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DIAC Response to the 2010 Australian Human Rights Commission Report on Immigration Detention on Christmas Island

Department of Immigration and Citizenship

Response to the 2010 Australian Human Rights Commission

Report on Immigration Detention on Christmas Island

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Introduction

The Department of Immigration and Citizenship (DIAC) welcomes the opportunity

to respond to the Australian Human Rights Commission (the Commission) 2010 Report on Immigration Detention on Christmas Island.

DIAC places a high value on the work of the Commission and appreciates the

Commission’s substantial recognition of the hard and consistent efforts of

all those staff supporting the management of Irregular Maritime Arrival (IMA)

Operations on Christmas Island.

As the Commission has acknowledged throughout its report, IMA operations have

expanded significantly in the previous 12 months. In the 2009 – 10

financial year, 5,327 IMA clients have been intercepted in Australian waters and

taken to Christmas Island for initial processing. As at 13 October 2010, there

were 2,770 IMA clients accommodated at various locations on Christmas Island.

This increase in client numbers and the management of this growing cohort in

a remote and confined location such as Christmas Island has created a number of

complexities in the IMA processing environment. DIAC is proud of the way its

staff and service providers have responded to these inherent challenges.

The Commission has outlined a number of specific recommendations related to

Immigration Detention on Christmas Island. DIAC comments in response to these

recommendations are outlined below.

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.

 

Response

It is Government policy that all IMAs are initially processed on Christmas

Island. IMAs are managed in accordance with the Government’s Immigration

Detention Values which ensure that all people in immigration detention are

treated fairly and humanely and any claims for asylum are assessed as

expeditiously as possible.

The Australian Government has a variety of flexible accommodation options

available for use on Christmas Island to manage this process. Where appropriate

and for operational reasons IMA clients and crew can and have been transferred

to the Australian mainland while their processing is finalised. Detention

accommodation is available in both metropolitan and regional areas and sites are

utilised as operationally appropriate.

As the Commission would be aware, the Prime Minister and the Minister for

Immigration and Citizenship announced on 18 October the establishment of new

detention accommodation on mainland Australia to relieve the strain on the

detention network. Additional detention facilities will be opened at Northam in

Western Australia, located about 80km north-east of Perth, which will

accommodate up to 1500 single men, and Inverbrackie in South Australia, located

about 37km east of Adelaide, which will accommodate up to 400 family

members.

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.

 

Response

The retention of ‘excised offshore places’, the mandatory

immigration detention of all irregular arrivals for the management of health,

identity and security risks to the community and the continued use of Christmas

Island for the non-statutory RSA processing of people who arrive at excised

offshore places are matters of Government policy. The Government is committed to

these policies as essential components of strong border control and important

elements in ensuring the integrity of Australia’s immigration program.

In respect of the Commission’s concerns regarding the non-statutory RSA

process, the Government is satisfied that the non-statutory RSA process is

consistent with Australia’s international obligations under the Refuges

Convention, in particular, its non-refoulement obligation, and provides a fair

process for the assessment of asylum claims.

DIAC also wishes to note that all non-refoulement obligations are assessed if

a refugee claim is unsuccessful, to ensure that Australia acts in accordance

with its international obligations. This process of assessment of an asylum

seeker against our international obligations is the same whether the asylum

seeker is onshore or in an excised offshore place.

The Department notes that the Commission is aware that the High Court is

currently considering the validity of the Department’s RSA process. The

High Court is yet to make a decision and the Department is also monitoring the

progress of this matter.

It would not be appropriate to comment further on Recommendation 2 until the

outcome of the High Court’s decision on the constitutionality of the RSA

process is known.

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.

 

Response

When announcing the Government’s key immigration

detention values on 29 July 2008, the Minister for Immigration and Citizenship

emphasised that the new detention values were intended to maintain strong border

security, but also treat people with human dignity.

The Minister made clear that the values would apply on Christmas Island to

the full extent possible within the Government's excision and non-statutory

refugee status processing arrangements, and given the accommodation and other

services that are able to be provided on the island. Substantial progress has

been made in the administrative implementation of these values within the

existing legislative framework.

