detained even though the Migration Act does not require this, and the Migration

    Act purports to bar them from challenging the lawfulness of their detention in

    the Australian courts[67]

  • some children are detained in a closed immigration detention facility, the

    construction camp

  • there is a conflict of interest created by having the Minister or DIAC

    officers act as the legal guardian for unaccompanied minors detained on the

    island, while also being the detaining authority and the visa

    decision-maker

  • there is a lack of clarity surrounding responsibilities and procedures

    relating to child welfare and protection for children detained on the

    island

  • some detainees express frustrations about issues including restrictions

    during ‘separation detention’, their length of detention, their lack

    of access to external excursions, and difficulties accessing interpreters and

    translated documents.

The remaining sections of this report discuss

each of the above issues in further detail. Where appropriate, recommendations

are made for improving the current conditions for detainees on Christmas Island.

This should not be construed as an endorsement of holding people in immigration

detention on Christmas Island. Rather, it reflects the fact that, if the

Australian Government intends to continue this practice, conditions for

detainees should comply with Australia’s international obligations.

Recommendation 3: The Australian Government should stop using

Christmas Island as a place in which to hold people in immigration detention.

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9 Implementation of the

New Directions on Christmas Island

In July 2008, the Minister announced the government’s New Directions

for the immigration detention system, based on seven key

values.[68] The Commission welcomed

the New Directions policy and most of the key

values.[69]

However, the Commission is concerned that two of the key values retain the

use of mandatory detention – including for all unauthorised

arrivals.[70] The implementation of this policy on Christmas Island is particularly concerning

given that the Migration Act does not require detention in excised offshore

places.[71]

Further, while the Commission supports the remainder of the key values and

the broader New Directions policy, it is concerned that the policy is not being

fully implemented on Christmas Island. In the Commission’s view the

island’s remoteness and limited infrastructure make it a difficult place

in which to ensure that detention operations comply with some key aspects of the

New Directions policy. This contributes to the Commission’s view that

Christmas Island is not an appropriate place in which to hold people in

immigration detention.

The Commission’s key concerns on these issues are set out below.

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9.1 Mandatory

detention of unauthorised arrivals

According to the Minister, the New Directions reforms were intended to

‘fundamentally change the premise underlying detention

policy’.[72] Under these

reforms, ‘persons will only be detained if the need is established’,

‘the department will have to justify a decision to detain – not

presume detention’, and the key values commit to ‘detention as a

last resort’.[73] The

Commission welcomes this.

However, on Christmas Island, detention is not used as a last resort and it

is not based on an individualised assessment of the need to detain each person.

Rather, all unauthorised boat arrivals are mandatorily detained upon their

arrival on the island. This is because the New Directions also include two key

values that retain the use of mandatory detention for specified categories of

people, including ‘all unauthorised arrivals, for management of health,

identity and security risks to the

community’.[74]

The Commission has long opposed the use of mandatory immigration detention

for broad categories of people because it is based on a blanket approach, rather

than an assessment of the need to detain in each person’s case.

Under UNHCR guidelines, 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 if there is evidence to suggest that other

alternatives (for example, reporting requirements) will not be effective in the

individual case.[75] The detention

of asylum seekers should only be resorted to if necessary:

  • to verify identity
  • to determine the elements on which the claim to refugee status or asylum is

    based

  • to deal with cases where refugees or asylum seekers have destroyed their

    travel and/or identity documents or have used fraudulent documents in order to

    mislead the authorities of the State in which they intend to claim asylum

  • to protect national security or public

    order.[76]

In assessing

whether detention is necessary, considerations should include whether it is

reasonable and whether it is proportional to the objectives to be

achieved.[77]

The Australian Government’s policy of mandatory detention for all unauthorised

arrivals fails to comply with these UNHCR guidelines. While the policy also

applies to unauthorised arrivals on the mainland, it is particularly concerning

on Christmas Island given that the Migration Act does not require mandatory

detention in excised offshore places – legally it is a matter of

discretion.[78] Further, detainees

on Christmas Island have fewer legal safeguards than detainees on the mainland;

and there are significantly fewer alternatives to being held in a closed

detention facility on Christmas Island compared to the

mainland.

Recommendation 4: If the Australian Government intends to

continue using Christmas Island for immigration detention purposes, it should

abolish the policy of mandatorily detaining all unauthorised boat arrivals on

the island. The Migration Act does not require detention in excised offshore

places.

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9.2 Prohibition of

indefinite or otherwise arbitrary detention

The Commission has consistently called for the repeal of Australia’s

mandatory detention system because it leads to breaches of Australia’s

obligations to ensure that no one is arbitrarily

detained.[79] The Commission

therefore welcomed the inclusion of a key value in the New Directions

acknowledging that indefinite or otherwise arbitrary detention is not

acceptable, and committing to the length and conditions of detention being

subject to regular review.[80] However, in the Commission’s view the government has not implemented

sufficient reforms to ensure that this value is realised in practice.

The government has introduced two new review mechanisms under the New

Directions: a three-monthly review by a senior DIAC officer; and a six-monthly

review by the Commonwealth Ombudsman. The Commission welcomes these reforms, but

considers that they are not sufficient to prevent arbitrary detention. The

three-monthly DIAC reviews are not conducted by an independent body, a concern

also raised by the Joint Standing Committee on

Migration.[81] And while the

six-monthly Ombudsman reviews are conducted by an independent body, the

Ombudsman does not have the power to enforce its recommendations.

The essential safeguard required to ensure that arbitrary detention does not

occur is access to review by a court of any decision to detain or to continue a

person’s detention. Currently, in breach of its international obligations,

Australia does not provide this.[82]

This is an ongoing concern with Australia’s immigration detention

system generally. However, it is particularly concerning on Christmas Island

given that the Migration Act purports to bar offshore entry persons from taking

legal proceedings relating to the lawfulness of their

detention.[83] In addition, offshore

entry persons detained on Christmas Island go through the non-statutory RSA

process which provides fewer safeguards than those available to asylum seekers

on the mainland. And the remoteness of Christmas Island makes it more difficult

for external bodies to monitor the situation of detainees held there.

These factors increase the risk that people may be held in immigration

detention on Christmas Island for prolonged or indefinite periods. This would be

inconsistent with the government’s New Directions, and could also lead to

breaches of Australia’s international obligations to ensure that no one is

subjected to arbitrary

detention.[84]

Recommendation 5: Section 494AA of the Migration Act, which bars

certain legal proceedings in relation to offshore entry persons, should be

repealed. The Migration Act should be amended to accord with international law

by requiring that a decision to detain a person, or a decision to continue a

person’s detention, is subject to prompt review by a

court.[85]

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9.3 Detention

only for initial health, identity and security checks

Under the New Directions, an asylum seeker should only be held in a closed

detention facility for as long as it takes to conduct their initial health,

identity and security checks. After this, the presumption is that they will be

released into the community unless a specific risk justifies their continued

detention in a facility.[86]

During its visit to Christmas Island, the Commission had significant doubts

as to whether detainees were being released into community detention once their

initial checks had been completed. This concern was also raised by local

community representatives.

DIAC informed the Commission that, generally, detainees on Christmas Island

are not held in a detention facility once their initial checks have been

completed. DIAC acknowledged that various factors could delay the release of a

detainee into community detention, including the availability of accommodation

and the need to arrange carers for unaccompanied minors. However, in their view,

the major cause of delay was usually that a detainee’s security clearance

had not been finalised.

According to DIAC, the ASIO security clearance process is often not finalised

until the non-statutory RSA process is at, or nearing, completion. Further, if a

detainee’s initial RSA decision is negative, ASIO suspends their security

check. If the detainee later receives a positive decision through independent

review, the ASIO security clearance process must be re-started. This could lead

to people being held in closed detention facilities for six months or more

rather than being released into the community while their immigration status is

resolved, as is intended under the New Directions.

In the Commission’s view, the shortage of community-based accommodation

on Christmas Island is also likely to be a key factor in preventing the release

of some detainees from a closed detention facility into community detention. At

the time of the Commission’s visit, DIAC had capacity to accommodate up to

60 people in community detention in the duplex houses. Of the 733 detainees on

the island at the time, only 44 were in community detention. Even for child

detainees, who are given priority consideration, only 35 percent were in

community detention rather than a detention

facility.[87]

During the Commission’s visit, DIAC was taking steps to increase the

community detention capacity on the

island.[88] However, given the small

size of the community and the significant number of detainees, the Commission

has doubts about the feasibility of securing enough community-based

accommodation to fully implement the New Directions presumption that detainees

will be released into the community once their health, identity and security

checks are completed. This concern contributes to the Commission’s view

that Christmas Island is not an appropriate place in which to hold immigration

detainees.

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9.4 Use

of immigration detention centres only as a last resort

The New Directions include a key value that ‘[d]etention in Immigration

Detention Centres is only to be used as a last resort and for the shortest

practicable time’.[89] The

Commission supports this, having observed the negative physical and mental

impacts of holding people in immigration detention centres, particularly for

prolonged periods.[90]

However, on Christmas Island the IDC is not used as a last resort – it

is used as the first and only resort for virtually all adult males arriving

without immediate family members. At the time of the Commission’s visit,

there were 590 adult male detainees in the IDC, compared to 25 in the

construction camp and only eight in community detention.

In the words of the Minister, the Christmas Island IDC represents a

‘maximum security

environment’.[91] Under the

New Directions risk-based approach, immigration detention centres are intended

to be used for high risk

detainees.[92] As far as the

Commission is aware, the detainees in the Christmas Island IDC are not there

because they have been individually assessed as posing a high risk to the

community. Rather, it appears that virtually all single adult males are placed

in the IDC because there are not enough alternative places on Christmas Island

in which to accommodate them.

The Commission acknowledges that DIAC is working within considerable

constraints in terms of the infrastructure and accommodation options available

on Christmas Island. However, these constraints have been imposed by the

Australian Government’s decision to detain people in a community as small

and remote as Christmas Island.

The lack of appropriate alternatives on the island makes it a difficult place

in which to comply with the New Directions requirement that immigration

detention centres should only be used as a last resort. This contributes to the

Commission’s view that Christmas Island is not an appropriate place in

which to hold immigration detainees.

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10 Monitoring

detention conditions on Christmas Island

The Australian Government’s New Directions include the following key

values:

Value 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.

Value 6: People in detention will be treated fairly and reasonably within the

law.

Value 7: Conditions of detention will ensure the inherent dignity of the

human person.[93]

Having raised ongoing concerns about conditions in Australia’s

immigration detention facilities for a decade, the Commission supports these

values and hopes to see them translated into legislation.

While these values are critical for immigration detainees on the mainland as

well, the Commission is particularly concerned about their implementation on

Christmas Island, as the remote location makes the detention operations less

visible, transparent and accessible. This concern contributes to the

Commission’s view that Christmas Island is not an appropriate place in

which to hold people in immigration detention.

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10.1 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.[94] This concern is

heightened on Christmas Island, as the remote location makes it more difficult

for external bodies to monitor detention conditions there.

It is not clear what standards the incoming detention service provider will

be required to comply with on Christmas Island, or how the Australian Government

intends to ensure that values 6 and 7 (above) will be implemented. Serco

Australia was due to take over management of the three detention facilities on

the island at the beginning of October 2009. According to DIAC, the five-year

contract with Serco ‘encompasses a stronger focus on the rights and

well-being of people in detention and provides a comprehensive framework for

ongoing quality improvement, including effective performance management

systems’.[95]

However, while the Commission was consulted early in the tender documentation

development, the Commission and other stakeholders have not yet been provided

with a copy of the final contract or details about the standards contained

within it.

This lack of transparency has also been raised as a concern by the Joint

Standing Committee on Migration, which recently recommended that DIAC should

make the current standards available on its website, provide a copy to all

detainees, and report on the detention service provider’s compliance in

the DIAC annual report.[96]

The Commission supports measures to increase transparency of existing

detention standards. However, the most appropriate way to ensure that standards

for detention conditions are adequately and consistently implemented over the

longer term is to embed minimum standards in legislation. This would be in line

with UNHCR guidelines that require conditions of detention for asylum seekers to

be prescribed by law.[97]

Recommendation 6: 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.

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10.2 Independent

monitoring

Independent monitoring of immigration detention facilities is essential in

order to increase accountability and transparency, and thereby guard against

human rights abuses. In the past, the Commission has emphasised the need for a

more comprehensive monitoring mechanism to ensure that conditions in immigration

detention facilities meet human rights

standards.[98] The need for such a

mechanism is enhanced on Christmas Island due to the limited transparency

surrounding the detention operations there, and because the remote location

makes it less accessible to external scrutiny bodies.

The Commission has generally received positive cooperation from DIAC in

response to requests for information about the detention operations on Christmas

Island. However, there is a significant lack of publicly available information.

The weekly DIAC statistics do not indicate the length of time people are

detained on Christmas Island, or (with the exception of men in the IDC), exactly

where on the island people are detained. There is also very little information

on the DIAC website about the detention facilities on the island – in

particular, there appears to be no mention of the construction camp facility.

Further, while various bodies play either a formal or informal role in

monitoring detention conditions on Christmas Island, the remote location makes

the detention facilities there much less accessible than those on the mainland.

For groups based on the east coast of Australia, travelling to Christmas Island

is time consuming and expensive.[99] This limits the ability of bodies such as the Commission to visit the detention

facilities on a regular basis, and makes the trip virtually impossible for most

NGOs and community groups.

