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DIAC Response to the 2011 Australian Human Rights Commission Statement on Immigration Detention at Curtin

Australian Government: Department of Immigration and Citizenship logo

Response to the Australian Human Rights Commission

Statement on Immigration Detention at Curtin

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Introduction

The Department of Immigration and Citizenship

(DIAC) welcomes the opportunity to respond to the Australian Human Rights

Commission (AHRC) Public Statement on Immigration Detention in

Curtin.

DIAC places a high value on the work of the AHRC and

appreciates the AHRC’s substantial recognition of the hard and consistent

efforts of all those staff supporting the management of clients at Curtin

Immigration Detention Centre (Curtin IDC).

The AHRC has outlined a number

of key issues related to Immigration Detention Curtin IDC. DIAC comments in

response to these recommendations are outlined below.

Recommendation

1: The Australian Government should end the current system of mandatory and

indefinite immigration detention.

The Australian Government should

implement reforms it announced in 2008 under which immigration detention is to

be used as a last resort and for the shortest practicable period, people are to

be detained in the least restrictive environment appropriate to their individual

circumstances, and there is a presumption that people will be permitted to

reside in the community unless they pose an unacceptable risk.

The

need to detain should be assessed on a case-by-case basis taking into

consideration individual circumstances. That assessment should be conducted when

a person is taken into immigration detention or as soon as possible thereafter.

A person should only be held in an immigration detention facility if they are

individually assessed as posing an unacceptable risk to the Australian community

and that risk cannot be met in a less restrictive way. Otherwise, they should be

permitted to reside in community-based alternatives while their immigration

status is resolved.

The Australian Government considers immigration

detention to be an essential component of strong border control. In line with

the Government’s approach to immigration detention, mandatory detention is

applicable to the following groups of people:

  1. all unauthorised arrivals for the management of health, identity and

    security risks to the community;

  2. unlawful non-citizens who present unacceptable risks to the community;

    and

  3. unlawful non-citizens who repeatedly refuse to comply with their visa

    conditions.

The decision to detain is based on an assessment of

risk. In the case of a person who arrived in Australia lawfully and

subsequently became unlawful, the decision to detain is based on an assessment

of the risk that person may present to the Australian community, or to the

integrity of the migration program through repeated refusal to comply with their

visa conditions. In the case of irregular maritime arrivals who have not given

the Government an opportunity to assess any health, identity or security risks

to the community they may present, the Government has made the judgement that

they will be detained for the purposes of assessing and managing those

risks.

Mandatory detention, along with strong border security measures,

ensures the orderly processing of migration to our country.

It remains

the Government’s position that indefinite or otherwise arbitrary

immigration detention is not acceptable and the length and the conditions of the

detention are subject to regular review. The reviews consider the lawfulness

and appropriateness of the person’s immigration detention, their detention

arrangements and other matters relevant to their ongoing detention and case

resolution. Continuing immigration detention is dependent upon factors such as

the management of health, identity and security risks and ongoing assessments of

risks to the community or the integrity of Australia’s migration

programs.

A person in immigration detention can seek judicial review of

the lawfulness of their detention in the Federal Court or High Court of

Australia. A person in immigration detention may generally also seek merits or

judicial review of the visa-related decision that resulted in them remaining or

becoming an unlawful non citizen and being liable for detention, including a

decision to refuse a bridging visa once they are detained.

We note the

Australian Human Rights Commission’s (AHRC) previous position that a

legitimate purpose of immigration detention can be for the purposes of

conducting security checks. The screening mechanisms in place ensure that

Australia is protected from people who may pose a risk to our national security.

Detention of unauthorised arrivals for the purpose of managing health, identity

and security risks to the community is a reasonable and proportionate approach

which also enables Australia to meet its obligations to those who are found to

be in need of protection.

Following an announcement on 18 October 2010, the

Government has expanded its existing community-based arrangement program, moving

significant numbers of people out of immigration detention facilities into

community-based accommodation.

DIAC is managing the implementation of the

expanded community-based arrangements. The Minister's Council for Immigration

Services and Status Resolution (CISSR) is working closely with DIAC to support

this process.

Recommendation 2: The Australian Government should

comply with its international human rights obligations by providing for a

decision to detain a person, or a decision to continue a person’s

detention, to be subject to prompt review by a court. To comply with article

9(4) of the ICCPR, the court must have the power to order the persons 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, which affirms the right to

liberty and prohibits arbitrary detention.

DIAC notes the

AHRC’s view that Australia is not complying with its international

obligations in this regard and that the AHRC has cited the views of the United

Nations Human Rights Committee in A v.

Australia[1]. Australia disagreed

with that Committee’s interpretation of Article 9(4) of the International

Covenant on Civil and Political Rights and expressed to the Committee its view

that, under that Article, judicial review needs to be available to consider the

lawfulness of detention in the context of domestic law rather than the issues of

arbitrariness.

Nevertheless, the Government is considering ways of

improving the review of the appropriateness of detention.

As stated in

the response to recommendation 1, the length and conditions of detention,

including the appropriateness of both the accommodation and the services

provided, are subject to regular review. These reviews are conducted every

three months and alternate between senior officer reviews conducted by DIAC and

Commonwealth Ombudsman reviews. The reviews consider the lawfulness and

appropriateness of the person’s detention, their detention arrangements

and other matters relevant to their ongoing detention and case

resolution.

In addition, a person in immigration detention can seek

judicial review of the lawfulness of their detention in the Federal Court or

High Court of Australia. A person in immigration detention because of the

refusal of a visa or cancellation of a visa, may generally also seek merits or

judicial review of the visa decision that resulted in them becoming an unlawful

noncitizen and being liable for detention, or of a decision to refuse a bridging

visa once they are detained. This is consistent with Article 9(4) which, in

Australia’s view, requires courts to be empowered to assess whether the

detention is lawful according to domestic law.