In accordance with the Government’s Immigration Detention Values minors

and their families will not be held in immigration detention centres but instead

be accommodated in low security alternative places of detention within the

immigration detention network. All other persons are housed in appropriate

accommodation in the immigration detention network.

As the Commission would be aware, the Prime Minister and Minister for

Immigration and Citizenship recently announced the intention to use existing

powers under the Migration Act to progressively place significant numbers of

unaccompanied minors and vulnerable families in residence determination

arrangements. Placement into community detention will be made by the Minister on

a case by case basis.

This move is in recognition of the increasing numbers of families with

children and unaccompanied minors in immigration detention and the lengthening

period of time which some may have been detained during processing of their

claims or finalisation of their cases.

The residence determination arrangements will be rolled out progressively in

partnership with community organisations over the coming months and should go a

large way to providing suitable longer term accommodation for this group of

clients.

The Department notes the Commission’s comments in relation to

security clearance.

All non-citizens seeking to enter Australia are

considered on an individual basis and against legal requirements in

Australia’s migration legislation.

This includes requirements that people meet (where relevant) health,

character and security checks which are undertaken by other agencies and can

take some time. It is absolutely necessary that these legal requirements are

met before people can be settled in Australia.

The timing for the completion of these checks varies, depending on individual

circumstances. Because these checks are treated individually and undertaken on

a case-by-case basis, there is no single timeframe within which the checks can

be completed. Whether people arrive together on a boat or whether they arrive

individually, their cases are still treated on a case-by-case basis depending on

their individual circumstances.

In some cases, it can take some months to get the necessary health, character

and national security clearances from other agencies.

While the Department cannot provide a definitive timeframe for completion of

processing, it liaises regularly with other agencies to ensure checks are

progressed and processing is finalised as soon 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.

 

Response

As noted in the response to Recommendation 2, the retention of ‘excised

offshore places’, the mandatory immigration detention of all irregular

arrivals for the management of health, identity and security risks to the

community and the continued use of Christmas Island for the non-statutory RSA

processing of people who arrive at excised offshore places are matters of

Government policy. The Government is committed to these policies as essential

components of strong border control and important elements in ensuring the

integrity of Australia’s immigration program.

Section 494AA of the Migration Act is part of the excision

arrangements; the Government has no intention to repeal or amend the provisions

of the Migration Act relating to excised offshore places or offshore entry

persons.

DIAC notes that subsection 494AA(3) states that ‘[n]othing in this

section is intended to affect the jurisdiction of the High Court under section

75 of the Constitution’. Clients are therefore able to seek judicial

review of the lawfulness of their immigration detention under domestic law,

pursuant to the High Court’s original jurisdiction.

The Government is considering ways of improving the review of the

appropriateness of detention in line with the Key Immigration Values. Key

Immigration Detention Value 4 of the New Directions in Detention provides

that:

4. Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of

both the accommodation and the services provided, would be subject to regular

review. (emphasis added)

As noted by the AHRC, Senior Officer and Ombudsman’s reviews introduced

under the Government’s Key Immigration Detention Values consider the

appropriateness of the person’s detention, their detention arrangements

and other matters relevant to their ongoing detention and case resolution.

The Government is still determining the effectiveness of these detention

review arrangements before considering the appropriateness of a more expansive

model of judicial review of the decision to detain.

The Department notes the AHRC’s reference to the recommendations of the

Joint Standing Committee on Migration (JSCM). The previous Government had been

considering the three JSCM reports closely and there had been extensive

consultation across affected agencies on options for response. The current

Government will consider the work done to date and will respond to the

Committee’s reports in due course.

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.

 

Response

It has always been the intention that where possible children and their

families be referred for consideration of community detention. The facilitation

of placements has however been limited by the availability of supported

accommodation placements on either Christmas Island or mainland Australia.

Priority is given to those with vulnerability.

As noted in the Department’s response to Recommendation 3, the Prime

Minister and Minister recently announced making greater use of existing powers

under the Migration Act to progressively place significant numbers of

unaccompanied minors and vulnerable families in residence determination

arrangements.

This move is in recognition of the increasing numbers of families with

children and unaccompanied minors in immigration detention and the lengthening

period of time which some may have been detained during processing of their

claims or finalisation of their cases.