In addition, there is no monitoring body with all of the key features

necessary to be fully effective: independence from DIAC; the capacity to

maintain an ongoing or regular presence on Christmas Island; a specific

statutory power to enter immigration detention facilities; public reporting for

transparency; and power to either enforce its recommendations or to require a

public response from government.

In the Commission’s view, there is a need for a more comprehensive

monitoring mechanism to ensure that immigration detention conditions on

Christmas Island meet human rights standards. One means of achieving this would

be through the Australian Government ratifying the Optional Protocol to the

Convention against Torture (OPCAT).[100] As a party to OPCAT,

the Australian Government would be required to establish an independent National Preventive

Mechanism (NPM) to conduct regular inspections of all places of detention.

In 2008, the Commission released a report of research it

commissioned into options for implementing OPCAT in

Australia.[101] The report

suggests a mixed NPM model, with separate NPMs in each state and territory and a

national coordinating NPM. The report suggests that the Commission should be the

national coordinating NPM. The Joint Standing Committee on Migration recently

noted that, as the Commission ‘already conducts inspections of immigration

detention facilities, it would therefore be the logical body in which to entrust

any compliance responsibilities associated with the

OPCAT’.[102]

Recommendation 7: The Australian Government should accede to the Optional Protocol to the Convention against Torture and establish an

independent 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.

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11 Children in detention

on Christmas Island

When the Commission visited Christmas Island in July 2009, there were 82

children in immigration detention on the island, including 14 girls and 68 boys.

The majority were 16 or 17 years old, but a significant number were much younger

- including 12 aged between zero and five

years.[103] Twenty nine of the

children were in community detention in the duplex houses, but 53 were in the

construction camp immigration detention facility. Of the 82 children, 54 were

unaccompanied.

Of the Commission’s various concerns about the immigration detention

operations on Christmas Island, concerns relating to the detention of families

with children and unaccompanied minors are among the most significant. These

include the following:

  • Families with children and unaccompanied minors are mandatorily detained on

    Christmas Island despite the fact that the Migration Act does not require the

    detention of unlawful non-citizens in excised offshore

    places.[104]

  • Some families with children and unaccompanied minors are detained in a

    closed immigration detention facility – the construction camp –

    instead of community detention. The construction camp is not an appropriate

    environment for families with children or unaccompanied minors.

  • There is a lack of accurate public information surrounding the detention of

    families with children and unaccompanied minors at the construction camp

    facility.

  • The Migration Act purports to bar offshore entry persons, including

    children, from challenging the lawfulness of their detention in the Australian

    courts.[105]

  • There is a lack of clarity surrounding responsibilities and procedures

    relating to child welfare and protection for children in immigration detention

    on Christmas Island.

  • There is a conflict of interest created by the Minister or a DIAC officer

    acting as the legal guardian of unaccompanied minors detained on Christmas

    Island, while also being the detaining authority and the visa

    decision-maker.

For the reasons discussed throughout Part C of this

report, the Commission is of the view that Christmas Island is not an

appropriate place in which to hold people in immigration detention, especially

children.

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11.1 Relevant human

rights

Australia is a party to the CRC, which protects the human rights of all

children. Human rights of particular importance for asylum-seeking children and

other children who may be subject to immigration detention include the

following:

The best interests of the child should be a primary consideration in all

actions concerning

children.[106]

The detention of a child should be used only as a measure of last resort

and for the shortest appropriate period of time. Children must not be deprived

of their liberty unlawfully or

arbitrarily.[107]

No child should be subjected to torture or cruel, inhuman or degrading

treatment or

punishment.[108]

Children in detention have the right to be treated with humanity and

respect for their inherent

dignity.[109]

Detained children must be able to challenge the legality of their detention

before a court or other competent, independent and impartial

authority.[110]

Asylum-seeking and refugee children are entitled to appropriate protection

and assistance.[111]

Children are not to be separated from their parents against their will,

except when competent authorities subject to judicial review determine that

separation is necessary for the best interests of the

child.[112]

Children lacking the support of their parents are entitled to special

protection and assistance from the government. The government must arrange

alternative care for such

children.[113]

Children have the right to enjoy, to the maximum extent possible,

development and recovery from past

trauma.[114]

Children have a right to

non-discrimination.[115]

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11.2 Mandatory

detention of children on Christmas Island

In

2004, the Commission released A last resort, the report of its national

inquiry into children in immigration detention. The inquiry found that

Australia’s mandatory immigration detention system was fundamentally

inconsistent with the CRC, including the requirement that a child only be

detained as a measure of last resort, for the shortest appropriate period of

time, and subject to effective independent

review.[116]

As noted in section 9.1 above, the Migration Act does not require the

mandatory detention of unauthorised arrivals in excised offshore places –

legally, it is a matter of

discretion.[117] Despite this, the

Australian Government’s current policy is that unauthorised boat arrivals, including

families with children and unaccompanied minors, are mandatorily detained on

Christmas Island.[118]

This policy is inconsistent with Australia’s obligations under the CRC

to only detain a child as a measure of last

resort.[119] By requiring the

detention of children on arrival on Christmas Island, the policy uses detention

as the first resort, rather than the last. In order to comply with its

obligations under the CRC, the government should consider any less restrictive

alternatives available to a child in deciding whether that child is detained. A

child should only be detained in exceptional

cases.[120]

The Australian Government’s policy also undermines section 4AA of the Migration

Act, which ‘affirms as a principle that a minor shall only be detained as

a measure of last resort’, and is contrary to UNHCR guidelines which state

that child asylum seekers should not be detained, particularly in isolated

areas.[121]

In the Commission’s view, children should not be held in immigration

detention on Christmas Island at all. However, if the Australian Government

intends to continue using Christmas Island for immigration detention purposes,

it should implement the recommendation in section 9.1 above, to abolish the

policy of mandatorily detaining all unauthorised boat arrivals, including

children.

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11.3 Detention of

children in the construction camp facility

Photo of the construction camp outside the gate with the No Trespassing sign on it

Construction camp immigration detention facility, external

view

Photo of the construction camp immigration detention facility, internal view

Construction camp immigration detention facility, internal

view

The Commission welcomed the inclusion in the New Directions of a value

stating that children, and where possible, their families, will not be detained

in an immigration detention

centre.[122] The Commission was

pleased to see this was being complied with at the Christmas Island IDC.

However, the Commission has significant concerns about the fact that some

families with children and unaccompanied minors are held in a closed immigration

detention facility - the construction camp.

On arrival on Christmas Island, families and unaccompanied minors are placed

into detention at the construction camp. According to DIAC, as soon as health,

security and identity checks are completed, the Minister is asked to consider

placing them into community

detention.[123] However, while

some are moved after an initial period in the camp, others are not. In the

Commission’s view, the shortage of community-based accommodation on

Christmas Island is likely to be a key factor delaying or preventing a move to

community detention for some families and unaccompanied minors. This issue is

discussed in section 9.3 above.

During the Commission’s visit, of the 82 children in immigration

detention on the island, only 29 were in community detention. The other 53 were

detained in the construction camp. Of the 53 children in the camp, the majority

were 16 or 17 years old, but a significant proportion were younger -

including 11 children aged between zero and five

years.[124] Thirty six of the

children in the camp were unaccompanied.

The construction camp is not included among the facilities classified by DIAC

as IDCs.[125] It has a much lower

level of security - it is surrounded by a residential style fence, there

are no alarms and there is no CCTV surveillance. The Commission welcomes this,

particularly in comparison to the excessive level of security at the Christmas

Island IDC.

However, DIAC’s classification of the construction camp facility as

‘alternative temporary detention in the community’ is

misleading.[126] The construction camp is not community-based accommodation. It is a closed

facility being used as a place in which to hold immigration detainees. People

detained in the camp are not free to come and go – they are only permitted

to leave under escort. Thus, while they are in a low security facility, their

liberty is severely restricted.

Furthermore, the construction camp is not an appropriate environment for

children. It is a claustrophobic facility consisting of demountables linked by

covered walkways. There is little open space, there are virtually no trees, and

there is no open grassy area for children to play. The bedrooms are very small,

with beds that are not appropriate for babies or young toddlers.

During its 2008 visit to the island, the Commission was informed by DIAC that

the construction camp would not be used for long term detention, but for initial

processing. The Commission was told this would take a few days. However, during

its 2009 visit, the Commission found that some families and unaccompanied minors

are spending two or three months in the

camp.[127]

For the first few weeks, detainees are kept in ‘separation

detention’. They are restricted to their own accommodation block - a

closed-in area consisting of their bedrooms, a small room with basic kitchen

facilities, and a narrow undercover wooden deck area. For young children this

would be a very restrictive situation.

The Commission welcomes the fact that, once they are out of separation

detention, school-age children leave the camp to attend school classes on a

daily basis. However, for children who are not yet old enough to attend school,

there are very limited activities and opportunities for creative play inside the

camp.

In the Commission’s view, the detention of families with children and

unaccompanied minors in a closed detention facility on Christmas Island

represents a regression from the changes introduced to the Migration Act in

2005, under which the intention was that families with children and

unaccompanied minors would be placed in community detention under a Residence

Determination.[128] This concern

was recently raised by Mr Petro Georgiou MP, a member of the Joint Standing

Committee on Migration.[129]

The Commission is of the view that children should not be held in immigration

detention on Christmas Island at all. However, if the Australian Government

intends to continue this practice, it must comply with its obligations under the

CRC and the Migration Act to only detain children as a last resort. This

requires consideration of any less restrictive alternatives before deciding to

place a child in a detention facility such as the construction camp. DIAC has

access to some community-based accommodation on Christmas Island, including

duplex houses. These are less restrictive alternatives, and should be used to

accommodate families with children and unaccompanied minors. If the

community-based accommodation on the island is full, the Australian Government

still has an obligation to consider less restrictive alternatives before placing

a child in the construction camp – this includes alternatives on the

mainland.

Recommendation 8: If the Australian Government intends to

continue the practice of holding children in immigration detention on Christmas

Island, children should be accommodated with their family members in

community-based accommodation. They should not be detained in the construction

camp immigration detention facility, the secure compound of the Phosphate Hill

immigration detention facility, or the Christmas Island IDC.

Back to top

11.4 Lack of accurate

information about the detention of children

The Commission is concerned that, on occasions, Australian Government

statements about detention arrangements for children do not accurately reflect

the current reality for children on Christmas Island. For example, an August

2009 press release stated:

It is Rudd Government policy that no child be held in an immigration

detention centre and there are no children detained in the Christmas Island

facility or any other detention centre. Children and where possible their

families are housed in community

accommodation.[130]

As a further example, the DIAC website states:

Detention policy is administered with flexibility, fairness and in a timely

manner. Arrangements introduced in 2005 provide for these requirements:

  • the detention of families with children is to take place in the community

    under community detention rather than in immigration detention

    centres...[131]

Statements

such as these convey the impression that children are not held in closed

immigration detention facilities, but are accommodated in community detention in

community-based accommodation. They may have also contributed to recent media

reports which wrongly state that children are no longer held in immigration

detention.[132] For many children

on Christmas Island, that is not the case.

As discussed in section 11.3 above, many children are detained in a closed

detention facility – the construction camp. DIAC’s classification of

the construction camp as ‘alternative temporary detention in the

community’ is

misleading.[133] The camp is not

community-based accommodation. It is a closed facility from which detainees are

not free to come and go.

Back to top

11.5 Lack

of judicial oversight of children’s detention

The Commission has long been concerned that Australia’s immigration

detention system breaches article 37 of the CRC by failing to provide for child

detainees to challenge their detention in a court or another independent

authority.[134] This is

particularly concerning for children in detention on Christmas Island

because:

  • if they arrived in an excised offshore place, the Migration Act purports to

    bar them from challenging the lawfulness of their detention in the Australian

    courts[135]

  • they go through the non-statutory RSA process which provides fewer legal

    safeguards than those available to asylum-seeking children on the mainland

  • they are detained in a remote place that is less accessible to external

    scrutiny bodies.

In A last resort, the Commission found that,

in order to comply with the CRC’s requirement that children only be

detained as a measure of last resort and for the shortest appropriate period,

the need for and period of detention of a child should be closely supervised by

an independent body.[136]

The Commission recommended that Australia’s law should require

independent assessment of the need to detain a child within 72 hours of their

initial detention. Similar to bail application procedures in the juvenile

justice system, if DIAC was unable to complete its checks within 72 hours, it

could ask a tribunal or court to order continuing detention of a particular

child and their parents until those checks were

completed.[137]

Further, article 37(d) of the CRC provides that every child has the right to

challenge the legality of their detention before a court or other competent,

independent and impartial

authority.[138] In the

Commission’s view, such review is most appropriately provided by a court.

Therefore, in A last resort, the Commission recommended that in addition

to a prompt independent assessment of the initial need to detain a child,

Australia’s law should provide for periodic and ongoing judicial review of

the continuing detention of any

child.[139]

Recommendation 9: The Australian Government should implement the

outstanding recommendations made by the Commission in the report of its national

inquiry into children in immigration detention, A last

resort.[140] 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 the child must be a primary

      consideration

    • the preservation of family unity
    • special protection and assistance for unaccompanied

      children.

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11.6 Child welfare

and protection responsibilities

In A last resort and previous annual inspection reports, the

Commission raised concerns about the lack of coordination between DIAC and state

child welfare authorities regarding responsibilities for the welfare and

protection of children in immigration detention – particularly

unaccompanied children.[141]

This is especially concerning in the case of children detained on Christmas

Island, as there is an apparent lack of clarity regarding which laws apply, and

which state and/or federal authorities are responsible for their welfare and

protection. This leaves those children, particularly the unaccompanied minors,

in a very vulnerable position.

