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HRC Report No. 12

Human Rights
and Equal Opportunity Commission

Report of an
Inquiry into a Complaint of Acts or Practices Inconsistent With or Contrary
to Human Rights in an Immigration Detention Centre

HRC Report No. 12

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available in PDF Document for DownloadPDF
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Contents

1. Introduction

1.1 The Commission's jurisdiction
1.2 Outline of the complaint and the inquiry process

2. Process
of the inquiry

2.1 The complainants' evidence

  • Common evidence
  • Mr Quan's evidence
  • Mr Su's evidence

2.2 The respondent's evidence

  • segregated detention
  • Mr Quan's requests
    for assistance
  • Mr Su's requests
    for assistance

2.3 Other evidence

  • Evidence provided
    by the Legal Aid Commission of Western Australia
  • Evidence provided
    by other detainees at the Port Hedland IDC
  • Evidence provided
    by the Centre Manager at the Port Hedland IDC

3. Issues
to be determined

3.1 Whether there is an
act or practice
3.2 Whether the act or practice is inconsistent with or contrary to
human rights

4. Findings
and recommendations

4.1 Findings

  • Advice of the
    entitlement to legal advice
  • Timely provision
    of legal assistance and application for refugee status
  • Delays in assistance
    and arbitrary detention
  • Separation
    detention

4.2 Recommendations

4.3 The respondent's reply
to the findings and recommendations.


1.
Introduction

This report to the
Attorney-General concerns inquiries made by the Human Rights and Equal
Opportunity Commission ('the Commission') into complaints by Quan Ri Qing
and Su Yu Fei against the Commonwealth of Australia, Department of Immigration
and Multicultural Affairs ('the Department') concerning violations of
human rights under the Human Rights and Equal Opportunity Commission Act
1986 (Cth) ('the HREOC Act') which allegedly occurred during the detention
of the complainants as unauthorised arrivals at the Port Hedland Detention
Centre in 1996. The Act provides for the Human Rights Commissioner ('the
Commissioner') to perform these functions.

1.1 The Commission's jurisdiction

The Commission's
functions in relation to the investigation and conciliation of complaints
of human rights breaches against the Commonwealth of Australia and its
functions in relation to reporting on complaints with substance that have
not been resolved through the process of conciliation are outlined in
the Immigration Detention Report (1) and in the
Commission's 1998-99 Review of Immigration Detention ('the Immigration
Detention Review').(2) The human rights law and
principles relevant to this complaint are also outlined in the Immigration
Detention Report and the Immigration Detention Review.(3)

1.2 Outline of complaint and
the inquiry process

Mr Quan lodged his
complaint with the Commission on 11 April 1997, alleging that he had been
treated in a manner that constituted a breach of his human rights. He
alleged that

  • he was not advised of his right to ask for legal assistance when
    he was taken into immigration custody
  • his requests for legal assistance and to apply for refugee status
    were not responded to in a timely manner
  • he was kept in a separated accommodation area for a period of around
    three months and was not able to make contact with the outside world
  • these actions and omissions breach his human rights under the HREOC
    Act.

Mr Su lodged his
complaint with the Commission on 5 October 1996, alleging that he had
been treated in a manner that constituted a breach of his human rights
under the HREOC Act. Specifically, he alleged that

  • he was not advised of his right to ask for legal assistance when
    he was taken into immigration custody
  • his requests for legal assistance and to apply for refugee status
    were not responded to in a timely manner
  • he was kept in a separated accommodation area for a period of around
    three months and was not able to make contact with the outside world.

Mr Quan's and Mr
Su's complaints were investigated by the Commission pursuant to section
11(1)(f) of the HREOC Act.

The Human Rights
Commissioner, Mr Chris Sidoti, carefully considered all the information
obtained through the inquiry into the complaints and through the Commission's
broader inquiry into the detention of asylum seekers which was tabled
in federal parliament in 1998 (the Immigration Detention Report). He formed
the view that these matters were not amenable to conciliation on the basis
that the matters about which Mr Quan and Mr Su complain are the result
of practices and procedures of the Department at the Port Hedland Immigration
Detention Centre ('IDC') in processing people who arrive by boat and in
handling their requests for assistance. The Department is very clear in
its view that its practices and procedures in relation to requests for
legal advice and the initial processing of people who arrive by boat without
entry documents are consistent with its obligations under the Migration
Act 1958 (Cth) ('the Migration Act').

On 2 March 1998 the
Human Rights Commissioner formed the preliminary view that the Department,
on behalf of the Commonwealth of Australia, had breached Mr Quan's and
Mr Su's human rights.

On 22 June 1998 the
Department provided its comments in relation to the Human Rights Commissioner's
preliminary findings.

On 13 August 2000,
pursuant to s.29(2) of the HREOC Act, the Commissioner forwarded to the
Department a notice of his inquiry into these complaints setting out his
findings, reasons and recommendations.

On 3 October 2000
the Department forwarded to the Commission its response regarding the
findings and recommendations of the Commission.

2.
Process of the inquiry

2.1. The complainants' evidence

  • Common evidence
  • The evidence of Mr
    Quan and that of Mr Su had many common elements.

    Mr Quan and Mr Su,
    both nationals of the People's Republic of China of Han ethnicity, came
    to Australia on the boat code named the Grevillea, which arrived in Darwin
    on 15 June 1996. The boat departed from Qiao Gang, Bei Hai, China, on
    11 May 1996.

    Mr Quan stated that
    as the boat neared Australia the people on board were very seasick and
    the boat had run out of water and fuel. Another boat came alongside and
    a few people came up onto the boat and they recorded people's names. He
    knew that they were from the Australian government but did not know what
    department. They were accompanied by an interpreter who said that they
    had violated section 189 of the Migration Act.

    Along with all the
    other 65 people on board the Grevillea they were taken into immigration
    custody and were transported from Darwin to Port Hedland by plane on 16
    June 1996.

    Mr Quan stated that
    the centre manager met them when they arrived at the Port Hedland IDC.
    The centre manager introduced the Australian Protective Service (APS)
    manager and guards to them. The centre manager said, "Australia is a good
    holiday spot. Welcome here for a holiday." Mr Quan stated that he could
    not understand why the centre manager would consider them as coming for
    a holiday. The centre manager also said that they had entered Australia
    illegally.

    Mr Su stated that
    he arrived at Port Hedland IDC at 4.00 pm. The initial induction of the
    group commenced that day. Mr Su states that at the induction the centre
    manager said, "I can tell you this is the centre of holiday. After you
    have a holiday, you will be sent back." He claimed that the centre manager
    also said, "No one in Australia welcomes you". He states that at no point
    in this initial induction process was he advised that he could ask to
    see a lawyer nor was he informed that he might be able to make an application
    to stay in Australia. Mr Su was interviewed by departmental officers on
    17 and 19 June 1996.

    When the Grevillea
    detainees were transferred to Port Hedland IDC they were accommodated
    in E block at the centre. It was a confined block with a small external
    area, separated from other parts of the centre by high covered wire fences.
    Detainees in E block have contact with each other but they are effectively
    segregated from other detainees in the centre. They have little or no
    access to information from outside the area in which they are confined
    and very limited opportunity to make contact with anyone outside the area.

    Mr Quan stated that
    when he was in E block he wanted help but he did not have an opportunity
    to obtain it. He could not make contact with the world outside the detention
    centre. There was no telephone in E block. The television could only be
    used for the video recorder. He does not know why the television was not
    working. He thought it was the regulations. A lot of people wrote to the
    centre manager because they wanted solicitors to help them with refugee
    status but these letters were of no help. He did not write a letter at
    this stage because the group in E block did not have a representative.
    They did not realise that they could write to the manager to request legal
    advice. He said that, if he had been able to get a lawyer at that time,
    he would have asked for refugee status.