The residence determination arrangements will be rolled out progressively in

partnership with community organisations over the coming months and should go a

large way to providing suitable longer term accommodation for this group of

clients.

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? 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:

o detention of children must be a measure of last resort and for

the

shortest appropriate period of time
o the best interests

of children must be a primary consideration
o the preservation of

family unity
o special protection and assistance for unaccompanied

children.

 

Response

As AHRC has noted, in 2005 the Migration Act was amended to affirm the

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

Section 4AA currently states:

(1) The Parliament affirms as a principle that a minor shall only be detained

as a measure of last resort.

(2) For the purposes of subsection (1), the reference to a minor being

detained does not include a reference to a minor residing at a place in

accordance with a residence determination [Community Detention].

While section 4AA affirms the principle that children should only be detained

as a last resort, the principle does not limit the location and nature of any

such detention. The announcement of the Government’s Key Immigration

Detention Values formalised arrangements already in place operationally within

the Department, which ensured that minors would never be detained in an

immigration detention centre.

Additionally, DIAC has implemented a notification process ensuring that

minors are appropriately placed and managed in the detention environment. The

procedure, established in January 2009, ensures senior executive officer

oversight in situations where the detention or removal of a child is being

contemplated.

DIAC maintains that Key Immigration Value 3 which provides that

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

families, will not be detained in an immigration detention centre (IDC)’

broadly reflects our Article 3(1) and Article 37 obligations and is

complied with in relation to children detained on Christmas Island. Although

children fall under the broad mandatory detention framework, they are treated

considerably differently than adults (the facilities at Construction Camp and

AHRC comments in the Report attest to this fact). Furthermore detention

currently is not, and will not be at an IDC under immigration value 3.

Facilities at Construction Camp are designed to ensure that children’s

human rights are protected. The Report also notes the steps undertaken by DIAC

to preserve those rights (such as the right to education). The processing of

asylum claims by children is accorded the highest priority to ensure compliance

with our Article 37(b) obligations under the CROC and that children remain in

facilities for the ‘shortest appropriate period of time’.

DIAC notes AHRC’s claim that children ‘are not free to come and

go’ (page 27). DIAC maintains that children in Construction Camp do in

fact have considerable liberties, and are free to attend school, outings and

other organised activities in order to best permit them to live as unrestricted

as possible while their claims (and that of their families) are assessed.

Page 28 states, ‘[f]urther, 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.’ However we wish to highlight that the

‘immigration detention facilities’ are those which cater to children

and their families, rather than standard immigration detention centres.

Policy documents relating to the treatment of children in detention are

clear:

‘Children can be a vulnerable group of clients, particularly in the

context of compliance operations and immigration detention. The case management

of children presents particular challenges and requires special consideration of

the child’s individual and family circumstances. Although a child will not

be detained in an IDC, it is possible that a child may be subject to other

detention arrangements such as community detention or immigration residential

housing. If a child has been detained, whether or not this is with a parent or

guardian, the child will be actively case managed. The only exceptions might be

children who have been detained with their families and are on a rapid removal

pathway or juvenile foreign

fishers.’[1]

DIAC takes Australia’s compliance with obligations arising under the

Convention on the Rights of the Child extremely seriously, particularly Article

3 (best interests of the child), Article 6 (survival and development of the

child), Articles 9 (preserving the family unit) and Article 28 (education). In

relation to Article 37 (detention as a last resort) we note that AHRC have

identified that DIAC has already moved some families to the mainland and we

consider that facilities are markedly different to that in a regular IDC.

As noted above in response to Recommendation 4, DIAC is currently examining

existing review mechanisms and will consider further options for judicial review

of the detention of 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.

 

Response

DIAC agrees with the Commission that the interrelationship of Commonwealth

and State laws is a complex matter and accepts the need to clarify the

respective roles and responsibilities of DIAC, other Commonwealth agencies and

state child welfare authorities with regard to the welfare and protection of

children who are in detention on Christmas Island. Policy work is being

progressed within DIAC around these issues. As part of this process DIAC will

examine the desirability of clarifying through formal Memoranda of Understanding

the respective roles and responsibilities of State and Commonwealth authorities

with regard to the welfare and protection of children who are in detention on

Christmas Island.