The Commission has suggested on previous occasions that the respective roles

and responsibilities of DIAC and state child welfare authorities should be

formally clarified and clearly communicated to relevant

parties.[142] This issue has gone

unaddressed for too long. The Commission considers this a significant priority

on Christmas Island, given the number of children, including unaccompanied

minors, being detained on the island.

Recommendation 10: If the Australian Government intends to

continue the practice of holding children in immigration detention on Christmas

Island it should, as a matter of priority:

  • clarify the applicable laws and jurisdiction of relevant state and federal

    bodies

  • clarify through formal Memoranda of Understanding the respective roles and

    responsibilities of state and federal authorities with regard to the welfare and

    protection of children in all forms of immigration detention on Christmas

    Island

  • clearly communicate these roles and responsibilities to all relevant state

    and federal authorities, and to unaccompanied minors and their carers or

    representatives

  • ensure that there are clear policies and procedures in place regarding child

    welfare and protection concerns that may arise in respect of children in

    immigration detention on Christmas Island, and communicate these policies and

    procedures to all relevant staff.

Back to top

11.7 Supervision and

care of unaccompanied minors

Because unaccompanied minors are considered to be particularly vulnerable,

the CRC requires that the government provide them with special protection and

assistance.[143] In addition,

UNHCR guidelines provide that unaccompanied minors should not be detained,

particularly in isolated areas, and specify measures that should be taken to

protect unaccompanied

minors.[144]

When the Commission visited in August 2008, there were no unaccompanied

minors in detention on Christmas Island. However, the Commission raised concerns

that there did not appear to be arrangements in place to provide appropriate

support to unaccompanied minors if any did

arrive.[145] Since then, a

considerable number have arrived and been detained. During the

Commission’s July 2009 visit, there were 54 unaccompanied minors in

immigration detention on the island. Of these 54, only 18 were in community

detention. The other 36 were in the construction camp facility.

Unaccompanied minors detained in the construction camp are supervised by

detention officers employed by the detention service provider (which was G4S at

the time of the Commission’s visit). They are not provided with carers.

They must remain in the camp unless they are at school under the supervision of

a teacher, or on an excursion under escort.

In contrast, unaccompanied minors in community detention are not under the

direct supervision of DIAC or the detention service provider. They live in

community-based accommodation under the supervision of a carer. Generally, one

carer lives in each house with four or five unaccompanied minors of the same

ethnic background.

The carer is not the legal guardian of the unaccompanied minors. Their role

is to provide 24 hour supervision, care and support with the minors’ daily

needs and activities. This includes assisting with grocery shopping and cooking

meals, helping with homework, taking minors to medical appointments, and

arranging recreational activities. The minors are required to stay under their

carer’s supervision at all times, except when they are at school.

The carers are recruited from the mainland by Life Without Barriers, a

national organisation contracted by

DIAC.[146] The carers are required

to undergo a ‘working with children check’. Life Without Barriers

recruits carers from the same ethnic group, or who can speak the same language

as the minors they are supervising.

Back to top

11.8 Guardianship of

unaccompanied minors

The Commission has raised concerns over the past five years about the fact

that unaccompanied minors in the immigration detention system are not provided

with an independent legal guardian to ensure that their best interests are

protected.[147] While this is also

a problem on the mainland, it is particularly concerning on Christmas Island

given the number of unaccompanied minors being detained, the limited access

these minors have to external scrutiny and advocacy bodies, and the shortage of

accommodation options other than closed detention facilities.

DIAC has attempted to address this issue on Christmas Island by establishing

an ‘independent observer role’, fulfilled by Life Without Barriers

staff members.[148] An independent

observer sits in on interviews involving unaccompanied minors to act as a

support person. They do not provide the minor with legal or migration advice.

They can interject if they feel that the minor is distressed or uncomfortable,

but they do not have the power to stop the interview. The Commission welcomes

the creation of this new role. However, it does not go far enough to address the

Commission’s long-held concerns about guardianship arrangements for

unaccompanied minors.

UNHCR guidelines recommend that an independent and formally accredited

organisation should appoint a guardian or adviser for each unaccompanied minor.

That person should have the necessary expertise in the field of child care to

ensure that the child’s interests are safeguarded and their legal, social,

medical and psychological needs are appropriately

met.[149] However, in Australia,

the Minister for Immigration is the legal guardian of all unaccompanied children

seeking asylum.[150] The Minister

can delegate those powers to DIAC

officers.[151] Neither the

Minister nor the Minister’s delegates are required to have any child care

qualifications.

In the Commission’s view, the appointment of the Minister or a DIAC

officer as the legal guardian creates a fundamental conflict of interest.

Article 18 of the CRC requires that the best interests of the child be the

‘basic concern’ of the child’s legal

guardian.[152] This suggests that

the best interests of an unaccompanied minor must not only be a primary

consideration (as required by article 3 of the CRC), but the primary

consideration for his or her legal guardian. The ability of the Minister or a

DIAC officer to ensure that the best interests of an unaccompanied minor are the

primary consideration is seriously compromised by the fact that they are

simultaneously the child’s guardian, the detaining authority and the visa

decision-maker.

The Commission considered this issue in A last resort and concluded

that an independent guardian should be appointed for unaccompanied

minors.[153] The Commission

discussed possible guardianship models, and suggested that the role of the

guardian might involve:

  • advocating that an unaccompanied minor not be detained, or if detained, for

    the shortest possible period of time in the best possible conditions

  • ensuring suitable legal representation and other assistance regarding an

    unaccompanied minor’s claim for asylum

  • ensuring suitable care, accommodation, education, language support and

    health care provision

  • assisting in tracing the parents of an unaccompanied minor
  • advocating on behalf of an unaccompanied minor regarding any other issue

    concerning him or

    her.[154]

More than

five years later, the Commission’s recommendations have not been

implemented. The importance of this issue was recently acknowledged by the

Senate Legal and Constitutional Affairs Legislation Committee, which stated that

the provision of an independent guardian was an ‘important safeguard which

the Government should consider implementing as soon as

possible.’[155]

The Commission is aware that legal guardianship is one of a range of issues

currently under consideration by DIAC. The Commission encourages urgent action

on this issue.

Recommendation 11: 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

    children.

  • An independent guardian should be appointed for unaccompanied children and

    they should receive appropriate support.

Back to top

12 Conditions and

services in detention facilities

As noted above, for a range of reasons the Commission is of the view that

Christmas Island is an inappropriate place in which to hold people in

immigration detention. Some of these reasons relate to the nature of the

detention facilities on the island, and others to the fact that the remote

location and small community limit detainees’ access to services including

health and mental health care, legal advice, and cultural and religious support.

Further, while the Commission was pleased to observe that DIAC is making

efforts to manage the detention facilities on the island in a positive way, some

detainees expressed frustrations about issues including restrictions during

separation detention, the lack of external excursions, and difficulties

accessing interpreters and translated documents.

These issues are discussed below, focusing on conditions and services for

detainees in the Christmas Island IDC and the construction camp facility. The

Phosphate Hill facility was not in use at the time of the Commission’s

visit, except to the extent that five adult males were in community detention in

the alpha compound.[156] Brief

comments about their conditions are included in section 13 on community

detention.

Back to top

12.1 Detention

infrastructure and environment

The Commission is concerned that the immigration detention facilities on

Christmas Island are not appropriate for detaining asylum seekers, particularly

those with a background of torture or trauma. This contributes to the

Commission’s view that Christmas Island is not an appropriate place in

which to hold people in immigration detention.

(a) Christmas Island IDC

Photo of the Christmas Island IDC entrance

Entrance to the Christmas Island IDC

Photo of Christmas Island IDC caged walkways

Caged walkways, Christmas Island IDC

Photo of Christmas Island IDC external fences

External fences, Christmas Island IDC

The Christmas Island IDC is a high security, purpose-built facility that was

completed in 2008. The IDC is located in a national park area at North West

Point, about 17 kilometres from the island’s small town centre. It is

currently the most remote of Australia’s immigration detention facilities.

The IDC is massive, with a surge capacity of 800. It is used to detain adult

males.

In 2008 the Commission visited the Christmas Island IDC before it had been

used. After the visit, the Commission raised concerns about the IDC, in

particular the excessive security measures. The Commission expressed the view

that the IDC was not an appropriate place for accommodating asylum seekers,

particularly those fleeing situations of torture or trauma. Given those

concerns, the Commission recommended that the IDC should not be

used.[157]

Nevertheless, the Minister opened the IDC in December 2008. At the time of

the Commission’s 2009 visit, there were 590 detainees in the IDC.

Following this visit, the Commission maintains its view that the Christmas

Island IDC – a high security detention centre in an extremely isolated

location – is not an appropriate place for accommodating asylum

seekers.

The Commission acknowledges that, within the constraints of the existing

infrastructure, DIAC is making positive efforts to lessen the harsh impacts of

the IDC. In particular, the accommodation compounds are being opened up during

the day, allowing detainees (with the exception of those in separation

detention) to have some freedom of movement within the internal centre of the

IDC. Further, efforts have been made to soften the look of the IDC by planting

additional greenery. In addition, some detainees commented favourably on the

attitudes of certain DIAC and G4S staff members. The Commission welcomes these

positive efforts.

However, the Commission has ongoing concerns about the inappropriate nature

of the Christmas Island IDC, as follows:

  • The IDC looks and feels like a prison. The Minister himself acknowledges

    that it represents a ‘maximum security

    environment.’[158] The

    security measures are excessive and inappropriate for accommodating asylum

    seekers. In any event, they seem unnecessary given the isolated location, and

    they are inconsistent with the government’s policy of detaining people in

    the least restrictive form of detention appropriate to an individual’s

    circumstances.[159] The IDC is

    surrounded by a series of high wire fences. Within the facility, each compound

    is enclosed by another high fence, and many of the walkways into the compounds

    are enclosed within cage-like structures. Most areas of the facility are under

    CCTV surveillance. Within the compounds, officers’ stations are situated

    within metal-reinforced booths behind security screens.

  • The highest security compound, the management support unit (MSU), looks and

    feels extremely harsh and punitive. The building is enclosed within its own

    cage-like structure. The bedrooms are like small cells, with solid metal doors

    and grills on the windows that obscure any view. All furniture is hard and

    bolted to the floor. There is no outdoor space where detainees have an open view

    of the sky. DIAC informed the Commission that the MSU has not been used to date.

    The Commission hopes it will never be used – it is entirely inappropriate

    for holding asylum seekers who have committed no crime and who may have

    experienced torture or trauma.

  • The bedrooms in the accommodation compounds are small, dim and

    claustrophobic. The windows are covered with metal grills which don’t

    appear to serve any practical purpose, but add to the prison-like feeling. When

    numbers increase over normal capacity, detainees sleep in ‘surge’

    areas, which are shared dormitories with no privacy.

The Joint

Standing Committee on Migration recently raised similar concerns about the

security measures at the IDC. The Committee stated that it was ‘appalled

at the extraordinarily high level of security’, and considered it to be

‘inappropriate and inconsistent with the current immigration

principles’.[160] In the

Committee’s view, the level of security was ‘excessive and inhumane

and bordering on

ludicrous’.[161] The

Committee recommended that:

[A]ll caged walkways, perspex barriers, and electrified fencing be removed

from the North West Point immigration detention centre and replaced with more

appropriate security

infrastructure.[162]

In the Joint Standing Committee’s view, the excessive security measures

in combination with the ‘extraordinary ongoing maintenance costs’

require ‘careful consideration as to whether this type of facility is

still an appropriate part of a contemporary immigration

framework.’[163] DIAC has

stated that the IDC design was based on ‘correctional architecture and

immigration policy dating back to 2002’, and has acknowledged that such

accommodation would not be appropriate for a ‘Sydney metropolitan

location’ or for the ‘detention values applying

today’.[164]

Earlier

this year, both the UN Human Rights Committee and the UN Committee on Economic,

Social and Cultural Rights recommended that the Australian Government should

implement the recommendations made by the Commission in its 2008 Immigration

detention report.[165] These

included that the Christmas Island IDC should not be used to hold people in

immigration detention.[166]

In the Commission’s view, people should not be held in immigration

detention on Christmas Island, and the Christmas Island IDC should not be used.

However, if the Australian Government intends to continue this practice, it

should at least take steps to modify the security measures at the IDC to make it

a more appropriate environment for the asylum seekers held there.

Recommendation 12: If the Australian Government intends to continue to

use the Christmas Island IDC, it should implement the recent recommendation of

the Joint Standing Committee on Migration that all caged walkways, perspex

barriers, and electrified fencing should be removed and replaced with more

appropriate security

infrastructure.[167]

(b) Construction camp immigration detention

facility

Photo of construction camp immigration detentin facility

Construction camp immigration detention facility

The construction camp is a low security immigration detention facility. It

was not built for immigration detention purposes – the site was formerly

used to accommodate construction workers building the Christmas Island IDC. It

is located across the road from the community recreation centre and the

Phosphate Hill immigration detention facility, about five kilometres from the

island’s town area. It is unclear what DIAC considers the capacity of the

camp to be – conflicting sources put it between 100 and

350.[168] The camp is generally

used to detain groups that include families with children and/or unaccompanied

minors.

As discussed in section 11.3 above, DIAC classifies the construction camp as

‘alternative temporary detention in the community’.[169] In the Commission’s view

this is misleading. While the level of security is low, it is still a closed

detention facility from which detainees are not free to come and go unless they

are under escort.

