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HREOC Report No. 18

Report of an
inquiry into a complaint by Mr Duc Anh Ha of acts or practices inconsistent
with or contrary to human rights arising from immigration detention

HREOC Report No. 18


1.
Introduction

2.
The Commission's jurisdiction

3.
Outline of complaint and the inquiry process

4.
Findings and recommendations

5.
Actions taken by the respondent as a result of the findings and recommendations

APPENDIX
1

APPENDIX
2

1.
The commission's jurisdiction

2. The complaint
3. The complainant's evidence and submissions
4. Respondent's response
5. Documentary material before the commission
6. Conciliation
7. Preliminary findings of Commissioner Sidoti
8. Response to Commissioner Sidoti's preliminary
findings

9. My Further Preliminary Findings
10. Respondent's response to my Further Preliminary
Findings

11. Section 21 Notice
12. Findings of fact
13. Findings on liability
14. Article 10
15. Article 9(1)
16. Recommendations

APPENDIX
A

APPENDIX B
APPENDIX C


1. Introduction

This report to the
Attorney-General concerns an inquiry by the Human Rights and Equal Opportunity
Commission ("the Commission") into a complaint made by Mr Duc
Anh Ha on 7 August 1999. The complaint is against the Commonwealth of
Australia (Department of Immigration and Multicultural and Indigenous
Affairs ("DIMIA")) under the Human Rights and Equal Opportunity
Commission Act 1986
(Cth) ("HREOC Act"). The complaint was
made pursuant to section 20(1)(b) of the HREOC Act, which provides for
a complaint to be made in writing to the Commission alleging that an act
or practice is inconsistent with or contrary to any human right.

2. 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 the
Commission's functions in relation to reporting on complaints with substance
that have not been resolved through the process of conciliation are outlined
in Appendix 1 to this report.

3. Outline of complaint and
the inquiry process

3.1 The nature
of the complaint

On 27 July 1999,
Mr Ha was detained by officers of DIMIA in Perth. Mr Ha was detained first
at the Perth Immigration Detention Centre (the "Perth IDC")
and then transferred to Casuarina Prison (the "Prison") on 30
July 1999.

In his complaint
to the Commission, Mr Ha alleged that, during his transfer to and detention
at the Prison, he had suffered treatment which constituted breaches of
his human rights.

3.2 The complainant's
removal from Australia

Mr Ha was deported
by DIMIA on 15 December 1999.

The removal of Mr
Ha from Australia prevented the Commission from putting to the complainant
some of the respondent's submissions, but it does not affect the Commission's
jurisdiction in relation to his complaint.

The Commission sought
the assistance of the respondent to locate the complainant. The respondent
stated that it did not have the complainant's contact details and further
indicated that was not within the respondent's power to obtain those details.

3.3 The Inquiry
process

Commissioner Sidoti
initially investigated this complaint pursuant to section 11(1)(f) of
the HREOC Act. Conciliation was not possible because the complainant had
already been deported. Commissioner Sidoti formed the view that this matter
was not amenable to conciliation. Commissioner Sidoti then made preliminary
findings in a report dated 11 July 2000.

After Commissioner
Sidoti left the Commission, I assumed responsibility for the investigation
of this complaint. After further inquiry, I considered it appropriate
to make certain further preliminary findings, dated 13 November 2001.

Following the preliminary
and further preliminary findings, Commissioner Sidoti and I each made
directions for the provision of further evidence and submissions by the
parties. Pursuant to sections 33 and 27 of the HREOC Act, Commissioner
Sidoti and I invited the respondent to make further submissions orally
and/or in writing. The respondent provided a number of written submissions.
No further contact was had with Mr Ha [1].

On 8 March 2002,
I issued a notice of my findings and recommendations in relation to the
complaint under section 29(2) of the HREOC Act (the "Notice").
A copy of the Notice is Appendix 2 to this Report.

4. Findings and recommendations

In summary, in the
Notice I found that Mr Ha's transfer to and detention in the Prison involved
acts and/or practices that were inconsistent with or contrary to articles
9(1), 10(1) and 10(2)(a) of the International Covenant on Civil and Political
Rights.

I made the following
recommendations directed to the prevention of a repetition of the relevant
acts and/or a continuation of the relevant practices:

"(a) The respondent
undertake a review of the conditions of detention of all persons held
in immigration detention in state prisons to ensure that the respondent
is not breaching article 10(1) or the separate treatment limb of article
10(2)(a) of the ICCPR in other cases. Amongst other matters, that review
should address:

  • whether other
    immigration detainees held in state prisons are subject to conditions
    of the type encountered by the complainant at the Prison or to conditions
    that would otherwise breach articles 7 and/or 10(1) of the ICCPR;
  • whether immigration
    detainees held in state prisons are subject to separate treatment appropriate
    to their status as unconvicted persons (at a minimum the conditions
    of detention of those persons should comply with Part II, Section C
    of the Standard Minimum Rules);
  • the feedback mechanisms
    currently available to allow DIMIA decision makers to properly consider
    the conditions in a state prison for the purposes of transfer decisions
    and reviews of place of detention; and
  • the strategies
    that might be put in place to ensure that immigration detainees are
    not detained in state prisons in circumstances that involve a breach
    or breaches of articles 7, 10(1) and/or 10(2)(a) of the ICCPR (amongst
    other things, this might involve, in an appropriate case, transferring
    a detainee to an interstate prison).

It may be appropriate
for that inquiry to be referred to a third party such as the Commission
or the Commonwealth Ombudsman.

(b) If the inquiry
referred to in (a) above reveals further breaches of articles 7, 10(1)
or the separate treatment limb of article 10(2)(a) of the ICCPR, then
the respondent should take immediate steps to remedy those breaches and
ensure that they do not take place again.
(c) The respondent ensure that Commonwealth decision makers consider whether
it is possible to achieve segregated detention in cases where immigration
detainees are to be held in state prisons.
(d) DIMIA establish secure detention facilities within Immigration Detention
Centres for the purpose of holding immigration detainees whose behaviour
is not able to be effectively managed in a lower security environment
of mainstream immigration detention centres.
(e) DIMIA, in conjunction with ACM, develop and implement strategies for
effectively dealing with detainees with drug dependency issues. Such strategies
should include training for ACM and Departmental officers in:

  • identifying detainees
    with drug dependency issues; and
  • obtaining appropriate
    medical assessment and treatment for such detainees so as to manage,
    to the greatest extent possible, any such issues within Immigration
    Detention Centres rather than state prisons.

(f) DIMIA liaise
with state and federal police services to discuss means of ensuring the
accuracy of information exchanged between DIMIA and those services regarding
particular detainees and of ensuring that such information is made available
as expeditiously as is possible.
(g) In training of Departmental and ACM officers in relation to the provisions
of MSI 244, DIMIA ensure that all officers are aware of their obligations
to:

  • fully document
    transfer decisions so as to ensure that the transfer process is transparent
    and accountable (paragraph 3.4 of MSI 244); and
  • ensure that transfer
    decisions are made pursuant to the grounds set out in section 4 of MSI
    244.

This is not an examination
of an enactment under section 11(1)(e) of the HREOC Act. However, I should
add that it is my view that the facts of this case seem to me to require
that the Migration Act 1958 (Cth) be amended so as to provide that detainees
can only be transferred from Immigration Detention Centres to State prisons
if they are either charged with or convicted of a criminal offence that
would result in remand in custody or the serving of a criminal sentence.

Until such legislative reform takes place, I would recommend that MSI
244 be amended so as to insert a similar restriction (ie so as to provide
that detainees can only be transferred from Immigration Detention Centres
to State prisons if they are either charged with or convicted of a criminal
offence that would result in remand in custody or the serving of a criminal
sentence). That recommendation was made by the Commission, in relation
to the then applicable Migration Series Instruction, in Those Who've Come
Across the Seas."

5. Actions taken by the respondent
as a result of the findings and recommendations

Under section 29(2)(e)
of the HREOC Act the Commission is required to state in its report to
the Attorney-General whether the respondent has taken or is taking any
action as a result of its findings and recommendations.

On 11 March 2002
the Commission wrote to the respondent to seek its advice as to what action
it had taken or proposed to take as a result of the findings and recommendations.
In a letter to the Commission dated 11 April 2002, Mr William Farmer,
on behalf of the respondent, provided the respondent's comments in relation
to the Notice. I have extracted those parts of Mr Farmer's letter that
state what action the respondent has taken or proposes to take:

…..Recommendations

a) The respondent
undertake a review of the conditions of detention of all persons held
in immigration detention in state prisons to ensure that the respondent
is not breaching article 10(1) or the separate treatment limb of article
10(2)(a) of the ICCPR in other cases. Amongst other matters, that review
should address:

  • whether other
    immigration detainees held in state prisons are subject to conditions
    of the type encountered by the complainant at the Prison or to conditions
    that would otherwise breach articles 7 and/or 10(1) of the ICCDPR;
  • whether immigration
    detainees held in state prisons are subject to separate treatment appropriate
    to their status as unconvicted persons (at minimum the conditions of
    detention of those persons should comply with Part II, Section C of
    the Standard Minimum Rules);
  • the feedback
    mechanisms currently available to allow DIMIA decision makers to properly
    consider the conditions in a state prison for the purposes of transfer
    decisions and reviews of place of detention; and
  • the strategies
    that might be put in place to ensure that immigration detainees are
    not detained in state prisons in circumstances that involve a breach
    or breaches of articles 7,10(1) and or 10(2)(a) of the ICCPR (amongst
    other things, this might involve, in an appropriate case, transferring
    a detainee to an interstate prison)

It may be appropriate
for that inquiry to be referred to a third party such as the Commission
or the Commonwealth Ombudsman.

The Department does
not agree with the President's findings in this case in relation to the
threshold of treatment required to constitute a breach of Articles 10(1)
and 10(2)(a). Further, the Department does not agree that the facts of
this case indicate that the treatment of Mr Ha or other detainees detained
in state correctional facilities approaches the threshold of treatment
required to breach Article 7.

As of 03 April 2002
there are only 11 immigration detainees held in state correctional facilities
(not including Queensland), with 6 detainees in NSW, 2 in Victoria and
3 in South Australia. Of these detainees, only 1 detainee has been transferred
from an Immigration Detention Facility to a correctional facility. The
remaining 10 detainees have been held in correctional facilities following
the completion of criminal sentences.

Further, the rules
and regulations applicable to immigration detainees held in state correctional
facilities have been and continue to be reviewed in the context of ongoing
negotiations with a number of State correctional authorities on Memoranda
of Understanding (MOUs). The conditions under which detainees are held
in state facilities necessarily form part of the negotiations.

In relation to point
2 of the recommendation (a), the Department submits that although the
Standard Minimum Rules may be taken into account in determining the standards
for humane conditions of detention, the Standard Minimum rules do not
form a code, nor are States Parties required to adhere to the Standard
Minimum Rules in order to comply with the ICCPR.

Australia is not
bound under international law to comply with the Standard Minimum Rules,
a fact the President acknowledges in the report. Nevertheless, the treatment
of detainees in state correctional facilities in most instances complies
with Part II Section C of the Standard Minimum Rules.

Further, in all jurisdictions
where immigration detainees are currently held in state correctional facilities,
it is standard practice that, at minimum, immigration detainees are held
as unconvicted/remand prisoners. In one jurisdiction, where legislation
provides for a further degree of separate treatment, immigration detainees
are subject to separate treatment as civil inmates.

As has been indicated
above, conditions for immigration detainees in state correctional facilities
in Western Australia differ from those that apply to sentenced prisoners.

In Victoria, it is
normal for detainees held in state correctional facilities to be detained
in accordance with Part II Section C of the Standard Minimum Rules. Detainees
in Victorian facilities:

  • are usually housed
    in a single cell, however, some detainees prefer to share sleeping quarters
    and this option is available.
  • can buy and prepare
    their own food if they wish to do so.
  • are free to wear
    their own clothes, however, all inmates are issued with t-shirts, track
    suit pants and shoes - there is no prison uniform.
  • are paid if they
    choose to undertake a work like activity program.
  • can be visited
    and treated by their own doctor or dentist.
  • can arrange newspaper
    and magazine subscriptions, buy books and obtain books from the library.
    They can also buy newspapers, magazines, writing materials, envelopes,
    stamps, telephone cards and food from the canteen.
  • can make telephone
    calls from their unit but they cannot receive telephone calls in their
    unit. They are also allowed reasonable visits from friends and family.
  • are provided with
    facilitated visits from their legal adviser. These visits are private.

In New South Wales,
it is normal for immigration detainees to be classified as civil inmates.
Generally speaking, civil inmates are treated in much the same way as
unconvicted inmates, except for some additional privileges.

In Queensland, detainees
are held in a separate wing of the Arthur Gorrie Correctional Centre and
are held separate from both convicted and unconvicted prisoners.

In South Australia,
detainees are transferred to the Adelaide Remand Centre on completion
of their sentences (ie at the beginning of their detention as immigration
detainees). They are held under the same conditions as inmates on remand,
and in some cases, have access to additional privileges such as more private
visits from family members.

As has been stated
above, the Department is currently negotiating MOUs with a number of State
correctional authorities with respect to the detention of immigration
detainees in state correctional facilities. During the MOU negotiation
process, the Department is placing particular emphasis on reporting requirements
and access to information relating to detainees.

In relation to the
President's suggestion that the Department consider transferring some
detainees to interstate prisons, as previously advised, the pressure on
prison capacity throughout Australia means that states and territories
are generally reluctant to take persons from other jurisdictions, including
immigration detainees.

(b) If the inquiry
referred to in (a) reveals further breaches of articles 7, 10(1) or
the separate treatment limb of 10(2)(a) of the ICCPR, then the respondent
should take immediate steps to remedy those breaches and ensure that
they do not take place again.

As stated above,
the Department does not agree with the findings in this case in relation
to the threshold of treatment required to constitute a breach of Articles
10(1) and 10(2)(a). Further, the Department does not agree that the facts
of this case indicate that the treatment of Mr Ha or other detainees detained
in state correctional facilities approaches the threshold of treatment
required to breach Article 7.

However, if it were
clear to the Department that the conditions under which an immigration
detainee was being detained in a state correctional facility breached
the ICCPR, then the Department would take immediate steps to request that
the relevant correctional authority address the issue immediately.

(c) The respondent
ensure that Commonwealth decision makers consider whether it is possible
to achieve segregated detention in cases where immigration detainees
are to be held in state prisons.

Australia maintains
a reservation in relation to the segregation limb of Article 10(2)(a).
As stated above, Australia's reservation to article 10(2)(a) is not binding
on Australia until the reservation is removed. There is nothing in the
language of the reservation that supports the approach adopted by the
President.

Further, in most
jurisdictions it is not possible to achieve full segregation from convicted
inmates, even where immigration detainees are held in purpose built remand
facilities.

Nevertheless the
Department agrees that, where possible, detainees held in state correctional
facilities should be segregated from convicted inmates. Further, in a
number of jurisdictions, the requirement to segregate different classes
of prisoners where practicable is reflected in the relevant legislation
of that state.

(d) DIMIA establish
secure detention facilities within Immigration Detention Centres for
the purpose of holding immigration detainees whose behaviour is not
able to be effectively managed in a lower security environment of mainstream
immigration detention centres.

The Department is
continually examining the most appropriate and optimal use of its immigration
detention facilities. The streaming of certain groups of detainees, possibly
including high risk detainees, is something the Department is considering.

There are pros and
cons to the proposition that high-risk detainees be accommodated together
in one purpose-built facility. Concentration of all difficult detainees
in one centre would remove the benefit of the ameliorating influence of
better-behaved detainees, making the management of this cohort much more
difficult.

It would also mean
that detainees who are community compliance cases would have to be moved
from states where they have lived and have community support. This may
provoke criticism from the courts and legal representatives of those who
are pursuing litigation. There would also be increased costs associated
with transporting and escorting detainees, including for tribunal and
court hearings.

While continuing
to assess these issues, as we have informed the President on several occasions,
we are aiming to ensure that, in time, all IDCs and IRPCs will have some
capacity to manage closely detainees who pose behaviour management problems.

In designing the
new centres to be built in Darwin, Brisbane and Christmas Island and in
redeveloping and refurbishing existing facilities, the Department is seeking
to ensure that appropriate infrastructure is in place to better manage
difficult detainees within our own facilities. Further measures to better
manage difficult detainees are also being considered. Nevertheless, the
Department maintains that there will continue to be a need to transfer
a small number of high risk detainees to state correctional facilities.

(e) DIMIA in conjunction
with ACM, Develop and implement strategies for effectively dealing with
detainees with drug dependency issues. Such strategies should include
training for ACM and Departmental officers in:

  • identifying detainees
    with drug dependency issues; and
  • obtaining appropriate
    medical assessment and treatment for such detainees so as to manage,
    to the greatest extent possible, any such issues within Immigration
    detention Centres rather than state prisons.

ACM already have
a number of policies in place for dealing with detainees with drug dependency
issues including policies relating to health screening to identify drug
dependency issues, alcohol and drug services including detoxification
programs and methadone programs.

Drug dependency in
and of itself would not be considered to be sufficient grounds for the
transfer of a detainee to a state correctional facility.

(f) DIMIA liaise
with state and federal policy services to discuss means of ensuring
the accuracy of information exchanged between DIMIA and those services
regarding particular detainees and of ensuring that such information
is made available as expeditiously as possible.

DIMIA already has
MOUs in place with the AFP and NSW Police relating to the exchange of
information between those agencies and the Department. Further, the Department
is currently negotiating MOUs with a number of State Police agencies in
relation to services in detention centres.

(g) In training of
Departmental and ACM officers in relation to the provisions of MSI 244,
DIMIA ensure that all officers are aware of their obligations to:

  • fully document
    transfer decisions so as to ensure that the transfer process is transparent
    and fully accountable (paragraph 3.4 of MSI 244); and
  • ensure that transfer
    decisions are made pursuant to the grounds set out in section 4 of MSI
    244.

While recommendations
by the detention services provider are taken into account in the decision
making process, all decisions to transfer immigration detainees to state
correctional facilities are made by DIMIA officers.

As previously advised,
the Department is currently in the process of reviewing MSI 244 and, in
response to the resolution of the Corrective Services Minister's Conference
in June 2001, is currently negotiating MOUs with a number of states in
order to determine the procedures for the transfer of detainees to state
correctional facilities in "exceptional circumstances".

The President has
also stated that:

"It is my view
that the facts of this case seem to me to require that the Migration Act
1958 (Cth) be amended so as to provide that detainees can only be transferred
from Immigration Detention Centres to prisons if they are either charged
with or convicted of a criminal offence that would result in remand in
custody or the serving of a criminal sentence."

As has previously
been outlined in the Government's response to recommendation 6.12 in the
Commission's 1998 report, Those who've come across the seas: Detention
of unauthorised arrivals, the reasons for transfer of detainees are not
restricted to criminal behaviour, but may relate to other concerns such
as the risk to other detainees, risk of escape and health concerns.

Section 5(1) of the
Migration Act 1985 explicitly provides for detainees to be held in a prison
or remand centre of the Commonwealth, a State or a Territory. This indicates
that the Parliament recognised the necessity for some detainees to be
held in such a place for the purposes of immigration detention.

To accommodate detainees
who exhibit aggressive, violent or abusive behaviour in immigration detention
centres raises a significant risk of harm to other detainees, visitors
to the facilities, staff of the department and of our service provider.
It could also increase the risk of some detainees absconding or escaping
into the community, which raises a public safety concern.

Nonetheless, the
Department accepts that it is not ideal for immigration detainees to be
accommodated in correctional facilities and the Department is making progress
towards ensuring the better management of difficult detainees within an
immigration detention environment.

However, as stated
above, the Department maintains that there will continue to be a need
to transfer a small number of high risk detainees to state correctional
facilities. Indeed, state and territory Ministers recognised this in agreeing,
at the Corrective Service Ministers Conference in June 2001, to hold immigration
detainees in state correctional facilities "in exceptional circumstances".

Dated at Sydney
this 17th day of May 2002
Professor Alice Tay, President


APPENDIX 1

Functions of the
Human Rights and Equal Opportunity Commission

The Commission has
specific legislative functions and responsibilities for the protection
and promotion of human rights under the HREOC Act. Part II Divisions 2
and 3 of the HREOC Act confer functions on the Commission in relation
to human rights. In particular, section 11(1)(f) of the HREOC Act empowers
the Commission to inquire into acts or practices of the Commonwealth that
may be inconsistent with or contrary to the rights set out in the human
rights instruments scheduled to or declared under the HREOC Act.

Section 11(1)(f)
of the HREOC Act states:

(1) The functions
of the Commission are:

(f) to inquire
into any act or practice that may be inconsistent with or contrary to
any human right, and:

where the Commission
considers it appropriate to do so-to endeavour, by conciliation, to
effect a settlement of the matters that gave rise to the inquiry; and

where the Commission
is of the opinion that the act or practice is inconsistent with or contrary
to any human right, and the Commission has not considered it appropriate
to endeavour to effect a settlement of the matters that gave rise to
the inquiry or has endeavoured without success to effect such a settlement-to
report to the Minister in relation to the inquiry.

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 Commission performs
the functions referred to in section 11(1)(f) of the HREOC Act upon the
Attorney General's request, when a complaint is made in writing or when
the Commission regards it desirable to do so (section 20(1) of the HREOC
Act).

In addition, the
Commission is obliged to perform all of its functions in accordance with
the principles set out in section 10A of the HREOC Act, namely with regard
for the indivisibility and universality of human rights and the principle
that every person is free and equal in dignity and rights.

The Commission attempts
to resolve complaints under the provisions of the HREOC Act through the
process of conciliation. Where conciliation is not successful or not appropriate
and the Commission is of the opinion that an act or practice constitutes
a breach of human rights, the Commission must give the respondent to the
complaint an opportunity to make written and/or oral submissions in relation
to the complaint (section 27 of the HREOC Act). If, after the inquiry,
the Commission finds a breach of human rights, it must serve a notice
on the person doing the act or engaging in the practice setting out the
findings and the reasons for those findings (section 29(2)(a) of the HREOC
Act). The Commission may make recommendations for preventing a repetition
of the act or practice, the payment of compensation or any other action
or remedy to reduce the loss or damage suffered as a result of the breach
of a person's human rights (sections 29(2)(b) and (c) of the HREOC Act).

If the Commission
finds a breach of human rights and it furnishes a report on the matter
to the Attorney General, the Commission is to include in the report particulars
of any recommendations made in the notice and details of whether, to the
knowledge of the Commission, that person has or is taking any action that
the person is taking as a result of the findings and recommendations of
the Commission (sections 29(2)(d) and (e) of the HREOC Act). The Attorney
General must table the report in both Houses of Federal Parliament within
15 sitting days in accordance with section 46 of the HREOC Act.

It should be noted
that the Commission has a discretion to cease inquiry into an act or practice
in certain circumstances (section 20(2) of the HREOC Act), including where
the subject matter of the complaint has already been adequately dealt
with by the Commission (section 20(2)(c)(v) of the HREOC Act).

APPENDIX 2

Notice pursuant
to section 29(2) of the Human Rights and Equal Opportunity Commission
Act

Notice under section
29 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Concerning Acts or Practices Inconsistent With or Contrary to Human Rights

Complainant:
Mr Duc Anh Ha

Respondent:
The Commonwealth of Australia
(Department of Immigration and Multicultural and Indigenous Affairs)

TABLE OF CONTENTS

1. The commission's jurisdiction

This notice concerns
a complaint under the Human Rights and Equal Opportunity Commission Act
1986 (Cth) (the "HREOC Act") of acts or practices inconsistent
with or contrary to human rights which allegedly occurred during the detention
of the complainant at Casuarina Prison (the "Prison") in 1999.
The jurisdiction of the Human Rights and Equal Opportunity Commission
(the "Commission") in relation to complaints of acts or practices
inconsistent with or contrary to human rights in the context of the detention
of unauthorised arrivals was described in detail in the Commission's report
to the Attorney General entitled Those Who've Come Across the Seas: Detention
of unauthorised arrivals. [2] A description of the Commission's
jurisdiction is also set out at Appendix A of this notice.

2. The complaint

2.1 The nature
of the complaint

On 27 July 1999,
Mr Duc Anh Ha (the "complainant"), was detained by officers
of the Department of Immigration and Multicultural and Indigenous Affairs
("DIMIA" - formerly the Department of Immigration and Multicultural
Affairs - "DIMA") in Perth. The complainant had previously entered
Australia under a Student Visa. The complainant was detained first at
the Perth Immigration Detention Centre (the "Perth IDC") and
then transferred to the Prison on 30 July 1999.

On 7 August 1999,
the complainant lodged a complaint with the Commission. He alleged that,
during his transfer to and detention at the Prison, he had suffered treatment
which constituted breaches of his human rights.

2.2 The complainant's
removal from Australia

The complainant was
deported by DIMIA on 15 December 1999.

The removal of the
complainant from Australia prevented the Commission from putting to the
complainant some of DIMIA's submissions, but it does not affect the Commission's
jurisdiction in relation to his complaint.

However, in making
its finding on this complaint the Commission has had to rely principally
on documentary evidence and other material from DIMIA. The Commission
has also made use of material prepared by the Parliamentary Commissioner
for Administrative Investigations of Western Australia (also known as
the Ombudsman and hereinafter referred to as the "WA Ombudsman").
That material dealt, in general terms, with the conditions at the Prison.

The Commission sought
the assistance of the respondent to locate the complainant. The respondent
stated that it did not have the complainant's contact details and further
indicated that was not within the respondent's power to obtain those details.

2.3 Relevant legislation
and guidelines

In order to understand
the factual circumstances underlying this complaint, it is necessary to
set out the relevant provisions from the Migration Act 1958 (Cth)
(the "Migration Act") and from the applicable Migration Series
Instruction.
Section 5(1) of the Migration Act provides that:

"detain
means:

(a) take into immigration
detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably
necessary to do so.

detainee means
a person detained.

immigration detention
means:

(a) being in the
company of, and restrained by:

(i) an officer;
or
(ii) in relation to a particular detainee-another person directed by
the Secretary to accompany and restrain the detainee; or

(b) being held by,
or on behalf of, an officer:

(i) in a detention
centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a
Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non-citizen who is prevented, under section 249,
from leaving a vessel-on that vessel; or
(v) in another place approved by the Minister in writing."

Section 14 of the
Migration Act provides that an unlawful non-citizen is a person who is
present in the "migration zone" who is not an Australian citizen
and who does not hold a visa that is in effect.

Section 15 of the
Migration Act provides (for the avoidance of doubt) that if a person is
in the migration zone and their visa is cancelled then, upon cancellation,
that person becomes an unlawful non-citizen, unless immediately after
the cancellation the former holder holds another visa that is in effect.

Section 189 of the
Migration Act provides for the detention of unlawful non-citizens in the
following manner:

"Section
189 Detention of unlawful non-citizens

(1) If an officer
knows or reasonably suspects that a person in the migration zone is an
unlawful non-citizen, the officer must detain the person.
(2) If an officer reasonably suspects that a person in Australia but outside
the migration zone:

(a) is seeking
to enter the migration zone; and
(b) would, if in the migration zone, be an unlawful non-citizen;

the officer must
detain the person."

Section 196 of the
Migration Act provides that, once detained, an unlawful non-citizen must
be kept in immigration detention unless removed from Australia [3],
deported or granted a visa.

At the time of the
complainant's transfer to the Prison, Migration Series Instruction 244,
entitled "Transfer of Detainees to State Prisons" ("MSI
244"), provided guidelines for decisions regarding the transfer of
people from Immigration Detention Centres to prisons. MSI 244 included
the following relevant provisions:

2 Detention in
prisons

2.1 Detention
of immigration detainees within prisons occurs as a last resort. In
this restricted context it can occur for a number of reasons, which
include:

Behavioural
concerns

While being held
at an IDC a person's behaviour is considered to be unacceptable for
the low security IDC environment, because of:

  • the risk to
    other detainees;
  • violent behaviour
    and/or unlawful behaviour, the inability of management and the detainee
    to resolve the unacceptable behaviour; or
  • the risk of
    absconding from lawful custody; or
  • at the time
    of being taken into immigration detention a person is assessed as
    being unsuitable to mix with other detainees at an IDC.

