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2010 Immigration detention on Christmas Island

Immigration detention on Christmas Island

2010

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Contents

PART A: Introductory sections

PART B: Key policy and processing developments

PART C: Children in detention on Christmas Island

PART D: Conditions and services in detention

Part E: Monitoring conditions of detention on Christmas Island

APPENDICES


PART

A: Introductory sections

1 Introduction

This

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

Commission (the Commission) during its 2010 visit to the immigration detention

facilities on Christmas Island.

Three Commission staff members visited Christmas Island from 28 May to 3 June

2010. The purpose of the visit was to monitor conditions in immigration

detention against internationally accepted human rights standards. The

activities undertaken during the visit are set out in Appendix 1. This report

comments on conditions at the time of the Commission’s visit. The

Commission is aware that there have been developments between the time of its

visit and the publication of this report.

The Commission acknowledges the assistance provided by the Department of

Immigration and Citizenship (DIAC) in organising and facilitating the visit, and

the positive cooperation received from DIAC officers and detention service

provider staff members during the visit. The Commission also thanks local

representatives on Christmas Island for their willingness to spend time meeting

with Commission staff.

The Commission provided a copy of this report to DIAC in advance of its

publication, in order to provide DIAC with an opportunity to prepare a response.

DIAC’s response is available on the Commission’s website at www.humanrights.gov.au/human_rights/immigration/

idc2010_christmas_island_response.html.

2 Background

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 detention and conducted

two national inquiries into the mandatory detention

system.[1] The Commission has concluded that this system breaches fundamental human

rights.[2]

Because of its concerns, the Commission undertakes a range of monitoring

activities.[3] These include

conducting inspections of Australia’s immigration detention facilities,

with the aim of ensuring that conditions meet internationally accepted human

rights standards. The relevant standards are set out in Appendix 2.

This report follows the Commission’s 2006, 2007 and 2008 annual reports

on inspections of immigration detention

facilities[4] and its 2009 report, Immigration

detention and offshore processing on Christmas

Island.[5]

The Commission’s 2009 report found that Christmas Island is not an

appropriate place in which to hold people in immigration detention for a range

of reasons including the nature of the detention facilities, the limited

infrastructure and lack of community-based accommodation options, and the

restrictions on asylum seekers’ access to essential services and support

networks.[6] The Commission also

expressed concerns about the ongoing excision regime and the practice of

assessing the claims of asylum seekers who arrive in excised offshore places

through a non-statutory

process.[7]

The key recommendations of the Commission’s 2009 report included that

people should not be held in immigration detention on Christmas Island; the

provisions of the Migration Act 1958 (Cth) (Migration Act) relating to

excised offshore places should be repealed; 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.[8]

A range of other domestic and international organisations and experts have

also raised significant concerns about the Australian Government’s policy

of holding asylum seekers in detention on Christmas Island. These include

Amnesty International, the Refugee Council of Australia, local religious

leaders, United Nations treaty bodies and the United Nations Special Rapporteur

on the right to

health.[9]

Since the Commission’s 2009 visit to Christmas Island, there have been

a range of significant developments – some positive and others negative.

These have included an increase in the number of asylum seekers arriving by boat

and an increase in the number of people in detention on Christmas Island; the

transfer of some asylum seekers to mainland detention facilities; the re-opening

of the Curtin Immigration Detention Centre and the Port Augusta Immigration

Residential Housing; the establishment of new ‘alternative places of

detention’ on the mainland; and the suspension of processing of claims by

asylum seekers from Sri Lanka and Afghanistan.

The Commission’s 2010 visit to Christmas Island focused predominantly

on the conditions of detention for asylum seekers. However, this report also

considers some of the key policy and processing developments that have impacted

on those conditions over the past year. The report focuses on areas in which

there have been notable changes since the Commission’s 2009 Christmas

Island visit and report.

3 Summary

Since the Commission visited Christmas Island in 2009, there has been a

substantial increase in the number of people detained there. While there have

been some improvements in the operation of the detention facilities, the

increase in numbers has led to overcrowding and a significant deterioration in

conditions for many people.

DIAC officers and staff members of detention service providers are clearly

working under considerable pressures on Christmas Island, caused by a range of

factors including the number of people in detention, infrastructure constraints

and logistical difficulties resulting from the small size and remoteness of the

island. The Commission acknowledges the efforts being made by staff to ensure

that people in detention are treated appropriately despite the challenging

circumstances.

During its 2010 visit, the Commission was pleased to observe and hear reports

of some positive developments. These include the fact that the separation

detention system is no longer used; positive reports from people in detention

about most staff members; positive efforts to provide recreational activities in

detention; an increase in religious support for people in detention; a new

initiative of engaging some people in detention as teacher’s aides at the

local school; and increased DIAC efforts to engage with the local community.

However, the Commission’s overarching concerns about the

inappropriateness of holding asylum seekers in immigration detention on

Christmas Island remain. The Commission’s major concerns are summarised

below and discussed in further detail throughout this report.

Overarching policy concerns

  • Asylum seekers who arrive by boat in an excised offshore place continue to

    be subjected to mandatory detention on Christmas Island, despite the fact that

    the Migration Act does not require this. Further, the Migration Act purports to

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

    courts.[10]

  • Asylum seekers who arrive in an excised offshore place continue to be barred

    from the refugee status determination system that applies under the Migration

    Act. Instead, their claims are assessed through a non-statutory process governed

    by policy guidelines.

  • The decision to suspend processing of claims by asylum seekers from Sri

    Lanka and Afghanistan led to the prolonged detention of a significant number of

    people, including children.

  • More people are being held in immigration detention on Christmas Island for

    longer periods of time. There continues to be no set time limit on the period a

    person may be detained.

  • Community Detention is no longer available on Christmas Island, and is

    barely being used on the mainland.

Detention of unaccompanied

minors and families with children

  • Children continue to be subjected to mandatory detention on Christmas

    Island, in breach of Australia’s obligations under the Convention on

    the Rights of the Child (CRC).

  • Families with children and unaccompanied minors are detained in an

    immigration detention facility on Christmas Island (the Construction Camp),

    rather than being placed in Community Detention. The Construction Camp is not an

    appropriate environment for children, and has become increasingly overcrowded.

  • There continues to be a lack of clarity about responsibilities for child

    welfare and protection for children in immigration detention on Christmas

    Island.

  • There remains a conflict of interest in the Minister for Immigration and

    Citizenship (the Minister) or DIAC officers acting as the legal guardian of

    unaccompanied minors detained on Christmas Island.

Conditions

and services in detention

  • The detention facilities on Christmas Island are not appropriate for asylum

    seekers. The Commission has ongoing concerns about the prison-like nature of the

    Christmas Island Immigration Detention Centre (IDC), the limited amenities at

    the Phosphate Hill facility, and the inappropriateness of the Construction Camp

    as a place for accommodating families with children and unaccompanied

    minors.

  • The substantial increase in the number of people in detention has led to

    overcrowding in the detention facilities on Christmas Island. There has been a

    significant deterioration in living conditions for many people, particularly

    those accommodated in tents and dormitory bedrooms.

  • The substantial increase in the number of people in detention has placed

    further strain on their access to facilities and services including

    communication facilities, recreational facilities, educational activities and

    opportunities for people to leave the detention

    environment.

Access to health and mental health care

  • People in immigration detention on Christmas Island have limited access to

    medical specialists and dental care.

  • There is no psychiatrist on Christmas Island. Mental health staff are being

    required to provide services to a high number of people in detention. There have

    been a number of self-harm incidents in recent months.

  • There is a need for rigorous, independent monitoring of the delivery of

    health and mental health services for people in immigration detention.

While there have been some improvements since its last visit, the

Commission remains of the view that Christmas Island is not an appropriate place

in which to hold people in immigration detention. The Commission’s

long-held concerns about detaining asylum seekers in a place as small and remote

as Christmas Island have been compounded this year by the overcrowding and

deterioration in conditions. The Commission opposes the mandatory detention of

asylum seekers. However, if people must be detained, they should be accommodated

on the Australian mainland in metropolitan locations where they can access the

services and support they need.

The Commission also remains of the view that the excision regime should be

repealed. It establishes a two-tiered system under which asylum seekers are

treated differently based on their place and mode of arrival. Asylum seekers

arriving in excised offshore places are assessed through a non-statutory system

that affords them fewer legal safeguards than asylum seekers arriving on the

mainland. In the Commission’s view, all asylum seekers who arrive in

Australia should be permitted to apply for protection through the refugee status

determination system that applies under the Migration Act.

Regardless of how or where they arrive in Australia, all people are entitled

to protection of their fundamental human rights. These include the right to seek

asylum, the right not to be subjected to arbitrary detention, and the right to

be treated with humanity and respect if they are deprived of their

liberty.[11] The Commission continues to encourage the Australian Government to ensure that

the treatment of all asylum seekers arriving in Australia is in line with these

and other human rights obligations.

4 Recommendations

Recommendation 1: The Australian Government should stop using

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

people must be held in immigration detention facilities, they should be located

in metropolitan areas.

Recommendation 2: The Australian Government should repeal the

provisions of the Migration Act relating to excised offshore places and 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: If the Australian Government intends to continue

to use Christmas Island for immigration detention purposes, it should avoid the

prolonged detention of asylum seekers by:

  • Ensuring full implementation of the New Directions policy under which asylum

    seekers should only be held in closed detention facilities while their health,

    identity and security checks are conducted. After this, the presumption is that

    they will be permitted to reside in the community unless a specific risk

    justifies their ongoing detention in a facility.

  • Ensuring that security clearances are conducted as quickly as

    possible.

Recommendation 4: 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.[12]

Recommendation 5: The Australian Government should make full use of

the Community Detention system for people detained on Christmas Island. All

eligible detainees should be referred for a Residence Determination on the

mainland. This should be an immediate priority for vulnerable groups including

families with children, unaccompanied minors, survivors of torture or trauma,

and people with health or mental health concerns.

Recommendation 6: The Australian Government should implement the

outstanding recommendations of the report of the National Inquiry into Children

in Immigration Detention, A last

resort?.[13] These include that

Australia’s immigration detention laws should be amended, as a matter of

urgency, to comply with the Convention on the Rights of the Child. In

particular, the new laws should incorporate the following minimum

features:

  • There should be a presumption against the detention of children for

    immigration purposes.

  • A court or independent tribunal should assess whether there is a need to

    detain children for immigration purposes within 72 hours of any initial

    detention (for example, for the purposes of health, identity or security

    checks).

  • There should be prompt and periodic review by a court of the legality of

    continuing detention of children for immigration purposes.

  • All courts and independent tribunals should be guided by the following

    principles:

    • detention of children must be a measure of last resort and for the

      shortest appropriate period of time

    • the best interests of children must be a primary consideration
    • the preservation of family unity
    • special protection and assistance for unaccompanied

      children.

Recommendation 7: 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 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 immigration detention on Christmas Island

  • clearly communicate these roles and responsibilities to all relevant state

    and federal authorities

  • finalise and implement clear policies and procedures 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 8: 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 9:

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

IDC, it should implement the 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.[14]

Recommendation 10: If the Australian Government intends to continue

to use the Christmas Island IDC, it should take immediate measures to reduce

overcrowding. These should include:

  • ceasing the practice of accommodating people in tents, and removing the

    tents as soon as possible

  • ceasing use of the surge areas that have been created by converting the

    visitors’ and induction areas into large dormitories

  • ceasing the practice of accommodating people in dormitory bedrooms in

    Education 3 Compound, and returning the compound to its original use as space

    for educational and recreational activities

  • refraining from transforming additional areas into

    accommodation.

Recommendation 11: If the Australian

Government intends to continue to use the Phosphate Hill immigration detention

facility, it should take immediate measures to reduce overcrowding in the

facility. These should include:

  • ceasing the practice of accommodating people in tents, and removing the

    tents as soon as possible

  • ceasing the practice of accommodating any more than two people in the

    bedrooms in the demountables.

Recommendation 12: If the

Australian Government intends to continue to use the Construction Camp

immigration detention facility, it should take immediate measures to reduce

overcrowding in the facility.

Recommendation 13: DIAC, Serco and other detention service providers

should refer to people in immigration detention by their name. Their

identification number should only be used as a secondary identifier where this

is necessary for clarification purposes.

Recommendation 14: DIAC and Serco should ensure that staff training

and performance management include a strong focus on treating all people in

immigration detention with humanity and with respect for their inherent

dignity.

Recommendation 15: An independent body should be charged with the

function of monitoring the provision of health and mental health services in

immigration detention. The Australian Government should ensure that adequate

resources are allocated to that body to fulfil this function.

Recommendation 16: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that detainees are provided with access to appropriate health services. In

particular, DIAC should ensure, as a matter of priority, that detainees on

Christmas Island are provided with adequate access to dental care and specialist

care.

Recommendation 17: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that detainees are provided with access to appropriate mental health services.

In particular, DIAC should ensure, as a matter of priority, that detainees on

Christmas Island are provided with adequate access to psychiatric care.

Recommendation 18: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that detainees are provided with adequate access to torture and trauma

services.

Recommendation 19: DIAC should ensure that its policy, Identification and Support of People in Immigration Detention who are

Survivors of Torture and Trauma is implemented on Christmas Island. Under

this policy, the continued detention of survivors of torture and trauma in an

IDC is only to occur as a measure of absolute last resort where risk to the

Australian community is considered unacceptable.

Recommendation 20: 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 telephones

    and that they can make and receive telephone calls in privacy

  • increase the number of internet terminals in each of the detention

    facilities.

Recommendation 21: 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 a range of recreational facilities and activities.

Recommendation 22: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that:

  • all detainees have access to appropriate educational activities, including

    ESL classes

  • the Phosphate Hill and Construction Camp immigration detention facilities

    have an adequate supply of reading materials in the principal languages spoken

    by detainees.

Recommendation 23: If the Australian

Government intends to continue using Christmas Island for immigration detention

purposes, DIAC should:

  • amend the detention service provider contract applicable to the three

    detention facilities on Christmas Island to require that Serco provide regular

    external excursions for people in detention on the island

  • ensure that the detention service provider is allocated sufficient resources

    to provide escorts for regular external

    excursions.

Recommendation 24: 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 – in particular,

    further efforts are required to provide this for detainees who practice a

    religion other than Christianity

  • ensure that detainees have access to religious services in the

    community.

Recommendation 25: 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 26: The Australian Government should ratify the Optional Protocol to the Convention against Torture and establish an

independent and adequately resourced National Preventive Mechanism to conduct

regular inspections of all places of detention. This should include all

immigration detention facilities, including those located in excised offshore

places.

 

5 Overview:

immigration detention on Christmas Island

5.1 Who

is detained on Christmas Island?

The current policy of the Australian Government is that all non-citizens who

arrive by boat without a valid visa (irregular maritime arrivals) are taken to

Christmas Island and placed in immigration

detention.[15] This includes people

who arrive by boat in excised offshore places, and people who arrive by boat on

the Australian

mainland.[16]

The vast majority of these arrivals are asylum seekers. A small number are

crew members.

At the time of the Commission’s visit, the vast majority of people

detained on Christmas Island were from Afghanistan or Sri Lanka. Other major

nationalities included Iranian, Iraqi and Burmese. There were also a significant

number of stateless people in

detention.[17]

5.2 How

many people are detained on Christmas Island?

The number of people in immigration detention on Christmas Island has

increased significantly since the Commission’s July 2009 visit. At that

time, there were 733 people in immigration detention on the

island.[18]

At the start of the Commission’s 2010 visit, there were 2421 people in

immigration detention on Christmas Island, including 250

minors.[19] At the same time, there

were 1045 irregular maritime arrivals in detention on the mainland, including

246 minors.[20]

At the time of writing, there were 2409 people detained on Christmas Island,

including 217 minors. There were also 1950 irregular maritime arrivals in

detention on the mainland, including 439

minors.[21]

At the time of writing, the highest number detained on Christmas Island at

any one time was 2652 people in late July

2010.[22]

5.3 How

long are people detained on Christmas Island?

The majority of the 2421 people detained on Christmas Island at the time of

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

months.[23] However, 656 people had

been detained for three months or more. Of those 656 people, 305 had been

detained for six months or more; and of those 305 people, 121 had been detained

for nine months or more.[24]

The Commission is concerned that more people are being held in detention on

Christmas Island for longer periods of time, as discussed in section 9 of this

report.

5.4 Where

are people detained?

There are three immigration detention facilities on Christmas Island:

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

    adult males. When the Commission visited, there were 1834 men detained in the

    IDC.[25]

  • The Construction Camp immigration detention facility – a low security

    detention facility used primarily for unaccompanied minors and families with

    children. When the Commission visited, there were 418 people detained in the

    Construction Camp – 73 men, 75 women, 94 accompanied children, 152

    unaccompanied minors and 24 male crew

    members.[26]

  • The Phosphate Hill immigration detention facility – a secure detention

    facility used for adult males. When the Commission visited, there were 164 men

    detained in the facility.[27]

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

facilities were being operated by Serco Australia, the detention service

provider contracted by the Australian Government.

Some immigration detainees on Christmas Island were formerly placed in

Community Detention and accommodated in houses in the local

community.[28] During the

Commission’s 2010 visit, there were only three people in Community

Detention.[29] Since then, the use

of Community Detention on Christmas Island has ceased due to a lack of available

accommodation. The Commission is concerned about this development, as discussed

in section 11 of this report.

PART

B: Key policy and processing developments

Since the Commission’s 2009 visit to Christmas Island, there has been a

range of significant developments. This part of the report considers some of the

key policy and processing developments that have impacted on conditions for

people in detention on Christmas Island over the past year.

6 Increasing

detainee numbers and transfers to mainland detention facilities

Over the past year

there has been an increase in the number of asylum seekers arriving by boat and

a substantial increase in the number of people being held in immigration

detention on Christmas Island. There were 733 people in detention on Christmas

Island when the Commission visited in July 2009. By the time of the

Commission’s 2010 visit this had increased to 2421

people.[30]

The increase in arrivals has contributed to slower processing of asylum

applications and longer periods of detention, as discussed in the following

sections of this report. It has also placed increasing pressures on DIAC and

Serco staff, as they have been required to meet the needs of an ever-increasing

number of people in detention. A rise in the number of DIAC officers on

Christmas Island and an enhanced Case Management system appear to have assisted

in meeting these challenges. The Commission acknowledges that many staff are

making significant efforts to ensure that people in detention are treated

appropriately despite the difficult circumstances.

However, the detention facilities on Christmas Island were not designed to

accommodate such a high number of

people.[31] The substantial increase

in detainee numbers has led to overcrowding, a significant deterioration in

living conditions, increased pressure on services such as health and mental

health care, and restrictions on access to facilities such as telephones,

washing machines, ablutions and recreational facilities. These issues are

discussed further in Part D of this report.

The increasing pressure on the island’s detention facilities eventually

led to decisions by the Australian Government during the first half of 2010 to

transfer some people to existing immigration detention facilities on the

mainland, to re-open the Curtin IDC and the Port Augusta Immigration Residential

Housing, and to establish a range of other ‘alternative places of

detention’ on the

mainland.[32]

The Commission has long recommended that the Australian Government stop using

Christmas Island as a place for holding people in immigration

detention.[33] The overcrowding and the deteriorating conditions in the island’s

detention facilities add weight to that recommendation. The Commission therefore

welcomes the transfer of some detainees from Christmas Island to the mainland.

It is essential that these transfers continue in order to relieve the ongoing

pressures on detainees, staff, facilities and services on Christmas Island.

Transfers should be a matter of priority for all families with children,

unaccompanied minors, survivors of torture or trauma, and people with health or

mental health concerns.

However, the Commission regrets that the vast majority of people transferred

to the mainland to date have been placed in immigration detention facilities,

rather than being considered for a bridging visa or a Community Detention

placement. The Commission has also expressed concern about the decision to

detain people in remote locations such as Curtin, where their access to

appropriate services and support networks is limited and the accessibility and

transparency of their detention arrangements is

reduced.[34] In the

Commission’s view, many of the factors that make Christmas Island an

inappropriate place in which to detain people also make remote locations like

Curtin inappropriate. If people must be held in immigration detention

facilities, they should be located in metropolitan areas.

Recommendation 1: The Australian Government should stop using

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

people must be held in immigration detention facilities, they should be located

in metropolitan areas.

 

7 Excision

and offshore processing

7.1 The

excision regime and the non-statutory RSA process

Under Australia’s excision regime, various islands are designated as

‘excised offshore places’, and a person who becomes an unlawful

non-citizen (a non-citizen without a valid visa) by entering Australia at one of

these places is referred to as an ‘offshore entry

person’.[35] An offshore entry

person is barred from submitting a visa application unless the Minister

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

so.[36] Refugee claims made by

offshore entry persons are instead assessed through a non-statutory refugee

status assessment process (the RSA process).

The Commission’s 2009 report outlined the excision regime and the RSA

process in further detail.[37] The

Commission expressed concerns about excision and the policy of assessing the

claims of asylum seekers who arrive in excised offshore places through a

non-statutory process.[38]

DIAC’s response to the Commission’s report highlighted

improvements that had been made to the RSA process under the government’s

New Directions in Detention

reforms.[39] These improvements included access for asylum seekers to publicly funded

migration advice and assistance through the Immigration, Advice and Application

Assistance Scheme (IAAAS), independent review of unfavourable RSA decisions, and

an external scrutiny role for the Commonwealth Ombudsman.

The Commission has welcomed these

improvements.[40] The Commission

acknowledges that substantial reforms have been made in recent years which have

improved the processing of refugee claims made by offshore entry persons.

However, improvements in the operation of the process do not overcome the

Commission’s fundamental concerns about the system itself.

The Commission remains opposed to the excision regime because it establishes

a two-tiered system under which asylum seekers are treated differently based on

their place and mode of arrival. Asylum seekers arriving in excised offshore

places are barred from the refugee status determination system that applies

under the Migration Act, and instead are assessed through a non-statutory system

that affords them fewer legal safeguards than asylum seekers arriving on the

mainland. In the Commission’s view, this differential treatment undermines

Australia’s obligations under the Refugee Convention and undermines asylum

seekers’ human rights.[41]

The key recommendations of the Commission’s 2009 report included that

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

repealed, the policy of processing some asylum claims through a non-statutory

process be abandoned, and all unauthorised arrivals who make claims for asylum

have those claims assessed through the system that applies under the Migration

Act.[42] The Commission reiterates

those recommendations.

The Commission is aware that several legal challenges relating to the RSA

process are under consideration by the High Court of Australia. The Commission

will monitor developments in this area.

Recommendation 2: The Australian Government should repeal the

provisions of the Migration Act relating to excised offshore places and 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.

 

7.2 RSA

processing times

At the time of the Commission’s 2009 visit to Christmas Island, it was

taking an average of 66 days from the time an asylum seeker lodged their

statement of claims under the RSA process until they were notified of their RSA

outcome.[43] The Commission welcomed

the fact that the majority of asylum seekers on Christmas Island were moving

through the RSA process relatively quickly, but expressed concern that this was

vulnerable to change because there are no binding timeframes under the

process.[44]

Since then, the increase in the number of asylum seekers arriving by boat has

contributed to slower RSA processing. As of July 2010, on average it was taking

41 days from a person’s arrival on Christmas Island until lodgement of

their statement of claims, and a further 72 days from that lodgement until their

protection visa grant. This means that those asylum seekers receiving a

successful RSA outcome were spending an average of 113 days (more than 16 weeks)

in detention before their protection visa

grant.[45]

However, these average processing figures fail to convey the current reality

that many asylum seekers are spending much longer periods in detention on

Christmas Island awaiting the outcome of the RSA process or the conduct of

security checks (as discussed in section 9 below).

Over the coming year, higher refusal rates are likely to lead to further

increases in average RSA processing times, as more asylum seekers will go

through independent merits review after receiving a negative primary decision.

As of July 2010, it was taking an average of 75 days from the lodgement of a

request for independent merits review until the review

outcome.[46] This is in addition to

the time taken from arrival on Christmas Island to receiving a negative primary

decision.

