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HREOC Report No. 21

Report of an inquiry into
a complaint by six asylum seekers concerning their transfer from immigration
detention centres to State prisons and their detention in those prisons

HREOC Report No. 21


Contents

1. Introduction

2. The Inquiry Process

3. The Factual Background to the Complaint

4. Findings and Reasons for Findings

5. General Comments

6. Recommendations

7. Actions Taken by the Respondent as a Result of the Findings
and Recommendations

APPENDIX A
Functions of the Human Rights and Equal Opportunity Commission in Relation
to Human Rights

APPENDIX B
I. Letter from Roebourne Regional Prison dated 29 June 2001
II. Letter from Hakea Prison dated 5 July 2001 64


1. Introduction

This is a Report of
the findings and reasons for findings made by the Human Rights and Equal
Opportunity Commission (the Commission) following an inquiry conducted
by the Commission.[1]
The inquiry related to a complaint by Amnesty International Australia
(Amnesty) against the Commonwealth of Australia (the Commonwealth), Department
of Immigration, Multicultural and Indigenous Affairs (the Department).
The complaint was made pursuant to section 20(1)(b) of the Human Rights
and Equal Opportunity Commission Act 1986
(Cth) (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.

Amnesty made its complaint
on behalf of Mr AB, Mr Jay-Ho Soh, [2]
Mr Harvinder Singh Gill, Mr Mohamed Qasim, Mr CD and Mr Nourredine Chenina
(the detainees).[3]
Each of the detainees was held in immigration detention pursuant to section
189 of the Migration Act 1958 (Cth) (the Migration Act), initially
in an Immigration Detention Centre (IDC). The complaint concerns the transfer
of the detainees from the IDCs in which they were held to State correctional
facilities (State prisons), and the continued detention of the detainees
in those prisons. Amnesty alleges, on behalf of the detainees, that this
transfer, and the continued detention of the detainees in the State prisons,
was a breach of their human rights.

2. The
Inquiry Process

I have investigated
this complaint pursuant to section 11(1)(f) of the HREOC Act and conciliation
was attempted. However, agreement was not able to be reached and I have
formed the view that these matters were not amenable to conciliation.

I have provided to
the parties my Preliminary Report dated 2 May 2001, my Further Preliminary
Report dated 8 June 2001 and my Additional Preliminary Report dated 18
February 2002. These reports outlined my preliminary findings of fact
and law in relation to the complaint.

The parties were given
an opportunity to respond to these Preliminary Reports. Amnesty made three
sets of written submissions to the Commission dated 13 July 2001, 5 August
2001 and 1 November 2001. The Department also made three sets of written
submissions dated 17 August 2001, 16 November 2001 and 11 March 2002.

3. The
Factual Background to the Complaint

3.1 Detention history

Amnesty's complaint
concerns the transfer of the detainees from IDCs to State prisons. The
detention history, including the date of transfer from the IDC to the
State prison and the date of the return to the IDC (if applicable), for
each of the detainees is not in dispute and is summarised in the following
table.

Name
Date Entered
Immigration Detention
Date of Transfer to Prison
Location
Date of Return to IDC
Current Status [4]
Mr AB 4 Jul 1997

9 Oct 1997

 

Silverwater Metropolitan
Reception and Remand Centre (MRRC)

14 Feb 1998

 

Deported on 13 Apr 2000
    27
Feb 1998
Silverwater MRRC 26
Aug 1998
 
    26
Aug 1998
Silverwater MRRC and Metropolitan Medical Transient Centre (MMTC)
[5]
N/A  
Jay-Ho
SOH
9
Jun 1998
16
Jun 1999
Silverwater MRRC 1
Mar 2000
Remains
in immigration detention at an IDC
Mr
CD
10
Dec 1997
11
Oct 1999
Silverwater MRRC Attempted deportation 17 Oct 1999 Remains
in immigration detention at an IDC [6]
    17
Oct 1999
Silverwater MRRC Attempted deportation on 24 Oct 1999  
    24
Oct 1999
Silverwater MRRC 2
Dec 1999
 
Nourredine CHENINA 4
Sep 1998
4
Oct 1999
Silverwater MRRC 11
Nov 1999
Has
escaped from an IDC and remains at large
    17
Feb 2000
Silverwater MRRC 1
May 2000
 
Harvinder Singh GILL 24
Nov 1998
17
Apr 1999
See
discussion below in Part 3.2
17
Sep 1999
Removed
from Australia on 19 Apr 2000
Mohamed
QASIM
9
September 1998
17
April 1999
See
discussion below in Part 3.2
17
September 1999
Remains
in immigration detention in an IDC

3.2 Place of detention
of Mr Gill and Mr Qasim

Mr Gill and Mr Qasim
escaped from Port Hedland Immigration Reception and Processing Centre
(PHIRPC) on 17 April 1999. They were captured the same day and taken into
custody at the Roebourne Regional Prison (RRP) in Western Australia (WA).
On 23 April 1999, Mr Gill and Mr Qasim were convicted of escaping from
the PHIRPC and sentenced to imprisonment for three months and one day.
The sentence commenced on 17 April 1999 and concluded on 16 July 1999.

Where these detainees
served their sentences and where they were held after their sentences
were completed is a matter of some uncertainty and dispute within the
Department. In a letter of 19 February 2001, the Department advised that:

[w]hilst serving
their sentences they had been transferred by the WA Ministry of Justice
from Greenough Regional Prison onward to Canning Vale Prison . The custodial
terms were concluded in Canning Vale and the detainees continued to
be held there in the immediate term in immigration detention. They were
then transferred to Casuarina Prison . [7]

In a letter dated 24
October 2000, the Department advised that:

[o]n 17 April 1999
Mr Gill and Mr Qasim commenced a custodial sentence at the Roebourne
Prison WA . They completed their sentences on 17 July 1999 . it was
determined that the most appropriate place for them was the Perth IDC.
As soon as space became available for them at the Perth IDC they were
transferred there. In the interim, Mr Qasim and Mr Gill were transferred
from Roebourne Prison via Greenough (where they remained for one day
in transit) . [and then to] Casuarina Prison. [8]

In its written submissions
dated 17 August 2001, the Department advised that:

[t]hey served their
sentences in Roebourne Prison and Canning Vale Remand Centre. They continued
to be detained in Canning Vale Remand Centre and Casuarina Prison in
Western Australia on completion of their prison sentences before being
transferred to the PIDC [Perth IDC].

As a result of this
confusion, and in accordance with my powers pursuant to section 21 of
the HREOC Act, I sought advice from the RRP and Hakea Prison in Canning
Vale as to the movements of Mr Gill and Mr Qasim during the relevant period.
I received a letter from the Records Officer at RRP dated 29 June 2001
and a letter from Superintendent Biddy of the Hakea Prison dated 5 July
2001. These letters provide a consistent account of the movements of these
two detainees and I accept the contents of these documents in preference
to the conflicting statements given by the Department. These documents
are reproduced at Appendix B to this Report.

In accordance with
these documents, I find that Mr Gill and Mr Qasim served their sentences
at the RRP until 4 May 1999, when they were transferred to Greenough Regional
Prison (GRP). They remained at the GRP until their sentences expired on
16 July 1999. They were then transferred to Casuarina Prison where they
remained until 9 August 1999. On this date they were transferred to Hakea
Prison. On 17 September 1999, they were returned to the Perth IDC. [9]

4. Findings
and Reasons for Findings

4.1 Introduction

Where a complaint is
received by the Commission, it has the function, pursuant to section 11(1)(f)
of the HREOC Act, of inquiring into:

  • any act or practice
  • that may be inconsistent
    with or contrary to any human right.

4.2 Was there 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.
These words have their ordinary meaning: that is, the noun "act" denotes
a thing done and the noun "practice" denotes a course of repeated conduct.
[10]

An "act" or "practice"
only invokes the human rights complaints jurisdiction of the Commission
where the relevant act or practice is within the discretion of the Commonwealth,
its officer or agents. If the automatic operation of a law requires that
the act or practice be done by or on behalf of the Commonwealth, its officers
or its agents, and there is no discretion involved, these acts and practices
will be outside the scope of the Commission's human rights complaints
jurisdiction. [11]

The Migration Act establishes
a system of mandatory detention whereby all "unlawful non-citizens" [12]
must be held in immigration detention [13]
until they are granted a valid visa or leave the country. [14]
The Commission in its Report, Those who've come across the seas: Detention
of unauthorised arrivals
, [15]
found that these provisions in the Migration Act contravene Australia's
human rights obligations under article 9 of the International Covenant
on Civil and Political Rights
(ICCPR) and article 37 of the Convention
on the Rights of the Child
. [16]
Consequently, the Commission recommended that these provisions be amended.
[17] However, while this law remains in place a person's detention under
the Migration Act occurs by reason of the automatic operation of the law
and would not constitute an act or practice into which the Commission
could inquire.

The Migration Act provides
that an unlawful non-citizen may be held in immigration detention in an
IDC or a State prison.[18]
Despite the vastly different nature of detention in an IDC, as compared
to detention within a State prison, the Migration Act provides no guidance
as to when a detainee may be held in a State prison rather than an IDC.
This issue is instead regulated by Governmental policy and procedure.
As a matter of Government policy, immigration detainees are held in purpose
built IDCs and detention of these detainees in State prisons occurs as
a last resort and only in clearly defined circumstances.

'Migration Series Instruction
244: Transfer of Detainees to State Prisons' (MSI 244) [20]
outlines the conditions under which a transfer from an IDC to a State
prison may occur. [21]
A decision to transfer a detainee from an IDC to a State prison must be
made by the relevant State Director of the Department or his or her delegate.
[22]
Where an immigration detainee is detained in a State prison, MSI 244 establishes
a procedure whereby a review is undertaken each month by a Departmental
Detention Review Officer of the place of that detainee's detention. [23]
If this Officer determines that the detainee's detention should be maintained
in the State prison, the relevant State Director of the Department or
his or her delegate must be consulted. [24]

A decision to transfer
a detainee from an IDC to a State prison and a decision, made at a monthly
review of the place of detention, to maintain a person's detention in
the State prison are policy decisions which involve the exercise of discretion
by the Department and its officers. Such decisions are therefore "acts"
done by the Commonwealth, as defined in section 3 of the HREOC Act, and
within the Commission's complaints jurisdiction.

4.3 Were the acts
inconsistent with and/or contrary to any human right?

In its complaint, Amnesty
has requested that I inquire into alleged breaches of the ICCPR and the
Convention on the Elimination of all Forms of Racial Discrimination
(CERD).
[25]
As detailed above, pursuant to section 11(1)(f) of the HREOC Act, I have
the function of inquiring into any act or practice which is inconsistent
with or contrary to any human right. "Human rights" are defined in section
3 of this Act as "the rights and freedoms recognised in the [ICCPR], declared
by the Declarations or recognised and declared by any relevant international
instrument". As the CERD does not fall within this definition of human
rights, I am not empowered to conduct an inquiry into alleged breaches
of this Convention.

4.4 Were the acts
inconsistent with and/or contrary to the human rights recognised in the
ICCPR?

The ICCPR entered into
force for Australia on 13 November 1980. The ICCPR applies to all persons
within the territory of a State party regardless of their nationality
or status as a non-citizen. [26]
Thus, the ICCPR applies to all asylum seekers, refugees and persons within
Australia's jurisdiction whose applications for refugee protection have
been rejected.

4.4.1 Article
9 of the ICCPR

In my Further Preliminary
Report, I expressed the preliminary view that the transfer of Mr Gill,
Mr Qasim and Mr CD to State prisons was arbitrary and therefore in contravention
of article 9(1) of the ICCPR. In its written submissions, the Department
has disputed this finding.

Article 9(1) of the
ICCPR provides that:

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

4.4.1.1 No one shall
be subjected to arbitrary detention

(a) Does article
9(1) of the ICCPR apply to the detainees?

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. [27]
It is true that the detainees were not at liberty at the time of their
transfers to State prisons. However, I am of the view that these transfers,
and the continued detention of the detainees in State prisons, subjected
the detainees to a further "detention" within the meaning of article 9(1)
of the ICCPR. As discussed in my Preliminary Report, the transfer of the
detainees to State prisons involved a further and serious deprivation
of their liberty. 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 of movement
and other rights and privileges. [28]
Significantly, detainees are separated from families, friends and others
of their linguistic, religious, ethnic and cultural backgrounds.

In its written submissions
of 17 August 2001, the Department argued that:

. 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 previously
stated, this detention is not arbitrary.

You argue that moving
a detainee from one place of immigration detention to another in a state
correctional facility "involves a further and serious deprivation of their
liberty" because it "entails a substantial reduction in personal privacy,
freedom or movement and other rights and privileges."