Completion of
a custodial sentence

  • The detainee
    has completed a custodial sentence in prison and:

(a) removal or
deportation is expected to take place within seven days of the expiration
of the criminal sentence; and
(b) a review has determined that there are good reasons for the person
not being detained at an IDC.

Location (Absence
of an IDC)

  • No purpose built
    IDC exists in the State or Territory where the person entered Australia
    or was detained by DIMA.

3 Decision making
in the transfer process

3.1 There is no clear
statutory basis for the selective transfer of detainees and the decision
to transfer a detainee from an IDC to a prison should be made as a last
resort. The decision to transfer a detainee to a prison should be made
by the State Director or the Director's delegate, usually the OIC of Compliance.
Where this is not possible; eg, the decision on a transfer needs to be
made after hours or at weekends, it should be endorsed by the State Director
or the delegate on the first working day after it takes place.

3.2 The decision
should take into account the advice provided (sic) Australasian Correctional
Management Pty Ltd (ACM) in a submission recommending a change in the
place of detention, and should be made in consultation with the relevant
custodial institution. The Director, Detention Section, Central Office,
is to be advised immediately of all decisions to transfer a detainee to
a state correctional institution, and is to be kept informed, on a weekly
basis, of the monitoring and review of the case.

3.3 In deciding whether
to transfer a detainee to a state prison, decision makers will need to
take into account any factors in the detainee's behaviour which raise
questions as to whether it is in the best interests of the efficient running
of the IDC or of the detainee himself/herself to continue to remain in
the IDC, bearing in mind that IDCs are low security establishments. These
factors could include cases where:

  • § management
    and the detainee are unable to resolve the unacceptable behaviour;
  • there is harassment
    of, or threats towards other detainees;
  • there is criminal
    activity particularly if it involves violence;
  • there is an escape
    or attempted escape;
  • there is reasonable
    cause to suspect that a detainee may pose a risk to the safety of the
    other detainees as a result of:
  • i. past or current
    narcotics use or distribution or;
    ii. a history of sexual offences, and
    iii. the admission or continuing accommodation of the detainee at
    the IDC is reasonably likely to constitute a risk to other detainees,
    the person should be placed in a state prison or other institution
    where there are more suitable facilities for their custody, or

  • there is evidence
    that the person is suffering from a psychiatric illness.

3.4 All decisions
to transfer a detainee must be fully documented to ensure that the transfer
process is transparent and accountable. This may include but need not
be limited to file notes regarding, the incident/or sequence of incidents
of unacceptable behaviour, counselling sessions, additional strategies
implemented to address behaviour concerns, and medical/psychiatric assessments
and/or intervention. Decision makers must ensure that a detainee is not
transferred to a prison as a form of punishment for actions while
in the IDC.

4 Grounds for
transfer
………………………
4.4 Detainee with a history of violence

4.4.1 A person with
a history of or a predisposition to violence, or other disruptive or threatening
behaviour should not, where practicable, be placed in an IDC but in a
state prison or other institution where there are more adequate and appropriate
facilities for custody and/or treatment. The facilities at the IDCs should,
however, be used to the greatest extent possible in the management of
immigration detainees. Any decision to locate an immigration detainee
in a State prison should be taken in accordance with the procedures outlined
in this Instruction.
……………………
4.6 Detainee with a history of sexual offences or drug offences

4.6.1 Where a decision
has been made that:

  • due to a history
    of sexual offences or drug offences; or
  • there is reasonable
    suspicion that the detainee has had involvement with i.e. taking or
    supplying prohibited drugs at the IDC;
    there are reasonable grounds to believe that a detainee poses a risk
    to other detainees at the IDC.

Or,

  • that the admission
    of such a person to the IDC would pose a risk to detainees in the IDC;

the person should
be placed in a state prison or other institution where there are more
adequate facilities for custody.
……………….

4.8 Escape (attempted
or successful)(3)

4.8.1 Escape, or
attempted escape, from lawful immigration detention is an offence against
s 491 of the Act, with a maximum penalty of imprisonment for two years.
Under Section 47 of the Crimes Act 1914 escape from lawful custody carries
a maximum penalty of 5 years imprisonment. The decision about which provisions
should be used to initiate prosecution are determined by the DPP, and
take into account the circumstances in which the detainee escaped and
was taken back into custody. The Prosecution Policy of the Commonwealth
at 2.22 states:

Ordinarily the provisions
of the specific Act rather than the general provisions of the Crimes Act
should be relied on unless to do so would not adequately reflect the nature
of the criminal conduct disclosed by the evidence.

4.8.2 The decision
about whether the police are asked to

consider laying charges
against a detainee who escapes, or attempts to escape, is to be decided
by ACM in close consultation with the IDC DIMIA Business Manager. The
decision must be fully documented on the detainee's case file.

4.8.3 If prosecution
is considered likely then a brief should be prepared for the DPP for the
purpose of laying charges. Officers should consider the likelihood of
success of such action. For example, there is little point in pursuing
prosecution if the penalties are going to be minimal or if, on the advice
of the prosecuting authority, there is little chance of a conviction being
made.

4.8.4 Where prosecution
is not considered to be a viable option, officers will need to consider
the escape (attempted or successful) in terms of it being a management
issue. Depending on the circumstances of the escape, a strong warning
to the detainee may be a preferable option to reconsidering the place
of detention. If it is considered that the low security environment at
the IDC is unable to adequately detain a person then a review of the place
of detention will need to be considered. (Refer to the MSI 'General Detention
Procedures' [Para 22 'Escape from Detention']).

……………………
6 Case management

6.1 Each detainee
should be assigned a case manager who is responsible for the ongoing management
of the detainee's case. Where the case officer or the Detention Review
Officer is on extended leave, alternative arrangements should be put in
place by the OIC Compliance to ensure that regular reviews can and will
be conducted.

6.1.1 The ongoing monitoring of immigration detainees in state institutions
is essential to ensure that they are always being held in the most appropriate
place of detention. Where an immigration detainee is being held in a State
prison, the case officer, or the Detention Review Officer, should have
regular weekly contact with the institution to monitor the condition of
the detainee. In addition, the officer is to undertake monthly personal
visits with the detainee which may be timed to coincide with the 30 day
review (refer to part on Review of the place of detention). The purpose
of these regular contacts is to ensure that the detainee's condition whilst
held in a custodial institution is closely monitored. These contacts are
to be documented and file notes placed on the detainee's file.
……………………………
6.1.3 Although the determination of the security classification of detainees
held in prison is made by the prison authorities, the case officer should
seek to ensure that the prison system does not over-classify immigration
detainees. It is desirable for immigration detainees to be held in remand
areas of the prison, to reduce any exposure to violent convicted criminals.

7 Review of the
place of detention
……………….
7.3 Formal monthly reviews - DIMA initiated

7.3.1 Each Regional
Office should have a Detention Review Officer who is responsible for reviewing
the detention details of each detainee at least every 30 days.
………………….
7.4 Decision making in the review of the place of detention

7.4.1 The review
of the place of detention should take into account any reports provided
by the social, welfare or medical workers in the institution, correctional
service officers and/or the relevant prison contact officer, in regard
to the detainee's behaviour or medical condition. At Attachment B is a
form which can be used to assist in this reporting process. Officers should
also accept oral reports from these persons, which must be recorded and
placed
on file.

7.4.2 Where reports
on the detainee's medical condition and/or behaviour have been received,
the IDC Manager and the OIC of the guarding service contracted by the
department at the IDC should consider the detainee's return to the IDC.
Whilst input is required from the correctional services, the decision
as to whether the detainee is to return to the IDC is not to be made by
them. Where a decision to return the detainee to the IDC is made, the
transfer should be effected as soon as practicable to reduce the time
the detainee is required to stay in the prison system.

7.4.3 Where a decision is made not to return the detainee to the IDC the
State Director or the Director's delegate (usually the OIC guarding agency
Compliance) must be consulted. That person, should then consider the information
provided by the prison authorities, the department's contracting guarding
service and the IDC Manager and decide whether to affirm or override the
decision.

7.4.4 Where a refusal
decision has been made the detainee is to be advised of this decision
and advised as to when the next review of the place of detention is to
take place. Subsequent reviews could be made during either the case officers
weekly telephone contact with the institution or during their monthly
visits with the detainee."

3. The complainant's evidence
and submissions

The complainant wrote
to the Commission on a number of occasions. I have summarised the contents
of those letters below (which necessarily involves some degree of repetition).

In his letter of
complaint dated 7 August 1999, the complainant stated, inter alia, that:

  • he had come to
    Australia on a student visa;
  • that visa had
    not been due to expire until some time in 2000;
  • however, his
    visa had been cancelled after he did not attend school for a period
    of two months (the complainant conceded that he was at fault in failing
    to do so);
  • he was being detained
    in the Prison, without having been charged with any criminal offence;
  • the Prison was
    a maximum security facility;
  • the complainant
    had been locked in his cell for approximately 20 hours per day;
  • the complainant
    had asked to see a lawyer, but had not been given access to one;
  • the complainant
    had asked for an application form for a bridging visa, but had not been
    given one;
  • the complainant
    was not segregated from convicted criminals at the Prison;
  • the complainant
    had asked to be transferred to a facility in New South Wales (and had
    offered to pay for his own ticket), by reason of the fact that the complainant
    had friends and property in Sydney;
  • DIMIA had refused
    that request;
  • the complainant
    wished to return home to Vietnam as soon as possible;
  • the complainant
    feared that he would die if he remained in the Prison; and
  • DIMIA's reasons
    for transferring the complainant to the Prison were "bullshit".In
    an undated letter, received by the Commission on 18 August 1999, the
    complainant stated, inter alia, that:
  • he was confined
    to his cell for nearly 20 hours per day;
  • whilst confined
    to his cell, the complainant "just sit down and look out at the
    window, waiting for the day over";
  • the conditions
    at the Prison were causing him stress;
  • it was unclear
    to him how long he was to be detained at the Prison;
  • there was nothing
    he could do in the Prison except kill himself;
  • his parents (who
    were aware that he was being detained in the Prison) were worried about
    him;
  • the complainant
    wanted to return home;
  • he had been unable
    to obtain his passport (which was apparently located in Sydney) by reason
    of the fact that he was detained in the Prison; and
  • prior to being
    detained, the complainant had travelled to Perth with a friend who had
    been charged with possession of drugs, however, the complainant had
    not been charged with any offence in relation to that matter.In a further
    undated letter, received by the Commission in October 1999, the complainant
    stated, inter alia, that:
  • he had been confined
    to his cell for 22 hours per day for the past two and a half months;
    and
  • the complainant
    had no idea how much longer he was to be detained at the Prison.
  • The complainant
    also made the following comments on the reasons he said were given to
    him by DIMIA for his transfer to the Prison:
  • the complainant
    had admitted to DIMIA to being a drug user (which he considered evidenced
    his willingness to cooperate with DIMIA);
  • DIMIA was incorrect
    in asserting that the complainant had a history of violence;
  • DIMIA was incorrect
    in asserting that the complainant had indicated that he would use any
    method available to him to escape from the Perth IDC (the complainant
    stated that DIMIA had no evidence at all to suggest that he would try
    to escape from the Perth IDC);
  • the complainant
    had been in gaol in New South Wales for property related offences;
  • however, DIMIA
    was incorrect in suggesting that the complainant had been imprisoned
    for or charged with offences involving violence (DIMIA had suggested
    that the complainant had been imprisoned in New South Wales in connection
    with a stabbing and had been charged in connection with an armed robbery);
  • DIMIA was similarly
    incorrect in suggesting that the complainant, when aged ten, had been
    in gaol for killing a police officer in Vietnam (the complainant stated
    that if he had killed a police officer in Vietnam, he in turn would
    have been killed).In a letter dated 9 October 1999, the complainant
    stated, inter alia, that:
  • prior to being
    detained, the complainant had travelled to Perth with a friend who had
    been charged at Perth airport with possession of drugs, however, the
    complainant had not been charged with any offence in relation to that
    matter;
  • at the time that
    the complainant's friend had been apprehended, the complainant was also
    detained and sent to the Perth IDC (by reason of the fact that his student
    visa had expired);
  • the complainant
    had then been transferred to the Prison, which the complainant described
    as having the "worse lock down time in Australia";
  • the complainant
    further stated that he had been "lock up in a little cell 22 hours
    for 3 months";
  • the complainant
    had not been charged with any offence;
  • the complainant
    wanted to return home because his mother had been sick since the time
    he was transferred to the Prison;
  • DIMIA's reasons
    for transferring the complainant to the Prison were incorrect; and
  • the complainant
    was uncertain how long he was going to spend in the Prison and was confused
    by his situation.In a letter dated 11 October 1999, the complainant
    stated, inter alia, that:
  • he had requested
    medical assistance whilst being detained at Perth IDC because he had
    started smoking heroin two months previously and was "really bad";
  • DIMIA had delayed
    in providing a doctor for two days;
  • this explained
    a question asked by the complainant of a doctor as to whether, if he
    became ill, he would be given immediate medical attention or transferred
    to a hospital (the complainant's question being a matter which the detention
    service provider, Australasian Correctional Management ("ACM"),
    raised as indicating that the complainant was likely to attempt to escape
    - see further below);
  • he had been sentenced
    to imprisonment in New South Wales in connection with a shoplifting
    charge, but did not have a violent criminal history;
  • other matters
    raised by DIMIA as justifying the complainant's detention in the Prison
    (including that the complainant had been sent to jail for stabbing a
    person, had been charged with armed robbery, had killed a member of
    the police force in Vietnam when he was aged ten and that the complainant's
    tattoos indicated that the complainant had drug underworld connections)
    were all false;
  • when the complainant
    asked DIMIA representatives to produce documents that would substantiate
    the allegations raised by DIMIA, he was told that DIMIA was under no
    obligation to do so;
  • the complainant
    had continued to be locked in his cell for 22 hours per day;
  • when he was first
    detained, the complainant informed DIMIA that he required a replacement
    passport, as the complainant's passport was in the possession of his
    friend (whom the complainant had been unable to contact); and
  • as at 11 October
    1999, DIMIA had still not obtained a replacement passport for the complainant.

4. Respondent's response

In a written response
to the complaint dated 10 November 1999, DIMIA stated that:

  • the complainant
    became an unlawful non citizen on 2 January 1998 when his student visa
    expired;
  • the complainant
    was located by DIMIA officers on 27 July 1999 and was detained, under
    the Migration Act, at the Perth IDC;
  • on 30 July 1999,
    the complainant was transferred to the Prison because "of his criminal
    background, history of violence, drug use and threats of escape";
  • the Prison was
    a maximum security prison;
  • the decision
    to transfer the complainant to the Prison was made by the Western Australian
    Ministry of Justice (who took into account advice provided to them by
    ACM);
  • that decision
    was based upon the availability of accommodation;
  • the complainant
    had not been charged with or convicted of any offences since being taken
    into immigration detention;
  • the complainant
    was not being held separately from convicted persons held at the Prison
    (by reason of accommodation pressures);
  • the complainant's
    deportation was delayed because:

    1 when the complainant
    was first detained, the complainant told DIMIA he would have his passport
    sent to him from New South Wales;
    2 the complainant subsequently informed DIMIA that he was unable to
    locate his passport; and
    3 DIMIA was awaiting the issue of a Vietnamese travel document (which
    was to be issued by the embassy in Canberra);

  • the complainant
    had applied for a bridging visa on 18 August 1999, which application
    was refused by DIMIA on 20 August 1999;
  • the complainant
    had applied for review of that decision to the Migration Refugee Tribunal
    (the "MRT") and was assisted in that regard by Pryles and
    Defteros Barristers and Solicitors;
  • on 2 September
    1999, the MRT affirmed DIMIA's decision to refuse the applicant's application
    for a bridging visa;
  • the complainant
    had sought to be transferred to Villawood Immigration Detention Centre
    in Sydney; and
  • that request was
    denied for "operational reasons including capacity issues at that
    facility and concerns about [the applicant's] security profile".

Following a request
made by the Commission on 21 December 1999, DIMIA provided to the Commission,
by letter dated 9 March 2000, further information and documents. In that
response, DIMIA stated that:

  • at the time that
    the complainant was transferred to the Prison, DIMIA was aware that:

    1 the complainant
    would not be separated from convicted criminals; and
    2 the Prison was subject to a general lock-down which could result
    in the complainant being locked in his cell for up to 22 hours per
    day;

  • DIMIA was advised
    of those matters by the Western Australia Ministry of Justice, which
    further stated that other facilities in the Perth metropolitan area
    were filled over their capacity;
  • reviews of the
    complainant's place of detention were undertaken on four occasions (with
    the outcome being, on each occasion, that the complainant should remain
    in detention at the Prison);
  • DIMIA retains
    ultimate responsibility for immigration detainees in state prisons,
    however, the "day to day management and duty of care of detainees"
    was said to be a matter for the relevant state authorities and the institution;
  • DIMIA rejected
    the complainant's request to be transferred to the Perth IDC and the
    Villawood IDC because of DIMIA's assessment that the complainant represented
    a security risk (on the basis that those detention centres were low
    security environments and the fact that the complainant had a criminal
    background and a history of drug use);
  • this apparently
    resulted in DIMIA concluding that there were no "sound operational
    reasons" for transferring the complainant;
  • the complainant
    was given access to legal representation and an application form for
    a bridging visa whilst in the Prison; and
  • the complainant
    was deported from Australia on 15 December 1999.

5. Documentary material before
the commission

5.1 Material initially
provided by DIMIA

In response to requests
made by the Commission, DIMIA also provided to the Commission documentary
material relevant to the inquiry. That material was annexed to the Preliminary
Report.

I have set out below,
in chronological order, extracts from that material.

5.1.1 Incident
Reports prepared by Australasian Correctional Management

During the period
28 July 1999 to 30 July 1999, ACM staff at the Perth IDC prepared an "Incident
Report" and "Incident Follow Up Reports" in respect of
the complainant.

On 28 July 1999,
Ms Shirley Ann Walker, an Acting Supervisor at the Perth IDC, prepared
a document entitled "Incident Report". That document was addressed
to "ACM-EGM Operations", "General Manager, Detention Services",
"Director Detention Section (DIMA)" and "DIMA Business
Manager Perth". In that document, Ms Walker stated:

"Background:
Detainee HA Duc Anh alias PHAM Quoc Hung P009650 a Vietnamese National,
who is an alleged drug user. The detainee was received on the 27 July,
1999 at
Perth I.D.C.

Narrative:
On Wednesday 28th July, 1999, Michael Cain, the Compliance Manager
requested if the detainee HA Duc Anh alias PHAM Quoc Hung had any tattoos
on his body. Michael Cain stated this information was vital as the detainee
Ha's description has fitted a N.S.W police crime suspect who was involved
in drug activity. I informed Michael Cain that detainee Ha has two large
tattoos on either arm. Both tattoos are of large Asian dragons with
skull heads.

Once the detainee's
identification and previous criminal activity is established, it will
be necessary to determine this detainee's suitability to remain within
the minimum-security of the global village of the P.I.D.C."

On 29 July 1999,
Mr Wayne Hart, Centre Manager at the Perth IDC, prepared a document entitled
"Incident Follow Up Report". In that report, which was addressed
to "ACM-EGM Operations", Mr Hart stated:

"Background:
Detainee HA Duc Anh alias PHAM Quoc Hung (P000650), is a reported
Vietnamese national received at the PIDC on 27 July 1999. DIMA Compliance
have advised that the detainee description fits that of a NSW crime
suspect involved in drug activity. The detainee has been observed to
have two large tattoos on each arm depicting large Asian dragons with
skull heads.

Narrative:
The detainee is now a confirmed heroin user and is receiving medication
for withdrawal symptoms.

During his interview
with medical staff he continually questioned on whether he would be
treated in a hospital if he became ill. Staff felt that he was looking
for an avenue of escape from detention. The detainee also stated that
he had been in the NSW prison system where he had last come off heroin.
HA then requested to be placed on methadone treatment like his fellow
prisoner mate in NSW.

Detainee HA also
stated that he was willing to pay his own airfare to NSW and then on
to Vietnam. He said that he needed for his friends to sell his house
and car in Sydney.

Summary and
Recommendation:

  • Detainee HA
    is a past and present heroin user.
  • He has had
    criminal exposure.
  • He has admitted
    at least one term of imprisonment in NSW.
  • His tattoos
    suggest possible drug underworld connections and
  • He is a possible
    suspect in NSW drug activity.
  • Detainee HA's
    demeanour suggests that he is a high risk of escape and has been placed
    on 30 minute security observations.

Given the information
above, detainee HA is assessed as presenting a high risk of escape and
a risk to the good order and management of the Perth Immigration Detention
Centre. His criminal and drug exposure also presents as a bad influence
on other detainees in the PIDC minimum security environment.

I therefore recommend
and request that detainee HA be placed in an alternative more secure
environment asap under MSI 157, pending further clarification of his
involvement in crime.

DIMA Business Manager
Detention N Smith advised."

On 30 July 1999,
Mr Hart prepared a document entitled "Incident Follow-Up Report No
2". In that report, which was addressed to "ACM-EGM Operations",
Mr Hart stated:

"Detainee
HA Duc Anh alias PHAM Quonc Hung (P000650). Is a reported Vietnamese
national received at then PIDC on 27 July 1999.
Please refer to Incident Report 1999 (dated 28.07.99) and Follow Up
Report (29.07.99) for details of criminal exposure, drug use, high escape
risk assessment and request to DIMA to transfer to a secure facility

Narrative:
Further information has been received that heightens the profile
and security risk of this detainee to the good order and management
of the PIDC and makes him totally unsuitable to remain at the Centre.

  • NCA Officers
    attended the PIDC to interview detainee HA (with the permission of
    DIMA). The Officers advised that the detainee is believed to have
    been recently charged in NSW for Armed Robbery offences and to have
    a bench warrant out for Failing to Attend (viz skipped bail).
  • ACM Officer
    A Cairns has reported today, that detainee HA has been asking questions
    and trying to get information about the location of the PIDC and the
    security systems at the Centre. He also stated that he wanted to run
    away. When another detainee (PAZOOKI) said that HA would not be able
    to escape, detainee HA replied "I can, I could get out of here
    with my bare hands".

The above information
was discussed with DIMA Business Manager Detention N Smith who agreed
to this detainee not returning to the mainstream area. A Detention Officer
was placed with the detainee in an interview room (observation room
occupied). Detainee HA has volunteered to the guarding officer:

  • That he has
    previously been in gaol in Vietnam for the killing of a Police Officer.
    He stated that he was only 10 years old and a member of a gang at
    the time.
  • That he has
    been in gaol in NSW on four occasions for shop lifting, stabbing a
    person, breach of bail and breach of Community Service Order. DIMA
    have now agreed to detainee HA's transfer to a MOJ (sic) WA prison
    facility."

5.1.2 Departmental
Minute dated 30 July 1999

This document was,
on its face, prepared by Mr Nigel Smith (employed by DIMIA as "Business
Manager (Detention)") and submitted to Mr John Williams (employed
by DIMIA as "State Director, Perth Office"). In the minute,
Mr Smith sought Mr Williams' authorisation for the transfer of the complainant
to the "prison system". Under the heading "Grounds for
Transfer", Mr Smith set out the following matters:

"1 DETAINEE
WITH A HISTORY OF VIOLENCE

Subsequently to
[the incident report prepared by Ms Walker] it has been verbally reported
to me that the National Crimes (sic) Authority (NCA) has engaged the
above-name (sic) in interview this morning on the reasonable belief
that the above-named may have been involved in an armed robbery in New
South Wales, that he may have 'skipped bail', and that a Bench Warrant
remains for his arrest. This is consistent with observation made in
respect of the tattoos on the detainee's arms indicative of involvement
in gang or organised criminal groups.

If this reasonable
belief is to be accepted, this clearly represents a serious violent
predisposition.

In accordance (sic)
the MSI, the detainee should be placed into a state prison or other
institution where there are more adequate and appropriate facilities
for custody and/or treatment than in an Immigration detention centre.

2 DETAINEE WITH
A HISTORY OF DRUG OFFENCES

The detainee has
admitted to having been incarcerated in NSW and to having withdrawn
from heroin unassisted during that time. The detainee has made repeated
demands for methedone (sic) treatment in the PEIDC, based upon the rationale
that a friend of his was supplied with the substitute drug during his
period of incarceration.

Based upon further
repeated questioning, with increasing intensity, about ACM response
to the potential for him to become ill, ACM has, I consider reasonably
in the circumstances, drawn the conclusion that the propensity for the
detainee to make himself ill, in order to achieve a stated end of escape,
is significant. The sum of the detainee's enquiries on this subject
indicate that he may be seeking to be placed into a hospital or place
other than the PEIDC which is not secure.

In accordance (sic)
the MSI, the detainee should be placed into a state prison or other
institution where there are more adequate and appropriate facilities
for custody and/or treatment than in an Immigration detention centre.

3 ESCAPE (ATTEMPTED
OR UNSUCCESSFUL)

Subsequent to [the
incident report prepared by Ms Walker], yet to be confirmed in further
Follow-up Report, is that the detainee has now openly stated to another
detainee that he intends to escape from the PEIDC, and that he would
engage any method to do so 'including using his own bare hands if necessary'.
This threat is considered very real if indeed the detainee is an escapee
from bail and, also, where the detainee has the history of violence
and illicit drug use as indicated.

Neither the physical
parameters of the PEIDC nor the particular circumstances requiring static
guarding outside the PEIDC and separation detention within, are conducive
to providing the necessary level of security to prevent this real threat
to escape. This real threat represents a significant management issue,
particularly at this time.

On balance of this
set of circumstances, I do not consider that a strong warning to the
detainee would be the preferable option to relocating the detainee into
the prison system."

On the basis of those
matters, Mr Smith made the following recommendation:

"RECOMMENDATION

I recommend that:

1 you authorise
the transfer of the detainee to a prison;

At this time,
I am seeking to negotiate with the Ministry of Justice at Casuarina
Prison (which appears to be the only one with capacity at this time)
to accept the detainee if you authorise the transfer.

2 the detainee
be advised, in accordance with the MSI, as to the reason for transfer;
and

3 a regime of
review of the detainee's case management be established in accordance
with the requirements of the MSI."

It appears, from
a handwritten annotation at the foot of Mr Smith's memorandum, that Mr
Hart's Follow Up Incident Report of 30 July 1999 was received after Mr
Smith's memorandum had been prepared and submitted to Mr Williams. It
further appears from that annotation that Mr Williams had regard to Mr
Hart's report.

Mr Williams apparently
authorised the transfer and in doing so made the following comment (which
appears in handwriting above his signature under the heading "Comments"):

"I am satisfied
that the most appropriate place of detention is in a state prison."

5.1.3 Notice of
transfer dated 30 July 1999

By this document,
Mr Smith apparently gave the complainant notice that he was to be transferred
to the Prison. He advised the complainant that the reasons for transfer
were as follows:

"1 You are
a detainee with a history of violence.

You have admitted
to criminal activity for which you have been incarcerated, which clearly
represents a violent predisposition.

2 You are a detainee
with a history of drug use.

You have admitted
to being a user of an illicit substance, heroin.

3 You are a detainee
who has indicated that he will employ any method available to him to
escape from the Detention Centre.

Because of your criminal
background and your threats of escape, I find that your detention cannot
be managed in the low security environment of the Perth Immigration Detention
Centre."

5.1.4 Minute dated
6 August 1999

This minute, prepared
by Mr Smith,

records the outcome
of a review of the complainant's place of detention. In the minute, Mr
Smith stated:

"In respect
of:

PHAM Quoc Hung

also known as HA
Duc Anh,

who was transferred
from the Perth Immigration Detention Centre on 30 July 1999, I am able
to report the following in regard to his behaviour:

That, although
the detainee claims to have maintained good behaviour within the Prison,
he continues to represent a security risk for return transfer to the
Perth Immigration Detention Centre.

The detainee claims,
against significant evidence to the contrary, that he did not admit
to criminal behaviour, that he was not previously incarcerated in Australia,
and that he did not make any attempt to escape from the Centre. Notwithstanding
the latter, the detainee does not claim to deny having indicated that
he would escape.

I am satisfied
that the balance of the evidence is that the above-named continues to
represent a security risk to the Centre and recommend to you, the Detention
Review Officer, that his immigration detention continue in the Prison."