Immigration detention is

also subject to regular scrutiny from external agencies such as the AHRC, the

Commonwealth Ombudsman, the United Nations High Commissioner for Refugees and

the CISSR to ensure people in immigration detention are treated humanely,

decently and fairly.

Recommendation 3: Until the above recommendations

are implemented, the Australian Government should avoid the prolonged detention

of asylum seekers by complying with its New Directions in Detention policy under which detention of asylum seekers is for conducting health,

identity and security checks. The security check should not be interpreted as

requiring a full ASIO security assessment before an individual is released from

an immigration detention facility. Rather, the security check should consist of

an assessment of whether an individual would pose an unacceptable risk to the

Australian community if they were given authority to live in the community. That

assessment should be made when the individual is taken

into immigration detention, or as soon as possible

thereafter.

People who arrive in Australia without

the appropriate authority do not provide the Government with an opportunity to

assess any risks they might pose to the Australian community prior to presenting

at the border. These unauthorised arrivals are detained for the purposes of

managing health, identity and security risks. In contrast, people who arrive

lawfully have already been assessed including in relation to character, health,

identity and bona fides.

The Government's approach to immigration

detention is based on a set of values that take a risk-based approach to

immigration detention and seek a prompt resolution of cases. The values commit

DIAC to detention as a last resort, to detention for the shortest practicable

period and to the rejection of indefinite or otherwise arbitrary

detention.

DIAC uses a number of programs which provide flexibility in

the provision of services to people in immigration detention. These arrangements

include community detention facilitated by organisations such as the Australian

Red Cross, detention in immigration residential housing or immigration transit

accommodation and foster care arrangements for unaccompanied minors.

All

clients in immigration detention are subject to regular departmental senior

officer reviews and Commonwealth Ombudsman reviews, which include assessment of

the appropriateness of the client’s placement. In considering the

recommendations from these reviews and balancing the risks to the Australian

community, DIAC explores alternative placement options. Where considered

appropriate, DIAC also refers cases to the Minister for consideration of a

community detention placement in accordance with the s197AB Ministerial

intervention guidelines.

The Minister for Immigration and Citizenship

announced on 29 June 2011 that the Government met its commitment to move the

majority of children and a significant number of vulnerable families from

facility based detention into community–based arrangements by the end of

June 2011. As of 12 September 2011, the Minister had approved 1887 people for

community detention placement, including 890 children (which also includes 302

unaccompanied minors).

DIAC is working to move the current priority

groups into community detention over the coming months. These groups include

the youngest unaccompanied minors, families with young children, single parent

families, families with pregnant women and other particularly vulnerable

families, older unaccompanied minors and other family groups. DIAC is also

looking to place a small number of low risk, compliant, vulnerable single adult

men who may have experienced torture or trauma into community detention. The

capacity for this to occur is limited by the availability of suitable

accommodation and support services in the community.

Recommendation 4:

The Minister for Immigration and DIAC should make the greatest possible use of

community-based alternatives to holding people in immigration detention

facilities. This should include:

  • Alternatives to detention such as bridging visas. While people who arrive

    in excised offshore places are barred from applying for a bridging visa under

    the Migration Act, the Minister retains discretionary powers to either lift that

    bar, or to grant a bridging visa to a person in immigration

    detention.

  • Alternative forms of detention such as community detention. If a person

    cannot be granted a bridging visa and must be held in immigration detention, the

    Minister and DIAC should make the greatest possible use of community detention.

    This should apply to all people in immigration detention, particularly those who

    meet the priority criteria under the Residence Determination

    Guidelines.

While immigration detention is a key component

of immigration compliance, it is only one tool in a suite of management options

available. If a client is not an unauthorised arrival and poses no unacceptable

risk to the community or the integrity of Australia’s migration programs,

a bridging visa is usually granted while their status is resolved and they

remain in the community.

All clients in immigration detention are subject

to regular departmental senior officer reviews and Commonwealth Ombudsman

reviews, which include assessment of the appropriateness of the client’s

placement. In considering the recommendations from these reviews and balancing

the risks to the Australian community, DIAC explores alternative placement

options. Where considered appropriate, DIAC also refers cases to the Minister

for consideration of a community detention placement in accordance with the

s197AB Ministerial Intervention guidelines under the Migration Act

1958.

On 18 October 2010, the Australian Government announced an

expansion of its existing Residence Determination (or community detention)

program to progressively move significant numbers of children and vulnerable

family groups out of immigration detention facilities and into community-based

accommodation by the end of June 2011. Whilst residence determination is not a

visa grant, it allows children and their families to move about in the community

under the care of the Commonwealth and its Non-Governmental Organisation (NGO)

partners.

As per the response to recommendation 2, the majority of

children and a significant number of vulnerable families were moved from

facility based detention into community–based arrangements by the end of

June 2011. DIAC is working to move the current priority groups into community

detention over the coming months. As stated in the response to recommendation

3, the capacity for this to occur is limited by the availability of suitable

accommodation and support services in the community.

The Australian Red

Cross is the lead agency contracted by DIAC to deliver community detention. The

Australian Red Cross are working with other NGOs, including church groups, to

source accommodation without putting extra pressure on housing that is already

in demand from vulnerable Australians.

Recommendation 5: In relation

to processing of refugee claims:

  • the Australian Government should take ongoing steps to ensure the

    quality, fairness and rigour of the process used to assess peoples refugee

    claims

In July 2011, the Government strengthened the senior

reviewer ranks of Independent Protection Assessment Office (IPAO) reviewers by

appointing four highly experienced and skilled refugee decision makers from the

Refugee Review Tribunal (RRT) to fill the roles of Principal Reviewer and Senior

Reviewers.

These appointments provide a heightened level of

professional leadership and supervision of reviewers’ performance and

quality of work. Additional appointments of RRT members were made in July 2011

and further appointments are anticipated.

A strong professional

development program has been maintained throughout 2010-2011 and is being

further developed with a practical focus on training and workshopping key

natural justice and refugee law issues, country of origin information, interview

techniques and the effective use of interpreters.

