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HREOC Report No. 24

Report of an inquiry into
complaints by five asylum seekers concerning their detention in the separation
and management block at the Port Hedland Immigration Reception and Processing
Centre

HREOC Report No. 24


1.
Introduction

2.
The Inquiry Process

3.
Findings of Fact

4.
Findings and Reasons for Findings

5.
Summary of Findings

6.
Recommendations

7.
Actions Taken by the Commonwealth 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: Management Plan Memorandum


1. Introduction

This is a Report
of the findings and reasons for findings made by the Human Rights and
Equal Opportunity Commission [1] (the Commission) following
an inquiry conducted by the Commission. The inquiry related to a complaint
by Amnesty International Australia (Amnesty) on behalf of Mr PH1, Mr PH2,
Mr PH3, Mr PH4 and Mr PH5 (the asylum seekers) 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's complaint
concerned an incident which occurred at the Port Hedland Immigration and
Reception Processing Centre (PHIRPC) on 1 December 2000. This incident
involved the placement of the five asylum seekers in the Separation and
Management Block within the IRPC, known as Juliet or "J" block,
for a period of six and a half days. Amnesty alleged, on behalf of the
asylum seekers, that their human rights had been violated because:

(a) there was no
basis for holding the asylum seekers in "J" block for six
and a half days; and

(b) the conditions
of detention in "J" block did not met minimum standards of
humane treatment.

Amnesty also alleged
that the human rights of the asylum seekers had been violated because
there was no basis for their placement in "J" block, but this
allegation was not substantiated.

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 29 January 2002 and my Further
Preliminary Report dated 6 March 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 written submissions dated 22 March 2002 and the Department made written
submissions dated 3 May 2002.

On 23 September 2002,
I provided to the parties my Notice of findings and reasons for findings
pursuant to section 29(2) of the HREOC Act. The findings and reasons for
findings made in that Notice appear below.

3.
Findings of fact

3.1 The Security
Risk Management Australia report

As a result of the
seriousness of the incident which occurred at the PHIRPC on 1 December
2000, the Department engaged Security Risk Management Australia (SRM)
to:

  • investigate the
    circumstances of the incident and identify the precise details of the
    events that occurred;
  • identify what
    Australasian Correctional Management (ACM) procedures were not adhered
    to in relation to the incident;
  • identify what
    action ACM has subsequently taken to prevent similar lapses in procedure;
    and
  • identify any
    further action [it] believes is required to improve ACM procedures [2]

SRM conducted consultations
with the Department and ACM, obtained documents from the Department and
ACM, including documents relating to detention policies and procedures,
and interviewed Departmental and ACM staff. No interviews were conducted
with, nor information obtained from, the asylum seekers or any other detainees
in the IRPC. A Report entitled "Investigation of Incident and Evaluation
of Incident Reporting Procedures at the Port Hedland Immigration Reception
and Processing Centre" and dated 17 August 2001 was produced (the
SRM Report). The SRM Report made a number of findings concerning, and
recommendations arising out of, this incident. Unless otherwise indicated,
the findings of fact contained in this Report adopt the findings of fact
contained in the SRM Report.

3.2 The "extraction"
on 1 December 2000

On 1 December 2000,
a dispute arose over the allocation of accommodation at the PHIRPC. At
approximately 1530 hours on this day an order was given by the then ACM
Centre Manager, Mr Robert McKeown, that the asylum seekers and other Sri
Lankan detainees move into the recently refurbished Golf or "G"
block. At approximately 1600 hours, and while the asylum seekers and other
Sri Lankan detainees were in the process of moving to "G" block,
several Iraqi and Iranian detainees approached a Detention Officer at
the IRPC to complain about this allocation of accommodation. Shortly thereafter,
an order was given by a Detention Supervisor preventing the asylums seekers
from moving into "G" block.

At approximately
1730 hours on 1 December 2000, the asylum seekers and fourteen other Sri
Lankan detainees congregated in the breezeway at the PHIRPC adjacent to
the mess block. The asylum seekers and the Sri Lankan detainees requested
to see the Centre Manager about the Detention Supervisor's order but they
were unable to do so as Mr McKeown had left the IRPC for the night. Initially
this protest consisted of peaceful attempts by the asylum seekers and
other Sri Lankan detainees to speak to management within the IRPC about
Detention Officer Wallace's decision. However, after the asylum seekers
and the other Sri Lankan detainees had waited for a period of time and
been repeatedly told that the Detention Supervisor in charge of the IRPC
at that time, Mr Micheal Reason, had no authority to alter Detention Supervisor
Wallace's decision, this protest became more vocal and heated.

After attempts at
negotiation failed, Detention Supervisor Reason formed the opinion that
the protesters were serious and would not desist until their accommodation
demands had been met. He also formed the view that the situation was likely
to degenerate into a conflict between the Sri Lankan detainees and other
detainees if it was not resolved quickly. An ultimatum was then issued
to the asylum seekers and the other Sri Lankan detainees, but this only
served to make them more agitated.
At approximately 1905 hours, after being identified as "the agitators"
in the group, Mr PH1, Mr PH2, Mr PH3 and Mr PH4 were "extracted"
from the breezeway area and conveyed to Juliet or "J" block
within the IRPC. At approximately 2042 hours, Mr PH5 was also conveyed
to "J" block after allegedly threatening a female Detention
Officer.

The asylum seekers
remained in "J" block until their release at 0934 hours on 8
December 2000.

3.3 Conditions
of detention in "J" block

Juliet or "J"
block is a two storey building constructed of concrete blocks which was
used, at the time of this incident, as the Separation and Management block
within the IRPC because of its more secure construction [4].
Rooms in this block are able to be secured "on the bolt" and
it has its own exercise yard. [5]

The asylum seekers
were accommodated in "J" block in two groups, of three and two,
in rooms on the ground floor. After admitting the asylum seekers to "J"
block on 1 December, 2000, the total number of detainees held in this
block was nineteen.

The conditions of
detention for the asylum seekers in "J" block have been the
subject of dispute between Amnesty and the Department. My findings on
this issue are set out below.

3.3.1 Clothes

In its initial letter
of complaint dated 21 December 2000, Amnesty asserted that the asylum
seekers were not permitted to change their clothes at all during the period
of their detention in "J" block. In the SRM Report the following
findings were made:

6.3.2 Changing
Clothes

According to D/O
COE who was on duty in Juliet block for part of the five detainees'
period there, they should have been allowed to change their clothing.
However, despite repeated requests from Detention Officers in Juliet
block to Supervisors to have their clothes brought to Juliet block,
this was not done.

Part of the reason
for this appears to be a dispute between Supervisors about who should
do this. In fact the Perth CER T Supervisor LEIS specifically instructed
his staff who had been tasked with packing the detainees clothes and
taking them to Juliet block not to, but patrol 'the compound area only
as this was the agreement with management'.

D/S BROWN requested
D/O COE to compile a list of everything the detainees required and provide
this list to the Operations Manager. This was done at about 0800 hours
on 4th December, 2001.

Case Note records
show that the detainees received their clothes as follows:

NBP228 [Mr PH1]
Photocopied records incomplete
NBP393 [Mr PH2] 1615 hours, 5th December, 2000
NBP420 [Mr PH3] No record
FIMO12 [Mr PH4] No record
FIMO13 [Mr PH5] 1415 hours, 5th December, 2000

Conclusions
At least two of the detainees (NBP393 and FIMOI3) did not receive
their change of clothes for four days after being admitted to Juliet
block. There is no record of NBP420 and FIMO12 having been given additional
clothes during their period in Juliet block and due to photocopying
errors of now lost records, it is not possible to determine if, or when
NBP228 received additional clothes after his admittance to Juliet block.

Their requests
were not addressed immediately as required by policy and procedure in
force at the time, although these requests were conveyed by Juliet block
staff to their supervisors.

These findings in
the SRM Report have not been disputed by the Department. Therefore, I
find that Mr PH2 and Mr PH5 received a change of clothes after almost
five days of detention. The remaining asylum seekers did not receive a
change of clothes at all during the six and a half days of their detention.

3.3.2 Telephone
calls

In its initial letter
of complaint dated 21 December 2000, Amnesty asserted that the asylum
seekers were not permitted to make telephone calls during the period of
time they were held in "J" block. In the SRM Report the following
findings were made:

6.3.3 Telephone
Calls

During the period
of separation, the 'Management Plan Upper J Block' Memorandum was being
applied to the management of activities at Juliet block. This instruction
was issued by the Operations Manager, Graham HINDMARSH on 30th November,
2000. [This Management Plan is Annexure B to this Report].

The Plan makes
no mention of telephone calls and D/O COE raised the issue in correspondence
to D/S WALLACE that because the Plan was not to be deviated from, that
the provision of, or denial of telephone calls was not clear.

According to D/Os
COE and WALKER who were on duty for part of the time the five detainees
were in Juliet block, none of the five detainees requested to make a
telephone call during the period of their separation in J block.

Records show that
other detainees were taken for telephone calls during the period of
separation and that no record exists of any of the five Sri Lankans
requesting or being taken for telephone calls.

Conclusions
According to staff working at Juliet block at the time and records
maintained, none of the five detainees requested to use a telephone
during their period in Juliet block. Other detainees held in Juliet
block during the same period are recorded as having used telephones.

It is not possible
to determine from this if requests for telephone calls were denied (and
hence not recorded), or whether they were not requested (and hence not
recorded).

In its written submissions,
the Department disputed that the asylum seekers were denied access to
the telephone. It stated that:

Detention Officer
Antoinette Coe in her statement of 27 December 2000 says "At no
stage while I was on duty did anyone of the said residents request to
make any phone calls." The SRM Report also states D/O Walker received
no such requests. Records, however, do exist of other detainees in Juliet
Block being taken for telephone calls. There is no evidence to suggest
that the detainees would not have been granted permission to use the
telephone if requested.