The Commission acknowledges the pressures on DIAC decision-makers caused by

the increased number of RSA claims lodged over the past year, and the efforts

being made by DIAC officers to keep processing times as short as possible. The

Commission’s major concern with slower processing times is that they can

lead to people being held in immigration detention for longer periods, and that

the prolonged detention of asylum seekers can have serious detrimental impacts

on their mental health – particularly when their detention is combined

with the uncertainty of not knowing what the outcome of their refugee claim will

be.

7.3 Independent

merits review

In its 2009 report, the Commission welcomed the introduction of access to

independent merits review for asylum seekers who receive a negative primary

decision through the RSA process. However, the Commission expressed concerns

that this did not constitute a sufficient legal safeguard for those asylum

seekers, primarily due to the lack of transparent and enforceable procedures for

decision-making.[47]

Unlike an asylum seeker who arrives on the mainland, one who arrives in an

excised offshore place does not have access to independent merits review by the

Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal

(AAT).[48] Instead they have access

to an Independent Reviewer who will consider their refugee claim and make a

non-binding recommendation to the Minister as to whether the Minister should

exercise his or her discretion to permit the person to apply for a protection

visa.[49]

As of July 2010, there were 432 people going through independent merits

review under the RSA process. This included 245 people waiting for a review

hearing to be scheduled, 150 people with a hearing currently taking place or

scheduled to take place within the next month, and 37 people whose hearings had

been completed and who were awaiting the review

outcome.[50]

The higher number of RSA claims being lodged and increasing refusal rates at

the primary stage have led to a need for the independent merits review system to

be expanded. The Commission has been informed that, in order to meet increased

demands, additional Independent Reviewers have been appointed and a new office

has been established to provide administrative support. This is known as the

Refugee Status Review Office. It will operate and be physically separate from

DIAC, but the CEO will report to the DIAC Secretary on the operations of the

Office.

The Commission supports the fact that additional reviewers have been

appointed to assist in meeting increased demands. However, the Commission

remains concerned about the limited transparency surrounding the independent

merits review system. As discussed, the Commission would prefer to see the

excision regime repealed and the non-statutory RSA process abandoned. However,

if the Australian Government intends to retain the RSA process, the Commission

recommends that steps be taken to increase transparency surrounding the

independent merits review system.

This could include measures such as ensuring that recruitment and appointment

processes for Independent Reviewers are fully transparent; making the RSA manual

and the independent merits review guidelines publicly available; publishing

de-identified independent merits review decisions; and regularly publishing

statistics on the number of primary decisions affirmed and overturned by

Independent Reviewers.

While DIAC might provide much of this information to the Commission and other

oversight bodies on request, in the Commission’s view it is important that

it be accessible to the general public.

8 Suspension

of processing

One of the most concerning developments over the past year occurred on 9

April 2010, when the Australian Government announced that it was suspending the

processing of claims lodged by asylum seekers arriving on or after that date

from Sri Lanka and Afghanistan, for three and six months

respectively.[51]

The Commission expressed serious concerns about this decision when it was

announced.[52] In the

Commission’s view, the suspension policy undermined Australia’s

international human rights obligations, including obligations under the CRC, the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial

Discrimination.

The Commission welcomed the lifting of the Sri Lankan suspension on 6 July

2010.[53] When it was lifted, there were 184 Sri Lankans who had arrived by boat subject

to the suspension, including 19 accompanied children and two unaccompanied

minors. These people were held in immigration detention in the Construction Camp

facility on Christmas Island and in facilities in Leonora and

Darwin.[54]

The Commission encouraged the Australian Government to lift the remaining

suspension on Afghan asylum seekers as a matter of

urgency.[55] That suspension

remained in place until it was lifted on 30 September 2010. At that time, there

were 1210 Afghans who had arrived by boat subject to the suspension, including

25 accompanied children and 208 unaccompanied minors. These people were in

various immigration detention facilities on Christmas Island and the

mainland.[56]

The Commission’s greatest concern about the suspension policy was that

it resulted in the prolonged detention of a significant number of people,

including children. All Afghan and Sri Lankan asylum seekers who arrived by boat

and who were subject to the suspension were detained for its duration. For

Afghans who arrived in April 2010, this means they spent six months in detention

before processing of their claims even began. Once the suspension was lifted,

this would be followed by another three to six months or more in detention

awaiting their primary RSA decision, and in some cases the outcome of

independent merits review.

Many of those who were subject to the suspension are children, including

unaccompanied minors. Under the CRC they should only be detained as a measure of

last resort and for the shortest appropriate period of

time.[57] The suspension policy was

inconsistent with this obligation. In addition, the prolonged or indefinite

detention of asylum seekers subject to the suspension may have led to breaches

of Australia’s obligations under the ICCPR not to subject anyone to

arbitrary detention.[58]

The Commission is particularly concerned that the prolonged detention of

asylum seekers who were subject to the suspension may have significant impacts

on their mental health, especially in the case of unaccompanied minors, families

with children, and survivors of torture or trauma. The Commission’s

National Inquiry into Children in Immigration Detention found a clear link

between uncertainty experienced by asylum seekers in detention and deterioration

of their mental health.[59] It also

found that children in detention for long periods of time are at high risk of

serious mental harm.[60]

When the Commission visited Christmas Island in 2010, there were almost 700

people in detention subject to the suspension. One group of Afghan men spoke

about the psychological impacts of the suspension, saying that most of them

could not sleep. They felt it was unfair that they could be detained for a long

time, given they had committed no

crime.[61] A group of Afghan women

at the Construction Camp raised concerns about the impact on their children of

being detained throughout the suspension

period.[62]

The impacts of the suspension policy were also evident in terms of the

increased number of people being held in the detention facilities on the island,

contributing to overcrowding and a deterioration in conditions (as discussed in

section 17 below).

The Commission has encouraged the Department of Immigration and Citizenship

to move quickly to process the backlog of asylum claims caused by the

suspension.[63]

9 Length

of detention

Under the government’s New Directions policy, detention is to be used

for the shortest practicable

period.[64] The Commission welcomed this commitment, and encouraged the government to embed

it in legislation. Last year, the Commission welcomed the introduction of the

Migration Amendment (Immigration Detention Reform) Bill 2009. While the

Commission raised some concerns about the Bill and suggested amendments, it is

disappointed that the Bill was not enacted as it would have gone some way

towards implementing this aspect of the New Directions

policy.[65] As the Migration Act stands, there is no time limit on the period a person may

be detained.[66]

The Commission is concerned that more people are being held in detention on

Christmas Island for longer periods of time. When the Commission visited

Christmas Island in July 2009, there were 114 people who had been detained for

three months or more, 15 of whom had been detained for six months or

more.[67] During its 2010 visit,

this had increased to 656 people who had been detained for three months or more,

305 of whom had been detained for six months or more. Of those 305 people, 121

had been detained for nine months or

more.[68]

Importantly, while some people spend their whole period of detention on

Christmas Island, others spend an initial period there before being transferred

to a detention facility on the mainland. For these people, the time they are

detained on Christmas Island does not reflect their total period in

detention.

The causes of longer periods of detention include the increase in the number

of asylum seekers arriving by boat; slower processing of asylum applications;

increasing refusal rates at the primary stage leading to more asylum seekers

going through independent merits review; and the fact that a significant number

of Afghan and Sri Lankan asylum seekers were subject to the processing

suspension.

A further factor having a significant impact on people’s length of

detention is delays in obtaining security clearances. Under the New Directions

policy, an asylum seeker should only be held in a closed detention facility for

as long as it takes to conduct their health, identity and security checks. After

this, the presumption is that they will be permitted to reside in the community

unless a specific risk justifies their ongoing detention in a

facility.[69]

Last year the Commission raised doubts as to whether detainees on Christmas

Island were being released into the community once their checks had been

completed, and expressed the view that the shortage of community-based

accommodation on the island was likely to be a key factor in preventing this

from happening.[70] This year, the

use of Community Detention on Christmas Island has ceased, due to the lack of

accommodation. This means that if any asylum seekers have their health, identity

and security checks completed in advance of their RSA outcome, there is nowhere

on Christmas Island outside of the detention facilities to move them to.

However, it appears that there are few people whose security clearances are

completed in advance of their RSA outcome, undermining this aspect of the New

Directions policy. Some asylum seekers are being detained for prolonged periods

while they await their security clearances. Some of these people may have gone

through the RSA process and been recognised as a refugee, but they will not be

granted a protection visa until they receive their security clearance.

During its visit to Christmas Island, the Commission spoke with a significant

number of Sri Lankan detainees who had gone through the RSA process and were

awaiting security clearances. Some of them had been detained for almost one

year. They expressed considerable frustrations about their situation, in

particular the lack of information provided about progress with their individual

cases, the reasons for delay with the security clearances, and the potential

timeframes they would have to remain in

detention.[71] One group said they

could not bear the waiting and the uncertainty – according to one man,

“We should have died in Sri Lanka or in the

ocean.”[72]

The Commission acknowledges that DIAC is not responsible for the delays in

the conduct of security clearances; these checks are carried out by the

Australian Security Intelligence Organisation (ASIO). The increase in the number

of asylum seekers arriving by boat has led to an increase in the number of

security clearances to be conducted by ASIO, contributing to the delays.

The Commission also acknowledges that the time periods asylum seekers are

currently spending in detention are not as long as the periods for which some

people were detained in the past. However, there are currently significant

numbers of people who have been detained for around one year, and the situation

has the potential to deteriorate further.

The Commission emphasises the need for the Australian Government to take all

appropriate steps to ensure that asylum seekers are not detained for prolonged

periods. This should include taking all practicable steps to ensure that

security clearances are conducted as quickly as possible. It should also include

full implementation of the New Directions policy that asylum seekers will only

be held in detention while their health, identity and security checks are

conducted. In the Commission’s view, after this they should be granted

bridging visas to reside in the community on the mainland while their claims are

processed.[73]

Recommendation 3: If the Australian Government intends to continue

to use Christmas Island for immigration detention purposes, it should avoid the

prolonged detention of asylum seekers by:

  • Ensuring full implementation of the New Directions policy under which asylum

    seekers should only be held in closed detention facilities while their health,

    identity and security checks are conducted. After this, the presumption is that

    they will be permitted to reside in the community unless a specific risk

    justifies their ongoing detention in a facility.

  • Ensuring that security clearances are conducted as quickly as

    possible.

 

10 Potential

for indefinite or 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.[74] The government’s policy of mandatory detention of all irregular maritime

arrivals on Christmas Island is particularly concerning given that the Migration

Act does not require detention in excised offshore places – legally, it is

a matter of discretion.[75]

In its 2009 report, the Commission recommended that, if the Australian

Government intended to continue using Christmas Island for immigration detention

purposes, it should abolish the policy of mandatorily detaining all irregular

maritime arrivals.[76] The mandatory

detention policy is based on a blanket approach, rather than an assessment of

the need to detain in each person’s case. This is inconsistent with United

Nations High Commissioner for Refugees (UNHCR) guidelines, under which there

should be a presumption against the detention of asylum seekers – it

should be the exception rather than the norm. Detention should only be resorted

to if there is evidence to suggest that other alternatives will not be effective

in the individual

case.[77]

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

policy acknowledging that indefinite or otherwise arbitrary detention is not

acceptable, and committing to regular review of the length and conditions of

detention.[78] However, the

Commission expressed concern in its 2009 report that insufficient reforms had

been implemented to ensure that this value is realised in

practice.[79] These concerns were

reinforced during the Commission’s 2010 visit.

As discussed in section 8 above, the Commission is concerned that the

prolonged or indefinite detention of asylum seekers who were subject to the

suspension may have led to breaches of Australia’s obligations under the

ICCPR not to subject anyone to arbitrary

detention.[80] The mandatory

detention of children for a prolonged or indefinite period of time under the

suspension policy was also inconsistent with Australia’s obligations under

the CRC to avoid the arbitrary detention of children, and to only detain them as

a measure of last resort and for the shortest appropriate period of

time.[81]

The Commission was also concerned during its recent visit about the situation

of seven individuals who are facing an indefinite period in immigration

detention as a result of receiving adverse security assessments from

ASIO.[82] At the time, three of

these individuals had been detained on Christmas Island for five months. The

other four were parents with two young children – the mother and children

had been detained for five months, and the father for eleven months. The

Commission urges the Australian Government to ensure that durable solutions are

provided for these individuals, and they are removed from immigration detention

as soon as possible.

In addition, the Commission has concerns about the review mechanisms designed

to ensure that indefinite or otherwise arbitrary detention does not occur. The

New Directions introduced two new mechanisms: a three-monthly review by a senior

DIAC officer to certify that the further detention of the individual is

justified; and a six-monthly review by the Commonwealth Ombudsman to consider

the appropriateness of the person's ongoing detention and their detention

arrangements.[83] The Commission

welcomed these reforms in its 2009 report. However, the Commission expressed

concerns that these review processes would not be sufficient to ensure that

arbitrary detention did not occur, in particular because the DIAC reviews are

not conducted by an independent body, and the Ombudsman is not able to enforce

his assessments.[84]

In the intervening period, community representatives have raised concerns

with the Commission about the lack of transparency surrounding these review

processes. The Commission has also been informed by DIAC that there are

currently significant delays in undertaking these review processes for people

detained on Christmas Island. The Commission is concerned that this may lead to

some people being held in detention on Christmas Island for more than six months

before an independent body considers the appropriateness of their detention

arrangements.

The Commission encourages the Australian Government to ensure that adequate

resources are allocated to allow for the three and six month review processes to

be conducted on time for each person detained on Christmas Island. The reviews

should include consideration of any appropriate alternatives to the

individual’s ongoing detention in a facility on Christmas Island.

The Commission also encourages the Australian Government to increase

transparency surrounding these detention reviews. This could be done by

implementing the recommendations made by the Joint Standing Committee on

Migration, including that DIAC should publish details of the three month review

process and provide the review to the individual in detention; and that the

Ombudsman’s six month reports should be tabled in Parliament and the

Minister required to

respond.[85]

Finally, the Commission reiterates its long-held view that 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.[86] Further, the

Migration Act purports to bar offshore entry persons from taking legal

proceedings relating to the lawfulness of their

detention.[87]

In response to the Commission’s 2009 report, DIAC stated that the

matter of judicial review was being considered in the context of the

government’s response to the recommendations made by the Joint Standing

Committee on Migration in its Inquiry into Immigration Detention in

Australia.[88] This response has not

yet been released.

Recommendation 4: 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.[89]

 

11 Under-utilisation

of the Community Detention system

When the Commission visited Christmas Island in July 2009, there were 44

people in Community Detention on the island. The Commission raised concerns that

the shortage of community-based accommodation appeared to be preventing the

release of some detainees from detention facilities into Community Detention. At

the time, DIAC had capacity to place up to 60 people in Community Detention on

the island, and steps were being taken to increase that capacity. However, given

the small size of the community and the number of people in detention, the

Commission raised doubts about the feasibility of securing an adequate level of

community-based accommodation.[90]

During its 2010 visit, there were only three people in Community Detention on

Christmas Island.[91] Shortly after

the Commission’s visit, the use of Community Detention ceased because of a

lack of available accommodation. The Commission has significant concerns about

this development. The Commission acknowledges that DIAC is working within

considerable constraints in terms of the accommodation available on Christmas

Island, and that there are significant needs for staff accommodation. However,

in the Commission’s view, the fact that there is not enough accommodation

to allow for use of Community Detention on Christmas Island reinforces the

conclusion that the island is not an appropriate place to detain people.

The Commission also has significant concerns that the Community Detention

system is barely being used on the mainland. While the Commission has welcomed

the transfer of some detainees from Christmas Island to the mainland, the

Commission regrets that the vast majority of these people have been transferred

to immigration detention facilities rather than placed in Community Detention.

At the time of writing, there were 1950 irregular maritime arrivals in detention

on the mainland, including 439 minors. Only seven of these people were in

Community Detention.[92]

The Community Detention system was established to ensure that people,

particularly vulnerable groups, would not be held in immigration detention

facilities for prolonged periods. Under the Residence Determination Guidelines,

priority for Community Detention is to be given to children and accompanying

family members; persons who may have experienced torture or trauma; persons with

significant physical or mental health problems; cases which will take a

considerable period to substantively resolve; and other cases with unique or

exceptional characteristics. Priority cases are to be assessed and referred to

the Minister ‘as soon as

practicable’.[93] Other cases may be referred where DIAC considers it appropriate to do

so.[94]

The Commission is concerned that these Guidelines are not being implemented

on Christmas Island or the mainland. Many of the people currently in immigration

detention facilities would appear to fit into the groups that are intended to be

prioritised for Community Detention. For example, this is the case for families

with children and unaccompanied minors (as discussed in section 13 below), and

survivors of torture or trauma (as discussed in section 19 below).

The Commission welcomes efforts by DIAC to ensure that some of these

vulnerable groups are located in low security detention facilities or

‘alternative places of detention’, rather than high security

immigration detention centres. However, it is important to note that being

detained in an ‘alternative place of detention’ (also referred to as

‘alternative temporary detention in the community’), is not the same

as being in Community Detention under a Residence Determination.

People in ‘alternative places of detention’ are usually in a

designated detention facility, camp or motel-type accommodation. They remain

under physical supervision and are not free to come and go. People in Community

Detention, on the other hand, are permitted to live at a specified residence in

the community – usually a house or apartment. They remain in immigration

detention in a legal sense and they must meet certain conditions, which usually

include reporting to DIAC on a regular basis, sleeping at their stipulated

residence every night, and refraining from engaging in paid work or a formal

course of study. However, they are not under physical supervision and they have

a much greater degree of privacy and autonomy.

DIAC has informed the Commission that one of the reasons for the current

under-utilisation of the Community Detention system is that most irregular

maritime arrivals in immigration detention facilities do not yet have their

security clearances. However, the Commission notes that, legally, a person in

Community Detention remains in immigration

detention.[95] The Community

Detention system allows for the imposition of a range of conditions which can be

used to mitigate particular risks that might be posed by an individual. This is

specifically acknowledged in the Residence Determination

Guidelines.[96]

The Commission encourages the Australian Government to make full use of the

Community Detention system for people detained on Christmas Island. While the

lack of accommodation on the island has limited the availability of Community

Detention there, those restrictions do not apply on the mainland. All eligible

detainees should be referred for a Residence Determination on the mainland.

The Commission also encourages further consideration of the proposal included

in the Migration Amendment (Immigration Detention Reform) Bill 2009, which would

have enabled the Minister to delegate to senior DIAC officers the

Minister’s power to issue Residence

Determinations.[97] In the

Commission’s view, allowing the Minister to delegate this power may assist

by reducing the burden on the Minister to personally consider individual cases,

and by speeding up decision-making so that people are not unduly held in

immigration detention facilities while awaiting a decision on a Residence

Determination.

Recommendation 5: The Australian Government should make full use of

the Community Detention system for people detained on Christmas Island. All

eligible detainees should be referred for a Residence Determination on the

mainland. This should be an immediate priority for vulnerable groups including

families with children, unaccompanied minors, survivors of torture or trauma,

and people with health or mental health concerns.

 

PART

C: Children in detention on Christmas Island

In its 2009 report, the Commission expressed significant concerns about the

detention of unaccompanied minors and families with children on Christmas

Island. The Commission expressed the view that Christmas Island is not an

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

children.[98]

During the Commission’s 2010 visit, there were 247 minors in detention

on Christmas Island – 246 in the Construction Camp immigration detention

facility and one in Community

Detention.[99] Around half of these

minors were 16 or 17 years old, but there were a significant number of younger

children including 45 between the ages of zero and five

years.[100]

The Commission acknowledges the efforts being made by DIAC and Serco staff,

in challenging circumstances, to mitigate the impacts of immigration detention

on children. However, the Commission continues to have significant concerns

about the detention of families with children and unaccompanied minors on

Christmas Island. The Commission’s key concerns include the following:

  • Children continue to be subjected to mandatory detention on Christmas

    Island, despite the fact that this is not required by the Migration Act and is

    inconsistent with Australia’s obligations under the CRC.

  • Families with children and unaccompanied minors are detained in a closed

    immigration detention facility – the Construction Camp. Community

    Detention is no longer available on Christmas Island. Further, in the vast

    majority of cases where families with children or unaccompanied minors are

    transferred to the mainland, they are placed in detention facilities rather than

    Community Detention.

  • The Construction Camp is not an appropriate environment for families with

    children or unaccompanied minors. There has been a substantial increase in the

    number of people detained in the Construction Camp, significantly reducing the

    level of amenity.

  • There continues to be a lack of clarity surrounding responsibilities and

    procedures relating to child welfare and protection for children in immigration

    detention on Christmas Island.

  • There continues to be a conflict of interest in 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.

These concerns are outlined further below.

12 Mandatory detention

of children on Christmas Island

The Commission is concerned that families with children and unaccompanied

minors continue to be subjected to mandatory detention on Christmas Island. The

Commission has long opposed the mandatory detention of children because it leads

to fundamental breaches of their human rights.

In 2004, the Commission released A last resort?, the report of the

National Inquiry into Children in Immigration Detention. During the period of

the Inquiry, large numbers of children were detained for lengthy periods in

Australia’s high security immigration detention

centres.[101]

The Inquiry found that Australia’s immigration detention system was

fundamentally inconsistent with the CRC. In particular, the system failed to

ensure that:

  • detention of children is a measure of last resort, for the shortest

    appropriate period of time and subject to effective independent review

  • the best interests of the child are a primary consideration in all actions

    concerning children

  • children are treated with humanity and respect for their inherent

    dignity

  • children seeking asylum receive appropriate assistance to enjoy, to the

    maximum extent possible, their right to development and their right to live in

    an environment which fosters the health, self-respect and dignity of children in

    order to ensure recovery from past torture and

    trauma.[102]

The

Inquiry also found that children in immigration detention for long periods of

time are at high risk of serious mental

harm.[103]

Since the release of A last resort?, the Commission has welcomed

positive changes including that children are no longer detained in high security

immigration detention centres, and the average length of detention for children

has decreased. However, children are still subjected to mandatory detention.

In 2005 the Migration Act was amended to insert section 4AA, affirming

‘as a principle’ that a minor should only be detained as a measure

of last resort.[104] The

Commission welcomed this development. However, as discussed in the

Commission’s 2009 report, section 4AA is not being implemented on

Christmas Island.[105] The

government’s policy is that all irregular maritime arrivals, including

families with children and unaccompanied minors, are mandatorily detained on

Christmas Island. This is despite the fact that the Migration Act does not

require the mandatory detention of unauthorised arrivals in excised offshore

places.[106]

In its 2009 report, the Commission observed that this mandatory detention

policy is inconsistent with Australia’s obligations under the CRC to only

detain a child as a measure of last resort, and recommended that the policy be

abolished.[107] 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.[108]

The Commission has also long been concerned that Australia’s

immigration detention system breaches the CRC by failing to provide for child

detainees to challenge their detention in a court or another independent

authority.[109]

The Commission continues to advocate for changes to the Migration Act to

ensure that children are only detained if it truly is a measure of last resort;

and that if they are detained, it is for the shortest appropriate period of time

and subject to independent and judicial review

mechanisms.[110] In this regard,

the Commission welcomed the introduction of the Migration Amendment (Immigration

Detention Reform) Bill 2009. However, it expressed concerns that the Bill did

not include sufficient measures to ensure those protections would be in place

for children.[111]

The Commission’s concerns have increased over the past year as the

number of unaccompanied minors and families with children in detention has

increased substantially – at the time of writing, there were 217 minors in

detention on Christmas Island and 439 minors in detention on the

mainland.[112]

The Commission urges the Australian Government to address this issue as a

matter of the highest priority.

Recommendation 6: The Australian Government should implement the

outstanding recommendations of the report of the National Inquiry into Children

in Immigration Detention, A last

resort?.[113] These include

that Australia’s immigration detention laws should be amended, as a matter

of urgency, to comply with the Convention on the Rights of the Child. In

particular, the new laws should incorporate the following minimum

features:

  • There should be a presumption against the detention of children for

    immigration purposes.

  • A court or independent tribunal should assess whether there is a need to

    detain children for immigration purposes within 72 hours of any initial

    detention (for example, for the purposes of health, identity or security

    checks).

  • There should be prompt and periodic review by a court of the legality of

    continuing detention of children for immigration purposes.

  • All courts and independent tribunals should be guided by the following

    principles:

    • detention of children must be a measure of last resort and for the

      shortest appropriate period of time

    • the best interests of children must be a primary consideration
    • the preservation of family unity
    • special protection and assistance for unaccompanied

      children.