The Principal Reviewer

and Senior Reviewers play a key role in this professional development, providing

professional leadership, guidance and advice, including quality assuring of

decisions, counselling, supporting and monitoring reviewers’

work.

Since April 2010, six training workshops and/or inductions have

been held with reviewers to address effective and timely decision-making, the

use of country information, decision quality and consistency, and professional

development needs.

Workshops and induction sessions have also focussed on

consistency in approaches to decision-making (a Code of Conduct issue), use of

and consistency in interpretation of country information as well as on

complementary protection and humanitarian issues.

International country

experts are sourced to provide presentations to reviewers on the circumstances

prevailing in particular countries of interest, for example, Afghanistan and

Pakistan.

Each workshop program has contained specific training on

natural justice requirements, focussing from December 2010 on the High Court

Decision in M61 and M69 v Commonwealth.

RRT country advisers and

refugee law experts also participate in the training and development of

reviewers, both within and outside formal workshops. New reviewers are required

to obtain the advice of the RRT’s legal advisers for their first five

decisions and have ongoing access to this legal service and to country advice

staff through a MOU operating between the IPAO and the RRT.

Mentoring

arrangements for new reviewers operate to ensure they are oversighted initially

by their Senior Reviewer and are assisted in the conduct of their reviews by an

experienced reviewer mentor. Each new reviewer also has their first five draft

recommendations commented on by their mentor and their Senior

Reviewer.

Quality assurance is also provided in other ways, including by

the Courts, the Principal Reviewer and the CEO IPAO.

From 1 January 2011

to date 247 persons have sought judicial review out of 403 ‘affirm’

reviewer reports. There have been 14 reviewer reports upheld by the Courts and

six reports found to contain legal error.

  • DIAC should increase information flow to asylum seekers in immigration

    detention so that each person is kept informed about processing steps, estimated

    timeframes and progress with their individual case

DIAC

agrees with this recommendation and has recently been implementing a range of

measures to improve information flow to clients. DIAC staff work with complex

and challenging caseloads in dispersed and remote places. To address this, a

number of formal communication guides and client information sheets have now

been developed for use by Case Managers to ensure that they provide accurate

information to clients about the options available to them to resolve their

immigration status. In addition this enables them to also provide regular

information to clients about the expected timeframes in relation to the progress

of their case.

Regular face to face team briefings are held between staff

and team leaders at immigration detention centres and significant issues around

information flow and/or communication are raised with Global Managers and

Program Leaders so that they can be addressed. Policy and program support areas

provide staff with specific scripts, Frequently Asked Questions, notification

letters and information sheets to enable staff to communicate clearly with

clients about the options available to them and the expected timeframes around

the progress of their individual case.

Regular visits to immigration

detention centres by senior staff and frequent communication in the form of

video or telephone conferences (including information sessions) help to underpin

a two-way communication process. This also ensures DIAC Case Managers have

accurate information about policy parameters that help them inform clients about

how they can regularise their immigration status, including making decisions to

discontinue their claims for asylum and depart from Australia.

  • DIAC should ensure that IAAAS contractual and funding arrangements

    provide for migration agents to spend sufficient time with their clients

    preparing for interviews and lodgement of written

    submissions

DIAC’s Immigration Advice and Application

Assistance Scheme (IAAAS) Service Providers are contractually obligated to

ensure that their clients are regularly kept informed of the progress of their

claims for protection.

IAAAS Service Providers produce their own

information material that describes their agency-specific arrangements for

managing contact between themselves and their clients. Communication between a

client and their migration agent is regular and ongoing throughout the client's

immigration pathway.

IAAAS Service Providers are also required to

explain, through the use of an interpreter, the extent of the service to be

provided including time spent in preparation for an interview or lodgment of a

written submission.

DIAC and the IAAAS Service Providers have an agreed

IAAAS Communication Protocol for clients and Providers under Protection

Obligations Evaluation (POE) arrangements. This protocol sets out the

expectations of DIAC, the IAAAS Service Providers and DIAC’s Detention

Service Provider, Serco, in facilitation of timely contact between clients and

providers.

The amount of time spent on preparation for interview or

lodgement of written submissions can vary on a case by case basis and is

dependent on the complexity of the claims.

DIAC continues to improve the

facilitation of timely communication between provider and client, including the

provision of sufficient opportunities for providers to assist clients with the

lodgement of written submissions. In September 2011, DIAC commissioned an extra

8-10 rooms at Curtin IDC specifically for the use of providers to interview

their clients. Provider access to their clients is facilitated within 24 hours

of a request by either client or provider.

A client who is unable to

contact their agent or is unhappy with the level of service provided can

complain to the Director of Client Support and Liaison Section who manages the

delivery of IAAAS services to people in immigration detention or, alternatively,

to the Commonwealth Ombudsman.

  • DIAC should ensure that all asylum seekers in immigration detention are

    aware of their ability to lodge a complaint about their migration agent with the

    Office of the Migration Agents Registration Authority

When

clients are engaged with IAAAS they are given comprehensive information about

the service in an IAAAS Client Information Leaflet. This leaflet

includes advice regarding complaint mechanisms. Clients sign an acknowledgment

that they fully understand the information and that they agree to use the

service.

The IAAAS Client Information Leaflet informs clients that

if they are dissatisfied with the services provided to them by their IAAAS

provider, they may complain to DIAC. Clients are informed that DIAC will

investigate the complaint and, where appropriate, refer the matter to the Office

of Migration Agents Registration Authority (MARA) which is responsible for

regulating the migration advice industry. The leaflet advises clients that MARA

will independently investigate their complaint and, if appropriate, take

disciplinary action against the migration agent.