Mr Williams apparently
accepted that recommendation.

5.1.5 Minute dated
20 September 1999

This minute, prepared
by Mr Smith, records the outcome of a further review of the complainant's
place of detention. In the minute, Mr Smith stated:

"In respect
of:

PHAM Quoc Hung

also known as HA
Duc Anh,

who was transferred
from the Perth Immigration Detention Centre on 30 July 1999, I am able
to report the following.

Monthly review
of the above-named's detention was not able to be undertaken on 6 September
due to my absence for that week. The review has been combined with another
visit to the Prison.

On Wednesday 15
September 1999, Compliance Officer-in-Charge Mick Cain visited the above-named
in Casuarina Prison, principally in connection with issues for removal.
During the course of this process, Mr Cain made observation (sic) in
respect of the above-named's dealing with detention in a prison facility
and in respect of the above-named's demeanour.

The detainee raised
no issues of concern in respect of his treatment in the facility. Whilst
again, the detainee claims to have maintained good behaviour within
the Prison, I estimate that he continues to represent a security risk
for return transfer to the Perth Immigration Detention Centre (IDC).

There is no change
to the fact that the detention of the above-named in the low security
environment of the Perth IDC would run contrary to the purpose of the
facility being to accommodate persons whose immigration status is unlawful
rather than persons with a criminal history. Mr Pham has a criminal
background, still does not admit to criminal behaviour, and has been
previously incarcerated in Australia. On balance of this, I am not prepared
to accept any assurance from him that he would not attempt to escape
from the Centre as he had stated when he was there.

Despite previous
communications with him, Mr Pham has failed to make any effort to secure
his departure from Australia. As OIC Compliance has now initiated removal
action, I consider the impetus for the above-named to act upon his previous
threat to escape from the Centre, were he to be returned there, augmented.

I am satisfied
that the balance of the evidence is that the above-named continues to
represent a security risk to the Centre and recommend to you, the Detention
Review Officer, that his immigration detention continue in the Prison."

Again, that recommendation
appears to have been accepted by Mr Williams.

5.1.6 Minute dated
4 November 1999

This minute, prepared
by Mr Smith, records the outcome of a further review of the complainant's
place of detention. In the minute, Mr Smith stated:

"In respect
of:

PHAM Quoc Hung

also known as HA
Duc Anh,

1 who was transferred
from the Perth Immigration Detention Centre on 30 July 1999;

2 whose five-day
review was conducted on 6 August 1999; and

3 whose one-monthly
review was conducted on 20 September 1999;

I am able to report
the following.

Two-monthly review
of the above-named's detention was not able to be undertaken by me on
20 October due to my absence. The temporary incumbent of the Business
Manager (Detention) position was able to pay a belated visit to the
detainee on 28 October in connection with this matter.

The Officer reported
that the above-named's demeanour was pleasant and that he remained critical
of the Department in allegedly not securing his removal from Australia
in a timely fashion. The detainee raised no issues of concern in respect
of his treatment in the facility. Whilst again, the detainee may claim
to have maintained good behaviour within the Prison, I estimate that
the Prison environment is one which he must be responsive to in that
regard, and that he continues to represent a security risk for return
transfer to the Perth Immigration Detention Centre (IDC).

There is no change
to the fact that the detention of the above-named in the low security
environment of the Perth IDC would run contrary to the purpose of the
facility being to accommodate persons whose immigration status is unlawful
rather than persons with a criminal history. Mr Pham has a criminal
background and has been previously incarcerated in Australia. On balance
of this, and the nature of his criticism of the Department, I should
not be prepared to accept any assurance, were it to again to be offered
by him, that he would not attempt to escape from the Centre as he had
stated when he was there.

(I point out that
it was due to Mr Pham's failure to make any effort to secure his departure
from Australia that OIC Compliance initiated removal action).

I am satisfied
that the balance of the evidence is that the above-named continues to
represent a security risk to the Centre and recommend to you, the Detention
Review Officer, that his immigration detention continue in the Prison."

Again, that recommendation
was accepted by Mr Williams.

5.1.7 Minute dated
7 December 1999

This minute, prepared
by Mr Smith, records the outcome of a further review of the complainant's
place of detention. In the minute, Mr Smith stated:

"In respect
of:

PHAM Quoc Hung
also known as HA Duc Anh,

1 who was transferred
from the Perth Immigration Detention Centre on 30 July 1999;

2 whose five-day
review was conducted on 6 August 1999;

3 whose first monthly
review was conducted on 20 September 1999; and

4 whose second
monthly review was conducted on 4 November 1999;

I am able to report
the following:

During the course
of communications with the detainee over the month, the above-named's
demeanour has remained pleasant but critical of the Department in allegedly
not securing his removal from Australia in a timely fashion - an issue
which has been addressed repeatedly with the detainee.

The detainee has
continued to raise no issues of concern in respect of his treatment
in the prison facility, and is satisfied to be engaging in work in the
complex. Whilst the detainee may claim to have maintained good behaviour
within the Prison, again I estimate that the Prison environment is one
which he must be responsive to in that regard, and that he continues
to represent a security risk for return transfer to the Perth Immigration
Detention Centre (IDC).

There remains no
change to the fact that the detention of the above-named in the low
security environment of the Perth IDC would run contrary to the purpose
of the facility being to accommodate persons whose immigration status
is unlawful rather than persons with a criminal history. Mr Pham has
a criminal background and has been previously incarcerated in Australia.

On balance of this,
and the nature of his criticism of the Department, I should not be prepared
to accept any assurance, were it to again to be offered by him, that
he would not attempt to escape from the Centre as he had stated when
he was there.

(I point out that
it was due to Mr Pham's failure to make any effort to secure his departure
from Australia that OIC Compliance initiated removal action).

I am satisfied
that the balance of the evidence is that the above-named continues to
represent a security risk to the Centre and recommend to you, the Detention
Review Officer, that his immigration detention continue in the Prison."

The decision maker
this time appears to have been Ms Paula Kansky (Acting State Director
and delegated detention review officer). Ms Kansky appears to have accepted
Mr Smith's recommendation.

5.2 Additional
material provided by DIMIA

The respondent subsequently
provided further documentary material, primarily composed of documents
recording or relating to communications between DIMIA and the New South
Wales (NSW) and Western Australian (WA) Police Services. I discuss that
material in further detail in section 11 below.

5.3 Material prepared
by the WA Ombudsman

As noted above, I
have, in addition to the material supplied by the complainant and the
respondent, had regard to material prepared by the WA Ombudsman (which
was also considered by Commissioner Sidoti - see section 3 of the Preliminary
Report). That material appeared in the Annual Report prepared by the WA
Ombudsman for the year ending June 1999, which included the following
section dealing with conditions at the Prison:

"Casuarina
Prison riot and lock-down

On Christmas Day
1998 a sizeable proportion of the prisoner population at Casuarina maximum
security prison (reportedly in the order of 200 prisoners) rioted, resulting
in injury to a number of prison officers and prisoners and serious damage
to prison buildings. As a result a lock-down period began that, in varying
degrees of intensity, has continued for the majority of the prison population.

Introduced on the
basis that the prison was no longer secure internally or safe for prison
staff and to allow for repairs and security upgrades to be made, the
lock-down regime initially required that prisoners spend up to 23 hours
each day in their cells. In approximately the middle of the year that
was amended to 21 hours each day. Time out of cells only allowed prisoners
access to the confined common area immediately outside their cells (an
area of approximately 3m x 20m). They were not permitted in the wing
recreation areas except to use the telephone and generally only leave
the unit buildings for visits. Those who could leave the units for work
or education for part of the day (most of the prison industries and
educational facilities operated at minimum levels) were similarly confined
for the part of the day that they were back in their units.

On my most recent
visit to the prison (in August 1999) I spoke with prisoners in several
units who all wanted, essentially, the same things - namely the opportunity
to get out of the units for some of the day to work and to "get
some sunshine". At that time many prisoners had not had exercise,
sunshine, work or recreation for in excess of eight months. Part of
the security upgrade required that "yards" be constructed
outside each unit building (the prison has an open campus style layout)
and the Ministry has maintained the position that until these are completed
it is not possible to permit greater time out of the cells or time out
of the units. Indications at the time of my visit were that the completion
of the yards was still some way off.

As a result of
my visit I had a number of concerns about the situation at Casuarina
in terms of both the current functioning of the prison and what might
occur in the future. Underlying these concerns was my long-held concern
about the need for a high degree of positive interaction between prisoners
and prison staff of all types if the concept of unit management is to
have any real meaning. My observations at Casuarina left me with a significant
sense of unease about the future culture of the prison. This unease
was that once the "yards" were in place and operating, not
only would there be physical barriers between prisoners and prison staff
but also attitudinal barriers that have been allowed to develop because
of the lock-down regime - of such a nature and magnitude that the kind
of positive interaction that is desirable will not be possible to the
necessary degree.

Despite assurances
from prison administration that steps were being taken to avoid this
situation arising, I raised my concerns with the Director-General. I
indicated to him that my observation of certain aspects of prison management
left me unconvinced with the assurances, in particular that after eight
months little had really been done to "normalise" the prison
or to take what seemed to be fairly obvious steps to improve the regime.

I pointed out several
of my observations:

  • the lock-down
    regime applied to all prisoners whether or not they were suspected
    of any involvement in the Christmas Day riot; it included prisoners
    who were not even in the prison at the time;
  • significant
    numbers of prison officers were seen present in the units without
    any apparent duties which involved engagement with prisoners and who
    seemed in the main to be occupied in a "watching" role;
  • no good reason
    had been advanced for not allowing prisoners to access the wing recreation
    areas given the presence of these officers or for not engaging officers
    in managing prisoners in small groups out of the units for attendance
    at education, work or recreation.

I expressed the
opinion that the continuing restrictive regime at Casuarina was unduly
punitive despite the circumstances from which it had arisen and in terms
of prisoner/prison officer relations it was not conducive to future
unit management. I recommended that there should be an immediate abandonment
of most aspects of the present lock-down regime and that a concerted
effort be made to get prisoners out of their cells and out of the unit
buildings. I also expressed my concerns about the possible impact the
lock-down might have on the physical and mental well-being of individual
prisoners given the nature of the regime and the length of time that
it had been in place, particularly as the overcrowding situation means
that many prisoners are locked up for most of each day sharing a cell
designed for one person. I was surprised that in such circumstances
there had been no apparent overall assessment made from a health and
future management perspective to determine the extent of the impact
on prisoners, their families and prison staff.

Many other persons
and groups with an interest in prisoner welfare have expressed somewhat
similar concerns. I certainly do not underestimate the traumatic effect
of the Christmas Day riot on some prison officers and, indeed, some
prisoners. Likewise, I do not underestimate the task the Ministry had
to confront in returning the prison to normality and making it secure
against future such incidents. Nevertheless, the continuation of the
lock-down regime, even in modified form, seemed to auger badly for the
future management of the prison along unit management lines (which assumes
a high degree of positive interaction between prisoners and prison officers).

The Director General
of the Ministry assured me that great efforts were, and would continue
to be, made to ensure that the management of the prison was based on
positive interaction between prisoners and prison officers. Shortly
after my views were conveyed to the Director General steps were taken
to increase work and education opportunities at Casuarina and for prisoners
to leave the unit buildings for recreation. Regardless of whether or
not those changes or their timing were influenced by my involvement,
they were positive steps.

I will continue
to monitor the situation."

6. Conciliation

As the complainant
had been deported from Australia and his whereabouts were unknown, Commissioner
Sidoti was of the view that conciliation was not possible.

7. Preliminary findings of
Commissioner Sidoti

In a notice dated
11 July 2000 (referred to hereafter as Commissioner Sidoti's "Preliminary
Findings", a copy of which appears in Appendix B [4]),
Commissioner Sidoti formed the preliminary view that the alleged acts
or practices were inconsistent with or contrary to human rights, stating
at paragraphs 5-8:

"5. ICCPR
article 10.2(a) requires that, except in "exceptional circumstances"
an unconvicted person be segregated from convicted persons. Article
10.2(a) also requires that an unconvicted person be subject to "separate
treatment appropriate to their status" as an unconvicted person.
I am of the preliminary view that in Mr Ha's case, there were not "exceptional
circumstances" which left DIMA with no alternative but to detain
him at Casuarina Prison. I am of the view that DIMA has not established
that there were no other detention facilities in Australia in which
Mr Ha could be detained and kept segregated from convicted prisoners.
Therefore, I am of the preliminary view that DIMA's action in detaining
Mr Ha with convicted prisoners breached his human rights under article
10.2(a).

6. I am also of
the view that the conditions under which Mr Ha was detained, including
being held a maximum security prison where he was subject to a highly
restrictive regime of being locked up in a cell for up to 22 hours a
day, was inappropriate for his status as an unconvicted prisoner. Therefore,
I am of the preliminary view that the detention conditions imposed by
DIMA also breached Mr Ha's human rights under article 10.2(a).

7. I am also of
the view that being subject to these conditions for such a prolonged
period was inhumane treatment for any detainee, convicted or unconvicted.
Therefore, I am of the preliminary view that the detention conditions
imposed by DIMA also breached Mr Ha's human rights under article 10.1.

8. Overall, I am
of the preliminary view that DIMA's actions in detaining Mr Ha at Casuarina
Prison from 20 July 1999 until around 15 December 1999 were inconsistent
with and contrary to his human rights under ICCPR article 10."

As regards the allegation
that the complainant was denied legal assistance to challenge his detention
and denied an application form to apply for a bridging visa, Commissioner
Sidoti found that that aspect of the complainant's complaint was lacking
in substance and discontinued his inquiry into that aspect of the complainant's
complaint (see letter to DIMIA dated 11 July 2000 enclosing the Preliminary
Notice, which also appears in Appendix B). I accept that Commissioner
Sidoti was correct in adopting that course and do not further consider
that aspect of the complainant's complaint.

8. Response to Commissioner
Sidoti's preliminary findings

In the letter of
11 July 2000, Commissioner Sidoti invited the respondent to make submissions
orally or in writing or both in relation to the alleged acts or practices.
On 23 August 2000, Mr William Farmer of DIMIA forwarded the following
further submissions:

"My response
to the preliminary finding that DIMA's actions in detaining Mr Ha at
Casuarina Prison from 20 July 1999 to 15 December 1999 were inconsistent
with and contrary to his human rights under ICCPR Article 10 is as follows.
The reasons for Mr Ha's detention in the Perth IDC and subsequent transfer
to Casuarina Prison prior to his removal from Australia were detailed
in two letters to Mr Sidoti dated 10 November 1999 and 9 March 2000.
In brief, the grounds for transfer were:

  • a belief by DIMA
    that Mr Ha has a history of violence;
  • Mr Ha had admitted
    to having used heroin and having been incarcerated in NSW;
  • while in detention
    at the IDC Mr Ha had advised another detainee that he intended to escape
    from the IDC;
  • Mr Ha had been
    visited and interviewed by National Crimes Authority officers in relation
    to possible criminal activity in NSW;
  • at the time Casuarina
    Prison was the only state correctional facility in WA with the capacity
    to accept Mr Ha.

Migration Series
Instruction 244 (MS1 244) (a copy of which was included in the DIMA response
of 9 March 2000) deals with the circumstances and procedures in which
an immigration detainee may be transferred to a state prison from an IDC.
It was developed in conjunction with the Ombudsman's office. It seeks
to cover the transfer of immigration detainees to state correctional facilities
where they cannot adequately be detained at an IDC.

Transfer to a state
prison or other institution can only be authorised by delegated DIMA officers
who are senior immigration officials. They also undertake reviews of such
transfers on a regular basis. Guidance on circumstances which may warrant
transfer are incorporated in MSI 244.

Both DIMA and Australasian
Correctional Management Pty. Ltd. (ACM), as the detention services provider,
have a responsibility to ensure that the security and good order of immigration
detention facilities is maintained.

As immigration detention
facilities are low security environments, there are occasions when it
is inappropriate to hold immigration detainees in these facilities due
to their criminal or behavioural profile. I stress that the reasons for
such transfers vary in each case and are not restricted to criminal behaviour
but may relate to other concerns such as the risk to the detainee involved
and to other detainees and staff at the IDCs.

DIMA's concerns also
focus on the safety of the community at large given the low security environment
of the detention facilities and the heightened possibility of escape by
high risk detainees.

  • Decisions to transfer
    immigration detainees to state correctional facilities are not made
    lightly. Careful consideration is given to each case drawing on information
    from a wide range of sources but mostly from DIMA and ACM officers working
    at the detention facilities.
  • As noted above,
    MSI 244 does not require that a detainee either be charged with or convicted
    of a crime or offence in order to be transferred to a state correctional
    facility. Mr Ha's profile, while he was detained at the Perth IDC, gave
    rise to serious concerns that he presented a high risk of escape and
    a risk to the good order and management of the Perth IDC if he remained
    at the IDC. Mr Ha had stated he was a heroin user who had been incarcerated
    in a NSW prison where he had been on a methadone program. He had told
    another detainee he would escape from the IDC. He was visited by NCA
    officers in relation to possible criminal activity in NSW.
  • This profile
    informed the DIMA decision to transfer Mr Ha to a state correctional
    facility.
  • In this case
    there was a need to balance the decision making between the rights of
    an individual and the rights of thirty or so other detainees at the
    facility, as well as IDC staff and visitors and the broader community,
    to a safe and secure facility housing persons in administrative detention.
  • Another compelling
    factor in the decision to relocate Mr Ha was the information received
    at the time that Mr Ha was planning to escape. There was no reason to
    doubt the veracity or sincerity of this information. This meant that
    a further critical element in considering Mr Ha's place of detention
    was the potential risk to the overall community if he should escape.
  • While the decision
    to transfer detainees is taken by DIMA, and the detainee remains in
    immigration detention, DIMA has little or no capacity to influence the
    operation and management of state correctional facilities in respect
    of their treatment of an immigration detainee.
  • Although Mr Ha
    may have been held with convicted prisoners while in Casuarina Prison,
    DIMA records indicate that Casuarina Prison was apparently the only
    facility able to accommodate Mr Ha at the time of his transfer. The
    WA Ministry of Justice is experiencing capacity issues in its correctional
    facilities. As a result, the CW Campbell Remand Centre, the only adult
    remand centre in the region, also holds convicted as well as unconvicted
    persons. It was apparently unable to accommodate Mr Ha at the time.
  • MSI 244 includes
    the recognition that the day to day management of prisoners and detainees,
    including their security classifications in correctional facilities,
    is the domain of the state correctional authorities, in this case the
    WA Ministry of Justice."

On 24 May 2001, the
Commission wrote to the respondent noting that neither party had made
submissions on the effect of the reservation entered by Australia in respect
of article 10(2)(a) (this being an issue that does not appear to have
been considered by Commissioner Sidoti for the purposes of his Preliminary
Findings). The Commission asked the respondent to provide any submissions
it wished to make in respect of the effect of that reservation in the
circumstances of this matter. The Commission also requested copies of
any documents upon which the respondent wished to rely upon in relation
to this issue and asked for details concerning the steps that had been
taken by the Commonwealth to progressively achieve the object of segregation
of accused persons from convicted persons in Western Australia.

In a letter dated
15 June 2001, the respondent stated:

"I refer to
your correspondence of 24 May 2001 in regard to the matter of Mr Ha Du
Anh, a former detainee in Perth Immigration Detention Centre (PIDC) and
Casuarina Prison (CP).

You note in your
correspondence that the Department has not made a submission on the effect
of the reservation entered by Australia in relation to Article 10(2)(a)
of the International Covenant on Civil and Political Rights (ICCPR).

You have requested
the following information:

1. any submissions
you wish to make regarding the effect of that reservation in the circumstances
of this matter,

DIMA does not accept
that of Mr Ha Duc Anh's rights were breached under Article 10(2)(a),
which provides that detainees should be segregated from convicted persons
except "in exceptional circumstances". There were clearly
exceptional circumstances in Mr Ha's case.
In any event, DIMA cannot be found to have breached a provision of the
ICCPR against which Australia has maintained a reservation. Australia,
in its instrument of ratification of the ICCPR, made the following reservation
to paragraph 2 of Article 10:
"In relation to paragraph 2 (a) the principle of segregation is
accepted as an objective to be achieved progressively. In relation to
paragraph 2 (b) and 3 (second sentence) the obligation to segregate
is accepted only to the extent that such segregation is considered by
the responsible authorities to be beneficial to the juveniles or adults
concerned".
In Australia's reports to the United Nations Human Rights Committee,
the Commonwealth has set out clearly the reasons for this reservation.
These include the prohibitive cost of implementation of separation,
in some instances, in the Australian context and that in some cases
segregation might in fact entail solitary confinement or living in conditions
less amenable than those of the general prison population.

2. details concerning
the steps that have been taken by the Commonwealth to progressively achieve
the objective of segregation of accused persons from convicted persons
in Western Australia….

This matter falls
outside the portfolio responsibilities of DIMA. I note, however, that
this matter is addressed in folios 11 to 13 of the attached extracts from
Australia's reports to the United Nations Human Rights Committee (UNHRC)
under Article 40 of the ICCPR"

The respondent also
provided to the Commission extracts from Australia's reports to the United
Nations Human Rights Committee, which I discuss in further detail below.

9. My Further Preliminary
Findings

On 13 November 2001,
I issued some further preliminary findings ("my Further Preliminary
Findings"). A copy of those findings appears in full as Appendix
C. I have also set out below extracts from those findings (footnotes omitted):

"2.9.1 I make
the following additional preliminary findings (based on the material currently
before the Commission and subject to anything further from the respondent):

  • No steps, in
    addition to those outlined in the above documents, were taken by DIMA
    or ACM to establish whether the complainant had in fact been involved
    in violent criminal activity;
  • No steps, in addition
    to those outlined in the above documents, were taken by DIMA or ACM
    to establish whether the complainant had been convicted of or charged
    with drug offences;
  • No steps, in addition
    to those outlined in the above documents, were taken by DIMA or ACM
    to consider whether any previous use on the part of the applicant of
    illegal drugs gave rise to reasonable grounds to believe that the complainant
    posed a risk to the other detainees at the Perth IDC; and
  • The complainant
    made no attempt to escape whilst at the Perth IDC or at the Prison and
    did not in fact escape from those facilities.

3.1 On the basis
of the above preliminary findings of fact and the earlier preliminary
findings of fact of Commissioner Sidoti, I am of the preliminary view
that the acts and practices of the respondent in transferring the complainant
to the Prison and his continued detention therein involved arbitrary detention,
in breach of article 9(1) of the ICCPR.

3.2 Although the
complainant was already subject to a deprivation of liberty by virtue
of his detention at the Perth IDC, I consider that his detention in the
Prison involved a further and serious deprivation of his liberty.

3.3 Prisons are correctional
facilities with an environment that is very different from that in an
IDC. Detention in a state prison entails a substantial reduction in personal
privacy, freedom or movement and other rights and privileges. Detainees
are also separated from families, friends and others of their ethnic and
cultural backgrounds.

3.4 As set out in
the Commission report, Those who've come across the seas: Detention of
unauthorised arrivals, consistent with Australia's human rights obligations,
detainees should only be transferred to state prisons if they are either
charged with or convicted of a criminal offence that would result in a
custodial sentence. However, the Migration Act permits the administrative
detention of detainees in state prisons without charge or conviction.

3.5 In these circumstances,
transfer to a state prison should only occur as a last resort. Unacceptable
behaviour should be managed, to the greatest extent possible, within the
IDC.

3.6 Article 9 obliges
Australia to ensure that the detention of detainees occurs in an environment
which is least restrictive of their rights. While the detention of the
complainant in a state prison was lawful under section 5 of the Migration
Act 1958 (Cth), it was arbitrary as it was not reasonable nor necessary
in all of the circumstances nor was it a proportionate means of achieving
a legitimate objective.

3.7 My conclusion
that the complainant's detention was not reasonable nor necessary follows
from the fact that Mr Smith's recommendations in the minute of 30 July
1999 (which Mr Williams appears to have accepted) appear to me, on a preliminary
basis, to have been based on inadequate evidence, largely comprised of
hearsay and supposition.

3.8 The matters raised
by Mr Smith purport to reflect the following specified "Grounds for
Transfer" set out in part 4 of Migration Series Instruction 244:
Transfer of Detainees to State Prisons ("MSI 244")………………………..

3.9 As to the first
matter considered by Mr Smith, ("history of or predisposition to
violence"), Mr Smith appears to have relied upon the visit by the
National Crime Authority (NCA) officers and their suggestion that the
applicant was believed to have been involved in an armed robbery. Those
matters appear to have been conveyed to Mr Smith by Mr Hart (see Mr Hart's
Incident Follow Up Report No 2 dated 30 July 1999). On the basis of the
available evidence, I have found, on a preliminary basis, that neither
DIMA nor ACM made any attempt to verify the beliefs conveyed by the NCA
officers.

3.10 Mr Smith also
placed some reliance upon the complainant's tattoos (which were said to
be "indicative of involvement in gang or organised crime groups").
Mr Smith was apparently there referring to Ms Walker's comment to the
effect that the complainant had "two large tattoos on each arm depicting
large Asian dragons with skull heads". That information was apparently
recorded by Ms Walker in response to a request by Mr Cain (of DIMA compliance)
for the purpose of establishing whether the complainant's physical appearance
matched that of a "NSW police crime suspect who was involved in drug
activity". I note that there is nothing before me to suggest that
the complainant was actually found to be that person or that any further
action was taken regarding those matters. In those circumstances and subject
to anything further from the respondent, it is my preliminary view that
Mr Smith's conclusions are at best unsubstantiated supposition and at
worst involve the attribution to the complainant of unfavourable characteristics
based on racial stereotypes.

3.11 In my preliminary
view and subject to anything further from the respondent, none of the
matters relied upon by Mr Smith establish any predisposition to, nor history
of, violence on the part of the complainant.

3.12 As to the second
matter considered by Mr Smith ("history of drug offences"),
there is nothing to suggest that the applicant was convicted of or charged
with "drug offences". MSI-244 is expressly limited to consideration
of previous drug offences or drug use or supply within an Immigration
Detention Centre. There appears to have been nothing before Mr Smith suggesting
that those considerations applied to the complainant. There was simply
material before him suggesting that the complainant had been involved
in drug use prior to being detained.

3.13 Even if one
may, under MSI-244, have regard to previous drug use, not taking place
within an Immigration Detention Centre, Mr Smith did not appear to consider
whether any use by the complainant of illegal drugs gave rise to "reasonable
grounds to believe that a detainee poses a risk to other detainees at
the IDC" (which is the issue required to be considered under paragraph
4.6.1 of MSI-244).

3.14 The only consideration
of that issue appears to have been undertaken by Mr Hart in his Incident
Follow Up Report of 29 July 1999. I note that it is not clear, on the
material provided to the Commission, whether that document was in fact
before Mr Smith at the time of preparing his minute of 30 July 1999. Even
if it was, that document merely stated that the complainant's:

"criminal and
drug exposure also presents as a bad influence on other detainees in the
PIDC minimum security environment".

3.15 That does not
seem to me, at this preliminary stage, to evidence a proper approach to
the question MSI-244 directs one to consider in relation to this issue.
A proper approach to that question might have involved seeking appropriate
medical and psychological evidence and then considering, on the basis
of that material, whether the complainant's former use of heroin was an
issue that could be managed in the Perth IDC without causing risk to his
fellow detainees.

3.16 As to the third
matter considered by Mr Smith, ("Escape (attempted or successful)"),
there is nothing to suggest that the complainant either escaped or attempted
to escape from the Perth IDC. MSI-244 directs a decision maker to those
matters and not mere threats of escape or other material that might indicate
a propensity to escape.

3.17 Even if a decision
maker is entitled, under MSI-244, to have regard to such matters, it is
my preliminary view Mr Smith relied upon material that should have been
investigated further, being:

  • second (or possibly
    third) hand hearsay conveyed by Mr Hart (which Mr Smith did not attempt
    to investigate);
  • the unsubstantiated
    allegation that the complainant had breached a condition of bail;
  • the unsubstantiated
    allegation that the complainant had been involved in crimes of violence;
    and
  • the fact that
    the complainant was frank with ACM personnel regarding his drug dependency
    (which, if anything, might have indicated to a fair minded person that
    the complaint was honest and trustworthy).