After its 2008 visit to Christmas Island, the Commission raised significant

concerns about the nature of the facilities at the construction

camp.[170] Some improvements have

been made over the past year including the planting of some greenery along the

fence line, and the construction of wooden decks between the demountables used

as bedrooms. The Commission welcomes these improvements.

However, the Commission’s concerns about the construction camp have

increased because significant numbers of people – including children

– are being detained there, some for months at a

time.[171] When the Commission

visited, there were 99 detainees at the camp including 25 men, 21 women, 17

accompanied children and 36 unaccompanied children.

The Commission’s major concerns about the construction camp facility

include the following:

  • The construction camp is a claustrophobic facility consisting of

    demountables linked by covered walkways. There is little open space. While the

    covered walkways provide protection from the rain, they also block the view of

    the sky and add to the feeling of being closed in.

  • There is no open grassy space for sports or recreation. There is only one

    open recreation area – it is an undercover area with a concrete

    floor.

  • The construction camp is not an appropriate environment for families with

    children or unaccompanied minors, as discussed in section 11.3 above.

  • The lack of space makes the construction camp a difficult environment in

    which to mix people of various ages, ethnicities, religions, cultures and

    genders. This can be a particular problem for women from particular cultural or

    religious groups.

Back to top

12.2 Provision of

information to detainees

(a) Induction information about accessing services

while in detention

In past years the Commission has recommended that written induction materials

should be provided to detainees on their arrival in an immigration detention

facility.[172] This is a current

concern on Christmas Island. During its visit, the Commission spoke with

detainees who claimed they had not been told how they could access basic

services – for example, how to request a medical appointment, or how to

request an interpreter in order to make a phone call to their migration agent.

DIAC does not provide written induction materials to detainees. During its

visit, the Commission was informed that G4S officers do a verbal induction with

detainees on their arrival. However, information should also be provided in

writing so that detainees can refer to it later. Information provided verbally

can be quickly forgotten, particularly if it is provided on arrival in

detention, when many detainees are likely to be distressed. The failure to

provide written information can also lead to the informal verbal exchange of

inaccurate information among detainees.

Recommendation 13: DIAC should ensure that all immigration detainees

on Christmas Island, upon entering detention, are provided with up-to-date

induction materials with information on:

  • how to request an interpreter, including the phone number for the

    Translating and Interpreting Service (TIS)

  • how to lodge a complaint with DIAC or the detention service provider, and

    how soon that complaint will be responded to. It should include contact phone

    numbers so that detainees do not have to rely solely on submitting a written

    complaint or request form

  • how to lodge a complaint with the Commonwealth Ombudsman or the Australian

    Human Rights Commission. Current contact details, including phone and fax

    numbers, should be included

  • current contact details for the local police, including a phone number
  • what medical, dental and mental health services are available to detainees,

    and how a detainee can access those services

  • how to request an external excursion
  • what facilities are available for religious purposes
  • contact details for Legal Aid, UNHCR, Australian Red Cross, major refugee

    and asylum seeker information and advice groups, and IAAAS

    providers.

These induction materials should be translated into the

main languages spoken by the detainee population. Each detainee should be

provided with a copy in a language they can understand. If this is not possible,

or a detainee cannot read, an interpreter should be provided in person to go

through the materials with the detainee in their preferred language.

(b) Information on arrival about the refugee status

assessment process

When unauthorised boat arrivals are taken into immigration detention on

Christmas Island, they are told that they have been detained under the Migration

Act. They are also told what to expect over the coming days in terms of medical

checks and preliminary interviews. However, they are not provided with

information about the non-statutory RSA process. New arrivals are placed in

separation detention, partly to ensure that they do not learn about the process

from other detainees who are already part-way through it.

In separation detention, they are confined to a restricted area and prevented

from having contact with other detainees or with the outside world – with

the exception of one brief phone call to inform their family that they are safe.

New arrivals are only moved out of separation detention once they have gone

through their entry interview. If they raise a claim in that interview that may

engage Australia’s protection obligations, they are ‘screened

in’ to the non-statutory RSA process and provided with IAAAS

assistance.

The Commission raised concerns about the separation detention and

‘screening-in’ process in A last resort, in particular with

regard to its potential effects on the rights of child asylum seekers and their

families.[173] In the context of

separation detention on Christmas Island, the Commission is particularly

concerned about the following:

  • Detainees are not provided with access to legal or migration advice while in

    separation detention – they are only provided with a migration agent under

    the IAAAS scheme once they have been ‘screened in’ to the

    non-statutory RSA process. The prohibition on the use of phones and internet

    limits their ability to identify a lawyer or to seek assistance in this regard

    from friends or family in the community. There is no legal practice or legal aid

    service located on Christmas Island, further limiting their chances of accessing

    legal assistance.

  • Detainees in separation detention are not informed about their right to seek

    asylum, or about the assessment process they will go through if they do so. For

    some detainees, being isolated in separation detention will be an intimidating

    experience that, combined with the lack of access to legal or migration advice,

    may affect their ability to tell their story in a fully open and honest manner

    and thereby raise claims that may engage Australia’s protection

    obligations.

These factors create a risk that a person may be

‘screened out’ of the non-statutory RSA process and thus be removed

from Australia, even though they might have a valid claim for Australia’s

protection. This risk is increased by the fact that there is no review mechanism

for the screening process.

Recommendation 14: DIAC should ensure that all immigration detainees

are provided with clear information on their arrival in immigration detention

informing them of:

  • their right to seek asylum
  • their right to access independent legal advice and assistance
  • the scope of the IAAAS assistance that will be provided to them
  • the non-statutory RSA process, including the steps in the process and the

    approximate estimated timeframes for each of those steps. This should include

    information about what will be expected of the detainee during each step in the

    process, and who will make the decision at each step. It should also clearly

    indicate any timeframes that detainees are expected to comply

    with.

While this information may initially be provided verbally,

detainees should also be provided with a written copy in a language they can

understand. If this is not possible, or a detainee cannot read, an interpreter

should be provided in person to go through the written information with the

detainee in their preferred language.

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12.3 Access to

communication

(a) Restrictions in separation detention

As discussed in the above section, new arrivals on Christmas Island are

placed in separation detention until they have gone through their entry

interview. There is no set time frame for separation detention – in

practice it will depend on the number of detainees on the island and other

operational factors. According to DIAC, in early 2009 detainees were spending an

average of around 40 days (almost six weeks) in separation detention, but by

mid-2009 this had decreased to around two weeks.

During this time detainees are prevented from having contact with other

detainees and with the outside world. The phones are turned off, there is no

access to the internet, and television, radio and newspapers are prohibited. The

one exception is that each detainee is permitted to make one brief phone call to

their family. The phone call is monitored.

While on Christmas Island, the Commission spoke with detainees who raised

concerns about these restrictions. The two major issues raised were as

follows:

  • Some detainees claimed they had not been allowed to make their one phone

    call to family while they were in separation detention.

  • Many detainees in separation detention were extremely anxious about not

    being able to contact family members in their country of origin. This was a

    particular concern for detainees whose family members were affected by the civil

    conflict in Sri Lanka. For those detainees, being unable to make phone calls to

    try to trace their family members’ whereabouts was clearly causing a

    significant amount of distress. The ban on television, radio, newspapers and

    internet added to their anxiety, as they were not able to get any news about the

    situation at home.

Further, as discussed above, the restrictions on

communication limit detainees’ ability to access legal or migration advice

while in separation detention.

Recommendation 15: If DIAC intends to continue to use the separation

detention system, it should ensure that all detainees are able to:

  • make an initial phone call to contact their family members
  • access communication facilities if they wish to contact a lawyer or

    migration agent.

DIAC should consider allowing detainees to have

more regular communication with family members while they are in separation

detention.

(b) Access to communication facilities

After its 2008 visit to Christmas Island, the Commission raised concerns that

the island’s remote location and limited communications infrastructure

would increase difficulties for detainees in communicating with legal

representatives, family members and support

networks.[174] These concerns have

been reinforced by the Commission’s recent visit. The mobile phone network

on the island is very limited; the internet is generally much slower than on the

mainland; the mail service can be very slow; and the three hour time difference

between the island and the mainland can increase difficulties contacting legal

representatives by phone during business hours.

For people who live in the

community under normal circumstances, such communication difficulties might be

no more than a minor annoyance. But for people in immigration detention,

communicating with the outside world is critical, both to make contact with

migration agents or legal representatives and to allow regular contact with

family members, friends or support networks.

At the Christmas Island IDC, detainees are permitted up to 40 minutes of

internet access per day. They also have access to two public phones in an open

area of each accommodation compound. These phones can be used with phone cards

purchased by detainees. The Commission is aware that there have been problems

with these phones – both for detainees trying to call out using phone

cards that get used up very quickly, and for migration agents and others trying

to call in. During its visit, the Commission was informed by DIAC that these

problems have been addressed.

At the construction camp facility, there have been improvements since the

Commission’s 2008 visit in that detainees are now provided with access to

the internet and to one landline phone in a small room. However, each detainee

is restricted to using the phone for ten minutes per day, and they are

instructed to leave the door open while making calls.

The Commission is concerned about the limited access detainees have to phones

at the construction camp in particular, but also at the Christmas Island IDC. At

the time of the Commission’s visit, 99 detainees in the construction camp

were sharing one phone, and up to 104 detainees in each compound at the IDC were

sharing two phones.

Recommendation 16: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that all detainees are provided with adequate access to phones, and that

detainees can make and receive phone calls in privacy.

(c) Access to interpreters

DIAC currently has a pool of interpreters on Christmas Island, each of whom

stays for a few weeks at a time. This is a positive contrast to most mainland

detention facilities which generally rely on the telephone Translating and

Interpreting Service (TIS) instead of having interpreters based onsite.

Onsite interpreters are an indispensable part of the immigration operations

on Christmas Island. Their services are under heavy demand for a range of

activities including entry interviews, induction and property related matters,

RSA interviews with migration agents and DIAC, identity and security related

interviews with the AFP and ASIO, health and mental health appointments, and

communications on daily matters arising between detainees and detention

officers.

The Commission welcomes the fact that DIAC is maintaining a group of onsite

interpreters on the island. The Commission does, however, have some concerns

about detainees’ access to interpreters:

  • Some detainees told the Commission they had not been informed of how to

    request an interpreter. This is a particular problem for non-English speaking

    detainees who need to make phone calls to their migration agent. This issue is

    addressed in recommendation 13 in section 12.2 above.

  • A significant number of detainees from Afghanistan raised concerns about not

    being provided with access to Hazaragi speaking interpreters, and being required

    to use Dari speakers instead. DIAC informed the Commission that this problem was

    caused by the fact that the National Accreditation Authority for Translators and

    Interpreters (NAATI) did not offer accreditation for Hazaragi interpreters, and

    that steps had been taken in order to rectify

    this.[175] The Commission

    encourages DIAC to ensure that this matter is addressed as soon as

    possible.

  • The remote location of Christmas Island can cause delays in arranging for

    appropriate interpreters to arrive from the mainland. Transport difficulties on

    the island can also cause delays in moving interpreters around to their required

    location on a daily basis – there is no public transport and very limited

    access to private vehicles.

  • Competing needs for interpreters on the island mean that there are instances

    where an activity cannot go ahead at its scheduled time. Important activities

    such as mental health counselling may have to be postponed as a

    result.

(d) Access to translated documents

In the past, the Commission has raised concerns about immigration

detainees’ lack of access to translated

documents.[176] On Christmas

Island, some detainees said they were unable to read documents relating to their

negative RSA outcome because they were only provided in English.

It is particularly important that detainees are provided with information

related to their refugee claim in a language they can understand. Without this,

they may miss crucial deadlines, or be unable to present their best possible

case. This is a particular concern for detainees on Christmas Island who are not

offshore entry persons, and therefore have access to merits review in the RRT

and limited access to judicial review. If a detainee is not provided with the

reasons for a negative RRT decision in a language they can understand, it will

be difficult for them to put forward their best possible case if they seek

judicial review of the decision.

Recommendation 17: Wherever possible, DIAC should ensure that official

letters and documents are provided to a detainee in a language the detainee can

understand. Where this is not possible, the detainee should be offered the

assistance of an interpreter to translate the contents of the letter or

document. This should include documents relating to decisions, and reasons for

decisions, at the primary and independent review stages of the non-statutory refugee status assessment

process for offshore entry persons; and the primary and Refugee Review Tribunal stages of the

refugee status determination system for detainees who are not offshore entry

persons.

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12.4 Access

to legal assistance and other support

Compared to the mainland, detainees on Christmas Island have less access to

groups that can provide legal and migration advice and assistance, advocacy and

various forms of cultural, religious and moral support. This is the result of a

range of factors including the remote location of Christmas Island, the small

size of the community, and communication difficulties with the mainland. This

contributes to the Commission’s view that Christmas Island is not an

appropriate place in which to hold people in immigration detention.

(a) Access to legal and migration advice and

assistance

Under international standards, every detained person should be provided with

access to legal assistance.[177] If a detained person does not have a legal adviser of their own choice, they are

entitled to have one assigned if the interests of justice require it, and

without payment if they do not have sufficient means to

pay.[178]

Until recently, immigration

detainees on Christmas Island were not entitled to publicly funded advice or

assistance during the refugee assessment process. In announcing the New

Directions, the Minister acknowledged that this had been a cause of criticism

and announced that asylum seekers in excised offshore places would be provided

with migration advice and assistance through the

IAAAS.[179]

The Commission

welcomed this reform, and considers it indispensable. However, following its

recent visit, the Commission has ongoing concerns about asylum seekers’

access to advice and assistance with their refugee claims:

  • Asylum seekers are not provided with access to legal or migration advice or

    assistance while in separation detention, as discussed in section 12.2

    above.