As the SRM Report
notes, there is a paucity of evidence on this point. In Mukong v Cameroon
[6], the United Nations Human Rights Committee (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. [7]

Accepting that a
strict burden of proof does not lie with the asylum seekers, I turn to
consider the evidence provided by the Department to refute the asylum
seekers' assertions. The Department relies upon the Memorandum of Detention
Officer Coe provided to the SRM inquiry and ACM records.

I have considered
Detention Officer Coe's assertion that she did not receive any requests
from the asylum seekers to access the telephone but do not find it to
be determinative of the issue. Detention Officer Coe was on duty in "J"
block on 1, 2 and 3 December 2000 from 1900 hours to 0700 hours. As she
was working the nightshift on only three out of the seven nights the asylum
seekers spent in "J" block, it is perhaps unsurprising that
no requests were made to her to use the telephone. In accordance with
the Management Plan, it would appear that there were at least three Detention
Officers per shift rostered onto the Juliet Post. No statements are available
from any of the Detention Officers who worked the many shifts during the
six and a half days of the asylum seekers' detention, other than that
of Detention Officer Coe. This inquiry was not provided with a statement
from Detention Officer Walker.

It is also difficult,
in my view, to attribute much weight to ACM's detention records. The SRM
Report notes that these records are incomplete and Detention Officer Coe
asserts in her undated statement to the SRM inquiry that the entries in
the Daily Occurrence Logbook for the relevant period of the asylum seekers'
detention had been removed .[8]

Moreover, it is not
correct to assert that there is "no evidence to suggest that the
detainees would not have been granted permission to use the telephone
if requested". In her Memorandum to Detention Supervisor Wallace
dated 27 December 2000, Detention Officer Coe refers to the uncertainty
surrounding whether detainees held in "J" block were permitted
to make telephone calls. This arose from the fact that the Management
Plan makes no mention of these. I accept that Detention Officers, like
Detention Officer Coe, were well aware that the Plan "was NOT permitted
to be deviated from" [9] as "this was re-enforced
[sic] in verbal briefings at the commencement of shift" [10].
It is therefore possible that these officers did deny the asylum seekers
permission to use the telephones, on the assumption that this is what
this Plan required.

For all of the above
reasons, I am not satisfied that the Department has refuted the asylum
seekers' assertions in relation to the telephone. I am therefore prepared
to accept that these asylum seekers did make requests to use the telephone
and that those requests were denied. As Amnesty pointed out, this finding
is supported by the fact that, as soon as they were able to do so, that
is, immediately upon their release from "J" block, the asylum
seekers placed a call to Amnesty to complain about their treatment.

3.3.3 Fresh
air

In its initial complaint
dated 21 December 2000, Amnesty alleged that, in the six and a half days
that the asylum seekers were detained in "J" block, they were
only allowed out of their rooms twice for ten minutes at a time. In the
SRM Report the following findings were made:

6.3.5 Fresh
Air

Detainees Case
Note records show that they were moved outside for fresh air as follows:

NBP228 Photocopied
records incomplete; 1600 -1615 hours, 7th December, 2000

NBP393 1215 -1225
hours, 3rd December, 2000 1600 -1615 hours, 7th December, 2000

NBP420 1150 -1200
hours, 3rd December, 2000 1600 -1610 hours, 7th December, 2000

FIMO12 1215 -1225
hours, 3rd December, 2000 1600 -1615 hours, 7th December, 2000

FIMD13 1215 -1225
hours, 3rd December, 2000 1600 -1615 hours, 7th December, 2000

Conclusions
Records show that the detainees were permitted a total of 20 -25
minutes of fresh air breaks during the six and a half day period of
separation detention in Juliet block. This is clearly in contravention
of policy and procedures which were in force at the time (which stipulate
thirty minutes every two hours), although it is known that because of
the 'Management Plan Upper J Block' implemented by the Operations Manager
on the 30th November, 2000 that without additional staff the number
of detainees in Juliet block at the time could not be provided with
their fresh air entitlements.

In its written submissions,
the Department did not dispute this finding. I therefore find that the
assertions made by Amnesty on behalf of the asylum seekers are substantially
correct. In the six and a half days of their detention, the asylum seekers
were only permitted two fresh air breaks, as detailed in ACM detention
records, for a period of ten to fifteen minutes on each occasion. The
rest of their time in detention was spent locked in their rooms. [11]

3.3.4 Room
lighting

In its initial letter
of complaint, Amnesty asserted that the asylum seekers were:

… kept in
darkness … and may have been allowed sunlight only twice for ten
minutes during this time. Amnesty International understands that there
may have been light bulbs in the respective rooms but that the switches
were outside the doors which were kept locked. Amnesty understands that
the lights to the rooms in which [the asylum seekers] were confined
may have been switched off while [the asylum seekers] were in the "punishment
block".

In the SRM Report
the following findings were made:

The five detainees
were accommodated in two groups of three and two in rooms which have
windows protected on the outside with cyclone screens, glass which has
been painted with whitewash and a security screen of small mesh on the
inside. All rooms except one have electric lighting which is controlled
from switches within the rooms.

Because of the
painted windows and two layers of metal screens, the ambient light levels
in the rooms is slightly lower than in rooms without such window treatments.

In addition, records
show that there was a period commencing from 1125 hours on 4th December,
2000 when the electricity supply to Juliet block failed.

Conclusions
Accommodation rooms in Juliet block are 'dim' as a consequence
of protective and privacy treatments on the windows. Light switches
are on the inside of almost all rooms in the block, although a power
outage did occur during the period of separation detention in question.

There is no evidence
that the five detainees were kept in darkness, although the distinction
between' dim' and 'darkness' may be a question of perspective.

In its written submissions,
the Department submitted that:

It is accepted
that it is possible one group of the detainees was held in the room
without the light switch inside the room. However the SRM Report further
finds "there is no evidence that the five detainees were kept in
darkness". The Department, therefore, does not accept that the
detainees were held in dim or dark rooms for a period of six and a half
days.

Given the findings
in the SRM Report, it is difficult to understand the basis for this submission
by the Department. The SRM Report found, and I accept, that the lighting
in all of the rooms in "J" block was, at best, "dim".
While the SRM Report's assertion that there is no evidence that all five
of the asylum seekers were held in darkness is true, there is evidence
to support a finding that two, and maybe three, asylum seekers were held
in darkness for at least part of their time in "J" block. As
accepted by the Department, it is possible that two or three of the asylum
seekers were held in a room which had the light switch on the outside
of the door. The fact that the asylum seekers were able to accurately
describe a room that had a light switch positioned on the outside of the
door leads me to conclude that this is indeed the room in which one group
of asylum seekers was held, and that at least part of their time in detention
in "J" block was spent in darkness. I find that the remaining
asylum seekers were held in another room where the lighting was dim, and
I adopt the SRM Report's comment that the distinction between dim and
dark is a matter of perspective.

3.3.5 Toileting

Amnesty asserted,
in their initial complaint, that while in "J" block the asylum
seekers did not have access to the toilet on demand. Instead, the asylum
seekers were required to wait from ten minutes to an hour and, on each
occasion, five officers escorted them to the toilet. Amnesty also complained
that the asylum seekers were "videotaped", although it did not
specify what actions of the asylum seekers were videotaped.

In the SRM Report,
the following findings were made on this matter:

6.3.6 Delay
for Toileting

During the period
of separation, the 'Management Plan Upper J Block' Memorandum was being
applied to the management of activities at Juliet block. This instruction
was issued by the Operations Manager, Graham HINDMARSH on 30th November,
2000.

It was quickly
realised by ACM personnel working at Juliet block that the Plan was
not workable because of the number of Officers tasked at Juliet block
and the number of detainees in residence.

According to DIO
COE, given the number of detainees in residence at Juliet block, the
requirement that three Officers be in attendance whenever a detainee
was out of the room (including for toileting and showers), it is certain
that the detainees would not have been able to go to the toilet immediately
upon their request, but would have had to wait some time, ten minutes
or more.

6.3.7 Videotaping

Video taking of
staff interaction with detainees is the practice at the PHIRPC whenever
dealing with non-compliant detainees or when ACM personnel may be subject
to scrutiny.

The ACM Investigations
Manager has recovered two video tapes containing scenes of PHIRPC D/Os
dealing with detainees in Juliet block on the 2nd and 3rd of December,
2001. No other tapes relevant to the area during the period of separation
under investigation are known to exist.

The video product
obtained shows staff dealing with the detainees and escorting them to
toilet and shower facilities only. In those videos the privacy of detainees
was not infringed whilst they were actually carrying out their toileting
or showering activities.

Conclusions

Toileting

D/O COE has confirmed
that because of the restrictions implemented by the Operations Manager's
Management Plan issued on the 30th November without provision of extra
staff, detainees in Juliet block did have had (sic) to wait before being
able to be taken to the toilet. This wait was at least ten minutes and
in some cases longer.

Videotaping

In accordance with
policy and procedures, videotaping of detainee/staff interactions and
movements was a practice carried out at Juliet block at some times during
the period of separation detention in question.

However, detainees
were not video taped whilst actually using toilets, but only being escorted
to the area.

These findings were
not disputed by the Department. Therefore, I find that the asylum seekers
had to wait for periods of ten minutes or longer to be escorted to the
toilet because at least three officers were required to escort any detainee
in "J" block when s/he was outside of his/her room. I find also
that the asylum seekers were videotaped being escorted to the toilet and
shower blocks on occasion but not while actually using these facilities.

3.3.6 Soap

In its initial complaint,
Amnesty asserted that there was only piece of soap provided to the nineteen
detainees held in "J" block from 1 December 2000 to 8 December
2000. In the SRM Report, the following findings were made on this issue:

6.3.8 Soap

According to D/Os
COE and WALKER who were on duty for part of the time the five detainees
were in Juliet block, all residents in separation detention were issued
with a 'bed pack', which should have included one cake of soap.