3.18 In light of
the nature of the material relied upon in connection with the decision
to transfer the complainant to the Prison, I am unable (at this preliminary
stage and subject to anything further from the respondent) to be satisfied
that that transfer was "necessary in all the circumstances"
in the sense required by article 9 of the ICCPR. It is my preliminary
view that more compelling evidence was required. In my preliminary findings
of fact set out above, I have found that neither DIMA nor ACM made any
attempt to obtain such material.

3.19 It seems to
me that a more rigorous approach is required under article 9 and indeed
under MSI 244 which states:

"the decision
to transfer a detainee from an IDC to a prison should be made as a last
resort"

3.20 In addition,
I make the preliminary finding that the complainant's detention in the
Prison continued to be arbitrary for its duration, in that at no time
during the six months the complainant was held in the Prison did DIMA
seek or receive material that indicated that that detention was necessary
in all the circumstances.

3.21 In the minutes
recording the complainant's Reviews of place of Detention of 6 August
1999 and 20 September 1999, Mr Smith merely refers to the material before
him at the time of the original transfer. I have set out above my preliminary
views on the inadequacy of that material.

3.22 In the minutes
of 4 November 1999 and 7 December 1999, Mr Smith further relied upon the
fact that the complainant had criticised DIMA for not securing the complainant's
removal from Australia in a timely fashion as indicating a propensity
to escape. It is not at all evident to me, at this preliminary stage and
subject to anything further from the respondent, why that conclusion follows
from such statements. I would have thought that, in light of the conditions
of the complainant's detention (described in the First Preliminary Notice),
a fair minded decision maker would have considered that any such criticism
was both understandable and justified.

3.23 Finally, even
if it could be said that the complainant's transfer to and ongoing detention
in the Prison was "necessary in all the circumstances" (and
for the reasons set out above I consider, on a preliminary basis, that
that was not the case), I do not consider, at this preliminary stage,
that it could be said to be a proportionate means of achieving a legitimate
objective. Such a submission might have been more tenable if the respondent
had, following the complainant's transfer, expeditiously conducted further
investigations into the inadequate material before Mr Smith. If that had
been the case, it might have been open to the respondent to contend (on
the basis of A v Australia) that a short period of more intensive detention
was warranted while it conducted those investigations. I do not, in light
of my preliminary factual findings that DIMA made no attempt to conduct
further investigations during the extensive period in which the complainant
was detained in the Prison, need to consider whether such an argument
would succeed."

10. Respondent's response
to my Further Preliminary Findings

The Department responded
to my Further Preliminary Findings in a letter dated 27 November 2001.
Amongst other things, it was said in that letter:

"Other Findings

At paragraph 2.9.1
of your further preliminary findings you state:

  • No steps, in addition
    to those outlined in the above documents, were taken by DIMA or ACM
    to establish whether the complainant had in fact been involved in violent
    criminal activity.

The Department sought
to ascertain the nature of Mr HA's criminal history during his detention.
However, this was made problematic as Mr HA initially claimed to be a
person by the name of PHAM Quoc Hung. The chronology below outlines the
Department's attempts to ascertain Mr HA's criminal history and his true
identity during his period of detention.

On 27 July 1999 a
detainee claiming to be PHAM Quoc Hung (Date of birth: 21 November 1978)
was interviewed by Michael Cain, a departmental Compliance Officer, at
PIDC. The WA Police (WAPOL) advised that another person arrested along
with the detainee had advised WAPOL that PHAM Quoc Hung was not his name
and that it was, in fact HA Duc Anh (Date of birth: 21 November 1978).

On 27 July 1999 the
WA office of the Department sent a fax to NSW requesting information on
PHAM Quoc Hung.

On 28 July 1999 an
officer from WAPOL advised the Department that they believed that the
detainee claiming to be Mr PHAM was actually Mr HA Duc Anh, and that Mr
HA had an "arrest sheet" in NSW and that the tattoos listed
matched with those of the detainee.

On 30 July 1999 the
Department requested that WAPOL conduct a police and prison check on PHAM
Quoc Hung and HA Duc Anh, including a request for photos or details of
distinguishing marks. On the same date, the Department sent a request
for information to NSW Corrective services.

On 30 July 1999 WAPOL,
including an officer of the WAPOL Drug Squad, provided information to
the Department, the content of which is likely to have influenced the
decision to transfer Mr HA. The Department is unable to provide further
details of this information without first seeking the permission of the
relevant agency.

On 10 August 1999
NSW Police (NSWPOL) faxed information from the NSW Department of Corrective
Services Offender Management System and the NSWPOL COPS system to the
WAPOL Bureau of Criminal Investigations (BCI). On 11 August NSWPOL faxed
a copy of a photo to the WAPOL BCI. Both faxes have a security caveat
on them therefore the Department is unable to provide further details
of this information without first seeking the permission of the relevant
agencies. While it is uncertain on what date the Department received this
information, the fax of 10 August has a handwritten file note by Michael
Cain stating that he had advised NSWPOL that Mr HA "may be in our
custody in Perth".

On 24 August 1999
the Department sent a request to the Fingerprint Section of WAPOL for
written confirmation of findings regarding the comparison of the fingerprints
of PHAM Quoc Hung and HA Duc Anh.

On 31 August 1999
the Department received a letter from WAPOL dated 25 August 1999 confirming
that the two sets of fingerprints taken on WA Police fingerprint forms
matched those on a NSW fingerprint form in the name of HA Duc Anh. They
did not match with fingerprints taken on a NSW fingerprint form in the
name of PHAM Quoc Hung.

Mr HA's file also
contains a copy of the NSW COPS summary indicating that there was an outstanding
warrant for the arrest of Mr HA. There is no record of the date that this
information was received by the Department, however it is on the file
after a fax dated 30 August.

The Department does
not agree that the steps taken to ascertain Mr HA's identity and criminal
history were, in any way, inadequate. I also respectfully point out that
the original information that the detainee had a "violent criminal
history" came from the detainee himself. I am satisfied that the
Department was justified in basing the initial decision to transfer Mr
HA on this information. Further, I am satisfied that the Department made
sufficient effort, in the face of Mr HA's assertions that he was Mr PHAM,
to ascertain his true identity and his criminal history.

At paragraph 2.9.1
you state:

  • No steps, in
    addition to those outlined in the above documents, were taken by DIMA
    or ACM to establish whether the complainant had been convicted of or
    charged with drug offences.
  • No steps, in addition
    to those outlined in the above documents, were taken by DIMA or ACM
    to consider whether any previous use on the part of the applicant of
    illegal drugs gave rise to reasonable grounds to believe that the complainant
    posed a risk to the other detainees at the Perth IDC;

Mr HA had been arrested
by WAPOL for possession of heroin. It was at this point that he came to
the Department's notice as person of immigration concern. Further, as
mentioned earlier in this response, the Department had also been provided
with additional information from WAPOL that is likely to have influenced
the decision to transfer Mr HA.

The Department submits
not only that it was Mr HA's admitted (and confirmed) drug use that informed
the decision to transfer him to a state correctional facility but also
that the further information received from WAPOL reinforced the view that
it was not appropriate to accommodate Mr HA at Perth IDC.

At paragraph 2.9.1
you also state:

  • The complainant
    made no attempt to escape whilst at the Perth IDC or at the Prison and
    did not in fact escape from those facilities.

That he made no actual
attempt to escape is not material, as the list of factors in MSI-224 that
may lead to the transfer of a detainee to a state correctional facility
is not exhaustive.

Mr HA had an outstanding
arrest warrant in NSW. He had been convicted after failing to appear.
He had also been convicted previously after having failed to appear in
court. Further, an incident report (PIDC 19/99) dated 30 July 1999 referred
to behaviour by Mr HA indicating that he was a high escape risk.

MSI-244 states at
para 2.1 that detention of immigration detainees within state correctional
facilities can occur for a number of reasons, which include:

  • While being held
    at an IDC a person's behaviour is considered to be unacceptable for
    the low security IDC environment, because of:
  • the risk to other
    detainees;
  • violent behaviour
    and/or unlawful behaviour, the inability of management and the detainee
    to resolve the unacceptable behaviour; or
  • the risk (emphasis
    added) of absconding from lawful custody, or
  • at the time of
    being taken into immigration detention a person is assessed as being
    unsuitable to mix with other detainees at an IDC.

Further, MSI-244
states at para 3.3 that:

3.3 In deciding whether
to transfer a detainee to a state prison, decision makers will need to
take into account any factors in the detainee's behaviour which raise
questions as to whether it is in the best interests of the efficient running
of the IDC or of the detainee himself/herself to continue to remain in
the IDC, bearing in mind that IDCs are low security establishments. These
factors could include cases where...(emphasis added)

I point out that,
for example, while national security concerns are not explicitly referred
to in the MSI, the Department would certainly consider the transfer of
a detainee who was assessed as posing a risk to national security to a
state correctional facility.

Other Comments

You appear to query
the relevance at para 3.10 of various comments made by the Department
and ACM in relation to Mr HA's tattoos and suggest that they were:

"at best unsubstantiated
supposition and at worst involve the attribution to the complainant of
unfavourable characteristics based on racial stereotypes."

The Department strongly
objects to such assertions and submits that Mr HA's tattoos were directly
relevant to the determination of his true identity and criminal history.
Further, it is clear from the information presented earlier in this submission
that the Department did seek to identify Mr HA using information about
his tattoos and that the information received indicated that there was
a strong likelihood that Mr HA was the same person as David HA who had
an outstanding arrest warrant in NSW.

You also state at
para 3.17 that Mr Smith relied upon material that should have been investigated
further including information conveyed by Mr Hart and other "unsubstantiated
allegations".

The Department submits
that it was reasonable for Mr Smith to rely on information provided by
ACM officers in this instance, given ACM's role as the Detention Services
Provider. Further, the Department submits that the chronology of communications
between the Department and various other agencies demonstrates that the
Department did investigate the information provided by ACM. As previously
stated, the original information that the detainee had a "violent
criminal history" came from the detainee himself,

You also state at
para 3.17 that:

"the fact that
the complainant was frank with ACM personnel regarding his drug dependency
(which, if anything, might have indicated to a fair minded person that
the complaint (sic) was honest and trustworthy)."

I respectfully submit
that, given the detainee's attempts to deceive WAPOL, the Department and
ACM about his true identity (which persisted for some time), it was reasonable
that the Department and ACM had concerns about Mr HA's honesty.

Article 9 of the
International Covenant on Civil and Political Rights (ICCPR)

You state in your
further preliminary findings that you are of the view that:

"Although the
complainant was already subject to deprivation of liberty by virtue of
his detention at the Perth IDC, I consider that his detention in the Prison
involved a further and serious deprivation of his liberty."

Article 9(1) essentially
deals with the right to liberty, that no one shall be subject to arbitrary
arrest or detention. Immigration detainees are not at liberty as a function
of the operation of the law, ie: the Migration Act 1958. As the Department
has previously stated, this detention is not arbitrary.

The Department does
not accept your argument that a person who has already been deprived of
his or her liberty can be subjected to "further and serious deprivation
of liberty". The essence of both immigration detention and imprisonment
in a correctional facility is that the person is deprived of the ability
to live in the general community and is prevented from moving into and
within the general community. Moving Mr HA from a detention centre to
a correctional facility did not fundamentally alter this.

The Department does
not agree that moving a person who is lawfully detained in one place of
detention to another place of detention, permissible under the law and
envisaged by the parliament in making the law, could of itself be a "further"
or "more serious" deprivation of liberty.

In any event, based
on your argument, were the Department to transfer detainees to more secure
facilities within an immigration detention facility (IDF) or to another
IDF, thereby reducing their freedom of movement, personal privacy and
other rights and privileges, this would also amount to a breach of Article
9(1). Yet this is exactly what you propose the Department should do to
better manage the behaviour of detainees within IDFs.

By your reasoning,
the Department would be left with almost no options for dealing with non-cooperative
detainees, which would be contrary to the duty of care owed by the Department
to the detainee population in general.

Notwithstanding a
number of measures implemented by the Department to improve capacity to
manage the behaviour of difficult detainees, including upgrades to security
and other facilities, and newly passed legislation on weapons offences
and escapes, there are some circumstances in which it is simply not appropriate
or safe for the Department to detain an individual in a detention centre.

The Department's
duty of care extends beyond the individual of behavioural concern to ensuring
the safety and welfare of all detainees in a facility. Where a detainee
or group of detainees continues to pose a real threat to the safety of
others, themselves, or the good order of the facility, transfer to a state
correctional facility may be the most appropriate solution.

The Department cannot
therefore agree with your conclusion that Mr HA's detention was in breach
of Article 9 of the ICCPR."

11. Section 21 Notice

Following DIMIA's
letter of 27 November 2001, I issued a notice under section 21 of the
HREOC Act (the "Section 21 Notice") requiring, inter alia:

  • correspondence
    between the DIMIA and the NSW/WA Police Services (and documents recording
    conversations between officers of those organisations);
  • more precise details
    of the information considered by the relevant decision makers for the
    purposes of the transfer decision of 30 July 1999 and the reviews of
    the complainant's place of detention (given that DIMIA's letter of 27
    November 2001 appeared to indicate that those decision makers had regard
    to material not before the Commission); and
  • clarification
    of other matters raised in the respondent's letter of 27 November 2001.

Under cover of a
letter dated 9 January 2002, DIMIA provided the further information and
documents sought in the Section 21 Notice. Based on the documents there
provided, I have set out below a brief chronology of the communications
between DIMIA and the NSW/WA Police Services in relation to the complainant:

  • On 27 July 1999,
    Mr Michael Cain requested that the WA Police Service hold the complainant
    in immigration detention (that request is set out in a form headed "Request
    for Officer to hold in immigration detention" dated 27 July 1999).
  • Also on 27 July
    1999, Mr Cain requested that the WA Police Service transfer custody
    of the complainant to Mr Cain (that request is set out in a form headed
    "Transfer of Custody" dated 27 July 1999).
  • On 28 July 1999,
    Mr Roger Beer of the WA Police Service telephoned "Lisa" at
    DIMIA. That person left a note for "Mic" advising that Mr
    Beer had suggested that the complainant was not Mr Quoc Hung Pham (as
    the complainant had apparently claimed) but rather Mr Duc Anh Ha. That
    conclusion was apparently drawn on the basis of information regarding
    the complainant's tattoos. Mr Beer further advised that Mr Ha had an
    "arrest sheet in NSW".
  • On 30 July 1999,
    Ms Rhonda Dandie (of DIMIA Compliance/Criminal Deportations) sent a
    facsimile to the WA Police Service requesting that officers of the WA
    Police Service undertake an urgent "Police/prison check… in
    New South Wales" in respect of the complainant. Ms Dandie indicated
    that she was "especially interested in photos or details of distinguishing
    marks tattoos etc". Ms Dandie also sent a facsimile to the Records
    Manager of Silverwater Prison in New South Wales requesting assistance
    in identifying the complainant.
  • On 30 July 1999,
    Ms Dandie made a file note regarding a conversation with Mr Jason Bombak
    of the WA Police Service. Ms Dandie noted advice provided by Mr Bombak
    regarding details of Mr Ha's tattoos (which apparently matched those
    of the complainant). Mr Bombak apparently further advised that Mr Pham
    had no tattoos.
  • On 30 July 1999,
    Mr Cain made a file note regarding a telephone conversation he had with
    a Mr Steve Perejmibida (who DIMIA believe was a member of an unspecified
    police service). It appears that Mr Perejmibida passed on information
    regarding the complainant. Mr Perejmibida advised that the complainant
    had claimed to have acted as a drug courier on a number of occasions
    and was willing to discuss a shipment of a large amount of heroin into
    Sydney.
  • On 10 August 1999,
    the NSW Police Service sent a facsimile to the WA Police Service attaching
    photographs of Mr Ha and Mr Ha's "COPS profile".
  • On 11 August 1999,
    the NSW Police Service sent a facsimile to the WA Police Service attaching
    further photographs of Mr Ha.
  • On 24 August 1999,
    Ms Dandie sent a facsimile to the WA Police Service's Fingerprint Section.
    That facsimile attaches fingerprint records of Mr Ha prepared by the
    NSW and WA Police Services and fingerprint records of Mr Pham prepared
    by the NSW Police Service. Ms Dandie notes that DIMIA "requires
    written confirmation of your findings".
  • On 25 August 1999,
    the WA Police Service wrote to Ms Dandie advising her that the complainant's
    fingerprints matched fingerprint records for Mr Ha.
  • On or shortly
    after 30 August 2001, DIMIA received, amongst other things, information
    from the NSW Police Service's "COPS System" and a print-out
    of the complainant's criminal record.

In addition to the
documents which formed the basis for the above chronology, the respondent
was required, under the Section 21 Notice, to provide certain information.
I have extracted parts of the information provided below (the material
in bold is the request for information set out in the section 21 Notice):

"6. You have
stated, in your letter of 27 November 2001, that:

'On 30 July
1999 WAPOL, including an officer of the WAPOL Drug Squad, provided information
to the Department, the content of which is likely to have influenced
the decision to transfer Mr Ha.'

To the extent
that that material was provided in part or in whole in non-written form,
please set out its content, identify the parties to any conversations
in which it was conveyed and provide the date or dates upon which those
conversations took place. To the extent that that material was provided
in part or in whole in written form or is recorded in written form,
please identify the document or documents provided in response to paragraphs
1 or 2 of this notice that you say contain that information. Please
identify the persons who had access to that information and describe
any actions which those persons took as a
result of receiving
that information. Please also state, with precision, how you say that
information is "likely to have influenced the decision to transfer
Mr HA".

The information relates
to a conversation that took place on 30 July 1999 between Ms Rhonda Dandie,
an officer of the Department, and Mr Jason Bombak from the Offender Information
Bureau of the West Australian Police on the subject of determining Mr
Ha's identity. As outlined in the file note which records the conversation,
a search of National Exchange of Police Information (NEPI) System was
conducted at the Department's request. The NEPI System is a national database
that records details of individuals who are known to police in the States
and Territories. Ms Dandie was advised in that conversation that Mr Ha
was recorded as having a tattoo on his upper left arm of a skeleton on
a motorcycle. Ms Dandie was further advised that Mr Ha also had a tattoo
on the upper right arm of a dragon around a dagger, and that the system
did not list Pham Quoc Hung as having a tattoo.

This information
amounted to a preliminary confirmation of Mr Ha's true identity by way
of his distinguishing features. This confirmation supported claims made
by the West Australian police two days earlier that they believed the
detainee claiming to be Mr Pham was actually Mr Ha. The West Australian
police had further advised at that time that Mr Ha had an 'arrest sheet'
in NSW. On this basis, the advice received from the West Australian Police
on 30 July 1999, in conjunction with their earlier advice of the 28 July
1999, influenced the decision to transfer Mr Ha, as it raised the strong
likelihood that he had a criminal record.

On 30 July 1999,
the decision to transfer Mr Ha to a state correctional facility was made
as the result of the cumulative effect of a number of factors. Although
information received to the effect that Mr Ha had an arrest sheet was
taken into account in making the decision to request a transfer, it was
not of itself determinative. A number of other factors were taken into
consideration, including:

  • Mr Ha had been
    arrested by the West Australian police for possession of heroin.
  • A belief by the
    NCA that Mr Ha had recently been charged in NSW for armed robbery offences
    and that there was a warrant out for his arrest.
  • Mr Ha had admitted
    to having a history of criminal activity, including violent crime.
  • Mr Ha had admitted
    to having a history of drug use.
  • Mr Ha had made
    claims and behaved in a manner that indicated a risk that he might attempt
    to escape from the Perth IDC. These factors underpinned the decision
    that it was not appropriate to detain Mr Ha in an immigration detention
    facility due to the risk he represented to the safety of other detainees,
    staff and visitors. In addition, there was a risk of escape which may
    have posed a threat to the safety to the general public.

7. It is not clear,
from your letter of 27 November 2001, whether you also say that information
received from the West Australian and/or New South Wales Police Services
"is likely to have influenced" or was otherwise relevant for
the purposes of the decisions regarding the reviews of the complainant's
place of detention (referred to in paragraph 4 above). If so, please describe,
with precision, how that information was utilised for the purposes of
those decisions.

As outlined above,
there was no single factor that was, in isolation, determinative in Mr
Ha's transfer and continuing detention in a state correctional facility.
Rather, the cumulative effect of a number of factors led to the initial
decision that it was inappropriate to detain Mr Ha in an immigration detention
facility and to subsequent decisions to continue his detention in a WA
correctional facility.

8. Under the heading
"Other Comments" in your letter of 27 November 2001, you have
sought to explain the following statement made by Mr Smith in his minute
of 30 July 1999:

"Subsequently
to PIDC 19/1999, it has been verbally reported to me that the National
Crimes (sic) Authority (NCA) has engaged the above-name (sic) in interview
this morning on the reasonable belief that the above-named may have
been involved in an armed robbery in New South Wales, that he may have
'skipped bail', and that Bench Warrant remains for his arrest. This
is consistent with observation made in respect of the tattoos on the
detainee's arms indicative of involvement in gang or organised criminal
groups".

You appear to
have suggested that that statement reflects the efforts made by Department
of Immigration and Multicultural Affairs to identify the complainant
using the complainant's tattoos. If that is the manner in which you
seek to explain Mr Smith's statement, please identify, with precision,
what information was known to Mr Smith at the time of preparing his
minute that indicated that the complainant's tattoos were "indicative
of involvement in gang or organised criminal groups". If any such
information was partially or wholly in writing, please provide a copy.
If partially or wholly in oral form, please set out its content, identify
the person or persons who conveyed it to Mr Smith and set out the date
or dates upon which it was conveyed to Mr Smith.

There is no evidence
that any additional information was available to Mr Smith to the effect
that Mr Ha's tattoos were indicative of involvement in gang or organised
criminal groups. However, Mr Ha's tattoos assisted in establishing his
true identity (in that Mr Ha was claiming to be Mr Pham and Mr Pham did
not have tattoos) and in corroborating information from the police that
he had a criminal record."

12. Findings of fact

12.1 Findings
of fact made by Commissioner Sidoti

In his Preliminary
Findings, Commissioner Sidoti made a number of findings of fact, upon
which he based his other findings. Taking into account all of the information
provided by the parties and the fact that neither of the parties have
challenged the findings of fact made by Commissioner Sidoti, I have, by
and large, adopted the findings of fact made by him.

Clearly, some of
the findings of fact made in my Further Preliminary Findings need to be
revised in light of the further information and documents provided by
the respondent. The findings of fact below take account of that additional
material.

12.2 My findings
of fact

My findings of fact
are as follows:

12.2.1 The complainant
became an unlawful non citizen on 2 January 1998 when his student visa
expired.

12.2.2 On or about
27 July 1999, the complainant was arrested by officers of the WA Police
Service. The respondent has suggested, apparently on the basis of a cancellation
of visa form prepared by Mr Michael Cain dated 27 July 1999 (provided
in response to the Section 21 Notice), that the complainant was arrested
for possession of heroin. Curiously, that assertion is not reflected in
the documents prepared by the WA Police Service. Nor is that assertion
recorded or referred to in any file note of conversations between DIMIA
staff and officers of the WA Police Service. Indeed, in two documents
prepared by the WA Police Service described as "Fingerprint forms",
the words "Immigration Warrant" and "Immigration Holding
Order" appear under the word "Offence(s)". Confusion regarding
this issue may have arisen, as the complainant has suggested5, by reason
of the fact that the complainant's friend was arrested for possession
of heroin at Perth Airport. Quite apart from the discrepancies in the
documentation regarding that issue, there is nothing, on the material
before me, to suggest that the complainant was ever charged or convicted
in connection with any alleged possession of heroin.

12.2.3 The complainant
was located by DIMIA officers on 27 July 1999. Mr Cain then requested
that the complainant be initially held by the WA Police in immigration
detention and later transferred to Mr Cain's custody. From that point
until his deportation on 15 December 1999, the complainant was detained
under the provisions of the Migration Act.

12.2.4 During the
period of the complainant's detention, DIMIA retained ultimate responsibility
for the conditions under which the complainant was detained.

12.2.5 On 30 July
1999, pursuant to a decision made that same day by Mr John Williams, the
complainant was transferred to the Prison. In making that decision, Mr
Williams had regard to the recommendations and material presented to him
by Mr Nigel Smith in his minute of 30 July 1999. It appears, from a handwritten
annotation at the foot of Mr Smith's memorandum, that Mr Hart's Follow
Up Incident Report of 30 July 1999 was received after Mr Smith's memorandum
had been prepared and submitted to Mr Williams. It further appears, from
that annotation and from the information provided under the Section 21
Notice, that Mr Williams had regard to Mr Hart's report. On the basis
of the information supplied under the Section 21 Notice, it further appears
that Mr Williams also had access to all other relevant information and
documents possessed by DIMIA for the purposes of making his decision (although,
it is not clear, on the material before me, whether Mr Williams actually
considered that additional material and, if so, how that material was
taken into account by him).

12.2.6 In preparing
the minute of 30 July 1999, Mr Smith had regard to the material set out
in the "Incident Report" dated 28 July 1999 prepared by Ms Walker
and the "Incident Follow-Up Report" dated 29 July 1999 prepared
by Mr Hart. Mr Smith also had regard to a conversation with Mr Hart (in
which the NCA interview and the alleged conversation between Mr Pazooki
and the complainant were discussed). Mr Smith also had access to all relevant
information and documents possessed by DIMIA at that time for the purposes
of making his decision (although, again, it is not clear, on the material
before me, whether Mr Smith actually had regard that material for the
purposes of preparing his Minute).

12.2.7 DIMIA and
ACM personnel used the complainant's tattoos to confirm, on a preliminary
basis, the complainant's true identity. On the basis of that preliminary
confirmation of the complainant's identity, DIMIA considered that there
was a "strong likelihood" that the complainant had a criminal
record. However, there is no material before me that supports the suggestions
or conclusions made by Mr Smith to the effect that the complainant's tattoos
were "indicative of involvement in gang or organised crime groups".

12.2.8 Apart from
the material and information referred to in the document entitled "Incident
Follow Up Report No 2" of 30 July 1999, there was nothing before
Messrs Smith or Williams that indicated that the complainant had been
involved in violent criminal activity.

12.2.9 It subsequently
became clear (or should have become clear) to Messrs Smith and Williams
that aspects of the information contained in that Incident Follow Up Report
were erroneous. In particular, on or shortly after 30 August 1999, DIMIA
received, amongst other things, information from the NSW Police Service's
"COPS System" and a print-out of the complainant's criminal
record. The information from the COPS System makes no reference to Mr
Ha having been charged in connection with an armed robbery. It is true
that Mr Ha's criminal record indicates that warrants had been issued pursuant
to the old section 80AA of the Justices Act 1902 (NSW) [6].
However, those offences were all property offences dealt with by New South
Wales Local Courts. Indeed, all the offences on Mr Ha's criminal record
were property offences (shoplifting, larceny and goods in custody) dealt
with by New South Wales Local Courts. This was at odds with the information
available to Mr Smith as at 30 July 1999 (some of which made its way into
the Minute to Mr Williams of that date) to the effect that it was believed
that the complainant had been imprisoned in New South Wales for an offence
arising out of a stabbing and that he had been charged with armed robbery
offences.

12.2.10 No steps,
in addition to those outlined in the above documents, were taken by DIMA
or ACM to consider whether any previous use on the part of the applicant
of illegal drugs gave rise to reasonable grounds to believe that the complainant
posed a risk to the other detainees at the Perth IDC.

12.2.11 The complainant
made no attempt to escape whilst at the Perth IDC or at the Prison and
did not in fact escape from those facilities.

12.2.12 The complainant
remained in the Prison until around the time of his removal from Australia
on 15 December 1999.

12.2.13 At the time
that the complainant was transferred to the Prison, DIMIA was aware that
the complainant would not be segregated from convicted prisoners and may
be subject to a general lock down of prisoners for up to 22 hours per
day (having been informed of those matters by the West Australian Ministry
of Justice). However, those matters were not expressly referred to in
the Minute to Mr Williams of 30 July 2001.