 

13 Detention placement

for children on Christmas Island

The Commission is concerned that unaccompanied minors and families with

children are detained in a closed immigration detention facility on Christmas

Island (the Construction Camp), rather than being placed in Community

Detention.

13.1 Placement of

children in the Construction Camp facility

As noted above, the Commission has welcomed positive changes since the

release of A last resort?. In particular, the Commission welcomed the

inclusion in the government’s New Directions policy of a key value stating

that ‘[c]hildren, including juvenile foreign fishers and, where possible,

their families, will not be detained in an immigration detention

centre’.[114]

However, while children are no longer held in high security immigration

detention centres, they are still detained in lower security detention

facilities. On Christmas Island, they are detained in the Construction Camp

immigration detention facility.

In its 2009 report, the Commission expressed the view that the Construction

Camp is not an appropriate environment for

children.[115] While DIAC

categorises the Construction Camp as ‘alternative temporary detention in

the community’, the Commission reiterates its view that this is

misleading.[116] The Construction Camp is a low security facility – it is surrounded by a

residential style fence and does not have alarms, CCTV surveillance or other

intrusive security measures. The Commission welcomes this. However, it remains a

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

In order to meet its obligations under the CRC, the government should

consider any less restrictive alternatives before deciding to detain a child in

a closed facility such as the Construction Camp. This should include Community

Detention, as discussed below.

In response to the Commission’s 2009 report, DIAC noted efforts that

were underway to introduce reforms relating to the decision of where and how to

detain a child if that child was to be taken into immigration detention. In

particular, these included the Migration Amendment (Immigration Detention

Reform) Bill 2009 and a draft Ministerial Direction on the detention of

minors.[117] The Commission

welcomed these efforts and is disappointed that they have not progressed.

In particular, the Bill would have amended the Migration Act to require that

if a minor is detained, the minor must not be detained in an immigration

detention centre; and that if a minor is detained, the best interests of the

child must be a primary consideration in deciding where that child is

accommodated. While the Commission expressed concern that the Bill did not go

further in embedding protections for children and recommended a range of

amendments, the Commission is disappointed that even these modest reforms were

not adopted.[118]

13.2 Under-utilisation

of the Community Detention system

One of the most positive changes after the release of A last resort? was the introduction in 2005 of the Residence Determination power, under which

the Minister can permit an immigration detainee to be placed in Community

Detention.[119]

In its 2009 report, the Commission expressed concerns that some families with

children and unaccompanied minors were detained in the Construction Camp

facility on Christmas Island, rather than being placed in Community Detention.

The Commission recommended that if the government intended to continue the

practice of holding children in detention on Christmas Island, they should be

placed with their family members in community-based

accommodation.[120]

DIAC’s response to this recommendation stated that:

The priority is that minors and, where relevant their families, are promptly

accommodated in the Christmas Island community under residential determinations

once the appropriate checks, accommodation and supervision are in

place.[121]

The Commission is concerned that Community Detention is no longer available

on Christmas Island. During its 2010 visit, there were only three people in

Community Detention; at the same time there were 418 people detained in the

Construction Camp, including 94 accompanied children and 152 unaccompanied

minors.[122] Shortly after the

Commission’s visit, the use of Community Detention on Christmas Island

ceased because of a lack of available accommodation. While the Commission

acknowledges that DIAC is working within considerable constraints in terms of

the accommodation available on Christmas Island, the Commission has significant

concerns about this development, as discussed in section 11 above.

Further, while the Commission has welcomed the transfer of some families with

children and unaccompanied minors from Christmas Island to the mainland, the

Commission regrets that the vast majority have been transferred to immigration

detention facilities rather than being placed in Community

Detention.[123]

As noted in section 11, the Community Detention system was established in

order to ensure that people, particularly vulnerable groups, would not be held

in immigration detention facilities for prolonged periods. Under the Residence

Determination Guidelines, priority is to be given to groups including children

and their accompanying family members, and all minors are to be identified for a

Residence Determination ‘as soon as they are

detained’.[124] The

Commission is concerned that these guidelines are not being implemented on

Christmas Island or the mainland.

If children are to be detained, they should be placed in Community Detention

with their family members or with a suitable carer if they are unaccompanied.

While the lack of accommodation on Christmas Island has limited the availability

of Community Detention there, those restrictions do not apply on the mainland.

The Commission urges the Australian Government to implement the

recommendation in section 11 of this report to make full use of the Community

Detention system for people detained on Christmas Island. All eligible detainees

should be referred for a Residence Determination on the mainland. This should be

an immediate priority for vulnerable groups including families with children and

unaccompanied minors.

14 Conditions and

services for children in the Construction Camp

Adults can tolerate. Children don’t understand. It is hard

for them.” (Afghan parent, Construction Camp immigration detention

facility)

 

Construction Camp immigration detention facility

As noted above, the Commission has previously stated that the Construction

Camp immigration detention facility is not an appropriate environment for

children. The Commission remains of this view after its 2010 visit.

The Commission acknowledges that DIAC is working within considerable

infrastructure constraints, and that significant efforts are being made by staff

to provide appropriate conditions for families and unaccompanied minors.

However, the Commission’s concerns about conditions in the Construction

Camp have been exacerbated this year because of the significant increase in the

number of people detained there. The Commission’s key concerns include the

lack of open and grassy spaces inside the Construction Camp, the lack of indoor

recreation space, the overcrowding, and the impacts this is having on families

with young children. These issues are discussed in further detail in section 17

below.

This section provides a brief overview of access to appropriate education,

recreational activities and food for children detained in the Construction Camp.

14.1 Access to

education

Under international human rights standards, all children have a right to

education.[125] This right should

be recognised for all children in immigration detention. Children of compulsory

school age should be provided with access to education of a standard equivalent

to that in Australian schools. Children older than the compulsory school age

should also be provided with opportunities to continue their education. Wherever

possible, the education of children in detention should take place outside the

detention facility, in the general school

system.[126]

During its visit to Christmas Island, the Commission was pleased to observe

that positive efforts are being made to provide many school-aged children with

access to appropriate education. The Commission was informed that children

detained in the Construction Camp who are aged 15 years or under attend the

Christmas Island District High School on a daily basis. The Commission heard

positive feedback from parents in detention about their children’s

attendance and participation in classes at the local school. The Commission also

visited the school and was pleased to observe asylum seeker children fully

engaged in learning activities. Staff from the local school spoke highly of the

support provided by DIAC. The Commission is also pleased that under a new

initiative, some young adults detained in the Construction Camp are able to

volunteer at the school as teacher’s aides.

Generally, 16 and 17 year olds (mostly unaccompanied minors) do not attend

the local school. Instead, they attend classes in two demountable classrooms at

Phosphate Hill. The Commission welcomes the efforts that have been made to

establish these arrangements, but is concerned that not all older minors are

provided with access to classes. At the time of the Commission’s visit,

there were 114 minors on a waiting

list.[127] Since then, the

Commission has been informed by DIAC that two classes will be held in the

morning and two in the afternoon. Each class will have capacity for 18 students,

meaning that 72 minors will have the opportunity to attend one three hour class

each weekday. However, at times, this will still be insufficient to provide

access to classes for all older minors – for example, when the Commission

visited, there were 152 unaccompanied minors in

detention.[128]

The Commission urges DIAC to take appropriate steps to ensure that all minors

are provided with access either to the local school, or to educational classes

in the classrooms at Phosphate Hill. If this cannot be arranged due to capacity

constraints on Christmas Island, minors should be transferred to a location on

the mainland where they can be provided with access to education.

14.2 Recreational

activities and toys

Recreational and educational opportunities are particularly important for

children in immigration detention. 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.[129] UNHCR guidelines

state that if a child is detained, provision should be made for their recreation

and play, which is essential to a child’s mental development and will

alleviate stress and

trauma.[130]

As discussed further in section 22 below, the Commission is concerned about

the lack of appropriate recreational facilities inside the Construction Camp.

The Commission welcomes the extension of the fence line to incorporate an

existing basketball court into the facility, and the fact that detainees are

permitted to visit the oval and playground next to the Construction Camp each

weekday afternoon (under the supervision of Serco officers). However, the

Commission remains concerned that there is no open grassy area inside the

Construction Camp, and that there are very few indoor recreation spaces. The

Commission heard that this is of particular concern when it rains, as there are

very limited spaces for children to play.

Picture drawn by child detained in the Construction Camp immigration detention facility

 

Recreational activities for children detained in the Construction Camp are

conducted by the Australian League of Immigration Volunteers (ALIV). ALIV is

contracted by Serco, and staffed by volunteers. The Commission was pleased to

observe some ALIV volunteers running activities with children in the

Construction Camp, and heard positive feedback from some parents about the

activities provided.

The Commission was also pleased to hear about a new development under which

young children were being provided with the opportunity to attend a kindergarten

session three times a week. This was providing them with a valuable opportunity

to leave the detention environment and to engage in creative play. The

Commission is disappointed that this has since been discontinued.

The Commission had significant concerns about the lack of toys, games or

other materials for children’s independent play inside the Construction

Camp. This was a particular concern given the high number of children detained

there – at the time, there were 246 minors in the

facility.[131] This included 45

children aged five years or younger, 27 children aged between six and ten years,

and 49 children aged between 11 and 15

years.[132] Having materials

available for children to play with is especially important for young children

who are not old enough to attend school and who therefore spend the vast

majority of their time confined within the Construction Camp.

During its visit the Commission was provided with a list of toys ordered by

Serco in late June. The Commission encourages DIAC and Serco to continue to take

appropriate steps to ensure that all children detained in the Construction Camp

are provided with opportunities to engage in play and recreational activities

appropriate to their age.

14.3 Food

Under international human rights standards, appropriate meals should be

provided for babies and infants in immigration

detention.[133]

During its visit to Christmas Island, some concerns were raised with the

Commission about the suitability of the food provided at the Construction Camp

for small children. In particular, some parents raised concerns about access to

food appropriate for children aged between one and five years.

During the visit, the Commission attended a ‘Client Consultative

Committee’ meeting at the Construction Camp. The meeting was held in

response to reports from female detainees that the food was unpalatable, that

young children were failing to put on weight, and that there had been weight

loss among some adult detainees. Some detainees raised concerns about the

frequency with which they were served rice, and the lack of fresh produce such

as tomato, cucumber, lettuce and eggs.

Serco kitchen staff indicated that they would make efforts to amend the menu

in response to these concerns. However, they advised detainees that Christmas

Island’s remote location means that all food has to be ordered three

months in advance and shipped to the island, which significantly limits the

range and amount of fresh produce available.

15 Child welfare and

protection responsibilities

Under international human rights standards, Australia is obliged to take

‘all appropriate legislative, administrative, social and educational

measures’ to ensure that children are protected from all types of

violence, abuse or neglect caused by a child’s parent or any other person

who is caring for the child.[134] In the detention environment this means that DIAC and Serco must take positive

steps to ensure that children are protected from physical or mental violence,

abuse or neglect in detention, irrespective of its

source.[135]

For many years, the Commission has 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.[136] In its 2009

report, the Commission noted that those concerns are further exacerbated on

Christmas Island because of the lack of clarity regarding which laws apply and

which state and federal bodies have responsibilities for children detained on

the island.[137]

The Commission recommended that, with regard to the welfare and protection of

children in immigration detention on Christmas Island, the Australian Government

should 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; clearly communicate

these roles and responsibilities to all relevant authorities; and ensure that

there are clear policies and procedures in place regarding child welfare and

protection concerns that may

arise.[138]

In response, DIAC noted the complexity of the legal framework in force on

Christmas Island, and accepted the need to clarify the respective roles and

responsibilities of DIAC, other Commonwealth agencies and state child welfare

authorities.[139]

DIAC has since provided the Commission with further written advice, which

confirms that the operation of laws relating to the welfare and protection of

children in immigration detention on Christmas Island is complex. DIAC has legal

responsibilities for children in immigration detention on Christmas Island as

the detaining authority under the Migration Act. At the same time, the

Commonwealth Minister for Home Affairs retains powers with respect to child

protection on Christmas Island under the Children and Community Services Act

2004 (WA). Further, while the Commissioner for Children and Young People

Act 2006 (WA) applies to Christmas Island, the WA Commissioner for Children

and Young People currently does not have jurisdiction over children on Christmas

Island. The Commissioner’s powers in this regard are vested in the

Commonwealth Minister for Home Affairs.

DIAC policy requires that if staff have concerns or suspicions about the

potential abuse or neglect of a child in immigration detention, they should be

immediately referred to the relevant state child welfare

agency.[140] In the case of

children detained on Christmas Island, DIAC has stated that the relevant agency

is the WA Department for Child

Protection.[141] However, the WA

Department for Child Protection has no legal powers or responsibilities

regarding children in detention on Christmas Island because those powers have

not been delegated to the WA State Government by the Commonwealth Minister for

Home Affairs.

The WA Department for Child Protection does provide some services to the

Christmas Island Administration under a Service Delivery Arrangement between the

Commonwealth and the WA State Government. However, DIAC does not have a formal

arrangement with the WA Department for Child Protection in respect of children

in immigration detention on the island.

The Commission understands that informal assistance has been provided by the

WA Department for Child Protection on two occasions where concerns were raised

about a child in detention on Christmas Island. The Commission welcomes this.

However, the Commission remains seriously concerned about the lack of clarity

surrounding legal responsibilities for children in detention on Christmas Island

and the fact that formal arrangements are not in place to ensure that their

welfare and protection needs are overseen by a child welfare agency.

The Commission also remains concerned that there are not clear policies and

procedures in place for DIAC and Serco staff regarding concerns that may arise

in respect of the welfare or protection of children in detention on Christmas

Island.

During its visit, the Commission was provided with a draft Serco policy

outlining procedures to ensure that Serco staff understand the rights, needs and

entitlements of children in detention. This document sets out an approach to

child protection

issues.[142] The Commission welcomes efforts that have gone into preparing the policy, but is

concerned that it remains in draft form more than nine months after Serco took

over operation of the detention facilities on Christmas Island.

DIAC has informed the Commission that a policy document regarding child

protection and guardianship on Christmas Island is currently being developed.

The Commission welcomes this, but is concerned that this has not been completed

after more than 12 months of consistently detaining significant numbers of

children on the island.

Recommendation 7: 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 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 immigration detention on Christmas Island

  • clearly communicate these roles and responsibilities to all relevant state

    and federal authorities

  • finalise and implement clear policies and procedures 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.

 

16 Unaccompanied minors

in detention

16.1 Care and support

for unaccompanied minors

Australia’s obligations under the CRC to only detain children as a

measure of last resort and for the shortest appropriate period of time apply to

unaccompanied minors.[143] UNHCR

guidelines also provide that unaccompanied minors should not be detained,

particularly in isolated

areas.[144] In addition, because

of their particular vulnerability, the CRC requires that the government provide

unaccompanied minors with special protection and

assistance.[145]

During the Commission’s visit to Christmas Island there were 152

unaccompanied minors detained in the Construction Camp, the majority of whom

were 16 or 17 years old.[146] This

was a significant increase from the Commission’s July 2009 visit, when

there were 54 unaccompanied minors detained on the island – 18 in

Community Detention and 36 in the Construction Camp.

The Commission is concerned about the high number of unaccompanied minors

detained on Christmas Island, and that they are all in a closed detention

facility rather than Community Detention. Unaccompanied minors in the

Construction Camp do not have dedicated carers. They are supervised by Serco

detention officers. Serco’s draft policy regarding minors states that all

minors will be allocated a Personal Officer whose role is to oversee a

minor’s Individual Management

Plan.[147] It also states that

there will be at least one staff member with child welfare qualifications onsite

at each detention facility where minors are

accommodated.[148] While the

Commission welcomes these measures, it is concerned that the draft policy is yet

to be finalised and fully implemented on Christmas Island.

One DIAC Case Manager has responsibility for unaccompanied minors detained in

the Construction Camp. The Case Manager’s role includes providing basic

information on arrival about the processes the minors will go through while

their asylum claims are assessed; facilitating access to services (such as

medical appointments) if requested; and providing minors with updates on

progress with their cases if requested.

As unaccompanied minors go through various interviews, an Independent

Observer is generally present at the interviews as a support person. DIAC

contracts the organisation Life Without Barriers (LWB) to provide Independent

Observers on Christmas Island. Their role is to provide ‘physical and

moral support and care’ to unaccompanied minors during

interviews.[149] They can

interject and recommend a break if they feel that the minor is distressed or

uncomfortable.

The Commission welcomes the roles played by the DIAC Case Manager and the

Independent Observers. However, the Commission is concerned that there remains

insufficient support provided to unaccompanied minors in detention.

The Commission is concerned about the limited capacity of the Case Manager

and the Independent Observers to meet the needs of such a high number of

unaccompanied minors. At the time of the Commission’s visit there was one

Case Manager and there were two Independent Observers for 152 unaccompanied

minors.[150]

The Commission is also concerned that Independent Observers are not required

to be present during an unaccompanied minor’s RSA interview. The

Commission understands that the minor’s IAAAS agent is considered to be

the independent person during that interview. However, in the Commission’s

view, an Independent Observer should also be present, given the significance of

the interview in determining the minor’s refugee claim and the fact that

the IAAAS agent’s role is to concentrate on the particulars of the case

rather than the minor’s immediate welfare. Some unaccompanied minors told

the Commission they felt scared or intimidated during their RSA

interview.[151]

There was also confusion among some unaccompanied minors about the roles and

responsibilities of the Independent Observers and the Case Manager. Some

unaccompanied minors thought the Independent Observers were their legal

guardians and did not understand why they had not seen them since the day they

arrived. Others did not appear to understand the role of the Case

Manager.[152] Clearer information

should be provided to ensure that unaccompanied minors understand these roles

and know who is responsible for which aspects of their care.

While the Commission welcomes the role played by the Independent Observers,

it is a limited role. They are there to observe interviews to ensure that the

minor is treated appropriately. They are not there to advocate or care for

unaccompanied minors in detention more generally and are not permitted to

provide advice or information to minors about the processes they go through

during assessment of their refugee claims. In the Commission’s view, this

is a gap that needs to be filled. The Commission has long advocated for

unaccompanied minors to be provided with an independent guardian and support

person, as discussed below.

16.2 Guardianship of

unaccompanied minors

The CRC requires Australia to ensure ‘alternative care’ for

unaccompanied minors.[153] Effective guardianship is an important element of the care that unaccompanied

minors need. The CRC also requires that the best interests of the child be the

‘basic concern’ of the child’s legal

guardian.[154] 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.

In Australia, the Minister for Immigration is the legal guardian of all

unaccompanied minors seeking

asylum.[155] The Minister can

delegate those powers to DIAC

officers.[156] The Commission has

for many years raised concerns about these

arrangements.[157] In the

Commission’s view, they create a fundamental conflict of interest. It is

not possible for the Minister or a DIAC officer to ensure that the best

interests of an unaccompanied minor are their primary consideration when they

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

visa decision-maker.

The Commission has repeatedly recommended that an independent guardian should

be appointed for unaccompanied minors in immigration

detention.[158] This would be in

line with UNHCR

Guidelines.[159]

The Commission’s 2009 report noted that the lack of an independent

legal guardian is particularly concerning on Christmas Island given the number

of unaccompanied minors in detention, the limited access they have to external

scrutiny and advocacy bodies, and the shortage of accommodation options other

than closed detention facilities. The Commission encouraged urgent action on

this issue.[160]

In response to the Commission’s report, DIAC acknowledged the

‘perceived conflict of interest’ between the Minister’s role

as guardian and being the decision-maker under the Migration Act, and reported

that policy work was being progressed to improve the regime governing

guardianship.[161] The Commission

is aware that, since then, policy work regarding unaccompanied minors in the

community has progressed. However, the Commission is disappointed that little

progress has been made in terms of guardianship of unaccompanied minors in

detention.

The Commission urges the Australian Government to address this issue as a

matter of priority.

Recommendation 8: 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.

 

PART

D: Conditions and services in detention

At the time of the Commission’s 2010 visit

to Christmas Island, there were 2421 people in the immigration detention

facilities on the island.[162]

The Commission was pleased to observe that significant efforts were being

made by DIAC and detention service provider staff to provide conditions,

services and activities of an acceptable standard. The Commission also

acknowledges that staff are working in very challenging circumstances on

Christmas Island.

As in 2009, the Commission found during this visit that DIAC was making

significant efforts to manage the immigration detention operations on Christmas

Island in a positive way, particularly given the considerable constraints they

are working within.

However, the Commission continues to be of the view that many of those

constraints are imposed by the Australian Government’s decision to detain

people in a location as small and remote as Christmas Island. The immigration

detention facilities on the island are not appropriate for detaining asylum

seekers, and the remote location and small size of the local community mean that

people in detention have limited access to appropriate services and support

networks. The Commission maintains the view that those constraints make

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

detention.

During its visit, the Commission had some significant concerns about the

conditions for people in immigration detention on Christmas Island. The

Commission’s key concerns include the following:

  • Ongoing concerns about the infrastructure and environment in the detention

    facilities on the island – in particular the prison-like nature of the

    Christmas Island IDC, the limited amenities at the Phosphate Hill facility, and

    the inappropriateness of the Construction Camp as a place for accommodating

    families with children and unaccompanied minors.

  • The substantial increase in the number of people being held in the detention

    facilities has led to overcrowding and a significant deterioration in living

    conditions for many people, particularly those accommodated in tents and

    dormitory rooms.

  • The substantial increase in detainees has placed further strain on their

    access to facilities and services including communication facilities, health and

    mental health care, recreational facilities and educational activities.

  • Most people in detention expressed positive views about their treatment by

    most DIAC and Serco staff. However, a small number were concerned about specific

    instances where they felt they had been treated in a degrading or racially

    discriminatory way; and many expressed concerns about being referred to by their

    identification number rather than their name.

  • While some people in detention expressed positive views about aspects of

    their conditions, others expressed frustrations about a range of issues

    including limited access to facilities such as telephones, delays in accessing

    medical care, limited opportunities to leave the detention environment, and a

    lack of regular provision of information about progress with their asylum claims

    and security clearances.

The following sections outline the

Commission’s concerns in greater detail. Where appropriate,

recommendations are made for improving conditions for people detained on

Christmas Island. This should not be construed as an endorsement of holding

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

the Australian Government intends to continue this practice, conditions should

comply with internationally accepted human rights standards.

17 Detention

infrastructure and environment

Under international standards, authorities should seek to minimise

differences between life in detention and life at liberty in the design and

delivery of detention services and

facilities.[163]

The Commission has previously raised concerns that the immigration detention

facilities on Christmas Island are not appropriate for asylum seekers,

particularly families with children and people with a background of torture or

trauma. The Commission acknowledges that DIAC is working within considerable

infrastructure constraints on Christmas Island. However, in the

Commission’s view, the fact that suitable infrastructure is not available

on Christmas Island is one reason why people should not be detained on the

island.

The Commission’s concerns about the detention infrastructure on

Christmas Island have been exacerbated this year, as the substantial increase in

the number of detainees has led to overcrowding and a significant deterioration

in the conditions of detention for many people. The Commission’s key

concerns about each detention facility are outlined below.

17.1 Christmas

Island IDC

Although you say it is a detention camp, it is like a jail. I

have not committed a crime and still we are confined to a jail.” (Man

in Lilac Compound, 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 area. The IDC is

used to detain adult males. When the Commission visited, there were 1834 men in

the IDC.[164]

Entrance, Christmas Island IDC

External fence, Christmas Island IDC

(a) Detention

infrastructure

It is like a prison for me.” (Man in Gold Compound,

Christmas Island IDC)

 

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

about the prison-like nature of the Christmas Island IDC and recommended that it

should not be used for accommodating asylum

seekers.[165] After its 2009

visit, the Commission reiterated this view. The Commission expressed particular

concerns about the excessive security measures including high wire fences,

walkways enclosed in cage-like structures, CCTV surveillance, metal reinforced

officer booths with perspex security screens, and metal grills on

detainees’ bedroom

windows.[166]

The Commission recommended that, if the Australian Government intended to

continue to use the Christmas Island IDC, it should take steps to modify the

security measures to make it a more appropriate environment for asylum seekers.