Conclusions
No evidence has been found to suggest that the five detainees were
not provided with soap individually during their time in Juliet block
as part of a 'bed pack'.

In its written submissions,
the Department asserted that it did not accept that the asylum seekers
were forced to share one piece of soap. In Detention Officer Coe's Memorandum
to Detention Supervisor Wallace dated 27 December 2000, she asserted that
on her shifts "all residents, said residents included, were given
soap upon their request" and that she was advised on 3 December 2000
[12] by the dayshift officers that the residents of
"J" block had been provided with bed packs which included a
cake of soap. At least in respect of Mr PH4, some doubt is cast upon this
evidence by the ACM Case Notes provided to the SRM inquiry. Mr PH4 was
initially recorded as receiving his "bed pack Bedding, 2 x sheets
1 x blanket" at 0636 hours on 7 December 2000. The word "bed
pack" was later crossed out. Moreover, prior to the time that the
asylum seekers received their bed pack it is not clear what the arrangements
were made concerning soap. However, given the contradictory nature of
the evidence, I do not make any finding adverse to the Department on this
issue.

3.4 Release from
detention in "J" block

At approximately
1956 hours on 5 December 2000, the asylum seekers made a written request
for an interview with the then Departmental Business Manager at the PHIRPC,
Mr Richard Konarski. When Mr Konarski received this request, he was very
"surprised and immediately concerned" [13]
as he was unaware that the asylum seekers had been transferred to "J"
block on 1 December 2000 and held there since that time. The Department
advises that Mr Konarski cannot recall the date he received this written
request for interview, or the date that he interviewed the asylum seekers.
Through the Department, Mr Konarski has advised that he interviewed the
group "as soon as possible" after their request to see him.
He also advised that he would have requested ACM to move the asylum seekers
out of "J" block to the residential compound immediately after
he spoke to them.

The asylum seekers
were released from "J" block at 0934 hours on 8 December 2000.
Accepting Mr Konarski's assertion that the asylum seekers were released
from detention immediately after he interviewed them, it is unclear why,
and unacceptable that, it took two and a half days for the asylum seekers'
request for an interview to be met.

As a result of his
interview with the asylum seekers, Mr Konarski demanded a full explanation
from ACM as to the circumstances surrounding this incident. The SRM Report
states that:

The DIMA Business
Manager is sure he reported the situation and made his concerns known
to the DIMA Detention Operations Section in Canberra, but regrettably,
no further action was taken at the time to pursue the matter with ACM
senior management in Sydney to resolve the non- reporting issue and
to get a report on the incident.

Whilst the DIMA
Business Manager persisted with his requests for such a report with
local ACM management at the PHIPRC, no report was forthcoming until
after Amnesty International Australia raised the incident with DIMA…
[14]

As a result of this
incident, a number of senior ACM employees were dismissed. The SRM Report
advises that:

The ACM staff member
who was ultimately responsible for the management of the separation
detention and the reporting of the incidents to DIMA, Centre Manager
Robert McKeown, has been removed from the PHIRPC by ACM. [15]

In its written submissions
to this inquiry, the Department advised that:

Officers Wallace
and Hindmarsh were subsequently dismissed by ACM for breaches of the
ACM Code of Conduct. Juliet Block was decommissioned in February 2001
and will not be recommissioned until it has been extensively refurbished.
The Department applied sanctions against ACM for failure to report the
incident and failure to meet the Dignity criterion of the Immigration
Detention Standards.

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. [16]

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 actions and practices will be outside the scope of the
Commission's human rights complaints jurisdiction [17].

The Migration Act
establishes a system of mandatory detention whereby all "unlawful
non-citizens" [18] must be held in immigration
detention [19] until they are granted a valid visa or
leave the country [20]. The Commission in its Report,
Those who've come across the seas: Detention of unauthorised arrivals
[21], 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 [22].
Consequently, the Commission recommended that these provisions be amended
[23]. 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.

On the other hand,
the relevant decision in this case did not involve the automatic application
of the law. The decision to place an asylum seeker detained in an immigration
detention centre into a segregation or "management" block of
that centre, and decisions about the length of time that an asylum seeker
is to spend there, are decisions which involve the exercise of discretion
by the Department, its officers and ACM as the agent of the Commonwealth
under the Detention Services Contract dated 27 February 1998. In addition,
decision-makers within the Department and ACM have a wide discretion as
to the conditions under which a person is held in a "management"
block within an IRPC. Decisions concerning all of these matters 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 International requested that I inquire into alleged breaches of
human rights. 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".

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 [24]. 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 its complaint,
Amnesty alleged that the five asylum seekers were detained in "J"
block for an unreasonable length of time. In my Further Preliminary Report,
I expressed the preliminary view that the detention of the asylum seekers
in "J" block for a period of six and a half days constituted
arbitrary detention within the meaning of article 9(1) of the ICCPR. The
Department disputed this finding.

4.4.1.1 Does article
9(1) of the ICCPR apply to the asylum seekers?

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.

In its written submissions,
the Department argued that:

Alleged contravention
of Article 9 (1) of the International Covenant on Civil and Political
Rights (ICCPR)

The President of
HREOC is of the further preliminary view that the detainee's detention
in Juliet Block of Port Hedland Immigration Reception and Processing
Centre (IRPC) for a period of six and a half days was inconsistent with
and contrary to Article 9 (1) of the ICCPR.

Article 9 (1) provides
that:

Everyone has
the right to liberty and security of person. No one shall be subjected
to arbitrary arrest or detention.

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 results
from the operation of the law, ie: the Migration Act 1958. As the Department
has previously stated, this detention is not arbitrary.

Constitutional
law establishes the propositions that:

  • a power of detention
    which is punitive and not consequent upon a finding of criminal guilt
    by a court cannot be conferred on the Executive by a law of the Commonwealth;
    and
  • a power of
    detention will be considered punitive unless the detention is reasonably
    capable of being seen as necessary for a legitimate non-punitive objective.

In Chu Kheng
Lim v Minister for Immigration
[(1992) 176 CLR 1] the High Court
found that in so far as a power to detain an unlawful non-citizen is
limited to what is reasonably necessary to effect removal or to enable
an application for entry to be made and determined, the power will not
be considered punitive in nature.

The Department
does not accept the argument that a person who has already been deprived
of his or her liberty can be subjected to a further detention within
the meaning of Article 9 (1). The essence of both immigration detention
and detention within a specific area of an immigration detention facility
is that the person is deprived of the ability to live in the general
community and is prevented from moving into and within the general community.
Moving the detainees from one area to another area of the Port Hedland
IRPC did not fundamentally alter this. The Department does not agree
that moving a person who is lawfully detained in one place of detention
to another place of detention, permissible under the law and envisaged
by the parliament in making the law, could of itself be a "further"
detention.

The main test in
relation to whether detention is arbitrary is whether it is reasonable,
necessary, proportionate, appropriate and justifiable in all of the
circumstances. The Government of Australia understands that the key
elements in determining whether detention is arbitrary are whether the
circumstances under which a person is detained are reasonable and necessary
in all of the circumstances or otherwise arbitrary in that the detention
is inappropriate, unjust or unpredictable. Further, detention will not
be arbitrary if it is demonstrated to be proportional to the end that
is sought.

The Department
does not agree with the interpretation of the President that transferring
the detainees to Juliet Block was a detention within the meaning of
Article 9 (1). The issues raised do not go to the lawfulness of a State's
rights to detain but rather conditions under which persons are detained.

The word "detention"
in Article 9 (1) refers to a single period of detention which commences
when a person is deprived of their liberty and concludes when that person's
liberty is restored. All the circumstances arising during that detention
(including individual episodes of different modes and conditions of
detention) may be relevant to determining whether the detention overall
is "arbitrary" for the purposes of Article 9 (1), but are
not of themselves subject to individual assessment of whether they separately
constitute "arbitrary detention" under Article 9 (1).

The leading United
Nations Human Rights Committee cases on the arbitrary detention aspects
of Article 9 (1) have involved consideration of the entire period of
detention (eg Van Alphen v the Netherlands [Communication No. 305/1988,
CCPR/CJ39/D/305/1988]
). While it is clear that the inquiry required
by Article 9 (1) extends beyond the initial detention and covers the
entire period of detention, that does not suggest or require separate
consideration of individual incidents.

Further, Article
5 of the European Convention on Human Rights is concerned with
the protection of the same rights as those referred to in Article 9
(1) of the ICCPR. The European Commission of Human Rights has expressed
the view that if a person has already been deprived of their liberty
and is then subjected to additional limitations on their liberty, Article
5 of the European Convention on Human Rights does not apply in
respect of those additional limitations.

Significant difficulties
could arise if a single period of detention were able to be sub- divided
into several, separate detention episodes, each of which could be subject
to a separate assessment of arbitrariness against Article 9 (1). The
Article aims to achieve a balanced, holistic approach as to whether
the detention as a whole is reasonable, necessary, proportionate, appropriate
and justifiable.

The detention of
the detainees in Port Hedland IRPC, as stated above, is lawful and is
not arbitrary. The Department does not accept the further preliminary
finding by the President in relation to Article 9 as the findings of
fact go to the conditions of detention and should be dealt with under
Article 10 of the ICCPR.

The protection afforded
by article 9 of the ICCPR extends to all deprivations of liberty, whether
in criminal cases or in matters concerning immigration [25].
Although the asylum seekers were already in "detention" at the
PHIRPC at the time of their transfer to "J" block, I consider
that this transfer significantly altered the nature of their detention.
As discussed in my Further Preliminary Report, the transfer of the asylum
seekers to "J" block involved a further and serious deprivation
of their liberty. The asylum seekers were held in dim or dark rooms and
were only allowed outdoors for a total of 20 -25 minutes in the six and
a half days of their detention. Only two of the asylum seekers received
a change of clothing after almost five days of detention and the others
not at all. Each of the asylum seekers were escorted by at least three
officers to use the toilet or the shower, causing delays in using these
facilities which may have been in excess of ten minutes. The asylum seekers
did not have access to the telephone.