  • Asylum seekers on Christmas Island do not have easy access to their IAAAS

    migration agent. The agents are not based on the island – they fly in to

    assist clients, then they fly back to the mainland. Asylum seekers therefore

    have very limited face-to-face time with their agent. Some asylum seekers raised

    concerns about difficulties contacting their agent once the agent had left the

    island. These difficulties can be caused by limited access to phones and

    interpreters, the time difference with the mainland, and the fact that some

    migration agents are travelling between the island and the mainland on a regular

    basis and may not be contactable while on the island seeing other clients.

  • Some asylum seekers on Christmas Island raised concerns about the level of

    competence of their IAAAS migration agent. While this concern is occasionally

    raised on the mainland, it is particularly concerning on Christmas Island since

    there are very few alternatives. There is no legal practice or legal aid service

    located on the island, and there are no independent migration agents based

    there.

(b) Access to community support networks

After its 2008 visit to Christmas Island, the Commission raised concerns that

the island’s remoteness and the prohibitive costs of the trip would make

it virtually inaccessible to community groups based on the

mainland.[180] These concerns have

been reinforced by the Commission’s recent visit.

On the mainland, community groups and individuals would normally provide

immigration detainees with various forms of valuable support including cultural

and religious support, and advocacy and casework assistance. Such support cannot

be adequately provided by the local community on Christmas Island, because of

its small size and limited capacity.

In comparison with detainees on the

mainland, detainees on Christmas Island have few visits from support groups.

This means they have less support to alleviate the anxiety of being held in

detention. They also have much less access to advocacy and casework assistance

that can often be critical in assisting with refugee claims, and in addressing

grievances detainees may have about their treatment in detention.

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12.5 Access to health

and mental health care

After its 2008 visit to Christmas Island, the Commission raised concerns

about the availability of health and mental health care for detainees, given the

island’s small size and limited services. The Commission was particularly

concerned about the ability of detainees to access adequate mental health care.

These concerns remain after the Commission’s 2009 visit.

The Joint Standing Committee on Migration recently agreed with the

Commission’s view that ‘the local community on Christmas Island is

not large enough or sufficiently resourced to be able to provide adequate health

support to any significant number of immigration

detainees.’[181]

These concerns, discussed below, contribute to the Commission’s view

that Christmas Island is not an appropriate place in which to hold immigration

detainees, particularly asylum seekers who might have a background of torture or

trauma. However, if the government intends to continue this practice, DIAC will

need to ensure that detainees on the island are provided with access to adequate

health and mental health care services – both by providing additional

services on the island, and by bringing detainees to the mainland when services

are not available on the island.

Recommendation 18: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that detainees on the island are provided with access to appropriate health and

mental health care services. These should be no less than the services available

to detainees on the mainland.

(a) Health care

Health care services for detainees on Christmas Island are primarily provided

by IHMS, a private company contracted by DIAC. The IHMS team consists of a

manager, four nurses, two doctors on rotation, a psychologist and four mental

health nurses. This team is responsible for providing services to detainees at

the Christmas Island IDC, the construction camp facility and the Phosphate Hill

facility. They do not provide services to people in community detention, who

access health care services at the local hospital.

The local hospital is run by the Indian Ocean Territories Health Service

(IOTHS). IOTHS provides limited services to people in the detention facilities

on the island. These include any immunisations, chest X-rays, pathology tests

and basic in-patient services that may be required.

The arrangements for the provision of health care to detainees on Christmas

Island may change in the near future. At the time of the Commission’s

visit, DIAC was in ongoing discussions with IOTHS and IHMS about this

matter.

All detainees go through public health screening on arrival, normally before

they disembark from their boat. This screening checks for signs of tuberculosis

or other serious illnesses. Within the first few days, each detainee goes

through a more detailed initial health assessment. After that, any ongoing

medical care is provided only if a detainee seeks it.

At the Christmas Island IDC, there is a well-equipped medical clinic.

Detainees do not have free access to it – they must fill out a request

form if they wish to see a nurse or doctor. These forms are only available in

English. The clinic is staffed from 7am to 7pm, and a nurse is on-call

overnight.

At the construction camp facility, a basic clinic has been set up in a

demountable. Detainees are able to walk in to request an appointment. The clinic

is open from 2pm to 5pm on weekdays. The Commission welcomes the fact that this

clinic room has been set up since its last visit, particularly given that a

significant number of families with children and unaccompanied minors are being

detained in the camp.

However, the Commission has ongoing concerns about detainees’ access to

health care services on Christmas Island, as follows:

  • There are no medical specialists (such as optometrists, physiotherapists,

    radiologists or others) located on Christmas Island.

  • Pregnant detainees do not have access to childbirth facilities on the

    island.

  • Some detainees at the Christmas Island IDC raised concerns about the length

    of time they had to wait to see a nurse or doctor.

  • Because of the remote location, IHMS staff work on short rotations of two to

    six weeks at a time. Some concerns were raised with the Commission that this

    constant rotation, if not accompanied by thorough handovers in between, may lead

    to patient needs ‘falling through the cracks’.

  • If there was an emergency medical situation in one of the detention

    facilities on the island, it could take an hour or two for an ambulance to

    arrive. This is a particular concern at the Christmas Island IDC, given its

    isolated location. The island does not have a paid ambulance service – the

    ambulance is staffed by local volunteers. DIAC informed the Commission that it

    intends to implement a three month pilot program under which a paramedic will be

    stationed at the IDC overnight.

  • Detainees on the island have very limited access to dental care. Detainees

    face long waiting lists as there is only one dentist on the island to meet the

    needs of both the local community and detainees. Two sessions each week are set

    aside for detainees – one for adults and one for children. DIAC has

    informed the Commission that it is attempting to arrange for a mobile dental

    unit to be transported to the island.

These concerns contribute to

the Commission’s view that Christmas Island is not an appropriate location

in which to hold people in immigration detention.

(b) Mental health care

Mental health care services for detainees on Christmas Island are primarily

provided by IHMS, which has a psychologist and four mental health nurses on

staff. The Forum of Australian Services for Survivors of Torture and Trauma

(FASSTT) also provides services to detainees under a contract with DIAC.

IHMS does initial mental health screening for all new detainees. If there are

concerns, the detainee may be placed on a management plan which includes ongoing

reviews and/or suicide and self-harm (SASH) observation. They may also be

referred to FAASTT for counselling.

The Commission welcomes DIAC’s

efforts to provide detainees on Christmas Island with access to some mental

health care, in particular access to FASSTT services. However, the Commission

has serious concerns about the capacity of the current services on the island to

meet the needs of the hundreds of asylum seekers in detention:

  • There is virtually no local capacity to meet the mental health care needs of

    immigration detainees on Christmas Island. The local hospital has one

    psychologist who provides services one day per week. There is no psychiatrist.

    There is no suitable place for accommodating a detainee in need of admission to

    a psychiatric facility.

  • At the time of the Commission’s visit, the IHMS mental health team, of

    four mental health nurses and one psychologist, was being required to provide

    services for 689 detainees. This equates to more than 135 detainees each.

  • While the Commission fully supports the work undertaken by FASSTT on

    Christmas Island and welcomes the support provided to FASSTT by DIAC, the level

    of support provided is not sufficient to ensure that all detainees are provided

    with access to torture and trauma services. At the time of the

    Commission’s visit, FASSTT was being contracted to provide an initial

    psychosocial assessment for each detainee, and ongoing counselling to detainees

    in need of further assistance. However, with three staff members on the island

    and over 700 detainees, this appeared to be an overwhelming task. At the time,

    there were around 500 detainees who had not yet been through the initial

    assessment.

  • Access to FASSTT services has been restricted on occasions because of the

    limited availability of interpreters, transport and escorts. These restrictions

    have led to FASSTT being required to conduct counselling sessions with detainees

    inside the Christmas Island IDC in rooms that are not private or soundproofed.

    On the mainland this would not be the case – there, torture and trauma

    counselling is conducted outside the detention environment.

  • Detainees on Christmas Island have less access to psychiatric care than

    detainees on the mainland. There is no local psychiatrist, and no psychiatrist

    on the IHMS team. In comparison, on the mainland the detention health contract

    requires that each IDC have a mental health clinic with specialist psychiatric

    services available to detainees, including onsite

    consultations.[182]

  • The shortage of community-based accommodation on Christmas Island and the

    lack of local mental health care services may lead to detainees with mental

    health concerns or a background of torture or trauma being held in a closed

    detention facility, rather than being placed in community detention. If those

    detainees were on the mainland, it would be possible to release them into

    community detention in a location where they would have access to appropriate

    support services.

  • The immigration detention facilities on Christmas Island are not appropriate

    for detainees at risk of self-harm. As discussed in section 12.1 above, the

    Christmas Island IDC is a high security facility with excessive amounts of wire

    fencing and cage-like structures. The clinic contains a secure room for

    detainees considered ‘at risk’. It is a bleak room with a metal

    grill obscuring the view from the window, and a small outdoor courtyard enclosed

    in wire caging. According to DIAC, it is rarely used. The construction camp

    facility does not have observation rooms for detainees at risk of

    self-harm.

These concerns contribute to the Commission’s view

that Christmas Island is not an appropriate place in which to hold people in

immigration detention, particularly asylum seekers who might have a background

of torture or trauma.

It is well established that holding people in immigration detention,

particularly for indefinite periods, can have devastating effects on their

mental health. It is therefore critical to ensure that, if people must be held

in detention, they are in a location which allows them access to adequate mental

health care and support services.

The Commission has been informed that there have been isolated instances in

which detainees have been taken to the mainland for psychiatric treatment they

were not able to access on Christmas Island. The Commission welcomes this.

However, detainees should be provided with access to appropriate mental health

care services from their arrival in detention, rather than waiting to provide

access once their condition has already deteriorated.

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12.6 Recreation

and education

The 2000 Immigration Detention Guidelines provide that immigration

detainees should have access to materials and facilities for exercise,

recreation, cultural expression and intellectual and educational pursuits to

utilise their time in detention in a constructive manner, and for the benefit of

their physical and mental

health.[183]

Recreational and educational opportunities are particularly important for

child detainees. The CRC protects the right of all children to education, to

engage in play and recreational activities appropriate to their age, and to

participate in cultural and artistic

activities.[184] UNHCR guidelines

state that if a child is detained, ‘[p]rovision should be made for their

recreation and play which is essential to a child’s mental development and

will alleviate stress and

trauma.’[185]

The Commission acknowledges that DIAC is making some efforts to provide

recreational and educational activities for Christmas Island detainees. However,

the Commission has concerns about the following:

  • The recreational facilities at the construction camp are inadequate,

    particularly for children

  • There are very few reading materials provided for detainees, and adult

    detainees have not been provided with adequate access to educational

    activities

  • There are very few external excursions for detainees, in particular those in

    the Christmas Island IDC.

The Commission’s concerns are

summarised below.

(a) Recreational facilities in detention

There are a range of recreational and educational facilities for detainees at

the Christmas Island IDC. Along one side of the IDC there are three large

compounds containing facilities including a gym, a library room, classrooms, an

art room and computer rooms. For detainees allowed to move around the internal

centre of the IDC (after being released from separation detention), there is a

significant amount of open grassy space including a small soccer pitch. During

the Commission’s visit, it was clear that these facilities were beneficial

to detainees in terms of providing them with positive ways in which to pass

their time in detention.

In contrast, the construction camp immigration detention facility does not

have adequate recreational or educational facilities. This is a particular

concern given that a significant number of children are detained in the

facility. While the school-aged children leave the camp to attend school classes

on weekdays, younger children are left with very few age-appropriate

recreational or play opportunities inside the camp.

As noted in section 12.1 above, the construction camp is a claustrophobic

facility with little open space and no grassy area for sport or recreation.

There is only one open recreation area – it is an undercover area with a

concrete floor, containing a pool table. There are two small indoor recreation

rooms with table tennis and another pool table, a few toys and some basic sewing

materials. There is no classroom for educational activities. The inadequate

recreational facilities at the construction camp contribute to the

Commission’s view that it is not an appropriate facility in which to hold

immigration detainees, particularly families with children and unaccompanied

minors.

Recommendation 19: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that all detainees, including those at the construction camp, are provided with

a range of recreational facilities and activities. All detention facilities

should have open grassy space for sports and recreation.

Photo of the outdoor recreation area, construction camp immigration detention facility

Outdoor recreation area, construction camp immigration

detention facility

(b) Educational activities for detainees

The Commission welcomes the fact that, once they are out of separation

detention, school-age children are permitted to leave the construction camp to

attend school classes on a daily basis. Younger children attend classes at the

local school. DIAC informed the Commission that children are escorted to school

by an officer in plain clothes, and supervision of the children is handed over

to a teacher once they reach the outer school gate. Older unaccompanied minors

attend classes taught by one of the local school teachers in a classroom in the

alpha compound at the Phosphate Hill detention facility.

However, some concerns were raised about the inadequacy of the educational

activities provided for adult detainees. In particular, it was suggested that

activities have been run on a haphazard basis, and that the teaching materials

provided for English classes are inadequate. The 2000 Immigration Detention

Guidelines state that opportunities for English language instruction and

further education, including technical and vocational education should be

provided for immigration detainees where

possible.[186] DIAC should ensure

that this is implemented for all detainees on Christmas Island, including those

detained in the construction camp.