This should include implementation of the Joint Standing Committee on

Migration’s recommendation that all caged walkways, perspex barriers and

electrified fencing should be removed and replaced with more appropriate

infrastructure.[167]

In response, DIAC stated that it was ‘considering options for softening

the appearance of the IDC, including removal of a number of internal fences and

caged walkways and that this would occur ‘where it is possible to do so at

an acceptable cost’.[168] During the Commission’s 2010 visit, there had been no apparent progress

made in this regard. DIAC acknowledged that the IDC could be softened and made

more appropriate. However, funding constraints and competing priorities appear

to be preventing further action from being taken.

The Commission was pleased to note the following during its 2010 visit:

  • The IDC is still being operated in a relatively open way – the

    accommodation compounds are opened during the day (with the exception of meal

    times), so that detainees can move around inside most parts of the centre.

  • According to DIAC, the electrified fencing surrounding the IDC is not

    activated.

  • The separation detention system is no longer being used, meaning that newly

    arrived detainees are no longer subjected to restrictions on their freedom of

    movement inside the centre or their access to communication. At the time of the

    Commission’s 2009 visit, these restrictions were causing some detainees

    significant distress.[169] The

    Commission understands that this change was a response to infrastructure

    constraints, rather than a policy decision. However, given that it does not

    appear to have had negative consequences, the Commission hopes that the system

    will not be reintroduced.

Despite these positive aspects, the

Commission’s overarching concerns about the prison-like nature of the IDC

remain. In the Commission’s view, it is neither necessary nor appropriate

to hold asylum seekers in a high security detention centre on Christmas Island.

Asylum seekers are detained under the Migration Act because they do not have a

valid visa.[170] They are not

detained because they are under police arrest or because they have been charged

with or convicted of a criminal offence. The treatment of immigration detainees

should therefore be as favourable as possible, and in no way less favourable

than that of untried or convicted

prisoners.[171]

The use of a maximum security environment to detain virtually all single

adult males is also inconsistent with the government’s policy that people

should be detained in the least restrictive form of detention appropriate to an

individual’s

circumstances.[172] In addition,

many of the security measures appear unnecessary given the extreme isolation of

the IDC.

The Commission acknowledges that the IDC was not constructed by the current

government, and that DIAC is working within considerable constraints in terms of

the infrastructure and accommodation available on Christmas Island. However,

those constraints are largely a result of the government’s decision to

detain people in a location as small and remote as Christmas Island. The fact

that suitable infrastructure is not available on the island contributes to the

Commission’s view that it is not an appropriate place in which to detain

asylum seekers. If the government intends to continue this practice, it should

allocate sufficient resources to enable the IDC, particularly the security

measures, to be modified to make it a more appropriate environment.

Recommendation 9: If the Australian Government intends to continue

to use the Christmas Island IDC, it should implement the 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.[173]

 
(b) Overcrowding

During its visit, the Commission’s most significant new concerns about

the Christmas Island IDC related to overcrowding. When the Commission visited in

July 2009, there were 590 men detained in the IDC. By the start of the

Commission’s 2010 visit this had increased to 1834

men.[174] At the time of writing,

the highest number detained in the IDC at one time was 2037 people, including

238 in tents.[175]

The IDC was built with a standard operating capacity of 400 and a surge

capacity of 800. Its capacity has been progressively increased over the past

year by converting some of the recreation and education rooms to dormitory

bedrooms, installing seven large tents in the Red Compound, creating additional

surge capacity by converting a visitors’ area and an induction area into

large dormitories, and constructing two additional compounds.

The Commission was particularly concerned about overcrowding in the tents and

the dormitories, as discussed below. The major impacts of overcrowding include

that people detained in these areas have virtually no privacy, many of them have

no secure place to store their personal belongings, and there is limited access

to basic facilities such as showers, kettles, toasters and washing machines.

The Commission was most concerned about overcrowding and conditions in the

tents that have been installed in the open area of the Red Compound. There are

seven large tents – six for accommodation and one for meals. Each tent can

sleep up to 40 people in bunk beds. When the Commission visited, there were 169

people in the tents.[176] Since

then, the tents have housed 238 people at

once.[177]

Tents in Red Compound, Christmas Island IDC

Inside a tent in Red Compound, Christmas Island IDC

The tents are crowded, and people have no privacy and nowhere to store their

belongings other than in large plastic bags or under their beds. The surrounding

area is mostly bare dirt and some people reported finding leeches and centipedes

on their beds. Others said they had to eat meals on their beds because of lack

of space in the dining tent. There is only one washing machine for all detainees

to share.

The accommodation provided in the tents is inappropriate and unacceptable by

Australian community standards. While it might be adequate as emergency

accommodation for a night or two, some people may be accommodated there for

weeks or even months. When the tents were installed in late 2009, DIAC informed

the Commission that they were intended to be used as a short-term measure. In

the Commission’s view, the tents should be dismantled as soon as possible

and people should be moved to more appropriate accommodation on Christmas Island

or the mainland.

Dormitory bedroom, Education 3 Compound, Christmas Island IDC

The Commission also had significant concerns about overcrowding and

conditions in Education 3 Compound. This was formerly used for recreational and

educational activities, but has been turned into an accommodation compound by

placing bunk beds in all but two of the rooms. The Commission is disappointed

about this development – with the high number of people in the IDC, it has

added to the pressure on the recreational areas that remain.

When the Commission visited, there were 144 people accommodated in Education

3 Compound.[178] Each bedroom

sleeps up to 24 people, in very cramped conditions. People have no privacy, and

most have nowhere to store their belongings. There is no dining area in the

compound – people are served their meals in takeaway containers.

Zulu 2 dormitory, Christmas Island IDC

Since the Commission’s last visit, the induction and visitors’

areas have been converted into large dormitories. These areas, referred to as

Zulu 1 and Zulu 2, have a combined capacity of 142 people. In the

Commission’s view, this accommodation is inappropriate. The dormitories

are extremely cramped. People have very little space, no privacy and nowhere to

store their belongings. There is no dining room or recreation room, and no

additional showers or toilets have been installed to help meet demand when the

dormitories are in use. People accommodated in these dormitories would have

access to such facilities in the main centre during the day – but they

would be competing with high numbers of detainees in other compounds for

access.

These areas were not in use at the time of the Commission’s visit, but

they have been used at other times. DIAC informed the Commission that generally

people are only accommodated in these areas for a night or two. However, the

Commission heard from some people who said they spent five nights there.

Finally, the Commission was concerned about crowded conditions in the surge

areas in the original eight accommodation compounds – these consist of

dormitory bedrooms that each sleep up to 18 people. In addition, in some

accommodation compounds the recreation room has been converted into a dormitory

bedroom. People sleeping in these dormitory bedrooms told the Commission about

some of the challenges in sharing a room with 17 other people – including

difficulties sleeping if others make noise and the fast spread of colds if one

person gets sick.[179] As with the

other dormitories, people in these rooms have very little space, and many of

them hang a sheet over the bed in an attempt to create some privacy.

Sheets hung over beds to create privacy, Gold Compound, Christmas Island IDC

As noted above, the Commission acknowledges that DIAC is working within

considerable infrastructure constraints on Christmas Island, and that

significant efforts are being made by staff to provide appropriate conditions

for people in detention. However, the Christmas Island IDC was not designed to

accommodate such a high number of people. It is not appropriate for the

Australian Government to continue to detain high numbers of people in the

centre; nor to continually expand the capacity using measures such as tents and

large dormitories.

If the Australian Government intends to continue using the Christmas Island

IDC, it should take immediate measures to reduce the overcrowding. Current

conditions are not consistent with international human rights standards which

require accommodation in detention facilities to meet the requirements of health

and human dignity, with appropriate regard paid to issues including climatic

conditions, minimum floor space, lighting and

ventilation.[180] Each person in detention should also be provided with a secure space for storing

their personal belongings.[181]

Recommendation 10: If the Australian Government intends to continue

to use the Christmas Island IDC, it should take immediate measures to reduce

overcrowding. These should include:

  • ceasing the practice of accommodating people in tents, and removing the

    tents as soon as possible

  • ceasing use of the surge areas that have been created by converting the

    visitors’ and induction areas into large dormitories

  • ceasing the practice of accommodating people in dormitory bedrooms in

    Education 3 Compound, and returning the compound to its original use as space

    for educational and recreational activities

  • refraining from transforming additional areas into

    accommodation.

 
(c) Public

health impacts of overcrowding

The increase in the number of people being detained in the IDC has had some

obvious impacts in terms of access to essential facilities such as toilets and

showers, and has created concerns about cleanliness and public health issues.

Under international human rights standards, immigration detention authorities

should ensure that all parts of the detention facility are maintained and kept

clean to a standard which meets the requirements of health and

hygiene.[182] In every detention

facility, there should be adequate facilities available to enable each detainee

to maintain general hygiene by bathing or showering daily. Each detainee should

be provided with access to toiletries, ablution facilities and sanitary

installations which are necessary for health and cleanliness, enable people to

meet their physical needs in privacy, and are appropriate to the

climate.[183]

During its visit, the Commission had concerns about the number of toilet and

shower facilities available for people in detention, and the cleanliness of

those facilities.

The Commission was particularly concerned about the limited number of showers

and toilets in the tent area in Red Compound, Education 3 Compound and the new

Aqua Compound. For example, in Education 3 Compound there were ten showers being

shared by 144 people. In the tent area in Red Compound there was one shower

block and one toilet block being shared by 169 people. Some detainees reported

that only four showers were working; others said that two were

working.[184]

The Commission was also concerned that many of the toilet and shower blocks

were in a very unclean state. For example, in Aqua Compound the toilet block was

wet and muddy, and detainees complained that there was no toilet paper or

soap.[185] In the tent area in Red

Compound, the shower and toilet blocks were dirty and had wet floors. One

detainee described the conditions as “very

appalling”.[186] Some people

in detention told the Commission they were concerned that the limited number of

showers and the dirty state of the ablutions blocks were contributing to health

concerns such as skin rashes and eye

conditions.[187]

Ablutions blocks, Christmas Island IDC

There appear to be a range of factors contributing to the unclean state of

the ablution blocks. The main factor appears to be the significant increase in

the number of people being held in the IDC. While some ablution blocks have been

added, these are not sufficient to meet the needs of so many people. In

addition, water restrictions have been introduced in some parts of the IDC. In

the eight original accommodation compounds, many of the bedrooms have a small

bathroom area built into the room. The water to these areas has been turned off

(except for one hour each day) in order to reduce water consumption. The result

has been much higher use of the common ablution blocks. With such a high number

of people using them, it appears that they are not being cleaned regularly

enough to maintain an acceptable standard of cleanliness and hygiene.

A further issue is cultural factors. Some people in detention are not

accustomed to using Western toilets and would prefer to use Eastern style

toilets such as squat toilets, with hoses available for hygiene purposes. DIAC

informed the Commission that they have investigated the possibility of

installing squat toilets in the IDC, but the cost is prohibitive. DIAC also

reported that they have organised some informational sessions for detainees

about the use of Western style toilet facilities and general hygiene. The

Commission encourages DIAC to expand these initiatives, to conduct them

regularly to ensure that new arrivals are included, and to ensure that they are

conducted in a culturally appropriate manner.

(d) New

compounds: Lilac and Aqua

Since the Commission’s 2009 visit to the IDC, two new compounds have

been added outside the original perimeter fence. The Commission found that

conditions in these compounds are harsher than in the original centre, and the

compounds – particularly Aqua – have a much lower level of

amenity.

At the time of the Commission’s visit, Lilac Compound had been in use

for approximately five months, and there were 206 people detained

there.[188] The compound consists

mostly of demountable buildings containing bedrooms and ablutions. Some concrete

paths have been installed, and there are wooden decks between the demountable

bedrooms. However, the surrounding area is bare dirt; there is no grass. There

are two undercover cabana areas with a pool table, table tennis and a television

(which can only be used for watching DVDs).

Detainees in this compound reported frustrations about being placed in an

area that is separated from the main centre, and that has fewer facilities. Some

detainees sleep in bedrooms shared by four or six people – they reported

having nowhere to store their belongings other than cardboard boxes they had

taken from the rubbish. Some of them had received refusals at the primary RSA

stage, and they reported that the combination of the refusals and their

detention conditions was leaving them in a “bad psychological

state”.[189]

Aqua Compound, Christmas Island IDC

Aqua Compound is the newest part of the IDC and has the harshest physical

conditions because of the heat, the dirt (which turns to mud in the rain) and

the lack of greenery and shade. In the words of one community representative who

visits the centre, “We thought that Lilac was bad until they opened

Aqua.”[190]

The compound was opened approximately two weeks prior to the

Commission’s visit. When the Commission visited, there were 341 people

detained in Aqua Compound.[191] At

the time, the compound was still being constructed. There were demountable

buildings containing bedrooms, ablutions and a dining area – but there

were no walkways (meaning that people often have to walk through mud), no grass,

and no dedicated recreational areas.

Detainees told the Commission they had very limited access to basic

facilities in Aqua Compound – for example, there was one washing machine

for all of them to share, and no landline telephones. They were also concerned

that there was no drinking fountain. They were required to drink water out of

the bathroom taps, which had a sign above them saying, ‘Do not drink this

water’. Serco informed the Commission that the water was nevertheless safe

to drink, and that the sign would be removed.

Aqua Compound, Christmas Island IDC

Walkway from Aqua and Lilac Compounds to main centre, Christmas Island IDC

People detained in Aqua and Lilac Compounds are physically isolated from the

main centre. They are able to go into the centre to access facilities during the

day via a long fenced walkway – but they do not have free access. The

gates are unlocked by Serco officers at certain times of the day. Some detainees

reported that it took a significant amount of time to move from Aqua or Lilac to

the main centre. They claimed that this meant they were disadvantaged in terms

of trying to access facilities that are in high demand such as telephones, the

gymnasium, and internet terminals.

The Commission has significant concerns about the conditions and access to

facilities for people in these two compounds, particularly Aqua. In the

Commission’s view, Aqua Compound was opened for use before it was in an

acceptable state.

DIAC informed the Commission that there is a plan to develop the two

compounds further so that eventually they will form a separate, self-sufficient

centre including its own recreational facilities. According to DIAC, Aqua will

be improved by the addition of activities rooms, grass and three cabana areas.

The Commission hopes to see these improvements made as soon as possible.

In the mean time, people detained in Lilac and Aqua Compounds should be

provided with unrestricted access to the main IDC on an equal basis with other

detainees.

(e) Management

Support Unit

The Management Support Unit (MSU) is a self-contained, high-security unit in

the Red Compound at the IDC. In its 2008 and 2009 reports, the Commission raised

concerns about the MSU.[192] It

looks and feels extremely harsh and punitive. The bedrooms are essentially small

cells, with solid metal doors and grills on the windows. All furniture is hard

and bolted to the floor. There are CCTV cameras in the bedrooms –

including the toilet and bathroom areas – which cannot be turned off.

There is no outdoor space where detainees have an open view of the sky, and no

open space where they can freely walk or run.

During its 2009 visit the Commission welcomed the fact that the MSU had not

been used, and expressed the view that it should not

be.[193] In the Commission’s

view it is inappropriate for accommodating asylum seekers, particularly those

who may have experienced torture or trauma.

The Commission is disturbed that, between its 2009 and 2010 visits, the MSU

was used to accommodate detainees on three occasions, including six men detained

there for 16 days; three men detained there for 10 days; and 11 men detained

there for 17 days.[194] The

Commission has been assured that in none of these instances were people confined

to the bedrooms, and that efforts were made to take people out of the MSU for

short walks. Nevertheless, the Commission has significant concerns about the

placement of asylum seekers in such a punitive and restrictive facility.

Management Support Unit, Christmas Island IDC

Some of the people detained in the MSU have raised concerns with the

Commission about their placement there – in particular because of the

isolation and the impacts on their mental wellbeing. Some have raised concerns

about their conditions in the MSU, including the cramped nature of the bedrooms

and their lack of access to recreational facilities. Particular concerns have

been raised about the lack of privacy, given the constant CCTV surveillance. In

the words of one man, there were “cameras everywhere, even the

toilet”.

Under international human rights standards, people deprived of their liberty

should be treated with humanity and respect for their

dignity.[195] They should not be subjected to any form of cruel, inhuman or degrading

treatment or

punishment.[196] Further, they should be provided with access to ablution facilities that enable

them to carry out their bathing and other physical needs in

privacy.[197] The use of CCTV

cameras in bedrooms and bathrooms in the MSU does not provide people with this

privacy. In addition, it is arguably degrading and fails to show adequate

respect for their dignity. DIAC has informed the Commission that there are plans

to upgrade the CCTV system at the IDC. The Commission encourages DIAC to ensure

that the cameras in the MSU are removed or adjusted in order to provide people

with adequate privacy. In particular, cameras should not be placed in nor should

they monitor toilet or bathroom areas.

Human rights standards require that use of facilities such as the MSU should

take into account the person’s physical and mental

health.[198] The DIAC policy on the use of the MSU requires that if it is necessary for a

person to remain in the MSU for longer than 48 hours, a review of the placement,

including a health review, must be initiated and completed within 24

hours.[199] The Commission

welcomes this. However, in the Commission’s view the policy should require

that, prior to a decision being made to place a person in the MSU, consideration

is given to an assessment conducted by the health services provider of the

potential impacts of that placement on the person’s health and mental

health.

Moving a detainee from the general population to a high-security unit such as

the MSU can, in certain circumstances, lead to breaches of Australia’s

obligation under the ICCPR not to subject anyone to arbitrary

detention.[200] This obligation

may be breached if a detainee is moved from one part of the detention centre to

another where the move involves a further and serious deprivation of their

liberty.[201]

The Commission acknowledges that DIAC is operating within infrastructure

constraints in the IDC, and that the IDC was not built by the current

government. However, the Commission reiterates its view that the MSU is

inappropriate for accommodating asylum seekers, particularly those who may have

experienced torture or trauma.

Detention facilities should be constructed so that if there is a legitimate

need to separate one or more persons for a short period of time, that can be

done in an appropriate and non-punitive environment, taking into account the

person’s individual needs including their health and mental health.

17.2 Phosphate

Hill immigration detention facility

Phosphate Hill is made up of two areas – the Phosphate Hill immigration

detention facility (also referred to as Bravo Compound), and an open area

containing demountable buildings currently used as offices and staff

accommodation.

The Phosphate Hill immigration detention facility was opened in 2001. It is

located across the road from the Construction Camp facility, about 5 kilometres

from the island’s town area. The facility is used to detain adult males.

DIAC categorises the Phosphate Hill immigration detention facility as an

‘alternative place of detention’. In the detention statistics that

DIAC publishes, people in the facility are counted as being in

‘alternative temporary detention in the

community’.[202] In the

Commission’s view, this is misleading and should be corrected. The

Phosphate Hill immigration detention facility is a secure compound surrounded by

high wire fences, from which people in detention are not free to come and

go.

(a) Detention infrastructure

In its 2008 report, the Commission raised concerns about the infrastructure

at the Phosphate Hill immigration detention facility. At the time, there were no

detainees in the facility, but the Commission was concerned about the low

standard of accommodation, the lack of telephones and internet, and the lack of

recreational facilities. The Commission did, however, note that the Phosphate

Hill facility is preferable to the Christmas Island IDC in the sense that the

security measures are much less intrusive, and the central location on the

island makes it more

accessible.[203]

When the Commission visited in 2009, the facility was again empty. However,

in the second half of 2009 DIAC recommenced use of the facility as a place to

detain adult males. At the time of the Commission’s 2010 visit, there were

164 men detained there.[204] The

Commission was pleased to observe that some improvements have been made, in

particular the addition of four landline telephones and eight internet

terminals.

However, since 2009 there have also been some negative changes. In

particular, three large tents have been installed in the middle of the compound.

This has significantly reduced the amount of open green space in the facility,

which is now minimal. While the tents are in slightly better condition than

those at the Christmas Island IDC, they are still crowded and provide

inappropriate accommodation, as discussed below.

Accommodation tent and row of bedrooms, Phosphate Hill immigration detention facility

The Commission also remains concerned about the low standard of accommodation

in the original parts of the facility. The bedrooms, located in rows of

demountables, are very small. There is generally no furniture in them other than

beds. Each room has a small window with bars on it which appear to be totally

unnecessary.

The facility does not have a useable kitchen, so meals are transported in

take-away containers from the Construction Camp. People in detention are

required to line up to collect their meals, one by one, from the Serco office.

When the number of people is high, this can take some time. There is no shelter

around the office, and some people reported having to stand and wait in the

rain. There is also no dining room, so people generally eat their meals in one

of two undercover cabana areas. These areas are adequate when the weather is

fine, but they are not rain-proof.

The Phosphate Hill immigration detention facility still has very little in

the way of recreational facilities. Inside the compound there is no gym,

library, classroom or other indoor recreation space. There is one demountable

containing an internet room and a prayer room. The only other spaces for

recreational use are the two cabana areas. While there are some recreational

facilities in the open area outside the compound, detainees only have limited

access to them. These issues are discussed further in section 22 below.

The Phosphate Hill facility currently has the lowest level of amenity of the

three detention facilities on Christmas Island. The Commission acknowledges that

DIAC is working within considerable constraints in terms of the infrastructure

available. However, the fact that suitable infrastructure is not available on

Christmas Island contributes to the Commission’s view that it is not an

appropriate place in which to detain people.

If the Australian Government intends to continue to use the Phosphate Hill

immigration detention facility, it should upgrade it to ensure that people in

detention have access to appropriate accommodation, dining areas and

recreational facilities.

(b) Overcrowding

The regular capacity of the Phosphate Hill facility is 48 people. This has

been increased to a surge capacity of 168 people by adding three large tents.

When the Commission visited, there were 164 men detained in the

facility.[205] Higher numbers have

been detained there since. For example, in late July 2010 there were 187 men in

the facility – 19 more than its surge

capacity.[206]

During its visit to the Phosphate Hill facility, the Commission was concerned

about overcrowding in both the tents and the bedrooms.

Inside a tent, Phosphate Hill immigration detention facility

The three tents each sleep up to 40 people in bunk beds. When the Commission

visited, there were 107 people in the

tents.[207] They have since been

used to accommodate 118 people at once.[208] Like the tents at the Christmas

Island IDC, the tents at the Phosphate Hill facility are crowded. People have no

privacy, and nowhere to store their belongings other than on or under their

beds.

Some people in detention told the Commission they found it hard to sleep in

the tents due to the high number of people and the noise. Others reported that

the climate was difficult to cope with. The heat and humidity on Christmas

Island can be extreme at times, and they claimed that the air conditioners did

not always work. Some reported that the humidity was making their mattresses

damp.

Conditions in the tents at Phosphate Hill are slightly better than the tents

at the Christmas Island IDC – largely due to the fact that they are

cleaner. However, the accommodation is inappropriate and unacceptable by

Australian community standards.

The Commission was also concerned about overcrowding in the bedrooms in the

demountables. These rooms are the smallest of any of the bedrooms in the

detention facilities on Christmas Island. Some are being used to sleep three

people. DIAC informed the Commission that people only sleep three to a room if

they request to do so. However, some detainees told the Commission they had no

choice.

Bedroom, Phosphate Hill immigration detention facility

Shower block, Phosphate Hill immigration detention facility

The high number of people being detained in the facility is also placing

strain on ablution blocks. The number of toilets and showers was not increased

when the capacity of the compound was expanded from 48 to 168 people. Detainees

told the Commission that there were approximately 18 toilets and 18 showers for

all of them to share, and that this was not enough. Others were concerned that

there were only two washing machines for everyone to share.

The Commission acknowledges that DIAC is working within considerable

infrastructure constraints, and that efforts are being made by staff to provide

appropriate conditions in challenging circumstances. However, the Phosphate Hill

facility was not designed to accommodate the high number of people being

detained there. If the Australian Government intends to continue using the

facility, it should take immediate measures to reduce the overcrowding. Current

conditions are not consistent with international human rights

standards.[209]

Recommendation 11: If the Australian Government intends to continue

to use the Phosphate Hill immigration detention facility, it should take

immediate measures to reduce overcrowding in the facility. These should

include:

  • ceasing the practice of accommodating people in tents, and removing the

    tents as soon as possible

  • ceasing the practice of accommodating any more than two people in the

    bedrooms in the demountables.