In my view, this
change in the nature of the asylum seekers' detention rendered that detention
open to a consideration or reconsideration of the basis for such detention.
In order for detention not to be arbitrary, it must be proportionate to
the aims of detention and justifiable on that basis. It follows that where
the nature of detention alters significantly, the possibility that the
new circumstances of detention may not be proportionate or justified is
a real one that needs to be considered. In this way, I agree with the
Department that the whole period of detention must be examined to determine
whether the detention as it now stands is reasonable, necessary, proportionate
and justifiable, and therefore not arbitrary.

The approach that
detention that is initially lawful and not arbitrary may nevertheless
come to breach article 9 by reason of subsequent events which change the
nature of that detention is consistent with the jurisprudence of the UNHRC
and the European Court of Human Rights. In A v Australia, the UNHRC
stated that:

Every decision
to keep a person in detention should be open to review periodically
so that the grounds justifying the detention can be assessed. In any
event, detention should not continue beyond the period for which the
State can provide appropriate justification. [26]

In Spakmo v Norway
[27] the UNHRC held that the initial arrest and consequent
detention of the author was not arbitrary as it was a reasonable and necessary
means of preventing a breach of orders of the police. However, the UNHRC
found that detaining the author for eight hours was arbitrary and in breach
of article 9(1) of the ICCPR as the State party had failed to establish
why this subsequent period of detention was necessary.

Several decisions
of the European Court of Human Rights have also examined the situation
where a period of detention has been extended or otherwise changed in
nature. The issue in those cases has been whether article 5 of the European
Convention on Human Rights (the ECHR) has been breached. Article 5 of
the ECHR is similar in terms to article 9(1) of the ICCPR, but omits the
phrase "No one shall be subjected to arbitrary arrest or detention".
[28] The requirement for absence of arbitrariness has
nevertheless been implied as a "guiding principle for the interpretation"
of that article of the ECHR". [29]

The European Court
has held that changes in the nature of detention require renewed scrutiny
of the new periods or stages of detention to ensure there is no arbitrariness.
In Weeks v United Kingdom [30], the applicant,
who had been given an indeterminate life sentence, was released on licence
[parole] after ten years. He was subsequently recalled to prison but claimed
that his detention was no longer justified under article 5(1)(a). The
Court held that his recall to prison was a deprivation of his liberty
that had to be lawful and not arbitrary. The Court stated that:

Article 5 applies
to "everyone". All persons, whether at liberty or in detention,
are entitled to the protection of Article 5, that is to say, not to
be deprived, or to continue to be deprived, of their liberty save in
accordance with [article 5(1)(a) - (e)]…

The freedom enjoyed
by a life prisoner, such as Mr Weeks, released on licence is thus more
circumscribed in law and more precarious than the freedom enjoyed by
the ordinary citizen. Nevertheless, the restrictions to which Mr Weeks'
freedom outside prison was subject under the law are not sufficient
to prevent its being qualified as a state of 'liberty' for the purposes
of Article 5.

The Court found that
the decision to re-detain the applicant had not been arbitrary. However,
their willingness to consider whether the re-detention at this stage was
or was not arbitrary supports the view that, even where one order for
detention has been lawfully made, different steps and stages of that detention
can require reconsideration of its lawfulness and arbitrariness.

More recently in
Erkalo v Netherlands [31], the applicant had
been convicted for manslaughter and placed in a psychiatric institution
at the disposal of the Government. The Court found that the respondent
had breached article 5(1) of the ECHR because the applicant remained detained
after his term had expired. The Prosecution had sought an extension of
his detention but this was granted two months after the period of expiration
of the original sentence. The applicant had therefore been detained for
a two month period that was not based on any judicial decision. Even though
it was a continuation of the original detention, the Court scrutinised
the extended period for arbitrariness and found a breach.

In its written submissions,
the Department cited the decision in X v Switzerland [32]
as authority for the proposition that if a person has already been deprived
of their liberty, article 5 of the ECHR does not apply in respect of any
additional limitations on that person's liberty. In that case, the applicant
had been granted day release from prison but returned to the prison more
than four hours after he was required to return. The prison director imposed
a disciplinary measure on him consisting of five days isolation and suppression
of all further leave. The applicant argued that he was deprived of the
liberty which he enjoyed in prison. The European Commission of Human Rights
rejected that argument. It stated that the normal conditions of life in
prison:

…constitute
deprivation of liberty regardless of the freedom of action which the
prisoner may enjoy within the prison. Therefore the disciplinary measures
applied to the applicant cannot be considered as constituting a deprivation
of liberty, because such measures are only modifications of the conditions
of lawful detention.

In my view, the 1978
decision in X v Switzerland should not be followed. It seems to
me that the Court has, in the time since X v Switzerland was decided,
taken a wider view of article 5 of the ECHR (as set out in the cases discussed
above) and thus impliedly overruled X v Switzerland. Indeed, in
the many cases on this issue which have been decided by the Court since,
that decision has not been mentioned. In addition, I regard recent decisions
of the Court to be more authoritative than a 1978 decision of the Commission.
Unlike the Court, the Commission cannot make final and binding decisions.
Its limited role is to attempt to achieve a friendly settlement of a dispute
and, if this cannot be achieved, to draw up a report to be submitted to
the Committee of Members and the parties concerned .[33]

4.4.1.2 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 lack of proportionality, as well as the common law principle of due
process of law [34]. In A v Australia [35]
the UNHRC 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. [36]

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
[37] 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.

4.4.1.3 Was the
detention of the asylum seekers in "J" block for six and a half
days arbitrary?

In the circumstances
of this case, it is accepted that the detention of the asylum seekers
in the PHIRPC was lawful under the Migration Act. The question, therefore,
is whether their detention in "J" block was arbitrary.

Although I do not
consider the initial detention of the asylum seekers to have been arbitrary,
after considering all of the evidence and submissions of the parties,
I have formed the view that the detention of the asylum seekers in "J"
block beyond the night of 1 December 2000, that is, for a period of approximately
six and a half days, did constitute arbitrary detention within the meaning
of article 9(1) of the ICCPR. The detention of the asylum seekers in "J"
block for this length of time was not reasonable or necessary in all of
the circumstances, nor was it a proportionate response to the protest
action in the IRPC on 1 December 2000. I note that the SRM Report itself
found that the "six and a half day period of separation detention
imposed on the detainees in question was excessive" .[38]

Policy Number 19.2
in the PHIRPC Operating Manual set out a guiding principle and a basic
procedure to be followed when a detainee is placed in segregation detention.
It stipulated that "[a] Resident's ongoing separation cannot be justified
as more than a temporary measure to alleviate an immediate threat to the
IDC". It also provided that "[t]he Centre Manager will review
the separation of a resident each morning and afternoon with the Centre
Nurse, Counsellor and Supervisor".

It is not disputed
that, despite these operating policies and procedures, there was no review
at all of the asylum seekers' detention in "J" block in the
six and a half days they spent there, let alone twice daily by the Centre
Manager in consultation with the Centre Nurse, Counsellor and Supervisor
as required by Policy Number 19.2. There is no documentary or other evidence
before this inquiry suggesting that any consideration was given by ACM
to whether or not there was a reasonable basis for continuing the detention
of the asylum seekers in "J" block beyond the night of 1 December
2000. As "detention should not continue beyond the point for which
the State can provide appropriate justification" [39],
I find that their detention after this time was arbitrary and in breach
of article 9(1) of the ICCPR.

Even if there had
been twice daily reviews of the asylum seekers' detention in "J"
block, an examination of the evidence reveals that there was no reasonable
and objective basis for continuing their detention over a period of approximately
six and a half days as:

(i) the "immediate
threat to the IDC", to the extent that Detention Supervisor Reason
perceived there to be one, had been resolved upon the "extraction"
of the asylum seekers. The SRM Report found that "[w]hen this process
began the protestors became compliant and the four identified protestors
were led away to a vehicle beyond the breezeway and conveyed" [40]
to "J" block. In addition, it found that there was no need to
use force and that the "remaining protestors quickly dispersed"
[41]. The Report also found that there was no need to
use force to convey Mr PH5 to "J" Block later that night ;[42]

(ii) there was no
evidence that the "level of agitation and aggression" as set
out in Policy No. 13.2, to the extent that there was any, on part of the
asylum seekers was such that they could not be returned to the main part
of the IRPC the following morning;

(iii) the asylum
seekers were renowned for their good behaviour in the PHIRPC. Had the
management of the PHIRPC turned its mind to the issue, it would not have
found any basis for concluding that the asylum seekers presented a threat
or ongoing management problem to the PHIRPC. In his statement obtained
as part of the SRM inquiry, Departmental Business Manager, Mr Konarski,
reported that during late 2000 there were a number of violent disturbances
in the centre but the Sri Lankan nationals were not involved in any of
these disturbances. He stated that: "I had therefore formed the opinion
that they were in general, compliant and co-operative detainees who did
not present a management problem." [43] This appears
to accord with the fact that the asylum seekers were involved in assisting
with work at the IRPC including work on the internal fencing;[44]
and

(iv) I have found
that the asylum seekers were released as soon as the Departmental Business
Manager became aware of their detention.

4.4.2 Article
10(1) of the ICCPR

In my Preliminary
Report, I was of the preliminary view that the following acts of the Commonwealth
were in contravention of article 10(1) of the ICCPR:

  • placing the asylum
    seekers in segregation detention for six and a half days as it was unjustified
    and excessive;
  • confining the
    asylum seekers to small and dim or dark room for six and a half days
    with only minimal access to outdoor breaks;

I was also of the
preliminary view that being denied access to the telephone and being held
without clean clothes for a period of five days or longer could amount
to a breach of the right to be treated with humanity and respect for the
inherent dignity of the person under 10(1) of the ICCPR.