12.2.14 The decision
to detain the complainant was reviewed by DIMIA on four occasions (being
August 1999, 20 September 1999, 4 November 1999 and 7 December 1999)7.
On each such occasion, DIMIA decided that the location of the complainant's
immigration detention should continue to be the Prison. Again, in the
Minutes recording the outcomes of those reviews, there is no reference
to DIMIA's knowledge of the conditions of the complainant's detention
at the Prison.

12.2.15 The respondent
was also aware that the complainant had issues of concern regarding his
conditions of detention at the Prison. Curiously, the minutes recording
the outcome of the reviews of the complainant's place of detention of
20 September 1999, 4 November 1999 and 7 December 1999 included words
to the following effect:

"The detainee
raised no issues of concern in respect of his treatment at the facility"

Of course, the complainant
had, by his various letters of August and October 1999, raised a number
of specific concerns regarding his treatment at the Prison. Those letters
were copied to DIMIA under cover of a letter from the Commission of 18
October 2001. Hence, at least for the purposes of the last two reviews
of the complainant's place of detention, DIMIA was aware that the complainant
did have issues of concern regarding his treatment at the facility.

12.2.16 While in
immigration detention, the complainant was not charged with nor convicted
of any offence.

12.2.17 The complainant
was detained in his cell for up to 22 hours per day until at least 11
October 1999. I note that a similar finding was made by Commissioner Sidoti
in his Preliminary Notice. That finding was apparently based upon the
complainant's three October letters (one undated and the other two dated
9 and 11 October 1999). There is a discrepancy between those letters and
the complainant's earlier August letters, in which the complainant refers
to being confined to his cell for 20 hours per day. In addition, the above
extracted section from the WA Ombudsman's report (which Commissioner Sidoti
had before him) suggests that:

"the lock-down
regime initially required that prisoners spend up to 23 hours each day
in their cells. In approximately the middle of the year that was amended
to 21 hours each day."

It is unclear what
precise date the WA Ombudsman understood the 21 hour regime to have taken
effect. In spite of those discrepancies, the respondent (who was in a
position to clarify those matters) has not sought to challenge Commissioner
Sidoti's Preliminary Findings on this issue [8]. In those
circumstances, I accept that the complainant was detained for 22 hours
per day until the date of his final letter (being 11 October 1999).

12.2.18 Until at
least some time in August 1999, the complainant was subject to the following
conditions described in the WA Ombudsman's

Annual Report:

"Time out of
cells only allowed prisoners access to the confined common area immediately
outside their cells (an area of approximately 3m x 20m). They were not
permitted in the wing recreation areas except to use the telephone and
generally only leave the unit buildings for visits. Those who could leave
the units for work or education for part of the day (most of the prison
industries and educational facilities operated at minimum levels) were
similarly confined for the part of the day that they were back in their
units."

12.2.19 Although
not specifically drawn to the Commission's attention nor mentioned in
the Preliminary Report, there is some material before the Commission that
indicates that, by 7 December 1999, the complainant was engaged in work
in the Prison. In the Minute recording the decision that the complainant
should not be returned to an immigration detention centre, it was noted
that the complainant:

"is satisfied
to be engaging in work in the complex."

That is consistent
with the material in the WA Ombudsman's Report, which suggests that, at
some time after his August visit, the WA Ombudsman conveyed his concerns
to the Director General of the Ministry of Justice and that, shortly thereafter:

"steps were
taken to increase work and education opportunities at Casuarina and for
prisoners to leave the unit buildings for recreation"
It seems reasonable to conclude that the complainant obtained some benefit
from those "steps" some time between the third and fourth reviews
of his place of detention (ie between 4 November 1999 and 7 December 1999).

12.2.20 Whilst in
Prison, the complainant was not segregated from convicted prisoners and
was not treated differently to those persons.

13. Findings on liability

13.1 Elements
of the inquiry

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 (section 11(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 must 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.

13.2 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.

It is important to
note that the Commission's human rights complaints jurisdiction is limited
to discretionary acts and practices of the Commonwealth. When an act or
practice is truly within the discretion of the Commonwealth and its officers,
then that act or practice is properly subject to the Commission's complaints
jurisdiction. When an action of the Commonwealth or its officers is required
by the Migration Act and there is no discretion involved at all, that
action is outside the scope of the Commission's human rights complaints
jurisdiction [9].

The detention provisions
of section 189 of the Migration Act are mandatory in their terms and conduct
in accordance with section 189 does not constitute an act or practice
by or on behalf of the Commonwealth. Therefore this aspect of the treatment
of the complainant is not subject to the Commission's human rights complaints
jurisdiction [10].

However, by reason
of the definition of "immigration detention" in section 5(1)
of the Migration Act, decision makers within DIMIA are left with a wide
discretion as to where a person is to be detained.

In light of the above,
it is clear that the applicant's transfer to the Prison was undertaken
pursuant to a discretion (albeit one not expressly provided for in the
Migration Act) and that the respondent retained a discretion to transfer
the complainant to another facility constituting "immigration detention"
(through the "Formal Monthly Review" process).

The respondent's
decisions to transfer the complainant to the Prison and to continue to
detain him there are discretionary acts or practices of the Commonwealth
and are therefore within the Commission's complaints jurisdiction.

I should note that
it appeared, early in the inquiry, that the respondent was attempting
to assert that the decision to transfer the complainant to the Prison
was made by the WA Ministry of Justice (see the respondent's letter of
10 November 1999). I assume, in light of the further documentary material
provided by the respondent since that time, that the respondent was intending
there to state that the decision to accommodate the complainant in the
Prison as opposed to some other penal institution in Western Australia
was made by the Ministry of Justice. That does not alter the fact that,
at all material times, the respondent had ultimate control over where
the complainant was detained. It follows that the involvement of the Western
Australian Ministry of Justice does not in any way affect the Commission's
jurisdiction in relation to the complaint against the respondent.

13.3 "Human
rights"

Section 3 of the
HREOC Act defines "human rights" as including the rights and
freedoms recognised in the International Covenant on Civil and Political
Rights
[11] (the "ICCPR"), which
appears as Schedule 2 to the HREOC Act.

In those parts of
the Preliminary Report extracted above, Commissioner Sidoti found breaches
of articles 10(1) and 10(2)(a) of the ICCPR. As also noted above, I have
made further preliminary findings to the effect that DIMIA breached article
9(1) of the ICCPR.

I have set out below
my findings in respect of each of those articles.

14. Article 10

14.1 Terms of
the article

Article 10 relevantly
provides:

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

(2)(a) Accused
persons shall, save in exceptional circumstances, be segregated from
convicted persons and shall be subject to separate treatment appropriate
to their status as unconvicted persons......"

14.2 Relationship
between articles 7 and 10(1) of the ICCPR

I note, as a preliminary
point, that Commissioner Sidoti referred in part 4 of the Preliminary
Notice to article 7 of the ICCPR. He did not, in the remainder of the
Preliminary Notice, refer again to that article.

Article 7 of the
ICCPR provides as follows:

"No one shall
be subjected to torture or to cruel, inhuman or degrading treatment
or punishment. In particular, no one shall be subjected without his
free consent to medical or scientific experimentation."

The Human Rights
Committee ("the UNHRC") has expressed the view in a number of
communications that conditions of detention can violate both articles
7 and 10(1) of the ICCPR. That approach may be seen in the following extract
from the UNHRC's General Comment 21:

"[a]rticle 10,
paragraph 1, imposes on State parties a positive obligation towards persons
who are particularly vulnerable because of their status as persons deprived
of their liberty, and complements the ban on torture or other cruel, inhuman
or degrading treatment or punishment contained in article 7 … Thus,
not only may persons deprived of their liberty not be subjected to treatment
which is contrary to article 7 … but neither may they be subjected
to any hardship or constraint other than that resulting from the deprivation
of liberty; respect for the dignity of such persons must be guaranteed
under the same conditions as that of free persons …"[12]

It is unsurprising,
in light of that approach, that the UNHRC has frequently found a violation
of both articles 7 and 10, without making a clear distinction between
the two provisions. [13]

However, in a number
of communications, the UNHRC came to the conclusion that the conditions
of detention represented inhuman treatment pursuant to article 10(1) but
not a violation of article 7. This implies that "inhuman treatment"
within the meaning of article 10(1) involves a lower "intensity"
of disregard for human dignity than that within the meaning of article
7.[14]

Commentator Professor
Manfred Nowak has discussed the UNHRC's jurisprudence in the following
terms:

"... the Committee's
case law in this area reveals occasional inconsistencies, although it
is faced with the difficulty that violations of human dignity and personal
integrity ultimately are able to be ascertained only on a case-by-case
basis by weighing all the circumstances, including the subjective impressions
of the person concerned. Nevertheless, several general conclusions may
be drawn for the interpretation of Article 10(1): In contrast to Article
7, Article 10 relates only to the treatment of persons who have been
deprived of their liberty. Whereas Article 7 primarily is directed at
specific, usually violent attacks on personal integrity, Article 10
relates more to the general state of a detention facility or some other
closed institution and to the specific conditions of detention. As a
result, Article 7 principally accords a claim that State organs refrain
from certain action (prohibition of mistreatment), while Article 10
also covers positive State duties to ensure certain conduct: "Regardless
of economic difficulties, the State must establish a minimum standard
for humane conditions of detention (requirement of humane treatment).
In other words, it must provide detainees and prisoners with a minimum
of services to satisfy their basic needs (food, clothing, medical care,
sanitary facilities, communication, light, opportunity to move about,
privacy, etc.). Finally, it is ... stressed that the requirement of
humane treatment pursuant to Article 10 goes beyond the mere prohibition
of inhuman treatment under Article 7 with regard to the extent of the
necessary "respect for the inherent dignity of the human person."
[15]

The scope of articles
7 and 10(1) was addressed in detail in the Report of the Human Rights
Commissioner of May 2000 [16] concerning the conditions
of detention of a person detained at the Perth IDC. The Commissioner found
that the placement of the complainant in an observation room as a form
of punishment, the continued use of restraints, the excessive and unnecessary
holding of the complainant in the observation room and the holding of
the complainant in a room without natural light or ventilation amounted
to contravention of article 10(1). The Commissioner did not find a breach
of article 7.

In the current matter,
where the issues regarding the complainant's detention relate to the general
state of conditions of detention at the Prison, I consider that Commissioner
Sidoti was correct in confining his Preliminary Findings to a breach of
article 10. I further consider that approach to be appropriate in light
of the "intensity" of the treatment in question.

14.3 Article 10(1)

It seems to me clear
that Commissioner Sidoti was correct in concluding that there was a breach
in this matter of article 10(1) of the ICCPR. I note that the respondent
has at no time made any specific response to Commissioner Sidoti's findings
regarding that article.

Article 10(1) requires
that a person in detention be treated in a humane manner.

In a series of communications
under the optional protocol to the ICCPR, the UNHRC held that conditions
at St Catherine's Prison, Jamaica, constituted a breach of article 10(1).
One matter, to which the UNHRC drew particular attention in finding those
breaches, was the fact that the authors of the relevant communications
were confined for twenty-three hours each day. [17]

Moreover, in Kelly
v Jamaica
[18], in which it was found, inter alia,
that the author of the complaint was only allowed out of his cell for
30 minutes each day, the UNHRC stated that the total absence of recreational
facilities would, except under exceptional circumstances, constitute a
breach of article 10.

In Parkanyi v
Hungary
[19] the UNHRC found that conditions of
detention involving five minutes a day for personal hygiene and five minutes
for exercise in the open air involved a breach of article 10.

In interpreting the
protection afforded to prisoners by article 10(1), it is also relevant
to have regard to the UN Standard Minimum Rules for the Treatment of Prisoners
(the "Minimum Rules") [20]. The Minimum Rules
were developed by the United Nations as a non-binding code. However, the
UNHRC appears to have elevated those standards to norms of international
treaty law, by incorporating them into its interpretation and consideration
of articles 7 and 10(1) of the ICCPR. By way of example, in the General
Comment relating to article 10, the UNHRC invited States Parties to submit
with their reports details of the extent to which they were complying
with the Minimum Rules [21]. This clearly implies that
the Minimum Rules are relevant in considering States Parties' compliance
with article 10. The UNHRC has adopted a similar position in a number
of Concluding Comments on States Parties. By way of example, in its Concluding
Comments on the United States of America, the UNHRC stated:

"Conditions
of detention in prisons, in particular in maximum security prisons,
should be scrutinized with a view to guaranteeing that persons deprived
of their liberty be treated with humanity and with respect for the inherent
dignity of the human person, and implementing the United Nations Standard
Minimum Rules for the Treatment of Prisoners and the Code of Conduct
for Law Enforcement Officials therein." [22]

In the current matter,
the following provisions of the Minimum Rules appear to me to be relevant
for the purposes of considering whether the acts or practices of the respondent
breached article 10(1):

Rule 21(1)

"Every prisoner
who is not employed in outdoor work shall have at least one hour of
suitable exercise in the open air daily if the weather permits."

Rule 89

"An untried
prisoner shall always be offered opportunity to work, but shall not
be required to work. If he chooses to work, he shall be paid for it."

Rule 94

"In countries
where the law permits imprisonment for debt, or by order of a court
under any other non-criminal process, persons so imprisoned shall not
be subjected to any greater restriction or severity than is necessary
to ensure safe custody and good order. Their treatment shall be not
less favourable than that of untried prisoners, with the reservation,
however, that they may possibly be required to work."

Rule 95

"Without prejudice
to the provisions of article 9 of the International Covenant on Civil
and Political Rights, persons arrested or imprisoned without charge
shall be accorded the same protection as that accorded under part I
[which includes rule 21(1)] and part II, section C [the "Untried
Prisoner" section, which includes rule 89]. Relevant provisions
of part II, section A, shall likewise be applicable where their application
may be conducive to the benefit of this special group of persons in
custody, provided that no measures shall be taken implying that re-education
or rehabilitation is in any way appropriate to persons not convicted
of any criminal offence."

In my view, the complainant
comes within the provisions of rule 95. He was not a civil prisoner within
the meaning of rule 94, as his detention was a consequence of an administrative
decision rather than a Court order. Rather, he was simply a person "imprisoned
without charge".

I have found in section
12 that:

  • the respondent
    retained ultimate responsibility for the conditions under which the
    complainant was detained (see 12.2.4);
  • until at least
    11 October 1999, the complainant was confined to his cell for 22 hours
    per day (see 12.2.17);
  • until at least
    some time in August 1999, during the period the complainant was allowed
    out of his cell, he was only permitted access to the confined common
    area immediately outside his cell (an area of approximately 3m x 20m)
    and was not permitted to use the recreational areas of the Prison (see
    12.2.18); and
  • the complainant
    was not given the opportunity to work until sometime between 4 November
    1999 and 7 December 1999 (see 12.2.19). In my view, those findings of
    fact require me to find that the respondent's decisions to transfer
    the complainant to the Prison and then continue to detain him there
    breached article 10(1). I make that finding for the following reasons:
  • The respondent
    allowed the complainant to be detained in conditions where he was confined
    to his cell for periods of time comparable to those considered in the
    UNHRC communications involving Jamaica cited above.
  • Until at least
    some time in August 1999, the respondent allowed the complainant to
    be detained in conditions where, as was the case in Kelly v Jamaica23,
    the complainant had no access to recreational facilities.
  • Until at least
    some time in August 1999, the respondent allowed the complainant to
    be detained in conditions in which the complainant was not allowed the
    required minimum of one hour exercise in the open air in breach of paragraphs
    95 and 21(1) of the Minimum Rules. That breach is, for the reasons outlined
    above, relevant for the purposes of considering whether there was a
    breach of article 10(1).
  • The respondent
    allowed the complainant to be detained in conditions where the complainant
    was denied the opportunity to work, until some time between 4 November
    1999 and 7 December 1999, in breach of paragraphs 95 and 89 of the Minimum
    Rules. Again, that breach is relevant for the purposes of considering
    whether there was a breach of article 10(1).

14.4 Article 10(2)(a)
and the reservation entered by Australia

As noted above, after
Commissioner Sidoti's Preliminary Findings, the Commission invited the
respondent to make submissions on the effect of the reservation entered
by Australia in respect of article 10 (this being an issue that did not
appear to have been considered by Commissioner Sidoti, nor by the respondent
in its response to Commissioner Sidoti's Preliminary Findings or in its
earlier submissions).

At the time of ratification
of the ICCPR in 1980, Australia entered the following reservation in respect
of article 10 [24]:

"Australia
accepts the principle stated in paragraph 1 of article 10 and the general
principles of the other paragraphs of that article, but makes the reservation
that these and other provisions of the Covenant are without prejudice
to laws and lawful arrangements, of the type now in force in Australia,
for the preservation of custodial discipline in penal establishments.
In relation to paragraph 2(a) the principle of segregation is accepted
as an objective to be achieved progressively. In relation to paragraphs
2(b) and 3 (second sentence) the obligation to segregate is accepted
only to the extent that such segregation is considered by the responsible
authorities to be beneficial to the juveniles or adults concerned."

On 6 November 1984,
the Government of Australia notified the Secretary-General of the United
Nations of its decision to withdraw the reservations and declarations
made upon ratification with the exception of, inter alia, the reservations
to paragraphs 2(a), 2(b) and 3 of article 10. As such the reservation
to article 10 now reads:

"Article 10

In relation to
paragraph 2(a) the principle of segregation is accepted as an objective
to be achieved progressively. In relation to paragraphs 2(b) and 3 (second
sentence) the obligation to segregate is accepted only to the extent
that such segregation is considered by the responsible authorities to
be beneficial to the juveniles or adults concerned." [25]

The effect of a reservation
such as that made by Australia is provided for in article 22 of the Vienna
Convention on the Law of Treaties
[26], which provides
that a reservation:

modifies for the
reserving State in its relations with that other party the provisions
of the treaty to which the reservation relates to the extent of the
reservation (emphasis added).

The reservation to
article 10(2)(a) is limited in its terms to the principle of segregation.
It does not affect the second limb of article 10(2)(a), being the obligation
to ensure that people in the position of the complainant are subject to
separate treatment appropriate to their status as unconvicted persons.
As is the case in domestic law, reservations to the ICCPR (being derogations
from fundamental human rights) are construed narrowly. [27]

14.5 Separate
treatment obligation under article 10(2)(a)

I shall therefore
consider first the "separate treatment" obligation under article
10(2)(a), prior to returning to the more difficult issue of the segregation
obligation.

Again, the Minimum
Rules are relevant for the purposes of considering Australia's obligations
under the separate treatment limb of article 10(2)(a). The following provisions
of the Minimum Rules seem to me to give some guidance as to what the "separate
treatment" obligation might require in this case:

Rule 86
"Untried prisoners shall sleep singly in separate rooms, with
the reservation of different local custom in respect of the climate."

Rule 87
"Within the limits compatible with the good order of the institution,
untried prisoners may, if they so desire, have their food procured at
their own expense from the outside, either through the administration
or through their family or friends. Otherwise, the administration shall
provide their food."

Rule 88
"(1) An untried prisoner shall be allowed to wear his own
clothing if it is clean and suitable.

(2) If he wears
prison dress, it shall be different from that supplied to convicted
prisoners."

Rule 89
"An untried prisoner shall always be offered opportunity to
work, but shall not be required to work. If he chooses to work, he shall
be paid for it."

Rule 90
"An untried prisoner shall be allowed to procure at his own
expense or at the expense of a third party such books, newspapers, writing
materials and other means of occupation as are compatible with the interests
of the administration of justice and the security and good order of
the institution."

Rule 91
"An untried prisoner shall be allowed to be visited and treated
by his own doctor or dentist if there is reasonable ground for his application
and he is able to pay any expenses incurred."

Rule 92
"An untried prisoner shall be allowed to inform immediately
his family of his detention and shall be given all reasonable facilities
for communicating with his family and friends, and for receiving visits
from them, subject only to restrictions and supervision as are necessary
in the interests of the administration of justice and of the security
and good order of the institution."

It is unnecessary
to consider the scope of the separate treatment obligation in detail
as the respondent has not sought to dispute Commissioner Sidoti's finding
that the complainant was not accorded separate treatment appropriate
to his status [28]. Indeed, the respondent has put
nothing before the Commission to indicate that the complainant was subject
to treatment that differed in any material respect from the treatment
accorded other persons detained in the Prison. In those circumstances,
I find that the respondent's decision to transfer the complainant to
the Prison and to continue to detain him there breached the separate
treatment limb of article 10(2)(a) of the ICCPR.

14.6 Segregation
obligation under article 10(2)(a)

Commissioner Sidoti
found in his Preliminary Findings that the complainant was not segregated
from convicted prisoners during his time in immigration detention in the
Prison. That finding is not disputed by the respondent. Were it not for
the reservation entered into by Australia in respect of article 10(2)(a)
of the ICCPR, there is, in my view, little doubt that the complainant's
unsegregated detention would have given rise to a further breach of that
article.

However, it is also
clear that the reservation deposited by Australia in respect of article
10(2)(a) is not a blanket one. It clearly states that "the principle
of segregation is accepted as an objective to be achieved progressively"
[29]. It was for this reason that I specifically sought
further submissions from the Department concerning the steps that have
been taken by the Commonwealth to progressively achieve the objective
of segregation of accused persons from convicted persons in Australia.

The respondent, in
answering that request, suggested that this issue falls outside "the
portfolio responsibilities of DIMA". Of course, this complaint is
a complaint against the Commonwealth of Australia. Commonwealth Departments
are part of the indivisible Crown in right of the Commonwealth and have
no separate juristic identity [30]. This response would
therefore appear to be premised upon a misunderstanding of the identity
of the respondent to the complaint.

Nevertheless, the
respondent did refer the Commission to extracts from Australia's first
three reports provided to the UNHRC under article 40(1)(a) of the ICCPR.
Article 40(1) requires that States Parties to the ICCPR submit reports
on the measures they have adopted which give effect to the rights recognised
in the ICCPR and on the progress made in the enjoyment of those rights.

Since ratification
of the ICCPR in 1980, Australia has submitted four reports to the UNHRC
[31]. The first periodic report was submitted in November
1981, the second periodic report in February 1987 [32],
the third periodic report in 1998 and the fourth periodic report in 1999
[33]. In relation to the submissions concerning article
10(2)(a) of the ICCPR, there are some striking similarities in the information
provided in each of the periodic reports. This information can be summarised
as follows:

  • In all jurisdictions,
    accused persons awaiting trial are, as far as practicable, kept separate
    from convicted prisoners. Australia recognises that the segregation
    of accused from convicted persons is desirable. The exceptions occur
    in the sparsely settled regions of Australia which cover large areas.
    The cost of separately housing persons on remand and prisoners would
    not be justified in current circumstances [34].
  • The practice in
    all jurisdictions is, so far as possible, to keep accused persons separate
    from convicted persons and to allow them private communication with
    friends and legal advisers as far as possible. Accused persons are not
    required to work or wear prison dress [35].
  • Illegal migrants
    placed in custody are normally held in purpose-built immigration detention
    centres. There are three such centres. Consequently in those localities
    without a centre, initial custody for an illegal immigrant may require
    detention in a police lock-up, remand centre or prison facility. It
    is not the policy to place illegal immigrants in prison where a detention
    centre is available or if custody is otherwise avoidable. In any event,
    periods of custody in those places are kept to a minimum and, where
    feasible, detainees are moved to a detention centre at the earliest
    opportunity [36].
  • At the 1989 Conference
    of Correctional Administrators, the Standard Guidelines for Corrections
    in Australia were ratified. These guidelines supplement the Minimum
    Rules in their application to Australian prisons. Under the guidelines,
    accused persons awaiting trial are separated from convicted persons
    as far as practicable. Remandees are accorded different treatment from
    convicted persons [37].

In the third periodic
report, brief details are provided concerning arrangements in each State
for segregation of accused persons from convicted prisoners [38].
The following comments were made in relation to Western Australia:

"Western
Australia
636. In Western Australia, the Prisons Regulations 1982 require
that as far as is practicable, prisoners on remand must be separated
from sentenced prisoners. Remandees may be held at regional prisons
for short periods of time due to the distance from Perth. Adult remandees
may also be held at
metropolitan prisons when the Remand Centre is full. Wherever possible
segregation is maintained, however this is not always practical in view
of the need to ensure remandees have access to work, recreation and
medical and other services. Different management regimes apply to remandees
including visits by legal representatives to facilitate their defence
case." [39]

The only comments
made in the fourth periodic report concerning article 10 are in relation
to remand facilities in Victorian prisons [40].

It is my view that
the periodic reports provided by Australia are repetitive and do not provide
a great deal of evidence of any steps taken by Australia to progressively
meet its obligations under article 10(2)(a). Despite assurances provided
in these reports to the UNHRC that segregation is being achieved to the
"fullest extent reasonable and practicable", the facts of this
case illustrate that, even in urban centres, segregation is still not
being achieved.

I consider that it
is a matter of grave concern that the reservation to article 10(2)(a)
is still in place over 20 years after the ICCPR was ratified by Australia.
I note that, in its written submissions, the respondent refers to "the
prohibitive cost of implementation of separation, in some instances, in
the Australian context". I do not, however, accept that a country
like Australia, with the resources available to it, has been unable to
achieve this objective in the time that has now passed because of financial
constraints.

14.7 Failure to
consider the segregation obligation as a breach of article 10(2)(a)

Of more particular
concern in the present matter is the fact that Messrs Smith and Williams
and Ms Kansky do not appear to have even considered whether segregation
could be achieved in this case.

In my view, the failure
of Commonwealth decision makers (and those advising them) to consider
whether segregation can be achieved in a particular case may amount to
a breach of article 10(2)(a) (as modified by the reservation).

The decisions of
Gray J in the Cabal litigation do not run contrary to that proposition.
Amongst other things, his Honour there considered the interpretation of
the word "prison" in the context of the Extradition Act 1998
(Cth). His Honour (in a judgment approved by the Full Court [41])
held that the term "prison" could not be read down in light
of article 10, so as to render it inapplicable to Port Phillip Prison
or the Melbourne Assessment Prison [42]. His Honour
arrived at that view because he noted that the reservation to article
10 rendered Australia's obligations under that article non-absolute. It
was therefore his Honour's view that through section 53 of the Extradition
Act 1988 (Cth), the Commonwealth parliament had complied with Australia's
international obligations by providing for a regime whereby persons to
be extradited were, to the extent possible under state prison systems,
treated in the same manner as remand prisoners.

However, it does
not follow (nor did his Honour suggest) that Australia has no relevant
obligations under the first limb of article 10(2)(a). As noted above,
the obligation, as modified by the reservation, is one of "progressive
achievement". Such an obligation might be considered to be analogous
to a best endeavours clause in a commercial contract. The respondent will
plainly not live up to an obligation of that nature if its decision makers
do not even consider whether, in the circumstances of a particular case,
it is possible to achieve the principle of segregation [43].

Thus, I affirm Commissioner
Sidoti's preliminary finding that the respondent breached the segregation
obligation of article 10(2)(a) of the ICCPR (as modified by the reservation)
on the basis that at no relevant time did Messrs Smith or Williams or
Ms Kansky consider whether it was possible to achieve segregation in this
case. For example, there nothing to suggest that those persons considered
whether segregation could be achieved by alternative measures, which may
have included transferring the complainant to an interstate prison where
segregation was possible.

14.8 Exceptional
circumstances

I should note, for
completeness, that it appears, from the respondent's letter of 15 June
2001, that the respondent seeks to say that the segregation obligation
in article 10(2)(a) does not apply to the current case by reason of the
fact that there are "exceptional circumstances" within the meaning
of that article. No further details are proffered of the circumstances
that are relied upon as being "exceptional".

The UNHRC has yet
to consider what might amount to "exceptional circumstances"
for the purposes of article 10(2)(a). In my view, the reference to "exceptional
circumstances" in article 10(2)(a) is a reference to circumstances
pertaining to the ability of a State party to provide separate treatment
that are sufficiently extraordinary to warrant a departure from the guarantee
provided by this article. The travaux préparatoires indicate that
"exceptional" was intended to be more restrictive than "abnormal".
The concern of the drafters was to maintain the strength of the right
guaranteed by the article, whilst allowing for some very limited departures
[44].