 

17.3 Construction

Camp immigration detention facility

The Construction Camp immigration detention facility is a low security

facility, which was formerly a camp used to accommodate construction workers. It

is located across the road from the Phosphate Hill facility, approximately 5

kilometres from the island’s town area. It is primarily used to detain

unaccompanied minors and families with children.

When the Commission visited, there were 418 people detained in the

Construction Camp – 73 men, 75 women, 94 accompanied children, 152

unaccompanied minors and 24 male crew

members.[210]

(a) Detention infrastructure

As discussed in section 13 above, it is misleading for the Construction Camp

to be categorised as ‘alternative temporary detention in the

community’.[211] While it is

a low security facility, it remains an immigration detention facility from which

people in detention are not free to come and go.

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

concerns about the nature of the facilities at the Construction

Camp.[212] In its 2009 report, the

Commission welcomed some improvements, but expressed ongoing concerns about the

claustrophobic nature of the facility, the lack of grass and open space, and the

lack of recreation areas. The Commission expressed the view that the

Construction Camp is not an appropriate environment for unaccompanied minors or

families with children.[213]

During its 2010 visit, the Commission was pleased to observe some positive

changes at the Construction Camp. In particular, the fence line has been

extended to incorporate an existing basketball court into the facility. The

Commission is also pleased that the separation detention system is no longer

used for new arrivals.

Despite these improvements, the Commission’s concerns about the

Construction Camp have been further exacerbated this year because of the

substantial increase in the number of people detained there.

The Commission continues to have significant concerns about the lack of open

space in the Construction Camp, the fact that there is no open grassy area

inside the facility, and the lack of indoor recreation space. These issues are

discussed further in section 22 below.

During its visit, the Commission was concerned that people detained in the

Construction Camp were being subjected to further restrictions on their space

and movement inside the facility. The dining room and another large room nearby

are used for initial processing for all new arrivals on Christmas Island. This

means the rooms cannot be used for recreational activities, and people have to

take their meals back to their bedrooms when the dining room is in use for new

arrivals.

Construction camp immigration detention facility

The Commission was also concerned about restrictions on Indonesian crew

members detained in the Construction Camp. DIAC informed the Commission that the

aim was to keep crew members separate from asylum seekers, in order to avoid

tensions that might arise. Because the Construction Camp does not have separate

internal compounds, this was being done by restricting crew members to their

accommodation block. They were only permitted to use the oval next to the

Construction Camp between 6am and 7am on weekdays, under supervision of Serco

officers. They also told the Commission they had very restricted access to the

telephones in the facility – although this was disputed by DIAC and Serco.

Again, the Commission acknowledges that DIAC is working within considerable

infrastructure constraints on Christmas Island. However, the fact that suitable

infrastructure is not available on the island contributes to the

Commission’s view that it is not an appropriate place in which to detain

people. In particular, the Commission reiterates its view that the Construction

Camp immigration detention facility is not an appropriate environment for

unaccompanied minors or families with children.

(b) Overcrowding

During its visit, the Commission was particularly concerned about the high

number of people being detained in the Construction Camp facility, which has led

to overcrowding and pressure on facilities. When the Commission visited in 2009,

there were 99 people in the Construction

Camp.[214] During the 2010 visit,

this had increased by more than four times, to 418

people.[215]

At the time of the Commission’s visit, the highest number of people

detained in the Construction Camp at any one time was 429 people in April

2010.[216] This is well above the

agreed capacity of the facility, which according to DIAC is 310 people.

The substantial increase in the number of people detained in the Construction

Camp has placed additional pressure on facilities. Some detainees told the

Commission they had difficulty accessing basic facilities such as washing

machines and kettles and supplies such as shampoo. There is also increased

pressure on telephones, internet terminals and recreational and educational

facilities, as discussed in sections 21 and 22 below.

The increase in the number of people detained in the facility has required

the conversion of some rooms, including interview rooms in Block A and a

recreation room, into dormitory bedrooms that are each shared by up to 14

people. These rooms are very cramped. People have no space or privacy, and

nowhere secure to store their belongings. In addition, neither Block A nor the

converted recreation room has dedicated bathroom facilities. When the Commission

visited, up to 90 people were being required to share one

shower.[217] This is

unacceptable.

Dormitory bedroom, Construction Camp immigration detention facility

The limited amount of space in the Construction Camp makes it a difficult

environment in which to mix people of various ages, ethnicities, religions,

cultures and genders. During its visit, the Commission had some concerns about

the groups co-located in the facility. The overcrowding has meant that families

with young children are often detained in close proximity to other detainees,

which may include unaccompanied minors (usually 16 or 17 year old boys) or

adults. Some parents expressed concerns about the difficulties of trying to

maintain a ‘normal’ routine for their young children in this

environment. In particular, some parents reported that their children were

disturbed at night by noise from other people in detention.

The limited amount of space and mixing of various groups can also be a

particular concern for some women from particular cultural or religious groups.

Some young women detained in the Construction Camp told the Commission they did

not feel very safe, partly due to the presence of a significant number of

unaccompanied 16 and 17 year old males. A few women also complained about a lack

of privacy and security in their bedrooms, which can be unlocked from the

outside.[218]

The Commission acknowledges that DIAC is working within considerable

infrastructure constraints, and that significant efforts are being made by staff

to provide appropriate conditions. However, the Construction Camp facility was

not designed to accommodate the high number of people being detained there. If

the Australian Government intends to continue using the facility, it should take

immediate measures to reduce the overcrowding. Current conditions for some

people are not consistent with international human rights

standards.[219]

As discussed in section 6 above, the Commission welcomes efforts to transfer

some families and unaccompanied minors from the Construction Camp to the

mainland. It is essential that these transfers continue in order to relieve the

ongoing pressures on detainees and staff in the Construction Camp. This should

be a matter of priority for all families with children and unaccompanied minors.

As recommended in section 11, these groups should be referred for Residence

Determinations on the mainland.

Recommendation 12: If the Australian Government intends to continue

to use the Construction Camp immigration detention facility, it should take

immediate measures to reduce overcrowding in the facility.

 

18 Staff

treatment

Under international human rights standards, all people deprived of their

liberty are to be treated with humanity and with respect for the inherent

dignity of the human person.[220] The manner in which people in immigration detention are treated by DIAC, Serco

and other service provider staff can have significant impacts on their

experience in detention and on their physical and mental wellbeing.

The Commission acknowledges that there has been a significant cultural change

in the operation of immigration detention facilities over the past few years,

and that there is now an increased expectation that all staff who come into

contact with people in immigration detention should treat them with respect. The

Commission welcomed the inclusion in the government’s New Directions

policy of key values stating that people in detention will be treated fairly and

reasonably within the law, and that conditions of detention will ensure the

inherent dignity of the human

person.[221] The Commission has

urged the government to embed these values in

legislation.[222]

The Commission also welcomes that DIAC’s contract with Serco states

that Serco staff must treat people in detention ‘equitably and fairly,

with dignity and

respect’.[223]

During its visit to Christmas Island, the Commission was generally pleased to

observe positive interactions between staff and people in detention. In

addition, most detainees the Commission spoke to expressed positive views about

their treatment by DIAC and Serco staff. However, there were some significant

exceptions.

The Commission was concerned to hear from many detainees that Serco staff

refer to them by their identification number rather than their name. The

Commission witnessed this on several occasions. Some detainees said they

understood the reasons for this and were not concerned. However, others were

very disturbed by the practice. For example, one man said, “It makes us

feel like prisoners”.[224] Another said, “We feel like a herd of

sheep”.[225] The Commission

is concerned about this practice because it is dehumanising and fails to accord

respect to people in detention. In the Commission’s view, people in

detention should always be referred to by their name. Their identification

number should only be used as a secondary identifier where this is necessary for

clarification purposes.

The Commission was also concerned to hear from a small number of people in

detention about specific instances where they felt they had been treated in a

degrading or racially discriminatory way. For example, Sri Lankan men detained

in the Christmas Island IDC reported that a particular Serco officer had made

racist comments towards them.[226] In addition, a number of people detained in the Christmas Island IDC and the

Construction Camp said that particular Serco officers made comments suggesting

that they should go back to their own country and that they had not been invited

to Australia.[227]

A small number of people detained in the Christmas Island IDC also raised

concerns about overly prison-like treatment by particular officers. For example,

one man said, “They make us feel not like refugees, but like someone who

has committed a grave

crime.”[228] While these

reports were the exception rather than the rule, they are concerning.

The Commission has been informed that Serco staff training covers issues

relating to working with culturally diverse clients. The Commission urges DIAC

and Serco to ensure that staff training and performance management include a

strong focus on treating all people in immigration detention with humanity and

with respect for their inherent dignity.

Recommendation 13: DIAC, Serco and other detention service providers

should refer to people in immigration detention by their name. Their

identification number should only be used as a secondary identifier where this

is necessary for clarification purposes.

 

Recommendation 14: DIAC and Serco should ensure that staff training

and performance management include a strong focus on treating all people in

immigration detention with humanity and with respect for their inherent dignity.

 

19 Access

to health and mental health care

Under international human rights standards, all people have a right to the

highest attainable standard of physical and mental

health.[229] Each person in

detention is entitled to medical care and treatment provided in a manner which

is culturally appropriate, and of a standard which is commensurate with that

provided in the general community. This should include preventive and remedial

medical care and treatment including dental, ophthalmological and mental health

care whenever necessary. Each immigration detainee should also be entitled to

obtain a second medical examination or

opinion.[230]

Since 2008 the Commission has expressed concerns regarding the availability

of health and mental health care for people detained on Christmas

Island.[231] The Commission

acknowledges that there have been positive developments during that time, in

particular the development of new mental health policies and associated training

for detention service providers and DIAC

staff.[232]

However, the Commission remains concerned about some aspects of the provision

of health and mental health care on Christmas Island. Many of the

Commission’s concerns relate to difficulties in providing adequate care

for a large detainee population in such a small and remote community. The

Commission’s key concerns include the very limited access to specialist

care, psychiatric care and dental care; the ratio of mental health professionals

to people in detention; and the extent to which torture and trauma policies are

being implemented. These issues are discussed further below.

The Commission also shares the view expressed by previous inquiries that

there is a need for more comprehensive monitoring of health and mental health

services in immigration

detention.[233] The 2005 Palmer Report recommended the establishment of an independent

Immigration Detention Health Review

Board.[234] In her review of the

implementation of the Palmer Report, Elizabeth Proust observed that

‘[w]hile DIAC regards the arrangements via the [Detention Health Advisory

Group (DeHAG)] to meet this recommendation, DeHAG itself believes that an

independent body is still

needed’.[235] This was also

noted by the Joint Standing Committee on Migration in its inquiry into

immigration detention in

Australia.[236]

The Commission is of the view that there is a need for rigorous, independent

and ongoing monitoring of the delivery of health and mental health services in

immigration detention facilities both on Christmas Island and the mainland. This

need was highlighted during the Commission’s visit to Christmas Island by

the significant number of cases in which people in detention raised concerns

about their access to health services.

Recommendation 15: An independent body should be charged with the

function of monitoring the provision of health and mental health services in

immigration detention. The Australian Government should ensure that adequate

resources are allocated to that body to fulfil this function.

 

19.1 Health

care

(a) Health care for immigration detainees on

Christmas Island

Health care services for people in detention on Christmas Island are

primarily provided by IHMS, a private company contracted by DIAC. The health

staffing on Christmas Island has increased over the past year. The IHMS team

includes a Health Centre Manager, a Medical Director, four doctors, three nurse

team leaders, 15 general nurses, ten mental health nurses, two psychologists,

two paramedics and five administrative staff. IHMS provide services at the

Christmas Island IDC, the Construction Camp facility and the Phosphate Hill

facility.

The local hospital is run by the Indian Ocean Territories Health Service

(IOTHS). IOTHS provide services including ante-natal care, chest X-rays,

pathology tests and basic in-patient services.

At the Christmas Island IDC there is a well equipped medical clinic. People

in detention are required to fill out a form to request an appointment.

At the Construction Camp facility there is a basic clinic staffed by a nurse

24 hours a day. Shortly before the Commission’s visit, IHMS commenced a

trial allowing detainees to walk into the clinic seven days a week to request an

appointment.

At the time of the Commission’s visit, detainees in the Phosphate Hill

facility were attending medical appointments at the clinic in the Construction

Camp. IHMS informed the Commission that there were plans to establish a clinic

room at the Phosphate Hill facility.

(b) Concerns regarding the provision of health care

on Christmas Island

During its visit, the Commission was pleased to note some improvements in the

provision of health care to people in immigration detention on Christmas Island.

These included the presence of a paramedic at the Christmas Island IDC

overnight, and detainees’ increased access to the clinic at the

Construction Camp facility.

However, the Commission continues to hold many of the concerns expressed in

its 2009 report, including:

  • the limited access to dental care on Christmas Island
  • the lack of medical specialists (such as optometrists, physiotherapists,

    radiologists or others) on Christmas Island

  • the length of time some people in detention have to wait to see a nurse or

    doctor

  • the length of time it could take for an ambulance to arrive at one of the

    detention facilities if needed in an

    emergency.[237]

There

is very limited access to dental care for people detained on Christmas Island.

Some reported that they had experienced dental pain but had not been able to see

a dentist.[238] The health service

provider’s contract states that the offsite provision of dental services

by referral must be arranged.[239] The local dentist had been making an emergency dental appointment available each

day if it had not been taken by the local community, but this stopped shortly

before the Commission’s visit. A dental van was delivered to Christmas

Island in April, however DIAC has informed the Commission that it will not be

operational before the end of 2010.

Some people in detention raised concerns with the Commission about the length

of time they had to wait to see a nurse or doctor. The health service

provider’s contract states that no person in detention should be required

to wait more than three business days for a consultation with a general

practitioner.[240] IHMS reported

that people in detention do not have to wait longer than 48 hours for an

appointment. However, the Commission heard from many detainees who said they had

to wait between four and five

days.[241]

There is also very limited access to specialist care for people detained on

Christmas Island. Detainees are sometimes seen by visiting specialists, but

specialists generally only visit the island once every three to six months. DIAC

informed the Commission that if urgent specialist care is required, detainees

are transferred to the mainland. IHMS told the Commission that their

recommendations for detainees to see specialists are followed. However, the

Commission spoke with a number of detainees, some with significant visible

injuries, who felt that their requests to see medical specialists had not been

appropriately responded to. These included, for example, a man with an amputated

leg, several men who claimed to have bullets or shrapnel lodged in their bodies,

and several people with visibly disfigured limbs.

The Commission acknowledges that there may be differing opinions about when

access to specialist care is required and in what time frame. However, the

remoteness of Christmas Island means that people in detention who feel that they

have not been provided with appropriate or prompt access to specialist care are

not able to initiate that access independently, even if they are able to pay for

it themselves.

If the Australian Government intends to continue to detain people on

Christmas Island, those people should be provided with adequate access to health

services. Further, as discussed in section 11 above, the Residence Determination

Guidelines state that priority for Community Detention placements will be given

to groups including persons with significant physical or mental health problems.

These priority cases are to be assessed and referred to the Minister ‘as

soon as practicable’.[242] The Australian Government should make full use of the Community Detention system

for people in detention on Christmas Island. All eligible detainees should be

referred for a Residence Determination on the mainland. This should be an

immediate priority for vulnerable groups including people with health

concerns.

Recommendation 16: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that detainees are provided with access to appropriate health services. In

particular, DIAC should ensure, as a matter of priority, that detainees on

Christmas Island are provided with adequate access to dental care and specialist

care.

 

19.2 Mental

health care

(a) Mental health care for immigration detainees on

Christmas Island

Under international human rights standards, all people have a right to the

highest attainable standard of mental

health.[243] Every immigration

detention facility should have at least one medical officer available with some

knowledge of

psychiatry.[244]

Mental health services for detainees on Christmas Island are primarily

provided by IHMS, which has two psychologists and ten mental health nurses on

staff.

Under DIAC’s policy on mental health screening for people in

immigration detention, IHMS does initial screening within 72 hours of a

person’s arrival, and a mental health assessment within a week. People in

detention can request an appointment at any time, and DIAC, Serco or IHMS staff

can flag concerns that a person may be in need of mental health care or

treatment.[245]

People in immigration detention who are considered to be at risk of self-harm

or suicide are managed through the Psychological Support Program (PSP), which

was introduced on Christmas Island in March

2010.[246] Under the PSP,

detainees who are identified to be at risk of self-harm or suicide are managed

according to one of three levels of risk, with observation by IHMS, DIAC or

Serco staff.

(b) Concerns regarding the provision of mental

health care on Christmas Island

The Commission welcomes the introduction of the DIAC policies noted above,

and acknowledges the efforts being made by IHMS staff to provide mental health

care for people in detention on Christmas Island. However, the Commission

remains concerned about the extent to which appropriate mental health services

can be provided to such a high detainee population in a community as small and

remote as Christmas Island. This is a particular concern given that many people

are spending longer periods in detention.

It is well established that holding people in immigration detention,

particularly for prolonged periods, can have devastating impacts on their mental

health.[247] During its visit, the

Commission heard from some people in detention that the time they had spent in

detention was having detrimental psychological impacts. For example, detainees

told the Commission the following:

“It has been 112 days since we came. There are people who have been

waiting for 11 months. We can tolerate the conditions. The problem is with our

mental ability to cope with detention and the period of time it is taking to

make decisions.”[248]

“We will not be productive members of society when we get out of here

because of the mental damage being

done.”[249]

“We have stayed too long and we feel so

bad.”[250]

The Commission spoke to a significant number of people in detention regarding

their perceptions of the mental health services on Christmas Island. Some

detainees said that appointments were readily available and that the mental

health care was helpful.[251] Others felt that the sessions were of little utility, as the main cause of their

distress was the fact that they were in detention for an uncertain period of

time without knowing what would happen to them at the end of that period.

The Commission has noted in past reports the difficulties associated with

treating people who are in detention for prolonged and uncertain

periods.[252] Often, detention

itself causes or exacerbates mental health concerns. Because mental health staff

do not control the length of a person’s detention, they cannot effectively

address this cause of distress for detainees. The Commission has consistently

called for the repeal of the mandatory detention system, in part because of the

effects it can have on the mental health and wellbeing of people

detained.[253]

It is critical to ensure that if people must be held in detention, they are

in a location that provides easy access to appropriate mental health services

and support networks. The Commission continues to hold significant concerns

about the limited capacity of the services on Christmas Island to meet the

mental health needs of people in detention. The Commission’s key concerns

include the following:

  • There are significant demands on the mental health professionals on

    Christmas Island, given the high number of people in detention.

  • There is no local psychiatrist on Christmas Island and no psychiatrist on

    the IHMS team. DIAC informed the Commission that if a detainee requires

    psychiatric care they can be referred to a psychiatrist on the mainland, but it

    is not clear in what proportion of cases this has occurred. In comparison, on

    the mainland the health services contract requires that IDCs have a mental

    health clinic with psychiatric services available, including onsite

    consultations.[254]

  • There have been a number of self-harm incidents on Christmas Island in

    recent months. The Commission was informed that between 1 January and 18 June

    2010, there were eight recorded instances of actual self-harm and two recorded

    instances of attempted

    self-harm.[255] The Commission is

    concerned that the increasing length of detention and the increasing refusal

    rate may lead to increases in the rate of

    self-harm.

Recommendation 17: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that detainees are provided with access to appropriate mental health services.

In particular, DIAC should ensure, as a matter of priority, that detainees on

Christmas Island are provided with adequate access to psychiatric care.

 

19.3 Torture and

trauma services

(a) Torture and trauma services for immigration

detainees on Christmas Island

Under international human rights standards, survivors of torture and trauma

should have access, without delay, to assessment and treatment by a qualified

professional with expertise in the assessment and treatment of torture and

trauma. Where an appropriately qualified professional is not on the staff in a

detention facility, referral should be made to an external specialist

agency.[256]

On Christmas Island, IHMS refers people in detention to IOTHS for torture and

trauma counselling if a concern is identified. IOTHS has four dedicated

counsellors. Individual torture and trauma counselling is usually done at the

local hospital, while some group sessions are conducted within the immigration

detention facilities.

The management of people in immigration detention who have experienced

torture or trauma is governed by the DIAC policy, Identification and Support

of People in Immigration Detention Who are Survivors of Torture and Trauma (Torture and Trauma

Policy).[257] The policy sets out

measures to identify and provide services to survivors of torture and trauma in

immigration detention.

(b) Concerns regarding torture and trauma services

on Christmas Island

The Commission welcomes efforts by DIAC to prepare a policy aimed at

identifying and providing appropriate services to survivors of torture and

trauma in immigration detention. The Commission also acknowledges the efforts

being made by IOTHS and IHMS staff to identify and respond to the needs of

survivors of torture and trauma on Christmas Island.

However, the Commission continues to have significant concerns about the

capacity of the services on the island to meet the needs of the high number of

detainees.

The Commission is concerned that there are only four torture and trauma

counsellors for a large detainee population of which a significant number are

likely to have experienced some degree of torture or trauma. The Commission also

heard from IOTHS that one of the major challenges they face in providing torture

and trauma counselling is a shortage of dedicated facilities, as they often do

not have enough rooms in which to work.

The Commission is also concerned about the extent to which people who have

experienced torture or trauma can be appropriately cared for in a detention

environment. One detainee told the Commission, “We cannot be staying in

this situation for a long time. It is difficult to tolerate trauma. Trauma is

being repeated

here.”[258]

Under DIAC’s Torture and Trauma Policy, the aim is to ensure that

people who have experienced torture or trauma:

are encouraged and supported, wherever possible following consideration of

health, character and security risks, to reside legally in the community while

their immigration status is being resolved or, where this is not possible, in

the least restrictive form of detention to minimise the potential for

immigration detention to exacerbate any vulnerabilities associated with their

previous experience of torture and trauma.[259]

Under the policy, the continued detention of survivors of torture and trauma

in an IDC is only to occur ‘as a measure of absolute last resort where

risk to the Australian community is considered

unacceptable’.[260] Under

the Residence Determination Guidelines, persons who may have experienced torture

or trauma are to be prioritised for consideration of a Community Detention

placement.[261]

During its visit, the Commission was concerned about the extent to which

these policies were being implemented on Christmas Island. The Commission heard

from health services staff that some individuals identified as high priority

torture and trauma cases have remained in detention on Christmas Island. There

were more than 2400 detainees on the island at the time, many of whom are likely

to have experienced some degree of torture or trauma. However, there were only

three people in Community Detention on the island, and only seven people in

Community Detention on the

mainland.[262]

IOTHS

reported that while their recommendations are always considered by DIAC, the

combination of the lack of community-based accommodation on Christmas Island,

and a reluctance to move people to Community Detention prior to the completion

of their security clearances was limiting the availability of Community

Detention for survivors of torture and trauma.

If the Australian Government intends to continue to detain people on

Christmas Island, those people should be provided with adequate access to

torture and trauma services, and DIAC should ensure the full implementation of

its Torture and Trauma Policy. Further, as recommended in section 11 above, the

Australian Government should make full use of the Community Detention system.

All eligible detainees should be referred for a Residence Determination on the

mainland. This should be an immediate priority for vulnerable groups including

survivors of torture or trauma.

Recommendation 18: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that detainees are provided with adequate access to torture and trauma

services.

Recommendation

19: DIAC should ensure that its policy, Identification and Support of

People in Immigration Detention who are Survivors of Torture and Trauma is

implemented on Christmas Island. Under this policy, the continued detention of

survivors of torture and trauma in an IDC is only to occur as a measure of

absolute last resort where risk to the Australian community is considered

unacceptable.

 

20 Provision of

information to people in detention

Under international human rights standards, people in immigration detention

should be provided with information, within a reasonable time of being detained

and in a language they understand, about their right to seek asylum; the reasons

for their detention; the services provided in detention; their right to

independent legal assistance; the refugee assessment process; and their right to

the services of an interpreter when

needed.[263]

20.1 Induction

information about accessing services in detention

The Commission’s 2009 report recommended that written induction

materials should be provided to all people on their arrival in immigration

detention, setting out information about accessing services while in detention

and contact details for key

bodies.[264]

The Serco contract requires that an induction booklet be provided to people

in detention.[265] The Commission

has been provided with copies of Serco induction materials for people in

immigration detention. Serco has informed the Commission that these materials

are translated into the main languages spoken by the detainee population, and

that they are provided to people shortly after their arrival in detention on

Christmas Island.