In addition, I was
of the preliminary view that, taken alone, the videotaping of the asylum
seekers while being escorted to the toilet and shower blocks and making
the asylum seekers wait for periods in excess of ten minutes to use the
toilet, though undesirable, may not reach the threshold required to constitute
a breach of human rights. However, I considered that they should nevertheless
be considered as part of the overall analysis of the mistreatment of the
asylum seekers during their period of segregation detention.

In its written submissions,
the Department disputed these findings in relation to article 10(1) of
the ICCPR. It stated that:

Alleged contravention
of Article 10 (1) of the International Covenant on Civil and Political
Rights (ICCPR)

The President of
HREOC is of the further preliminary view that Article 10 (1) of the
ICCPR has been breached because the detainees in question were:

  • placed in separation
    detention for six and half days which was unjustified and excessive;
  • confined to
    a small room for six and a half days with only minimal access to outdoor
    breaks;
  • held in dim
    or dark rooms for six and a half days with minimal outdoor breaks;
    and
  • denied permission
    to use the telephone.

The President is
also of the further preliminary view that being held without clean clothes
for a period of 5 days or longer could amount to a breach of Article
10 (1).

Article 10 (1)
provides:

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

In respect of the
President's finding of fact in relation to Article 10 (1), it should
be noted once again that the detainees were not held in separation detention.
I refer you to the earlier discussions on this point. In addition, as
discussed in reference to the preliminary finding of a breach under
Article 7, the Department does not accept the finding of fact that the
detainees were held in dim or dark rooms for a period of six and a half
days, nor were they denied permission to use the telephone.

The preliminary
view of the President needs to be assessed in the context of the standards
set out in the ICCPR and accepted by States Party. The United Nations
Human Rights Committee (UNHRC) provides some direction in assessing
these standards and the conditions which have been found to breach Article
10.

In Steve Shaw
v Jamaica
(Communication No. 704/1996) the UNHRC found a breach
of Article 10 (1) on the basis that the complainant was detained under
the following conditions:

  • no bedding or
    mattresses;
  • deficient sanitation
    in cells, no electric light, inadequate ventilation, and the only
    natural light is admitted through small air vents; for sanitation,
    only a slop bucket was provided;
  • prisoners spent
    most of the time confined to their cells in almost total darkness.
    Mr Shaw was locked in for a minimum of 23 hours a day;
  • a lack of provision
    for health care and medical facilities; and
  • absence of
    re-education and work programs for condemned inmates on death row.

In Desmond Taylor
v. Jamaica
, (Communication No. 705/1996) the UNHRC found a breach
of Article 10 (1) on the basis that the complainant was detained under
the following conditions:

  • confinement
    to a small cell for 23 hours a day;
  • no provision
    of a mattress or bedding for the concrete bunk used for sleeping;
  • wholly deficient
    sanitation, inadequate ventilation and total absence of natural lighting;
  • lack of provision
    of health care and medical facilities;
  • absence of
    re-education and work programs for condemned inmates on death row.

In Leroy Morgan
and Samuel Williams v. Jamaica
(Communication No. 720/1996) the
UNHRC found a breach of Article 10 (1) on the basis that the complainant
was detained under the following conditions:

  • twenty-three
    hours a day in cells with no mattress, other bedding or furniture;
  • the cells had
    inadequate sanitation and no natural light;
  • the food was
    not palatable; and,
  • a lack of medical
    assistance.

Further, the UNHRC
found a breach of Article 10 (1) in the case of Leroy Morgan who, despite
numerous requests to the Superintendent, was denied medical attention
to injuries he sustained after a gun shot.

In Parkanyi
v. Hungary
(Communication No. 410/1990) the UNHRC found a breach
of Article 10 (1) on the basis that the complainant was detained under
the following conditions:

  • detainees in
    the police lock-up were dressed in rags, and he was not able to retrieve
    his own clothes for an entire week.
  • only five minutes
    were allowed for basic hygiene in the morning, and a shower could
    be taken only once a week;
  • a mere five
    minutes of recreation per day were allowed, which consisted of a walk
    in an open place about 20 square metres in size, against the walls
    of which warders frequently urinated;
  • meals were
    inadequate, and although the author was able to receive some food
    from home during weekends, he lost over 10 kilograms during five and
    a half months of pre-trial detention;
  • the warders
    allegedly intimidated him by suggesting that if no confession was
    obtained, they would fabricate different, constantly changing, charges
    so as to justify an extension of the detention.

It is clear from
the jurisprudence that the incidents referred to by the President in
her preliminary finding do not reach the accepted threshold to be considered
a breach of Article 10 (1).

The Department
accepts that two of the detainees received a change of clothing after
four days and that there is no record of the other three detainees receiving
a change of clothing.

The Department
does not accept that there was a breach of the inherent dignity of the
detainees in being confined to their rooms with minimal access to outdoor
breaks. The detainees were given adequate sustenance, bedding, sanitation
and light. They were not isolated in solitary confinement. Nor does
the Department accept that being held without clean clothes for a period
of between four and six and a half days amounts to a breach of human
rights as set out in Article 10 (1).

Whilst the Department
does accept that there were failures to comply with operating policies
and procedures in place at the time, these did not reach the threshold
to amount to breaches of Article 10.

It is anticipated
such a failure of procedures will not occur again as the Department
has now in place a system of improved monitoring and performance outlined
below under the heading subsequent action by the Department.

Alleged further
actions to be considered as part of overall analysis of treatment of
detainees

The President further
takes into account two factors which she considers, while of themselves
not reaching the threshold to constitute a breach, should be considered
as part of the overall analysis of the mistreatment of the detainees
during their period of separation detention. These are as follows:

  • the detainees
    were videotaped being escorted to the toilet and showering and might
    have had to wait for periods in excess of ten minutes to use the toilet;
    and
  • the probability
    that the detainees were forced to share one piece of soap between
    nineteen detainees.

The President accepts
that it is likely the detainees were not videotaped using the toilet
and shower facilities, but only, on occasion, being escorted to and
from such facilities. It is submitted that such videotaping is justified
for ensuring the good order and management of Juliet Block and the safety
of the detainees themselves.

The Department
accepts that detainees had to wait for ten minutes or longer to be escorted
to the toilet. This occurred due to the unworkable management plan issued
by the Operations Manager which is no longer in operation.

The Department
does not accept that the detainees were forced to share one piece of
soap. D/O Coe in her statement says "the dayshift officers informed
myself ...that the residents had been issued bed packs which consisted
of ...1 cake of soap. Throughout my nightshifts ...all residents, said
residents included, were given soap upon their request". The SRM
Report finds "no evidence ... to suggest that the five detainees
were not provided with soap individually during their time in Juliet
Block…"

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

Article 10(1)
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 [45], 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 …

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 [46]
. Professor Manfred Nowak summaries 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' .[47]

4.4.2.2 Was
there a breach of article 10(1) of the ICCPR?

Article 10(1) of
the ICCPR requires that minimum standards of humane treatment be observed
in the conditions of detention. The Standard Minimum Rules and the Body
of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment [48] (Body of Principles) are United
Nations standards applicable to the treatment of any person deprived
of his/her liberty, including an immigration detainee. Although the
Standard Minimum Rules and Body of Principles are not binding on Australia
[49], they provide valuable guidance in interpreting
and applying article 10 of the ICCPR [50]. In Mukong
v Cameroon
, [51] 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.

Relevant provisions
of the Standard Minimum Rules [52] and the Body of
Principles are as follows:

Standard Minimum
Rules

11. In all places
where prisoners are required to live or work,

(a) The windows
shall be large enough to enable the prisoners to read or work by natural
light, and shall be so constructed that they can allow the entrance
of fresh air whether or not there is artificial ventilation;

(b) Artificial
light shall be provided sufficient for the prisoners to read or work
without injury to eyesight.

Clothing
and bedding

17.(1) Every prisoner
who is not allowed to wear his own clothing shall be provided with an
outfit of clothing suitable for the climate and adequate to keep him
in good health. Such clothing shall in no manner be degrading or humiliating.

(2) All clothing
shall be clean and kept in proper condition. Underclothing shall be
changed and washed as often as necessary for the maintenance of hygiene.

(3) In exceptional
circumstances, whenever a prisoner is removed outside the institution
for an authorized purpose, he shall be allowed to wear his own clothing
or other inconspicuous clothing.

Exercise
and sport

21(1) Every prisoner
who is not employed in outdoor work shall have at least one hour of
suitable exercise in the open air daily if the weather permits.

(2) Young prisoners,
and others of suitable age and physique, shall receive physical and
recreational training during the period of exercise. To this end space,
installations and equipment should be provided.

Body Of Principles

Principle
15

Notwithstanding
the exceptions contained in principle 16, paragraph 4 [delay where exceptional
needs of an investigation so require], and principle 18, paragraph 3
[exceptional circumstances, to be specified by law or lawful regulations,
when it is considered indispensable by a judicial or other authority
in order to maintain security and good order] communication of the detained
or imprisoned person with the outside world, and in particular his family
or counsel, shall not be denied for more than a matter of days.

Principle 19

A detained or
imprisoned person shall have the right to be visited by and to correspond
with, in particular, members of his family and shall be given adequate
opportunity to communicate with the outside world, subject to reasonable
conditions and restrictions as specified by law or lawful regulations.