Notwithstanding the need to clarify the interoperability of legislation

relating to children on Christmas Island Territory, in the interim where DIAC

staff have child welfare and protection concerns in respect of children in

immigration detention, they will continue to work with the relevant child

protection authorities through the WA Department for Child Protection.

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.

 

Response

The Immigration (Guardianship of Children) Act 1946 (IGOC Act) creates

the Minister's guardianship obligations towards certain children. It is

recognised that the IGOC Act is outdated and not designed for the purpose for

which it is now used. The Government particularly acknowledges the perceived

conflict of interest between the Minister's role as guardian under the IGOC Act

and being the decision-maker under the Migration Act.

Independent observers from Life Without Barriers are available on

Christmas Island to support unaccompanied minors and attend interviews and other

appointments, as required. The use of independent observers is one way in which

the Department has attempted to address the perceived conflict of interest

issue.

Further, the Department has recently completed a detailed assessment of its

current unaccompanied minor caseload including the age, family composition and

current care arrangements to assess whether the current arrangements are

appropriate and whether the IGOC Act can be used in a more effective way to

further the best interests of children potentially within its scope.

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.

 

Response

DIAC is considering options for softening the appearance of the IDC,

including removal of a number of internal fences and caged walkways. This will

occur where it is possible to do so at an acceptable cost.

DIAC is not considering replacement of the Electronic Detection and Deterrent

Systems (EDDS) with different fencing arrangements, as this would not be

practical or cost-effective. In any case, the facility is being managed in low

security mode and the EDDS is not activated. The EDDS is an accepted form of

security in public places and is used in various situations (such as embassies,

private businesses, etc) – it is not a security feature restricted to

immigration detention centres or other higher security facilities.

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.

 

Response

The Department agrees with the recommendation by the Commission and is

working to ensure that all IMA clients are accommodated in appropriate detention

accommodation with suitable client amenity. As the Commission is aware

accommodation is a scarce resource on Christmas Island and with the increase in

IMA numbers in the recent past, immigration facilities on Christmas Island have

been pushed to capacity.

As an interim operational response the Department has, in the past, utilised

some short-term accommodation strategies, such as the use of marquees and

conversion of communal living areas, to manage the accommodation shortage.

As the Commission would be aware, the Prime Minister and the Minister for

Immigration and Citizenship announced on 18 October the establishment of new

detention accommodation on mainland Australia.

The Department will cease using short-term accommodation such as tents for

immigration detention accommodation and activate these new sites as soon as

possible. The Department believes that this will go a long way to helping

manage the issue of overcrowding on Christmas Island and bring back suitable

levels of client amenity to clients who remain in the facilities on Christmas

Island.

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.

 

Response

The Department agrees with the recommendation by the Commission and is

working to ensure that all IMA clients are accommodated in appropriate detention

accommodation with suitable client amenity. Please refer to the response to

Recommendation 10.

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.

 

Response

The Department agrees with the recommendation by the Commission and is

working to ensure that all IMA clients are accommodated in appropriate detention

accommodation with suitable client amenity. Please refer to the response to

Recommendation 10.

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.

 

Response

The Department agrees with this recommendation and is committed to ensuring

that all persons in immigration detention are treated with dignity and respect.

This includes referring to all clients by name rather than identification

number. Departmental Officers and Service Providers are provided with extensive

pre-deployment training before they are seconded to Christmas Island and this

includes an emphasis on the importance of engaging with clients in a

professional, appropriate and respectful manner.

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.

 

Response

The training provided to DIAC staff dealing with people in immigration

detention stresses the need to treat people with dignity, humanity and respect

at all times. This is included in training for processing teams, detention

operations staff and case managers.

Serco are required contractually to ensure that they train their staff on

these values and the current performance management criteria also reflect the

Government’s Immigration Detention Values. A key reason that Serco was

successful in winning those contracts was because of their demonstrated

alignment of company values with these values.

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.

 

Response

The Detention Health Advisory Group (DeHAG) and its Mental Health Sub-Group

(MHSG), provides DIAC with independent expert advice to design, develop,

implement and monitor health and mental health care services and policies for

people in immigration detention. The DeHAG represents the Department’s

commitment to working in an open and accountable manner with our key health

stakeholders to improve the general and mental health of people under our

care.