  • additional reviewers should be appointed to minimise waiting periods for

    independent merits review interviews and decisions

The

Government has recently strengthened the management of IPAO reviewers by

appointing a Principal Reviewer and 3 Senior Reviewers. Each Senior Reviewer

has responsibility for ensuring their group of reviewers are case managing their

reviews effectively and efficiently. The IPAO has key performance indicators to

ensure key process milestones are being met in a timely manner and assist in

identifying any risk areas.

The appointment of additional reviewers, most

of whom are RRT members, will make a significant difference in the timeliness of

the conduct of reviews and improved decision making through their mentoring of

newer reviewers.

During the period 1 July 2010 to 30 June 2011, 3,160

review requests were made by refugee claimants. Of these claims, 1,802

interviews were held and 1,392 recommendations were completed. During this

period, the average time taken from interview to reviewer recommendation was 53

days and from review request to reviewer recommendation was 169

days.

With the Government’s appointment of additional reviewers

during 2010-2011, and with further appointments anticipated, a significant

reduction in the time taken to allocate cases to reviewers, conduct interviews

and finalise decisions is expected.

  • DIAC should provide all asylum seekers in immigration detention who

    receive a negative decision on their refugee status with contact details for

    legal and community groups able to provide assistance with judicial

    review

When asylum seekers are notified of negative

decisions, they are informed that they may seek judicial review if they believe

the decision is wrong in law. The notification letters for irregular maritime

arrivals also provide the addresses of the national legal aid website and the

access to justice website for information on the possibility of free legal

advice. Both the Legal Aid website and the Access to Justice website contain

easy to find and up to date links to a range of relevant organisations,

including Community Legal Centres, and the contact details of the Legal Aid

Commissions in each state. The Access to Justice website also has an easy to

use language assistance feature, which allows the contact details of Legal Aid

and Community Legal Centres to be viewed in 17 different languages.

DIAC

has also developed three fact sheets that outline the judicial review process.

The Litigation Involving Migration Decisions fact sheet provides a

general outline of merits review and judicial review. The Seeking Protection

in Australia fact sheet provides information for irregular maritime

arrivals assessed under the Protection Obligations Determination process and is

available in English, Arabic, Hazaragi, Kurdish, Persian, Tamil and Dari. The Options Following Negative Refugee Decision fact sheet, which is

currently available in English, Arabic, Burmese, Dari, Farsi, Indonesian,

Kurdish, Tamil and Vietnamese, provides information on the availability of

judicial review. It also contains the contact details for Legal Aid in each

state.

Recommendation 6: DIAC should change its approach to case

manager’s engagement with recognised refugees in immigration detention

facilities about the option of voluntary removal. Case Managers should not

propose the voluntary removal of recognised refugees to their country of origin.

Rather, DIAC efforts should be targeted towards ensuring that recognised

refugees are removed from immigration detention facilities as quickly as

possible.

A key focus of the case management role is to keep clients

informed of all their immigration options as they transit through their

immigration pathway. Case Managers do not, however, advise clients about their

individual circumstances and a preferred way forward. This is a matter for the

client's IAAAS provider. In rare circumstances, DIAC considers that

discussions about the option of voluntary return with clients who have been

found to be a refugee may be appropriate. Case Managers will continue to use

their professional judgment about when to have such discussions with clients and

these conversations will be carried out with all due sensitivity and

respect.

Recommendation 7: The Australian Government

should adopt a specific mechanism to address the situation of stateless persons.

This should include a statelessness determination process, mechanisms to ensure

that people are not subjected to prolonged detention while they go through the

process, and access to sustainable outcomes such as through the creation of a

permanent visa class for stateless persons. Pending the adoption of such a

mechanism, the Australian Government should ensure that stateless persons are

not subjected to prolonged or indefinite detention.

Noting that

statelessness is not in itself a ground for protection under the 1951 Refugee

Convention nor covered by the proposed Complementary Protection legislation,

DIAC has been actively reviewing international practice in relation to managing

the issues that arise due to the practical barriers to arranging removal when a

stateless person who is not owed a protection obligation is not lawfully in the

territory of a State. This review includes looking at models of determination

processes, and extends to the consideration of pathways for resolution of cases

where a person is not a refugee and is unable to be returned to their country of

former habitual residence.

Recommendation 8: DIAC and ASIO should take

all possible steps to ensure that outstanding ASIO security assessments for

people in immigration detention facilities are completed as quickly as possible,

particularly for those people who have already been detained for prolonged

periods.

DIAC and the Australian Security Intelligence Organisation

(ASIO) continue to liaise regularly and discuss available options to expedite

outstanding security assessments. As noted in the report, DIAC has asked ASIO

to prioritise long-standing and complex case

assessments.

Recommendation 9: People in immigration detention subject

to ASIO security assessments should be provided with greater information about

the processes and timeframes involved and about progress with their individual

assessments.

DIAC is unable to comment on the security assessment

process and timeframes as they lie outside DIAC’s portfolio responsibility

and as they are matters of national security this information is not disclosed

to DIAC. However, as noted above, DIAC continues to closely engage with ASIO on

expediting outstanding security assessments.

Recommendation 10: The

Australian Government should ensure that durable solutions are provided for

people who have received adverse security assessments from ASIO. In doing

so:

  • these people should be removed from immigration detention facilities as

    soon as possible

  • alternative placement options should be considered including less

    restrictive places of detention than high-security Immigration Detention Centres

    and community detention, if necessary with conditions to mitigate any identified

    risks

  • possible visa options should be considered, for example the Minister for

    Immigration could exercise discretionary power to grant temporary visas with

    appropriate conditions attached

  • the Australian Government should not propose then voluntary removal of

    recognised refugees in this situation to their country of

    origin

The Government is committed to managing the situation

of irregular maritime arrivals with adverse security assessments in a manner

consistent with both Australia's international non-refoulement obligations and

the Government's obligation to protect the Australian community from threats to

security. Consistent with this, options are being explored to have these people

removed from Australia. However, given the complex nature of these cases, this

may not be quickly achievable for some individuals. These individuals will

remain in immigration detention while removal options continue to be

explored.