    Mr Quan further stated
    that in E Block there were restrictions on going outside. They could not
    go freely outside E block. There was only one door in the block that went
    outside and the door was always locked. Their meals were delivered to
    E block and eaten there. They had breaks in the open air in the small
    yard outside the block, but still within the segregated area, three times
    a day and these were generally after the meals. The length of the breaks
    depended on the availability of the APS. The longest time was 30 minutes.

    Mr Quan was detained
    in E block for three months and three days, after which time he was transferred
    to H block in the main compound of the centre.

    Mr Su stated that,
    as E block is separated from the main part of the compound, he could not
    speak to other groups of detainees in the centre. He claims that the windows
    in E block were covered over so they could not see out and they were only
    allowed outside the accommodation building for short breaks. He states
    that he remained in E block for around a month and was then moved to J
    Block, which is also a separated accommodation area. Mr Su claims that
    he remained in J Block until 19 September 1996, when he was released into
    the main compound. He states that while he was in these separate accommodation
    areas he did not have access to a lawyer. He also claims that he did not
    have access to television, radio or newspapers.

    Mr Quan and Mr Su
    both gave accounts of a meeting with the centre manager early in July
    1996 at which the detainees sought advice and assistance with their protection
    applications.

    According to Mr Quan,
    sometime in July 1996 the centre manager met with the people from the
    Grevillea boat and read out an agreement between the Australian and Chinese
    governments to the effect that any person who proves to be Vietnamese
    Chinese will be sent back to China immediately. At this time another detainee
    asked what would happen to the Chinese people, that is, people of Han
    ethnicity. He recalled the centre manager's answer was that, after investigation,
    they would also be sent back to China. This other detainee also asked
    the centre manager for legal advice. The centre manager told him that
    he could give him the address of legal people. After the meeting the manager
    called the captain of the boat and this other detainee to his office.
    The complainant did not know what was said at that meeting but the centre
    manager gave them a list of legal people in Port Hedland. The other people
    from his group thought that no one else had a right to this information
    and to ask for legal assistance.

    Mr Su claimed that
    on 5 July 1996 the centre manager met with the people from the Grevillea
    boat group and they were given a letter from the Department in Chinese.
    This letter said that, according to an agreement between Australia and
    China, all the Sino Vietnamese people on the boat would be returned to
    China after their identities had been confirmed. Mr Su states that another
    detainee in the Centre, Mr Yang, asked the centre manager what would happen
    to the Han Chinese people and he was told that they would also be sent
    back.

    The accounts of Mr
    Quan and Mr Su about events between 15 June and 5 July 1996 are substantially
    the same. Each then deals with particular events concerning his own experiences.

  • Mr Quan's evidence
  • Mr Quan stated that
    after he was moved from E block to the main compound he tried to write
    a letter to the centre manager to clarify his identity and to progress
    his application for refugee status. He talked with the centre manager
    on 3 October 1996 about these matters. He did not receive a reply to these
    requests until March 1997.

    Mr Quan stated that
    he would have liked to have access to legal advice but no one from his
    group knew how to obtain it. He wrote a letter to the Department in October
    1996 and sent this letter through a religious person. He also wrote a
    letter to the Minister on the same day. He sent this letter through the
    centre manager. In his letters he told the Department and the Minister
    directly about his identity and requested information about the correct
    legal procedure to follow to apply to become a refugee. When he gave the
    centre manager his letter to the Minister, he also gave him a letter asking
    for a refugee application form on the basis of his real identity and his
    past experience in China. He thought that, when the Department had confirmed
    his identity, they would advise him of the proper legal procedure to apply
    for refugee status. He was not aware where he could get an application
    form to apply to become a refugee. He had an address of a person to write
    to only after he received the letter from the Department in March 1997
    in response to his request of October 1996.

    Mr Quan stated that
    he wrote to the Department again at the beginning of March 1997 for advice
    in relation to refugee status. He did not receive a response. After writing
    this letter he asked the centre manager for the correct legal procedure
    to follow and the address of the Legal Aid Commission of Western Australia
    ('the LAC'). The manager said that he would pass this request on to the
    Department.

    Mr Quan stated that
    on 20 May 1997 he went to see the assistant centre manager and again requested
    a form to fill in to make an application for refugee status, called an
    application for a Protection Visa (866). The assistant manager said that
    he would have to check with the centre manager. He asked Mr Quan to wait,
    that he would send Mr Quan a note when he received a response from the
    Department. Mr Quan says he waited until Tuesday 27 May 1997 and again
    went to see the assistant manager who then gave him the application form.
    The assistant manager promised him that he would send the form to the
    Department immediately.

    Mr Quan states that
    on 29 May 1997 he received a response from the Department to his March
    letter. It acknowledged his application for a protection visa and said
    that he now had the correct forms to fill out.

    On 30 May 1997 the
    centre manager told him that Department had arranged a solicitor for him.
    The centre manager also said that the solicitor would come to see him
    with officers from the Department.

    Mr Quan complained
    that during the months it took for him to obtain a form to apply for a
    protection visa he had trouble sleeping.

  • Mr Su's evidence
  • Mr Su stated that
    on 6 July 1996, following the meeting with the centre manager the previous
    day, he wrote a letter to the centre manager titled Application.
    In this letter Mr Su

    • asked what the criteria and definition of refugees were
    • asked the Department to correct its views of him and regard him
      as a Chinese refugee who needed help and resettlement
    • claimed that he wanted to stay in Australia and that if he was
      returned to China he would be punished by Chinese law and pursued
      and killed by the secret society
    • asked if there were any "warmed hearted lawyers" who could help
      him remain in Australia and
    • requested that this letter be forwarded to the Department, the
      media and solicitors to seek assistance for him.

    Mr Su stated that
    he did not provide all the details about his treatment in China in this
    letter. He claimed he did not feel safe to do so because he had been told
    that this was a holiday centre and that he would be returned to China.

    Mr Su stated that
    he waited for a response to this letter and did not write again. He claimed
    that he met with the centre manager now and then and would ask him what
    was happening with his letter. He states that the centre manager would
    say that he was waiting for a response from the Department. He further
    stated that the centre manager advised him that his role was only to pass
    on letters to the Department. Mr Su stated that he did not know what else
    he had to write to receive legal assistance, as he did not know what he
    was entitled to ask for.

    Mr Su claimed that
    he heard nothing from the Department until September 1996 when he received
    a letter which apologised for the delay in responding to him and advised
    him that the centre manager would be able to assist him obtain legal advice.

    On 9 September 1996
    Mr Su wrote two letters to the centre manager expressing his gratitude
    at being able to apply for legal aid and stating that he and his family
    would cooperate with the government departments concerned to ensure that
    their application for legal aid was processed smoothly.

    On 15 September 1996
    Mr Su wrote a letter addressed to Mr Lawyer. In this letter he stated
    that

    • he was glad that a lawyer has been appointed for his case
    • he did not know the correct procedures to apply for legal aid
    • the centre manager had advised him that he needed to ask for legal
      aid to assist with his application for refugee status
    • in his letter of 6 July 1997 he had talked about making an application
      for refugee status
    • he was afraid of political persecution if he was returned to China
    • the centre manager, the lawyer and the Department should change
      their attitudes towards him and his family and regard them as Chinese
      refugees in need of help and resettlement.

    On 17 September
    1996 Mr Su met with a solicitor from the South Hedland office of the LAC.
    He states that at the time he did not know that she was a solicitor, as
    she did not introduce herself, and that he thought the telephone interpreter
    was the solicitor. He states that, because he thought the solicitor was
    someone from the centre who was just taking notes, he did not provide
    her with much information about his situation and so he kept writing to
    the centre manager asking for legal advice.

    Mr Su stated that
    on 14 October 1996 he wrote a letter to the Department titled Application
    for Legal Aid. In this letter he stated that he has suffered from political
    persecution from the Chinese communist regime for a long period of time
    and that he feared that his life would be threatened if he were repatriated
    to China. He asked for a chance to get legal aid so that he could apply
    for refugee status.