Based on your argument,
were DIMA to transfer detainees to more secure facilities within an 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 DIMA should do to
better manage the behaviour of detainees within IDFs.

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

In my view, this argument
is misconceived. Transfers of detainees to State prisons (or indeed to
more secure facilities within an IDC) may breach article 9(1) only where
that detention could be described as "arbitrary".

(b) The meaning
of "arbitrary" in article 9(1) of the ICCPR

When article 9 was
drafted, it was clear that the meaning of "arbitrary" contained elements
of injustice, unpredictability, unreasonableness, capriciousness and unproportionality,
as well as the common law principle of due process of law. [29]
In A v Australia [30]
the Human Rights Committee stated that detention was arbitrary if it was
"not necessary in all the circumstances of the case" and if it was not
a proportionate means to achieving a legitimate aim. [31]

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 [32]
confirmed that there are various factors which may render an otherwise
lawful detention arbitrary. It said that:

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.

Furthermore, the jurisprudence
of the UNHRC has established that even if the initial detention is not
arbitrary, a subsequent period of detention may become arbitrary, for
example, when one has regard to the length of the detention. [33]

(c) MSI 244

As discussed in Part
4.2 of this Report, the Migration Act is silent on the circumstances which
would justify the transfer of an immigration detainee from an IDC to a
State prison. This area is instead regulated by Departmental policy as
set out in MSI 244. MSI 244 provides guidelines for the selective transfer
of detainees from an IDC to a State prison and for their return from a
prison to an IDC. [34]
In its written submissions of 17 August 2001, the Department described
MSI 244 as follows:

MSI 244 outlines
the circumstances and procedures for the transfer of immigration detainees
to state correctional facilities, and was developed in conjunction with
the Commonwealth Ombudsman's Office. In response to the most recent
Ombudsman's report into Immigration Detainees Held in State Correctional
Facilities, DIMA is further clarifying the provisions of MSI 244 to
ensure more thorough documentation of the management of detainee behaviour
and to improve the process of transferring a detainee to a state correctional
facility.

MSI 244 emphasises
the importance DIMA accords to the making of transfer decisions. The
decision to transfer a detainee to a state correctional authority is
made by a senior departmental officer (usually the State Director) only
after careful consideration of a range of factors which indicate that
the individual cannot be appropriately managed in the IDF environment.
There are instances in which the delegate has decided against transfer
to prison.

The reasons for such
transfers vary and are not restricted to criminal behaviour but may
relate to other concerns such as the risk to other detainees and risk
of escape.

Detainees have a legitimate
expectation that MSI 244 will be followed. As it provides the only procedural
safeguard for detainees who are at risk of being transferred to State
prisons, strict compliance with this Instruction is crucial to the protection
of their rights. 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.

(d) The Department's
general comments on article 9(1)

In its written submission
of 17 August 2001, the Department made a number of general comments about
the nature of detention centres and behaviour management strategies relevant
to a consideration of article 9(1) of the ICCPR.

The Department stated:

The Nature of Detention
Centres

You claim in your preliminary
findings that:

  • the prison environment
    is not an appropriate place of detention for administrative, immigration
    detainees
  • with the exception
    of those detainees serving sentences for escaping from immigration detention,
    none of the abovementioned detainees who were transferred to state prisons
    were charged with and convicted of any criminal offence which would
    warrant them serving time in a prison

By their very nature,
immigration detention facilities are low to medium security environments.
They accommodate men, women, children, the elderly, single persons and
family units. Given this mix of populations and the administrative nature
of the detention it is of paramount importance that the routines in these
centres remain as close as possible to that of normal community living.

Unlike officers in
correctional facilities, detention officers have only limited powers to
compel detainees to comply with routines or to behave in ways appropriate
to the maintenance of a safe, secure and operational facility.

Not all immigration
detainees are cooperative and prepared to behave appropriately.

In this context, it
is important to emphasise that DIMA's duty of care includes but extends
beyond the individual of behavioural concern to ensuring the safety and
welfare of all detainees in a facility.

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.

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 1958 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.

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

In designing new centres
and in redeveloping and refurbishing existing facilities, DIMA is ensuring
that appropriate infrastructure is in place to better manage difficult
detainees within our own facilities. Legislative amendments have recently
been passed which enhance powers to search visitors to detention facilities
and increase penalties for escape and incitement. Further legislative
amendments have been proposed which, if passed, will enhance powers to
search detainees. Further measures to better manage difficult detainees
are also being considered.

DIMA does not, however,
agree with suggestions that the environment provided by a correctional
institution is inappropriate for the management of unacceptable behaviour
by a detainee, where the transfer occurs as a measure of last resort.
Indeed, neither do relevant state and territory Ministers who, at the
Corrective Service Ministers Conference in June, agreed to hold immigration
detainees in state correctional facilities "in exceptional circumstances".

Behaviour Management

Considerable effort
is dedicated to managing detainee behaviour within immigration detention
facilities (IDFs) and ACM, as our contracted service provider, has a number
of behaviour management strategies already in place. Depending on the
nature of the incident, the strategies may include:

  • counselling about
    disruptive behaviour and the potential consequences
  • counselling for
    parties involved in a dispute
  • individual management
    plans
  • observation of the
    detainee
  • placement in an
    observation room for a cooling off period (from hours to several days
    - and sometimes at a detainee's own request)
  • transfer to a different
    area within the centre
  • psychological or
    psychiatric assessment and, if necessary, treatment
  • referral to an outside
    agency for assistance or investigation
  • transfers to other
    centres
  • involvement of residents'
    committees.

The strategies in place
address the suggestions in your further preliminary findings that inappropriate
behaviour by detainees be managed to the fullest extent possible within
the detention centre.

Consequently, transfer
to prisons occurs only as a last resort. Just over 1% of detainees are
transferred in this way. In 1999-2000, a total of 8,205 people were held
in immigration detention (for a total of 960,452 days). Of these, 91 were
transferred from IDFs to state correctional facilities for some part of
their period in immigration detention. Seven of these were transferred
twice, bringing the total number of transfers from IDFs to 98. These statistics
illustrate the fact that transfers to state correctional facilities are
only authorised in exceptional circumstances.

As of 31 July 2001
there were only nine immigration detainees currently detained in state
correctional facilities who had been transferred from an IDF, eight of
whom had escaped from immigration detention facilities.

You claim in both your
preliminary and further preliminary findings that the transfer of detainees
to state correctional facilities is used as a form of punishment, contrary
to the provisions of MSI 244. DIMA submits that it is erroneous to characterise
such transfers as punishment where the detainee exhibits behaviour that
is clearly inappropriate for the low to medium security environment of
an immigration detention centre.

Detainees, as part
of the both the induction and counselling process, are advised of the
possible consequences of their actions and behaviour, including the possibility
that they may be transferred to a correctional facility.

This principle is clearly
outlined at paragraph 4.1.2 in MSI-244:

Detainees should
be counselled regarding their unacceptable behaviour and advised that
unless there is an improvement in conduct, removal to a correctional institution
may result. It is important that detainees are informed of the possible
outcomes of their behaviour and appreciate their share of responsibility
in resolving the issue of unacceptable behaviour.

Nevertheless, detainees
may behave in such a manner that their behaviour becomes unmanageable
in an immigration detention centre, necessitating their transfer to a
more appropriate facility.

You state in your preliminary
findings:

  • the decisions
    to transfer the abovementioned immigration detainees (apart from Mr
    Singh Gill and Mr Qasim) to state prisons were not always taken as a
    last resort; did not take into consideration the underlying causes for
    "bad" behaviour nor were appropriate steps taken to manage their behaviour

All appropriate steps
were taken to manage the detainees' behaviour while in the various IDFs.
Most of the detainees were counselled on numerous occasions that their
behaviour was unacceptable and were warned of the possible consequences
should they continue with such behaviour.

You imply that there
may have been underlying causes for the unacceptable behaviour by a number
of the detainees that remained unknown to the decision-makers.

While you do not appear
to raise it as a particular concern, I would point out that the Immigration
Detention Standards (IDS), which were developed in consultation with the
Commonwealth Ombudsman, place particular emphasis on the sensitive treatment
of the detention population which may include torture and trauma sufferers,
family groups, children and the elderly, and persons with a fear of authority.

Special attention is
given on arrival in Australia to identifying and assisting persons who
may have suffered from torture or trauma. There is also ongoing access
to torture/trauma counselling in detention centres.

The refugee determination
process involves a comprehensive assessment of all factors relevant to
establishing a well-founded fear of persecution. Any incidents or experiences
of torture or trauma are critical to founding a claim under the Convention.
As all of the cases included in your current investigation applied for
protection and were found not to be refugees, it is unlikely that there
are incidents of torture or trauma which have not been brought to the
attention of DIMA staff.

It is more likely that
the refusal to grant them visas and their ongoing detention and impending
removal from Australia contributed to their unmanageable behaviour. This
does not, however, detract from the fact that their behaviour was assessed
as being inappropriate for the low to medium security immigration detention
environment.

(e) Harvinder Singh
Gill and Mohamed Qasim

In my Further Preliminary
Report, I was of the view that Mr Gill and Mr Qasim's detention in the
WA State prisons following the completion of their custodial sentences
on 16 July 1999 was arbitrary as it was not reasonable or necessary in
all the circumstances. Nor was it a proportionate means of achieving the
objective of managing detainees in the low security environment of an
IDC.

In its written submissions
in response to this finding dated 17 August 2001, the Department made
the general comments set out in Part 4.4.1.1(d) of this Report. It also
specifically referred to these detainees and stated that:

Mr Gill and Mr Qasim
escaped from PHIRPC on 17 April 1999 and were subsequently sentenced
to prison terms for the escape. After the conclusion of their prison
sentences they continued to be detained in a correctional facility for
a period of two months.

You state that:

there was no suggestion
that their behaviour could not be managed in an IDC

Clearly Mr Gill and
Mr Qasim represented an escape risk. DIMA sought to return both men
to either an IDC or IRPC. However, given their previous escape from
PHIRPC it was not considered appropriate to return Qasim and Gill to
that facility.

A decision was made
to transfer them to the PIDC, which is a more secure facility, and one
of which the detainees had no local knowledge. PIDC was at capacity
at the time and a decision was made to transfer the four detainees to
the IDC as space became available. It was clearly reasonable to detain
Mr Gill and Mr Qasim in a state correctional facility while the Department
was waiting to transfer them to PIDC in the circumstances.

MSI 244 clearly articulates
the procedures that must be followed when an immigration detainee completes
a custodial sentence.[35]
Paragraph 2.1 of MSI 244 provides that the detention of immigration detainees
within prisons should occur as a last resort. In this limited context,
detention within a prison, when a detainee has completed a custodial sentence,
should only occur where:

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

Paragraph 4.9.2 of
MSI 244 provides that:

[w]here a criminal
detainee is about to complete a custodial sentence a formal review and
decision on the appropriateness of continued detention in a State prison
should be conducted 4 weeks before the completion of the sentence. This
will avoid any prolonged detention in a State prison if the decision
is made to transfer the detainee to an IDC at the end of the custodial
sentence.

In addition, paragraphs
7.1.1 and 7.3.1 of MSI 244 provide that once a person completes a custodial
sentence, regular monthly reviews of the place of detention must be undertaken.

The Department advised,
in their written submissions of 17 August 2001, that:

Detention Operations
assessed the situation and sought to return the group (including both
men) to either an IDC or IRPC. However, given their previous escape
from PHIRPC it was not considered appropriate to return Qasim and Gill
to that facility. No notes from Ministry of Justice welfare officers
or counselors were received as part of a "detention review" process.

A decision was made
to transfer them to the PIDC, which is a more secure facility, and one
of which the detainees had no local knowledge. PIDC was at capacity
at the time and a decision was made to transfer the four detainees to
the IDC as space became available.

The detainees were
telephoned regularly to allow them to raise any issues they may have
had and to advise them that they would be transferred to the PIDC when
capacity allowed for it.

Despite the fact that
the question of Mr Gill and Mr Qasim's detention does appear to have been
considered at some level by "Detention Operations", I do not accept that
a formal initial review was conducted in accordance with paragraph 4.9.2
of MSI 244. Reports from the correctional facility, as to the detainees'
behaviour in the IDC, and from the PHIRPC were not sought or obtained
nor is there a record of this review process.

In addition, I do not
accept that monthly reviews were conducted in accordance with paragraphs
7.1.1 and 7.3.1 of MSI 244. In a letter dated 24 October 2000, the Department
advised that, as required by MSI 244, the detention of Mr Gill and Qasim
in a State prison following the conclusion of their sentences "was the
subject of regular review". Contrary to this suggestion, in a letter dated
19 February 2001, the Department advised that:

[a]s no transfer
had taken place under MSI 244, reviews per se were not undertaken. However,
the detainees were telephoned regularly to allow them to raise any issues
they may have had and to advise them that they would be transferred
to the PIDC when capacity allowed for it. No notes from Ministry of
Justice welfare officers or counsellors were received as part of a "detention
review" process.