Recommendation 11: The Australian Government should

introduce reforms so that all people who have received adverse security

assessments from ASIO:

  • are provided with information sufficient for them to be reasonably

    informed of the basis of the adverse assessment

  • are provided with access to merits review by the Administrative Appeals

    Tribunal

  • are provided with access to greater information about the basis of the

    adverse assessment if they apply for judicial review, either directly or through

    an appropriate person – for example, a Special Advocate able to view both

    an original and a redacted summary of the assessment.

As

stated above, questions of this nature fall outside DIAC’s portfolio

responsibility so DIAC is consequently unable to respond to

them.

Recommendation 12: People should not be held in immigration

detention in remote locations such as Curtin IDC. If people must be held in

immigration detention facilities, they should be located in or near metropolitan

areas.

If the Australian Government intends to continue to use

Curtin IDC, it should reduce the number of people detained there, cease the

practice of accommodating people in dormitory bedrooms and return those rooms to

their original use as space for recreational activities.

DIAC is

cognisant of the issues raised by the AHRC in operating facilities in remote

locations. Due to the high influx of irregular maritime arrivals and subsequent

pressures on existing facilities, the opportunities in sourcing suitable

facilities of sufficient size in or near metropolitan areas proved difficult,

particularly at short notice. The Curtin facility provided an immediate

solution to the pressing need to accommodate irregular maritime

arrivals.

DIAC seeks to make use of available Commonwealth

property but is also working on finding suitable accommodation nearer to

metropolitan areas and has achieved worthy results with the recently opened

Pontville facility, located about 30 kilometres north of Hobart, as well as two

additional facilities due to come on line in the next few months. Both

facilities are located within close proximity to major capital cities. They are

Yongah Hill, which is situated approximately 80 kilometres north-east of Perth,

and Wickham Point which is located about 35 kilometres south-east of

Darwin.

In relation to the use of dormitory style accommodation, it is

DIAC's ongoing intention to reduce the client population at Curtin IDC to, or

below, its operational capacity of 1200 people. It is hoped that with the

addition of the Pontville, Yongah Hill and Wickham Point facilities, DIAC can

reduce the number of clients accommodated at Curtin IDC to, or below,

operational levels. This would allow for all of the dormitories at Curtin IDC

to be returned to recreational facilities.

In addition, a number of

activity areas are due for completion soon, including a large grassed oval, a

number of cricket pitches and volleyball courts. A large multi-purpose area is

also due for completion in October 2011. These infrastructure developments will

increase the number of recreational areas available to people at Curtin

IDC.

Recommendation 13: DIAC should ensure that all people in

immigration detention at Curtin IDC have access to:

  • adequate outdoor recreation spaces including grassy and shaded

    areas

  • adequate indoor areas for educational and recreational

    activities

  • a range of recreational and educational activities conducted on a regular

    and frequent basis

  • a freely accessible library area stocked with reading materials in

    languages spoken by people in detention

  • adequate access to communication facilities including internet, fax, and

    incoming and outgoing telephones

  • a secure space for storing their personal

    belongings

DIAC ensures that all clients housed at

immigration detention facilities have access to adequate facilities. At Curtin

IDC this includes:

  • indoor and outdoor recreation areas;
  • 6 classrooms for education purposes;
  • 6 recreation rooms that provide clients with pool and table tennis tables

    and electronic games;

  • 3 library buildings;
  • 6 rooms for religious purposes; and
  • 6 gymnasiums provided with gym equipment across the

    site.

DIAC is aware that a number of these buildings may be

used for contingency accommodation at times and marquees have been provided for

the services that these buildings would have been used for. The use of the

recreation buildings for accommodation is always for the shortest possible

time.

Following the Commission’s visit in May 2011, a number of

outdoor cabana areas (similar to those on Christmas Island) have been

constructed throughout the Curtin facility. In addition, the large grassed oval

has been top dressed and reseeded and will be available for use in the near

future. Along with the oval are other sporting facilities already available

including cricket nets, basketball and volley ball courts. A number of outdoor

shaded areas are also provided throughout the site for clients to sit around and

make tea and coffee. They are also provided with ice making machines, tables

and chairs. The site also has an all weather facility for indoor cricket and

other sports such as volleyball and tennis.

There is currently a program

in place to landscape the clients’ accommodation and recreation areas.

This is progressing taking into account the final site drainage plans. A large

number of plants, including trees and grass, have already been

planted.

DIAC has been working hard with Serco to increase the number of

activities available to people at the Curtin IDC. The range and number of

activities has increased significantly, with over six hundred scheduled

activities for the month of September 2011.

Curtin IDC currently has two

libraries onsite which are stocked with a range of reading materials in

different languages. Serco has ordered additional stock for the library to

cater for the number of clients and different nationalities at the facility.

This is the subject of ongoing monitoring by DIAC to ensure that the

clients’ needs are being met.

A multi-purpose room is due to come

online in October 2011, which will increase the number of computers for client

use at Curtin IDC. Outgoing telephones have also been increased, and will

increase further with the opening of the multi-purpose room. When the site is

fully functional there will be 120 phones for clients to use and 45 internet

stations. Additional interview rooms have also come online which will allow for

greater access to private communication areas for clients.

People in

immigration detention at Curtin IDC have access to secure storage of personal

items and valuables through Serco in Serco’s property area. In addition,

all bedrooms are provided with two safes for storing personal

belongings.

Recommendation 14: DIAC and Serco should ensure that

people in immigration detention at Curtin IDC are provided with regular

opportunities to leave the detention environment on external excursions. DIAC

should implement consistent standards for external excursions across the

detention network. Standards for the conduct of a minimum number of external

excursions should be specified in the Serco contracts applicable to all

detention facilities, and financial penalties should be applied if those

standards are not met.