    Mr Su further stated
    that on 21 January 1997 he wrote another letter to the Department titled
    Request for completing an application form for refugee status. In this
    letter he stated that he had a well founded fear of going back to his
    country of origin. He also stated that he had requested an application
    for refugee status and legal assistance from the Department both orally
    and in writing many times and had not heard anything. He stated that because
    of this he was in a constant state of anxiety and desperation.

    On 23 January 1997
    a LAC solicitor visited Mr Su at the Centre and assisted him in filling
    out a form to apply for a protection visa.

    On 19 February 1997
    Mr Su received a letter from the Department which thanked him for his
    letters of 14 October 1996 and 21 January 1997 in which he had asked for
    legal assistance to apply for refugee status and assured him that the
    necessary arrangements would be made to provide him with application assistance.

    On 18 April 1997
    Mr Su received a letter advising him that his application for a protection
    visa had been refused.

    2.2 The respondent's evidence

    The Department stated
    that the boat code named the Grevillea was intercepted at Charles Point
    at 18.40 on 15 June 1996. A departmental officer, through an interpreter,
    read a formal notice advising Mr Quan, Mr Su and the other passengers
    of the Grevillea of the reasons they were taken into immigration detention
    under section 189 of the Migration Act. That day or the following day
    the detainees were provided with information about their rights and privileges,
    which included the role of the centre and its staff and the provision
    of welfare, medical and education services. Information was also provided
    on the procedures for the initial immigration interviews.

    The Department stated
    that the Migration Act does not place an onus on immigration officials
    to advise people who are unauthorised arrivals of their options. It states
    that the Migration Act places the onus on the unauthorised arrival to
    raise protection claims and to request legal advice. Section 193 makes
    it clear that officers have no obligation to advise unauthorised arrivals
    of their options. Section 256 makes it clear that all reasonable facilities
    for legal advice and other assistance are to be provided to a detainee
    in connection with an application for a visa or with his or her detention
    but only after the detainee makes a request for assistance.(4)

  • Segregated detention
  • The Department stated
    that E, I and J blocks are generally used as separation accommodation
    blocks for either new arrivals or detainees who are being prepared for
    removal from Australia. Newly arrived residents are separated from those
    in the main compound while health, quarantine, customs and initial immigration
    processing takes place. Detainees in E, I and J Blocks are free to associate
    with others in those blocks but not with residents in the main compound
    until health screening and initial immigration processing is completed.

    Time spent in separation
    detention depends on the processing of a person's immigration status and
    whether claims are raised which prima facie engage Australia's protection
    obligations. If these obligations have been engaged, residents are generally
    moved to the main compound after the initial interviews for protection
    visas are completed. If not, detainees can stay in separation accommodation
    until they are removed from Australia. The average time spent in separation
    detention is 33 days.

    The Department advised
    that E, I and J blocks provide shared sleeping accommodation in private
    rooms, toilets and showers, a common room for meals and for use of a television
    and video and their own grounds for exercise and activities. There may
    be periods when the television is not available as it needs to be repaired.
    For example, in E block damage to the wiring and antenna mast in the January
    1997 cyclone meant that free to air television programs could not be received
    at times.

    According to the
    Department E, I and J blocks have provision for telephones. It is normal
    practice on arrival and during initial processing for outgoing telephone
    calls to be restricted. However, this restriction does not apply to detainees
    who wish to contact a lawyer and seek legal advice.(5)

  • Mr Quan's requests for assistance
  • The Department stated
    that Mr Quan wrote a letter to the Minister dated 2 March 1997. When received
    by the Department the letter was referred to the Translating and Interpreting
    Service ('TIS') for translation. An unofficial translation by an interpreter
    at the Port Hedland IDC was received by the Compliance and Detention Section
    of the Department on 19 March. The official translation by TIS was received
    by the Department on 21 March 1997. In this letter Mr Quan outlined his
    experiences in the Chinese Navy, requested legal assistance and asked
    to be granted a protection visa on humanitarian grounds.

    The Department stated
    that Mr Quan wrote a further letter to the Department dated 26 March 1997,
    which was forwarded to TIS on 12 April 1997. The Compliance and Detention
    Section received an unofficial translation of Mr Quan's letter by an interpreter
    at the IDC on 1 April 1997. An official translation was received from
    TIS on 9 May 1997. This letter, titled Application for Refugee Status,
    stated that he was making a specific application for refugee status from
    the Department and requested legal assistance.

    On 29 March 1997
    Mr Quan met with the centre manager and asked for contact details for
    Legal Aid. He then wrote to the LAC. On 18 April 1997 he met with the
    assistant centre manger about a letter he had received from the LAC. It
    advised him that the centre manager could arrange for him to call the
    LAC to obtain legal advice. On 21 April 1997 arrangements were made for
    Mr Quan to talk with a LAC solicitor.

    According to the
    Department Mr Quan approached the centre manager on 19 May 1997 to seek
    an application form for a protection visa. On 26 May 1997 Mr Quan lodged
    a completed Part A of the protection visa application form. A registered
    migration agent provided him with application assistance. A departmental
    case officer interviewed Mr Quan on 8 June 1997. Mr Quan's application
    was refused at the primary stage on 8 July 1997 and he subsequently requested
    a review of this decision by the Refugee Review Tribunal.

    The Department stated
    that Mr Quan was provided with reasonable facilities pursuant to section
    256 of the Migration Act following receipt and translation of his letters
    of 2 March 1997 and 26 March 1997. Although there was a delay in obtaining
    a translation from TIS of his letter, Mr Quan also approached the LAC
    directly by letter and phone. The Department facilitated a call between
    him and the LAC on 21 April 1997.

    The Department further
    advised that the centre management referred all questions and requests,
    written or oral, relating to immigration status to the central office
    of the Department in Canberra for translation and advice. The Protection
    and Family Residence Branch of the Department is responsible for responding
    to requests from detainees for legal assistance or information or assistance
    to make an application for refugee status. Requests are responded to as
    soon as possible. Requests from people in detention are given priority.
    Delays may occur due to the volume of correspondence received that requires
    translation into English.

    According to the
    Department's account Mr Quan met with management at the centre on at least
    five occasions in relation to obtaining legal assistance and applying
    to become a refugee.

  • Mr Su's requests for assistance
  • The Department agreed
    that Mr Su wrote several letters to the Department which expressed his
    desire to seek asylum.

    The Department stated
    that in a group letter received by the Department on 3 July 1996 the people
    from the Grevillea boat, including Mr Su, jointly requested the provision
    of legal assistance. Reasonable facilities to access legal assistance
    were provided on 5 July 1997. Because arrangements were in place to provide
    the Grevillea boat group with reasonable facilities to access legal advice,
    the official translation of and formal responses to Mr Su's correspondence
    were accorded a lower priority.

    The Department states
    that, in response to a request from Mr Su for legal advice, assistance
    was provided to facilitate his contact with a lawyer. A lawyer from the
    South Hedland office of the LAC visited Mr Su to assist him lodge a protection
    visa application.

    The Department states
    that Mr Su wrote to the Department by letter dated 6 July 1996. The Compliance
    and Detention Section of the Department in Canberra referred the letter
    to the TIS for translation and it received the translation sometime in
    July 1996. This letter was the subject of an e-mail dated 30 July 1996
    between that section in Canberra and an officer at the Port Hedland IDC.
    The e-mail seeks advice on any action that should be taken as a result
    of this letter.

    Mr Su wrote again
    in a letter dated 9 September 1996 which was faxed to the Compliance and
    Detention Section in Canberra on 12 September 1996 by the centre manager
    at the Port Hedland IDC. On the fax cover sheet the centre manager advised
    that reasonable facilities would be arranged.

    An e-mail of 16
    September 1996 titled Appointment with Lawyer recorded that a departmental
    officer at the Port Hedland IDC met with the group from the Grevillea
    including Mr Su in relation to their request for legal advice. It records
    that the group was advised the Department would arrange for a telephone
    call to the South Hedland office of the LAC and for the services of an
    interpreter from the TIS. It states that by agreement Mr Su and Mr Zeng
    Lan Sheng would speak to the LAC on behalf of the group. It notes that,
    as a solicitor from the LAC was coming to the centre the next day to see
    other members of the Grevillea, she would also speak to Mr Su and Mr Zeng.