This position appears
to have been conceded in the Department's written submissions of 17 August
2001, where no mention is made of monthly reviews.

As no reviews were
undertaken in accordance with MSI 244, I find that no consideration was
given by the Department to holding the detainees in a form of immigration
detention which was least restrictive of their rights. It is accepted
that there were legitimate security reasons underpinning the Department's
decision not to return the detainees to the PHIRPC. It is also accepted
that the Perth IDC did not have capacity to hold the detainees until 17
September 1999. However, in circumstances where there was no suggestion
that the detainees' behaviour could not be managed in an IDC, consideration
should have been given to holding the detainees in an IDC in another State
until there was room at the Perth IDC. As there was no consideration of
this matter, it could not be said their detention within the WA State
prisons occurred as a last resort.

For all of the above
reasons, I have formed the view that the detention of these detainees
in the WA State prisons between 16 July 1999 to 17 September 1999 was
arbitrary and in breach of article 9(1) of the ICCPR. I note that the
UNHRC has, on a number of occasions, found detention following the expiration
of a criminal sentence to be arbitrary and a breach of article 9(1). [36]
In this case, it could not be said that the detention of these detainees
was reasonable and necessary in the circumstances nor that it was a proportionate
means of achieving a legitimate end, namely, the holding of these detainees
in immigration detention. The breaches of MSI 244 evidence a lack of consideration
of the most appropriate form of detention for these detainees following
the completion of their sentences and lend weight to my conclusion that
their detention was arbitrary. [37]

(f) Mr CD

In my Further Preliminary
Report, I was of the view that Mr CD's detention in the MRRC was arbitrary
and in breach of article 9(1) of the ICCPR. In its written submissions
of 17 August 2001, the Department responded generally to this finding
(these comments are set out in Part 4.4.1.1(d) of this Report), and also
made some specific submissions in relation to Mr CD's detention. The Department
stated that:

The decision to transfer
Mr CD to a state correctional facility was taken as a result of Mr CD's
violent action in attempting to overturn a desk onto a DIMA officer.
When counselled by the centre manager, Mr CD continued to respond with
verbal outbursts and continued his threatening behaviour to the point
where it was necessary to restrain him. His behaviour was such that
it was inappropriate to continue his detention at VIDC at that time
and he was transferred to Silverwater MRRC.

I would also draw
to your attention the fact that Mr CD also acted in a violent manner
during two lawful attempts to remove him from Australia, requiring his
removal to be aborted in both instances. Mr CD was returned to Villawood
on 2 December 1999, 52 days after his initial transfer. He was returned
to Stage 1 of Villawood and was transferred to Stage 2 of Villawood
on 13 June 2000.

On 11 October 1999,
Mr CD was interviewed by a Departmental officer in the Video Conference
Room at Stage 1 of the Villawood IDC. He was advised that the Minister
of the Department had refused his request to intervene in his matter.
This was the last avenue open to Mr CD to remain in Australia, as his
appeal to the Full Court of the Federal Court against the Refugee Review
Tribunal decision to refuse his application for a protection visa had
been dismissed. In the Incident Report, Mr Cahill, the Operations Manager
at the Villawood IDC detailed the events of this day. He reported that:

[a] short time into
the interview, without warning Detainee CD grabbed the desk, that Immigration
Officer Efrem was sitting behind, with both hands and endeavoured to
up end it on top of the Officer. Detainee CD continued to yell abuse
at Immigration Officer Efrem who quickly left the room. Detention Supervisor
RAJ called a "CERT 1" on the radio and attempted to restrain the Detainee.

With the assistance
of other officers Detainee CD was restrained and placed in a chair and
the CERT 1 stood down. Operations Manager CAHILL tried to get Detainee
CD to calm down and discuss his problems rationally but he continued
to struggle violently and yell and scream abuse. He was continually
jumping out of the chair shouting and trying to intimidate the Officers.
Operations Manager eventually instructed that mechanical restraints
be placed on Detainee CD for his own protection and for the safety of
the Officers present.

The centre Manager
arrived and also endeavoured to calm Detainee CD down but he refused
to desist and continued his aggressive behaviour by jumping out of the
chair and trying to threaten and intimidate those present.

Detainee CD's behavior
was now attracting the other Detainees and a large group was gathering
in the Fishbowl area. Detainee CD was removed from the Video conference
room to the secure room near the airlock until arrangements were made
for his transfer to a State Correctional Facility. [38]

A recommendation was
made by Ms Kay Symons, on behalf of the NSW Business Manager at the Villawood
IDC, that "[g]iven [Mr CD's] behaviour and the risk he presents to the
detainees and officers, it would seem appropriate to transfer him to a
State facility". [39]
This recommendation was accepted by the NSW State Director and Mr CD was
transferred to the MRRC that evening.

Reason for transfer

The attempted overturning
of a desk onto a Departmental officer during an interview is undoubtedly
an incident of concern to the Department and cannot be condoned. Although
no injury was occasioned by the Departmental Officer, Mr CD's conduct
clearly constitutes a technical assault. In this regard, Amnesty has submitted,
in its response of 13 July 2001, that:

if Mr CD had intended
to overturn a desk on to a Departmental officer during an interview,
this would have constituted an assault, for which Mr CD could have been
charged and dealt with by the courts in accordance with law. Attention
is drawn to the following provisions of paragraphs 4.7.1 and 4.7.2 of
MSI 244 . The terms of paragraphs 4.7.1 and 4.7.2 of MSI 244 would lead
one to expect that the question of prosecution had been duly considered
and the conclusion reached that the circumstances indicated that Mr
CD lacked the necessary mens rea to be found guilty of any criminal
offence.

If there was a bona
fide
view formed that there was a prima facie case that Mr
CD intended to harm the Departmental officer, it seems inexplicable
that Mr CD was not charged. But if it was considered that there did
not appear to be at least a prima facie case that Mr CD intended
to harm the Departmental officer, then this would be a further ground
for considering that Mr CD's imprisonment was arbitrary and in breach
of Article 9(1) of the ICCPR.

Paragraph 4.7 of MSI
244 provides that:

4.7.1 In all cases,
involving allegations of unlawful behaviour, consideration should be
given to reporting the matter to the police. Factors to be taken into
consideration include the seriousness of the act, the intention and
maliciousness of the act, and the effect on the daily operations of
the IDC if no action is taken.

4.7.2 Consideration
should also be given to the likelihood of success in laying charges
in each case. ...Factors to be taken into account include the quality
of the evidence and possibly, the seriousness of the offence. It is
questionable, in terms of the national interest, to pursue prosecution
where the penalties are likely to be minimal or if there is little chance
of a successful prosecution.

Although I do not conclude,
as is suggested by Amnesty, that there was no prima facie case against
Mr CD for a charge of assault,[40]
it must be assumed that the Department either did not think it was appropriate
in the circumstances, or did not consider this incident to be sufficiently
serious, to warrant a report to the police and the laying of criminal
charges against Mr CD.

The significance of
this incident is also reduced when it is viewed in its context. In the
22 months that Mr CD had been detained in the IDC, he had had no adverse
reports and was of good behaviour. On the day of this incident, Mr CD
had discovered that one of his last avenues of appeal had been unsuccessful
and, one can assume, felt frustrated and disappointed. If a medical report
had been obtained prior to the transfer, as required by paragraph 4.1.4
of MSI 244, this report would have revealed that a transfer was not necessary.
When Dr Galea examined Mr CD on 13 October 1999 he found that:

[w]hile in the [VIDC],
this detainee has never exhibited any abnormal or aggressive behaviour
and my opinion is that this outburst of behaviour was an episodic one
and also because of the situation he was in at the time. From that point
of view I do not expect that this gentleman, once he is resigned to
the fact that he is going to be removed, that he will exhibit any untoward
aggressive type behaviour. [41]

Did the transfer
occur as a last resort?

Paragraph 21 of MSI
244 provides that a transfer from an IDC to a State prison must occur
as "a last resort". Concomitantly, paragraph 4.1.2 of MSI 244 provides
that:

[d]etainees should
be counseled regarding their unacceptable behaviour and advised that
unless there is an improvement in conduct, removal to a correctional
institution may result. It is important that detainees are informed
of the possible outcomes of their behaviour and appreciate their share
of responsibility in resolving the issue of unacceptable behaviour.
Additional warnings, counseling sessions and/or the withdrawal of privileges
may also be considered depending on the nature and severity of the behavioural
problem. For instance the use of 'time-out' or 'cooling-off period'
in a neutral space (for a short period), to allow a detainee to calm
down may be appropriate.

As this was the first
time that Mr CD had exhibited any behaviour of concern, it is disappointing
that the Department did not try to manage his behaviour in a manner that
was least restrictive of his rights. It appears that the only "counselling"
Mr CD received in relation to this incident was by ACM staff in the interview
room at the time of this incident. He did not receive any professional
counselling from a psychologist or similarly trained person, even though
he was receiving important life changing news on this day. No other behaviour
management strategy was utilised and there is no evidence of an "individual
management plan" or of any consideration being given to a transferring
to a different area within the IDC or a more secure IDC. Mr CD was given
no opportunity to modify and improve his behaviour.

The placing of Mr CD
in seclusion immediately after this incident does not appear to have been
used as a behavioural management tool. The Incident Report, quoted above,
states that Mr CD was placed in seclusion "until recommendations were
made for his transfer to a State Correctional Facility". This would suggest
that seclusion was being used not to resolve the situation but as a holding
place until he could be transferred to the MRRC. In light of all of these
matters, I do not believe that the transfer could be described as occurring
as a "last resort".

Conclusion

After a consideration
of all of the evidence before this inquiry, I have formed the view that
Mr CD's transfer to the MRRC on 11 October 1999 subjected Mr CD to arbitrary
detention in breach of article 9(1) of the ICCPR. In my view, this transfer
to the MRRC was not reasonable or necessary in all of the circumstances
and nor was it a proportionate response to the incident which occurred
on this day. This incident was triggered by a particular event and, in
my opinion, was not of sufficient magnitude to warrant a transfer to a
State prison. Had Mr CD been given the opportunity of a "cooling-off period"
and some professional counseling, I am of the view that his behaviour
could have been managed within the low security environment of the IDC.
The fact that the Department failed to comply with MSI 244 further supports
a conclusion that the detention in the MRRC was arbitrary.

4.4.2 Article
10(1) of the ICCPR

In its written submissions,
Amnesty submitted that I should find that the Department's actions in
relation to Mr AB were inconsistent with and contrary to his human rights
recognised in article 10(1) of the ICCPR.

4.4.2.1 Relevant
jurisprudence and commentary on article 10(1) of the ICCPR

Article 10(1) of the
ICCPR provides that:

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

Article 10(1) extends
to all deprivations of liberty, including that which occurs when a person
enters immigration detention, and requires that minimum standards of humane
treatment be observed in the conditions of detention. The UNHRC has stated
that:

[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
.

The scope of article
10(1) was addressed in detail in the Report of the Human Rights Commissioner
of May 2000 [44]
concerning the conditions of detention of a Nigerian national 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).

It is clear from UNHRC
jurisprudence that the threshold for establishing a breach of article
10(1) is lower than the threshold for establishing 'cruel, inhuman or
degrading treatment' within the meaning of article 7 of the ICCPR. [45]

Professor Manfred Nowak
summarises this jurisprudence as follows:

[w]hereas 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'. [46]

4.4.2.2 Rape of
Mr AB at the MRRC

In its written submissions
of 13 July 2001 and 5 August 2001, Amnesty alleged that the Department's
treatment of Mr AB within the MRRC constituted a breach of article 10(1)
of the ICCPR. In its written submissions of 13 July 2001, Amnesty invited
my attention to:

. [Mr AB's] claim
that he was raped by five (5) other inmates of the goal on 20 Apri1
1998 .

[Mr AB] was born
on 3rd April 1974. He was therefore aged 23 when first transferred to
prison on 9 October 1997. At that age he was obviously at risk of sexual
assault in prison but this risk appears never to have been considered.

In telephone conversations
with Amnesty International, [Mr AB] informed us that while he was in
prison he was not willing to make any official complaint regarding the
sexual assault upon him as he feared that if he did so he would be killed
by other prisoners as an informer. [Mr AB's] fear appears to have not
been unreasonable. Amnesty International understands that [Mr AB] may
have seen an Asian prisoner who had become his friend stabbed to death.
Amnesty International understands that this death may have been reported
in the press .