The Department has
referred to a number of decisions of the UNHRC in its written submissions.
I accept that the conditions of incarceration at the St Catherine District
Prison in Jamaica, discussed in Shaw v Jamaica [53]
, Taylor v Jamaica [54] and Morgan and Williams
v Jamaica
[55], were harsher and less humane than
the conditions of detention for the asylum seekers in "J" block.
In fact, the conditions of incarceration in that prison have been found
to be sufficiently appalling to meet the threshold, in the majority of
the decisions dealt with by the UNHRC concerning that prison, for a breach
of article 7 of the ICCPR .[56]

However, I do not
accept that the findings in these cases preclude a finding in the present
case that the conditions of detention in "J" block constitute
a breach of article 10(1) of the ICCPR. The jurisprudence of the UNHRC
supports the approach that each case must be decided on its own facts
and establishes that there are a broad range of conditions of detention
which may fall below minimum standards in contravention of article 10(1).
For example, in Parkanyi v Hungary [57], the
author submitted that there were a range of matters which constituted
a breach of his rights under article 10(1). While the UNHRC found that
many of the author's allegations were not substantiated, it did find that
there was a breach of this article on the basis that the author had been
held in the police lock-up with only five minutes per day allowed for
basic hygiene in the morning, a shower permitted only once a week, and
only five minute per day allowed for recreation, which consisted of a
walk in an open pace about 20 metres in size. Similarly, in Angel Estrella
v Uruguay
[58], rigorous censorship of correspondence
during imprisonment was found in and of itself to represent a breach of
article 10(1) of the ICCPR and in Hill and Hill v Spain [59],
the UNHRC found a breach of article 10(1) of the ICCPR in relation to
the pre-trial detention of the authors as they had been left without food
and with only warm water to drink for a period of five days.

Bearing all of this
jurisprudence in mind, I am of the view that the totality of the following
conditions of detention accorded to the asylum seekers while they were
held in "J" block breached their right to be treated with humanity
and respect for their inherent dignity under article 10(1) of the ICCPR:

  • three asylum seekers
    did not receive a change of clothes in the six and a half days of their
    detention and two asylum seekers received a change of clothes only after
    almost five days;
  • the asylum seekers'
    requests to use the telephone were denied;
  • all of the asylum
    seekers were permitted only two fresh air breaks, of between ten and
    fifteen minutes, in the six and a half days of their detention;
  • the asylum seekers
    were held in dim rooms throughout the entire period of their detention
    with two to three of the asylum seekers held in darkness for part of
    their detention;
  • the asylum seekers
    had to wait for periods in excess of ten minutes to use the toilet;
    and
  • the asylum seekers
    were videotaped being escorted to the toilet and shower blocks.

I find it difficult
to accept the Department's submission that these conditions of detention
did not reach the threshold for a breach of article 10(1) of the ICCPR.
In its written submissions, the Department conceded that its Immigration
Detention Standards, which are informed by "Australia's international
obligations" [60], were breached by this incident.
In particular, the Department has conceded that there was a failure to
meet the "Dignity criterion" of these Standards. Criterion 2.1
of the Immigration Detention Standards provide that "[e]ach detainee
is [to be] treated with respect and dignity". This incident was also
considered sufficiently serious to result in the removal of the ACM Centre
Manager, and to contribute to the reasons for the dismissal of two senior
ACM employees. Furthermore, it arguable that the conditions of detention
of the asylum seekers in "J" block were worse than the conditions
in Estrella and Parkanyi. In Estrella, the UNHRC
made its findings based on one condition of detention that did not meet
minimum standards and in Parkanyi such a finding was based on two such
conditions.

In my view, the two
most serious aspects of the asylum seekers' detention were the fact that
the asylum seekers were locked in a dim or dark room for a period of six
and a half days and permitted only two fresh air breaks lasting between
ten and fifteen minutes on each occasion.

The presence or absence
of natural light has figured prominently in many of the decisions of the
UNHRC, including those raised by the Department. Rule 11 of the Standard
Minimum Rules requires that in all places where prisoners live the windows
shall be large enough to enable the prisoner to read or work by natural
light and also that artificial light shall be provided sufficient for
the prisoners to read without injury to eyesight. Given that the asylum
seekers were locked in their rooms for twenty four hours, or almost twenty
four hours, of each day that they were held in detention in "J"
block, it is of particular concern that the asylum seekers were kept in
rooms where reading would have been difficult, if not impossible and,
as the glass had been painted with whitewash, natural light was prevented
from entering the room.

The denial of fresh
air breaks was clearly in contravention of Rule 21 of the Standard Minimum
Rules which stipulates that every prisoner should have at least one hour
of suitable exercise in the open air daily. This condition was also counter
to the two sets of (contradictory) IRPC policies and procedures which
were in place at the relevant time. IRPC Operating Manual Policy 19.3
entitled "Exercise and Recreation for Residents in Separation Detention"
dealt with the need to "ensure the safe and secure access of residents
held in separation detention to approved activities to relieve boredom
and mental health problems associated with sensory deprivation".
This Policy required that residents "shall have access to outdoors
at least every two hours to smoke or gain access to exercise or fresh
air. Time spent outside shall not be less than 30 minutes on each occasion."
At the same time, the Management Plan, Appendix B to
this Report, provided that detainees were to be "[e]xercised 3 times
daily for 10 minutes one detainee at a time and all three officers to
be present. [61] " Moreover, if the asylum seekers
were held in segregation detention, as suggested by the Department, for
"management reasons" and not as a form of punishment, it is
difficult to see what justification there is for confining them to their
rooms for almost the entire period of that detention.

The denial of access
to a telephone and clean clothes were also matters of significance. Principles
15 and 19 of the Body of Principles confirm the importance of having regular
access to the means of communicating with family, friends and legal advisors.
The importance of having clothes which are in no manner degrading or humiliating
was highlighted in Mukong v Cameroon as being a minimum requirement
which should always be observed [62]. Rule 17 of the
Standard Minimum Rules requires that unconvicted persons be given the
opportunity of having clean clothes and underclothing that is changed
and washed as often as necessary for the maintenance of hygiene.

5. Summary
of findings

For the reasons set
out above, I find that:

(a) the detention
by the Commonwealth of the asylum seekers in "J" block for a
period of approximately six and a half days constituted arbitrary detention
within the meaning of article 9(1) of the ICCPR; and

(b) the conditions
of detention accorded to the asylum seekers while they were held in "J"
block breached their right to be treated with humanity and respect for
their inherent dignity under article 10(1) of the ICCPR.

6. Recommendations

6.1 Introduction

Section 29(2)(d)
of the HREOC Act provides that I must include in any Report relating to
the results of an inquiry particulars of any recommendations that I have
made pursuant to s 29(2)(b) or (c) of the HREOC Act. Section 29(2)(b)
of the HREOC Act provides that, where I conclude that an act or practice
is inconsistent with or contrary to any human right, I may make recommendations
for preventing a repetition of the act or a continuation of the practice.
Section 29(2)(c) of the HREOC Act provides that those recommendations
may be for either or both of the following:

(a) the payment
of compensation to, or in respect of, a person who has suffered loss
or damage as a result of the act or practice; and

(c) the taking
of other action to remedy or reduce loss or damage suffered by a person
as a result of the act or practice.

In the process of
finalising this inquiry, it came to my attention that the parties had
not made submissions concerning the recommendations I should make in the
event that I found, as I have done, that the acts of the Commonwealth
in question were contrary to or inconsistent with human rights and, to
the extent that any such recommendations included a recommendation for
the payment of compensation, how such compensation should be quantified.

On 20 June 2002,
the Commission wrote to the parties seeking submissions on this issue,
and enclosed a copy of the findings of human rights violations and my
reasons for those findings. On 18 July 2002, written submissions were
provided on behalf of the asylum seekers.

The Department's
submissions were originally due on 2 August 2002. On 30 July 2002, the
Department asked for and was granted an extension until 9 August 2002.
On 13 August 2002, the Department asked for and was granted a further
extension until 30 August 2002. The submissions were not received on or
by 30 August 2002. On 10 September 2002, the Department was advised by
letter that the Commission intended to finalise this inquiry, regardless
of whether those submissions were provided. On 18 September 2000, the
Department's written submissions were received by the Commission.

In my Notice provided
to the parties on 23 September 2002 in accordance with s 29(2) of the
HREOC Act, I made a number of recommendations. Those recommendations appear
below.

6.2 Recommendations
for the payment of compensation

6.2.1 Submissions
concerning the payment of compensation

The written submissions
provided by Amnesty on behalf of the asylum seekers assert that:

Amnesty International
submits that the measure of damages in this case should be assessed
in accordance with the principles employed by the courts in cases of
false imprisonment. This is the remedy which most closely accords with
the events in this case; indeed it is highly likely that the complainants
would have a claim against the respondents for the tort of false imprisonment.

The tort of false
imprisonment is actionable per se. It is not necessary to prove specific
damage in addition to the general damage arising out of the mere fact
of false imprisonment. [Watson -v- Marshall (1971) 124 CLR 621; affirmed
Marshall -v- Watson (1972) 124 CLR 640]. Aggravated and exemplary damages
may also be awarded. [Attorney-General (St Christopher, Nevis and Anguilla)
-v- Reynolds [1980] AC 637; Myer Stores Ltd -v- Soo [1991] VR 597].

Amnesty International
submits that the most useful recent discussion on the principles relating
to the award of damages for false imprisonment may be found in two New
South Wales decisions, Spautz -v- Butterworth (1996) 41 NSWLR 1, and
Vignoli -v- Sydney Harbour Casino [1999] NSWSC 1113. I will not reiterate
the details of each of these cases, which will be available to the Human
rights Commissioner.

In each of the
above cases an award of $75,000 was made to the plaintiff. In the latter
case, the award included aggravated and exemplary damages.

In the present
case, given the circumstances of the detention and the need to punish
and deter such conduct, which is notoriously difficult to prove, Amnesty
International submits that an award of $75,000 to each complainant would
be appropriate.