The DeHAG’s work program includes site inspections of places of

immigration detention, including the Northern IDC, Airport Lodge APOD, Leonora

APOD, Christmas Island IDC, Villawood IDC, Maribyrnong IDC, Melbourne ITA,

Brisbane ITA and Brisbane APOD. Following these inspections, the DeHAG has

provided expert medical advice on a range of issues, including mental health,

dental services, communicable disease prevention and child health issues. DIAC

has also facilitated four DeHAG meetings, four Mental Health Sub-Group meetings,

up to six meetings of the Community and Public Health Sub-Group. While the

Department considers the DeHAG’s level of funding and activity to be

sufficient to meet the Terms of Reference for the group, the DeHAG is free to

recommend an increase in its resourcing or to propose changes to its Terms of

Reference.

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.

 

Response

On Christmas Island, the Department has contracted International Health and

Medical Services (IHMS) to provide primary health care services to people in

immigration detention at the Christmas Island Immigration Detention Centre at

North West Point and Alternative Places of Detention at Phosphate Hill and

Construction Camp. IHMS provides primary health care services. The Indian

Ocean Territories Health Service (IOTHS) (a commonwealth government agency),

based at the Christmas Island hospital, provides acute care, hospital services

and torture and trauma counselling to all persons in immigration detention and

health care for people placed in Community Detention on Christmas

Island[2].

People in immigration detention on Christmas Island are provided with the

same specialist treatment, including access to dental and optical services, that

is generally available to the general Christmas Island population. Under the

Department’s guidelines, the dental services provided to people in

immigration detention are linked to the period of time spent in immigration

detention. For adults, the focus within the first two years of detention is on

the relief of pain and removal and reduction of disease. Minors are able to

receive preventative and interceptive dentistry services that are made available

to all children by the dental body in the State or Territory where they are

accommodated.

Where a person in immigration detention on Christmas Island is referred to an

external specialist by an IHMS GP, an appointment will be made based on the

urgency of the treatment. Where clients require urgent treatment and/or where a

clinically recommended service is not offered on the island (such as obstetrics

or acute psychiatric services), a decision will be made to transfer the client

to a place of immigration detention in the mainland city where the specialist

appointment has been arranged. Where a referral is not considered to be urgent,

clients are made aware of potentially lengthy waiting times before they may be

seen by a visiting specialist on Christmas Island, or through a routine

(non-urgent) appointment at a public hospital on the mainland.

A mobile dental unit, currently located outside the Northwest Point

Immigration Detention Centre (CI IDC), will become operational following the

grant of the appropriate licences by the Australian Radiation Protection and

Nuclear Safety Agency (ARPANSA) to operate the unit’s x-ray equipment.

The Department anticipates that this will be in November 2010. In addition,

planning has begun on a permanent dental clinic located within the CI IDC. On

completion of the permanent CI IDC dental clinic, the mobile dental unit will be

relocated to the Alternative Places of Detention at Phosphate Hill Bravo/

Construction Camp. The exact timing of the dentist's ongoing visits to

Christmas Island is currently being finalised, however it is anticipated that

these visits will occur on a monthly basis.

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.

 

Response

The Government has introduced three new mental health policies which reflect

best practice approaches to identifying existing mental health issues, providing

psychological support to people in immigration detention, and to preventing

self-harm in immigration detention. The new mental health policies were

developed in consultation with the Detention Health Advisory Group’s

(DeHAG) mental health sub-group and with reference to the Government’s

National Mental Health Policy and standards recommended by the Royal Australian

College of General Practitioners (RACGP).

All people entering immigration detention undergo mental health screening for

signs of mental illness and torture and trauma within 72 hours. Subsequent

mental state examinations are offered to identify any emerging health concerns

that may arise during their time in immigration detention. These occur after

seven days in immigration detention, and then at intervals of six, 12 and 18

months, and then three monthly thereafter. Additional assessments will occur

when triggered, for example, when concerns are raised about a person’s

mental health, or in conjunction with significant events such as the refusal of

a visa application.