. There appears to
be an abdication of responsibility here. DIMA [the Department] knew
about the allegation that [Mr AB] had been sexually assaulted by five
prisoners yet DIMA simply left him in that situation.

. There may well
also have been cultural factors in [Mr AB's] unwillingness to submit
to examination. Amnesty lnternational understands that [Mr AB's] shame
and humiliation was such that a considerable time elapsed before he
confided to Sister Beth Egan O.P. that he had been raped.

In its response of
17 August 2001, the Department stated that:

DIMA is concerned
about [Mr AB's] allegations that he was sexually assaulted.

I should point out
that [Mr AB] first raised the allegations with DIMA staff on 15 July
1998, some 86 days after the incident was alleged to have occurred.
DIMA responded to the allegations, when advised of the alleged incident
by [Mr AB], by requesting that management of the correctional facility
investigate the allegations.

[Mr AB] was taken
to Westmead Hospital to be examined by a doctor where he refused to
be examined .

. It also appears
that [Mr AB] informed Amnesty of the alleged incident in a letter dated
8 June 1998, some 37 days prior to the allegations being raised with
the Department or Silverwater MRRC management, yet Amnesty do not appear
to have brought this to the attention of either DIMA or Silverwater
MRRC management .
While DIMA does not dispute that there may have been reasons why
[Mr AB] may not have made a formal report of the alleged assault, I
would submit that it is hardly appropriate to hold DIMA responsible
for an alleged act that went unreported to the Department by the detainee
for 86 days, nor was the matter brought to DIMA's attention by the management
of the correctional facility.

In its written submissions
of 11 March 2002, the Department argued that there was no evidence to
support Mr AB's assertion that he had been raped and, therefore, no basis
for finding a breach of article 10(1) of the ICCPR. It stated:

[i]n the matter of
[Mr AB], there is no supporting evidence to his allegation of sexual
assault. As previously advised in response to earlier preliminary findings,
[Mr AB] only raised the allegation with the Department of Immigration
and Multicultural and Indigenous Affairs (the Department) staff 86 days
after the incident was alleged to have occurred. The Department immediately
responded to the allegations by requesting that management of the correctional
facility conduct an investigation. The Assistant Operations Manager
of Silverwater Metropolitan Remand Correctional Centre (MRCC) advised
the Centre had received no previous notification of the event. [Mr AB]
was interviewed by senior staff following receipt of the notification,
but refused to name his alleged assailants or take police action over
the matter.

He was treated by
the Correctional Health Staff at the MRCC and was escorted to the Sexual
Assault Clinic at Westmead Hospital for follow up treatment where he
refused to be examined. The medical practitioner at Westmead observed
to the Departmental officer that he "was a little sceptical about the
circumstances of the a/n's claims given that such a length of time had
elapsed before the goal authorities were advised."

As previously advised
there are established legal and administrative avenues available to
enable claims of sexual assault to be investigated. At no time did Mr
AB avail himself of these avenues, nor did he assist the inquiry into
the alleged sexual assault. While we agree that adverse conclusions
should not, necessarily, be drawn from a person's failure to inform
or to allow himself to be medically examined, neither can conclusions
that events took place be drawn. There is simply insufficient evidence
to test the veracity of [Mr AB's] allegations of sexual assault. On
this basis, the Department suggests the statement under "Factual Findings"
that it does not dispute that [Mr AB] was raped, is inaccurate.

A Departmental minute
dated 8 June 1998 states that "[Mr AB] did not raise any matters of
concern regarding his current place of detention." File notes made in
the months following the alleged sexual assault reveal a preference
by [Mr AB] to remain in the MRRC rather than be transferred back to
the Immigration Detention Centre.

The Human Rights
Committee (the Committee) has previously examined various claims of
alleged Article 10 violations. In most cases where the Committee has
found a violation of Article 10, there has been unrefuted evidence of
conditions which do not meet the basic requirements of prisoners (ie
food, clothing, medical care, sanitary facilities, communication, light,
opportunity to move about, privacy etc.).

In Lloyd Grant v
Jamaica
, a prisoner claimed that, amongst other allegations, he was
beaten by police on two occasions, threatened, whipped with electric cable,
and administered electric shocks. In the absence of supporting medical
evidence, the Committee was unable to find violations of Article 10 of
the Covenant. In this instance, there is no supporting medical or other
evidence in relation to the alleged sexual assault.

(a) Factual findings

Amnesty alleges that
Mr AB was raped by five inmates at the MRRC on 20 April 1998. Mr AB describes
this violent assault in a letter to Amnesty dated 24 May 1998:

Five people came
to my cell with a knife and they tied my hands togethers (sic). They
told me not to say anything otherwise I would get killed. I am not a
homosexual, but they forced me.

Mr AB informed the
Department of this assault on 15 July 1998. The Department advises that
it responded to this disclosure by requesting the management of the MRRC
to investigate the allegations. In a report provided to the Department,
the MRRC stated that:

[t]his Centre was not
previously notified by either [Mr AB] or any other party of the alleged
incident. On receipt of your letter, [Mr AB] was interviewed by senior
staff in the MRRC and he has told us that he was raped on [20 April 1998].
He also informed us that he did not notify any person of the incident
within the Centre out of fear for his safety. Consequently no investigation
was carried out by the MRRC staff in respect of the incident.

[Mr AB] refuses to
name his assailants or take police action over the matter. He has been
treated by the Correctional Health Staff at the MRRC and was escorted
to the Sexual Assault Clinic at Westmead Hospital for follow up treatment.
[47]

At Westmead Hospital,
Mr AB was taken to see Dr Vasillidis. However, Mr AB refused to be examined
by this doctor, who reported that Mr AB had not wanted to attend the hospital
in the first place and that it would be extremely unlikely that any examination
would have been of any consequence, given the length of time which had
elapsed.[48]
Dr Vasillidis also reported that he was "a little sceptical" about Mr
AB's claims given the length of time which had elapsed before the goal
authorities were advised. [49]

In its written submissions
of 11 March 2002, the Department asserted that there is "no evidence to
support the allegation" that Mr AB had been raped at the MRRC. In apparent
support of this submission, the Department referred to Mr AB's delay in
reporting this assault, his refusal to name or pursue a prosecution of
his assailants and his refusal to be examined.

After considering all
of the evidence before this inquiry, I am satisfied that Mr AB was raped
at the MRRC. Amnesty has provided evidence to this inquiry, and I accept,
that Mr AB twice complained to Amnesty of his rape in the MRRC soon after
it occurred, on 24 May 1998 and 8 June 1998. Mr AB also complained of
this assault when he was questioned by officers at the MRRC at some stage
subsequent to 15 July 1998. The accounts provided by Mr AB to Amnesty
and the MRRC are consistent.

I do not draw any adverse
inference from Mr AB's refusal to submit to a medical examination. I accept
that there may have been cultural factors, as suggested by Amnesty, or
other good reasons involved in Mr AB's unwillingness to submit to such
an examination. Nor do I draw any adverse inference from Mr AB's delay
in making a complaint to the prison authorities. In its written submissions
of 13 July 2001, Amnesty asserted that Mr AB was not willing to make any
official complaint regarding his sexual assault as he feared he would
be killed by other prisoners. This explanation for Mr AB's delay in making
a complaint is not disputed by the Department and was the one Mr AB offered
to the officers from the MRRC when he was interviewed regarding this incident.
It is not clear if Dr Vasillidis questioned Mr AB about his delay in making
a complaint. I note that this would also explain Mr AB's refusal to name
his assailants or assist in any police investigation into his assault.

In its submissions
of 11 March 2002, the Department referred to UNHRC jurisprudence to support
its argument that in the absence of medical or other evidence to corroborate
Mr AB's account of his abuse, there was no "unrefuted evidence" of the
facts constituting the breach of the ICCPR.

In Mukong v Cameroon,
[50]
the UNHRC commented on the evidential requirements of a complaint under
the Optional Protocol of the ICCPR:

[t]he Committee does
not accept the State party's views [that the burden of proof lies with
the author of the complaint]. Mr Mukong has provided detailed information
about the treatment he was subjected to; in the circumstances, it was
incumbent upon the State party to refute the allegations in detail,
rather than shifting the burden of proof to the author. [51]

An analysis of the
jurisprudence of the UNHRC reveals that in many instances where this body
has found the evidential requirements for a complaint not to have been
satisfied, evidence had only been provided of general circumstances, for
example, of general conditions in a prison, rather than of specific individual
suffering. [52]

In Grant v Jamaica,
the case referred to by the Department in their submissions, the UNHRC
provided only scant reasons for its failure to find violations of articles
7 and 10 of the ICCPR. It would appear that as there was detailed evidence
(in the form of a transcript of evidence of the police officers allegedly
responsible for assaulting the author while he was in custody) refuting
the author's allegations, the Committee took the view that it was unable
to uphold the complaint in the absence of supporting medical evidence.

In Mr AB's case, I
have formed the view that there is sufficient evidence to support a finding
that he was raped in the MRRC in the manner described by him. Evidence
has been provided to this inquiry by Amnesty of Mr AB's specific individualised
allegations. The Department has not provided any evidence refuting this
allegation (and, as discussed above, I am not prepared to draw the inferences
suggested by the Department). Corroboration of Mr AB's account is found
in the consistency of his complaints to Amnesty and to officers of the
MRRC when specifically questioned about this incident and the fact that
his complaint to Amnesty was made at an early stage. It is true that there
is no medical evidence to support Mr AB's account of his violent rape.
However, a lack of evidence of this nature is not uncommon in sexual assault
matters and Dr Vasillidis noted that even if Mr AB had subjected himself
to a medical examination it would have been unlikely to have yielded results.
It is difficult to imagine what other evidence to support Mr AB's allegation
might be available. I assume that, like the majority of sexual assaults,
this one occurred in private, with the only witnesses being the victim
and the perpetrator/s. Even if it did not, a rape in a prison environment
is unlikely to elicit witnesses.

(b) Was article
10(1) contravened?

Article 10(1) imposes
a positive obligation on a State party to provide humane treatment to
persons in detention, particularly in the conditions of their detention.
The detention of Mr AB in a State prison does not constitute an act or
practice into which the Commission may inquire (see Part 4.2 of this Report).
The issue for determination by me is whether the Department failed to
treat Mr AB with humanity and with respect for his dignity in its decision
to maintain his detention in the MRRC after he reported his rape to the
Department on 15 July 1998, and in its decision to transfer Mr AB to the
MRRC on 26 August 1998.

As discussed above,
rape is a gross violation of a person's human rights and it is well accepted
that such an assault can have long term emotional and psychological ramifications
for the victim. In Mr AB's case, it is plain that his mental health deteriorated
after his rape. While this deterioration cannot be attributed solely to
the rape, it was clearly a contributing factor. The Departmental officer,
to whom Mr AB disclosed that he had been raped, commented that:

I am personally concerned
about [Mr AB] given his alleged rape, his fear and loathing of other
prison inmates, his opinion of the IDC security personnel, his determination
never to return to Stage 1 and his general brooding. [53]

Dr Vasillidis of Westmead
Hospital was so concerned about Mr AB's mental health following his consultation
that he telephoned Mr AB's Immigration Officer, Mr Peter Suart. Mr Suart
reports that Dr Vasillidis expressed his concern about Mr AB being in
detention for such a long time and wanted to know if Mr AB had been forgotten
by the Department. [54]

In February 1999, Mr
AB wrote a letter to the Department. It is in the following terms:

Department of Immigration

To whom it my concern

Dear Sir/Madam

My name is [Mr AB].
I was born in Luanda, Angola on the 3rd April 1974. For a long time
I have asked you to remove me from Australia and this maximum security
prison. I am not a criminal. I am not a person you should keep a long
time in jail.

Here in prison there
is too much racism between inmates. I have been called "nigger" and
different names a number of times by some white prisoners. This is because
I am the only African person in my pod.

They don't want to
call me [A - his first name] or [B - his second name]. It is "'nigger"
all the time and it hurts me a lot. Being born dark is not my fault.
I'm just a human being.

I can not use any
physical force. I don't fear these people but I show them respect, because
if I fight with them I will commit a serious crime and I will stay all
my life in prison.

I did not come to
Australia to be in prison or to commit crime. I can not complain to
the officers because if I complain the problems get even bigger for
me with other prisoners. When anything bad happens in this place, if
the officer asks who did it I answer that I do not know because I need
to protect myself from other inmates.

I know it is very
difficult for you to understand how we live in here, but this is the
prison system in reality.

And remember, I'm
not a criminal or even an accused person, only a refugee trying to begin
a new life.

In Australia many
Africans who come here seeking refuge have been deported to different
parts of Africa where they don't belong. This is very wrong because
these people are not welcome over there. There are many very different
countries in Africa, with different cultures and languages.