    An e-mail between
    departmental officers on 17 September 1996 titled Request for access
    to lawyers
    recorded that the members of the Grevillea group were being
    kept in separate accommodation areas in E and J blocks for safety and
    security reasons. It records that those living upstairs in J block had
    all requested to speak to a lawyer and reasonable facilities would be
    arranged later that day. The Department states that Mr Su was a member
    of this group.

    An e-mail of 18 September
    1996 titled Appointment with Lawyer Legal Aid stated that the members
    of the Grevillea group living upstairs in J block would move to the main
    compound on 19 September 1996 and were going to see a lawyer about staying
    in Australia. It stated that this matter might ultimately be re-submitted
    to Canberra to consider the appointment of contract lawyers.

    An e-mail dated 23
    January 1997 titled Correspondence states that a solicitor from the LAC
    visited Mr Su and his wife at the centre so that they could complete Part
    A of the form Application for a Protection Visa (866) by a person in
    detention.

    2.3 Other evidence

  • Evidence provided by the Legal Aid Commission of Western Australia
  • The Commission obtained
    records from the LAC which show that the first time a LAC solicitor spoke
    to Mr Su was on 17 September 1996, when a LAC solicitor visited the Port
    Hedland IDC.

  • Evidence provided by other detainees at the Port Hedland IDC
  • During the Commission's
    visits to Port Hedland IDC since 1996 a number of detainees expressed
    concern at the time it had taken for the Department to respond to their
    requests to see a lawyer and to apply for refugee status. The detainees
    to whom the Commission spoke stated that these delays had caused them
    a great deal of distress, anxiety and uncertainty. Detainees were also
    confused about what rights they had and what they had to do to make an
    application to stay in Australia. They commonly thought that their requests
    for assistance constituted an application for refugee status. It should
    also be noted that the detainees to whom the Commission spoke, particularly
    those from China, did not have a clear understanding of the role played
    by lawyers in a society like Australia.

    During these visits
    a number of people spoke about being detained in accommodation areas separate
    from the main compound. They gave very similar accounts of the conditions
    that exist in E, I and J blocks.

    • Evidence provided by the centre manager at the Port Hedland
      IDC

    During the Commission's
    visit to this Centre in May 1997 the centre manager advised that, while
    letters to relatives overseas are posted during the initial period of
    separation, detainees are not permitted to make telephone calls to or
    correspond with people in the Australian community.

    3.
    Issues to be determined

    One of the functions
    conferred on the Commission is to inquire into any act or practice that
    may be inconsistent with or contrary to human rights (section11(1)(f)
    of the HREOC Act). In deciding whether the matters complained of fall
    within the terms of section 11(1)(f) of the HREOC Act, I was required
    to consider two main issues:

    • whether there is an act or practice under the HREOC Act; and if
      so

    • whether the act or practice is inconsistent with or contrary to
      any human right under the HREOC Act.

    3.1 Whether there is an act
    or practice

    Section 3 of the
    HREOC Act defines an 'act' or 'practice' as including an act or practice
    done by or on behalf of the Commonwealth or an authority of the Commonwealth.

    The Department is
    a federal government department, under the Minister for Immigration and
    Multicultural Affairs. The Migration Act 1958 (Cth) gives the Minister
    authority to establish immigration detention centres and make regulations
    for the operation of detention centres, including the conduct and supervision
    of detainees and the powers of persons performing functions in connection
    with the supervision of detainees.

    The acts or practices
    complained of relate to the conditions in which the complainants were
    held and the treatment of the complainants in detention under the Migration
    Act 1958
    .

    I agree with the
    Department that section 256 of the Migration Act does not require its
    officers to advise detainees that they have a right to seek independent
    legal advice when they are taken into detention. This issue was considered
    by the Full Federal Court in Fang and Others v Minister for Immigration
    and Ethnic Affairs and Another
    .(6)
    Justice Nicholson for the majority confined himself to examining domestic
    law and found that section 256 of the Migration Act does not place an
    obligation on the Department to advise detainees of their entitlement
    to seek legal assistance. Similarly, section 193(2), which relates to
    legal advice in relation to visas, does not require officers to provide
    detainees with this information.

    However, these sections
    do not prohibit the provision of this advice. They are in fact silent
    on the issue. They in fact neither require nor prohibit officers advising
    detainees of their right to request legal advice. The Migration Act clearly
    gives the Department and its officers a discretion in relation to this
    issue. Under that Act this discretion can be exercised by either advising
    or not advising people in detention of their entitlement to seek independent
    legal assistance. The failure to provide advice is therefore an act or
    practice within the scope of the HREOC Act.

    3.2 Whether the act or practice
    is inconsistent with or contrary to human rights

    Section 3 of the
    HREOC Act defines 'human rights' as including the rights and freedoms
    recognised in the ICCPR, which is Schedule 2 to the Act.

    Articles 9(1) and
    10(1) of the ICCPR are relevant to this complaint.

    Article 9(1) of
    the ICCPR states:

    Everyone has the
    right to liberty and security of person. No one shall be subjected to
    arbitrary arrest or detention. No one shall be deprived of his liberty
    except on such grounds and in accordance with such procedure as are established
    by law.

    Article 10(1) of
    the ICCPR states:

    All persons deprived
    of their liberty shall be treated with humanity and with respect for the
    inherent dignity of the human person.

    Article 10(1) is
    particularly relevant to this complaint. The provision itself establishes
    a broad general standard of humaneness in detention. The content of this
    standard has been developed with the assistance of the Standard Minimum
    Rules for the Treatment of Prisoners (the Standard Minimum Rules) and
    the Body of Principles for the Protection of all Persons under any form
    of Detention (the Body of Principles). The rules and principles most relevant
    to this complaint are Standard Minimum Rules 35, 36, 37, 93 and 94 and
    Body of Principles numbers 1, 13, 15, 17, 18 and 33.

    The Third Committee
    of the General Assembly in its 1958 Report on the drafting of the ICCPR
    stated that the Standard Minimum Rules should be taken into account when
    interpreting and applying Article 10(l).(7) Also,
    the Human Rights Committee established by the ICCPR as the most authoritative
    interpreter of the ICCPR has held that compliance with the Standard Minimum
    Rules and the Body of Principles is the minimum requirement for compliance
    with the ICCPR's obligation that people in detention are to be treated
    humanely (article 10).(8)

    As a matter of international
    law, the Standard Minimum Rules are not binding of themselves on Australia
    and there is no specific obligation to implement them in Australia. However,
    the Standard Minimum Rules do elaborate the standards which the international
    community considers acceptable and are relevant to interpreting the scope
    and content of the protection given to persons deprived of their liberty
    in article 10 of the ICCPR.

    I am satisfied that
    the acts or practices complained of relate to 'human rights' under the
    ICCPR and HREOC Act.

    4.
    Findings and recommendations

    On 13 August 2000
    the Human Rights Commissioner forwarded the Notice of his inquiry into
    these complaints to the parties. The findings contained in that notice
    are set out below.

    4.1 Findings

  • Advice of the entitlement to legal advice
  • I have considered
    the evidence provided by Mr Quan, Mr Su and the Department in relation
    to the provision of legal advice to the complainants. The Department has
    indicated that in its view both complainants were advised on 5 July 1996,
    within 3 weeks of entering detention, that facilities were available for
    accessing legal advice. It is clear from what transpired between that
    date and the dates when Mr Quan and Mr Su finally lodged their applications
    for protection visas, that they were not aware in any meaningful way of
    their right to request legal assistance and so there is some doubt as
    to the effectiveness of the communication to them. However, there is no
    doubt that no advice was provided between 15 June 1996, when Mr Quan and
    Mr Su were taken into detention, and 5 July 1996.