Further, the Commission is concerned about the lack of reading materials

available in the detention facilities on the island. There are very few books at

the construction camp. The Christmas Island IDC has a library room with some

books in it – a positive addition since the Commission’s previous

visit. However, the books are mostly old books donated to the centre; they are

almost all in English; and many of them are school books meant for use by young

children. There are very few books appropriate for adult detainees who speak a

language other than English.

Internet access is important, as it can alleviate the need for recreational

reading materials and hardcopy reference materials. It is positive that

detainees at the IDC and the construction camp are provided with internet

access, as noted in section 12.3 above. However, internet access is strictly

time limited and not all detainees are able to, or wish to read materials

online. The internet is therefore not an adequate substitute for having reading

materials available in hardcopy.

Recommendation 20: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that:

  • detainees have access to appropriate educational activities, including ESL

    classes

  • each detention facility has an adequate supply of reading materials in the

    principal languages spoken by detainees.

(c) Excursions

In past reports the Commission has emphasised the importance of providing

detainees with regular opportunities to leave the detention environment through

organised external

excursions.[187] This is critical

for the physical and mental wellbeing of detainees, particularly those held for

prolonged periods. On Christmas Island, the Commission is particularly concerned

about the following:

  • The high number of detainees combined with the limited availability of

    transport and escorts is significantly restricting detainees’ access to

    external excursions. Recent media reports suggesting that detainees are taken on

    regular excursions to locations such as the beach, the movies or picnics are

    misleading and inconsistent with what detainees told the

    Commission.[188]

  • At the time of the Commission’s visit, there were virtually no

    excursions taking place from the Christmas Island IDC. There were 590 detainees

    in the IDC. Only three or four detainees were being taken out of the centre on a

    weekly excursion to attend a church service.

  • DIAC informed the Commission that people detained in the construction camp

    are generally taken on an escorted excursion once each afternoon. This is

    usually to the oval across the road, although it occasionally includes a visit

    to the community recreation centre. The Commission welcomes this. However, the

    Commission is concerned about people in separation detention at the camp. G4S

    informed the Commission that it aims to take these detainees across the road to

    the oval three times a week. However, several groups of detainees told the

    Commission they had not been taken on any excursions while in separation

    detention. This is particularly concerning given that there are often young

    children detained in the camp, and they are restricted to a very confined area

    during separation detention.

  • There are very few organised visits between unaccompanied minors and their

    adult friends who arrived on the same boat. This was raised as a concern by

    several unaccompanied minors the Commission spoke with. If the adults are single

    males, they are detained in the Christmas Island IDC, while unaccompanied minors

    are in the construction camp or community detention. The lack of organised

    visits on Christmas Island can be contrasted with the practice in Darwin, which

    has been to arrange regular combined excursions between unaccompanied minors and

    adult members from the same

    boat.[189] This can help to

    alleviate the isolation and distress unaccompanied minors may experience while

    in detention.

The Commission is aware that since its visit, DIAC has

approved three Christmas Island locals as ‘designated persons’.

These people can now take small groups of detainees out on supervised

excursions. The Commission welcomes this development and encourages DIAC to make

greater use of the ‘designated persons’ mechanism. However, this

will only benefit a very small number of detainees and is not an adequate

substitute for regular group excursions organised by the detention service

provider.

Recommendation 21: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should:

  • adopt minimum standards for the conduct of regular external excursions from

    immigration detention facilities, including for detainees in separation

    detention

  • include these standards in the contract with the detention service provider
  • monitor compliance with these standards on an ongoing basis and take

    appropriate remedial action when they are not being complied with

  • ensure that the detention service provider is allocated sufficient resources

    to provide escorts for regular external excursions.

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12.7 Religion

Under the ICCPR, all people have a right to practise their religion, either

individually or in community with

others.[190] The 2000 Immigration Detention Guidelines recognise that all detainees have the

right to profess and practise the religion of their choice in community with

other members of their religion where

possible.[191]

After its 2008 visit to Christmas Island, the Commission raised concerns that

detainees on the island may not be able to access adequate religious support and

services. These concerns were solidified by the Commission’s recent visit,

when the issue was raised both by detainees and local representatives.

According to the DIAC website, immigration detainees are able to practise

their religion on an individual or communal basis, and ‘[e]xternal clergy

provide services for most major faiths’. The website also states that

people in immigration detention have access to ‘qualified religious

representatives’ and ‘appropriate religious books and

materials’.[192]

At the time of the Commission’s visit, this was not the case on

Christmas Island. The Commission’s major concerns are as follows:

  • Very few detainees on Christmas Island are provided with regular access to

    ‘qualified religious representatives’ or services run by

    ‘external clergy’.

  • There are no religious services conducted on a regular basis inside the

    detention facilities. Occasional services are held at the IDC or the

    construction camp by two local Catholic representatives.

  • Very few detainees are provided with access to religious services outside

    the detention facilities. At the time of the Commission’s visit, only

    three or four detainees were being taken to a weekly church service in the

    community. Local religious groups informed the Commission that they would be

    happy to have detainees attend their services. G4S informed the Commission that

    it focuses on providing religious services inside detention, as it does not have

    adequate resources to take detainees out to services in the community. However,

    regular services were not being provided to detainees inside detention

    either.

  • Some detainees do not have access to ‘appropriate religious books and

    materials’. Concerns were raised about detainees not being able to access

    copies of the Bible or the Koran in languages other than

    English.

These concerns arise for two major reasons. First, the

small size and limited capacity of the Christmas Island community mean that

local religious groups are not able to meet the needs of hundreds of immigration

detainees on the island. For example, there is no Catholic priest on the island,

and the small Christian fellowship does not have a church or a Minister.

Secondly, the remote location and high cost of travelling to Christmas Island

make it very difficult for mainland-based religious groups to visit on a regular

basis. It is also logistically difficult and expensive for DIAC or the detention

service provider to facilitate such visits.

These concerns contribute to the Commission’s view that Christmas

Island is not an appropriate location in which to hold people in immigration

detention. Detainees on the mainland have access to a much higher level of

religious support.

Recommendation 22: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that all detainees are provided with access to regular religious services

conducted by qualified religious representatives.

Back to top

13 Community detention

Under the Migration Act, the Minister has the power to issue a Residence

Determination permitting an immigration detainee to live at a specified location

in the community.[193] This is

known as community detention.

There are significant advantages for people in

community detention compared to those in a detention facility. They live in a

designated house or apartment in the community; they are generally free to come

and go; and they are not under physical supervision. This means they have a much

higher degree of freedom, privacy and autonomy than people detained in a closed

facility such as the construction camp or the IDC. They are also free to

interact with the local community, for example children can play with their

school classmates outside of school hours.

During its visit, the Commission met with most of the people in community

detention on Christmas Island. All of those people said they were much happier

in community detention than they had been while detained in a facility on the

island. One unaccompanied minor expressed his relief upon being released into

community detention after being detained in the construction camp for more than

two months:

In the construction camp it was like we were in prison. Now it is good

– we feel freedom.

In the Commission’s view people should not be held in immigration

detention on Christmas Island at all. However, if the Australian Government

intends to continue this practice, community detention is the most appropriate

arrangement, as bridging visas are generally not available to detainees on the

island.

The Commission therefore has significant concerns about the limited

availability of community detention housing on Christmas Island. The Commission

is also concerned about the challenges facing people in community detention in

such a small and remote community – particularly in terms of accessing

appropriate services, support and community-based activities The

Commission’s major concerns are summarised below. These concerns

contribute to the Commission’s view that Christmas Island is not an

appropriate location in which to hold immigration detainees.

Back to top

13.1 Availability of

community detention

The remote location and small size of the Christmas Island community create

challenges with community detention that either do not arise on the mainland, or

are much more pronounced than they would be on the mainland. The Minister

recently acknowledged this:

There is a serious issue about community detention on the island because of

the small number of services, the small population. There are challenges for

community detention that you don’t face in the city ... we cannot operate

on Christmas Island in the same way that you might operate on the

mainland.[194]

The Commission’s most significant concern is that the shortage of

community-based accommodation on Christmas Island is likely to be a key factor

in preventing the release of some detainees from a closed detention facility

into community detention. At the time of the Commission’s visit, of the

733 detainees on the island, only 44 (six percent) were in community detention.

This included 15 adults and 29 children - 18 of whom were unaccompanied.

As discussed in section 9.3 above, DIAC is taking steps to increase the

community detention capacity on the island. However, given the small size of the

community and the significant number of detainees, the Commission has doubts

about the feasibility of securing enough community-based accommodation to fully

implement the New Directions presumption that detainees will be released into

the community once their health, identity and security checks are completed.

Back to top

13.2 Access to

support services and community activities

Australian Red Cross and Life Without Barriers provide contracted support

services to people in community detention on Christmas Island. Life Without

Barriers provides carers for unaccompanied minors, as discussed in section 11.7

above. Red Cross provides support to other people in community detention on the

island. This includes, for example, assisting with making and getting to medical

appointments, organising occasional recreational outings, and referring

detainees to appropriate community-based activities. The Commission recognises

the important role played by Red Cross, and welcomes the fact that DIAC provides

funding to make this possible.

However, in the Commission’s view, providing support to people in

community detention in such a small and remote community is a very challenging

task. Any group undertaking that task faces a broad range of logistical

challenges that would not be anywhere near as difficult to manage on the

mainland. These range from overarching issues such as limited access to

appropriate office space, transport and communications, to daily issues such as

trying to help detainees find culturally appropriate clothing on a small island

with very few shops.

On the mainland, people in community detention would have access to a much

broader range of community level services that either don’t exist at all,

or are very limited on Christmas Island. They would also have access to more

community-based recreational and educational activities, and cultural and

religious support networks.

In addition, many of the issues discussed in section 12 above with regard to

people in the detention facilities on Christmas Island also apply to people in

community detention – these include limited access to health and mental

health care services, and the absence of locally based lawyers, legal aid,

migration agents, community organisations and advocacy groups.

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13.3 Transport

Lack of transport is a major problem for people in community detention on

Christmas Island. Unlike the mainland, where people in community detention would

normally be located near a major city with access to public transport, on

Christmas Island they are virtually stranded. Getting around the island is very

difficult without a car – there are steep hills and winding roads without

safe walking paths. There is only one taxi and it operates on a haphazard basis.

There are very few hire cars and they are expensive.

There is no public transport system on Christmas Island. One community bus

was operating during early 2009. However, it was not operating at the time of

the Commission’s visit. According to DIAC, the bus service would resume in

the near future.

The transport situation has been eased to some extent by the fact that the

Life Without Barriers carers have access to cars and can provide transport for

the unaccompanied minors in community detention. In addition, Red Cross has two

cars, and provides some transport assistance to families in community detention.

However, in the Commission’s view, with a small team of staff and only two

vehicles, they do not have the capacity to meet the ongoing transport needs of

the various family groups in community detention.

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13.4 Curfew

At the time of the Commission’s visit, some of the people in community

detention on Christmas Island had been placed under a curfew. As a condition of

their Residence Determination they were required to remain within 500 metres of

their designated residence between the hours of 7pm and 6am. This restricted

their freedom of movement and their ability to have normal social interactions.

A number of detainees the Commission spoke with raised this concern.

As far as the Commission is aware, this type of restriction has never been

imposed on people in community detention on the mainland. They are normally

required to sleep at their designated place of residence each night. However,

there is no specified time restriction on when they must be at home.

DIAC explained the curfew on Christmas Island as a way of addressing concerns

raised by some members of the local community about having

‘strangers’ wandering around the community at night. The Minister

has acknowledged that this type of restriction would not be necessary on the

mainland.[195]

The Commission is concerned that people in community detention on Christmas

Island are being subjected to restrictions on their freedom of movement that

would not be applied to them on the mainland. This differential treatment does

not appear to be based on anything of the detainees’ own doing; rather it

has come about as a result of the government’s decision to detain people

in a very small community.

The Commission encourages the Minister and DIAC to reconsider the necessity

of the curfew.

Back to top

13.5 Accommodation

People in community detention on Christmas Island are generally accommodated

in one of ten duplex houses located at Drumsite, one of the small suburbs on

Christmas Island. Of the immigration detention options on the island, they

provide the best standard of accommodation and are the closest to the school and

the town area.

The duplexes are generally used for families with children and unaccompanied

minors. According to DIAC, the capacity of the duplexes is between 45 and 60,

depending on the composition of the groups to be accommodated. When the

Commission visited, there were 39 people in the duplexes including three men,

seven women, 11 accompanied children and 18 unaccompanied children.

At the time of the Commission’s visit, there were also five adult males

living in community detention in the alpha compound at the Phosphate Hill

immigration detention

facility.[196] This facility is

located five kilometres from the town, across the road from the construction

camp. It consists of two discrete areas. The bravo compound is a secure area,

surrounded by high wire fences. It has capacity for 48 people. It was not in use

at the time of the Commission’s visit, but has been used to hold adult

male detainees since then.[197] The alpha compound is a low security area, surrounded by a residential style

fence. It has capacity for around 50 people. During the Commission’s

visit, DIAC was arranging for additional demountables to be installed in this

area, increasing the capacity to around 90 people.

The Commission met with the five detainees living in the alpha compound at

the time, and had concerns about the inappropriate nature of their

accommodation. They had no access to an indoor kitchen or dining area; just a

large outdoor cabana with very basic cooking facilities and picnic tables. That

area was not weather-proof. They each had one small bedroom in a row of

demountables. The toilets and showers were in another demountable, located

across an open area that was not protected from the rain. The Commission was

informed by DIAC that this group would soon be relocated to alternative

accommodation in the community.