You are doing this
to us because our country, our government don't want us back because
of persecution and civil war. I understand I will be in great danger
in Angola. However despite this, my wish is that I would like to go
back to my country of origin Angola, where at least I have family and
friends.

But Australian Immigration
think we Africans are all the same in tradition language the politics,
etc.

I am asking you again
to remove me from Australia. I don't care where you want to send me:
Chad, Somalia, Togo, Congo, Uganda, any place in Africa.

I just want to get
away from people who want to put my future in danger here in an Australian
jail.

Please. I want you
to take this matter seriously,

Yours Faithfully

[Mr AB]

In July 1999, Mr AB
advised the Department that he was going through a "brain explosion" [55]
and had a "sickness in the brain".[56]
In September 1999, the Department was concerned enough about Mr AB's "history
of mood swings . claims of mental illness, and his reluctance to undergo
formal counselling at the MRRC" to have him formally assessed by a clinical
psychologist. [57]
The report of this psychologist has not been provided to this inquiry.

In March 2000, the
MRRC reported that Mr AB is "often angry". [58]
On 24 March 2000, Mr AB wrote his final letter to the Department. He stated
that:

I am sorry but I
can not stand this kind of torture any more.

I want to go back
to Africa that is where I belong. I don't care which country in Africa
they want to send me to, I just want to get out of Australia.

On 13 April 2000 Mr
AB was deported to Angola.

I have examined all
of the monthly reviews of Mr AB's place of detention subsequent to 15
July 1998 and Departmental documents relating to the decision to return
Mr AB to the MRRC on 26 August 1998. I was surprised to discover that
on no occasion did the Department consider, or even mention, the rape
of Mr AB in either of these decision making processes. As Amnesty correctly
highlights, the Department should have had regard, in these decision making
processes, to the risk of a further sexual assault of Mr AB while held
at the MRRC. It should also have considered the effects of this violent
assault on Mr AB's mental health, including the effects of his continued
detention in the environment where this rape was perpetrated. It is of
great concern to me that Mr AB did not receive any professional assessment
of his mental health until September of 1999.

In my view, the matters
raised above should have been considered even if the Department had had
doubts about the veracity of Mr AB's allegations of sexual assault and
even if Mr AB had expressed a preference for remaining at the MRRC. These
matters, along with all other relevant considerations including those
listed in the Department's written submissions of 11 March 2002, should
have been weighed and balanced in the decision making process. That the
rape of Mr AB did not factor in the decision making process at all, either
on review or in the transfer decision of 26 August 1998, constitutes a
failure to treat Mr AB humanely and with respect for his dignity and a
breach of article 10(1) of the ICCPR.

4.4.3 Article
10(2)(a) of the ICCPR

Article 10(2)(a) of
the ICCPR provides that:

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 .

Article 10(2)(a) imposes
two requirements on a State Party. The first is that, save in exceptional
circumstances, an accused person shall be segregated from convicted persons.
The second is that the accused person shall be subject to separate treatment
appropriate to their status as unconvicted persons.

4.4.3.1 Application
of article 10(2)(a) to people in administrative detention

In its written submissions
of 11 March 2002, the Department raised, as a preliminary point, the applicability
of article 10(2)(a) to administrative detainees. It submitted that:

there is no direct
authority on whether Article 10(2)(a) applies to administrative detainees
held in a state correctional facility. The distinction between convicted
and unconvicted persons in Article 10 arises from the right of such
persons to the enjoyment of the presumption of innocence in criminal
proceedings (Article 14(2)). Consequently, the language of Article 10(2)(a)
is directed to 'accused' persons.

Article 10(1) of the
ICCPR refers to "all persons deprived of their liberty" and does not restrict
the application of article 10 to people deprived of their liberty as a
result of criminal charges. [59]
By comparison, article 10(2)(a) specifically refers to "accused persons".
As is correctly noted by the Department, there is no UNHRC jurisprudence
on the meaning of "accused persons" in this article. However, in my view
it is plain that the intention of article 10(2)(a) was to draw a distinction
between those persons who have been found guilty and convicted of a criminal
offence and those who have not. [60]
Interpreting this article consistently with this intention, I find that
administrative detainees are entitled, as persons who have not been convicted
of any crime, to the protection afforded by article 10(2)(a) of the ICCPR.

I also note that in
its second periodic report to the UN Human Rights Committee in February
1987, [61]
within the discussion of article 10 and under the heading "segregation",
the Australian Government made submissions concerning the detention of
illegal immigrants in police lock-ups, remand centres and prison facilities
when immigration detention centres are not available.[62]
It therefore seems that even at this early stage, the Australian government
acknowledged that its obligations under article 10(2)(a) relate not only
to accused people within the criminal justice system, but also to administrative
detainees.

4.4.3.2 Separate
treatment

(a) The reservation
to article 10(2)(a) of the ICCPR

As set out in Part
4.4.3 of this Report, article 10(2)(a) of the ICCPR obliges Australia
to provide a person in detention with separate treatment appropriate to
his or her status as an unconvicted person. At the time of ratification
of the ICCPR in 1980, Australia entered a number of reservations and declarations.
One such reservation was made in relation to article 10(2)(a). That reservation
remains in force and states as follows: [63]

In relation to paragraph
2(a) the principle of segregation is accepted as an objective to be
achieved progressively.

However, the right
to separate treatment guaranteed by article 10(2)(a) of the ICCPR is not
affected by this reservation as the reservation is limited in its terms
to the principle of segregation. The effect of the reservation to article
10(2)(a) is provided for in article 22 of the Vienna Convention, 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).

As is the case in domestic
law, reservations to the ICCPR (being derogations from fundamental human
rights) are construed narrowly.

(b) Were the detainees
subject to separate treatment?

In its written response
of 15 August 2001, the Department advised that the detainees were not
subject to any form of separate treatment while held in State prisons.
In my Additional Preliminary Report, I was therefore of the preliminary
view that the Department's failure to accord these detainees separate
treatment appropriate to their status as unconvicted persons breached
their human rights under article 10(2)(a) of the ICCPR.

In its written submissions
of 11 March 2002, the Department advised that the detainees were all subject
to separate treatment and were not treated in exactly the same manner
as convicted prisoners. It advised that:

With regard to the
treatment of detainees identified in the preliminary report, [Mr AB],
Mr Soh, Mr CD and Mr Chenina were held in NSW correctional facilities.
Immigration detainees are held as deportees in this jurisdiction, as
a sub-group of civil inmates. A civil inmate is defined as "an inmate
who is being held in custody otherwise than because of a criminal offence".

Civil inmates have
some additional privileges to those of a convicted inmate. Civil inmates
cannot be forced to work except to keep any area they inhabit clean
and tidy. Any work they perform is at their own request. Civil inmates
are permitted to receive daily visits (as opposed to weekly visits for
convicted inmates).

Mr Gill and Mr Qasim
were held in West Australian correctional facilities. In Canning Vale
Remand Centre in Western Australia, immigration detainees are held under
the same conditions as a prisoner on remand. These conditions differ
from those that apply to sentenced prisoners in the areas of work and
visits. Remand prisoners may apply to be treated as a sentenced prisoner
and undertake work for remuneration. If they choose not to work they
are required to keep their cells and living areas clean. Remand prisoners
are also entitled to receive one visit each day.

The Department also
denied that it had breached article 10(2)(a) of the ICCPR as follows:

The Department submits
that it has not breached Article 10(2)(a) of the ICCPR as there are
no grounds for the breach.

The President made
a further preliminary finding the detainees were treated in exactly
the same manner as convicted prisoners in contravention of Rule 95 of
the UN Standard Minimum Rules for the Treatment of Prisoners and did
not enjoy the entitlements of Part II, Section C of these Rules.

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.
As such, the Department submits that it is not reasonable to find a
breach of Article 10(2)(a) on the basis of perceived non-compliance
with a non-binding instrument. Nevertheless, as indicated above, the
treatment of detainees in state correctional facilities in most instances
complies with Part II Section C of the Standard Minimum Rules.

Negotiations are
continuing with a number of state correctional authorities on Memoranda
of Understanding with respect to the detention of immigration detainees
in state correctional facilities. The conditions under which detainees
are held in state facilities necessarily form part of the negotiations.

The Standard Minimum
Rules for the Treatment of Prisoners [65]
(Standard Minimum Rules) are United Nations standards applicable to the
treatment of all persons (whether administrative detainees, accused persons
or sentenced prisoners) held in correctional facilities. The Standard
Minimum Rules provide for different treatment of convicted prisoners and
those who have not been convicted of any criminal offence. Although the
Standard Minimum Rules are not binding on Australia, [66]
they provide valuable guidance in interpreting and applying article 10
of the ICCPR. In Mukong v Cameroon, [68]
the UNHRC stated that:

[c]ertain minimum
standards regarding the conditions of detention must be observed regardless
of a State party's level of development. These include, in accordance
with Rules 10, 12, 17, 19 and 20 of the U.N. Standard Minimum Rules
for the Treatment of Prisoners, minimum floor space and cubic content
of air for each prisoner, adequate sanitary facilities, clothing which
shall be in no manner degrading or humiliating, provision of a separate
bed, and provision of food of nutritional value adequate for health
and strength. It should be noted that these are minimum requirements
which the Committee considers should always be observed, even if economic
or budgetary considerations may make compliance with these obligations
difficult.

Rule 95 of the Standard
Minimum Rules provides that persons arrested or imprisoned without charge
shall be given the same protection as that given to arrested or remanded
prisoners under Part II, section C. Part II, section C of the Standard
Minimum Rules provides:

C. PRISONERS UNDER
ARREST OR AWAITING TRIAL

84. (1) Persons arrested
or imprisoned by reason of a criminal charge against them, who are detained
either in police custody or in prison custody (jail) but have not yet
been tried and sentenced, will be referred to as "untried prisoners,"
hereinafter in these rules.

(2) Unconvicted
prisoners are presumed to be innocent and shall be treated as such.

(3) Without prejudice
to legal rules for the protection of individual liberty or prescribing
the procedure to be observed in respect of untried prisoners, these
prisoners shall benefit by a special regime which is described in
the following rules in its essential requirements only.

85. (1) Untried prisoners
shall be kept separate from convicted prisoners.

(2) Young untried
prisoners shall be kept separate from adults and shall in principle
be detained in separate institutions.

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

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.

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.

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.

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.

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.

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.

93. For the purposes
of his defence, an untried prisoner shall be allowed to apply for free
legal aid where such aid is available, and to receive visits from his
legal adviser with a view to his defence and to prepare and hand to
him confidential instructions. For these purposes, he shall if he so
desires be supplied with writing material. Interviews between the prisoner
and his legal adviser may be within sight but not within the hearing
of a police or institution official.

Mr AB, Mr Soh, Mr CD,
Mr Chenina, Mr Gill and Mr Qasim were held in NSW and WA correctional
facilities. Although these detainees did receive separate treatment in
terms of their work and visiting rights, I have formed the view that the
treatment they received in these facilities was substantially the same
as that received by convicted prisoners in the NSW and WA correctional
facilities. For example, these detainees did not enjoy many of the entitlements
detailed above in Part II, Section C of the Standard Minimum Rules. Most
notably, they were treated in exactly the same manner as convicted prisoners
in respect of their living quarters, their telephone access to family
and friends and in their prison dress. In addition, they did not have
access to their own doctor or dentist and were not they permitted to have
food procured at their own expense from the outside, either through the
administration or through their family or friends. Therefore, I have formed
the view that article 10(2)(a) of the ICCPR has been breached. I confirm
that it is the failure of the Commonwealth to provide these detainees
with separate treatment appropriate to their status as unconvicted prisoners
that has lead to this breach and not its failure to comply with many aspects
of the Standard
Minimum Rules.

4.5 Summary of Findings

For the reasons set
out above in this Report, I find that:

(a) the transfer of
Mr CD to the MRRC was an act of the Commonwealth which was inconsistent
with and contrary to his human rights recognised in article 9(1) of the
ICCPR;

(b) the decision to
continue the detention of Mr Gill and Mr Qasim in WA State prisons between
16 July 1999 and 17 September 1999 was an act of the Commonwealth which
was inconsistent with and contrary to their human rights recognised in
article 9(1) of the ICCPR;

(c) the failure by
the Department to consider the rape of Mr AB in the monthly reviews of
the place of his detention after 15 July 1998, and in the decision to
transfer him to the MRRC on 26 August 1998, were acts of the Commonwealth
which were inconsistent with and contrary to his human rights recognised
in article 10(1) of the ICCPR;

(d) the failure by
the Commonwealth to provide Mr AB, Mr Soh, Mr Chenina, Mr CD, Mr Gill
and Mr Qasim with separate treatment while they were held in immigration
detention in NSW and WA State prisons was inconsistent with and contrary
to their human rights recognised in article 10(2)(a) of
the ICCPR.