In the only part
of the Department's written submissions relevant to the issue of the recommendations
for the payment of compensation I should make (in light of my findings
that acts of the Commonwealth were contrary to and inconsistent with human
rights), the Department asserted that:

… immigration
detention of unlawful non-citizens in Australia is lawful in accordance
with the [Migration] Act. Immigration detention will not amount to arbitrary
detention where it is carried or for administrative purposes and is
in accordance with the Act. Accordingly, Amnesty International Australia's
assertion that the appropriate measure of damages in this case is that
which applies to false imprisonment is misconceived.

6.2.2 Relevant
legal principles

So far as it is possible,
the object of recommendations for the payment of compensation under the
HREOC Act should be to place the injured party in the same position as
if the wrong had not occurred [63]. Compensation for
human rights violations will usually be assessed in the same way as damages
for torts, although this approach may not be appropriate in all cases
[64]. Amnesty has submitted, and I accept, that the
tort of false imprisonment is the most analogous to this case and that
any recommendation for compensation should be informed by the principles
employed by the courts in cases involving that tort. The Department has
advanced no cogent argument against such an approach given my findings
in this Report.

The tort of false
imprisonment is actionable per se, that is, without proof of damage
[65] as the right to liberty is "the most elementary
and important of all common law rights" [66]. Damages
are awarded in the first instance not as compensation for loss but as
a non-compensatory means of signifying the infringement of a right [67].
The principal heads of damage for a tort of this nature are injury to
liberty (the loss of time considered primarily from a non-pecuniary standpoint)
and injury to feelings (the indignity, mental suffering, disgrace and
humiliation, with any attendant loss of social status)[68]
. Damages may also be aggravated by the circumstances of a particular
case [69], for example, where a lack of bona fides
or improper or unjustifiable conduct on the part of a respondent is established.
[70]

6.2.3 Quantum

In all of the circumstances
of this case, I am of the view that an appropriate amount of compensation
for each of the asylum seekers for the violation of their rights under
articles 9(1) and 10(1) of the ICCPR is $25,000. The complainants have
not made any claim of pecuniary loss or damage. In arriving at that figure,
I have had regard to:

(a) the mental
suffering, indignity and humiliation caused to each of the asylum seekers
by the unacceptable conditions of that detention detailed in this Report,
conditions which failed to meet minimum standards of humane treatment
of persons in detention;

(b) the exacerbation
of this mental suffering, indignity and humiliation by the length of
the detention; and

(c) comparative
damages awards for false imprisonment, to the extent that such judgments
are relevant to human rights violations under the HREOC Act [71].
Amnesty submitted that each of the asylum seekers should receive compensation
in the sum of $75,000, and referred to Spautz v Butterworth [72]
and Vignoli v Sydney Harbour Casino [73]
to support that submission. In my view, the recommendation for compensation
I propose to make in this case is consistent with both of these cases.
In Vignoli v Sydney Harbour Casino, the Court awarded $30,000
in general damages for the wrongful detention of Mr Vignoli by the Casino.
Although the period of detention in that case was less than in this
case, being of only six hours in duration, the damages award took account
of the public defence by the Casino of its actions and the evidence,
given at the hearing, of the deep humiliation and disgrace felt by Mr
Vignoli. In Spautz v Butterworth, Mr Spautz was awarded $75,000
in damages for his wrongful imprisonment as a result of failing to pay
a fine. Although the facts in that case are in many respects similar
to the facts in this case, Mr Spautz spent 56 days in prison and his
damages award reflects the length of his incarceration and other matters
peculiar to his case.

In the circumstances
of this case, I also consider it appropriate to make a recommendation
that the Commonwealth pay a further $10,000 in compensation on account
of the aggravated circumstances surrounding the breach of the asylum seekers'
human rights. There has been no dispute that the conduct of ACM, for which
the Commonwealth is responsible, in keeping the asylum seekers detained
under inhuman conditions in "J" block for six and a half days,
was improper and unjustifiable. This was recognised by the Departmental
Business Manager, Mr Konarski, who ordered that the asylum seekers be
released as soon as he became aware of their detention. Further, as detailed
in Part 3.4 of this Report, the ACM officer staff member who was ultimately
responsible for the management of the separation detention was removed
from the PHIRPC by ACM and, subsequently, two other ACM officers were
dismissed. The Department also applied sanctions against ACM for its failure
to meet the Dignity criterion of the Immigration Detention Guidelines.
In addition, although it is not possible on the evidence before this inquiry,
to attribute mala fides to any officer at the PHIRPC in relation to the
delay in arranging for the asylum seekers to attend an interview with
Mr Konarski, such a delay was clearly improper and unjustifiable in the
circumstances, and resulted in the asylum seekers being detained for two
and a half days longer than they might otherwise have been.

6.3 Recommendations

I recommend that:

(a) the Commonwealth
pay compensation in the amount of $35,000 to each of the asylum seekers
for the loss and damage caused to them by the violations of their human
rights;

(b) the Commonwealth
apologise to each of the asylum seekers for these human rights violations.
Apologies are important remedies for breaches of human rights . An apology
has, at least to some extent, the potential to alleviate the suffering
of those who have been wronged. Given the nature of the breaches I have
found in this case, I recommend that that apology be made in writing
by the Minister of the Department on behalf of the Commonwealth;

(c) the Commonwealth
take all steps to ensure that the conditions of detention in any form
of segregated detention area within an IDC meet minimum standards of
humane treatment as required by article 10(1) of the ICCPR; and

(d) the Commonwealth
take all steps necessary to implement all the recommendations of the
SRM Report and, in particular, develop policies and procedures setting
out:

(i) the process
for reviewing the detention of any person detained in a segregated
detention area of an IDC on, at least, a daily basis, in consultation
with relevant medical health professionals; and

(ii) the grounds
for maintaining a person's detention within that segregated detention
area, being reasons based on the behaviour of the person detained
and not on the use of segregated detention as a form of punishment.

7. Actions
taken by the Commonwealth 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, to the knowledge of the Commission, the
Commonwealth has taken or is taking any action as a result of its findings
and recommendations.

On 23 September 2002,
the Commission wrote to the Commonwealth 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 8 October 2002, Mr
E V Killesteyn, on behalf of the Commonwealth, provided the Commonwealth's
comments in relation to those findings and recommendations. I have extracted
those parts of Mr Killesteyn's letter that state what action the Commonwealth
has taken, or proposes to take:

Recommendation
C - the Commonwealth take all steps to ensure that the conditions of
detention in any form of segregated detention area within an IDC meet
minimum standards of humane treatment as required by 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'.

The Department
submits that it takes all steps to ensure that the conditions of detention,
including in any form of segregated detention within a facility, meet
minimum standards of humane treatment as required by Article 10(1) of
the ICCPR. …

Whilst the Department
does accept that there were failures to comply with operating policies
and procedures in place at the time, these did not reach the threshold
to amount to breaches of Article 10 (1). It is anticipated such a failure
of procedures will not occur again as the Department has now in place
an improved system for monitoring of performance.

More generally
the Department exercises its duty of care for ensuring the safety and
welfare of all detainees in a detention facility through the engagement
of a Detention Services Provider within the framework of relevant legislation,
comprehensive contractual obligations, the Immigration Detention Standards
(IDS) and associated performance measures. Both the Department and the
Detention Services Provider are required to meet duty of care obligations
that go beyond the provision of basic needs such as accommodation, food
and clothing. These include the requirement to treat detainees with
dignity and humanity, in a culturally sensitive way, without discrimination
of any sort, and with respect for personal privacy, beliefs and differences
in accordance with relevant Commonwealth, State and Territory legislation,
and consistent with Australia's international obligations.

Duty of care commitments
require the provision of a safe and secure physical environment and,
to the fullest extent possible, the prevention of physical, verbal or
cultural abuse, sexual harassment, neglect or any other abuse. Duty
of care obligations also require the provision of health services and
safety advice by qualified persons, and access to appropriate educational
programs and recreational opportunities.

The IDS set out
relevant principles underlying the provision of the detention function
and the Services Provider's actions must be governed by them. The IDS
were developed by the Department in consultation with the Commonwealth
Ombudsman's office. The IDS underpin the provision of the detention
function and the standard of care to be provided and specify the standard
of facilities, services and programs expected in detention facilities,
including the requirement to provide safe and secure detention.

The IDS have been
revised and enhanced in the context of the tender for the new contract
for the provision of detention services. The IDS for the next contract,
while remaining outcomes based, are more precise and more detailed than
the current version. The greater degree of specificity in the standards
and the clearer link between the IDS and the performance measures will
enable the Department to be more precise in its monitoring of service
delivery. The Commission was consulted in the development of the new
IDS.

Under the revised
IDS the more detailed requirements on the Service Provider pertaining
to care, welfare and dignity apply to those whose movements within a
detention facility are restricted. Moreover there are additional requirements
placed on the Services Provider in relation to the care of such detainees
including the need for a comprehensive management plan.

Recommendation
D -the Commonwealth take all steps necessary to implement all the recommendations
of the SRM Report

As you are aware,
as soon as it became apparent to the Department that operational procedures
had not been followed in relation to this incident, the Department immediately
instigated an independent report from Security Risk Management Australia.
This report has informed the Department's thinking and assisted in its
program of continuous improvement across all centres. The revised IDS
were also informed by the report to include performance measures which
ensure that where a detainee's movements are restricted for management
reasons this is done in consultation and with the approval of the Department
and supported by a comprehensive management plan.

The Detention Services
Provider has advised that the policies and procedures in place at Port
Hedland IRPC have been reviewed and amended since February 2001 when
a new Centre Manager and a new Operations Manager commenced employment.
The Department has had regular discussions with the Detention Services
Provider at the Contract Operations Group meetings regarding the issues
raised in the SRM report. Following discussions, the Detention Services
Provider's Operational Policy on Detainee Management Separation was
amended and now clearly addresses the recommendations of the report
including that:

  • the Detention
    Services Provider will advise the Departmental Manager as soon as
    is practicable if a detainee's movement are (sic) to be restricted
    for management reasons; and
  • the Detention
    Services Provider will adhere to its policy which requires regular
    reviews of the detainees status and communication about these with
    the Departmental Manager.