People in immigration detention also have on-going access to the Mental

Health Team and can be referred for more specialised care if required. Mental

health services are provided through IHMS and include mental health nurses,

psychologists and psychiatrists who are registered with the appropriate

professional organisations and institutions.

Decisions about the number of medical staff deployed to Christmas Island,

including about the numbers of mental health staff are made by IHMS in

consultation with the Department. As at 12 October 2010, the number of health

professionals (that is, excluding administrative personnel) currently working on

Christmas Island, is 46. This includes four psychologists, nine mental health

nurses and four mental health team leaders.

The Department acknowledges that access to local psychiatric services is

limited on Christmas Island. The Department and IHMS have implemented a

schedule of visits by psychiatrists for people in immigration detention on

Christmas Island with IHMS. As a result of this, a psychiatrist visited

Christmas Island for one week in mid-September 2010 to assist with reviewing

difficult cases, supervising treatment, reviewing medication use,

‘triaging’ cases for referral to the mainland, assisting in the

development of appropriate containment strategies for severe behavioural

disturbance, and providing professional support and advice to the mental health

team. People in immigration detention on Christmas Island who require access to

psychiatry services that are not available on Christmas Island, including those

who are unable to wait for the next scheduled visit by the psychiatrist, are

transferred to the mainland to access these services.

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.

 

Response

The screening arrangements set out in DIAC’s mental health policies

ensure that survivors of torture and trauma are identified and are referred to

health professionals who have experience and training in providing torture and

trauma counselling. All Irregular Maritime Arrivals (IMAs) are provided with an

automatic referral for assessment by a torture and trauma service given the

higher likelihood that they may require counselling.

On Christmas Island, Torture and Trauma counselling is provided by the Indian

Ocean Territories Health Service (IOTHS) at the Christmas Island hospital.

Staffing levels for Torture and Trauma counsellors is determined by IOTHS and

the Department has no direct input into these calculations. However, the

Department recognises the demand pressures on IOTHS counselling services and has

agreed to provide the Christmas Island hospital with a large demountable

building in which to conduct Torture and Trauma counselling. Siting for the

demountable is currently under discussion.

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.

 

Response

The Department completed the roll-out of the Identification and Support of

People in Immigration Detention who are Survivors of Torture and Trauma policy, on Christmas Island in March 2010. New screening arrangements

implemented as part of this policy help ensure that survivors of torture and

trauma are identified and are referred to health professionals with experience

and training in providing torture and trauma counselling. Under these

arrangements, all people entering immigration detention undergo a mental health

screening within 72 hours of their arrival in immigration detention, including

for signs of mental illness or torture and trauma. In addition, given the high

proportion of Irregular Maritime Arrivals (IMAs) who have experienced torture

and trauma, all IMAs are automatically referred for assessment by a torture and

trauma service. For other people in immigration detention, the Health Induction

Assessment includes screening for torture and trauma and, if this is identified,

the person is referred for assessment by a torture and trauma counselling

service.

All clients in immigration detention (whether on Christmas Island or the

mainland) are subject to regular placement reviews to ensure that their current

detention placement remains appropriate. Should clients raise issues relating

to torture and/or trauma, they will be referred to appropriately qualified

health professionals in line with the current mental health policies. Where

medical recommendations regarding a client’s placement are made to the

Department by health professionals, these recommendations will inform the client

placement decisions. In considering these recommendations, and balancing the

risks to the Australian community, the Department will explore alternative

placement options including residential housing. Where considered appropriate,

the Department also refers cases to the Minister for consideration of a

community detention placement in accordance with the s197AB Ministerial

intervention guidelines. In line with part 4.1.4 of these guidelines, clients

with identified torture and/or trauma issues are considered priority cases.

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.

 

Response

IMA clients in immigration detention are given access to a variety of

telecommunications equipment including fixed land lines and internet terminals,

and in the case of family groups in community detention, mobile phones. There

is no restriction on the amount of calls a client can make when in immigration

detention on Christmas Island, other than the need to extend courtesy to other

clients who might be wishing to make a call themselves.

Clients in the Christmas Island Immigration Detention Centre (IDC), the

Construction Camp and the Phosphate Hill facility have access to dedicated

client phone lines at those facilities.