    The Standard Minimum
    Rules and the Body of Principles provide that persons in detention be
    advised of their right to legal advice. Even if, as the Department argues,
    those instruments are not incorporated into ICCPR Article 10.1, I consider
    that the right to be advised of the availability of independent legal
    advice is an essential element of the humane treatment that a person who
    is deprived of liberty is entitled to receive under Article 10.1.

    I find that the
    Department's acts and practice in not informing Mr Quan and Mr Su of this
    right between 15 June and 5 July 1996 breached their right under ICCPR
    Article 10.1 and therefore their human right under the HREOC Act to be
    treated humanely and in accordance with human dignity while in detention.
    Although I am not satisfied that the communication on 5 July 1996 was
    effectively understood by the complainants, I make no finding on this
    issue in relation to the period after this date.

  • Timely provision of legal assistance and application for refugee
    status
  • I note the Department's
    comments that reasonable facilities to access legal advice in accordance
    with section 256 of the Migration Act were offered to Mr Quan and Mr Su,
    along with other Grevillea detainees, at a meeting between the centre
    manager and all the Grevillea group on 5 July 1996 in response to a request
    received from them on 2 July 1996. The complainants' concerns, however,
    relate not to what occurred and what was offered on 5 July 1996 but to
    what transpired after that.

    In Mr Quan's case,
    the relevant period was between October 1996 and May 1997. He first sought
    assistance in letters of October 1996. In his letter of 2 March 1997 he
    expressed a strong desire to seek asylum in Australia and asked for legal
    assistance to help him do this. On 19 March 1997 the Compliance and Detention
    Section of the Department received a translation of this letter. On 26
    March 1997 Mr Quan again wrote to the Department asking to apply for refugee
    status and to be provided with a form. On 1 April 1997 the Compliance
    and Detention Section received a translation of this letter.

    Mr Quan spoke to
    a solicitor at the South Hedland LAC office on 21 April 1997, after he
    had initiated contact with that office in writing. This was the first
    occasion on which Mr Quan spoke to a lawyer. This contact was organised
    by the assistant manager at the centre after Mr Quan showed him a letter
    he had received from the LAC. This contact was a result of direct approaches
    Mr Quan had made to the LAC and took place independently from the letters
    he had written to the Department.

    The Department responded
    to Mr Quan's letters of 2 March 1997 and 26 March 1997 by providing him
    with a protection visa application form on 27 May 1997 and by writing
    to him on 28 May 1997. This letter thanked him for his previous correspondence
    and stated that he had received the appropriate application form.

    The Department provided
    Mr Quan with an opportunity to apply for a protection visa seven months
    after his first letter, ten weeks after he expressed a desire in very
    specific terms to seek asylum and to obtain legal assistance and over
    11 months after he was taken into detention. Application assistance was
    also approved at this time. Mr Quan was detained throughout the period
    of many months he waited for an effective response to his requests. He
    suffered stress and anxiety as a result of delays in handling his requests.

    In the case of Mr
    Su, the relevant period was between 6 July 1996 and February 1997. He
    made many requests for legal assistance:

    • On 6 July 1996 he wrote a letter titled Application, which was
      received by the centre manager and forwarded to the Compliance and
      Detention Section of the Department in Canberra, expressing a strong
      desire to seek asylum in Australia and requesting legal assistance
      to help him with this.
    • On 9 September 1996 he wrote two letters to the centre manager,
      expressing his gratitude that arrangements were to be made for him
      to receive legal assistance and stating that he and his family would
      cooperate with the government to ensure their application ran smoothly.
    • On 15 September 1996 he wrote a letter addressed to Mr Lawyer to
      obtain legal assistance to apply for refugee status.
    • On 14 October 1996 he wrote a letter titled Application for Legal
      Aid to the Department, asking for legal aid so that he could apply
      for refugee status.
    • On 21 January 1997 he wrote a further letter to the Department
      titled Request for completing an application form for refugee status,
      stating that he had asked the Department for an application for refugee
      status and for legal assistance both orally and in writing many times
      and to date had not heard anything.

    The Department responded
    to Mr Su's requests for legal assistance on a number of occasions and
    in a number of ways:

    • A letter on 9 September 1996 advised him that, if he required legal
      assistance, he should speak to the centre manager who would make the
      necessary arrangements.
    • Arrangements were made for him to speak with a solicitor from the
      LAC on 17 September 1996.
    • On 23 January 1997 Ms Zimmerman of the LAC attended the Port Hedland
      IDC and helped Mr Su and his wife complete application forms to apply
      for protection visas.
    • On 19 February 1997 the Department replied to Mr Su's letters of
      14 October 1996 and 21 January 1997 and advised him that he would
      receive assistance for his application for refugee status.

    Mr Su's letters
    were not responded to by the Department in a timely manner. His letter
    of 6 July 1996 was not responded to until more than two months later.
    His clear requests for assistance in September and October 1996 and January
    1997 were not responded to by the Department until 19 February 1997.

    The Department stated
    in its reply to my preliminary report that "[t]he advice given on
    5 July 1996 was that those wanting access to legal advice should let the
    DIMA staff at the centre know and arrangements would be made to provide
    a room, telephone, writing materials, interpreter and list of lawyers
    from the telephone book". Mr Su sought it almost immediately but
    no assistance was provided until 17 September 1996, more than two months
    later. Even then Mr Su misunderstood the nature and purpose of meeting
    with a solicitor on that day.

    In its reply to
    my preliminary report, the Department states that "protection visa
    forms are also held at Port Hedland and are provided on request by the
    DIMA Centre Manager". Mr Su requested one, or at least he requested
    advice as to what he should do to apply for protection, from as early
    as 6 July 1996. It is not clear to me what else Mr Su should have done
    to indicate that he wished to apply for a protection visa in addition
    to the steps which he took to obtain assistance.

    I do not accept
    the Department's justification for its decision to accord a lower priority
    to Mr Su's letters relating to his individual situation and his desire
    to seek asylum and to obtain legal assistance.

    The Department states
    that in my preliminary report I was assuming that the right in question
    here is "an unqualified right to application assistance publicly
    funded through DIMA and of a right of entry into the protection visa system
    and legal procedures to determine refugee status". I agree with the
    Department that there is no such right. Rather, the right in question
    is a right to actual, adequate and effective access. That may require
    publicly funded assistance for some people but equally it need not. The
    issue in relation to Mr Quan and Mr Su is that, for whatever reason, in
    spite of their repeated requests for legal advice and application assistance
    they were not provided with any effective advice and assistance for several
    months.

    ICCPR Article 10.1
    requires that a person in detention be treated in a humane manner. The
    Standard Minimum Rules and the Body of Principles provide a minimum standard
    for humane treatment. In particular Standard Minimum Rules 93 and 94 are
    applicable to this case. The requirement that people in administrative
    detention shall not be treated less favourably than untried prisoners
    imposes an obligation on the Department to provide timely access to a
    legal advisor for the purposes of providing general legal advice and,
    where appropriate, assisting with an application for refugee status.

    In Australia it is
    unthinkable that an untried prisoner charged with a criminal offence would
    have to wait months for legal assistance for advice and/or the preparation
    of a defence. In the criminal jurisdiction normal practice is to provide
    legal assistance on the same day it is requested. I am therefore satisfied
    that the Department's treatment of Mr Quan's and Mr Su's requests is inconsistent
    with the principles in Rules 93 and 94, as they were treated in a manner
    less favourable than untried prisoners. More relevantly, the treatment
    breaches ICCPR Article 10.1.

    Rule 36 of the Standard
    Minimum Rules and Principle 33 of the Body of Principles provide that
    every request or complaint from a prisoner or detainee shall be promptly
    dealt with and replied to without undue delay. The Human Rights Committee
    has held that ICCPR Article 10.1 also requires prompt dealing with such
    requests. It has interpreted "promptly" to the effect that delays must
    not exceed a few days.(9)

    In October 1996
    Mr Quan wrote to the Department to request advice on applying for refugee
    status. On 2 March 1997 he requested asylum in Australia and asked for
    legal assistance. He did not receive legal assistance until 21 April 1997,
    seven weeks later, as a direct result of approaches he had made to the
    local LAC office. It was not organised by the Department in response to
    the letters he wrote in October 1996 and March 1997. He was not provided
    with a protection vise application form until 27 May 1997, more than seven
    months after his first request and twelve weeks after his letter of 2
    March 1997.