DIAC continues to work with Serco to ensure

that clients have access to external excursions. The number and variety of

external excursions from Curtin IDC has been increased over previous months with

the addition of activities including sporting matches with local Derby teams,

visits to a cattle station, tours of Derby, swimming and volunteer opportunities

in the Derby community such as renovating a local Indigenous shopfront. This is

an area of ongoing audit and management attention onsite at Curtin IDC, with a

view to encouraging further opportunities for people in immigration detention to

have access to excursions.

DIAC has also sought submissions from local

community representatives who may be interested in participating in a Directed

Persons arrangement which would also facilitate further opportunities for

clients at Curtin IDC to leave the detention environment on external

excursions.

DIAC is very mindful of the need to have a rich program of

meaningful activities for all people in immigration detention and is working

very closely with Serco and other key stakeholders, which include the CISSR, who

are the Minister's reference group, to improve programs and activities at all

facilities. Serco advises that they are developing a strategic re-vamped

programs and activities model with all relevant stakeholders and have also

recruited a research company to engage with clients to establish the types of

programs and activities they would like to have the opportunity to be involved

in.

Opportunities to explore the aspect of this recommendation relating

to defining a minimum number of external excursions for example, is provided

through the research process that Serco will undertake, as well as through

conversations with key stakeholders. Similarly, opportunities to explore and/or

refine management methods appropriate to ensuring the implementation of a

re-vamped schedule are provided through those processes as well as through

contractual arrangements.

Recommendation 15: DIAC and Serco should

ensure that:

  • staff training and performance management mechanisms include a strong

    focus on treating all people in immigration detention with humanity and with

    respect for their dignity

  • all staff 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

  • people in immigration detention are able to lodge both internal and

    external complaints confidentially and without fear of

    repercussions.

DIAC is committed to ensuring that people in

immigration detention are treated fairly, with dignity and respect. DIAC

welcomes the AHRC's observation that a positive culture shift has occurred over

the past five or six years in the way people are treated in immigration

detention.

All staff have been instructed, and are expected, to refer to

people in immigration detention by their name. In situations where this does

not occur, the staff member will be counselled. Management have reiterated this

expectation on a number of occasions to ensure all staff are made

aware.

The services delivered by Serco to people in immigration detention

are underpinned by the Immigration Detention Values (IDVs) and the Detention

Services Contract (DSC) has been developed to ensure that it takes into account

the seven IDVs, and in particular one of which states that people in detention

are treated fairly and reasonably within the law and that detention will ensure

the inherent dignity of the human person. Should a member of staff be found to

not abide by these requirements, they will be counselled in line with DIAC's or

Serco’s performance management framework or, at its most serious, removed

from their role.

Key performance indicators were agreed to by DIAC and

Serco that focus on, amongst other areas, the implementation of those IDVs in

all of Serco's interactions with people in immigration detention.

The

decisions, actions and behaviour of Serco staff in dealing with people in

immigration detention are underpinned by a Code of Conduct that is intended to

provide an ethical framework for Serco's service delivery. It advocates values

that include integrity, honesty and impartiality, in line with the

IDVs.

In accordance with the DSC, Serco must ensure that all its

personnel are trained and qualified prior to commencing duties. This training

includes cultural awareness, mental health awareness, human rights, human

interaction and regular refresher training. Serco must engage a Level IV

accredited trainer to select and coordinate the delivery of training for its

personnel. The DSC requires that the Code of Conduct is integrated into

training and development programs, particularly those for leadership, management

and supervisor training.

DIAC can and does regularly test Serco’s

compliance with the training requirements through monitoring at facilities. The

DSC also requires that specific mention of the Code of Conduct is made in

performance agreements for Managers and that performance appraisal and

associated discussions focus on this key area.

Clients in immigration

detention at Curtin IDC are encouraged to provide feedback and lodge complaints

if necessary. There are no repercussions for either of these actions and staff

regularly advise people in immigration detention at Curtin that their feedback

is valued and assists in managing service provision arrangements. This is

reiterated at Client Consultative Group meetings during induction and also

during regular interactions with clients in the facility. Should there be any

substantiated allegations in relation to repercussions as a result of a

complaint, then this would also be managed in terms of DIAC's or Serco’s

performance management frameworks.

Recommendation 16: An independent

body should be charged with monitoring the provision of physical and mental

health services in immigration detention, and adequate resources should be

allocated to that body to fulfil this function.

DIAC monitors the

delivery of physical and mental health services in immigration detention

through:

  • an expert advisory body called the Detention Health Advisory Group

    (DeHAG);

  • input from the CISSR;
  • external scrutiny and complaints processes;
  • feedback from the Detention Health Services Provider, International Health

    and Medical Services (IHMS); and

  • health reviews conducted by independent consultants.

The

Detention Health Advisory Group (DeHAG)

The 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 consists of key health

and mental health professional and consumer group organisations including:

  • Australian Medical Association;
  • Royal Australian College of General Practitioners;
  • Mental Health Council of Australia;
  • Australian Psychological Society;
  • Forum of Australian Services for the Survivors of Torture and Trauma;
  • Victorian Health Promotion Foundation;
  • Royal Australian and New Zealand College of Psychiatrists;
  • Royal College of Nursing Australia;
  • Public Health Association of Australia; and
  • Australian Dental Association.

The Commonwealth Ombudsman's

Office has an observer status on the DeHAG.

The DeHAG represents

DIAC’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 all

immigration detention facilities, including Curtin IDC. Following these

inspections, the DeHAG has provided expert advice on a range of health issues,

including mental health, dental services, communicable disease prevention and

child health issues. DeHAG has also provided advice on safety concerns,

including Occupational Health and Safety issues for some of the sites visited.

These are followed up with relevant areas of DIAC.

The Council for

Immigration Services and Status Resolution (CISSR)

The CISSR provides

feedback to DIAC about the influence of health service delivery on the wellbeing

of people in immigration detention, including how it can impact status

resolution.

External Scrutiny and Complaints Processes

DIAC

also receives feedback on health service delivery to people in immigration

detention from organisations such as the Commonwealth Ombudsman and the

Australian Red Cross.