Additional phones were installed in the IDC in December 2009, as

follows:

− Four additional lines into client compounds;

Two additional lines into the temporary tent accommodation; and

− Two

additional lines into education block which was converted to client

accommodation.

In March 2010 a further installation of phone lines was completed,

with:

− Four additional lines installed in the Construction Camp;

and

− Two additional lines installed in the Bravo Compound at

Phosphate Hill B.

As at 1 October 2010 there were a total of:

− 34 dedicated phone

lines and 23 internet terminals at the Christmas Island NWP IDC;

Eight dedicated phone line and seven internet terminal at Aqua

Compound;

− Four dedicated phone line and four internet terminal at

Lilac Compound;

− Six dedicated phone lines and 12 internet terminals

at the Construction Camp

− Four dedicated phone lines and seven

internet terminals at the Phosphate Hill facility.

The department is currently exploring options for installing more computers

with internet access at the Christmas Island IDC and at the Phosphate Hill

facility and arranging for internet access to be made available on existing

computers.

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.

 

Response

Clients in immigration detention on Christmas Island are offered a range of

activities including courses in Australian history, social development and

gardening, yoga, sewing, cooking classes, bingo nights, trivia, movie nights,

music classes, arts and crafts, badminton, volleyball, group fitness training,

indoor cricket, indoor football, basketball, furniture restoration and tennis.

Clients can also access library services and internet and telephone services.

The Detention Services Provider ensures that people accommodated at the

Construction Camp have access to a broad range of age and gender appropriate

activities whilst they are in immigration detention, including providing

programs exclusively for female clients. Activities for clients accommodated at

the Construction Camp include, gym, swimming, arts and crafts, and dance

classes. Some other activities such as weekend sport and movie nights are

offered for all clients together.

There are approximately 19 volunteers from the Australian League of

Immigration Volunteers (ALIV) who conduct these courses and activities.

Volunteers are flown to Christmas Island from the mainland aboard DIAC charter

aircraft. The Detention Service Provider also employs a small number of staff

to coordinate the activities provided to clients. Serco, through ALIV, offer

at least one activity in the morning and one in the afternoon (each day) for

people in detention at each site on Christmas Island.

DIAC continues to work with Serco to ensure adequate activities for clients

from Construction Camp and Phosphate Hill during periods of wet weather.

Generally, this is achieved by greater utilisation of the Christmas Island

Recreation Centre. Indoor sports such as basketball, netball and volleyball can

be played there. The centre and other rooms are used for dancing, craft

and other such 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.

 

Response

Daily English classes are run for clients at Construction Camp from 9-12 am

each morning. Similar classes are run for clients at Phosphate Hill (Bravo) each

afternoon. At Christmas Island IDC six classrooms are used each day between 9am

and 4.15pm (6 days per week) to run English classes. Three classrooms are used

to run basic English skills (such as alphabet and numbers) and a further three

are used to run classes for people from the same language group (i.e. English

classes for those who speak Hazaragi, etc). There are also some advanced English

classes. At Aqua/Lilac compounds, both ALIV-run and client-lead English classes

are run between 10am and 4pm.

Art classes, social development classes, Australian history and culture

classes and other general skilled classes for example gardening, sewing, cooking

are also run at the three facilities intermittently - dependent on the available

skills of the ALIV volunteers.

Both libraries in Phosphate Hill and Construction Camp are a collection of

sources, resources, and services available to clients. They are places for

clients to access information in many formats and from many sources. Clients

are provided with a free and open access environment to our libraries where

they can read, and borrow books.

Library facilities are open seven days a week from 0900 - 1700 and upon

request. The collection of books for children includes easy reading, story

books, non fiction and easy educational reading. Junior to young adults have a

collection of novels, comics, and magazines. For adults and advance learners

there are biographies, adult novels, encyclopaedias and educational resources.

As most clients are of Afghani, Iranian and Arabic origin books are

demographically selected in their language to provide them a better

understanding of information. Phosphate Hill library has an extended service

by providing material by electronic means.

Over the past two months more than $30 000 worth of toys were provided for

Children at Construction camp and $16 000 of audio visual materials and books

for Christmas Island IDC.