5. General
Comments

5.1 Decision to
transfer a detainee to a State prison

5.1.1 Basis for
transfer to a State prison

Paragraph 2.1 of MSI
244 provides that detention of immigration detainees within State prisons
occurs as a last resort. Examples of the circumstances in which such a
transfer can occur are stated to 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 suitable
to mix with other detainees at an IDC.

Completion of
a custodial sentence

The detainee had
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.

As noted in Part 4.4.1.1(a)
of this Report, the transfer of a person detained within an IDC to a State
prison involves a further and serious deprivation of that person's liberty.
For this reason, I have formed the view that issues of convenience, such
as the fact that the behaviour of a detainee may be difficult to manage
within the IDC environment, do not provide an appropriate basis for this
deprivation of a person's liberty. As the Commission recommended in its
Report, Those who've come across the seas: Detention of unauthorised
arrivals,
[69]
the transfer of a detainee from an IDC to a State prison should only occur
if that detainee is charged with or convicted of a criminal offence which
would result in that detainee serving a custodial sentence.

To achieve this objective,
it is essential that the Commonwealth establish secure detention facilities
for the purpose of holding immigration detainees whose behaviour is not
able to be effectively managed in a lower security environment of mainstream
IDCs. In this regard, I note that the Department has advised that "[i]n
designing new centres and in redeveloping and refurbishing existing facilities
.[it] is ensuring that appropriate infrastructure is in place to better
manage difficult detainees within . [its] own facilities. [70]
" However, the nature of the "appropriate infrastructure" is not entirely
clear from this statement. In my opinion, secure detention facilities
and the new powers given to the Department and ACM to search visitors
to IDCs and detainees provide the Department with ample scope to manage
the behaviour of detainees within the IDC environment.

5.1.2 Behaviour
Management

In Part 4.4.1.1(f)
of this Report, I was critical of the Department's failure to take all
reasonable and necessary steps to manage the behavioural problems of detainees
within the IDC. In its Report, Those who've come across the seas: Detention
of unauthorised arrivals
, [71]
the Commission made the following comments which are apposite to my findings
in this inquiry:

[t]he Department
and APS are not taking sufficient steps to address the disruptive behaviour
of detainees prior to transferring them to a State prison. Counselling
appears to be the only strategy used to address disruptive behaviour.
Moreover what constituted counselling is quite limited in nature and
it is not used regularly in all cases. In general, counselling is performed
by the APS officers on duty or Centre Management.

Detainees who have
a history of difficult behaviour are not case managed by an appropriate
professional. Social Workers and professional counsellors are not called
upon to work with detainees who are misbehaving. [72]

In Part 4.4.1.1(d)
of this Report, the Department's general comments concerning transfers
from IDCs to State prisons and behaviour management strategies employed
within IDCs were reproduced. In these general comments, the Department
advised of the following behaviour management strategies which it asserts
are already in place:

  • counselling about
    disruptive behaviour and the potential consequences
  • counselling for
    parties involved in a dispute
  • individual management
    plans
  • observation of the
    detainee
  • placement in an
    observation room for a cooling off period (from hours to several days
    - and sometimes at a detainee's own request)
  • transfer to a different
    area within the centre
  • psychological or
    psychiatric assessment and, if necessary, treatment
  • referral to an outside
    agency for assistance or investigation
  • transfers to other
    centres
  • involvement of residents'
    committees.

5.1.2.1 Counselling

If a detainee engages
in unacceptable behaviour a reasonable and proportionate response requires
that the detainee be counselled regarding that behaviour. I am pleased
that counselling is one of the Department's behaviour management strategies
listed above. It is, however, of concern to me that there is no indication
of who is required to conduct this counselling. Counselling by ACM or
Departmental staff may be inappropriate and inadequate in many circumstances.
In my opinion, counselling should be conducted by a qualified professional
with appropriate conflict resolution, cross-cultural awareness and communication
skills. Detainees who have been victims of torture or trauma or who have
been detained for long periods of time should be given particular attention.
Detainees exhibiting behavioural problems should be given the opportunity
to address any underlying issues which may be impacting on his or her
behaviour in the IDC. The detainee should be advised of the consequences
of their behaviour and given an opportunity to modify and improve it.
All detainees who are exhibiting behavioural problems should be case managed.

It has become apparent
from this inquiry that early and effective professional intervention is
necessary as many detainees who exhibit behavioural problems in fact have
serious psychological problems or a mental illness. These detainees often
become trapped in what could only be described as a vicious cycle during
their time in immigration detention. [73]
As a result of their psychological problems or mental illness, these detainees
exhibit behavioural problems in the IDC environment. These detainees are
then managed as "difficult detainees" within the IDC and do not receive
professional assessment and treatment. Consequently, the behaviour of
these detainees continues to deteriorate and may lead to a transfer to
a State prison. Detention in the more restrictive and confined environment
of a State prison then exacerbates the psychological problems or mental
illness of the detainee and further problematic behaviour may ensue. This
behaviour leads to continued detention within the State prison, often
for significant periods of time, and a concomitant deterioration in the
detainees' mental health. The case of Mr AB, which has been explored in
Part 4.4.2.2 of this Report, provides a cogent example of this cycle.

5.1.2.2 Other behavioural
management strategies

If there is no change
in the behaviour of the detainee following proper and appropriate counselling
other behaviour modification strategies should be employed. However, as
the findings of this inquiry indicate, in practice, ACM and the Department
often fail to make effective use of such strategies.

I commend the Department
for formulating alternative behaviour management strategies but note that
the placement of a detainee in an observation room for a cooling off period
(from hours to several days) is not an appropriate behaviour management
strategy as the use of isolation as a disciplinary measure potentially
breaches articles 7 and 10(1) of the ICCPR. In my view, "cooling off"
periods should occur in a neutral place and should only be implemented
for the minimum amount of time (not exceeding one day at a time) deemed
necessary after a thorough psychological or psychiatric assessment has
been undertaken.

5.2 Continuing detention
in State prisons

In Parts 4.4.1.1 (e)
and (f) of this Report, I noted numerous breaches of MSI 244 by the Department.
In this section of this Report, I consider two of these breaches in some
detail: namely, the failure by the Department to conduct monthly reviews
of the place of detention and the adequacy of the mechanisms that are
in place to monitor detainees held in State prisons.

5.2.1 Failure
to conduct monthly reviews

Paragraph 7.3.1 of
MSI 244 provides that:

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.

As noted in my Further
Preliminary Findings, the Department failed to comply with this paragraph
of MSI 244. The review of the place of detention of Mr AB, Mr Gill, Mr
Qasim, Mr Chenina and Mr CD did not occur every 30 days during their detention
within State prisons. In the case of some detainees, such as Mr CD, there
were periods of time when this review did not occur for a few months.

In its written submissions
of 17 August 2001, the Department argued that "while the 30 day period
for review was not adhered to in all cases, this is a breach of administrative
practice and hardly constituted grounds for finding that there was a breach
of the ICCPR." With respect, I am unable to accept this argument. Paragraph
7.3 is one of the most important parts of MSI 244 and any breach of this
paragraph is a matter of great concern. As administrative detainees are
imprisoned without charge or conviction, it is essential that there is
full compliance with this paragraph of MSI 244. The place of a detainee's
detention must be regularly reviewed to ascertain if detention in a State
prison continues to be reasonable and necessary in the circumstances.
If, as a result of a failure to conduct a monthly review, a detainee spends
even one day more than is reasonable and necessary in a State prison,
that detention would be arbitrary and would constitute a breach of article
9(1) of the ICCPR.

5.2.2 Failure
to monitor detainees

There is ample evidence
before this inquiry to suggest that there was insufficient monitoring
of the welfare of the detainees in State prisons. Paragraph 6 of MSI 244
provides:

6.1 Each detainee
should be assigned a case manager who is responsible for the ongoing
management of the detainee's case .

6.1.1 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 . The purpose of these regular
contacts is to ensure that the detainee's condition whilst held in the
a custodial institution is closely monitored. These contacts are to
be documented and notes placed on the detainee's file.

As noted in my Further
Preliminary Findings, there was non-compliance with this paragraph of
MSI 244 in the case of six of the eight detainees the subject of this
inquiry. There is no evidence before this inquiry that Mr AB, Mr CD and
Mr Chenina's case officer or the Detention Review Officer had regularly
weekly contact with the State prison to monitor the condition of these
detainees. While personal visits appear to have occurred regularly, although
not every month as required by this paragraph of the MSI, there were periods
of time, in some cases months, when no personal visits occurred at all.
Although in the case of Mr Gill and Mr Qasim, the Department asserts,
in its written submission of 17 August 2001, that the "detainees were
phoned regularly to allow them to raise any issues they may have had",
there is no indication of how often the calls were made and no records
of these telephone calls have been provided to this inquiry.

There were also a number
of other examples of insufficient monitoring of detainees which were highlighted
in the course of this inquiry. In the cases of Mr Gill and Mr Qasim, the
Department was unable to state with any certainty at which prison they
were held at any particular time. In the case of Mr Chenina, the Department
provided no monitoring of his classification within the prison system
and was unable to advise of the reason for his transfer from the MMRC
to Parramatta Prison.

As administrative detainees
are imprisoned without charge or conviction, it is essential that there
is full compliance with this paragraph of MSI 244. Moreover adequate monitoring
of the welfare and wellbeing of detainees forms part of the duty of care
owed by the Department to a detainee.

6.
Recommendations

Section 29(2) of the
HREOC Act provides 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 may make recommendations for:

  • the payment of compensation
    to a person who has suffered loss of damage as a result of the act or
    practice; and/or
  • preventing a repetition
    of the act or a continuation of the practice.

Amnesty did not seek
financial compensation on behalf of the detainees and I note that Mr AB
and Mr Chenina are now uncontactable.

In March 2001, the
Commonwealth Ombudsman in his Report of an Own Motion Investigation
into Immigration Detainees held in State Correctional Facilities
,
[75]
made a number of recommendations. I endorse all of those recommendations
as being equally applicable to this inquiry and have adopted many of them
in my recommendations below.

I recommend that:

1. the Commonwealth
take immediate steps to comply with its obligations under article 10(2)(a)
of the ICCPR in respect of immigration detainees in correctional facilities
in New South Wales and Western Australia. The Department should ensure
that immigration detainees held in State prisons are subject to separate
treatment appropriate to their status as unconvicted persons. At a minimum
the detainee should be entitled, in accordance with Part II, Section C
of the UN Standard Minimum Rules, to:

  • sleep singly in
    separate sleeping quarters;
  • within the limits
    compatible with the good order of the State prison and if the detainee
    wishes, have his/her food procured at his/her own expense from the outside,
    either through the administration or through their family or friends;
  • wear his/her own
    clothing if it is clean and suitable;
  • if the detainee
    wears prison dress, it shall be different from that supplied to convicted
    prisoners;
  • work, but shall
    not be required to work. If the detainee chooses to work, s/he shall
    be paid for it;
  • procure at his/her
    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;
  • be visited and treated
    by his/her own doctor or dentist if there is reasonable ground for his/her
    application and s/he is able to pay any expenses incurred;
  • all reasonable facilities
    for communicating with his/her 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; and
  • receive visits from
    his/her legal adviser with a view to his/her defence and to prepare
    and hand to him/her confidential instructions. For these purposes, s/he
    shall if s/he so desires be supplied with writing material. Interviews
    between the prisoner and his/her legal adviser may be within sight but
    not within the hearing of a police or institution official.

2. the Department establish
secure detention facilities 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.

3. the Department,
in conjunction with ACM, develop and implement strategies for effectively
dealing with difficult behaviour by detainees. Such strategies should
focus on defusing conflict and include training for Departmental and ACM
officers in:

  • conflict resolution;
  • managing difficult
    behaviour;
  • cross-cultural communication;
    and
  • dealing with distressed
    and traumatised detainees.

4. the Department,
in conjunction with ACM, develop and implement strategies for effectively
dealing with detainees with psychological and/or mental health issues.
Such strategies should include training for ACM and Departmental officers
in:

  • identifying detainees
    with psychological and/or psychiatric problems; and
  • obtaining appropriate
    psychological and/or psychiatric assessment and treatment for such detainees
    at an early stage.

5. the Department ensure
that detainees with serious psychological or psychiatric problems are
not transferred to prisons under the Migration Act.

6. the Department ensure
that all information relevant to the management of a detainee be documented
in respect of each detainee. The Department should ensure that such file
or files be kept in good order in accordance with best practice management.