    On 6 July 1996 Mr
    Su indicated a wish to apply for asylum in Australia and requested legal
    assistance. He did not receive legal assistance until 17 September, more
    than 10 weeks later, and even then the interview was clearly unsatisfactory.
    He did not receive effective legal assistance for a further three months,
    until 23 January 1997. He did not receive an application form for a protection
    visa until late January 1997, almost seven months after his initial request.

    I accept that the
    level of correspondence and the need to translate letters may mean that
    it is not always possible to respond to letters within one or two days.
    However, due to the fundamental rights that Mr Quan and Mr Su are seeking
    to exercise and the fact that every day they wait to gain access to the
    formal refugee determination process is an extra day they spend in detention,
    I find that the delays experienced in their cases are unjustifiable and
    inexcusable.

    The Department's
    handling of Mr Quan's and Mr Su's requests was not timely and thus inconsistent
    with the international standards contained in the Standard Minimum Rules
    and the Body of Principles. I find that the Department's handling of these
    requests does not constitute humane treatment in detention and therefore
    breached Mr Quan's and Mr Su's rights under article 10(1) and their rights
    under the HREOC Act.

  • Delays in assistance and arbitrary detention
  • The complainants
    allege that the delays in providing access to legal assistance and applications
    for a protection visa prolonged their time in detention. The Department
    states that Mr Quan's and Mr Su's detention was not manifestly unpredictable
    or indefinite so as to be arbitrary and in breach of ICCPR Article 9.1
    because the reasons for and the conditions defining the duration of the
    detention are set out in domestic legislation and because during the period
    of their detention the Department was actively working to finalise arrangements
    for their removal from Australia.

    In A v Australia
    the Human Rights Committee stated that arbitrariness must not be equated
    with unlawfulness but must be interpreted more broadly to include such
    elements as inappropriateness and injustice.(10)
    It also stated that remand in custody should be considered arbitrary if
    it is not necessary in all the circumstances of the case.

    In its Immigration
    Detention Report, the Commission found that Australia's policy of mandatory
    detention of unauthorised arrivals was arbitrary and so in breach of ICCPR
    Article 9.1. That practice is required by law and so is not subject to
    the Commission's complaint jurisdiction, as I have already indicated.
    However, discretionary acts and practices that prolong the process of
    determining an application for a protection visa are capable of being
    the subject of a complaint.

    Acts and practices
    that delay the provision of legal advice and of application forms for
    protection visas prolong detention by delaying the determination of status.
    They therefore make the resultant detention arbitrary as detainees cannot
    predict when they would be able to make an application for refugee status
    or when their immigration status would be finally determined and they
    could be released.

    I find that Mr Quan's
    detention from October 1996 until 27 May 1997 and Mr Su's detention from
    July 1996 to February 1997 were arbitrary within the meaning of ICCPR
    article 9(1) and constituted a breach of their human rights under the
    HREOC Act. Over these months they were detained without appropriate justification.

  • Separation detention
  • From 16 June 1996
    to 19 September 1996 Mr Quan was detained in E block at the Port Hedland
    IDC and Mr Su was held in E and J blocks. These accommodation blocks are
    separated by a series of internal fences from the rest of the centre.
    While in separation detainees are limited in their ability to contact
    the outside world through restrictions or prohibitions on using the telephone,
    obtaining news and receiving correspondence. Separated detainees are not
    allowed to receive visits from other people in the IDC or people outside
    the centre, other than legal advisors. While in separation detention detainees
    are required to eat in the common room of the accommodation block rather
    than in the main dining area with other detainees in the centre.

    Mr Quan and Mr Su
    spent 96 days in separation accommodation. This is almost three times
    the average period of time which the Department said was 33 days at that
    stage.

    Some of the conditions
    of the separation detention at Port Hedland distinguish the practice of
    segregation from the commonly held understanding of 'incommunicado detention'.
    Incommunicado detention occurs when people in detention are unable to
    communicate with the world outside the place of detention. A person in
    detention should have access to a lawyer, family members and a doctor.
    A person who is being held incommunicado does not have access to any of
    these. The Human Rights Committee has found that incommunicado detention
    for even brief periods will be in breach of ICCPR article 10(1). In Arzuaga
    (Gilboa) v Uruguay a period of incommunicado detention of 15 days was
    found to breach article 10(1).(11) The Human Rights
    Committee has repeatedly taken the view that incommunicado detention does
    not constitute humane conditions of detention and is in breach of article
    10(1).

    The Department argues
    that it is incorrect to describe Mr Quan and Mr Su as being in incommunicado
    detention and that rather they were held in 'separation detention'. It
    points to the fact that during the initial period of isolation detainees
    who arrive with friends and family members are not separated from each
    other or held in solitary confinement but are accommodated together. There
    is regular contact with the centre's medical and welfare staff. Detainees
    are able to speak with a lawyer if they are aware of their right to ask
    for legal assistance and make this request to officers of the Department.
    They may also be able to write to relatives and others in their home country,
    although there may also be severe restrictions on correspondence. Also,
    the circumstances of their detention are open to public scrutiny.

    As the Department
    noted itself, however, "the conditions in separation detention may
    have a cumulative effect which over an extended period of time may raise
    issues of consistency with obligations under article 10.1 of the ICCPR".

    I consider that many
    aspects of separation detention are comparable to incommunicado detention.

    • Legal assistance is difficult to obtain. Detainees first have to
      know that they have a right to legal advice before they can ask for
      it. Even if they are aware of this right, in many cases requests for
      legal assistance are not responded to in reasonable time frames.
    • The period of separation is indeterminate and the reason for the
      separation is not explained clearly.
    • Tight restrictions are placed on the use of the telephone and detainees
      are not permitted to make telephone calls to or correspond with people
      in the Australian community.
    • Detainees do not have access to the outside world through the radio
      and newspaper and for some periods of time the television.
    • Apart from legal advisors, detainees in separation detention are
      not permitted to have visits from other people inside or outside the
      centre.

    The period of time
    Mr Quan and Mr Su spent in separation detention was excessive and is not
    justified on any grounds. No good reason has been advanced for keeping
    them in the isolated accommodation area past the first fortnight in July
    1996. This treatment is inconsistent with Principle 15 which provides
    that communication of a detained person with the outside world, and in
    particular his legal counsel and family, should not be denied for more
    than a matter of days. It is also inconsistent with Rule 37 which provides
    that detainees should be allowed to communicate with family and friends
    through correspondence and visits. It is not humane treatment and so it
    violates ICCPR article 10.1.

    I find that Mr Quan
    and Mr Su were held for periods exceeding 90 days in conditions which
    in many respects are identical to incommunicado detention. The conditions
    of their detention were in breach of Principle 15 and Rule 37 and of ICCPR
    article 10.1 and therefore of human rights under the HREOC Act.

    I note the Department's
    advice, in its reply to my preliminary findings, of the improvements effected
    to the separation detention regime and to the separation blocks at Port
    Hedland. While I endorse the efforts that have been made to reduce the
    periods of separation detention at Port Hedland, I consider that separation
    detention should be used sparingly and in compliance with the Standard
    Minimum Rules and the Body of Principles to comply with the obligation
    in ICCPR article 10.1. Detainees who are in separation detention should
    be informed of the reasons and the likely time-frame for their separation.

    NOTICE OF FINDINGS

    I find that the
    Department's acts and practice in not informing Mr Quan and Mr Su of their
    right to legal advice between 15 June and 5 July 1996 breached their right
    under ICCPR Article 10.1 and therefore their human right under the HREOC
    Act to be treated humanely and in accordance with human dignity while
    in detention.