If DIAC intends to accommodate people in community detention in the alpha

compound at the Phosphate Hill facility, it needs to ensure that those people

have access to adequate accommodation as well as indoor kitchen, dining and

recreation areas. DIAC will also need to address the issue of transport for

these people, who will be even more isolated than people currently on community

detention in the duplexes.

Back to top


[1] The Commission’s

immigration detention inspection reports are available on the Commission’s

website at http://www.humanrights.gov.au/human_rights/immigration/detention_rights.html#9_4.
[2] 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 27 July 2009).
[3] Section

494AA(1)(c) of the Migration Act states that: ‘The following proceedings

against the Commonwealth may not be instituted or continued in any court: (c)

proceedings relating to the lawfulness of the detention of an offshore entry

person during the ineligibility period, being a detention based on the status of

the person as an unlawful non-citizen’. Note, however, that section

494AA(3) states that nothing in section 494AA is intended to affect the

jurisdiction of the High Court under section 75 of the Constitution. For further

discussion of the High Court’s original jurisdiction under section 75 of

the Constitution, see note 48 below.
[4] To comply with article

9(4) of the ICCPR, 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 ICCPR. See, for example,

United Nations Human Rights Committee, A v Australia, Communication No.

560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), para 9.5. At http://www.unhchr.ch/tbs/doc.nsf/0/30c417539ddd944380256713005e80d3?Opendocument (viewed 31 August 2009).
[5] Human

Rights and Equal 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/report/PDF/alr_complete.pdf (viewed 25 September 2009).
[6] 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 25 September 2009).
[7] The

Commission’s national inquiry reports are A last resort, note 5, and Those who’ve come across the

seas – Detention of unauthorised arrivals (1998) (Those who’ve

come across the seas), at http://www.humanrights.gov.au/human_rights/immigration/seas.html (viewed 25 September 2009). The Commission’s reports of complaints about

alleged human rights breaches in immigration detention are available on the

Commission’s website at http://www.humanrights.gov.au/legal/humanrightsreports/index.html.
[8] See, for example A last

resort, note 5; Those who’ve come

across the seas, note 7.
[9] The Commission’s activities have included two national inquiries;

inspections of immigration detention facilities; developing minimum standards

for the protection of human rights in immigration detention; submissions to

parliamentary inquiries; investigating complaints from individuals in

immigration detention; examining proposed legislation and commenting on

government policies; and raising public awareness. Details are available on the

Commission’s website at http://www.humanrights.gov.au/human_rights/immigration/index.html.
[10]International Covenant on Civil and Political Rights (1966) (ICCPR). At http://www2.ohchr.org/english/law/ccpr.htm (viewed 24 August 2009).
[11]International Covenant on Economic, Social and Cultural Rights (1966)

(ICESCR). At http://www2.ohchr.org/english/law/cescr.htm (viewed 24 August 2009).
[12]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (1984) (Convention against Torture). At http://www2.ohchr.org/english/law/cat.htm (viewed 24 August 2009).
[13]Convention Relating to the Status of Refugees (1951) and Protocol

Relating to the Status of Refugees (1967) (Refugee Convention). At http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf (viewed 24 August 2009).
[14]Convention on the Rights of the Child (1989) (CRC). At http://www2.ohchr.org/english/law/crc.htm (viewed 24 August 2009).
[15] ICCPR, art 9(1); CRC, art

37(b).
[16] ICCPR, art 9(4); CRC,

art 37(d).
[17] CRC, art 37(d); Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment (1988), principle 17, at http://www2.ohchr.org/english/law/bodyprinciples.htm (viewed 25 September 2009).
[18] ICCPR, art 10(1); CRC, art

37(c).
[19] ICCPR, art 7; CRC art

37(a).
[20] CRC, art

37(b).
[21] CRC, art 3.
[22] ICCPR, art 2(1), 26; CRC

art 2(1).
[23] Refugee

Convention, note 13, art 33(1). This obligation

is also implied in ICCPR, art 6 and 7; Convention against Torture, art 3; and

CRC, art 6 and 37.
[24]Body

of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment, note 17.
[25]Standard Minimum Rules for the Treatment of Prisoners (1955). At http://www2.ohchr.org/english/law/treatmentprisoners.htm (viewed 24 August 2009).
[26]United Nations Rules for the Protection of Juveniles Deprived of their

Liberty (1990). At http://www2.ohchr.org/english/law/res45_113.htm (viewed 24 August 2009).
[27] UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to

the Detention of Asylum Seekers (1999), at http://www.unhcr.org.au/pdfs/detentionguidelines.pdf (viewed 24 August 2009); UNHCR, Guidelines on Policies and Procedures in

Dealing with Unaccompanied Children Seeking Asylum (1997), at http://www.unhcr.org/3d4f91cf4.html (viewed 25 September 2009).
[28] Human Rights and Equal Opportunity Commission, Immigration Detention

Guidelines (2000). At http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/idc_guidelines.pdf (viewed 25 September 2009).
[29] As above, section 1.1.
[30]Migration Act 1958 (Cth), ss 13, 14, 189.

[31] Map sourced from Christmas

Island Tourism Association website. At http://www.christmas.net.au/about.html (viewed 24 August 2009).
[32] See, for example Minister for Immigration and Citizenship, ‘Rudd

Government committed to Christmas Island detention’ (Media Release, 18

August 2009). At http://www.minister.immi.gov.au/media/media-releases/2009/ce09074.htm (viewed 25 August 2009).
[33]Migration Act 1958 (Cth), s 5(1); Migration Amendment Regulations 2005

(No. 6) (Cth), reg

5.15C.
[34] DIAC provided the

Commission with statistics showing that as of 6 July 2009, there were 723

detainees on Christmas Island. Of these 723 people there were 357 from

Afghanistan, 277 from Sri Lanka, 60 from Iraq, 13 from Iran, 4 from Pakistan, 2

from Somalia, 2 from Indonesia, 1 from Palestine and 1 from India. Six were

stateless.
[35] On 23 September

2009 the Commission was informed by DIAC that the bravo compound is currently in

use for single adult male

detainees.
[36] See Migration

Act 1958 (Cth), s 5(1). The amendments were made pursuant to the Migration Amendment (Excision from the Migration Zone) Act 2001 (Cth).

Further islands were excised by the Migration Amendment Regulations 2005 (No.

6) (Cth), reg 5.15C.
[37]Migration Act 1958 (Cth), s

5(1).
[38]Migration Act

1958 (Cth), s 46A.
[39] See

note 3.
[40]Migration Act 1958 (Cth), ss 198A(1),

198A(2)(d).
[41] See, for example

C Evans, note 2, p 2; Minister for

Immigration and Citizenship, ‘Rudd Government committed to Christmas

Island detention’, note 32.
[42] Note that unauthorised boat

arrivals on the mainland or in any other non-excised part of Australia are also

taken to immigration detention on Christmas Island. However, unlike offshore

entry persons, these people have access to the refugee status determination

system that applies on the mainland under the Migration

Act.
[43] The Commission was

provided with a copy of the draft guidelines, referred to as the Refugee Status

Assessment Procedures

Manual.
[44]Migration Act

1958 (Cth), s 46.
[45]Migration Act 1958 (Cth), ss 411(1)(c), 500(1)(b), 500(1)(c),

501(1).
[46]Migration Act

1958 (Cth), ss 476, 476A. The High Court has held that the privative clause

in section 474(1) of the Migration Act does not preclude judicial review of

decisions affected by jurisdictional error: Plaintiff S157/2002 v

Godwin (2003) 211 CLR 476 at

506.
[47]Migration Act

1958 (Cth), ss 46A(1),

46A(2).
[48] No provision is made

in the non-statutory RSA process for judicial review of a decision made by a

DIAC officer or an Independent Reviewer (prior to the point at which the

Minister decides to lift the section 46A bar). The High Court’s original

jurisdiction in section 75(v) of the Constitution, however, remains available to

compel compliance by officers of the Commonwealth with their statutory or common

law duties. An asylum seeker who arrived in an excised offshore place may seek a

remedy of mandamus, prohibition or injunction in the High Court pursuant to

section 75(v) of the Constitution, but would have to establish that the

Commonwealth officer had a relevant statutory or common law

duty.
[49] Under UNHCR

guidelines, this provision covers ‘a person who enters the country in

which asylum is sought directly from the country of origin, or from another

country where his protection, safety and security could not be assured.’

It also covers ‘a person who transits an intermediate country for a short

period of time without having applied for, or received, asylum there.’

UNHCR, Revised Guidelines on Applicable Criteria and Standards relating to

the Detention of Asylum Seekers (1999), para 4. At http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3c2b3f844 (viewed 27 August 2009).
[50] See

further J von Doussa, ‘Human Rights and Offshore Processing’ (2007)

9 UTS Law Review 41, pp 45, 48-49; J McAdam and T Garcia, Submission

on Refugees and Asylum Seekers to the National Human Rights Consultation (2009), pp 33-39, at http://www.humanrightsconsultation.gov.au/www/nhrcc/submissions.nsf/list/7D3822576B6ABCF2CA2576070019EBD9/$file/Gilbert_+_Tobin_Centre_of_Public_Law_Jane_McAdam_AGWW-7SW85E.pdf (viewed 27 August 2009).
[51] CRC, art 22.
[52] CRC, art 2. See

further A last resort, note 5, pp

272-274.
[53] A last resort, note 5, p

276.
[54] 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 (viewed 26 August 2009).
[55] Australian Human Rights Commission, 2008 Immigration detention report:

Summary of observations following visits to Australia’s immigration

detention facilities (2009), pp 71-72. At http://www.humanrights.gov.au/human_rights/immigration/idc2008.pdf (viewed 25 September 2009).
[56] See, for example 2008 Immigration detention report, above; Human Rights and

Equal Opportunity Commission, Submission to the Joint Standing Committee on

Migration Inquiry into Immigration Detention in Australia (2008), paras

40-45, at http://www.humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html (viewed 25 September 2009); Human Rights and Equal Opportunity Commission, Submission to the Senate Legal and Constitutional Affairs Legislation

Committee on the Migration Amendment (Designated Unauthorised Arrivals) Bill

2006, at http://www.humanrights.gov.au/legal/submissions/migration20060522.html (viewed 29 September 2009).
[57] C Evans, note 2, p

2.
[58] C Evans, note 2, p

3.
[59]Migration Act 1958 (Cth), s 46A(1).
[60]Migration Act 1958 (Cth), s

46A2.
[61] According to DIAC, as

of July 2009 it was taking an average of 66 days from the lodgement of the

statement of claims until notification of the immigration outcome. However, the

average overall processing time (from a person’s arrival on Christmas

Island until their immigration outcome) was ranging from 90 days to over 120

days.
[62] See, for example Human

Rights and Equal Opportunity Commission, Submission to the Joint Standing

Committee on Migration Inquiry into Immigration Detention in Australia, note 56, paras

69-75.
[63] Commonwealth, Parliamentary Debates, House of Representatives, 9 September 2009, p 5

(Mr Laurie Ferguson, Parliamentary Secretary for Multicultural Affairs and

Settlement Services). At http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/2009-09-09/0020/hansard_frag.pdf;fileType%3Dapplication%2Fpdf (viewed 25 September 2009).
[64] United Nations Human Rights Committee, note 54.
[65] 2008 Immigration detention report, note 55, pp

71-72.
[66] Those who arrive on

the mainland or another non-excised part of Australia have access to the refugee

status determination system that applies under the Migration Act. Those who

arrive in an excised offshore place do not have access to this system –

instead, they go through the non-statutory RSA process, as discussed in Part B

of this report.
[67] See note 3.
[68] See note 2.
[69] The Commission welcomed the statement of the Australian Government’s key immigration

values 3 to 7. See further 2008 Immigration detention report, note 55, p 4.
[70] Values 1 and 2 retain the

use of mandatory detention. See C Evans, note 2, p

3.
[71] Section 189(3) of the

Migration Act states: ‘If an officer knows or reasonably suspects that a

person in an excised offshore place is an unlawful non-citizen, the officer may

detain the person.’ Section 189 (4) states: ‘If an officer

reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter an excised offshore place; and (b) would, if in the

migration zone, be an unlawful non-citizen; the officer may detain the

person.’ Compare this to sections 189(1) and 189(2) which require

mandatory detention of unlawful non-citizens in, or seeking to enter, the

migration zone (other than an excised offshore

place).
[72] C Evans, note 2,

p4.
[73] C Evans, note 2, pp

4-5.
[74] See note 70.
[75] UNHCR, Revised Guidelines on Applicable Criteria and Standards relating to

the Detention of Asylum Seekers, note 49,

guideline 3.
[76] As above. See

also UNHCR Executive Committee, Conclusion No. 44 (XXXVII) - Detention of

Refugees and Asylum Seekers (1986). At http://www.unhcr.org/refworld/docid/3ae68c43c0.html (viewed 25 September 2009).
[77] UNHCR, Revised Guidelines on Applicable Criteria and Standards relating to

the Detention of Asylum Seekers, note 49,

guideline 3.
[78] See note 71.
[79] See, for example Human Rights and Equal Opportunity Commission, Submission to

the Joint Standing Committee on Migration, note 56; A last resort, note 5; Those who’ve come across the seas,

note 7.
[80] C Evans, note 2, p

4.
[81] Joint Standing Committee

on Migration, Immigration detention in Australia: A new beginning –

Criteria for release from detention (2008), p 69. At http://www.aph.gov.au/house/committee/mig/detention/report/fullreport.pdf (viewed 28 September 2009).
[82] Under Article 9(4) of the ICCPR, any person arrested or otherwise detained is to

be brought before a court without delay: ‘Anyone who is deprived of his

liberty by arrest or detention shall be entitled to take proceedings before a

court, in order that that court may decide without delay on the lawfulness of

his detention and order his release if the detention is not lawful.’ The

lawfulness of the person’s detention is not limited to domestic legality

– it includes whether the detention is compatible with the requirements of

article 9(1) of the ICCPR. See, for example A v Australia, note 4, para

9.5.
[83] See note 3.
[84] ICCPR, art 9(1); CRC, art

37(b).
[85] See note 4.
[86] See C Evans, note 2, p

4.
[87] Of the 82 children in

immigration detention on the island at the time, 53 were in a detention facility

and 29 were in community

detention.
[88] At the time of

the Commission’s visit, DIAC was increasing the capacity of the alpha

compound at the Phosphate Hill immigration detention facility up to around 90

people. DIAC was also seeking to lease seven additional houses in the community.
[89] C Evans, note 2, p