7. in training of Departmental
and ACM officers in relation to the provisions of MSI 244, the Department
ensure that all officers are aware of their obligation to:

  • monitor immigration
    detainees held in State prisons, particularly in respect of those detainees
    with psychological or psychiatric problems (paragraph 6 of MSI 244);
    and
  • review the place
    of a detainee's detention each 30 days (paragraph 7.3.1 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.
[76]

7. 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 27 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 17 May 2002, Mr Andrew Metcalfe, on
behalf of the respondent, provided the respondent's comments in relation
to those findings and recommendations. I have extracted those parts of
Mr Metcalfe's letter that state what action the respondent has, or proposes,
to take:

RECOMMENDATIONS

My comments on your
draft recommendations are set out below:

(a) the Commonwealth
take immediate steps to comply with its obligations under Article 10
(2) (a) of the ICCPR in respect of immigration detainees ;n correctional
facilities in New South Wales and Western Australia. The Department
should ensure that immigration detainees held in State prisons are subject
to separate treatment appropriate to their status as unconvicted persons.
At a minimum, the detainee should be entitled, in accordance with Part
II, Section C of the UN Standard Minimum Rules, to:

  • sleep singly in
    separate sleeping quarters
  • within the limits
    compatible with the good order of the State prison and if the detainee
    wishes, have his/her food procured at his/her own expense from the
    outside, either through the administration or through their family
    or friends;
  • wear his/her own
    clothing if it is clean and suitable;
  • if the detainee
    wears prison dress, it shall be different from that supplied to convicted
    prisoners;
  • work, but shall
    not be required to work. If the detainee chooses to work, s/he shall
    be paid for it;
  • procure at his/her
    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;
  • be visited and
    treated by his/her own doctor or dentist if there is reasonable ground
    for his application and s/he is able to pay any expenses incurred;
  • all reasonable
    facilities for communicating with his/her 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 the security and good order of the institution; and
  • receive visits
    from his/her legal adviser with a view to his/her defence and to prepare
    and hand to him/her confidential instructions. For these purposes,
    s/he shall if s/he so desires be supplied with writing material. Interviews
    between the prisoner and his/her legal adviser may be within sight
    but not within the hearing of a police or institution official.

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.

Negotiations are
continuing with a number of State correctional authorities on Memoranda
of Understanding with respect to the detention of immigration detainees
in state correctional facilities. The conditions under which detainees
are held in state facilities necessarily form part of the negotiations.

As previously stated,
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 you acknowledge 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.

Immigration detainees
held in Western Australian correctional facilities:

  • are housed in
    standard units and may, depending on muster levels, be housed in single
    cells.
  • may choose to
    work in which case they will paid in accordance with the prisoner
    employment profile gratuity level. If they choose not to work they
    are required to keep their cells and living areas clean.
  • are permitted
    to purchase newspapers, magazines and writing implements from the
    prison canteen.
  • are not generally
    permitted to be treated by their own medical providers as the prison
    provides all health services free of charge, however on application
    to the Director of Prison Health permission may be granted for private
    health providers to attend the prison at the expense of the detainee.
  • are afforded extensive
    facilities for communications with family and friends. They are permitted
    one visit each day and telephone calls on the Arunta telephone system
    subject to their providing funds. They are also permitted telephone
    calls to their homeland subject to certain conditions.
  • are permitted
    visits from legal advisers under confidential conditions. They are
    provided with writing material and free legal phone calls- Interpreter
    services are also available on request.

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 including
daily visits (compared to 3 visits per week for unconvicted and 1 visit
per week for convicted inmates) and access to more telephone calls.
Further, detainees are not required to work unless they wish to do so.

In Queensland, detainees
are held in a separate wing of the Arthur Gorrie Correctional Centre
and are held separately 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-

(b) The Department
establish secure detention facilities 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.

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 lDCs and IRPCs will have some capacity to manage
closely detainees who pose behaviour management problems.

In designing the
new centre to be built on 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
its own facilities.
Strategies for effectively dealing with unacceptable behaviour by detainees
have included improvements to the physical security (including perimeter
fencing) of detention facilities. As new facilities are being developed
and older ones refurbished a limited amount of accommodation, separate
from the main compounds, is being established to assist in the better
management of inappropriate behaviour of detainees through providing,
inter alia, for cooling off places. The administrative and communal
nature of immigration detention, however, imposes limits on the degree
to which the management of detainees can rely on physical elements in
the 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.

(c) The Department,
in conjunction with ACM, develop and implement strategies for effectively
dealing with difficult behaviour by detainees. Such strategies should
focus on defusing conflict and include training for Departmental and
ACM officers in:

  • conflict resolution;
    - managing difficult behaviour;
  • cross-cultural
    communication; and
  • dealing with
    distressed and traumatised detainees.

The Department supports
this recommendation in that it reflects current practice.

A range of strategies
have already been developed and are in place for effectively dealing
with difficult behaviour, as the Department has previously advised.
Considerable effort is dedicated to managing detainee behaviour within
immigration detention facilities and ACM, as the contracted service
provider, has a number of behaviour management strategies already in
place. Depending on the nature of the incident, the strategies may include:

  • counselling about
    disruptive behaviour and the potential consequences
  • counselling for
    parties involved in a dispute
  • individual management
    plans
  • observation of
    the detainee
  • placement in an
    observation room for a cooling off period (from hours to several days
    -and sometimes at a detainee's own request)
  • transfer to a
    different area within the centre
  • psychological
    or psychiatric assessment and, if necessary, treatment referral to
    an outside agency for assistance or investigation
  • transfers to other
    centres
  • involvement of
    residents' committees.

With regard to the
issue of training for officers, new ACM detention officers are required
to complete a 240 hour pre-service training course that covers issues
such as:

  • Specific cultural
    awareness;
  • Code of conduct
    and ethics;
  • Detainee management
    skills, including communication, negotiation, observation and physical
    control;
  • Torture and trauma;
  • Privacy issues;
  • Detainee self
    harm awareness;
  • Mandatory reporting
    requirements relating to child abuse; Translating and Interpreting
    Service; and
  • Occupational health
    and safety issues

The course has been
refined in conjunction with a nation-wide employee assistance, counselling
and trauma Service Provider, International Psychological Services (IPS).
In addition~ East Gippsland Institute of TAFE recently reviewed and
upgraded the basic detention officers' training package, using as a
base the Australian National Training Authorities (ANT A) certificate
3 level national competencies for corrections officers. The pre-service
course has also been registered with ANT A as a Certificate 3 level
in Correctional Practice.

The cultural awareness
component of the training for Services Provider staff is compulsory.
Its purpose is to ensure that staff are aware of cultural, social and
religious differences among detainees and how these differences might
affect behaviour in detention. The Services Provider has contracted
specialist trainers (including the Victorian Foundation for Survivors
of Torture Inc.) with expertise in providing this type of training and
also draws on other organisations with relevant experience including
the Refugee Council.

Through cultural
and religious awareness, Services Provider staff are able to better
assess individual care needs, improve management of detainees, and ultimately,
improve overall management and security of the facility. The training
also provides practical information on culturally and religiously sensitive
approaches to situations that may arise within an immigration detention
facility.

The training program
for DIMIA Managers and Deputy Managers in the immigration detention
facilities includes cultural awareness training, negotiation and conflict
resolution (including in a cross-cultural environment). DIMIA Managers
and Deputy Managers are also provided an information package on cultural
diversity in immigration detention facilities, which is relevant to
their day-to-day activities.

At the same time,
a number of legislative measures designed to control and deter inappropriate
behaviour by immigration detainees and apply sanctions if such behaviour
occurs were introduced in 2001 through amendments to the Migration Act
1958. The amendments:

  • increase the maximum
    penalty for escape from immigration detention from 2 years to 5 years
    imprisonment (section 197A);
  • make it an offence
    for an immigration detainee to manufacture, possess, use or distribute
    a weapon (section 1978);
  • provide additional
    security measures in relation to the entry of persons, including visitors,
    to immigration detention centres (section 252G);
  • introduce a power
    to conduct a screening procedure in relation to immigration detainees
    (section 252AA);
  • introduce a power
    to strip search immigration detainees (section 252A) and provide rules
    for the conduct of a strip search (section 2528);
  • introduce a power
    to take possession of and retain certain things found in the course
    of conducting a screening procedure or a strip search (sections 252C,
    252D and 252E); and
  • apply search powers
    contained in State and Territory legislation to immigration detainees
    held in a State or Territory prison or remand centre (section 252F).

In exceptional circumstances,
inappropriate behaviour by detainees may result in the transfer of the
detainee to a correctional facility under arrangements which are currently
being formalised and set out in Memoranda of Understanding (MOUs) by
the Department with State and Territory correctional authorities.

The Services Provider
will be required to ensure that any preliminary steps in managing a
detainees behaviour, as set out in departmental policies, Migration
Series Instructions or operational orders, are carried out and recorded.
MOUs are also under development by the Department with State and Territory
police which formalise and clarify arrangements for police involvement
including in managing incidents beyond the capacity of the Services
Provider and for dealing with potentially criminal activities within
detention facilities.

(d) The Department,
in conjunction with ACM, develop and implement strategies for effectively
dealing with detainees with psychological and/or mental health issues.
Such strategies should include training for ACM and Departmental officers
in:
- Identifying detainees with psychological and/or psychiatric
problems; and
- Obtaining appropriate psychological and/or psychiatric assessment
and treatment for such detainees at an early stage.

The Immigration Detention
Standards provide specific guidance to the detention Services Provider
on access to psychological and psychiatric services.

9.6 Psychiatrically
disturbed

9.6.1 Detainees
in need of psychiatric treatment have access to such services

9.6.2 Arrangements
are made to move detainees who are found to be severely mentally ill
or insane to appropriate establishments for the mentally ill as soon
as possible.

An initial health
assessment is completed on all detainees immediately upon their arrival
at the receiving centre, to identify any physical and/or mental condition
requiring immediate or continuing care and to identify those detainees
who would pose a health or safety threat to themselves or others.

The assessment of
a detainee's mental health may include:

  • previous history
    of psychiatric hospitalisation and outpatient 'treatment;
  • current psychotropic
    medication; and
  • suicidal ideation
    and a history of suicidal or self-harm behaviours.

The following table
shows the number of medical and counselling staff available at each
centre as at 31 January 2002:

 
Curtin
Port Hedland
Woomera
Maribynong
Perth
Villawood
General
Practitioner
1 1 3 1 1 2
Psychologists 1 1 3     9
Nurses 5 6 12 2 1 9
Counsellors 2 1 3 1 # 1

3 of the 12 Nurses
are Psychiatric Nurses
# Mental Health
Nurse on call
1 of the General
Practitioners is also a Psychiatrist

ACM staff are also
provided with training on recognising at-risk behaviours and acute manifestations
of certain chronic illnesses, psychiatric disturbances and procedures
for their appropriate referral and disposition. ACM officers are required
to be taught assessment skills necessary to recognise acute health care
problems that require the intervention of professional health personnel.

The Department has
also requested that ACM develop written administrative arrangements
to formally transfer custody of an immigration detainee to mental health
facilities and to ensure that mental health facilities are aware of
procedures for the care, retention and transfer of immigration detainees
to ACM once their medical condition has stabilised. ACM have also been
requested to liaise with mental health facilities to ensure that the
person remains in immigration detention at all times while being treated
at the mental health facility.

(e) The Department
ensure that detainees with serious psychological or psychiatric problems
are not transferred to prisons under the Migration Act

The Department does
not accept this recommendation. If the assessing doctor determines that
a health facility within a correctional centre is the most appropriate
place for committal under the relevant State mental health legislation,
then clearly it is appropriate for the detainee to be accommodated in
such a facility.

While an unlawful
non-citizen remains in immigration detention within a psychiatric institution,
the legislation and care arrangements applicable to the psychiatric
committal have primacy. They are therefore required to be treated as
a person subject to a mental health order rather than as an administrative
detainee.

In the unusual circumstance
where a mentally ill person is transferred to a correctional centre
health facility under the auspice of Mental Health legislation, MSI
244 procedures for monitoring and review of the transfer would continue
to be followed.

(f) The Department
ensure that all information relevant to the management of a detainee
be documented in respect of each detainee. The Department should ensure
that such file or files be kept in good order in accordance with best
practice management.

The detention Services
Provider is required to maintain accurate records for all detainees.
The contents of a detainee's dossier usually Include: detention holding
order; detainee photograph; dietary requirements; religious beliefs;
risk/security assessment form; property forms; request forms; complaint
forms; visits forms; copy of incident reports involving detainee; route
instructions; monies transactions; release or transfer orders.

In addition, medical
records for detainees are required to be held in a secure area in the
medical facility and include:

  • all medical reports
    from outside agencies;
  • all internal medical
    notes and reports.