    I find that the
    Department's handling of Mr Quan's and Mr Su's requests for access to
    legal advice and for application forms for protection visas was not timely
    and so inconsistent with their humane treatment in detention and therefore
    breached Mr Quan's and Mr Su's rights under ICCPR Article 10(1) and therefore
    their rights under the HREOC Act.

    I find that Mr Quan's
    detention from October 1996 until 27 May 1997 and Mr Su's detention from
    July 1996 to February 1997 were arbitrary within the meaning of ICCPR
    Article 9(1) and constituted a breach of their human rights under the
    HREOC Act.

    I find that Mr Quan
    and Mr Su were held for 96 days in separation detention in conditions
    which in many respects are identical to incommunicado detention, in breach
    of ICCPR Article 10.1 and therefore of human rights under the HREOC Act.

    4.2 Recommendations

    On 13 August 2000
    the Human Rights Commissioner forwarded the Notice of his Inquiry to the
    parties. The recommendations contained in that Notice are set out below:

    The HREOC Act requires
    that, where I conclude that an act or practice breaches a human right,
    I should then make findings to that effect and such recommendations, including
    where appropriate recommendations for compensation, as may be desirable
    to compensate and make good, to the extent possible, the harm or damage
    caused. Having found violations of human rights under the Act I now turn
    to recommendations.

    Australia's policy
    of mandatory detention of>unlawful non-citizens' should be revised with
    a view to maintaining an immigration process which is not in violation
    of Australia's human rights obligations and which strives to implement
    a best practice approach to compliance with the ICCPR article 10.1, the
    Standard Minimum Rules and the Body of Principles(12).
    To this end, I recommended in the Immigration Detention Report that sections
    189 and 196 of the Migration Act 1958 (Cth), which require the detention
    of almost all unauthorised arrivals regardless of their individual circumstances,
    be repealed and replaced with a system requiring that all unauthorised
    arrivals be assessed to gauge their suitability for release on a bridging
    visa. At present only limited classes of detainees held under sections
    189 and 196 may be released from detention if they satisfy the restrictive
    criteria for bridging visas.(13)

    I make the following
    further recommendations directed to preventing further acts or practices
    such as those in these complaints:

    • In compliance with the ICCPR detainees should be informed promptly
      and effectively of their right to apply for a protection visa and
      to access independent legal advice and assistance.
    • In compliance with the ICCPR, once a detainee has requested legal
      advice and assistance, that advice and assistance and any necessary
      interpretive services should be provided in a timely and effective
      fashion that does not delay the determination of the detainee's status
      or prolong the detention.
    • Separation detention should be used sparingly for the shortest
      possible period of time and in compliance with the Standard Minimum
      Rules and the Body of Principles. Detainees who are in separate detention
      should be informed of the reasons for and the likely time-frame of
      their separation.

    The HREOCA Act also
    provides that I may make recommendations as to compensation to be paid
    to those who are subjected to human rights violations. I have been reluctant
    to make such recommendations but I am conscious of the seriousness of
    the allegations and findings in these complaints. In our criminal justice
    system deprivation of liberty is the most severe form of punishment for
    the most serious crimes. Yet here I have found that two persons not accused
    let alone convicted of a crime have been subjected to significant periods
    of arbitrary detention as a result of human rights violations. Under these
    circumstances I consider it appropriate that I recommend the payment of
    compensation.

    Compensation in
    human rights cases is difficult to assess. There is no formal or informal
    schedule. The level of damages awarded in discrimination cases, which
    constitute by far the great majority of human rights cases decided, is
    modest compared to damages in other jurisdictions such as tort. I am required
    to take this into account when assessing the appropriate sums to recommend.

    I also take into
    account the somewhat longer period of arbitrary detention to which Mr
    Su was subjected compared with Mr Quan. It is appropriate that this difference
    be reflected in the amounts recommended.

    Finally I indicate
    that I have not attempted to fix a level of damages for each element of
    human rights violation I have found. Rather, I have attempted to determine
    an appropriate amount to compensate for the damage done as a whole as
    a result of the violations.

    Accordingly I recommend
    that the Department pay Mr Su the sum of $20 000 and Mr Quan the sum of
    $15 000 by way of compensation for the damages each suffered as a result
    of the human rights violations to which he was subjected. I appreciate
    that these sums are modest and that no financial payment can truly compensate
    those unjustly deprived of their liberty and subjected to human rights
    violations for prolonged periods.

    NOTICE OF RECOMMENDATIONS

    I make the following
    recommendations directed to preventing further acts or practices such
    as those in these complaints.

    1. In compliance with the ICCPR detainees should be informed promptly
    and effectively of their right to apply for a protection visa and
    to access independent legal advice and assistance.

    2. In compliance with the ICCPR, once a detainee has requested
    legal advice and assistance, that advice and assistance and any necessary
    interpretive services should be provided in a timely and effective
    fashion that does not delay the determination of the detainee's status
    or prolong the detention.

    3. Separation detention should be used sparingly for the shortest
    possible period of time and in compliance with the Standard Minimum
    Rules and the Body of Principles. Detainees who are in separate detention
    should be informed of the reasons for and the likely time-frame of
    their separation.

    I also recommend
    that the Department pay Mr Su the sum of $20 000 and Mr Quan the sum of
    $15 000 by way of compensation for the damages each suffered as a result
    of the human rights violations to which he was subjected.

    4.3 Respondent's reply

    On 3 October 2000,
    the respondent replied to the notice. Pursuant to section 29(2)(e) of
    the Act I have set out their reply in full.

    "DIMA disputes the Commissioner's findings that it has
    breached the ICCPR in its treatment of either Mr Quan or Mr Su. The
    Department therefore declines to follow the Commissioner's recommendation
    to pay compensation to the two individuals. DIMA's Full response to
    the Notice of findings and recommendations is at Attachment One".

    Pursuant to s.29(2)(e)
    of the HREOC Act, I propose to quote that response in full:

    1. Detainees should be informed promptly and effectively of their
    right to apply for a protection visa and to access independent legal
    advice.

    As the Commissioner
    has noted, under section 256 of the Migration Act 1958 there is no
    onus on departmental officers to advise persons in detention of their
    right to obtain legal advice. The obligation to provide reasonable
    facilities for obtaining legal advice only arises once an officer
    has received a request. Departmental policy in this regard is based
    on the clear intent of legislation passed by Parliament.(14)

    The Commissioner
    argues that the United Nations Human Rights Committee (HRC) has held
    that compliance with the Standard Minimum Rules for the Treatment
    of Prisoners (SMR) and the Body of Principles for the Protection of
    all Persons under any form of Detention (BoP) represent the minimum
    requirement for complying with Article 10(1) of the ICCPR.

    The BoP principle
    relevant to advice on the right to obtain legal advice is Principle
    13. It requires information about how detainees can avail themselves
    of their rights to be given to them at the commencement of detention
    or promptly thereafter. Relying on the MSR and BoP, the Commissioner
    states that he considers 'the right to be advised of the availability
    of independent legal advice is an essential element of the humane
    treatment that a person who is deprived of their liberty is entitled
    to receive under Article 10(1).'

    Consistent
    with its legal advice and its response to the Commissioner's preliminary
    findings, the Department agrees that while the SMR and BoP represent
    much of the current international thinking on detention, they are
    not binding instruments. The SMR and the BoP have not been incorporated
    into the ICCPR.

    In the Department's
    view, to find a right to be advised of the availability of independent
    legal advice arising from the ICCPR represents a significant extension
    of the text of the Convention and goes well beyond the ordinary meaning
    of its terms. This is inconsistent with the settled approach to the
    interpretation of the Convention, as provided for in the Vienna Convention
    on the Law of Treaties.(15)

    In the circumstances
    of this complaint, Mr Su and Mr Quan, together with the other members
    of the Grevillea boat, were advised of the facilities available for
    accessing legal advice on 5 July 1996, within 3 weeks of entering
    detention. The Department believes that this action and the subsequent
    actions of the Department satisfied both the requirements of the Migration
    Act as well as the ICCPR.