The Commission welcomes these efforts. The Commission would like to see some

additional information included in the induction materials including telephone

numbers for the Translating and Interpreting Service (TIS) and the local police;

information about how to request an external excursion; information about

accessing religious services; and contact details for Legal Aid, the United

Nations High Commissioner for Refugees, key refugee and asylum seeker

information and advice groups, and IAAAS providers.

20.2 Information

about the refugee status assessment process

In its 2009 report the Commission recommended that all people should be

provided with clear information on their arrival in immigration detention about

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; and

the non-statutory RSA

process.[266]

In response, DIAC stated that people who arrive on Christmas Island are

provided with the opportunity to raise any claims that may prevent their return,

including any protection claims; are provided with reasonable facilities to

access legal advice during their initial processing; and are advised of the

scope of the IAAAS assistance to which they are

entitled.[267]

The Commission welcomes the fact that people are advised of the assistance

they will be provided under the IAAAS. The Commission also welcomes efforts by

DIAC over the past year to develop basic information sheets for irregular

maritime arrivals, which provide an outline of the refugee status assessment

process.

However, the Commission remains concerned that people taken into immigration

detention on Christmas Island are not provided with explicit information on

their arrival about their right to seek asylum or their right to access

independent legal advice and assistance.

During its 2010 visit to Christmas Island, the Commission heard concerns from

some people in detention that they had not been provided with adequate details

about the RSA process. DIAC informed the Commission that they would attempt to

address this concern by holding follow-up information sessions with people after

providing basic information on their initial arrival.

The Commission also heard concerns from some people in detention about a lack

of regular provision of information about progress with their

cases.[268] In particular, as

discussed in section 9 above, the Commission spoke with a significant number of

Sri Lankan detainees who had gone through the RSA process and were awaiting

security clearances. Some of them had been detained for almost one year. They

expressed considerable frustrations about the lack of information provided about

progress with their cases and the reasons for delay with their security

clearances.[269]

The Commission welcomes the role played by DIAC Case Managers in ensuring

that immigration cases progress towards an outcome as soon as possible, and in

providing information to people in detention. However, the Commission encourages

DIAC to take further steps to ensure that people in immigration detention on

Christmas Island are able to request and receive regular updates about progress

with their RSA claims and their security clearances.

21 Access to

communication

For people deprived of their liberty, the capacity to communicate with the

outside world is critical to allow regular contact with family members, friends

and support networks, and to ensure effective contact with legal advisers and

migration agents.

Under international human rights standards, people in detention should be

able to enjoy regular contact with family, friends and community members,

facilitated through visits, correspondence and access to telephones. They should

also be provided with facilities to communicate and consult in private with

legal representatives.[270]

In

its 2008 and 2009 reports, the Commission raised concerns about the ability of

people in detention on Christmas Island to maintain regular contact with the

outside world. The remote location and the small size of the community mean that

detainees have very limited face-to-face access to legal or community support

groups, and the limited communications infrastructure makes it difficult for

people in detention to maintain regular contact with legal representatives,

family members and support networks on the mainland or

overseas.[271] These issues remain

of concern after the Commission’s 2010 visit.

21.1 Access to

communication facilities

In its 2009 report, the Commission raised concerns about detainees’

limited access to telephones, internet and mail. In particular, the Commission

recommended that DIAC should ensure that people in detention are provided with

adequate access to telephones and that they are able to make and receive

telephone calls in privacy.[272] In response, DIAC recognised that access to telephones had been a

‘longstanding technical difficulty’, but stated that this issue had

been resolved.[273]

However, the Commission still has significant concerns about access to

telephones for people detained on Christmas Island. During its 2010 visit, the

Commission heard complaints from people in every detention facility about

limited access to telephones. This has become even more of a concern with the

substantial increase in the number of people detained in each facility.

In the Christmas Island IDC, there are two or three landline phones in each

original accommodation compound to be shared by around 120 people per compound.

In Education 3 Compound there are two phones for around 140 people, and in the

tents in Red Compound there are four phones for around 170 people. The phones

are in outdoor areas with little privacy, and in many compounds there is a 10

minute limit. When the Commission visited Aqua Compound, there were no landline

phones in the compound, which was accommodating 341 people. While DIAC informed

the Commission that there were four Serco mobiles that detainees could request

to use until landlines were installed, detainees said they had to line up in

other compounds to make phone calls.

At the Construction Camp facility there are only three landline phones for

detainees to share. At the time of the Commission’s visit there were 418

people detained in the facility. The phones are located in an outdoor area with

no privacy, and there is a 10 minute limit. Detainees told the Commission that

the limited number of telephones was a significant concern; that they had to

wait in line for an hour or two; and that it led to tensions between people

detained in the facility.

At the Phosphate Hill facility there are four landline phones for detainees

to share. At the time of the Commission’s visit there were 164 men

detained in the facility. Again, the telephones are located in outdoor areas

with no privacy.

DIAC informed the Commission that people in detention are able to request to

use a private telephone for making calls to IAAAS agents or lawyers. A small

number of people reported that they were aware of this and had done so, but many

did not appear to be aware and raised significant concerns about limited phone

access.

The Commission is concerned that people in detention on Christmas Island are

not permitted to have mobile telephones. This would assist in easing the

pressure on landline telephones, and would greatly enhance detainees’

ability to maintain regular contact with family members, legal representatives

and migration agents.

The Commission also remains concerned about detainees’ limited access

to the internet in the detention facilities on Christmas Island. Again, this

concern has been exacerbated because of the substantial increase in the number

of people detained. Internet access can be a valuable way for people in

detention to maintain contact with the outside world, and is all the more

important when there are so few telephones available.

At the time of the Commission’s visit, there were 23 internet terminals

for the use of 1834 detainees at the Christmas Island IDC; eight terminals for

164 detainees at Phosphate Hill; and 12 internet terminals for 418 detainees at

the Construction Camp. Internet access is generally much slower than on the

mainland. Many detainees expressed frustrations about the limited number of

internet terminals, having to wait in long queues to use a terminal, then not

being able to use it effectively within the time allotted because of the slow

internet speed.[274]

Recommendation 20: 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 telephones

    and that they can make and receive telephone calls in privacy

  • increase the number of internet terminals in each of the detention

    facilities.

 

21.2 Access to

interpreters

Under international human rights standards, all written and oral communications concerning a person in immigration detention and the refugee assessment process should be conveyed in a language and in terms which the person can understand. People who do not understand English, or whose English is not adequate, should be provided with an interpreter when information concerning them is being obtained or conveyed.[275]

As

noted in the Commission’s 2009 report, DIAC has a group of interpreters on

Christmas Island, each of whom stays for a few weeks or months at a time. The

Commission welcomes this; it is a positive contrast to many mainland detention

facilities which rely on telephone interpreters.

At the time of the Commission’s 2010 visit there were 62 interpreters

working on Christmas Island. Interpreters are in very heavy demand for a range

of activities including entry interviews, RSA interviews, security related

interviews, health and mental health appointments and everyday communications

between people in detention and staff.

During its visit, the Commission heard several complaints from people in

detention that interpreters were not always available when requested. For

example, one person told the Commission, “There are problems with

interpreters. There are not enough interpreters for interviews and medical

appointments. Sometimes interviews or appointments are cancelled because there

is no interpreter and rescheduling can take a week or

more.”[276]

However, the main issue raised by detainees was concern expressed by some

people from Afghanistan about not being provided with a Hazaragi speaking

interpreter, and being required to use a Dari speaking interpreter instead. Some

Afghans were concerned that Dari interpreters did not always fully understand

what they said, and did not always accurately interpret for them in

interviews.[277]

This concern was also raised during the Commission’s 2009 visit to

Christmas Island. At the time, DIAC informed the Commission that the problem was

a result of 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. In its 2009 report, the

Commission encouraged DIAC to address the matter as soon as

possible.[278]

The Commission is pleased that since then, NAATI has begun accreditation of

Hazaragi interpreters. However, the Commission understands that currently there

is a limited number of accredited Hazaragi interpreters. The Commission urges

DIAC to work with NAATI to ensure that a sufficient number of Hazaragi

interpreters is available to people in immigration detention, including those on

Christmas Island.

22 Recreation and

education

International human rights standards require that people in immigration

detention 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.[279] In addition, each

immigration detention facility should have a library stocked with recreational

materials in the principal languages spoken by people in

detention.[280]

In its 2008 and 2009 reports, the Commission raised concerns about the

limited recreational facilities at Phosphate Hill and the Construction Camp,

about detainees’ limited access to reading materials and educational

activities and about the limited opportunities for people to leave the detention

environment on recreational

excursions.[281]

Since then, Serco has taken over operation of the detention facilities on

Christmas Island. Under its contract, Serco is required to:

develop, manage and deliver structured and unstructured Programs and

Activities designed to provide educational and recreational opportunities, and

provide meaningful activities that will enhance the mental health and well-being

of individuals in Immigration

Detention.[282]

During its 2010 visit, the Commission was pleased to observe that DIAC and

Serco staff are making positive efforts to provide recreational and educational

activities for people in detention on Christmas Island. The Commission welcomes

a number of positive developments, including a weekly women’s group at the

local community centre, a plan for some detainees to participate in a furniture

restoration program organised by the community centre, and efforts to allow some

detainees to participate in community sporting events.

Despite these efforts, the Commission remains concerned that not all people

in detention are provided with adequate access to recreational facilities and

activities, and educational opportunities. The significant increase in the

number of people detained on Christmas Island has increased the strain in this

regard.

The Commission’s key concerns include the following:

  • the lack of appropriate recreational facilities, particularly in the

    Construction Camp and Phosphate Hill immigration detention facilities

  • the impact of overcrowding on detainees’ access to recreational and

    educational opportunities in all detention facilities

  • the limited access to reading materials for people detained in the

    Construction Camp and Phosphate Hill

  • the very limited opportunities to leave the detention environment,

    particularly for people detained in the Christmas Island IDC and the Phosphate

    Hill facility.

These concerns are discussed below.

22.1 Recreational

facilities and activities

(a) Christmas Island IDC

The Commission’s 2009 report observed that there are good recreational

and educational facilities at the Christmas Island IDC including a gym, a

library room, classrooms, and an art room. There is also a significant amount of

open grassy space that can be used for sports such as cricket and soccer.

The Commission observed extensive use of these facilities during its 2010

visit. As noted last year, it is clear that these facilities are extremely

beneficial in terms of providing people in detention with positive ways to pass

their time.

However, while the recreational facilities at the IDC may be appropriate for

when the centre is operating at its normal capacity of 400 people, they are not

sufficient to meet the needs of a much higher number of detainees. When the

Commission visited, there were 1834 men in the IDC and the facilities were under

serious strain.

In addition, some areas previously used for recreation or education have now

been converted into accommodation. The whole of Education 3 Compound is now

being used for accommodation, and some recreation rooms within the original

accommodation compounds have been converted into dormitory bedrooms.

As discussed in section 17 above, the Commission is particularly concerned

about the lack of recreational facilities in the new Aqua Compound, and the

restricted access that people in Aqua and Lilac Compounds have to the

recreational facilities in the main centre.

Recreational activities are provided by five Serco officers and four ALIV

volunteers in the IDC. According to ALIV’s weekly timetable, art, sewing

and cooking activities are offered each day. Each night different activities are

offered, for example bingo and movie nights.

The Commission welcomes these efforts. However, some people in detention told

the Commission that access to recreational activities was limited due to the

high number of people in the

centre.[283]

(b) Phosphate Hill immigration detention

facility

In its 2008 report, the Commission raised concerns about the lack of

recreational facilities at the Phosphate Hill immigration detention facility.

This concern has been exacerbated by the substantial increase in the number of

people being detained there.

Inside the compound, there is no gym or other indoor recreation space. There

is one demountable containing an internet room and a prayer room. The only other

spaces for recreational use are the two cabana areas, which each contain tables

and chairs, a television and some very basic kitchen facilities. Detainees

reported that when it rains, the rain comes into the cabana areas making it

difficult to use the areas for recreational purposes.

There is a small gym room in a demountable building in the open area at

Phosphate Hill. However, detainees do not have free access to the gym, as it is

outside the compound they are confined to. They can sign up to use the gym

during designated sessions, but only a small number of people can use it each

session and it is shared with people detained in the Construction Camp.

Detainees raised concerns about their limited access to the gym.

There are some organised recreational activities offered inside the Phosphate

Hill facility including yoga, games, music, bingo and movie nights. However,

these appear to be fewer than the activities offered to people in detention in

the Construction Camp or the Christmas Island IDC.

(c) Construction Camp immigration detention

facility

The Commission’s 2009 report expressed significant concerns about the

lack of adequate recreational facilities in the Construction

Camp.[284] As noted in sections 14

and 17 above, those concerns remain, and have been exacerbated by the

substantial increase in the number of people detained in the Construction

Camp.

The Commission continues to have significant concerns about the lack of open

space inside the Construction Camp. As noted above, the Commission welcomes the

extension of the fence line to include the basketball court, as it provides a

much needed area for sports and recreation inside the facility. However, when

the Commission visited, the court was locked and detainees were only being

provided with access to it for two hours each afternoon or

evening.[285]

The Commission also welcomes the fact that detainees are permitted to visit

the oval and playground next to the Construction Camp each weekday afternoon,

under the supervision of Serco officers. However, the Commission remains

concerned that there is no open grassy area inside the Construction Camp

facility that detainees have unrestricted access to, particularly given the high

number of children detained there.

The Commission is also concerned about the lack of indoor recreation space in

the Construction Camp, which means that there are very limited opportunities for

recreation during wet weather. There is one undercover area that can be used for

recreational activities, but it has a concrete floor so it is not particularly

comfortable or appropriate for babies or toddlers. There is also one classroom,

but it is generally only opened for scheduled activities. There are two other

rooms that could be used for recreational activities – the dining room and

another large room nearby. However, these rooms are often being used for initial

processing for new arrivals. Some detainees told the Commission that when it is

raining, there is nowhere to go except inside their

bedrooms.[286]

There is a small gym room inside the Construction Camp that is currently used

as a women’s only gym. While this is positive for female detainees, some

male detainees complained about only being provided with limited access to the

gym room across the road, outside the Phosphate Hill facility.

There are some organised recreational activities provided for people detained

in the Construction Camp including bingo, arts and crafts, games nights and

yoga. Activities specifically for children are discussed in section 14 above.

The Commission welcomes these efforts.

The Commission also welcomes efforts to offer some activities specifically

for women, in particular a weekly women’s group at the local community

centre. However, the Commission also heard some concerns from women in the

Construction Camp about the need for further women’s activities, for

example the opportunity for women to be taken to the oval at a separate time to

male detainees (who greatly outnumber the women).

Recommendation 21: 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 a range of recreational

facilities and activities.

 

22.2 Educational

activities

Under international human rights standards, opportunities for English

language instruction and further education, including technical and vocational

education should be provided for people in immigration detention where

possible.[287]

The provision of education for children in immigration detention on Christmas

Island is discussed in section 14 above.

The Commission’s 2009 report raised concerns about the inadequacy of

the educational opportunities provided for adults detained on Christmas Island,

and the limited availability of reading materials in the detention

facilities.[288]

In response, DIAC noted that a number of ESL classes were being held each

day. DIAC acknowledged that more reading materials in relevant languages were

required for the detention facilities, and noted that the provision of reading

materials was a requirement under Serco’s

contract.[289]

During its 2010 visit, the Commission was pleased to observe that there has

been a significant improvement in the number and range of materials in the

library room at the Christmas Island IDC. However, there remains a lack of

access to appropriate reading materials for people detained in the other

facilities. At Phosphate Hill, there is no library inside the facility. There is

a small library room in a demountable building outside the compound, but people

in detention do not have free access to it. At the Construction Camp there are a

few shelves of donated books in the internet room. While this is an improvement

since the Commission’s last visit, it is not adequate to meet the needs of

the high number of people detained in the Construction Camp.

The Commission also continues to have concerns about detainees’ limited

access to educational activities. Serco records provided to the Commission

indicate that English classes are offered in all detention facilities on a daily

basis. The Commission welcomes these efforts. However, the substantial increase

in the number of people being held in each facility has limited access to these

classes for some people. In particular, many detainees at the Christmas Island

IDC said that classes were overcrowded, or that there was not enough space and

they had been told they would have to wait for several

weeks.[290]

Recommendation 22: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should ensure

that:

  • all detainees have access to appropriate educational activities, including

    ESL classes

  • the Phosphate Hill and Construction Camp immigration detention facilities

    have an adequate supply of reading materials in the principal languages spoken

    by detainees.

 

22.3 Opportunities

to leave the detention environment

The Commission’s most significant concerns about recreational

activities for people in immigration detention on Christmas Island relate to

opportunities to leave the detention environment. This is critical for the

physical and mental wellbeing of people in detention, particularly those

detained for prolonged periods.

In its 2009 report the Commission raised concerns about detainees’

limited access to excursions. The Commission recommended that minimum standards

for the conduct of regular external excursions should be included in the

contract with the detention service provider; that compliance should be

monitored and remedial action taken when the standards are not complied with;

and that sufficient resources should be allocated to ensure that the detention

service provider is able to provide escorts for the conduct of regular

excursions.[291]

In response, DIAC noted that the detention service provider contract includes

a monitoring regime with penalty clauses for

breaches.[292] The contract

governing the three detention facilities on Christmas Island requires that Serco

must include supervised external excursions in the range of programs and

activities offered to people in immigration

detention.[293] However, it does

not specify the number, frequency or type of excursions that must be offered.

During its 2010 visit to Christmas Island, the Commission was pleased to

observe that some positive efforts were being made by DIAC and Serco staff to

provide people in detention with access to excursions. In particular, the

Commission welcomes efforts to provide women at the Construction Camp with the

opportunity to attend a weekly women’s group at the local community

centre, and opportunities for a small number of detainees to participate in a

weekly community sporting activity.

However, because of the high number of people detained on the island, the

limited number of excursions provided is nowhere near enough to ensure that all

detainees – or even a significant proportion of them – are able to

participate. The vast majority of people interviewed by the Commission reported

that they had never been taken on an organised excursion.

The Commission is particularly concerned that people detained in the

Christmas Island IDC and the Phosphate Hill facility are being provided with

very limited opportunities to leave the detention environment. For example, the

Commission was provided with records which indicate that over a one month

period, 41 people were taken from the IDC to visit a local

park.[294] In the four weeks prior

to the Commission’s visit, people detained in the Phosphate Hill facility

were not taken on any organised excursions, although up to 40 people were able

to visit the oval next to the facility on average twice per

week.[295]

At the Construction Camp facility, the Commission welcomes that people are

provided with the opportunity to visit the adjacent oval for a few hours each

weekday afternoon (under the supervision of Serco officers). There are also some

organised excursions from the Construction Camp, including visits to the local

recreation centre and the outdoor cinema. The Commission welcomes efforts by

Serco to organise these excursions. However, only a few people are able to

participate.

Recommendation 23: If the Australian Government intends to continue

using Christmas Island for immigration detention purposes, DIAC should:

  • amend the detention service provider contract applicable to the three

    detention facilities on Christmas Island to require that Serco provide regular

    external excursions for people in detention on the island

  • ensure that the detention service provider is allocated sufficient resources

    to provide escorts for regular external excursions.

 

23 Religion

Under international human rights standards, all people have a right to

practise their religion, either individually or in community with others.

Qualified religious representatives should be allowed to hold regular services

and to pay pastoral visits to people in immigration detention, subject only to

reasonable conditions and restrictions specified by

law.[296]

In 2008 and 2009, the Commission raised concerns about the level of religious

support available to people detained on Christmas

Island.[297] During its 2009

visit, the Commission was concerned that there were no services being conducted

on a regular basis inside the detention facilities, and only a handful of people

were being taken to services outside detention. The Commission recommended that

DIAC ensure that all people in detention are provided with access to regular

religious services conducted by qualified religious

representatives.[298]

In response, DIAC stated that the detention service provider is contracted to

ensure suitable religious services are available at the detention facilities,

and that these are conducted by qualified individuals. DIAC also stated that

excursions to religious services in the community are facilitated where

possible, but this is dependent on available transport and escort

services.[299]

During its 2010 visit to Christmas Island, the Commission was pleased to

observe that efforts have been made to provide people in detention with greater

access to religious representatives, religious services and general pastoral

support. However, further efforts are needed to meet the religious needs of the

high number of people detained on the island.

Some local religious groups on Christmas Island are making significant

efforts to provide as much support to people in detention as they can. However,

as noted in past reports, the small size and limited resources of the Christmas

Island community mean that local groups are not able to meet the religious needs

of such a high number of

detainees.[300]

Local efforts have been bolstered over the past year by increased efforts

from DIAC and Serco to facilitate visits by religious representatives from the

mainland. For example, some support has been provided to the Australian Catholic

Bishops Conference, Jesuit Refugee Service and the Sisters of Mercy to allow

them to maintain a pastoral presence on the island by sending one or two

volunteers for a few weeks or months at a time. This has increased

detainees’ access to general pastoral support, as well as access to

organised religious services for Catholic detainees.

The Commission welcomes this initiative and encourages DIAC and Serco to

extend it to other religions as well. Given the substantial increase in the

number of people detained on Christmas Island, further efforts are required to

ensure that all people in detention – particularly those who practice a

religion other than Christianity – are provided with adequate access to

religious support. In particular, Hindu and Muslim detainees told the Commission

they would appreciate more religious visits, support and

services.[301]

In addition, the Commission remains concerned that many people in detention

are not provided with the opportunity to attend religious services outside the

detention environment. This may be particularly beneficial for those who have

been in detention for a prolonged period.

23.1 Christmas

Island IDC

At the Christmas Island IDC, there are two rooms in Education 2 Compound that

can be used for religious services, and occasionally large services are held in

the open court area in the gym. Some accommodation compounds have a small room

that can be used by detainees for prayer.

Room used for religious services, Christmas Island IDC

There is a Catholic mass in the IDC each Sunday for people who wish to

attend. However, there do not appear to be regular organised services for

detainees of other religions. Some Hindu detainees told the Commission there are

no Hindu visitors.[302] For Muslim

detainees, Serco informed the Commission that the local Imam visits each Friday.

However, some Muslim detainees told the Commission there are no organised prayer

services for them.[303] They also

said they had made several requests for watering cans to allow them to wash

before and after prayers. DIAC informed the Commission they would consider

introducing watering cans or buckets to address this request.

The Commission remains concerned that very few people detained in the

Christmas Island IDC are provided with access to religious services outside the

detention environment. For a time, some Muslim detainees were taken to prayer

services at the island’s mosque, but these visits are no longer conducted.

Serco informed the Commission that visits are conducted to the Christian

Fellowship service and occasional visits are conducted to the island’s

temple. However, it is unclear how regular these visits are. One detainee told

the Commission he was taken out to a weekly Church

service.[304] Others said they do

not get the opportunity to attend services outside the

IDC.[305] Records provided by

Serco indicate that over a month long period during April and May 2010, no

detainees from the IDC were taken to a religious service in the

community.[306]

23.2 Phosphate

Hill immigration detention facility

Inside the Phosphate Hill immigration detention facility, there is a small

prayer room mostly used by Muslim detainees, but no other indoor space in which

to conduct organised religious services.

Prayer room, Phosphate Hill immigration detention facility

There is a Catholic mass once each week for detainees who wish to attend,

held in one of the classrooms located outside the fence line of the facility.

However, there do not appear to be any regular services organised for people of

other religions inside the facility.

The Commission is concerned that not all detainees in the Phosphate Hill

facility are provided with regular access to religious services outside the

detention environment. While Catholic detainees are able to attend a weekly mass

in a classroom next to the facility, they are not able to attend the Catholic

mass at the local Church, despite the Church being happy to have

them.[307] Records provided by

Serco indicate that over a month long period during April and May 2010, the only

religious visits conducted from Phosphate Hill were for nine detainees taken to

the mosque.[308]

23.3 Construction

Camp immigration detention facility

At the Construction Camp immigration detention facility, some accommodation

blocks have a small room that detainees can use for prayers. In other blocks,

detainees pray in their own bedrooms.