4.
[90] See, for example A last

resort, note 5.
[91] C Evans, note 2, pp

6-7.
[92] See, for example

Commonwealth, Parliamentary Debates, Senate, 25 June 2009, pp 4265-4266

(The Hon Penny Wong MP, Minister for Climate Change and Water).
[93] C Evans, note 2, p

4.
[94] See, for example 2008

Immigration detention report, note 55, p

18; Human Rights and Equal Opportunity Commission, Submission to the Joint

Standing Committee on Migration Inquiry into Immigration Detention in

Australia, note 56, para

114.
[95] DIAC,

‘Immigration detention services contract signed’ (Media Release, 29

June 2009). At http://www.newsroom.immi.gov.au/media_releases/726 (viewed 31 August 2009).
[96] Joint Standing Committee on Migration, note 6,

pp 87-88, 98-100.
[97] UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to the

Detention of Asylum Seekers, note 49,

guideline 10.
[98] See, for

example 2008 Immigration detention report, note 55, pp

18-19.
[99] The flight from

Sydney to Perth takes five hours, and the flight from Perth to Christmas Island

takes another five. In practice this means flying from Sydney to Perth, spending

the night, then flying to Christmas Island the following day and arriving in the

late afternoon. There are four regular flights from Perth to Christmas Island

each week, at an average return cost of $1398 per person. When a return flight

from the east coast and accommodation costs are added, the cost of the trip

becomes substantial.
[100]Optional Protocol to the Convention against Torture and other Cruel, Inhuman

or Degrading Treatment or Punishment (2002) (OPCAT). At http://www2.ohchr.org/english/law/cat-one.htm (viewed 28 September 2009). The Australian Government has signed OPCAT, but has

not yet ratified it.
[101] Report to the Australian Human Rights Commission by Professors Richard Harding

and Neil Morgan, Centre for Law and Public Policy, The University of Western

Australia, Implementing the Optional Protocol to the Convention against

Torture: Options for Australia (2008). At
http://www.humanrights.gov.au/human_rights/publications/opcat/index.html (viewed 29 September

2009).
[102] Joint Standing

Committee on Migration, note 6, p

114.
[103] Of the 82 children,

12 were aged zero to five years, five were aged six to ten years, 17 were aged

11 to 15 years, and 48 were 16 or 17 years

old.
[104] See note 71.
[105] See note 3.
[106] CRC, art 3(1).
[107] CRC, art

37(b).
[108] CRC, art

37(c).
[109] CRC, art 37(a),

37(c).
[110] CRC, art

37(d).
[111] CRC, art

22(1).
[112] CRC, art

9(1).
[113] CRC, art

20.
[114] CRC, art 6(2),

39.
[115] CRC, art

2.
[116] A last resort, note 5, p

5.
[117] See note 71.
[118] See, for example C Evans, note 2, pp 2-3;

Minister for Immigration and Citizenship, ‘Rudd Government committed to

Christmas Island detention’, note 32.
[119] CRC, art 37(b).
[120] See

further A last resort, note 5, p 95.
[121] UNHCR, Guidelines on

Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997), para 7.6-7.7, at http://www.unhcr.org/3d4f91cf4.html (viewed 25 September 2009). See also UNHCR, Revised Guidelines on Applicable

Criteria and Standards Relating to the Detention of Asylum Seekers, note 49, guideline

6.
[122] See C Evans, note 2, p

3.
[123] DIAC, Response to

the Australian Human Rights Commission’s 2008 Immigration detention

report (2009), p 52. At http://www.humanrights.gov.au/human_rights/immigration/idc2008_DIAC.html (viewed 26 August 2009).
[124] Of the 53 children detained in the construction camp, 11 were aged between zero

and five years. one was aged six to ten years, 11 were aged 11 to 15 years, and

30 were 16 or 17 years

old.
[125] Currently, the

Immigration Detention Centres (IDCs) in Australia are Villawood IDC, Northern

IDC, Perth IDC, Maribyrnong IDC and Christmas Island

IDC.
[126] In its weekly

immigration detention statistics, DIAC counts detainees being held in the

construction camp facility in the category referred to as ‘Alternative

Temporary Detention in the Community (Christmas Island).’ See, for example

Community and Detention Services Division, DIAC, Immigration Detention

Statistics Summary (4 September

2009).
[127] Of the 53 children

detained in the camp at the time of the Commission’s visit, the average

time they had been there was approximately six weeks. However, five girls under

the age of 12 had been there for two months or more. Two of these girls –

a one year old and a two year old – had been there for more than three

months. Of the 29 children in community detention at the time of the

Commission’s visit, the average time they spent in detention in the

construction camp before being moved to community detention was nine and a half

weeks.
[128]Migration Act

1958 (Cth), s4AA.
[129] Dissenting Report by Mr Petro Georgiou MP in Joint Standing Committee on

Migration, Immigration detention in Australia: Facilities, services and

transparency, note 6, p 158.
[130] Minister for Immigration

and Citizenship, ‘Rudd Government committed to Christmas Island

detention’, note 32.
[131] See http://www.immi.gov.au/managing-australias-borders/detention/services/community-detention.htm (viewed 1 September

2009).
[132] See, for example M

Dodd, ‘People profiteers’, The Australian, 16 September 2009.

At http://www.theaustralian.news.com.au/story/0,,26078829-28737,00.html (viewed 16 September

2009).
[133] See note 126.
[134] See, for example A last resort, note 5,

chapter 6, pp 862-867.
[135] See note 3.
[136] A last resort, note 5, pp

860-867.
[137] A last resort,

note 5, pp

862-865.
[138] CRC, art 37(d).

See also ICCPR, art 9(4).
[139] A last resort, note 5, pp

865-867.
[140] A last resort,

note 5, pp 5-7, chapter

17.
[141] See, for example A

last resort, note 5, pp 128-129, chapter 8; 2008

Immigration detention report, note 55, pp

85-86.
[142] See, for example

2008 Immigration detention report, note 55, p

86.
[143] CRC, art

20.
[144] See UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children

Seeking Asylum, note 121. See also

UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to

the Detention of Asylum Seekers, note 49,

guideline 6.
[145] 2008

Immigration detention report, note 55, pp

85-86.
[146] According to its

website, Life Without Barriers is a ‘national not-for-profit organisation

working to support children and young people in crisis, people with a disability

and those with a mental health issue.’ See http://www.lwb.org.au/ (viewed 30 September

2009).
[147] See, for example A

last resort, note 5, chapter 14, section 17.4.7;

2008 Immigration detention report, note 55, pp

85-86.
[148] This role is

separate to the role that Life Without Barriers plays in recruiting and

providing carers for unaccompanied minors in community detention on Christmas

Island (as discussed in section 11.7 of this report).
[149] UNHCR, Guidelines on

Policies and Procedures in Dealing with Unaccompanied Children Seeking

Asylum, note 121, para 5.7. See also UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the

Detention of Asylum Seekers, note 49,

guideline 6.
[150]Immigration (Guardianship of Children) Act 1946 (Cth), s

6.
[151]Immigration

(Guardianship of Children) Act 1946 (Cth), s

5.
[152] CRC, art

18(1).
[153] A last resort,

note 5, chapter 14, pp

873-877.
[154] A last resort,

note 5, pp 699-701,

873-877.
[155] Senate Legal and

Constitutional Affairs Legislation Committee, Inquiry into Migration

Amendment (Immigration Detention Reform) Bill 2009 (2009), pp 18-19. At http://www.aph.gov.au/Senate/committee/legcon_ctte/migration_2009/report/report.pdf (viewed 4 September

2009).
[156] On 23 September

2009 the Commission was informed by DIAC that the bravo compound is currently in

use for single adult male

detainees.
[157] 2008

Immigration detention report, note 55, pp

75-76.
[158] C Evans, note 2, p

7.
[159] See C Evans, note 2, p

6.
[160] Joint Standing

Committee on Migration, note 6, p

42.
[161] As

above.
[162] Joint Standing

Committee on Migration, note 6, p

57.
[163] Joint Standing

Committee on Migration, note 6, p

42.
[164] Department of

Immigration and Citizenship and Department of Finance and Deregulation, Joint

Submission to the Parliamentary Standing Committee on Public Works Inquiry into

Villawood Immigration Detention Facility Redevelopment (2009), para 56. At http://www.aph.gov.au/house/committee/pwc/villawood09/subs/sub001.pdf (viewed 30 September

2009).
[165] United Nations

Human Rights Committee, note 54, para 23;

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 (viewed 30 September

2009).
[166] 2008 Immigration

detention report, note 55, pp

75-76.
[167] Joint Standing

Committee on Migration, note 6, p

57.
[168] During its 2008 visit

the Commission was informed by DIAC that the construction camp could be used to

accommodate 100 detainees. During its 2009 visit, the Commission was informed

that the capacity is 258. A May 2009 DIAC source states that the capacity is

350. See DIAC, Supplementary submission to the Joint Standing Committee on

Migration Inquiry into Immigration Detention in Australia (2009), p1, at http://www.aph.gov.au/house/committee/MIG/detention/subs/sub129w.pdf (viewed 25 August 2009). In August 2009 a DIAC representative told a Senate

Committee that the capacity is around 200. See Evidence to the Senate Legal

and Constitutional Affairs Legislation Committee, Sydney, 7 August 2009, p

10 (Jackie Wilson), at http://www.aph.gov.au/hansard/senate/commttee/S12355.pdf (viewed 26 August 2009).
[169] See note 126.
[170] See 2008 Immigration detention report, note 55,

pp 76-77.
[171] See note 127.
[172] See, for example 2008 Immigration detention report, note 55, pp

38-39.
[173] A last resort,

note 5, chapter

7.
[174] See 2008 Immigration

detention report, note 55, p

74.
[175] In September 2009 the

Commission was informed that at the end of July 2009 NAATI established an

accreditation testing panel for Hazaragi interpreters. As of September, 17

interpreters had registered to undergo the testing. The outcomes of tests were

not known at the time of

writing.
[176] See, for example

2008 Immigration detention report, note 55, pp

40-42.
[177] CRC, art 37(d);

ICCPR, art 14(3)(d); Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment, note 17, principle

17.
[178] ICCPR, art 14(3)(d); Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment, note 17,

principle 17.
[179] C Evans,

note 2, pp

2-3.
[180] 2008 Immigration

detention report, note 55, p

71.
[181] Joint Standing

Committee on Migration, note 6, p

100.
[182] The one exception to

this is the Northern IDC, which is generally used to accommodate alleged illegal

foreign fishers. Under the detention health contract, Northern IDC is currently

required to have a mental health clinic staffed by a

counsellor.
[183] Human Rights

and Equal Opportunity Commission, Immigration Detention Guidelines, note 28, section 7.2.
[184] CRC, art 28, 31. See

further A last resort, note 5, chapters 12,

13, 15.
[185] UNHCR Revised

Guidelines on Applicable Criteria and Standards Relating to the Detention of

Asylum Seekers, note 49, guideline

6.
[186] Human Rights and Equal

Opportunity Commission, Immigration Detention Guidelines, note 28, section 6.6. This is based on articles 6(2)

and 13(2)(c) of the International Covenant on Economic, Social and Cultural

Rights, rule 71(5) of the Standard Minimum Rules for the Treatment of

Prisoners, rule 42 of the United Nations Rules for the Protection of

Juveniles Deprived of their Liberty and guideline 10(vii) of the UNHCR

Revised Guidelines on Applicable Criteria and Standards Relating to the

Detention of

Asylum-Seekers.
[187] See,

for example 2008 Immigration detention report, note 55, pp

33-35.
[188] See, for example P

Taylor, ‘No visas, boys? Welcome to Australia’, The

Australian, 3 September 2009. At http://www.theaustralian.news.com.au/story/0,25197,26019535-601,00.html (viewed 10 September

2009).
[189] See further 2008

Immigration detention report, note 55, p

84.
[190] ICCPR, art

18.
[191] Human Rights and

Equal Opportunity Commission, Immigration Detention Guidelines, note 28, section

5.1.
[192] See http://www.immi.gov.au/managing-australias-borders/detention/services/services-at-facilities.htm (viewed 10 September

2009).
[193]Migration Act

1958 (Cth), s 197AB.
[194] See D Marr, ‘The Indian Ocean Solution’ (2009) 49 The Monthly 18, p 29.
[195] As

above.
[196] Because they were

in community detention, these detainees were free to come and go from the

facility, except to the extent that they were required to comply with a nightly

curfew (as discussed in section 13.4 of this

report).
[197] On 23 September

2009 the Commission was informed by DIAC that the bravo compound is currently in

use for single adult male detainees.