The Commonwealth Ombudsman visits immigration

detention facilities and scrutinises service delivery, including health

services. It provides feedback to DIAC about possible issues with service

delivery and DIAC follows up on the issues identified as required. The

Australian Red Cross, through its work with people in immigration detention,

also provides valuable feedback to DIAC about services delivery including health

services.

Formal complaint mechanisms allow people in immigration

detention, or their representatives, to raise their concerns directly to DIAC

through the Global Feedback Unit. The Commonwealth Ombudsman and the AHRC also

receive and investigate complaints about health services provision in

immigration detention facilities. These organisations will, when required,

advise DIAC of instances where they consider the provision of health care

services has been deficient. DIAC considers this reporting and feedback

carefully and follows up as appropriate, including with

IHMS.

International Health and Medical Services (IHMS)

IHMS

is part of International SOS (IHMS’s parent company), which provides

health services to a number of governments and companies. It has its own

internal audit and assessment processes.

IHMS undertakes audits and

assessments of its services in immigration detention facilities:

  • During 2009: Internal audits against the Royal Australian

    College of General Practitioner (RACGP) Standards were conducted by IHMS head

    office personnel at a number of facilities.

  • April 2011: An internal audit at Christmas Island facilities

    against RACGP standards was conducted by IHMS head office personnel.

  • May-Jun 2011: A detailed audit was undertaken of the

    management processes and governance of health services. The audit was

    commissioned by IHMS and conducted by International SOS.

  • June 2011: Each site conducted a self-assessment against the RACGP

    Standards.

  • Quarterly: An internal audit of health records and medication

    records is conducted at each site.

DIAC has also commissioned

various reviews of health services delivery in detention facilities as outlined

below:

Review of Health Service Delivery Model Christmas

Island

DIAC engaged Phillipa Milne and Associates to provide

independent expert advice on the appropriate level of health care services to be

provided to people in immigration detention on Christmas Island. The report was

completed in June 2010.

Review of Health Service Delivery Model

Mainland Detention Facilities

DIAC engaged Phillipa Milne and

Associates to provide independent expert advice on the appropriate level of

health care services to be provided to people in immigration detention

facilities on the Australian mainland. The report was completed in October

2010.

Royal Australian College of General Practitioners (RACGP)

Accreditation Pilot

DIAC commissioned Quality in Practice (QIP) to

review the RACGP Standards for health services in Australian immigration

detention centres, develop an accreditation process, and provide a Detention

Health Standards Report detailing recommended changes to the Standards. QIP

provided a final report to DIAC in October 2010.

Review of Christmas

Island Detention Health Services Clinical Governance Processes

DIAC

contracted Communio to conduct a clinical governance review (the Review) of

health services provided to people in immigration detention on Christmas Island.

The Review was conducted on 28 April 2011 and 3 May 2011. This work included

the development of an audit tool, to enable assessment of the clinical

governance arrangements on Christmas Island. Communio presented the findings of

the review to DIAC on 19 May 2011.

Recommendation 17: In relation to

the provision of physical and mental health services, DIAC should:

  • Ensure that all people detained at Curtin IDC are provided with timely

    access to appropriate physical and mental health services, including dental,

    optometry, physiotherapy and medical specialist care as

    required.

  • Ensure that the IHMS physical and mental health staffing at Curtin IDC is

    increased to an adequate level as soon as possible.

  • Overhaul the clinical governance framework for the delivery of mental

    health services at Curtin IDC and across the detention network. This should

    involve a consultant psychiatrist overseeing and being clinically responsible

    for mental health service delivery including supervision of staff in the

    provision of clinical care.

DIAC considers that people

detained at Curtin IDC generally receive an appropriate level of health

services, comparable to that available to the broader Australian community. The

remote location of Curtin IDC sometimes provides challenges to service delivery.

DIAC monitors the provision of health services at Curtin IDC and discusses

service delivery issues with IHMS. Following are updates on the particular

services and issues raised by the Commission:

Clinical Governance: In August 2011 IHMS filled the position of Medical Director, Mental

Health. This officer is a clinical psychiatrist, provides clinical guidance and

oversees clinical practice of IHMS mental health staff. This appointment

significantly enhances the clinical governance of mental health services across

the national detention network, including Curtin IDC.

Nurse (including

Mental Health Nurse) and General Practitioner consultations: These services

will improve with the recent completion of new clinic infrastructure at Curtin

IDC. The new clinic commenced limited operations on 12th September 2011.

Services at the new clinic will be expanded over September 2011. IHMS considers

that this additional infrastructure will lead to a sustained improvement in

health service delivery at Curtin IDC.

Dental: DIAC

continues to work closely with its service providers to improve the provision of

dental services available to people at Curtin IDC. Dental treatment for people

in immigration detention is aimed at providing a level of dental care that is

comparative to public sector dental services available to the wider Australian

community.

Dental services for people in immigration detention are

determined on a triage-based system that aligns the priority of care needed and

delivered to the severity of a person's condition. Such a system is fundamental

for ensuring limited dental resources are used in the most effective manner

possible and directed where there is the greatest level of need.

DIAC had

been working with IHMS to provide a temporary onsite dental clinic at Curtin

IDC, however, in early July 2011 this option was not pursued due to equipment no

longer being available for leasing.

DIAC and IHMS have worked with the

Western Australian Department of Health on an alternative arrangement to lease

the Derby Dental Clinic after-hours and on weekends, when not being used to

provide dental services to the broader community. This arrangement commenced in

early August 2011. It has been given approval for an initial period of six

months and uses a fly-in IHMS dental service (including a dentist and dental

assistant) on a monthly basis and a radiographer when required.

During

the dental service's initial visit to the Derby clinic in August 2011, a total

of 18 clinic days were conducted for people triaged as high and medium priority.