Some detainees receive pastoral care visits from a Catholic priest and nun.

However, Muslim and Hindu detainees said they received no visits from

representatives of their

religion.[309]

The Commission is pleased that efforts are being made to take detainees from

the Construction Camp to religious services in the community. Hindu detainees

told the Commission they were taken to the temple on the weekend, and Catholic

detainees told the Commission they were taken to a weekly Church

service.[310] Some Burmese

detainees said they were taken to prayers at the mosque, although some other

Muslim detainees said they were not provided with this

opportunity.[311]

Recommendation 24: 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 – in particular,

    further efforts are required to provide this for detainees who practice a

    religion other than Christianity

  • ensure that detainees have access to religious services in the

    community.

 

Part E: Monitoring

conditions of detention on Christmas

Island

24 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.[312] These should be

based on relevant international human rights standards, in order to ensure that

people in detention are treated in line with Australia’s human rights

obligations.

In its 2009 report, the Commission noted that this concern is heightened on

Christmas Island, as the remote location makes it more difficult for external

bodies to monitor detention conditions

there.[313]

In response to the Commission’s report, DIAC highlighted measures taken

to ensure minimum standards for the treatment of people in immigration detention

including Detention Instructions for departmental staff and service providers;

standards contained in contracts with the detention and health service providers

and monitoring of these by DIAC’s contract management area; and

development by the Royal Australian College of General Practitioners of Standards for Health Services in Australian IDCs (RACGP

Standards).[314]

The Commission welcomes these initiatives. However, other than the RACGP

Standards, these standards are not freely available to the public, there is very

little public reporting about whether the standards are being complied with and

the standards are not legally enforceable.

DIAC’s response to the Commission’s 2009 report also noted that

reform processes were underway to support the implementation of the key values

set out in the government’s New Directions policy – including value

6 which states that people in detention will be treated fairly and reasonably

within the law, and value 7 which states that conditions of detention will

ensure the inherent dignity of the human

person.[315] In this regard, DIAC

highlighted the Migration Amendment (Immigration Detention Reform) Bill 2009.

The Commission welcomed the introduction of the Bill in 2009, but expressed

disappointment at the time that the Bill did not incorporate key values 6 and 7

about treatment and conditions in

detention.[316] Despite this

limitation, the Commission is disappointed that the Bill was not passed.

In the Commission’s view, the most appropriate way to ensure that

standards for detention conditions are adequately and consistently implemented

is to embed minimum standards in legislation. This would be in line with UNHCR

guidelines which require conditions of detention for asylum seekers to be

prescribed by law.[317]

In the mean time, the Commission supports the recommendation made by the

Joint Standing Committee on Migration in 2009 that DIAC should make the contract

standards available on its website and report on detention service

providers’ compliance with the standards in its annual

report.[318]

Recommendation 25: 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.

 

25 Independent

monitoring

Regular independent monitoring of immigration detention facilities is

essential in order to increase accountability and transparency, and to monitor

conditions in order to ensure that they meet internationally accepted human

rights standards.

The Commission acknowledges positive efforts by DIAC to facilitate the

Commission’s visit to Christmas Island, as well as visits by other

monitoring bodies and non-government organisations. The Commission also welcomes

the increased transparency of DIAC’s operations over the past few years.

However, the Commission remains concerned that there is minimal information

available to the general public about the operation of Australia’s

immigration detention facilities and the people detained in them. There is very

little information about the Christmas Island detention facilities on the DIAC

website, and the information that is there is out of

date.[319] During 2010, an

increasing number of places of immigration detention have been established on

the mainland. However there is limited public information about those

facilities, who is detained in them or for how long.

A number of bodies play a role in monitoring the immigration detention

facilities on Christmas

Island.[320] Those bodies have

each visited Christmas Island during 2010. However, the remote location makes

this exercise logistically difficult, time consuming and expensive. It is

difficult for monitoring bodies to visit the detention facilities regularly.

The Commission remains of the view that there is a need for a more

comprehensive monitoring mechanism for Australia’s immigration detention

facilities, particularly those in remote locations such as Christmas Island.

Currently, there is no monitoring body with all of the key features necessary to

be fully effective: independence from DIAC; adequate funding to fulfil the role;

the capacity to maintain an ongoing or regular presence on Christmas Island; a

specific statutory power to enter immigration detention facilities;

comprehensive public reporting for transparency; and the capacity to require a

public response from government.

A more comprehensive monitoring mechanism to ensure that conditions in

immigration detention meet human rights standards could be achieved through the

ratification of the Optional Protocol to the Convention against Torture (OPCAT). In its response to the Commission’s 2009 report, DIAC reported

that the Australian Government was working towards ratification of OPCAT in

2010. The Commission urges the government to work towards this goal as a matter

of priority.

Further, as discussed in section 19 above, the Commission is of the view that

there is a need for rigorous, independent and ongoing monitoring of the delivery

of health and mental health services in immigration detention facilities on

Christmas Island and the mainland. An independent body should be charged with

this function and the Australian Government should ensure that adequate

resources are allocated to that body to fulfil the function.

Recommendation 26: The Australian Government should ratify the Optional Protocol to the Convention against Torture and establish an

independent and adequately resourced National Preventive Mechanism to conduct

regular inspections of all places of detention. This should include all

immigration detention facilities, including those located in excised offshore

places.

 

APPENDICES

Appendix

1: Conduct of visit

The Commission conducted a visit to Australia’s immigration detention

facilities on Christmas Island from 28 May to 3 June 2010. The visit was

conducted by three Commission staff members.

The Commission’s visit to Christmas Island was arranged with DIAC in

advance.

During its visit the Commission undertook the following activities:

  • entry and exit meetings with DIAC and Serco management
  • meetings with DIAC Case Managers
  • meetings with Serco staff
  • meetings with staff members of health and mental health service providers
  • inspections of the Christmas Island IDC, the Construction Camp immigration

    detention facility and the Phosphate Hill immigration detention facility

  • individual and group meetings with people detained at the Christmas Island

    IDC, the Construction Camp immigration detention facility and the Phosphate Hill

    immigration detention facility

  • participation in a ‘Client Consultative Committee’ meeting at

    the Construction Camp immigration detention facility

  • a meeting with Life Without Barriers Independent Observers
  • meetings with representatives of the Attorney-General’s Department and

    the Christmas Island Shire Council

  • meetings with representatives of the Christmas Island District High School,

    local religious groups and other local community

    representatives.

Positive developments and key concerns arising from

the visit were discussed with DIAC and Serco management in exit meetings on

Christmas Island on 3 June 2010. The Commission subsequently raised key concerns

in discussions with a range of senior DIAC officers following the visit.

Appendix 2: Relevant

human rights standards

Human

rights for all people in immigration detention

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[321]

  • the International Covenant on Economic, Social and Cultural

    Rights[322]

  • the Convention against Torture and Other Cruel, Inhuman and Degrading

    Treatment or

    Punishment[323]

  • the Convention Relating to the Status of Refugees and Protocol

    Relating to the Status of

    Refugees[324]

  • the Convention on the Rights of the

    Child.[325]

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.[326]

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

lawfulness of his or her detention before a

court.[327]

Anyone detained should have access to independent legal advice and

assistance.[328]

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

respect for the inherent dignity of the human

person.[329]

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

treatment or

punishment.[330]

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

and for the shortest appropriate period of

time.[331]

Everyone is entitled to respect for their human rights without

discrimination.[332]

The principle of non-refoulement prohibits Australia from returning

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

threatened.[333]

 

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[334]

  • the Standard Minimum Rules for the Treatment of

    Prisoners[335]

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

    their Liberty[336]

  • 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.[337]

In

2000, the Commission drew upon relevant human rights treaties and international

guidelines as a basis for developing the Immigration Detention

Guidelines.[338] These

Guidelines are intended to act as a minimum benchmark against which conditions

in Australia’s immigration detention facilities can be measured.

Human

rights for children in immigration detention

The international human rights that apply to adults (set out above) also

apply to children. In addition, all children are entitled to enjoy the human

rights set out in the Convention on the Rights of the Child, which

Australia is a party to. Human rights of particular importance for

asylum-seeking children and children in immigration detention include the

following:

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

actions concerning

children.[339]

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.[340]

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

treatment or punishment. Children in detention have the right to be treated with

humanity and respect for their inherent dignity, and in a manner which takes

into account the needs of persons of their

age.[341]

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

before a court or other competent, independent and impartial

authority.[342]

Asylum-seeking and refugee children are entitled to appropriate protection

and assistance.[343]

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.[344]

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.[345]

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

development and recovery from past

trauma.[346]

Children have a right to

non-discrimination.[347]


[1] The Commission’s reports

of complaints about alleged human rights breaches in immigration detention are

available at http://humanrights.gov.au/legal/humanrightsreports/index.html.

The Commission’s national inquiry reports are A last resort? National

inquiry into Children in Immigration Detention (2004) (A last resort), at http://humanrights.gov.au/human_rights/children_detention_report/index.html (viewed 2 August 2010), and Those who’ve come across the seas:

Detention of unauthorised arrivals (1998) (Those who’ve come across

the seas), at http://humanrights.gov.au/human_rights/immigration/seas.html (viewed 2 August 2010).
[2] See,

for example A last resort, note 1; Those who’ve come across the seas, note 1.
[3] 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 detention;

examining proposed legislation and commenting on government policies; and

raising public awareness. Further details are available at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9.
[4] The Commission’s 2006,

2007 and 2008 immigration detention inspection reports are available at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9_4.
[5] Australian Human Rights

Commission, 2009 Immigration detention and offshore processing on Christmas

Island (2009) (2009 Christmas Island report). At http://humanrights.gov.au/human_rights/immigration/idc2009_xmas_island.html (viewed 2 August 2010).
[6] See

2009 Christmas Island report, note 5, sections 2,

9-13.
[7] See 2009 Christmas Island

report, note 5, sections 2,

6-8.
[8] See 2009 Christmas Island

report, note 5, section

3.
[9] See, for example Amnesty

International, Australia: Submission to the United Nations Universal Periodic

Review: Tenth Session of the UPR Working Group of the Human Rights Council (2010), at http://amnesty.name/en/library/info/ASA12/001/2010/en (viewed 2 August 2010); Refugee Council of Australia, Submission to the

United Nations Human Rights Council Towards the Universal Periodic Review of

Australia (2010), at http://www.refugeecouncil.org.au/resources/submissions.html (viewed 6 August 2010); Refugee Council of Australia, Australia’s

Refugee and Humanitarian Program 2010/2011: Community Views on Current

Challenges and Future Directions (2010), pp 52-53, at http://www.refugeecouncil.org.au/resources/consultations.html (viewed 2 August 2010); Uniting Church in Australia National Assembly &

Anglican Church, Diocese of Perth, ‘Church leaders voice concerns for

wellbeing of asylum seekers on Christmas Island’ (Media Release, 2 March

2010), at http://www.unitingjustice.org.au/component/content/article/8-refugeesandasylum/212-mrchristmasisland020310.html (viewed 2 August 2010); 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 2 August 2010); 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 2 August 2010); A Grover, Report of the Special Rapporteur on the

right of everyone to the enjoyment of the highest attainable standard of

physical and mental health: Mission to Australia, UN Doc A/HRC/14/30/Add.4

(2010), pp 21-24, at http://www.unhcr.org/refworld/docid/49faf7652.html (viewed 2 August 2010).
[10] Section 494AA(1)(c) of the Migration Act 1958 (Cth) 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

Australian Constitution.
[11] See Universal Declaration of Human Rights (1948) (UDHR), arts 9, 14, at http://www.un.org/en/documents/udhr/ (viewed 5 August 2010); International Covenant on Civil and Political

Rights (1966) (ICCPR), arts 9, 10, at http://www2.ohchr.org/english/law/ccpr.htm (viewed 5 August 2010); Convention on the Rights of the Child (1989)

(CRC), art 37, at http://www2.ohchr.org/english/law/crc.htm (viewed 5 August 2010).
[12] 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 16 September 2010).
[13] See A last resort, note 1, chapter

17.
[14] See Joint Standing

Committee on Migration, Immigration detention in Australia: Facilities,

services and transparency (2009), p 57. At http://www.aph.gov.au/house/committee/MIG/detention/report3/fullreport.pdf (viewed 15 September 2010).
[15] 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 2 August 2010); Department of Immigration and Citizenship, Processing

Irregular Maritime Arrivals, Fact Sheet 75, at http://www.immi.gov.au/media/fact-sheets/75processing-irregular-maritime-arrivals.htm (viewed 2 August 2010).
[16] In

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

‘excised offshore places’. 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.
[17] DIAC provided the

Commission with figures current as of 27 May 2010. These figures list the

nationality of the 2421 people in immigration detention on Christmas Island as

follows: 1322 from Afghanistan, 640 from Sri Lanka, 166 stateless, 103 from

Iran, 85 from Iraq, 33 Burmese, 24 from Indonesia, 10 not yet known, 8 from

Vietnam, 7 from Kuwait, 7 from Somalia, 6 Beduin, 4 from Myanmar, 3 Kurdish, 1

from Bangladesh, 1 from Pakistan and 1 from Yemen.
[18] See 2009 Christmas Island

report, note 5, section

5.3.
[19] Figures provided by

DIAC, current as of 27 May 2010. The number of detainees on Christmas Island

fluctuated during the Commission’s visit. On the final day of the visit (3

June 2010), there were 2435 people in immigration detention on the

island.
[20] Figures provided by

DIAC, current as of 27 May

2010.
[21] Figures provided by

DIAC, current as of 5 August

2010.
[22] As of 10 August 2010,

the highest number of people detained on Christmas Island at any one time was

2652 people on 22 July 2010. Figures provided by DIAC.
[23] Of the 2421 people detained

on Christmas Island, 1765 had been detained for less than three months. This

figure is taken from statistics provided by DIAC, current as of 27 May

2010.
[24] These figures are

taken from statistics provided by DIAC, current as of 27 May

2010.
[25] When the Commission

visited the Christmas Island IDC on 28 May 2010, there were 1834 men detained

there. This had increased to 1877 men by the final day of the Commission’s

visit to Christmas Island (3 June 2010). Figures provided by

DIAC.
[26] Figures provided by

DIAC, current as of 28 May 2010. The number of people detained in the

Construction Camp had decreased to 391 by the final day of the

Commission’s visit to Christmas Island (3 June 2010).
[27] Figures provided by DIAC,

current as of 28 May 2010.
[28] Under section 197AB of the Migration Act 1958 (Cth), the Minister for

Immigration has the power to issue a Residence Determination permitting an

immigration detainee to live at a specified location in the community. This is

known as Community Detention.
[29] As of 27 May 2010, there

were three people in Community Detention on Christmas Island including one adult

male, one adult female and one three year old boy. Figures provided by DIAC.
[30] Figures provided by DIAC,

current as of 27 May 2010. The number of detainees on Christmas Island

fluctuated during the Commission’s visit. On the final day of the visit (3

June 2010), there were 2435 people in immigration detention on the

island.
[31] The Christmas Island

IDC was constructed with a regular capacity of 400 and a surge capacity of 800.

Its capacity has since been progressively increased. When the Commission

visited, there were 1834 men detained in the IDC. The capacity of the

Construction Camp facility is 310 people, according to DIAC. During the

Commission’s visit, there were 418 people detained in the Camp. The

regular capacity of the Phosphate Hill facility is 48 people. It has been

increased to a surge capacity of 168 by adding three large tents. When the

Commission visited, there were 164 men detained in the facility. Figures

provided by DIAC, current as of 28 May 2010.
[32] These ‘alternative

places of detention’ include a detention facility established in Leonora,

Western Australia and several hotels and lodges used on a temporary basis in

Perth, Brisbane and Darwin. People detained in these ‘alternative places

of detention’ remain under supervision in immigration detention. They are

not free to come and go.
[33] See, for example 2009 Christmas Island report, note 5, recommendation 3;

Australian Human Rights Commission, 2008 Immigration detention report:

Summary of observations following visits to Australia’s immigration

detention facilities (2008 Immigration detention report), section 13, at http://humanrights.gov.au/human_rights/immigration/idc2008.pdf (viewed 15 September 2010).
[34] See, for example Australian Human Rights Commission, ‘World Refugee Day

should remind us of our responsibilities to people seeking asylum’ (Media

Release, 20 June 2010). At http://humanrights.gov.au/about/media/media_releases/2010/60_10.html (viewed 2 August 2010).
[35]Migration Act 1958 (Cth), s 5(1). See further note 16.
[36]Migration Act 1958 (Cth), s 46A.
[37] See 2009 Christmas Island

report, note 5, sections

6-8.
[38] See 2009 Christmas

Island report, note 5, sections 2, 6-8.
[39] Department of Immigration

and Citizenship, Response to the Australian Human Rights Commission’s

2009 Immigration Detention and Offshore Processing on Christmas Island

Report (2009) (DIAC 2009 response), pp 4-5. At http://humanrights.gov.au/human_rights/immigration/idc2009_xmas_island_response.html (viewed 3 August 2010).
[40] See,

for example 2009 Christmas Island report, note 5, sections 8.2,

12.4.
[41] See further 2009

Christmas Island report, note 5, sections 2,

8.
[42] See 2009 Christmas Island

report, note 5, sections 3,

8.
[43] Figures provided by DIAC,

current as of 7 July 2009.
[44] See 2009 Christmas Island report, note 5, section

8.2.
[45] Figures provided by

DIAC, current as of 14 July

2010.
[46] Figures provided by

DIAC, current as of 14 July

2010.
[47] See further 2009

Christmas Island report, note 5, section

8.
[48] An asylum seeker who

arrives on the mainland or in another non-excised part of Australia has access

to the refugee status determination system under the Migration Act. As a general

rule, they have access to independent merits review by either the Refugee Review

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

(AAT), if they are refused a protection visa. See Migration Act 1958 (Cth), ss 411(1)(c), 500(1)(b), 500(1)(c), 501(1). Asylum seekers who arrive in

excised offshore places are barred from accessing these mechanisms, by virtue of

the bar in section 46A(1) of the Migration Act which prevents these asylum

seekers from lodging a ‘valid application’ for a visa, including a

protection visa.
[49] The

Minister’s discretionary power is provided in section 46A(2) of the Migration Act 1958 (Cth).
[50] Figures provided by DIAC,

current as of 14 July 2010.
[51] See C Evans, Minister for Immigration and Citizenship, ‘Changes to

Australia's Immigration Processing System’ (Joint Media Release with

Stephen Smith, Minister for Foreign Affairs and Brendan

O’Connor, Minister for Home Affairs, 9 April 2010). At http://www.minister.immi.gov.au/media/media-releases/2010/ce10029.htm (viewed 2 August 2010).
[52] See

Australian Human Rights Commission, ‘Suspension of processing asylum

seekers raises serious concerns’ (Media Release, 9 April 2010). At http://humanrights.gov.au/about/media/media_releases/2010/29_10.html (viewed 2 August 2010).
[53] See

Australian Human Rights Commission, ‘More detail needed on new asylum

seeker policy’ (Media Release, 6 July 2010). At http://humanrights.gov.au/about/media/media_releases/2010/71_10.html (viewed 2 August 2010).
[54] Information provided by DIAC on 10 August

2010.
[55] See Australian Human

Rights Commission, ‘More detail needed on new asylum seeker policy’,

note 53.
[56] Information provided by

DIAC on 7 October 2010.
[57] CRC,

note 11, art 37.
[58] ICCPR, note 11, art

9.
[59] See A last resort, note 1, chapter

9.
[60] See A last resort, note 1, chapter 9 and Executive Summary, Part A, Major

Finding 2.
[61] Interview with

approximately 40-50 Afghan men, Christmas Island IDC, 1 June

2010.
[62] Interview with Afghan

women and their children, Construction Camp, 30 May

2010.
[63] See Australian Human

Rights Commission, ‘Lifting the suspension of processing of Afghan asylum

claims a positive step’ (Media Release, 30 September 2010). At http://humanrights.gov.au/about/media/media_releases/2010/94_10.html (viewed 7 October 2010).
[64] 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) (New Directions). At http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 10 August 2010).
[65] See

further Australian Human Rights Commission, Submission to the Senate Standing

Committee on Legal and Constitutional Affairs on the Migration Amendment

(Immigration Detention Reform) Bill 2009 (2009). At http://humanrights.gov.au/legal/submissions/2009/20090731_migration.html (viewed 2 August 2010).
[66] Under section 196(1) of the Migration Act 1958 (Cth), an unlawful

non-citizen detained under section 189 of the Act must be kept in immigration

detention until he or she is granted a visa or removed or deported from

Australia.
[67] Figures based on

statistics provided by DIAC, current as of 15 July

2009.
[68] Figures based on

statistics provided by DIAC, current as of 27 May

2010.
[69] See New Directions,

note 64.
[70] See 2009 Christmas Island report, note 5, section

9.3.
[71] Interviews with two

groups of Sri Lankan men, Christmas Island IDC, 1 June 2010. One group consisted

of approximately 20 people; the other consisted of approximately 50

people.
[72] Interview at

Christmas Island IDC, 1 June

2010.
[73] Offshore entry persons

are prevented from lodging a ‘valid application’ for a visa,

including a bridging visa, by section 46A(1) of the Migration Act. However, the

Minister could exercise his or her discretion under section 46A(2) of the Act to

permit an individual to apply for a bridging visa. Alternatively, the Minister

could exercise his or her discretion under section 195A of the Act to grant an

individual a bridging visa.
[74] See, for example Those who’ve come across the seas, note 1; A last

resort, note 1; Human Rights and Equal Opportunity Commission, Submission to the Joint Standing Committee on Migration Inquiry into

Immigration Detention in Australia (2008), at http://humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html (viewed 10 August 2010).
[75] See Migration Act 1958 (Cth), ss 189(3),

189(4).
[76] See 2009 Christmas

Island report, note 5, section

9.1.
[77] United Nations High

Commissioner for Refugees, Revised Guidelines on Applicable Criteria and

Standards relating to the Detention of Asylum Seekers (1999), guideline 3.