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.

 

Response

A range of external activities are offered to clients each week. Aside from

weekly soccer matches between clients at the soccer club and dance classes at

the Recreation Centre, clients are offered two-hour excursions - which involve

two escorted groups of 30 clients (one in the morning and one after lunch) -

each Saturday, in two busses. Excursions include visits to local sites such as

South Point, Margaret Knoll and Territory Park. Clients are selected for these

escorted excursions on the basis of the length of time in detention – that

is, longer term clients are given priority.

Construction Camp, Phosphate Hill and Christmas Island IDC clients can also

go outside the centre regularly in the company of a Designated Person (a person

authorised by the Secretary of the Department, or the Secretary’s

delegate). In September, there were 12 such outings, involving around 50

clients.

Phosphate Hill clients are generally able to leave the detention environment

to attend the cricket oval for periods between 0600 to 1700 for sports and

exercise, this includes walking groups, cricket, soccer and other recreational

activities.

Around 15 clients from Phosphate Hill are also involved in the Furniture

Restoration program between 0900 and 1200 each weekday morning.

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.

 

Response

A range of religious services are also provided to clients by the Detention

Service Provider. For Muslim clients, visiting Imams are invited into the

immigration facilities to meet with clients and provide religious services. In

addition, around 30 clients from Construction Camp regularly attend the

Christmas Island Mosque, approximately 39 clients make weekly visits to the

island's Hindu Temples per week, and around 23 clients attend the Buddhist

temples. Further, the president of the Christmas Island Islamic Council visits

the Christmas Island IDC on a weekly basis to pray with Muslim clients in

detention. The clients are provided with washing facilities to prepare for

prayers.

Each Sunday, between 15 and 20 clients from Construction Camp and Phosphate

Hill join with around 30 clients from the Christmas Island IDC in going to the

Christmas Island Catholic Church. Around 20 clients from the IDC also attend the

Christmas Island Christian Fellowship service. A Catholic Church service is also

run in the Phosphate Hill compound each Monday afternoon. Three designated

persons also regularly take clients from the IDC , Construction Camp and

Phosphate Hill to the local Catholic Church.

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.

 

Response

DIAC does not consider it necessary to enact standards in legislation in

order to meet Australia’s human rights obligations. While the large

numbers of irregular maritime arrivals have increased the challenges in

providing detention services, DIAC and its detention services provider always

endeavour to meet relevant standards.

Australia adheres to Articles 20-24 of the Refugees Convention and ensures

that people seeking asylum, including those in immigration detention, have their

basic needs met, including access to food, clothing, shelter and medical

assistance.

Detention services and their delivery are also subject to an external

scrutiny and accountability framework which incudes the Parliament and a number

of statutory authorities such as the Commonwealth Ombudsman, the Privacy

Commissioner and the Australian Human Rights Commission.

Consistent with domestic law and international obligations, the Australian

Government facilitates access by people in immigration detention to legal advice

and representation.

As part of the Government’s commitment to ensuring the appropriateness

of the conditions of immigration detention, new contractual arrangements for

detention services have a strong focus on the rights and wellbeing of people in

immigration detention. These arrangements provide a comprehensive framework for

ongoing quality improvement, including an effective performance management

system.

Contracts with service providers are informed by the Government’s New

Directions in Detention policy, including the seven Key Immigration Detention

Values. These new arrangements enhance oversight of service provider operations

and align the needs of an individual in immigration detention with the most

appropriate accommodation option.

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.

 

Response

The Australian Government signed the Optional Protocol to the CAT in May

2009. The Australian Government, with the Attorney-General’s Department

as the lead agency, is currently working towards ensuring that Australia’s

domestic legal system complies with the Optional Protocol, prior to

ratification.

DIAC recognises that immigration detention facilities will be covered by the

obligations under the OPCAT and will cooperate with the relevant scrutiny

mechanisms once they are in place.


[1] Migration > 21/8/2010 - >

P. 21/8/2010 - > PAM3 - MIGRATION ACT > Compliance instructions >

Compliance, case management & detention > Treatment of children - Guiding

principles
[2] There are currently

no people in Community Detention on Christmas Island.