During this time 242 clients, over half of the clients on the dental waiting

list, were seen and treated. Approximately 40 clients required follow up dental

treatment. In addition, 23 clients either did not attend or declined their

dental appointment. DIAC has been advised that the dental service will next

return to Derby from 23-29 September 2011.

Optometry: A three day

on-site clinic was conducted at the end of August 2011 which managed to clear

the list of clients requiring an optometry consultation. As at 12 September 2011

there were 10 clients on the optometry waiting list. IHMS is sending five

clients each week to Broome for optometry

consultations.

Physiotherapy: Currently a physiotherapist visits

Curtin IDC for four hours each week. As at 12 September 2011, there were 46

people undergoing a treatment plan, with 16 more people awaiting an initial

physiotherapy consultation. Each referral is reviewed by the physiotherapist

who prioritises people according to the nature and severity of their condition.

People classed as ‘Category 1’ are usually seen within seven days of

referral. At present approximately five new referrals are generated

weekly.

Torture and Trauma Counselling: DIAC has

been working with the counselling provider, the Association for Services to

Torture and Trauma Survivors (ASeTTS), to provide appropriate staffing levels to

meet increased client needs at Curtin IDC.

DIAC recently agreed to a

submission from ASeTTS to increase the number of counselling staff at Curtin IDC

to four. Within this staffing profile is a team leader that is based in Derby

who will be responsible for liaison with IHMS, local departmental staff and the

fly-in-fly-out ASeTTS counsellors. The agreed model is expected to decrease

counsellor case loads as well as client waiting lists.

Mental Health

Staffing at Curtin IDC: IHMS advises that there is currently

sufficient staff at Curtin IDC to provide an adequate level of mental health

services. IHMS believes that the new clinic will enhance mental health services

delivery at Curtin IDC.

MOUs: DIAC notes the AHRC’s comments

regarding the absence of formal memoranda of understanding between DIAC and

state health providers in Western Australia. DIAC is committed to working with

the Western Australian Government to formalise arrangements for the provision of

health services for people in immigration detention in Western Australia. These

arrangements will enhance co-operation and clarify the level and type of

services required. Discussions between DIAC and the Western Australian

Government have been beneficial, and both parties are now working towards

finalisation of formal arrangements for service

delivery.

Recommendation 18: In relation to self-harm and suicide,

DIAC should:

  • Continue to consult with specialists in suicide prevention as well as

    mental health professionals about measures to mitigate the risk of further

    suicides across the detention network, and implement these measures as a matter

    of urgency.

  • Ensure that a full safety audit is conducted across Curtin IDC and all

    other immigration detention facilities, and that all appropriate measures are

    taken to minimise the risk of suicide and self-harm.

  • Ensure that all relevant staff are provided with adequate training on the

    Psychological Support Program as soon as possible.

DIAC

shares the AHRC’s concerns relating to the mental health of persons in

immigration detention.

Self-harm is a complex issue and DIAC is seeking

expert advice in examining the determinants of self-harm and ways to reduce the

risk of self-harm.

Training on the Psychological Support Program and

other mental health policies was delivered to staff across the Immigration

Detention Network in 2010. DIAC recently developed a revised mental health

awareness training program in consultation with the DeHAG. The revised training

program was recently piloted with DIAC, IHMS and Serco staff and will now be

delivered to all staff from these organisations who work in detention facilities

and have contact with clients.

Other measures underway to help address

the incidences of self-harm are as follows:

  • DIAC is undertaking a project to analyse health and incident (including

    self-harm) data. This data is being analysed with the MHSG of DeHAG to help

    identify strategies which could help reduce the risk of self-harm;

  • DeHAG has undertaken several site visits and issued reports addressing

    safety concerns. DeHAG is also developing an evaluation tool to assist with

    assessing the safety of detention environments; and

  • DIAC is conducting an external review into the implementation of the

    detention mental health policies implemented in 2010. DIAC anticipates that the

    review will be completed by early

    2012.

Recommendation 19: With regard to people in

immigration detention who are survivors of torture and trauma, DIAC

should:

  • Ensure that its policy, Identification and Support of People in

    Immigration Detention who are Survivors of Torture and Trauma, is

    implemented across the detention network. Under this policy, the continued

    detention of survivors of torture and trauma in Immigration Detention Centres is

    to occur only as a last resort where risk to the Australian community in

    considered unacceptable.

  • Ensure that they are provided with adequate access to specialist

    counselling services.

The policy Identification and

Support of People in Immigration Detention who are Survivors of Torture and

Trauma has been implemented across the Immigration Detention Network. This

and other DIAC policies are designed to identify, professionally support and,

where possible, appropriately place clients.

Torture and Trauma

Screening

All people entering immigration detention undergo mental

health screening within 72 hours of their arrival in the facility. The process

includes screening for signs of torture or trauma. If a possible history of

torture or trauma is identified the person is referred for assessment by a

torture and trauma counselling service. In addition, given the high proportion

of irregular maritime arrivals who may have experienced torture or trauma, all

irregular maritime arrivals are automatically referred for assessment by a

torture and trauma service.

Counselling

Torture and trauma

counselling is provided by organisations that are members of the Forum of

Australian Services for Survivors of Torture and Trauma (FASSTT), the peak body

for torture and trauma rehabilitation services in Australia. There is a FASSTT

member organisation in each state and territory of mainland Australia which

provide torture and trauma counselling services to people in immigration

detention. On Christmas Island torture and trauma counselling services are

provided by the Indian Ocean Territories Health Service (IOTHS), a Commonwealth

Government agency.

Placement in Community Detention

As per

the response to recommendation 3, DIAC is working to move the current priority

groups into community detention over the coming months including looking to

place a small number of low risk, compliant, vulnerable single adult men who may

have experienced torture or trauma into community detention. The capacity for

this to occur is limited by the availability of suitable accommodation and

support services in the community.


[1] A v Australia [1997] UNHRC 7;

CCPR/C/59/D/560/1993 (30 April 1997)