In Summary, the
Department accepts that the treatment of the detainees as outlined in
the complaints fell short of the Service delivery expected of the Detention
Services Provider. Immediate action was taken when the incident was
drawn to the attention of the Department. The relevant issues have been
raised with the Detention Services Provider and improvements have been
implemented to both service delivery and the monitoring and review of
this service.

As the Commonwealth
does not accept the findings made in my Notice provided to the parties
on 23 September 2002, Mr Killesteyn did not state what action the Commonwealth
has taken, or proposes to take, in relation to any of the other recommendations.


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:
Management Plan Memorandum

ACM
Australasian Correctional Management Pty Limited
ACN: 051130 600

Port
Hedland Immigration Reception & Processing Centre
PO Box 1011 Port Hedland WA 6721
Dempster Street
Port Hedland W A 6721 Tel: (08) 91732822
Fax: (08) 9173 2825

MEMORANDUM

TO: Supervisors
FROM: G Hindmarsh
SUBJECT: Management Plan Upper J Block
DATE: 30 November, 2000

The following is
the management plan for Upper J Block and it is NOT to be deviated from:

  • The block is
    to be over a 24hrs a day regime, ie showers and toilet breaks are on
    going for the 24hr period.
  • 3 officers are
    to be in attendance when a detainee is out of the room at all times.
  • All conversations
    and action by detainees are to be videoed and extensively logged in
    individual folders.
  • All damage is
    to be recorded by still photograph and written documentation.
  • A full and extensive
    hand over is to be conducted between shifts.
  • All request for
    DIMA to be processed and logged
  • All ACM requests
    to be processed and logged
  • All detainees
    will receive a buy up once a week day TBA.
  • No matches or
    sharps are to be issued.
  • Razors and tooth
    brushes to be issued on request and logged and receipted on return.
  • Rooms to be searched
    twice daily and logged.
  • Exercised 3 times
    daily for 10 minutes one detainee at a time and all 3 officers to be
    present.
  • Medication is
    only to be issued by nursing staff who will visit daily.
  • All visitor to
    be logged in and out and who they seen.

G Hindmarsh
Operations Manager


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. SRM Report, at page 7.
3. Although "J" block was referred to as the
"Separation" block within the IRPC, the asylum seekers were
not held in separation detention in this block as they were not new arrivals
who needed to be separated from other detainees. The detainees were instead
segregated from the main detainee population for behavioural management
purposes.
4. SRM Report, at page 17.
5. Undated statement of Antoinette Coe, Annexure E to
the SRM Report, at paragraph 3.
6. Communication No. 458/1991, CCPR/C/51/D/458/91.
7. Ibid, at paragraph 9.2.
8. Undated statement of Antoinette Coe, Annexure E to
the SRM Report, at paragraph 7.
9. Memorandum from Antoinette Coe to T Wallace dated 27
December 2000, at paragraph 2.
10. Undated statement of Antoinette Coe, Annexure E to
the SRM Report, at paragraph 6.
11. Ibid.
12. Ibid, at paragraph 4.
13. Undated statement of Richard Konarski, Annexure F
to the SRM Report, at paragraph 3.
14. SRM Report, at page 37.
15. SRM Report, at page 2.
16. Secretary, Department of Defence v HREOC, Burgess
& Ors (1997) 78 FCR 208.
17. Ibid.
18. 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.
19. "Immigration detention" is defined in section
5 of the Migration Act.
20. Sections 189 and 196 of the Migration Act.
21. Human Rights and Equal Opportunity Commission, Those
who've come across the seas: Detention of unauthorised arrivals, JS McMillan
Pty Ltd, Sydney, 1998.
22. Ibid, at Part 2.
23. Ibid, at pages 56 - 57.
24. Article 2(1) of the ICCPR.
25. United Nations Human Rights Committee, General Comment
No. 8 (1982), paragraph 1.
26. Communication No. 305/1988, CCPR/C/39/D/305/1988,
at paragraph 9.4.
27. Communication No. 631/1995, CCPR/C/67/D/631/1995.
See also Concluding Comments Regarding Switzerland (1996), CCPR/C/79/Add.70.
28. The preamble to article 5 of the ECHR states "Everyone
has the right to liberty and security of person. No one shall be deprived
of his liberty save in the following cases and in accordance with a procedure
prescribed by law…" A number of specified exceptions to that
general principle are then listed.
29. P van Dijk and GJH van Hoof, Theory and Practice
of the European Convention on Human Rights (1998), at page 348.
30. Series A, No. 114, ECHR, 2 March 1987. See also Thynne,
Wilson and Gunnell v United Kingdom, Series A, No. 190, ECHR, 25 October
1990; Amuur v France, Application No. 19776/1992, ECHR, 25 June 1996;
Aerts v Belgium, Application No. 25357/1994, ECHR,
30 July 1998.
31. Application No. 23 807/94, ECHR, 23 September 1998.
32. Application No. 7754/77, ECHR, 9 May 1977.
33. Van Dijk and van Hoof, above n 29, at pages 97 and
193.
34. Nowak M, UN Covenant on Civil and Political Rights
CCPR Commentary (1993), at page 172.
35. Communication No. 560/1993, CCPR/C/59/D/560/1993.
36. Ibid, at paragraph 9.2.
37. Communication No. 305/1988, CCPR/C/39/D/305/1988
.
38. SRM Report, at page 42.
39. A v Australia, Communication No. 305/1988, CCPR/C/39/D/305/1988,
at paragraph 9.4.
40. SRM Report, at page 16.
41. Ibid, at page 17.
42. Ibid.
43. Undated statement of Richard Konarski, Annexure F
to the SRM Report, at paragraph 3.
44. SRM Report, at page 14.
45. United Nations Human Rights Committee, General Comment
No. 20 (1992), UN/HRI/GEN/Rev.4, at paragraph 2.
46. Nowak, above n 34, at page 186. Article 7 of the
ICCPR provides: "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment".
47. Ibid, at page 188.
48. The Body of Principles were adopted by the UN General
Assembly in 1988: GA Res 43/173. Annex: UN Doc/A/43/49 (1988).
49. Collins v State of South Australia [1999] SASC 257
(25 June 1999).
50. 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 6. See also,
for example, the Concluding Comments on the United States of America (1995)
UN Doc. CCPR/C/79/Add. 50, at paragraph 34.
51. Mukong v Cameroon, above n 6, at paragraph 9.3.
52. Part 1 covers the general management of institutions,
and is applicable to all categories of prisoner, criminal or civil, untried
or convicted: Rule 4 of the Standard Minimum Rules.
53. Communication No. 704/1996, CCPR/C/62/D/704/1996.
54. Communication No. 705/1996, CCPR/C/62/D/705/1996.
55. Communication No. 720/1996, CCPR/C/62/D/720/1996.
56. Michael Robinson v Jamaica, Communication No. 731/1996,
CCPR/C/68/D/731/1996; Lancy Gallimore v Jamaica, Communication No. 680/1996,
CCPR/C/66/D/680/1996; Anthony Leehong v Jamaica, Communication No. 613/1995,
CCPR/C/66/D/613/1995; Errol Smith and Oval Stewart v Jamaica, Communication
No. 668/1995, CCPR/C/65/D/668/1995; and Christopher Brown v Jamaica, Communication
No. 775/1997, CCPR/C/65/D/775/1997.
57. Communication No. 410/1990, CCPR/C/45/D/410/1990.
58. Communication No. 74/1980, CCPR/C/18/D/74/1980.
59. Communication No. 526/1993, CCPR/C/59/D/526/1993.
60. Immigration Detention Standards, Principles Underlying
Care and Security, at http://www.immi.gov.au/illegals/det_standards.htm.
61. The Management Plan was found by the SRM Report to
be the principal instructions issued for the guidance of staff during
the period of the incident.
62. Mukong v Cameroon, above n 6, at paragraph 9.3.
63. Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217,
per Lockhart J at 239; Commonwealth of Australia v Human Rights and Equal
Opportunity Commission [2000] FCA 1150 (17 August 2000), per Wilcox J
at [55].
64. Sheiban, above n 63, per Lockhart J at 239.
65. RP Balkin and JLR Davis, Law of Torts (2nd ed, 1996),
at page 61.
66. Trobridge v Hardy (1955) 94 CLR 147, per Fullagar
J at 152; Murray v Ministry of Defence [1988] 1 WLR 692 at 701 - 702;
Re Bolton; Ex parte Beane (1987) 162 CLR 514, per Brennan J at 523; and
Sadler & State of Victoria v Madigan [1998] VSCA 53 (1 October 1998)
at [51].
67. Ibid.
68. Cassell & Co Ltd v Broome (1972) AC 1027 at 1124;
Spautz v Butterworth & Anor (1996) 41 NSWLR 1 per Clarke JA; Vignoli
v Sydney Harbour Casino [1999] NSWSC 113 (22 November 1999], at [87];
McGregor on Damages (5th ed, 1988), at para 1619.
69. Balkin and Davis, above n 65, at 61.
70. Spautz, above n 68; Sheiban, above n 63, per Lockhart
J at 239-240.
71. Spautz, above n 68; Vignoli, above n 68; Sadler and
State of Victoria v Madigan [1998] VSCA 53; Louis and Ors v The Commonwealth
and Qantas Airways [1987] ACTSC 36; and Myers Stores Ltd v Soo [1991]
2 VR 597.
72. Spautz, above n 68.
73. Vignoli, above n 68.
74. D Shelton, Remedies in International Human Rights
Law (2000), at page 151

Last
updated 12 December 2002.