    2. Advice and
    assistance should be provided in a timely and effective fashion that
    does not prolong detention.

    The
    Department agrees with this recommendation as it applies to people
    who have prima facie claims to protection (see point 3 below for elaboration).
    The Department recognises that the timely provision of advice and
    application assistance is in the interests of both detainees and the
    Government. The speedy resolution of possible asylum claims facilitates
    both the regularisation of the migration status of those unauthorised
    arrivals ultimately granted protection, and the removal of those individuals
    to whom Australia does not owe protection obligations.

    Turning to the
    circumstances of the instant complaint, the Department disputes that
    the complainants had to wait months for legal assistance. As stated
    in the Department's response to the Commissioner's preliminary findings,
    reasonable facilities to access legal advice in accordance with section
    256 of the Migration Act 1958 were offered to both men, along with
    other Grevillea boat arrivals at a meeting with the Centre Manager
    on 5 July 1996, within three weeks of entering detention, in response
    to a request received from them on 2 July 1996.

    Both complainants
    were provided with assistance in applying for protection visas in
    an effective manner, through the Immigration Advice and Application
    Assistance Scheme (IAAAS) funded by the Department. The Commissioner
    refers to SMR (Rule 36) and BoP (Principle 33) which require requests
    from detainees to be dealt with promptly. He states "promptly" has
    been interpreted as meaning not exceeding a few days. In the Department's
    view it is implausible to rely on these provisions to argue that any
    delay exceeding a few days amounts to treating detainees without humanity
    and without respect for the inherent dignity of the human person.
    It may amount to a breach of the SMR or the BoP but these are not
    formally incorporated into the ICCPR.

    While accepting
    that there were administrative delays in translation of correspondence
    and in providing forms to the complainants, the Department does not
    consider that their consequences led to a breach of Article 10(1)
    of the ICCPR.

    The Department
    has made continuous improvements in the provision of advice and assistance
    for detainees, notwithstanding the unprecedented boat arrivals since
    mid 1999.

    3. Separation
    detention should be used sparingly and detainees in separation should
    be informed of the reasons for, and the likely time frame of, their
    separation.

    Separation detention
    is employed in the processing of all new unauthorised boat arrivals.
    Its purpose is to protect the integrity of the protection visa process
    and to ensure that Australia's resources are directed at those with
    genuine claims for protection not those who would use the protection
    process in an attempt to achieve migration outcomes.

    To recommend
    that separation detention be used sparingly and that detainees be
    informed of the reasons for them being held in separation detention,
    demonstrates a fundamental misunderstanding of its purpose and application.
    All unauthorised arrivals are actively questioned to identify any
    concerns they may have about returning to their homeland. If they
    raise claims that prima facie may engage our protection obligations,
    they are provided, as soon as possible, with assistance to complete
    a protection visa application. As soon as their protection visa interview
    has been completed, they are transferred out of separation detention.

    In relation to
    the complaint, the Department disputes that many aspects of separation
    detention experienced by Mr Su and Mr Quan are comparable to incommunicado
    detention and therefore in breach ICCPR Article 10(1). 'Incommunicado
    detention' has been defined by the Special Rapporteur on Torture and
    Other Cruel, Inhuman or Degrading Treatment or Punishment as follows:

    In incommunicado
    detention the detained person is totally cut off from any contact
    with the outside world. Visits by lawyers and relatives are not allowed.
    Information on the conditions of detention are not available. The
    detainee is not allowed to write letters or send requests to anyone
    outside. (16)

    The conditions
    of separation detention experienced by the complainants fall far short
    of incommunicado detention. The complainants were free to write to
    relatives and others in their home country. Information on the conditions
    of their detention was, and is, publicly available.

    The Department
    acknowledged in its response to the Commissioner's preliminary finding
    that conditions in separation detention may have a cumulative effect,
    which over an extended period of time may raise issues of consistency
    with obligations under Article 10(1) of the ICCPR. However, separation
    detention did not have such an effect in this case.

    4. The Department
    should pay compensation for the damages suffered by the complainants
    as a result of the human rights violations which they suffered.

    The Department
    does not accept that its acts and practices are inconsistent with,
    or contrary to, the complainants' human rights, or have resulted in
    a breach of Articles 9(1) or 10(1) of the ICCPR in respect of the
    complainants. Consequently, the Department rejects the Commissioner's
    recommendation pursuant to section 29(2)(c)(i) of the Human Rights
    and Equal Opportunity Act 1986 to pay compensation to the complainants.


    Footnotes

    1.
    Human Rights and Equal Opportunity Commission, Those who've come across
    the seas: Detention of unauthorised arrivals 1998.

    2.
    Section 1.8, located on the Commission's website at http://www.humanrights.gov.au/human_rights/asylum_seekers/index.html#idc_review.

    3.
    Chapter 3 of the Report and sections 7.2.2 and 8.7 of the Immigration
    Detention Review.

    4.
    The Department's policies and procedures for providing detainees with
    access to legal advice and the refugee determination process are outlined
    in chapter 14 of the Immigration Detention Report.

    5.
    The conditions in the separated accommodation blocks at the Port Hedland
    IDC are outlined in chapter 7 of the Immigration Detention Report and
    section 7.2 of the Immigration Detention Review.

    6.
    (1995) 135 ALR 583.

    7.
    United Nations, Official Records of the General Assembly, Thirteenth Session,
    Third Committee, 16 September to 8 December 1958, pages 160-173 and 227-241.

    8.
    Human Rights Committee General Comment No. 21 (1992), paragraph 5.

    9.
    General Comment No.8 Article 9 (Sixteenth session, 1982), paragraph 2,
    as compiled in UN Doc. HRI/GEN/1/Rev.3 dated 15 August 1997.

    10.
    Communication No. 560/1993, UN doc.CCPR/C/59/D/560/1993, 30 April 1997.

    11.
    Communication No. 147/1983, selected decisions of the Human Rights Committee
    under the Optional Protocol, UN doc. CCPR/C/OP/2, 1990 p. 176.

    12.
    On 28 July 2000 the 69th session of the Human Rights Committee issued
    its Observations and Recommendations on Australia's periodic report under
    the ICCPR [CCPR/CO/69/AUS]. Relevantly, the Committee considered that
    mandatory detention under the Migration Act of 'unlawful non-citizens',
    including asylum-seekers, raised questions of compliance with the Covenant.
    The Committee made the following comments:

    The Committee considers that the mandatory detention under the Migration
    Act of "unlawful non-citizens", including asylum seekers, raises questions
    of compliance with article 9, paragraph 1, of the Covenant, which provides
    that no person shall be subjected to arbitrary detention. The Committee
    is concerned at the State party's policy, in this context of mandatory
    detention, of not informing the detainees of their right to seek legal
    advice and of not allowing access of non-governmental human rights organizations
    to the detainees in order to inform them of this right.

    The Committee urges
    the State party to reconsider its policy of mandatory detention of "unlawful
    non-citizens" with a view to instituting alternative mechanisms of maintaining
    an orderly immigration process. The Committee recommends that the State
    party inform all detainees of their legal rights, including their right
    to seek legal counsel.

    13.
    Bridging visas are described in the Australian Report, CCPR/C/AUS/98/3,
    paras. 490-495. Regarding restrictiveness, note that only two children
    out of 581 child detainees were released on a bridging visa between 1994
    and 1998, as it has been held that it is more in the child's interests
    to stay with his or her parents, who are usually not eligible for bridging
    visas. See Immigration Detention Report, p.22.

    14.
    Compare with section 193(2) of the Migration Act 1958.

    15.
    Confirmed by the Human Rights Committee in Alberta Union v Canada Communication
    11811982 actions of the Department satisfied both the requirements of
    the Migration Act as well as the ICCPR.

    16.
    Report by the Special Rapporteur, Mr P Kooijmans, Torture and Other Cruel,
    Inhuman or Degrading Treatment or Punishment, E/CNA/1986115, 19 February
    1986, paragraph 109.

    Last
    updated 24 February 2006.