At http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3c2b3f844 (viewed 9 August 2010).
[78] See

New Directions, note 64.
[79] See 2009 Christmas Island report, note 5, section

9.2.
[80] ICCPR, note 11,

art 9.
[81] CRC, note 11,

art 37(b).
[82] Four of these

individuals are members of a family, consisting of parents with two young

children. In this case, the parents received adverse security assessments from

ASIO.
[83] See New Directions,

note 64; DIAC 2009 response, note 39, p

6.
[84] See 2009 Christmas Island

report, note 5, section

9.2.
[85] See Joint Standing

Committee on Migration, First report of the inquiry into immigration

detention: Immigration detention in Australia, A new beginning (2008),

recommendations 10, 11. At http://www.aph.gov.au/house/committee/mig/detention/report.htm (viewed 9 August 2010).
[86] 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 12.
[87] See note 10.
[88] See DIAC 2009 response, note 39, p 6; Joint Standing Committee on Migration,

note 85, recommendation

14.
[89] See note 12.
[90] See 2009 Christmas Island report, note 5, sections 9.3, 9.4,

13.1.
[91] As of 27 May 2010,

there were three people in Community Detention on Christmas Island including one

adult male, one adult female and one three year old boy. Figures provided by

DIAC.
[92] Figures provided by

DIAC, current as of 5 August

2010.
[93] Minister for

Immigration and Citizenship, Minister’s Residence Determination Power

Under S. 197AB and S. 197AD of the Migration Act 1958: Guidelines (2009)

(Residence Determination Guidelines), paras 4.14,

4.15.
[94] Residence

Determination Guidelines, above, para

5.2.1.
[95] See Migration Act

1958 (Cth), ss 5, 197AC.
[96] See Residence Determination

Guidelines, note 93, paras 5.12,

5.13.
[97] See further Australian

Human Rights Commission, Submission to the Senate Standing Committee on Legal

and Constitutional Affairs on the Migration Amendment (Immigration Detention

Reform) Bill 2009, note 65, section

14.
[98] See 2009 Christmas

Island report, note 5, section

11.
[99] Figures provided by

DIAC, current as of 28 May

2010.
[100] Figures provided by

DIAC, current as of 27 May 2010.
[101] See A last resort, note 1, chapter

3.
[102] See A last resort,

note 1, Executive Summary, Part A, Major Finding 1.
[103] See A last resort, note 1, chapter 9 and Executive Summary, Part A, Major

Finding 2.
[104]Migration

Act 1958 (Cth), s

4AA.
[105] See 2009 Christmas

Island report, note 5, section

11.2.
[106] See Migration

Act 1958 (Cth), ss 189(3), 189(4).
[107] See 2009 Christmas

Island report, note 5, section

11.2.
[108] See further A last

resort, note 1, section 4.3.2; UNHCR, Guidelines on

Policies and Procedures in Dealing with Unaccompanied Children Seeking

Asylum (1997), guidelines 7.6, 7.7, at http://www.unhcr.org/3d4f91cf4.html (viewed 10 August 2010); UNHCR, Revised Guidelines on Applicable Criteria and

Standards Relating to the Detention of Asylum Seekers, note 77, guideline

6.
[109] See further A last

resort, note 1, chapters 6, 17; 2009 Christmas Island report,

note 5, section

11.5.
[110] See, for example

Australian Human Rights Commission, Submission to the Senate Standing

Committee on Legal and Constitutional Affairs on the Migration Amendment

(Immigration Detention Reform) Bill 2009, note 65, section 7; 2009

Christmas Island report, note 5, section

11.
[111] See Australian Human

Rights Commission, Submission to the Senate Standing Committee on Legal and

Constitutional Affairs on the Migration Amendment (Immigration Detention Reform)

Bill 2009, note 65.
[112] Figures provided by DIAC, current as of 5 August

2010.
[113] See A last resort,

note 1, chapter

17.
[114] See New Directions,

note 64.
[115] See 2009 Christmas Island report, note 5, section

11.3.
[116] In DIAC’s

published statistics, people detained at the Construction Camp are counted as

being in ‘Alternative Temporary Detention in the Community’ on

Christmas Island. See, for example Department of Immigration and Citizenship, Immigration detention statistics summary (30 July 2010). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 16 September

2010).
[117] See DIAC 2009

response, note 39, pp

10-11.
[118] See further

Australian Human Rights Commission, Submission to the Senate Standing

Committee on Legal and Constitutional Affairs on the Migration Amendment

(Immigration Detention Reform) Bill 2009, note 65.
[119] See Migration Act 1958 (Cth), s

197AB.
[120] See 2009 Christmas

Island report, note 5, section 11.
[121] See DIAC 2009 response,

note 39, p

10.
[122] Figures provided by

DIAC, current as of 28 May 2010.
[123] At the time of writing,

there were 1950 irregular maritime arrivals in detention on the mainland,

including 439 minors. Only seven of these people were in Community Detention.

Figures provided by DIAC, current as of 5 August 2010.
[124] Residence Determination

Guidelines, note 93, paras 4.1.4, 6.1.2.
[125] See CRC, note 11,

art 28.
[126] See Human Rights

and Equal Opportunity Commission, Immigration Detention Guidelines (2000), section 6. At http://humanrights.gov.au/human_rights/immigration/idc_guidelines2000.html (viewed 10 August 2010).
[127] Information provided by DIAC, current as of 28 May

2010.
[128] Figures provided by

DIAC, current as of 28 May

2010.
[129] CRC, note 11,

arts 28, 31. See further A last resort, note 1, chapters 12, 13,

15.
[130] UNHCR, Revised

Guidelines on Applicable Criteria and Standards Relating to the Detention of

Asylum Seekers, note 77, guideline

6.
[131] Figures provided by

DIAC, current as of 28 May

2010.
[132] Figures provided by

DIAC, current as of 27 May

2010.
[133] See Immigration

Detention Guidelines, note 126, section 8.2. See also CRC, note 11,

arts 6(2), 24, 27; United Nations Rules for the Protection of Juveniles

Deprived of their Liberty (1990), rules 37, 49, at http://www2.ohchr.org/english/law/res45_113.htm (viewed 10 August 2010).
[134] See CRC, note 11, art

19(1).
[135] See further A last

resort, note 1, chapter

8.
[136] See, for example A

last resort, note 1, chapter 5.
[137] See 2009 Christmas

Island report, note 5, section

11.6.
[138] As above.
[139] See DIAC 2009 response,

note 39, p 12.
[140] Department of

Immigration, Procedures Advice Manual 3 (PAM 3), Detention Services Manual,

Chapter 2, Client placement, Minors in detention, para 18.3 (November

2009).
[141] See DIAC 2009

response, note 39, p

12.
[142] Serco, Immigration

Detention Centres – Other Places of Detention (APOD): People in Detention

Under 18 Years, Draft Procedure (Serco draft policy on children) (13

April 2010), section 14.
[143] CRC, note 11, art

37(b).
[144] UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children

Seeking Asylum, note 108, guidelines 7.6, 7.7. See also UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to the

Detention of Asylum Seekers, note 77, guideline

6.
[145] CRC, note 11,

art 20.
[146] Figures provided

by DIAC, current as of 28 May

2010.
[147] Serco draft policy

on children, note 142, section

3.1.
[148] Serco draft policy

on children, note 142, section

5.3.
[149] DIAC, The role of

Independent Person (document provided by DIAC, 29 June 2010).
[150] Current as of 28 May

2010.
[151] Interview with

group of unaccompanied minors, Construction Camp, 30 May

2010.
[152] Interview with

group of unaccompanied minors, Construction Camp, 30 May

2010.
[153] CRC, note 11,

art 20.
[154] CRC, note 11,

art 18(1).
[155] See Immigration (Guardianship of Children) Act 1946 (Cth), s

6.
[156] See Immigration

(Guardianship of Children) Act 1946 (Cth), s

5.
[157] See, for example A

last resort, note 1, chapter 14; 2008 Immigration detention report,

note 33, section 14.5; 2009 Christmas Island report,

note 5, section

11.8.
[158] See for example, A

last resort, note 1, chapters 14, 17; 2009 Christmas Island report,

note 5, section

11.8.
[159] UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children

Seeking Asylum, note 108, guideline 5.7.
[160] See 2009 Christmas

Island report, note 5, section

11.8.
[161] See DIAC 2009

response, note 39, p

13.
[162] Figures provided by

DIAC, current as of 27 May 2010. The number of detainees fluctuated during the

Commission’s visit. On the final day of the Commission’s visit (3

June 2010), there were 2435 people in immigration detention on Christmas

Island.
[163] See Immigration

Detention Guidelines, note 126, section

1.4(a).
[164] When the

Commission visited the Christmas Island IDC on 28 May 2010, there were 1834 men

detained there. This had increased to 1877 men by the final day of the

Commission’s visit to Christmas Island (3 June 2010). Figures provided by

DIAC.
[165] See 2008

Immigration detention report, note 33, section

13.5.
[166] See 2009 Christmas

Island report, note 5, section

12.1.
[167] See note 14.
[168] See DIAC 2009 response, note 39, p

14.
[169] See 2009 Christmas

Island report, note 5, sections 12.2,

12.3.
[170]Migration Act

1958 (Cth), ss 13, 14,

189.
[171] See Immigration

Detention Guidelines, note 126, section

1.1.
[172] See New Directions,

note 64.
[173] See note 14.
[174] See note 164.
[175] On 22 July 2010, there were 2037 people detained in the Christmas Island IDC.

Figures provided by DIAC, August

2010.
[176] Figures provided by

DIAC, current as of 28 May 2010.
[177] On 22 July 2010, there

were 238 people in the tents at the Christmas Island IDC. Figures provided by

DIAC, August 2010.
[178] Figures provided by DIAC, current as of 28 May

2010.
[179] Interview with

group of male detainees, Gold Compound, Christmas Island IDC, 1 June 2010.
[180] See Immigration

Detention Guidelines, note 126, section

9.1.
[181] See Immigration

Detention Guidelines, note 126, section

11.2.
[182] See Immigration

Detention Guidelines, note 126, section

9.3.
[183] See Immigration

Detention Guidelines, note 126, section

9.7.
[184] Interviews with male

detainees, tents in Red Compound, Christmas Island IDC, 29 May 2010.
[185] Interview with group of

male detainees, Aqua Compound, Christmas Island IDC, 29 May 2010.
[186] Interview with male

detainee, tents in Red Compound, Christmas Island IDC, 29 May

2010.
[187] For example,

interview with group of male detainees, tents in Red Compound, Christmas Island

IDC, 29 May 2010.
[188] Figures

provided by DIAC, current as of 28 May

2010.
[189] Interview with

group of male detainees, Lilac Compound, Christmas Island IDC, 29 May

2010.
[190] Interview with

community representative on Christmas Island, 31 May

2010.
[191] Figures provided by

DIAC, current as of 28 May

2010.
[192] See 2008

Immigration detention report, note 33, section 13.5; 2009 Christmas Island

report, note 5, section

12.1.
[193] 2009 Christmas

Island report, note 5, section

12.1.
[194] Information

provided by DIAC, current as of 29 June

2010.
[195] See, for example

ICCPR, note 11, art 10; Immigration Detention Guidelines,

note 126, section 1.3; Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment (1988)

(Body of Principles), principle 1, at http://www2.ohchr.org/english/law/bodyprinciples.htm (viewed 10 August 2010).
[196] See, for example ICCPR, note 11, art 7; Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (CAT), art

2(1), at http://www2.ohchr.org/english/law/cat.htm (viewed 10 August 2010); Immigration Detention Guidelines, note 126, section

17.1; Body of Principles, note 195, principle

6.
[197] See Immigration

Detention Guidelines, note 126, section

9.7.
[198] See Immigration

Detention Guidelines, note 126, section 17.7. See also International

Covenant on Economic, Social and Cultural Rights (1966) (ICESCR), art 12. At http://www2.ohchr.org/english/law/cescr.htm (viewed 10 August 2010).
[199] DIAC, Use of Red Compound, North West Point IDC (document provided by

DIAC, current as of 29 June

2010).
[200] ICCPR, note 11,

art 9.
[201] See, for example

Human Rights and Equal Opportunity Commission, Report of an inquiry into

complaints by five asylum seekers concerning their detention in the separation

and management block at the Port Hedland Immigration Reception and Processing

Centre, HREOC Report No. 24 (2002). At http://humanrights.gov.au/legal/humanrightsreports/hrc_24.html (viewed 11 August 2010).
[202] See, for example Department of Immigration and Citizenship, Immigration

detention statistics summary (30 July 2010). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 16 September

2010).
[203] See 2008

Immigration detention report, note 33, section

13.5.
[204] Figures provided by

DIAC, current as of 28 May

2010.
[205] Figures provided by

DIAC, current as of 28 May

2010.
[206] On 22 July 2010,

there were 187 people detained in the Phosphate Hill immigration detention

facility, including 118 in tents. Figures provided by

DIAC.
[207] Figures provided by

DIAC, current as of 28 May

2010.
[208] On 22 July 2010,

there were 187 detainees in the Phosphate Hill immigration detention facility,

including 118 in tents. Figures provided by

DIAC.
[209] See Immigration

Detention Guidelines, note 126, sections 9.1,

11.2.
[210] Figures provided by

DIAC, current as of 28 May 2010. The number of people detained in the

Construction Camp had decreased to 391 by the final day of the

Commission’s visit to Christmas Island (3 June 2010).
[211] See note 116.
[212] See 2008 Immigration

detention report, note 33, section

13.5.
[213] See 2009 Christmas

Island report, note 5, sections 11.3,

12.1.
[214] When the Commission

visited the Construction Camp in July 2009, there were 99 people detained there

– 25 men, 21 women, 17 accompanied children and 36 unaccompanied

children.
[215] See note 210.
[216] On 19 April 2010 there

were 429 people detained in the Construction Camp facility. Information provided

by DIAC, 3 June 2010.
[217] 76

people in Block A, and 14 people in the converted recreation

room.
[218] Interview with

group of young women, Construction Camp, 1 June 2010.
[219] See Immigration

Detention Guidelines, note 126, sections 9.1, 9.7,

11.2.
[220] See note 195.
[221] See New Directions, note 64, key immigration values 6 and

7.
[222] See, for example 2008

Immigration detention report, note 33, section 2.
[223] Contract between

Commonwealth of Australia represented by Department of Immigration and

Citizenship and Serco Australia Pty Limited, Detention Services Contract

– Immigration Detention Centres (Serco IDC Contract), Schedule 2

Statement of Work, Section 2.2.1, clause

1.1.
[224] Interview with

Afghan man, Construction Camp, 30 May

2010.
[225] Interview with

Iranian man, Christmas Island IDC, 29 May

2010.
[226] Interview with Sri

Lankan men, Christmas Island IDC, 29 May

2010.
[227] For example,

interview with large group of Afghan men, Christmas Island IDC, 29 May

2010.
[228] Interview with Sri

Lankan men, Christmas Island IDC, 29 May 2010.
[229] See ICESCR, note 198, art 12; CRC, note 11, art 24.
[230] See Immigration

Detention Guidelines, note 126, section

13.
[231] See 2008 Immigration

detention report, note 33, section 13; 2009 Christmas Island report,

note 5, section

12.5.
[232] These include DIAC, Identification and Support of People in Immigration Detention who are

Survivors of Torture and Trauma (April 2009); DIAC, Psychological Support

Program for the Prevention of Self Harm in Immigration Detention (April

2009); DIAC, Mental Health Screening for People in Immigration Detention (April 2009).
[233] See, for

example MJ Palmer, Inquiry into the Circumstances of the Immigration

Detention of Cornelia Rau (2005) (Palmer report), recommendations 6.11,

6.12, 6.13, at www.immi.gov.au/media/publications/pdf/palmer-report.pdf (viewed 10 August 2010); A Grover, note 9, para

90.
[234] Palmer report, above,

recommendation 6.11.
[235] E

Proust, Evaluation of the Palmer and Comrie Reform Agenda – including

related Ombudsman Reports (2008). At http://www.immi.gov.au/about/department/perf-progress/evaluation-report/ (viewed 10 August 2010).
[236] Joint Standing Committee on Migration, note 14, p

91.
[237] See 2009 Christmas

Island report, note 5, section

12.5.
[238] For example,

interview with group of male detainees, Christmas Island IDC, 29 May 2010.
[239] Australian Government,

Department of Immigration and Citizenship, Health Services Contract,

Schedule 2 Statement of Work, clause

24.1(g)(i).
[240] Australian

Government, Department of Immigration and Citizenship, Health Services

Contract, Schedule 2 Statement of Work, clause

17.1(d).
[241] For example,

interviews with male detainees, Christmas Island IDC, 29 May 2010.
[242] Residence Determination

Guidelines, note 93, paras 4.14,

4.15.
[243] See ICESCR, note 198, art 12; CRC, note 11, art 24.
[244] See Immigration

Detention Guidelines, note 126, section 14; Standard Minimum Rules for

the Treatment of Prisoners (1955), rule 22(1), at http://www2.ohchr.org/english/law/treatmentprisoners.htm (viewed 10 August 2010).
[245] DIAC, Mental health screening for people in immigration detention (April

2009).
[246] DIAC, Psychological Support Program for the Prevention of Self-Harm in Immigration

Detention (April 2009).
[247] See, for example A last

resort, note 1, chapter 9; GJ Coffey et al., ‘The

meaning and mental health consequences of long-term immigration detention for

people seeking asylum’ (2010) 70(12) Social Science & Medicine 2070.
[248] Interview with Sri

Lankan man, Christmas Island IDC, 29 May 2010.
[249] Interview with Arabic

speaking man, Christmas Island IDC, 29 May

2010.
[250] Interview with

group of asylum seekers, Construction Camp, 31 May

2010.
[251] Interview with

group of Sri Lankan men, Christmas Island IDC, 29 May

2010.
[252] See, for example

2008 Immigration detention report, note 33, section

8.
[253] See, for example Human

Rights and Equal Opportunity Commission, Submission to Joint Standing

Committee on Migration, note 74; A last resort, note 1.
[254] Australian Government, Department of Immigration and Citizenship, Health

Services Contract, Schedule 2 Statement of Work, clause 24.1(b)(i). Note the

one current exception to this is Northern IDC in

Darwin.
[255] Information

provided by DIAC, 29 June

2010.
[256] See Immigration

Detention Guidelines, note 126, section

14.4.
[257] DIAC, Identification and Support of People in Immigration Detention Who are

Survivors of Torture and Trauma (April 2009).
[258] Interview with group of

male detainees, Christmas Island IDC, 29 May

2010.
[259] DIAC, Identification and Support of People in Immigration Detention Who are

Survivors of Torture and Trauma (April 2009), p 3.
[260] As

above.
[261] Residence

Determination Guidelines, note 93, para

4.1.4.
[262] Figures provided

by DIAC, current as of 27 May 2010.
[263] See Immigration

Detention Guidelines, note 126, sections

2.1-2.6.
[264] See 2009

Christmas Island report, note 5, section 12.2.
[265] Serco IDC Contract, note 223, Schedule 2 Statement of Work, Section 2.2.1,

clause 2.4.2.
[266] See 2009

Christmas Island report, note 5, section 12.2.
[267] See DIAC 2009 response,

note 39,

p16.
[268] For example,

interviews with unaccompanied minors, Construction Camp, 30 May 2010.
[269] Interviews with two

groups of Sri Lankan males, Christmas Island IDC, 1 June 2010.
[270] See Immigration

Detention Guidelines, note 126, section

4.
[271] See 2008 Immigration

detention report, note 33, section 13; 2009 Christmas Island report,

note 5, sections 12.3,

12.4.
[272] See 2009 Christmas

Island report, note 5, section

12.3.
[273] See DIAC 2009

response, note 39, p 17.
[274] For example, interviews

with male detainees in Lilac Compound, Education 3 Compound and tents in Red

Compound at Christmas Island IDC, 29 May 2010; interview with group of families

at Construction Camp, 30 May

2010.
[275] See Immigration

Detention Guidelines, note 126, section 2.6.
[276] Interview with Afghan

man, Christmas Island IDC, 29 May

2010.
[277] For example,

interview with group of Afghan men, Construction Camp, 30 May 2010.
[278] See 2009 Christmas

Island report, note 5, section

12.3.
[279] See Immigration

Detention Guidelines, note 126, section

7.2.
[280] See Immigration

Detention Guidelines, note 126, section 4.6.
[281] See 2008 Immigration

detention report, note 33, section 13; 2009 Christmas Island report,

note 5, section

12.6.
[282] Serco IDC Contract,

note 223, Schedule 2 Statement of Work, Section 2.2.1,

clause 1.10.1(a)(ii).
[283] For

example, interviews with male detainees in Aqua Compound and Gold Compounds,

Christmas Island IDC, 29 May

2010.
[284] See 2009 Christmas

Island report, note 5, section

12.6.
[285] Serco informed the

Commission that the court is opened each afternoon from 2.30 to 4.30pm.

Detainees told the Commission it is locked during the day and opened from 7 to

9pm.
[286] Interviews with

detainees, Construction Camp, 30 May

2010.
[287] See Immigration

Detention Guidelines, note 126, section

6.6.
[288] See 2009 Christmas

Island report, note 5, section

12.6.
[289] See DIAC 2009

response, note 39, p 20.
[290] For example, interview

with detainees in tents in Red Compound, Christmas Island IDC, 29 May

2010.
[291] See 2009 Christmas

Island report, note 5, section

12.6.
[292] See DIAC 2009

response, note 39, p

20.
[293] Serco IDC Contract,

note 223, Schedule 2 Statement of Work, Section 2.2.1,

clause 1.10.1(v).
[294] Serco

client movement records, 12 April 2010 - 11 May 2010.
[295] Serco weekly activity

attendance records, May

2010.
[296] See ICCPR, note 11,

art 18; CRC, note 11, art 30; Immigration Detention Guidelines, note 126, section

5.
[297] See 2008 Immigration

detention report, note 33, section 13; 2009 Christmas Island report,

note 5, section

12.7.
[298] See 2009 Christmas

Island report, note 5, section

12.7.
[299] See DIAC 2009

response, note 39, p

21.
[300] See 2009 Christmas

Island report, note 5, section

12.7.
[301] For example,

interview with Sri Lankan men, Christmas Island IDC, 1 June 2010; interview with

Sri Lankan families, Construction Camp, 1 June 2010.
[302] Interview with Sri

Lankan men, Christmas Island IDC, 1 June

2010.
[303] Interviews with

male detainees in various compounds, Christmas Island IDC, 1 June

2010.
[304] Interview with Sri

Lankan male, Christmas Island IDC, 29 May

2010.
[305] For example,

interview with group of Afghan men, Christmas Island IDC, 1 June

2010.
[306] Serco client

movement records, 12 April 2010 – 11 May 2010.
[307] Interview with community

representative, Christmas Island, 31 May

2010.
[308] According to Serco

client movement records for the period 12 April 2010 – 11 May 2010, nine

individuals were taken from the Phosphate Hill immigration detention facility to

the mosque.
[309] Interviews

with Sri Lankan and Afghan people in detention, Construction Camp, 30 May 2010.
[310] Interviews with Sri

Lankan and Vietnamese people in detention, Construction Camp, 31 May

2010.
[311] Interviews with

people in detention, Construction Camp, 30 May and 1 June

2010.
[312] See, for example

2009 Christmas Island report, note 5, section 10; 2008 Immigration

detention report, note 33, section 6; Human Rights and Equal Opportunity

Commission, Submission to the Joint Standing Committee on Migration Inquiry

into Immigration Detention in Australia, note 74, para

114.
[313] See 2009 Christmas

Island report, note 5, section 10.
[314] See DIAC 2009 response,

note 39, pp

7-8.
[315] As

above.
[316] See Australian

Human Rights Commission, Submission to the Senate Legal and Constitutional

Affairs Committee Inquiry into the Migration Amendment (Immigration Detention

Reform) Bill 2009, note 65.
[317] See UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating

to the Detention of Asylum Seekers, note 77, guideline 10.
[318] See Joint Standing

Committee on Migration, note 14, p

100.
[319] See DIAC website, Accommodation at the Christmas Island Detention Centre, at http://www.immi.gov.au/managing-australias-borders/detention/facilities/locations/christmas-island/accommodation.htm (viewed 10 August 2010).
[320] These include the Australian Human Rights Commission, the Commonwealth

Ombudsman, Australian Red Cross, and the United Nations High Commissioner for

Refugees.
[321] ICCPR, note 11.
[322] ICESCR, note 198.
[323] CAT, note 196.
[324]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 10 August 2010).
[325] CRC, note 11.
[326] ICCPR, note 11, art 9(1); CRC, note 11, art

37(b).
[327] ICCPR, note 11,

art 9(4); CRC, note 11, art

37(d).
[328] CRC, note 11,

art 37(d); Body of Principles, note 195, principle

17.
[329] ICCPR, note 11,

art 10(1); CRC, note 11, art

37(c).
[330] ICCPR, note 11,

art 7; CRC, note 11, art 37(a); CAT, note 323.
[331] CRC, note 11, art

37(b).
[332] ICCPR, note 11,

art 2(1), 26; CRC, note 11, art 2(1); ICESCR, note 198, art

2(2).
[333] Refugee Convention,

note 324, art 33(1). This obligation is also implied

in ICCPR, note 11, arts 6, 7; CAT, note 323, art 3;

CRC, note 11, arts 6,

37.
[334] Body of Principles,

note 195.
[335]Standard Minimum Rules for the Treatment of Prisoners, note 244.
[336]United Nations Rules for the Protection of Juveniles Deprived of their

Liberty, note 133.
[337] UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to

the Detention of Asylum Seekers, note 77; UNHCR, Guidelines on Policies

and Procedures in Dealing with Unaccompanied Children Seeking Asylum, note 108.
[338] Immigration Detention Guidelines, note 126.
[339] CRC, note 11, art 3(1).
[340] CRC, note 11, art 37(b).

See also United Nations Rules for the Protection of Juveniles Deprived of

their Liberty, note 133, rule 2.
[341] CRC, note 11, art 37(a),

37(c).
[342] CRC, note 11,

art 37(d).
[343] CRC, note 11,

art 22(1).
[344] CRC, note 11,

art 9(1).
[345] CRC, note 11,

art 20.
[346] CRC, note 11,

art 6(2), 39.
[347] CRC, note 11, art 2.