Clause 9.1.5 of The
General Agreement between the Department and the Services Provider requires
that the Services Provider comply with the Archives Act and provides:

(a) The Contractor
shall not arrange for, nor effect, a transfer of custody or the ownership
of any Commonwealth record without the prior written approval of the
Australian Archives nor shall the Contractor remove any such record,
except in accordance with arrangements agreed to by the Australian Archives.

(b) Where the Australian
Archives authorises the transfer of custody of Commonwealth records
to the Contractor, the Contractor must comply in every respect with
the requirements of the Archives Act 1983.

(c) The Contractor
must comply with any direction given by the Commonwealth for the purpose
of transferring Commonwealth records to the Australian Archives or providing
the Australian Archives with full and free access to those records.

(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:

  • monitor immigration
    detainees held in state prisons, particularly in respect of those
    detainees with psychological or psychiatric problems (paragraph 6
    of MSI244); and
  • review the
    place of a detainee's detention each 30 days (paragraph 7.3.1 of MSI244).

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 and the monitoring and review of the detainee's
placement 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". Issues
such as the monitoring of detainees and the regular review of their
place of detention are being addressed in these negotiations.

Officers will be
advised of the requirement to comply with the procedures outlined in
the MOUs, once finalised.

You have 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 and the risk of escape.

Section 5(1) of the
Migration Act 1958 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".


APPENDIX A

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).


APPENDIX B

I. Letter from Roebourne Regional
Prison dated 29 June 2001

MINISTRY
OF JUSTICE PRISON SERVICES

Roebourne
Regional Prison
Sampson Road
Roebourne WA 6178

Natalie Sheard
GPO Box 5218
SYDNEY NSW 1042
29th June 2001-06-29

Dear Natalie,

Regards: Havinder
Singh GILL and Mohamed QUSIM

In reply to your request
Mr Gill and Mr Qusim was held at Roebourne Regional Prison under sentence
and transferred to Greenough Prison on 04/05/1999. still under sentence.

Mr Gill and Mr Qusim
was then transfer from Greenough Prison on 16/07/1999 to Casuarina Prison.
As to their placement status at Casuarina you will have to contact the
Casuarina Prison. From Casuarina Mr Gill and Mr Qusim was transferred
to Canning Vale Prison and released on 17/09/1999.

Yours faithfuly

Christine Everingham

Records Officer

Ii. Letter from Hakea Prison
dated 5 July 2001

MINISTRY
OF JUSTICE PRISON SERVICES

Hakea Prison
Nicholson Road
Canning Vale WA 6155
Locked bag 111
Canning Vale WA 6155

Telephone:
08 9366 6333
Facsimile: 08 9366 6464
www.justice.wa.gov.au

Ms Natalie Sheard
Human Rights and Equal Opportunity Commission
GPO Box 5218
SYDNEY NSW 1042

Dear Ms Sheard

RE: Mr Harbinder
Singh GILL and Mr Muhammed QASIM

I refer to your facsimile
transmission dated July 5, 2001 in which you requested information on
the above mentioned persons.

Both Mr Gill and Mr
Qasim came into the custody of the then Ministry of Justice due to an
incident that occurred at the Port Hedland Detention Centre which resulted
in them being convicted of Escape Legal Custody and incurring a finite
sentence of 3 months and 1 day.

In response to your
request I tender the following information:

1. Whilst at the Hakea
Prison Complex both Mr Gill and Mr Qasim would have had contact with convicted
prisoners. Hakea Prison houses remand class prisoners, convicted prisoners
and immigration detainees all of whom have access to the facilities provided
within the complex.

2. Neither was subject
to separate treatment during their time at Hakea Prison.

3. Following are the
details of Mr Gill and Mr Qasim details whilst in the custody of the West
Australian Ministry of' Justice:

  • Roebourne Regional
    Prison -17/04/1999 to 04/05/1999;
  • Greenough Regional
    Prison -04/05/1999 to 16/07/1999; I
  • Casuarina Prison
    -16/07/1999 to 09/08/1999;
  • Hakea Prison -09/08/1999
    to 04/05/1999 [sic 2000].

Should you have any
other queries please do not hesitate to contact me.

TBBibby

Superintendent ,
Hakea Prison

July 5, 2001


1. The
Commission's functions in relation to the investigation and conciliation
of complaints of human rights breaches against the Commonwealth of Australia
and its functions in relation to reporting on complaints with substance
that have not been resolved through the process of conciliation are outlined
in Appendix A.
2. Pursuant to section 20(2)(c)(v) of the HREOC Act, I decided
not to continue to inquire into the Department's decision to transfer
Mr Soh from the Villawood Immigration Detention Centre to the Silverwater
Metropolitan Reception and Remand Centre and its decisions, on monthly
reviews, to continue his detention in that prison. This was because the
subject matter of the complaint, so far as it related to him, had been
adequately dealt with by the Commonwealth Ombudsman.
3. Amnesty also made a complaint on behalf of two other
asylum seekers alleging a breach of their human rights but these allegations
were not substantiated.
4. The information contained in this section is current
as at 15 August 2001.
5. Between 14 November 1998 and 25 March 1999 Mr AB was detained at the
Metropolitan Medical Transit Centre at Long Bay Prison. At all other times
between 26 August 1998 and
13 April 2000 he was detained at the MRRC.
6. Mr CD has a current complaint before the United Nations
Committee against Torture.
7. Letter to Ms Tania Flood, Investigation/Conciliation
Officer at the Commission, from
Mr Greg Kelly, Director of Detentions Operations in the Department, dated
19 February 2001.
8. Letter to the President of the Commission from the Secretary
of the Department dated
24 October 2000.
9. Letter to Ms Natalie Sheard at the Commission from Mr
TB Bibby, Superintendent at Hakea Prison, dated 5 July 2001. This Document
is at Appendix B to this Report.
10. Secretary, Department of Defence v HREOC, Burgess &
Ors (1997) 78 FCR 208.
11. Ibid.
12. Section 14 of the Migration Act defines an "unlawful
non-citizen" as "a non-citizen in the migration zone who is not a lawful
non-citizen." A "lawful non-citizen" is a non-citizen who is in the migration
zone and holds a valid visa: section 13 of the Migration Act.
13. "Immigration detention" is defined in section 5 of
the Migration Act.
14. Sections 189 and 196 of the Migration Act.
15. Human Rights and Equal Opportunity Commission, Those
who've come across the seas: Detention of unauthorised arrivals, JS McMillan
Pty Ltd, Sydney, 1998.
16. Ibid, at Part 2.
17. Ibid, at pages 56 - 57.
18. Section 5 of the Migration Act.
19. See paragraph 2.1 of MSI 244.
20. This MSI commenced operation on 1 July 1999. The MSI
in force prior to MSI 244 was 'Migration Series Instruction 157: Transfer
of Detainees to State Prisons' (MSI 157). This MSI was in force between
22 October 1996 and 30 June 1999.
21. Migration Series Instructions do not have the force of law or delegated
legislation: Vinh Tran and Minister for Immigration and Multicultural
Affairs (AAT 12376, 7 November 1997); Shirley Edwards and Minister for
Immigration and Multicultural Affairs (AAT 12511, 22 December 1997); Maria
Galang and Minister for Immigration and Multicultural Affairs (AAT 12783,
3 April 1998).
22. Paragraph 3.1 of MSI 244.
23. See paragraph 7.3 of MSI 244.
24. Paragraph 7.4.3 of MSI 244.
25. In its written submissions of 13 July 2001, Amnesty
alleged that the treatment of Mr AB by the Department in relation to his
rape at the MRRC constituted a breach of articles 4(a) and 5(b) of
the CERD.
26. Article 2(1) of the ICCPR.
27. United Nations Human Rights Committee, General Comment No. 8, (1982),
UN/HRI/GEN/Rev.4, paragraph 1.
28. For example, in many IDCs detainees are able to prepare
their own food. Detainees are not able to do so in most State prisons.

29. Nowak M, UN Covenant on Civil and Political Rights
CCPR Commentary, MP Engel, Germany, 1993, at page 172.
30. Communication No. 560/1993, CCPR/C/59/D/560/1993.
31. Ibid, at paragraph 9.2.
32. Communication No. 305/1988, CCPR/C/39/D/305/1988.
33. Spakmo v Norway, Communication No. 631/1995, CCPR/C/67/D/631/1995;
A v Australia, above note 30; Concluding Comments Regarding Switzerland
(1996), CCPR/C/79/Add.70.
34. As detailed in Part 4.2 of this Report, such transfers
have no legislative basis.
35. Paragraph 1.1 of MSI 244. In my Further Preliminary
Report, I found that MSI 244 applied to these detainees. This finding
has not been challenged by the Department.
36. Weismann and Perdomo v Uruguay, Communication No. 8/1977, CCPR/C/9/D/8/1977;
Teran Jijon v Ecuador, Communication No. 277/1988, CCPR/C/44/D/277/1988;
Masslotti and Baritussio v Uruguay, Communication No. 25/1978, CCPR/C/16/D/25/1988.
37. This case is like A v Australia, above note 30, where
the UNHRC was very critical of the fact that the Commonwealth had failed
to give any individual consideration to the question of whether it was
necessary to detain the author of that complaint pending deportation.
38. ACM Incident Report prepared by Bill Cahill, Operations
Manager Villawood IDC, addressed to Centre Manager dated 11 October 1999.
39. Departmental Minute prepared by Ms Kay Symons and dated
11 October 1999.
40. Pursuant to section 61 of the Crimes Act 1900 (NSW),
the mens rea for the charge of assault, is intention or recklessness:
Vallance v R (1961) 108 CLR 56.
41. Report of Dr A Galea dated 13 October 1999.
42. Although I note that the use of isolation as a disciplinary
measure potentially breaches articles 7 and 10(1) of the ICCPR. See also
Human Rights and Equal Opportunity Commission, above n 15, at page 124.
43. Ibid, at paragraph 2.
44. 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)
45. Nowak, above n 29, at page 186. Article 7 of the ICCPR
provides that "[n]o one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.
46. Ibid, at page 188.
47. Letter to Mr Peter Stuart at the Department from Mr
R Dewson, Assistant Operation Manager at the MRRC, dated 27 July 1998.
48. Departmental Minute prepared by Peter Suart and dated
23 July 1998.
49. Ibid.
50. Communication No. 458/1991, CCPR/C/51/D/458/91.
51. Ibid, at paragraph 9.2.
52. See, for example, Bailey v Jamaica, Communication No. 709/1996, CCPR/C/66/D/709/1996.
53. Departmental Minute prepared by Mr Peter Suart and
dated 15 July 1998.
54. Departmental Minute prepared by Mr Peter Suart and
dated 23 July 1998.
55. Departmental File Note prepared by Mr Vijay Ravikumar and dated 26
July 1999.
56. Departmental File Note prepared by Mr Scott Brawley
and dated 30 July 1999.
57. Departmental Minute titled "Review of Custody of [Mr
AB]" signed by Mr Nick Nicholls, State Director for NSW and dated 9 September
1999.
58. Departmental Minute titled "Review of Custody of [Mr
AB]" signed by Mr Peter Mitchell, IDC Business Manager and dated 6 March
2000.
59. Nowak, above n 29, at page 190.
60. See also the comment by Nowak (above n 29) at page
190, that in his view, it is possible to apply the protective provision
of article 10(2) to persons in custody, not just to accused persons in
pre-trial detention.
61. For the second periodic report submitted by the Government
of Australia 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.
62. Ibid, at para 297.
63. Nowak, above n 29, at pages 748 and 749.
64. Maleki v Italy, Communication No. 699/1996, CCPR/C/66/D/699/1996.
65. 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.
66. Collins v State of South Australia [1999] SASC 257
(25 June 1999).
67. United Nations Human Rights Committee, General Comment 21 (1992),
UN/HRI/GEN/Rev.4, paragraph 5; Report of the 3rd Committee of the General
Assembly (1958), A/4045; Potter v New Zealand, Communication No. 632/1995,
CCPR/C/60/D/632/1995; Mukong v Cameroon, above n 50. See also, for example,
the Concluding Comments on the United States of America (1995) UN Doc.
CCPR/C/79/Add. 50, at paragraph 34.
68. Mukong v Cameroon, above n 50, at paragraph 9.3.
69. Above n 15.
70. See Part 4.4.1.1(d) of this Report.
71. Human Rights and Equal Opportunity Commission, above
n 15.
72. ibid at page 122.
73. This cycle was mentioned by the Commonwealth Ombudsman
in his Report of an Own Motion Investigation into Immigration Detainees
held in State Correctional Facilities, March 2001.
74. See also Human Rights and Equal Opportunity Commission, above n 15,
at page 124.
75. Commonwealth Ombudsman, above n 73.
76. Human Rights and Equal Opportunity Commission, above n 15.

Last
updated 12 November 2002