It might be said
(although this is by no means clear from the respondent's submissions)
that there were exceptional circumstances here because:

"The WA Ministry
of Justice [was, at the relevant time] experiencing capacity issues
in its correctional facilities. As a result, the CW Campbell Remand
Centre, the only adult remand centre in the region, also holds convicted
as well as unconvicted persons. It was apparently unable to accommodate
Mr Ha at the time." [45]

Be that as it may,
in the absence of any material evidencing a consideration and soundly
based rejection of alternatives to unsegregated detention (including interstate
detention options), I am unable to accept that matters related to the
capacity of the Western Australian prison system constituted "exceptional
circumstances".

15. Article 9(1)

15.1 Does article
9(1) of the ICCPR apply to the complainant?

The human right recognized
in article 9(1) of the ICCPR extends to all deprivations of liberty, whether
in criminal cases or in matters concerning immigration [46].
As discussed in my Preliminary Report, the transfer of the complainant
to the Prison involved a further and serious deprivation of his liberty.
Prisons are correctional facilities with an environment that is very different
from that in an Immigration Detention Centre. Detention in a State prison
entails a substantial reduction in personal privacy, freedom of movement
and other rights and privileges [47]. Significantly,
detainees are separated from families, friends and people of their linguistic,
religious, ethnic and cultural backgrounds.

I have extracted
above the respondent's response to my preliminary findings regarding this
issue. The respondent states that "it does not accept my argument"
that article 9(1) could apply to this matter on the following bases:

  • The complainant
    was already detained;
  • That detention
    was "permissible under the law and envisaged by the parliament
    in making the law";
  • That, if my "argument"
    were correct, any use of more secure facilities

within the IDC by
the respondent would amount to a breach of article 9(1), leaving the respondent
with "almost no options for dealing with non-cooperative detainees".
As to the respondent's contention that article 9(1) did not apply because
the complainant was already detained, this submission seems to me to be
erroneous. It is true that the complainant was subject to restrictions,
in the Perth IDC, that would amount to a deprivation of liberty prior
to his transfer to the Prison. It is also true (although the respondent
did not appear to specifically rely upon this matter) that the complainant's
detention in the Perth IDC and the Prison had a common statutory basis:
being sections 189 and 196 of the Migration Act, read with the definition
of "immigration detention" in section 5(1). However, the UNHRC
has recognised that detention that is not, at the outset, in breach of
article 9(1) may, at a later time, come to breach that article [48].
The fact that the complainant was already detained thus seems to me to
be immaterial.

It is similarly beside
the point that the detention was supported by law. The reference to "arbitrariness"
in article 9(1) of the ICCPR imposes a separate and distinct limitation
on detention to the requirement that the detention be lawful. The UNHRC,
in Van Alphen v The Netherlands [49], confirmed
that there are various factors which may render an otherwise lawful detention
arbitrary, saying:

"arbitrariness
is not to be equated with "against the law" but must be interpreted
more broadly to include elements of inappropriateness, injustice and
lack of predictability. This means that remand in custody pursuant to
lawful arrest must not only be lawful but reasonable in all the circumstances.
Further, remand in custody must be necessary in all the circumstances,
for example, to prevent flight, interference with evidence or the recurrence
of crime."

It is the requirement
of "arbitrariness" that the respondent appears to have overlooked
in the third submission summarised above. The use of more secure facilities
does not in itself breach article 9(1), provided that their use is not
"arbitrary" within the meaning of article 9(1).

Amongst other matters,
this may involve, in a relevant case, considering whether a person in
the position of the respondent has followed stated procedures, such as
those set out in MSI 244. It should be noted that MSI 244 provides the
only "procedural safeguard" for detainees who are at risk of
being transferred to State prisons. Detainees will legitimately expect
strict adherence to those procedural safeguards. In those circumstances,
failure to follow the procedures set out in MSI 244 may, depending upon
the facts of a particular case, introduce elements of unpredictability,
inappropriateness and injustice so as to make the detention unreasonable
in all the circumstances and therefore arbitrary.

15.2 Interpretation
of MSI 244

In my preliminary
findings, I made a number of comments upon specific aspects of the respondent's
compliance with MSI 244. As discussed in those findings, Mr Smith, in
preparing his Minute to Mr Williams of 30 July 1999, sought to base his
recommendation for transfer on three of the "Grounds for Transfer"
specified in MSI 244, being:

  • "Detainee
    with a history of violence" (paragraph 4.4 of MSI 244);
  • "Detainee
    with a history of sexual offences or drug offences" (paragraph
    4.6 of MSI 244); and
  • "Escape (attempted
    or successful)" (paragraph 4.8 of MSI 244).

I note that the respondent
has asserted, in its letter of 27 November 2001, that the matters listed
under "Grounds for Transfer" are not intended to be exhaustive
by reason of the fact that the "reasons" listed under paragraph
2.1 and the "case examples" listed under paragraph 3.3 are expressed
to be inclusive rather than exhaustive.

I find the respondent's
submissions on this issue somewhat difficult to follow. I have set out
above the relevant paragraphs from the MSI, including 2.1 and 3.3. It
appears, from the overall structure of the MSI, that the drafter or drafters
intended to set out general background information in sections 1 and 2,
describe (still generally) the process of making a transfer decision in
section 3 and to set out, in more detail, the grounds for transfer and
associated procedural matters in section 4.

Viewed in that context,
it seems to me that the matters set out under 2.1 are intended to give
a brief overview of the more detailed "Grounds for Transfer"
set out in section 4. One naturally expects some breadth of language in
such an overview. The respondent's submission appears analogous to divining
the scope of a statutory provision from the list of sections. Such a proposition
cannot be accepted: one must go to the provisions themselves.

Similarly, paragraph
3.3 of MSI 244 does not appear to me to be intended to give a detailed
guide to the matters which are to be taken into account for the purposes
of a transfer decision. It merely gives examples of "cases"
(by which I assume was meant particular factual situations) in which transfer
may need to be considered. Again, the precise grounds upon which a transfer
is to be based are set out in section 4.

I should add that
I would be disturbed if the respondent's submission reflects DIMIA's internal
approach to the construction of MSI 244. That document deals with decisions
that stand to drastically affect a person's liberty. The MSI specifically
refers to detention within prisons as being a "last resort"
and to the transfer decisions operating in a "restricted context".
This seems to me to warrant a strict approach to the construction of that
document as opposed to the approach advocated by the respondent, which
might be described as loose and broad.

In any event, I note
that Mr Smith, in his Minute to Mr Williams of 30 July 1999, reproduced
the precise wording of the headings from section 4 of MSI 244.

Mr Williams accepted
the recommendation that the complainant be transferred to the Prison on
the basis of Mr Smith's discussion of those matters. It seems to me to
follow that Mr Smith and Mr Williams were purporting to have regard only
to those matters specified in section 4 of MSI 244 and to consider those
matters as per the procedure set out in section 4.

I will now discuss
each of the factors discussed in Mr Smith's Minute.

15.3 Detainee
with a history of violence

In his Minute of
30 July 1999, Mr Smith nominated two matters as establishing that the
complainant had a history of or predisposition to violence:

  • Information conveyed
    to DIMIA by the NCA to the effect that the complainant was involved
    in an armed robbery in New South Wales. Mr Smith's reference to the
    complainant having "skipped bail" and to a warrant having
    issued for the complainant's arrest appears to reflect a view on Mr
    Smith's part that the complainant had been arrested, charged and bailed
    in respect of that matter.
  • Tattoos on the
    complainant's arms said to be "indicative of involvement in gang
    or organised criminal groups". In my Further Preliminary Findings,
    I stated that it appeared that Mr Smith's comments regarding this matter
    were at best unsubstantiated supposition and at worst involved the attribution
    to the complainant of unfavourable characteristics based on racial stereotypes.
    The respondent initially objected to that finding (see the respondent's
    letter of 27 November 2001). I therefore invited the respondent, in
    the Section 21 Notice, to specify the information that was known to
    Mr Smith at the time of preparing his Minute of 30 July 1999 that indicated
    that the complainant's tattoos were "indicative of involvement
    in gang or organised criminal groups". The respondent replied by
    stating that there was no "additional information" that supported
    Mr Smith's conclusion. I would go further. There was no information
    at all that supported such a conclusion. In those circumstances, I am
    left to wonder whether Mr Smith was suggesting that all persons who
    have such tattoos are likely to be involved in gangs or organised criminal
    groups or whether Mr Smith was also attributing to the complainant certain
    characteristics Mr Smith perceived to be associated with the complainant's
    race or ethnicity. Regardless of Mr Smith's personal views regarding
    those issues, such comments should not have been made and certainly
    should have no part to play in a decision making process that stands
    to drastically affect the complainant's liberty and conditions of detention.

The respondent has
suggested that there was, in addition to the two matters cited by Mr Smith,
other material to which Mr Smith and Mr Williams could have had regard
in relation to this ground for transfer, particularly the complainant's
own statements to the effect that he had a violent criminal history. This
appears to be a reference to the matters recorded in the "Follow
up incident report" of 30 July 1999 prepared by Mr Hart (reproduced
in section 5.1.1 above) in which it was stated:

"Detainee HA
has volunteered to the guarding officer:

  • That he has previously
    been in gaol in Vietnam for the killing of a Police Officer. He stated
    that he was only 10 years old and a member of a gang at the time.
  • That he has been
    in gaol in NSW on four occasions for shop lifting, stabbing a person,
    breach of bail and breach of Community Service Order."

It appears, from
a handwritten annotation at the foot of Mr Smith's memorandum, that Mr
Hart's report was received after Mr Smith's memorandum had been prepared
and submitted to Mr Williams. It further appears from that annotation
that Mr Williams had regard to Mr Hart's report. It is regrettable that
Mr Williams did not explain the manner in which Mr Hart's report was taken
into account (remembering that MSI 244 stresses the need for full documentation
[50]).

I have some sympathy
with DIMIA's approach to the information provided by the NCA and (to the
extent that it was relied upon by Mr Williams) the complainant. However,
this case illustrates the dangers of relying upon such information. As
noted above, on or shortly after 30 August 1999, the Department received
material from the NSW Police Service's COPS System and a copy of Mr Ha's
criminal record. It seems clear from that material that Mr Ha had not
in fact been charged in connection with any armed robbery and had not
been in gaol in connection with any stabbing incident. As noted above,
Mr Ha's record was confined to property offences.

Law enforcement officers
are not infallible and their suspicions or beliefs may, as proved to be
the case in this matter, be inaccurate. It is, in my view, therefore important
to test such assertions prior to acting upon them.

Similar observations
could be made regarding the complainant's own statements, at least one
of which (regarding the stabbing) proved to be inaccurate. It seems to
me imperative that the respondent not accept and/or act upon such assertions
at face value, but rather test them (wherever possible).

Even if I were to
accept that it was reasonable for the respondent to rely in part upon
the unsubstantiated information described above for the purposes of the
initial transfer decision, any such reliance would, in my view, have been
entirely unreasonable following the time the respondent received the COPS
System information and the complainant's criminal record (which, as noted
above, was on or shortly after 30 August 1999). Yet, no mention of the
discrepancies between that information and the information underlying
the original transfer decision was made in Mr Smith's minutes regarding
reviews of the complainant's place of detention of 20 September 1999,
4 November 1999 and 7 December 1999. Again, in light of the importance
MSI 244 places upon full documentation to ensure accountability and transparency,
it seems to me that the review minutes should have reflected a careful
consideration of that issue. That is particularly so when DIMIA was or
should have been aware, from the complainant's various letters to the
Commission of August 1999 and October 1999 [51], that
the complainant disputed the matters relied upon for the purposes of the
transfer decision.

15.4 Detainee
with a history of sexual offences or drug offences

As I have noted above,
there is some discrepancy in the documentation as to whether the complainant
was actually arrested by the WA Police Service for possession of heroin
or on an "immigration warrant" or "holding order".

Regardless of that
discrepancy, MSI 244 confines this ground for transfer to situations where:

  • the detainee in
    question has a history of drug offences; or
  • there is a reasonable
    suspicion that the detainee in question has had involvement with (ie
    taking or supplying) prohibited drugs at an Immigration Detention Centre.

In my view, the use
of the word "offence" in the first limb of this ground for transfer
requires that the detainee in question have been convicted - charges without
convictions or suspicions that the detainee may have committed offences
are insufficient. This seems to me to follow from the distinction apparently
intended to be drawn with wording of the second limb (which applies more
broadly to cases involving "reasonable suspicion" of use or
supply of drugs within an Immigration Detention Centre) [52].
There was nothing before Messrs Smith and Williams to indicate that the
complainant had been convicted of any drug related offences. Nor was there
anything to indicate that he used or supplied drugs in the Perth IDC.

Even if the complainant's
prior drug use was a matter caught under this ground for transfer, the
key matter to be considered is whether "there were reasonable grounds
to believe that a detainee poses a risk to the other detainees at the
IDC" [53].

As discussed in my
Further Preliminary Findings, the only consideration of that issue appears
to have been undertaken by Mr Hart in his Incident Follow Up Report of
29 July 1999. That document merely stated that the complainant's:

"criminal
and drug exposure also presents as a bad influence on other detainees
in the PIDC minimum security environment".

I stated in my Further
Preliminary Findings that that does not appear to me to evidence a proper
approach to the question MSI 244 directs one to consider in relation to
this issue. A proper approach to that question might have involved seeking
appropriate medical and psychological evidence and then considering, on
the basis of that material, whether the complainant's former use of heroin
was an issue that could be managed in the Perth IDC without causing risk
to his fellow detainees. The Department has not sought to address that
fundamental concern in its response, of 27 November 2001, to my Further
Preliminary Findings.

I would further note
that it appears that the complainant was either able to cease using drugs
or that his drug problem was managed in the Prison. No further consideration
appears to have been given to that issue during the reviews of the complainant's
place of detention.

Finally, I should
note for completeness that DIMIA appears to have received information
on or about 30 July 1999, from a Mr Steve Perejmibida. DIMIA believe (but
appear to be unable to confirm) that Mr Perejmibida was a member of an
unspecified police force. Mr Perejmibida apparently alleged that the complainant
admitted to having acted as a drug courier and claimed to have knowledge
of a forthcoming heroin shipment. The respondent has not sought to rely
upon that material in its submissions. In my view that was the appropriate
course. There is nothing to indicate that any DIMIA officer considered
that material for the purposes of the transfer decision or the reviews
of the complainant's place of detention. In addition, that material does
not appear to me to be relevant to this ground for transfer for the reasons
I have outlined above. Even if it were, given the scanty material before
me regarding the provenance of that information and the circumstances
in which it was obtained, I would have grave reservations if that material
were relied upon for the purposes of the transfer decision or the reviews
of the complainant's place of detention.

15.5 Escape (attempted
or successful)

As I noted in my
Further Preliminary Findings, this head of MSI 244 does not appear to
cover mere threats of escape - it is confined, as the heading suggests,
to instances of actual or attempted escape. I further note that, even
in the circumstances of an actual escape from an Immigration Detention
Centre, MSI 244 appears to contemplate that "a strong warning may
be a preferable option to reconsidering the place of detention" [54].

I have outlined above
why it is my view that the respondent is incorrect in contending that
one enlarges the specific grounds for transfer in section 4 using the
overview set out in paragraph 2.1 (which refers, seemingly more broadly,
to the "risk of absconding from lawful custody").

As noted in my Further
Preliminary Findings, the matters to which Mr Smith drew attention under
this head were:

  • An allegation
    that the complainant had stated that he intended to escape. The complainant
    was said to have made that statement to another detainee, who in turn
    conveyed that statement to an ACM representative, which ultimately resulted
    in the information being conveyed to Mr Smith. There are obvious and
    well recognised dangers in relying upon uncorroborated information in
    situations involving "informers" [55]. That
    danger is exacerbated in cases where the information passes through
    a number of hands before making its way to the decision maker. In those
    circumstances it was reasonable to expect Messrs Smith and Williams
    to investigate this allegation more closely and with some degree of
    scepticism. Instead, that allegation appears to have been accepted at
    face value.
  • The unsubstantiated
    allegation that the complainant had breached a condition of bail. There
    is no material that indicates that the complainant breached a bail condition.
    I have found, in paragraph 12.2.9 above, that the complainant was, at
    the time of his apprehension, the subject of warrants issued under the
    former section 80AA of the Justices Act 1902. Those warrants
    were issued after the complainant was convicted in his absence. However,
    I have further found that this was not known to the respondent until
    on or shortly after 30 August 1999. Moreover, the matters which appear
    to have led to the issuing of those warrants do not in any way relate
    to escape from lawful custody. As such, it seems to me that they are
    quite different in nature to the matters which are the subject of paragraph
    4.8 of MSI 244.
  • The unsubstantiated
    allegation that the complainant had been involved in crimes of violence.
    As I have noted above, this allegation proved to be inaccurate.
  • The fact that
    the complainant was frank with ACM personnel regarding his drug dependency.Again,
    I have serious concerns about reliance upon that material for the purposes
    of the decision to transfer the complainant to the Prison.

15.6 Other material
relied upon by the respondent

Despite the very
clear terms of Mr Smith's memorandum (which, as noted above, sought to
link the matters relied upon to the specific grounds of transfer set out
in section 4 of MSI 244) the respondent appeared to assert that there
were, in addition, other matters which were "likely" to have
influenced the decision to transfer the complainant.

I sought to clarify
that assertion in the Section 21 Notice. It appears, from the extract
of the respondent's answer to that notice which appears in section 11
above, that the most significant "additional" matter was the
information conveyed to Ms Rhonda Dandie (an officer of DIMIA) by an officer
of the WA Police Service. That information (which was based on observations
of the complainant's tattoos) indicated that the complainant's true identity
was Mr Ha, rather than Mr Pham Quoc Hung (as the complainant had claimed).
The respondent describes the relevance of that information as follows:

"This information
amounted to a preliminary confirmation of Mr Ha's true identity by way
of his distinguishing features. This confirmation supported claims made
by the West Australian police two days earlier that they believed the
detainee claiming to be Mr Pham was actually Mr Ha. The West Australian
police had further advised at that time that Mr Ha had an 'arrest sheet'
in NSW. On this basis, the advice received from the West Australian
Police on 30 July 1999, in conjunction with their earlier advice of
the 28 July 1999, influenced the decision to transfer Mr Ha, as it raised
the strong likelihood that he had a criminal record."

It seems to me that
reliance upon "preliminary confirmation" and "claims"
regarding the complainant's criminal record reflect an unsatisfactory
approach to a decision that is supposed to be weighted heavily against
transfer to a state prison. Moreover, the existence of a criminal record
is not a ground for transfer under MSI 244. Criminal convictions of a
particular nature are required to be considered under section 4.6 of MSI
244 (Detainee with a history of sexual offences or drug offences) and
the behaviour underlying particular convictions may be relevant under
section 4.4 (Detainee with a history of violence).

Indeed, reliance
upon the mere existence of a criminal record for the purposes of a transfer
decision may raise issues under article 26 of the ICCPR which provides:

"All persons
are equal before the law and are entitled without any discrimination
to the equal protection of the law. In this respect, the law shall prohibit
any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social
origin, property, birth or other status."

"Other status"
arguably includes discrimination on the ground of criminal record [56].

However, I need not
consider that potential additional breach of the ICCPR here as it is,
in my view, far from clear that the mere existence of the complainant's
criminal record was a matter taken into account by Mr Williams. Had it
been so, I would have expected to have found a written record indicating
that that was the case.

15.7 Compliance
with MSI 244 in the transfer decision

In light of my findings
above, it is my view that the transfer decision was tainted by supposition
and a superficial and inadequate approach to fact finding. It is also
my view that matters were taken into account that are outside the scope
of the grounds set out in the MSI. A more careful approach to the decision
making process and a more thorough investigation of the matters relied
upon as supporting that decision were required to satisfy the requirement
that transfer of a detainee to a prison be used as a last resort.

15.8 Reviews of
the complainant's place of detention

As I noted in my
Further Preliminary Findings, in the minutes recording the complainant's
Reviews of place of Detention of 6 August 1999 and 20 September 1999,
Mr Smith referred to the material before him at the time of the original
transfer. I have set out above my findings on the inadequacy of that material.

In the minutes of
4 November 1999 and 7 December 1999, Mr Smith further relied upon the
fact that the complainant had criticised DIMIA for not securing the complainant's
removal from Australia in a timely fashion as indicating a propensity
to escape. It is not at all evident to me why that conclusion follows
from such statements.

I note in addition
that, at the time of my Further Preliminary Findings, it was my understanding
that DIMIA had received no additional material relevant to the matters
referred to by Mr Smith in his Minute of 30 July 2001 and in his Minutes
regarding the reviews of the complainant's place of detention. It now
appears that DIMIA knew, from at least 30 August 1999 or shortly thereafter,
that the original transfer decision was based upon erroneous information
and assumptions. Yet those errors are not referred to in Mr Smith's Minutes
regarding the reviews of the complainant's place of detention. This, in
my view, prevents the respondent relying upon the authority of A v
Australia
[57], which might have otherwise supported
an argument that more intensive detention for a short period was reasonable
and necessary in all the circumstances while DIMIA further investigated
the matters discussed above. Regrettably, while ongoing investigations
did result in further information becoming known to DIMIA, no action appears
to have been taken on that material.

15.9 Findings
regarding article 9(1)

In all of the circumstances
described above, I find that the respondent's acts or practices in transferring
the complainant to the Prison and continuing to detain him there were
in breach of article 9(1) of the ICCPR. The complainant's detention lacked
predictability in that the respondent departed from the stated procedures
set out in MSI 244. For the same reasons, it might be characterised as
unjust and inappropriate. I therefore find that the complainant's detention
was "unreasonable in all the circumstances" in the sense used
in Van Alphen.

The respondent's
reliance upon inadequate material for the purposes of the transfer decision
also leads me to find that the decision to transfer the complainant was
"unnecessary in all the circumstances" in the sense used in
Van Alphen. Even if not initially evident to DIMIA officers, the
inadequate nature of that material should have become very clear after
the further information was received from the NSW Police Service which
indicated that the complainant did not have any convictions for violent
criminal activity.

16. Recommendations

16.1 Introduction

Section 29(2) of
the HREOC Act requires that, where I conclude that an act or practice
is inconsistent with or contrary to any human right, I should make findings
to that effect and recommendations for preventing a repetition of the
act or a continuation of the practice.

In March 2001, the
Commonwealth Ombudsman in his Report of an Own Motion Investigation into
Immigration Detainees held in State Correctional Facilities [58],
made a number of recommendations. I endorse those recommendations, some
of which are applicable to this inquiry and have been incorporated in
my recommendations below.

16.2 Recommendation
on financial compensation

The complainant did
not seek financial compensation and he is now uncontactable. Therefore
I make no recommendation as to financial compensation in this respect.
However, I leave this question open and will re-examine it if and when
the complainant is located. I consider that the complainant's treatment
requires reparation by way of financial compensation.

16.3 Other Recommendations

I recommend that:

(a) The respondent
undertake a review of the conditions of detention of all persons held
in immigration detention in state prisons to ensure that the respondent
is not breaching article 10(1) or the separate treatment limb of article
10(2)(a) of the ICCPR in other cases. Amongst other matters, that review
should address:

  • whether other
    immigration detainees held in state prisons are subject to conditions
    of the type encountered by the complainant at the Prison or to conditions
    that would otherwise breach articles 7 and/or 10(1) of the ICCPR;
  • whether immigration
    detainees held in state prisons are subject to separate treatment appropriate
    to their status as unconvicted persons (at a minimum the conditions
    of detention of those persons should comply with Part II, Section C
    of the Standard Minimum Rules);
  • the feedback
    mechanisms currently available to allow DIMIA decision makers to properly
    consider the conditions in a state prison for the purposes of transfer
    decisions and reviews of place of detention; and
  • the strategies
    that might be put in place to ensure that immigration detainees are
    not detained in state prisons in circumstances that involve a breach
    or breaches of articles 7, 10(1) and/or 10(2)(a) of the ICCPR (amongst
    other things, this might involve, in an appropriate case, transferring
    a detainee to an interstate prison).

It may be appropriate
for that inquiry to be referred to a third party such as the Commission
or the Commonwealth Ombudsman.

(b) If the inquiry
referred to in (a) above reveals further breaches of articles 7, 10(1)
or the separate treatment limb of article 10(2)(a) of the ICCPR, then
the respondent should take immediate steps to remedy those breaches and
ensure that they do not take place again.

(c) The respondent
ensure that Commonwealth decision makers consider whether it is possible
to achieve segregated detention in cases where immigration detainees are
to be held in state prisons.

(d) DIMIA establish
secure detention facilities within Immigration Detention Centres for the
purpose of holding immigration detainees whose behaviour is not able to
be effectively managed in a lower security environment of mainstream immigration
detention centres.

(e) DIMIA, in conjunction
with ACM, develop and implement strategies for effectively dealing with
detainees with drug dependency issues. Such strategies should include
training for ACM and Departmental officers in:

  • identifying detainees
    with drug dependency issues; and
  • obtaining appropriate
    medical assessment and treatment for such detainees so as to manage,
    to the greatest extent possible, any such issues within Immigration
    Detention Centres rather than state prisons.

(f) DIMIA liaise
with state and federal police services to discuss means of ensuring the
accuracy of information exchanged between DIMIA and those services regarding
particular detainees and of ensuring that such information is made available
as expeditiously as is possible.

(g) In training of
Departmental and ACM officers in relation to the provisions of MSI 244,
DIMIA ensure that all officers are aware of their obligations to:

  • fully document
    transfer decisions so as to ensure that the transfer process is transparent
    and accountable (paragraph 3.4 of MSI 244); and
  • ensure that transfer
    decisions are made pursuant to the grounds set out in section 4 of MSI
    244.

This is not an examination
of an enactment under section 11(1)(e) of the HREOC Act. However, I should
add that it is my view that the facts of this case seem to me to require
that the Migration Act 1958 (Cth) be amended so as to provide that detainees
can only be transferred from Immigration Detention Centres to State prisons
if they are either charged with or convicted of a criminal offence that
would result in remand in custody or the serving of a criminal sentence.

Until such legislative
reform takes place, I would recommend that MSI 244 be amended so as to
insert a similar restriction (ie so as to provide that detainees can only
be transferred from Immigration Detention Centres to State prisons if
they are either charged with or convicted of a criminal offence that would
result in remand in custody or the serving of a criminal sentence).

That recommendation
was made by the Commission, in relation to the then applicable Migration
Series Instruction, in Those Who've Come Across the Seas [59].Dated
at Sydney this day of March 2002

Professor Alice
Erh-Soon Tay
President

Notice pursuant
to section 29(2) of the Human Rights and Equal Opportunity Commission
Act

APPENDIX A

"The Commission's
Jurisdiction"
FUNCTIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN RELATION
TO HUMAN RIGHTS

The Commission has
specific legislative functions and responsibilities for the protection
and promotion of human rights under the HREOC Act. Part II Divisions 2
and 3 of the HREOC Act confer functions on the Commission in relation
to human rights. In particular, s.11(1)(f) of the HREOC Act empowers the
Commission to inquire into acts or practices of the Commonwealth that
may be inconsistent with or contrary to the rights set out in the human
rights instruments scheduled to or declared under the HREOC Act.

Section 11(1)(f)
of the HREOC Act states:

(1) The functions
of the Commission are:

(f) to inquire
into any act or practice that may be inconsistent with or contrary to
any human right, and:

(i) where the
Commission considers it appropriate to do so-to endeavour, by conciliation,
to effect a settlement of the matters that gave rise to the inquiry;
and
(ii) where the Commission is of the opinion that the act or practice
is inconsistent with or contrary to any human right, and the Commission
has not considered it appropriate to endeavour to effect a settlement
of the matters that gave rise to the inquiry or has endeavoured without
success to effect such a settlement-to report to the Minister in relation
to the inquiry.

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 Commission performs
the functions referred to in s.11(1)(f) of the HREOC Act upon the Attorney
General's request, when a complaint is made in writing or when the Commission
regards it desirable to do so (s.20(1) of the HREOC Act).

In addition, the
Commission is obliged to perform all of its functions in accordance with
the principles set out in s.l0A of the HREOC Act, namely with regard for
the indivisibility and universality of human rights and the principle
that every person is free and equal in dignity and rights.

The Commission attempts
to resolve complaints under the provisions of the HREOC Act through the
process of conciliation. Where conciliation is not successful or not appropriate
and the Commission is of the opinion that an act or practice constitutes
a breach of human rights, the Commission shall not furnish a report to
the Attorney General until it has given the respondent to the complaint
an opportunity to make written or oral submissions in relation to the
complaint (s.27 of the HREOC Act).

If, after the inquiry,
the Commission finds a breach of human rights, it must serve a notice
on the person doing the act or engaging in the practice setting out the
findings and the reasons for those findings (s.29(2)(a) of the HREOC Act).
The Commission may make recommendations for preventing a repetition of
the act or a continuation of the practice, the payment of compensation
or any other action to remedy or reduce the loss or damage suffered as
a result of the breach of a person's human rights (s. 29(2)(b) and (c)
of the HREOC Act).

If the Commission
finds a breach of human rights and it furnishes a report on the matter
to the Attorney General, the Commission is to include in the report particulars
of any recommendations made in the notice (s.29(2)(d)) of the HREOC Act)
and details of any actions that the person is taking as a result of the
findings and recommendations of the Commission (s.29(2)(e) of the HREOC
Act). The Attorney General must table the report in both Houses of Federal
Parliament within 15 sitting days in accordance with s.46 of the HREOC
Act.

It should be noted
that the Commission has a discretion to cease inquiry into an act or practice
in certain circumstances (s.20(2) of the HREOC Act), including where the
subject matter of the complaint has already been adequately dealt with
by the Commission (s.20(2)(c)(v) of the HREOC Act).

Notice pursuant to section 29(2) of the Human Rights and Equal Opportunity
Commission Act 1986 (Cth)

APPENDIX B

"Commissioner
Sidoti's Preliminary Findings"

Our Ref: 208966FC

Mr W J Farmer
Secretary
Department of Immigration and Multicultural Affairs
PO Box 25
BELCONNEN ACT 2616

Dear Mr Farmer
Complaint by Mr Ha Doc Anh

I refer to the complaint
by Mr Ha Duc Anh under the Human Rights and Equal Opportunity Commission
Act 1986 (the Act) against the Commonwealth of Australia, Department of
Immigration and Multicultural Affairs (DIMA).

The complaint concerns
the DIMA's decision to detain Mr Ha in a State prison from 30 July 1999
until around the time of this removal from Australia on 15 December 1999.
Mr Ha alleges that the Department breached his human rights by continuing
to detain him in a maximum security prison with criminal offenders, and
where he was subject to lock-downs in his cell for of up to 22 hours a
day.

Having considered
the material obtained in my inquiry and the relevant provisions of the
Act, I have made the preliminary finding that DIMA's actions in detaining
Mr Ha at Casuarina Prison from 20 July 1999 until around 15 December 1999
constitute a breach of human rights as defined in the Act.

Attached to this
letter is a report of the inquiry into this complaint under the Act. This
report outlines the evidence gathered through the inquiry, my preliminary
findings and the reasons for those findings.

In relation to Mr
Ha's claim that he was initially denied legal assistance to challenge
his detention and denied an application form to apply for a bridging visa,
I accept DIMA's advice that it provided Mr Ha with a visa application
form and facilitated his access to a legal representative. As Mr Ha has
provided no further evidence concerning this aspect of his complaint,
there is insufficient information before me to determine if there was
a delay and, if so, whether it was unreasonable. Therefore, I am of the
opinion that this aspect of Mr Ha's complaint is lacking in substance.
Pursuant to section 20(2)(c)(ii) of the Act I have discontinued my inquiry
into this aspect of his complaint.

Process to be
followed

The following process
will now be followed in relation to this complaint.

1 You will be contacted
within 28 days of the date of this letter by the Director of Legal Services
at the Commission and offered the opportunity to make oral or written
submissions to the Commission in relation to the acts which are the subject
of this complaint.

If you would like
to make oral submissions, arrangements will be made for a suitable time
and venue for that, taking into account your availability.

2 After considering
any submissions you may wish to make, I will make a finding as to whether
the acts constitute a breach of human rights under the Act.

3 If I find that
the acts constitute a breach of human rights, I will issue and serve on
you a notice to that effect which sets out the reasons for my finding.
The notice may also include recommendations for

a) preventing a
repetition of the acts
b) the payment of compensation for loss or damage suffered as a result
of the acts and
c) any other action to remedy or reduce any loss or damage suffered.

I will request your
advice within 28 days of service of the notice on you of what action you
have taken in accordance with my findings and recommendations or what
action you propose to take and when.

4 If I find that
the acts constitute a breach of human rights, I will report to the Attorney
General on the acts and practices after serving a notice on the parties
as set out above.

My report will include

a) details of my
inquiry into the acts
b) my findings and reasons for those findings
c) any recommendations included in the notice and
d) details of any action the person responsible for the acts is taking
or proposes to take as a result of my findings or recommendations.

That report will
be served on the parties.

Once the Attorney
General receives my report, the Attorney General is required under the
Act to table it before each House of Parliament.

5 If I do not find
that the acts either occurred or constitute a breach of human rights,
I will prepare a report of my findings and my reasons and forward it to
the parties but not to the Attorney General. As the report is not provided
to the Attorney General it is not tabled before Parliament. No notice
is issued if I do not find that the acts either occurred or constitute
a breach of human rights.

Future contact

The Director of Legal
Services or a Legal Officer at the Commission will be in touch with you
within 28 days of the date of this letter. You are requested to mark all
future correspondence in relation to this matter with the file reference
number that appears at the top of this letter and address it to:
Director of Legal Services
Human Rights and Equal Opportunity Commission
GPO Box 5218
SYDNEY NSW 1042
Yours sincerely

Chris Sidoti
Human Rights Commissioner
Date: 11 July 2000
Report of unconciliable complaint under the Human Rights and Equal
Opportunity Act 1986 (Cth)
Complaint by Mr Ha Duc Anh against the Commonwealth of Australia, Department
of Immigration and Multicultural Affairs
Parties:
Complainant: Mr Ha Duc Anh

Respondent: Commonwealth
of Australia
Department of Immigration and Multicultural Affairs
Mr WJ Farmer
Secretary
PO Box 25
BELCONNEN ACT 2616

Contents

1
Outline of the complaint
2 Outline of the response
3 Outline of other information
4 Relevant law
5 Preliminary findings
6 Index to inquiry documentation

Attachment 1 - Relevant
sections of Act

1 Outline of the complaint

Mr Ha Duc Anh lodged
his complaint on 17 August 1999. At the time he was an immigration detainee
being held at Casuarina Prison in Western Australia. He alleges the Department
of Immigration and Multicultural Affairs (DIMA) breached his human rights
by continuing to detain him in a maximum security prison with criminal
offenders, and where he was subject to lock-downs in his cell for of up
to 22 hours a day.

Mr Ha stated that
he was a Vietnamese student who had been in Australia for over three years
on a student visa. He stated that he was also known as Mr Pham Quoc Hung.
His student visa was cancelled in January 1999 after he breached a condition
of his visa for failing to attend university for two months. He claimed
he was taken into immigration detention on 27 July 1999 and initially
held at Perth Immigration Detention Centre (Perth IDC). On 30 July 1999
he was transferred to Casuarina Prison in Western Australia. He claimed
that his detention at a maximum security prison with criminal offenders
was unfair and that he had not been charged with any criminal offence.
He also claimed that he had been subject to a general lock-down of prisoners
which was implemented earlier in the year. As a result, he alleged he
had been locked up in his cell for nearly 22 hours per day.

Mr Ha alleged that
he was initially denied legal assistance to challenge his detention and
denied an application form to apply for a bridging visa. He alleged that
his requests to be transferred back to Perth IDC or to Villawood IDC had
been unreasonably refused. He disputed the various reasons given by DIMA
officers for his detention at Casuarina Prison, including DIMA's claims
that he was a criminal offender, that he had been charged with armed robbery
and that he had been imprisoned for stabbing a person. He claimed that
he had only been convicted of shoplifting.

In his letter of
9 October 1999 Mr Ha alleged he had been in Casuarina Prison for three
months and locked up in a "tiny cell" for 22 hours per day.
He alleged that DIMA was continuing to refuse to transfer him to an IDC
or deport him.

2 Outline of the
response

DIMA provided a preliminary
response to the complaint on 10 November 1999. DIMA stated that Mr Ha
was transferred to Casuarina Prison "because of his criminal background,
history of violence, drug use and threats of escape". It stated that
the decision to transfer Mr Ha to Casuarina Prison was made by the WA
Ministry of Justice and was based on "accommodation availability".
DIMA stated that Mr Ha had not been charged or convicted of any offence
since being taken into immigration detention. It stated that he was not
being held separate from other convicted prisoners. DIMA claimed that
Mr Ha's removal from Australia to Vietnam had been delayed while the DIMA
tried to obtain travel documents.

DIMA claimed that
on 18 August 1999 Mr Ha applied for a bridging visa and was unsuccessful.
It claimed that on 24 August 1999 he appealed the decision to the Migration
Refugee Tribunal with the assistance of a firm of solicitors and was unsuccessful.
It stated that his application was denied because of operational issues
including capacity issues at the facility and concerns about Mr Ha's security
profile. It stated that he was eligible to make a further application
for a bridging visa.

DIMA provided a further
response on 9 March 2000. DIMA provided copies of reports by immigration
officers documenting the reasons Mr Ha was transferred from Perth IDC
to Casuarina Prison. According to a report dated 30 July 2000 by the Business
Manager (Detention), there were three reasons. First, Mr Ha had been interviewed
at Perth IDC by the National Crime Authority (NCA) in relation to NCA's
belief that he may have been involved in an armed robbery in New South
Wales and had "skipped bail". It understood there was a warrant
for his arrest. Second, it claimed Mr Ha had stated to immigration officers
that he had been in prison in New South Wales and had withdrawn from heroin
during that prison term. It claimed he had made repeated demands for methadone
treatment while at Perth IDC. It believed that he had propensity to make
himself ill in order to be placed in less secure facilities, such as a
hospital, and then escape. Third, it claimed Mr Ha had told another detainee
at Perth IDC that he intended to escape.

DIMA stated that
it was aware at the time Mr Ha was transferred to Casuarina Prison that
he would not be separated from convicted criminals. It stated that DIMA
was also aware that Casuarina Prison was subject to a general lock-down
which could result in Mr Ha being locked in his cell for up to 22 hours
a day. It claimed that the WA Ministry of Justice had advised DIMA that
facilities for males in the Perth metropolitan area were over capacity
and unable to accept Mr Ha.

DIMA stated that
Mr Ha's continuing detention at Casuarina Prison was reviewed periodically
and provided copies of the reports of the reviews. The review reports
were dated 6 August 1999, 20 September 1999, 4 November 1999 and 7 December
1999. The reports noted Mr Ha denied he had admitted criminal behaviour,
denied he had been previously incarcerated in Australia and had claimed
that he had not made any escape attempts from Perth IDC. The reports concluded
that Mr Ha continued to be a security risk and recommended against his
transfer to an IDC.

DIMA stated that
it retained "ultimate responsibility" for an immigration detainee
in a State prison. However it claimed that the day-to day management and
duty of care of a detainee was a matter for the relevant state prison
authority and institution in which he or she was held.

DIMA enclosed a copy
of Mr Ha's written request to be transferred to Villawood IDC in Sydney
and stated that he also made verbal requests to be transferred to the
Perth IDC. It stated that his requests were rejected primarily because
of its assessment that Mr Ha was a security risk, given his "high-risk
escape assessment, acknowledged criminal background and history of drug
use".

DIMA stated that
Mr Ha made a verbal request for legal assistance while in Casuarina Prison.
It claimed that, in accordance with section 256 of the Migration Act 1958
and its procedures, it informed Mr Ha that DIMA neither provided nor recommended
legal representation and that the detainee may individually engage legal
representation of his or her choice. It claimed that "access was
facilitated" for Mr Ha within the prison. It claimed that Mr Ha requested
a bridging visa application and this was provided.

DIMA advised that
Mr Ha was removed from Australia on 15 December 1999.

3 Outline of other
information

The lock-down at
Casuarina Prison was the subject of an assessment by the WA State Ombudsman.
According to an extract of the Ombudsman's 1999 Annual Report, the lock-down
regime was imposed shortly after a riot at the prison in December 1998.
The riot resulted in the injury of a number of prison officers and prisoners
and serious damage to prison buildings. According to the report the lock-down
regime initially required prisoners to spend up to 23 hours a day in their
cells. By the middle of 1999 it was amended to 21 hours a day. When allowed
out of their cells prisoners only had access to the confined common area
immediately outside their cells. They were not permitted in the recreation
area except to use the telephone. Some were permitted to leave their units
for part of the day for work
or education.

The Ombudsman expressed
a number of concerns about the lock-down regime. These concerns included
that the regime applied to all prisoners whether or not they were involved
in the riot. It also applied to those who had subsequently commenced detention.
He was of the view that the continuing regime was "unduly punitive"
and recommended the immediate abandonment of the lock-down regime.

4 Relevant law

Under the Human
Rights and Equal Opportunity Commission Act 1986
(the Act) the Commission
is empowered to inquire into complaints of alleged breaches of human rights
involving an act or practice of the Commonwealth. "Human rights"
include the rights set out in the International Covenant on Civil and
Political Rights
(ICCPR) which is scheduled to the HREOC Act.

In particular, ICCPR
article 7 provides that

No one shall be
subject to torture or to cruel, inhuman or degrading treatment or punishment.

ICCPR article 10
provides

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

2(a) Accused persons
shall, save in exceptional circumstances, be segregated from convicted
persons and shall be subject to separate treatment appropriate to their
status as unconvicted persons;….

5 Preliminary
findings

1 I make the following
preliminary findings of fact

i From 27 July
1999 to 15 December 1999 Mr Ha was detained under the provisions of
the Migration Act 1958.
ii During this period DIMA retained ultimate responsibility for the
conditions under which Mr Ha was detained. In particular, DIMA was responsible
for providing humane conditions of detention appropriate to Mr Ha's
unconvicted status.
iii On 30 July 1999 at DIMA's instigation Mr Ha was transferred to Casuarina
Prison, a state prison operated by the WA Ministry for Justice.
iv Mr Ha remained in Casuarina Prison until around the time of his removal
from Australia on 15 December 1999.
v The decision to detain Mr Ha was periodically reviewed by the DIMA.

2 I make the preliminary
finding that at the time he was transferred to Casuarina Prison, DIMA
was aware Mr Ha would not be segregated from convicted prisoners and may
be subject to a general lock-down of prisoners for up to 22 hours a day.
While held in immigration detention, Mr Ha had not been charged or convicted
of any offence.

3 Mr Ha has claimed
that, up until at least 9 October 1999, he was subject to being locked
in his cell for up to 22 hours a day. In the absence of any contradictory
evidence I accept his claim.

4 Mr Ha has claimed
that he was held with convicted prisoners. DIMA agrees with this claim.

5 ICCPR article 10.2(a)
requires that, except in "exceptional circumstances", an unconvicted
person be segregated from convicted persons. Article 10.2(a) also requires
that an unconvicted person be subject to "separate treatment appropriate
to their status" as an unconvicted person. I am of the preliminary
view that in Mr Ha's case, there were not "exceptional circumstances"
which left DIMA with no alternative but to detain him at Casuarina Prison.
I am of the view that DIMA has not established that there were no other
detention facilities in Australia in which Mr Ha could be detained and
kept segregated from convicted prisoners. Therefore, I am of the preliminary
view that DIMA's action in detaining Mr Ha with convicted prisoners breached
his human rights under article 10.2(a).

6 I am also of the
view that the conditions under which Mr Ha was detained, including being
held a maximum security prison where he was subject to a highly restrictive
regime of being locked up in a cell for up to 22 hours a day, was inappropriate
for his status as an unconvicted prisoner. Therefore, I am of the preliminary
view that the detention conditions imposed by DIMA also breached Mr Ha's
human rights under article 10.2(a).

7 I am also of the
view that being subject to these conditions for such a prolonged period
was inhumane treatment for any detainee, convicted or unconvicted. Therefore,
I am of the preliminary view that the detention conditions imposed by
DIMA also breached Mr Ha's human rights under article 10.1.

8 Overall, I am of
the preliminary view that DIMA's actions in detaining Mr Ha at Casuarina
Prison from 20 July 1999 until around 15 December 1999 were inconsistent
with and contrary to his human rights under ICCPR article 10.

Chris Sidoti
Human Rights Commissioner
Date: 11 July 2000

6 Index to Inquiry
Documentation

Date Description

7.8.99 Letter from
Mr Ha to Commission

Aug 99 Undated letter
from Mr Ha to Commission(received 18 August 1999)

Oct 99 Undated letter
from Mr Ha to the Commission

9.10.99 Letter from
Mr Ha to the Commission

11.10.99 Letter from
Mr Ha to the Commission

18.10.99 Letter from
Commission to DIMA seeking preliminary information

10.11.99 Letter from
DIMA to Commission

21.12.99 Letter from
Human Rights Commissioner to DIMA seeking response to complaint

9.3.99 Letter from
DIMA to Commission responding to complaint and attaching copies of the
following documents

Minute dated 30 July
1999 from Mr Nigel Smith

Notice of Transfer
to Person in Immigration Detention dated 30 July 1999

Minute dated 6 August
from Mr Nigel Smith

Minute dated 20 September
1999 from Mr Nigel Smith

Minute dated 4 November
1999 from Mr Nigel Smith

Minute dated 7 December
1999 from Mr Nigel Smith

ACM Incident Report
dated 28 July 1999 by Ms Shirley Ann Walker

ACM Incident Report
dated 29 July 1999 by Mr Wayne Hart

ACM Incident Report
dated 30 July 1999 by Mr Wayne Hart

ACM Incident Report
dated 2 August 1999 by Mr Wayne Hart

MSI-244: Transfer
of Detainees to State Prisons

ACM Detainee Request
form (undated) by Mr Pham Quoc Hung

ACM Detainee Request
form (undated) by Mr Pham Quoc Hung

Application for bridging
class visa E dated 18 August 1999 by Mr Pham Quoc Hung

Letter dated 19 August
1999 from DIMA to Mr Ha

Record of Decision
on an Application for Bridging Visa E dated 20 August 1999

Notice pursuant to
section 29(2) of the Human Rights and Equal Opportunity Commission Act
1986 (Cth)

APPENDIX C

"My Further
Preliminary Findings"
FURTHER PRELIMINARY FINDINGS ON COMPLAINT UNDER THE HUMAN RIGHTS AND
EQUAL OPPORTUNITY COMMISSION ACT 1986
(Cth)

COMPLAINT BY MR
HA DUC ANH AGAINST THE COMMONWEALTH OF AUSTRALIA, DEPARTMENT OF IMMIGRATION
AND MULTICULTURAL AFFAIRS

1 Background

1.1 These preliminary
findings are in addition to the earlier preliminary findings of Commissioner
Sidoti of 11 July 2000 (the "First Preliminary Notice").

1.2 The First Preliminary
Notice related to the events that followed the complainant's apprehension,
by officers of the Department of Immigration and Multicultural Affairs
("DIMA"), in Perth on 27 July 1999. Once apprehended, the complainant
was first taken to the Perth Immigration Detention Centre (the "Perth
IDC"). On 30 July 1999, the complainant was transferred from the
Perth IDC to Casuarina Prison (the "Prison").

1.3 Since the First
Preliminary Notice was issued, further submissions and material have been
received from the respondent (the complainant having been deported in
December 1999). That has included material provided by the respondent
in response to an invitation by the Commission to address the Commission
on the effect of the reservation to article 10(2)(a) of the International
Covenant on Civil and Political Rights (being a matter not considered
by Commissioner Sidoti). The consideration of that material has necessarily
extended the inquiry process longer than originally anticipated.

1.4 In the course
of considering that material and the material before Commissioner Sidoti,
I formed the preliminary view that the respondent had, in addition to
the breaches of human rights found by Commissioner Sidoti, breached article
9(1) of the ICCPR. In the interests of fairness to the respondent, I have
set out below my preliminary findings on that issue.

2 Further Findings
of Fact

2.1 Findings of
Commissioner Sidoti

2.1.1 In the First
Preliminary Notice, Commissioner Sidoti made various preliminary findings
of fact, including:

"On 30 July
1999 at DIMA's instigation Mr Ha was transferred to Casuarina Prison,
a state prison operated by the WA Ministry for Justice ….
….The decision to detain Mr Ha was periodically reviewed by the
DIMA…
….While held in immigration detention, Mr Ha had not been charged
or convicted of any offence. "

2.1.2 I have set
out below additional preliminary findings of fact regarding that sequence
of events. Those findings are based largely on documentary material provided
by the respondent to the Commission.

2.2 Incident Reports
prepared by Australasian Correctional Management ("ACM")

2.2.1 During the
period 28 July 1999 to 30 July 1999, ACM staff at the Perth IDC prepared
an "Incident Report" and "Incident Follow Up Reports"
in respect of the complainant.

2.2.2 On 28 July
1999, Ms Shirley Ann Walker, an ACM employee employed as Acting Supervisor
at the Perth IDC, prepared a document entitled "Incident Report".
That document was addressed to "ACM-EGM Operations", "General
Manager, Detention Services", "Director Detention Section (DIMA)"
and "DIMA Business Manager Perth". In that document, Ms Walker
stated:

"Background

Detainee HA Duc Anh alias PHAM Quoc Hung P009650 a Vietnamese National,
who is an alleged drug user. The detainee was received on the 27 July,
1999 at Perth I.D.C.

Narrative:
On Wednesday 28th July, 1999, Michael Cain, the Compliance Manager
requested if the detainee HA Duc Anh alias PHAM Quoc Hung had any tattoos
on his body. Michael Cain stated this information was vital as the detainee
Ha's description has fitted a N.S.W police crime suspect who was involved
in drug activity. I informed Michael Cain that detainee Ha has two large
tattoos on either arm. Both tattoos are of large Asian dragons with
skull heads.

Once the detainee's
identification and previous criminal activity is established, it will
be necessary to determine this detainee's suitability to remain within
the minimum-security of the global village of the P.I.D.C. "

2.2.3 On 29 July
1999, Mr Wayne Hart, an ACM employee employed as Centre Manager at the
Perth IDC, prepared a document entitled "Incident Follow-Up Report".
In that report, which was addressed to "ACM-EGM Operations",
Mr Hart stated:

"Background:

Detainee HA Duc Anh alias PHAM Quoc Hung (P000650), is a reported
Vietnamese national received at the PIDC on 27 July 1999. DIMA Compliance
have advised that the detainee description fits that of a NSW crime
suspect involved in drug activity. The detainee has been observed to
have two large tattoos on each arm depicting large Asian dragons with
skull beads.

Narrative:
The detainee is now a confirmed heroin user and is receiving medication
for withdrawal symptoms.
During his interview with medical staff he continually questioned on
whether he would be treated in a hospital if he became ill. Staff felt
that he was looking for an avenue of escape from detention. The detainee
also stated that he had been in the NSW prison system where he had last
come off heroin. HA then requested to be placed on methadone treatment
like his fellow prisoner mate
in NSW.

Detainee HA also
stated that he was willing to pay his own airfare to NSW and then on to
Vietnam. He said that he needed for his friends to sell his house and
car in Sydney

Summary and Recommendation:

  • Detainee HA is
    a past and present heroin user.
  • He has had criminal
    exposure.
  • He has admitted
    at least one term of imprisonment in NSW.
  • His tattoos suggest
    possible drug underworld connections and
  • He is a possible
    suspect in NSW drug activity.
  • Detainee HA's
    demeanor suggests that he is a high risk of escape and has been placed
    on 30 minute security observations.

Given the information
above, detainee HA is assessed as presenting a high risk of escape and
a risk to the good order and management of the Perth Immigration Detention
Centre. His criminal and drug exposure also presents as a bad influence
on other detainees in the PIDC minimum security environment.

I therefore recommend
and request that detainee HA be placed in an alternative more secure environment
asap under MSI 157, pending further clarification of his involvement in
crime.

DIMA Business Manager
Detention N Smith advised. "

2.2.4 On 30 July
1999, Mr Hart prepared a document entitled "Incident Follow-Up Report
No 2". In that report, which was addressed to "ACM-EGM Operations",
Mr Hart stated:

"Detainee HA
Duc Anh alias PHAM Quoc Hung (P000650). Is a reported Vietnamese national
received at then PIDC on 27 July 1999.

Please refer to Incident
Report 1999 (dated 28.07.99) and Follow Up Report (29.07.99) for details
of criminal exposure, drug use, high escape risk assessment and request
to DIMA to transfer to a secure facility.

Narrative:

Further information
has been received that heightens the profile and security risk of this
detainee to the good order and management of the PIDC and makes him totally
unsuitable to remain at the Centre.

  • NCA Officers attended
    the PIDC to interview detainee HA (with the permission of DIMA). The
    Officers advised that the detainee is believed to have been recently
    charged in NSW for Armed Robbery offences and to have a bench warrant
    out for Failing to Attend (viz skipped bail).
  • ACM Officer A
    Cairns has reported today, that detainee HA has been asking questions
    and trying to get information about the location of the PIDC and the
    security systems at the Centre. He also stated that he wanted to run
    away. When another detainee (PAZOOKI) said that HA would not be able
    to escape, detainee HA replied "I can, I could get out of here
    with my bare hands".

The above information
was discussed with DIMA Business Manager Detention N Smith who agreed
to this detainee not returning to the mainstream area.

A Detention Officer
was placed with the detainee in an interview room (observation room occupied).
Detainee HA has volunteered to the
guarding officer:

  • That he has previously
    been in gaol in Vietnam for the killing of a Police Officer. He stated
    that he was only 10 years old and a member of a gang at the time.
  • That he has been
    in gaol in NSW on four occasions for shop lifting, stabbing a person,
    breach of bail and breach of Community Service Order.

DIMA have now agreed
to detainee HA's transfer to a MOU WA prison facility."

2.3 Departmental
Minute of 30 July 1999

2.3.1 On or about
30 July 1999, Mr Nigel Smith, employed by DIMA as "Business Manager
(Detention)", submitted to Mr John Williams, employed by DIMA as
"State Director, Perth Office", a document headed "RE:
HA DUC ANH @ PHAM QUOC HUNG (12-AUG-1975 VNM)". In that document,
Mr Smith sought Mr Williams' authorisation for the transfer of the complainant
to the "prison system". Under the heading "Grounds for
Transfer", Mr Smith set out the following matters:

"1. DETAINEE
WITH A HISTORY OF VIOLENCE
Subsequently to [the incident report prepared by Ms Walker] it has been
verbally reported to me that the National Crimes (sic) Authority (NCA)
has engaged the above-name (sic) in interview this morning on the reasonable
belief that the above-named may have been involved in an armed robbery
in New South Wales, that he may have 'skipped bail', and that a Bench
Warrant remains for his arrest. This is consistent with observations
made in respect of the tattoos on the detainee's arms indicative of
involvement in gang or organised criminal groups.
If this reasonable belief is to be accepted, this clearly represents
a serious violent predisposition.
In accordance the MSI the detainee should be placed into a state prison
or other institution where there are more adequate and appropriate facilities
for custody and/or treatment than in an Immigration detention centre.

2. DETAINEE WITH A HISTORY OF DRUG OFFENCES
The detainee has admitted to having been incarcerated in NSW and to
having withdrawn from heroin unassisted during that time. The detainee
has made repeated demands for methadone treatment in the PEIDC, based
upon the rationale that a friend of his was supplied with the substitute
drug during his period of incarceration.
Based upon further repeated questioning, with increasing intensity,
about ACM response to the potential for him to become ill, ACM has,
I consider reasonably in the circumstances, drawn the conclusion that
the propensity for the detainee to make himself ill, in order to achieve
a stated end of escape, is significant. The sum of the detainee's enquiries
on this subject indicate that he may be seeking to be placed into a
hospital or place other than the PEIDC which is not secure.
In accordance with the MSI, the detainee should be placed into a state
prison or other institution where there are more adequate and appropriate
facilities for custody and/or treatment than in an Immigration detention
centre.
3. ESCAPE (ATTEMPTED OR UNSUCCESSFUL)
Subsequent to [the incident report prepared by Ms Walker], yet to be
confirmed in further Follow-up Report, is that the detainee has now
openly stated to another detainee that he intends to escape from the
PEIDC, and that he would engage any method to do so 'including using
his own bare hands if necessary'. This threat is considered very real
if indeed the detainee is an escapee from bail and, also, where the
detainee has the history of violence and illicit drug use as indicated.

Neither the physical parameters of the PEIDC nor the particular circumstances
requiring static guarding outside the PEIDC and separation detention
within, are conducive to providing the necessary level of security to
prevent this real threat to escape. This real threat represents a significant
management issue, particularly at this time.
On balance of this set of circumstances, I do not consider that a strong
warning to the detainee would be the preferable option to relocating
the detainee into the prison system.

2.3.2 On the basis
of those matters, Mr Smith made the following recommendation:

"RECOMMENDATION

I recommend that:

1 you authorise
the transfer of the detainee to a prison;
At this time, I am seeking to negotiate with the Ministry of Justice
at Casuarina Prison (which appears to be the only one with capacity
at this time) to accept the detainee if you authorise the transfer.

2 the detainee
be advised, in accordance with the MSI as to the reason for transfer;
and

3 a regime of review
of the detainee's case management be established in accordance with
the requirements of the MSI "

2.3.3 Mr Williams
apparently authorised the transfer and in doing so made the following
comment (which appears in handwriting above his signature under the heading
"Comments"):

"I am satisfied
that the most appropriate place of detention is in a state prison."

2.4 Notice of transfer
dated 30 July 1999

2.4.1 On or about
30 July 1999, Mr Smith prepared and provided the complainant with written
notice to the effect that he was to be transferred to the Prison. He advised
the complainant that the reasons for transfer were as follows:

"1 You are
a detainee with a history of violence.
You have admitted to criminal activity for which you have been incarcerated,
which clearly represents a violent predisposition.
2 You are a detainee with a history of drug use.
You have admitted to being a user of an illicit substance, heroin.
3 You are a detainee who has indicated that he will employ any method
available to him to escape from the Detention Centre.
Because of your criminal background and your threats of escape, I find
that your detention cannot be managed in the low security environment
of the Perth Immigration Detention Centre. "

2.5 Minute dated
6 August 1999

2.5.1 On or about
6 August 1999, Mr Smith prepared a document headed "Review of Place
of Detention for Immigration Detainee". That document appears to
record the outcome of a review of the complainant's place of detention.
In that document, Mr Smith stated:

"In respect
of
PHAM Quoc Hung
also known as HA Duc Anh,
who was transferred from the Perth Immigration Detention Centre on 30
July 1999, I am able to report the following in regard to his behaviour:

That, although the detainee claims to have maintained good behaviour
within the Prison, he continues to represent a security risk for return
transfer to the Perth Immigration Detention Centre.

The detainee claims,
against significant evidence to the contrary, that he did not admit to
criminal behaviour, that he was not previously incarcerated in Australia,
and that he did not make any attempt to escape from the Centre. Notwithstanding
the latter, the detainee does not claim to deny having indicated that
he would escape.
I am satisfied that the balance of the evidence is that the above-named
continues to represent a security risk to the Centre and recommend to
you, the Detention Review Officer, that his immigration detention continue
in the Prison. "

2.5.2 Mr Williams
apparently accepted that recommendation.

2.6 Minute dated
20 September 1999

2.6.1 On or about
20 September 1999, Mr Smith prepared a document headed "Review of
Place of Detention for Immigration Detainee". That document appears
to record the outcome of a review of the complainant's place of detention.
In that document, Mr Smith stated:

"In respect
of
PHAM Quoc Hung
also known as HA Duc Anh,
who was transferred from the Perth Immigration Detention Centre on
30 July 1999, I am able to report the following.

Monthly review of
the above-named's detention was not able to be undertaken on 6 September
due to my absence for that week. The review has been combined with another
visit to the Prison.

On Wednesday 15 September
1999, Compliance Officer-in-Charge Mick Cain visited the above-named in
Casuarina Prison, principally in connection with issues for removal. During
the course of this process, Mr Cain made observation (sic) in respect
of the above-named's dealing with detention in a prison facility and in
respect of the above-named's demeanour.

The detainee raised
no issues of concern in respect of his treatment in the facility. Whilst
again, the detainee claims to have maintained good behaviour within the
Prison, I estimate that he continues to represent a security risk for
return transfer to the Perth Immigration Detention Centre (IDC).

There is no change
to the fact that the detention of the above-named in the low security
environment of the Perth IDC would run contrary to the purpose of the
facility being to accommodate persons whose immigration status is unlawful
rather than persons with a criminal history. Mr Pham has a criminal background,
still does not admit to criminal behaviour, and has been previously incarcerated
in Australia. On balance of this, I am not prepared to accept any assurance
from him that he would not attempt to escape from the Centre as he had
stated when he was there.

Despite previous
communications with him, Mr Pham has failed to make any effort to secure
his departure from Australia. As OIC Compliance has now initiated removal
action, I consider the impetus for the above-named to act upon his previous
threat to escape from the Centre, were he to be returned there, augmented.

I am satisfied that
the balance of the evidence is that the above-named continues to represent
a security risk to the Centre and recommend to you, the Detention Review
Officer, that his immigration detention continue in the Prison. "

2.6.2 Again, that
recommendation appears to have been accepted by Mr Williams.

2.7 Minute of 4 November
1999

2.7.1 On or about
4 November 1999, Mr Smith prepared a document headed "Review of Place
of Detention for Immigration Detainee". That document appears to
record the outcome of a review of the complainant's place of detention.
In that document, Mr Smith stated:

"In respect
of
PHAM Quoc Hung
also known as HA Duc Anh,
1 who was transferred from the Perth Immigration Detention Centre on

30 July 1999;
2 whose five-day review was conducted on 6 August 1999; and
3 whose one-monthly review was conducted on 20 September 1999;
I am able to report the following.

Two-monthly review
of the above-named's detention was not able to be undertaken by me on
20 October due to my absence. The temporary incumbent of the Business
Manager (Detention) position was able to pay a belated visit to the detainee
on 28 October in connection with this matter.

The Officer reported
that the above-named's demeanour was pleasant and that he remained critical
of the Department in allegedly not securing his removal from Australia
in a timely fashion. The detainee raised no issues of concern in respect
of his treatment in the facility. Whilst again, the detainee may claim
to have maintained good behaviour within the Prison, I estimate that the
Prison environment is one which he must be responsive to in that regard,
and that he continues to represent a security risk for return transfer
to the Perth Immigration Detention Centre (IDC).

There is no change
to the fact that the detention of the above-named in the low security
environment of the Perth IDC would run contrary to the purpose of the
facility being to accommodate persons whose immigration status is unlawful
rather than persons with a criminal history. Mr Pham has a criminal background
and has been previously incarcerated in Australia. On balance of this,
and the nature of his criticism of the Department, I should not be prepared
to accept any assurance, were it to again to be offered by him, that he
would not attempt to escape from the Centre as he had stated when he was
there.

(I point out that
it was due to Mr Pham's failure to make any effort to secure his departure
from Australia that OIC Compliance initiated removal action).

I am satisfied that
the balance of the evidence is that the above-named continues to represent
a security risk to the Centre and recommend to you, the Detention Review
Officer, that his immigration detention continue in the Prison. "

2.7.2 Again, that
recommendation was accepted by Mr Williams.

2.8 Minute of 7 December
1999

2.8.1 On or about
7 December, Mr Smith prepared a document headed "Review of Place
of Detention for Immigration Detainee". That document appears to
record the outcome of a review of the complainant's place of detention.
In that document, Mr Smith stated:

"In respect
of
PHAM Quoc Hung also known as HA Duc Anh,
1 who was transferred from the Perth Immigration Detention Centre on

30 July 1999;
2 whose five-day review was conducted on 6 August 1999;
3 whose first monthly review was conducted on 20 September 1999; and

4 whose second monthly review was conducted on 4 November 1999;

I am able to report
the following:

During the course
of communications with the detainee over the month, the above-named's
demeanour has remained pleasant but critical of the Department in allegedly
not securing his removal from Australia in a timely fashion - an issue
which has been addressed repeatedly with the detainee.

The detainee has
continued to raise no issues of concern in respect of his treatment in
the prison facility, and is satisfied to be engaging in work in the complex.
Whilst the detainee may claim to have maintained good behaviour within
the Prison, again I estimate that the Prison environment is one which
he must be responsive to in that regard, and that he continues to represent
a security risk for return transfer to the Perth Immigration Detention
Centre (IDC).

There remains no
change to the fact that the detention of the above-named in the low security
environment of the Perth IDC would run contrary to the purpose of the
facility being to accommodate persons whose immigration status is unlawful
rather than persons with a criminal history. Mr Pham has a criminal background
and has been previously incarcerated in Australia.

On balance of this,
and the nature of his criticism of the Department, I should not be prepared
to accept any assurance, were it to again to be offered by him, that he
would not attempt to escape from the Centre as he had stated when he was
there.

(I point out that
it was due to Mr Pham 's failure to make any effort to secure his departure
from Australia that OIC Compliance initiated removal action).

I am satisfied that
the balance of the evidence is that the above-named continues to represent
a security risk to the Centre and recommend to you, the Detention Review
Officer, that his immigration detention continue in the Prison. "

2.8.2 The decision
maker this time appears to have been Ms Paula Kansky (Acting State Director
and delegated detention review officer). Ms Kansky apparently accepted
Mr Smith's recommendation.

2.9 Other findings

2.9.1 I make the
following additional preliminary findings (based on the material currently
before the Commission and subject to anything further from the respondent):

  • No steps, in addition
    to those outlined in the above documents, were taken by DIMA or ACM
    to establish whether the complainant had in fact been involved in violent
    criminal activity;
  • No steps, in addition
    to those outlined in the above documents, were taken by DIMA or ACM
    to establish whether the complainant had been convicted of or charged
    with drug offences;
  • No steps, in addition
    to those outlined in the above documents, were taken by DIMA or ACM
    to consider whether any previous use on the part of the applicant of
    illegal drugs gave rise to reasonable grounds to believe that the complainant
    posed a risk to the other detainees at the Perth IDC; and
  • The complainant
    made no attempt to escape whilst at the Perth IDC or at the Prison and
    did not in fact escape from those facilities.

3. Article 9 of the
International Covenant on Civil and Political Rights ("ICCPR")

3.1 On the basis
of the above preliminary findings of fact and the earlier preliminary
findings of fact of Commissioner Sidoti, I am of the preliminary view
that the acts and practices of the respondent in transferring the complainant
to the Prison and his continued detention therein involved arbitrary detention,
in breach of article 9(1) of
the ICCPR.

3.2 Although the
complainant was already subject to a deprivation of liberty by virtue
of his detention at the Perth IDC, I consider that his detention in the
Prison involved a further and serious deprivation of his liberty.

3.3 Prisons are correctional
facilities with an environment that is very different from that in an
IDC. Detention in a state prison entails a substantial reduction in personal
privacy, freedom or movement and other rights and privileges. Detainees
are also separated from families, friends and others of their ethnic and
cultural backgrounds.

3.4 As set out in
the Commission report, Those who've come across the seas: Detention of
unauthorised arrivals [60], consistent with Australia's
human rights obligations, detainees should only be transferred to state
prisons if they are either charged with or convicted of a criminal offence
that would result in a custodial sentence. However, the Migration Act
permits the administrative detention of detainees in state prisons without
charge or conviction.

3.5 In these circumstances,
transfer to a state prison should only occur as a last resort. Unacceptable
behaviour should be managed, to the greatest extent possible, within the
IDC.

3.6 Article 9 obliges
Australia to ensure that the detention of detainees occurs in an environment
which is least restrictive of their rights. While the detention of the
complainant in a state prison was lawful under section 5 of the Migration
Act 1958 (Cth) [61], it was arbitrary as it was not
reasonable nor necessary in all of the circumstances nor was it a proportionate
means of achieving a legitimate objective [62].

3.7 My conclusion
that the complainant's detention was not reasonable nor necessary follows
from the fact that Mr Smith's recommendations in the minute of 30 July
1999 (which Mr Williams appears to have accepted) appear to me, on a preliminary
basis, to have been based on inadequate evidence, largely comprised of
hearsay and supposition.

3.8 The matters raised
by Mr Smith purport to reflect the following specified "Grounds for
Transfer" set out in part 4 of Migration Series Instruction 244:
Transfer of Detainees to State Prisons ("MSI 244"):

"4.4 Detainee
with a history of violence

4.4.1 A person with
a history of or a predisposition to violence, or other disruptive or threatening
behaviour should not, where practicable, be placed in an IDC but in a
state prison or other institution where there are more adequate and appropriate
facilities for custody and/or treatment. The facilities at the IDCs should,
however, be used to the greatest extent possible in the management of
immigration detainees. Any decision to locate an immigration detainee
in a State prison should be taken in accordance with the procedures outlined
in this Instruction.
.....................
4.6 Detainee with a history of sexual offences or drug offences

4.6.1 Where a decision
has been made that:

  • due to a history
    of sexual offences or drug offence; or
  • there is reasonable
    suspicion that the detainee has had involvement with i.e. taking or
    supplying prohibited drugs at the IDC;
    there are reasonable grounds to believe that a detainee poses a risk
    to other detainees at the IDC. Or,
  • that the admission
    of such a person to the IDC would pose a risk to detainees in the IDC;

    the person should be placed in a state prison or other institution where
    there are more adequate facilities for custody.
    ............................

4.8 Escape (attempted
or successful)(3)

4.8.1 Escape, or
attempted escape, from lawful immigration detention is an offence against
s 491 of the Act, with a maximum penalty of imprisonment for two years.
Under Section 47 of the Crimes Act 1914 escape from lawful custody carries
a maximum penalty of 5 years imprisonment. The decision about which provisions
should be used to initiate prosecution are determined by the DPP, and
take into account the circumstances in which the detainee escaped and
was taken back into custody. The Prosecution Policy of the Commonwealth
at 2.22 states:

Ordinarily the provisions
of the specific Act rather than the general provisions of the Crimes Act
should be relied on unless to do so would not adequately reflect the nature
of the criminal conduct disclosed by the evidence.

4.8.2 The decision
about whether the police are asked to consider laying charges against
a detainee who escapes, or attempts to escape, is to be decided by ACM
in close consultation with the IDC DIMA Business Manager. The decision
must be fully documented on the detainee's case file.

4.8.3 If prosecution
is considered likely then a brief should be prepared for the DPP for the
purpose of laying charges. Officers should consider the likelihood of
success of such action. For example, there is little point in pursuing
prosecution if the penalties are going to be minimal or if; on the advice
of the prosecuting authority, there is little chance of a conviction being
made.

4.8.4 Where prosecution
is not considered to be a viable option, officers will need to consider
the escape (attempted or successful) in terms of it being a management
issue. Depending on the circumstances of the escape, a strong warning
to the detainee may be a preferable option to reconsidering the place
of detention. If it is considered that the low security environment at
the IDC is unable to adequately detain a person then a review of the place
of detention will need to be considered. (Refer to the MSI 'General Detention
Procedures' [Para 22 'Escape from Detention']). "

3.9 As to the first
matter considered by Mr Smith, ("history of or predisposition to
violence"), Mr Smith appears to have relied upon the visit by the
National Crime Authority (NCA) officers and their suggestion that the
applicant was believed to have been involved in an armed robbery. Those
matters appear to have been conveyed to Mr Smith by Mr Hart (see Mr Hart's
Incident Follow Up Report No 2 dated 30 July 1999). On the basis of the
available evidence, I have found, on a preliminary basis, that neither
DIMA nor ACM made any attempt to verify the beliefs conveyed by the NCA
officers.

3.10 Mr Smith also
placed some reliance upon the complainant's tattoos (which were said to
be "indicative of involvement in gang or organised crime groups").
Mr Smith was apparently there referring to Ms Walker's comment to the
effect that the complainant had "two large tattoos on each arm depicting
large Asian dragons with skull heads". That information was apparently
recorded by Ms Walker in response to a request by Mr Cain (of DIMA compliance)
for the purpose of establishing whether the complainant's physical appearance
matched that of a "NSW police crime suspect who was involved in drug
activity". I note that there is nothing before me to suggest that
the complainant was actually found to be that person or that any further
action was taken regarding those matters. In those circumstances and subject
to anything further from the respondent, it is my preliminary view that
Mr Smith's conclusions are at best unsubstantiated supposition and at
worst involve the attribution to the complainant of unfavourable characteristics
based on racial stereotypes.

3.11 In my preliminary
view and subject to anything further from the respondent, none of the
matters relied upon by Mr Smith establish any predisposition to, nor history
of, violence on the part of the complainant.

3.12 As to the second
matter considered by Mr Smith ("history of drug offences"),
there is nothing to suggest that the applicant was convicted of or charged
with "drug offences". MSI-244 is expressly limited to consideration
of previous drug offences or drug use or supply within an Immigration
Detention Centre. There appears to have been nothing before Mr Smith suggesting
that those considerations applied to the complainant. There was simply
material before him suggesting that the complainant had been involved
in drug use prior to being detained.

3.13 Even if one
may, under MSI-244, have regard to previous drug use, not taking place
within an Immigration Detention Centre, Mr Smith did not appear to consider
whether any use by the complainant of illegal drugs gave rise to "reasonable
grounds to believe that a detainee poses a risk to other detainees at
the IDC" (which is the issue required to be considered under paragraph
4.6.1 of MSI-244).

3.14 The only consideration
of that issue appears to have been undertaken by Mr Hart in his Incident
Follow Up Report of 29 July 1999. I note that it is not clear, on the
material provided to the Commission, whether that document was in fact
before Mr Smith at the time of preparing his minute of 30 July 1999. Even
if it was, that document merely stated that the complainant's:

"criminal
and drug exposure also presents as a bad influence on other detainees
in the PIDC minimum security environment".

3.15 That does not
seem to me, at this preliminary stage, to evidence a proper approach to
the question MSI-244 directs one to consider in relation to this issue.
A proper approach to that question might have involved seeking appropriate
medical and psychological evidence and then considering, on the basis
of that material, whether the complainant's former use of heroin was an
issue that could be managed in the Perth IDC without causing risk to his
fellow detainees.

3.16 As to the third
matter considered by Mr Smith, ("Escape (attempted or successful)"),
there is nothing to suggest that the complainant either escaped or attempted
to escape from the Perth IDC. MSI-244 directs a decision maker to those
matters and not mere threats of escape or other material that might indicate
a propensity to escape.

3.17 Even if a decision
maker is entitled, under MSI-244, to have regard to such matters, it is
my preliminary view Mr Smith relied upon material that should have been
investigated further, being:

  • second (or possibly
    third) hand hearsay conveyed by Mr Hart (which Mr Smith did not attempt
    to investigate);
  • the unsubstantiated
    allegation that the complainant had breached a condition of bail;
  • the unsubstantiated
    allegation that the complainant had been involved in crimes of violence;
    and
  • the fact that
    the complainant was frank with ACM personnel regarding his drug dependency
    (which, if anything, might have indicated to a fair minded person that
    the complaint was honest and trustworthy).

3.18 In light of
the nature of the material relied upon in connection with the decision
to transfer the complainant to the Prison, I am unable (at this preliminary
stage and subject to anything further from the respondent) to be satisfied
that that transfer was "necessary in all the circumstances"
in the sense required by article 9 of the ICCPR. It is my preliminary
view that more compelling evidence was required. In my preliminary findings
of fact set out above, I have found that neither DIMA nor ACM made any
attempt to obtain such material.

3.19 It seems to
me that a more rigorous approach is required under article 9 and indeed
under MSI-244 which states:

"the decision
to transfer a detainee from an IDC to a prison should be made as a last
resort"

3.20 In addition,
I make the preliminary finding that the complainant's detention in the
Prison continued to be arbitrary for its duration, in that at no time
during the six months the complainant was held in the Prison did DIMA
seek or receive material that indicated that that detention was necessary
in all the circumstances.

3.21 In the minutes
recording the complainant's Reviews of place of Detention of 6 August
1999 and 20 September 1999, Mr Smith merely refers to the material before
him at the time of the original transfer. I have set out above my preliminary
views on the inadequacy of that material.

3.22 In the minutes
of 4 November 1999 and 7 December 1999, Mr Smith further relied upon the
fact that the complainant had criticised DIMA for not securing the complainant's
removal from Australia in a timely fashion as indicating a propensity
to escape. It is not at all evident to me, at this preliminary stage and
subject to anything further from the respondent, why that conclusion follows
from such statements. I would have thought that, in light of the conditions
of the complainant's detention (described in the First Preliminary Notice),
a fair minded decision maker would have considered that any such criticism
was both understandable and justified.

3.23 Finally, even
if it could be said that the complainant's transfer to and ongoing detention
in the Prison was "necessary in all the circumstances" (and
for the reasons set out above I consider, on a preliminary basis, that
that was not the case), I do not consider, at this preliminary stage,
that it could be said to be a proportionate means of achieving a legitimate
objective. Such a submission might have been more tenable if the respondent
had, following the complainant's transfer, expeditiously conducted further
investigations into the inadequate material before Mr Smith. If that had
been the case, it might have been open to the respondent to contend (on
the basis of A v Australia63) that a short period of more intensive detention
was warranted while it conducted those investigations. I do not, in light
of my preliminary factual findings that DIMA made no attempt to conduct
further investigations during the extensive period in which the complainant
was detained in the Prison, need to consider whether such an argument
would succeed.

................................
Alice Erh-Soon Tay

President

Date:
13/11/01


1 By
the time of Commissioner Sidoti's preliminary findings, Mr Ha had been
deported from the country and his whereabouts were unknown.
2 Human Rights and Equal Opportunity Commission, "Those
Who've Come Across the Seas: Detention of Unauthorised Arrivals",
HRC Report,
11 May 1998.
3 Pursuant to sections 198 or 199 of the Migration Act.
4 Minus the annexures
5 See the summaries of the complainant's letters to the
Commission in section 3 above.
6 Which at that time relevantly provided: "Where
a Justice or Justices convicts or convict a defendant who is not present,
the Justice or Justices may issue a warrant for the apprehension of the
defendant for the purpose of the defendant's being brought before a Justice
or Justices for sentencing".
7 See the Minutes recording the reviews of those dates
(which are partially extracted above).
8 Indeed, in a letter dated 9 March 2000 (referred to
in section 4 above), DIMIA appeared to accept that the conditions at the
Prison involved the complainant being confined to his cell 22 hours per
day.
9 Secretary, Department of Defence v HREOC, Burgess &
Ors (1997) 78
FCR 208.
10 I note recommendations made in the Commission's report
entitled Those Who've Come Across the Seas: Detention of Unauthorised
Arrivals (tabled in Federal Parliament in 1998) that sections 189 and
196 of the Migration Act 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 section 189 and 196 may be released from detention if they
satisfy restrictive criteria for bridging visas.
11 Adopted by UN General Assembly 16 December 1966. Signed
for Australia 18 December 1972. Instrument of ratification, with declarations
and reservations, deposited for Australia 13 August 1980. Entry into force
for Australia 13 November 1980 (UNTS 1197 p411).
12 U.N. Doc. HRI\GEN\1\Rev.1 at 33 (1994).
13 See Nos. 4,5,7,8/1977; Nos. 25,28,30,33,37/1978; Nos.
49, 63/1979; Nos. 73,80/1980; Nos.88, 107,110/198 1; No. 115/1982; No.
159/1983; No. 188/1984; No. 240,242,255/1987; Nos.270, 27 1, 277/1988;
M Nowak UN Covenant on Civil and Political Rights ICCPR Commentary 1993
at pp 86; D McGoldrick The Human Rights Committee 1994, chapter 9, pp367l.
14 M Nowak, op cit at p186.
15 M Nowak, op cit p188.
16 HRC Report No 10, Report of an Inquiry into a Complaint
of Acts or Practices Inconsistent With or Contrary to Human Rights in
an Immigration Detention Centre (available at www.humanrights.gov.au/human_rights/index.html)
17 See eg McLeod v Jamaica, No. 734/1997; Shaw v Jamaica
No 704/1996; Taylor v Jamaica No. 707/1996 and Morgan and Williams v Jamaica,
No 720/1996.
18 No. 253/1987
19 No. 410/1990.
20 The Standard Minimum Rules were approved by the UN
Economic and Social Council in 1957. They were subsequently adopted by
the UN General Assembly in resolutions 2858 of 1971 and 3144 of 1983:
UN Doc.A/COMF/611, Annex 1.
21 General Comment 21 (UN doc HRI\GEN\1\Rev.1 at 33 (1994)).
22 UNHRC UN doc CCPR/C/79/Add/50 (1995)
23 No. 253/1987
24 M Nowak, op cit at p.748, 749.
25 Ibid, p. 773.
26 1969, ATS 1974 No.2, entry into force for Australia
and generally on
27 January 1980.
27 Maleki v Italy UNHRC 699/96
28 See paragraph 5.6 of Commissioner Sidoti's Preliminary
Findings
29 For further discussion on the effect of reservations,
see Joseph, S and Others, "The International Covenant on Civil and
Political Rights" (2000) OUP, Chapter 25.
30 Commonwealth of Australia v O'Donohue [1979] VR 441
at 455-7 per Menhennitt J. See also Waterford v The Commonwealth (1987)
163 CLR 54 at 55 per Mason J.
31 See UN document CCPR/C/42/Add.2. For its consideration
by the committee see CCPR/C/SR.806-809 and Official Records of the General
Assembly, Forty-third Session, Supplement No. 40 (A/43/40), paragraphs
413-460.
32 See UN document CCPR/C/AUS/98/3. This report covered
the period from 1987 to December 1995.
33 See UN document CCPR/C/AUS/98/4.
34 First periodic report, paragraphs 205-206; Second
periodic report, paragraph 294, Third periodic report, paragraph 625.
35 First periodic report, paragraphs 205-206; Second
periodic report, paragraph 296; Third periodic report, paragraph 628.
36 Second periodic report, paragraph 297.
37 Third periodic report, paragraphs 627-628.
38 Third periodic report, paragraphs 629-636.
39 Third periodic report, paragraph 636.
40 Fourth periodic report, paragraphs 76-78.
41 Cabal v Secretary Department of Justice (Victoria)
[2000] FCA 1227
42 Cabal v Secretary Department of Justice (Victoria)
[2000] FCA 949
43 I note that, while this is a matter yet to be decided
by an Australian Court, Marshall J considered a submission to that effect
in Luu v Minister [2001] FCA 1136 at [76], but did not find it necessary
to rule on that submission.
44 Bossuyt M "Guide to the Travuax Preparatiores
of the International Covenant on Civil and Political Rights", (1987)
Martinus Nijhoff Publishers.
45 See letter from the respondent of 23 August 2000,
extracted above.
46 United Nations Human Rights Committee, General Comment
No. 8, (1982), UN/HRI/GEN/Rev.4, paragraph 1.
47 For example, in many IDCs detainees are able to prepare
their own food. Detainees are not able to do so in State prisons.
48 Spakmo v Norway, Communication No. 631/1995, CCPR/C/67/D/631/1995;
A v Australia,560/93, CCPR/C/59/D/560/1993 (30 April 1997); Concluding
Comments Regarding Switzerland (1996), CCPR/C/79/Add.70.
49 Communication No. 305/1988, CCPR/C/39/D/305/1988 .
50 See paragraph 3.4 of MSI 244
51 Which are summarised in section 3 above.
52 I note that paragraph 3.3 of MSI 244 refers more broadly
to "cases" involving "past or current narcotics use or
distribution". However, as noted above, section 3.3 does not appear
to me to be intended to give a detailed guide to the matters which are
to be taken into account for the purposes of a transfer decision. The
precise grounds are set out in section 4 of the MSI.
53 which is the issue required to be considered under
paragraph 4.6.1 of MSI 244
54 See para 4.8.4 of MSI 244.
55 See eg Pollitt v R (1992) 174 CLR 558 and section
165 of the Evidence Act 1995 (Cth).
56 "Spent Convictions", Australian Law Reform
Commission Report No 37 (1987) AGPS, page 53 [78].
57 A v Australia, Communication No. 560/1993.
58 Report of an Own Motion Investigation into Immigration
Detainees held in State Correctional Facilities, March 2001.
59 Op cit, p 129 see r6.12.
60 Human Rights and Equal Opportunity Commission, 1998,
at page l29.
61 Van Alphen v the Netherlands, Communication No. 305/1998.
62 A v Australia, Communication No. 560/1993.
63 Cited above

Last
updated 27 June 2002.