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Immigration detention in Darwin (2010)

Immigration detention in Darwin

Summary

of observations from visits to immigration detention facilities in Darwin

2010

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Contents

PART A: Introductory sections

PART B: Key concerns about immigration detention in Darwin

PART C: Recommendations


PART A: Introductory

sections

1 Introduction

The Australian Human Rights Commission (the Commission) visited immigration

detention facilities in Darwin from 6 to 10 September 2010. The visit was

conducted by Commission President and Human Rights Commissioner, Catherine

Branson QC, as well as Commission staff and consultants including a consultant

psychiatrist.

The Commission acknowledges the assistance provided by the Department of

Immigration and Citizenship (DIAC) in facilitating the visit, and the positive

cooperation received from DIAC officers and detention service provider staff

during the visit.

This statement contains a brief overview of the key observations and concerns

arising from the Commission’s visit. It focuses on conditions as they were

at the time of the visit. In addition to the issues outlined in this statement,

the Commission raised a number of issues with DIAC during the visit and in

subsequent communications. This statement was provided to DIAC in advance of its

publication in order to provide DIAC with an opportunity to prepare a response.

DIAC’s response is available on the Commission’s website.[1]

2 Background

For more than a decade, the Commission has raised significant concerns about

Australia’s immigration detention system. During this time, the Commission

has investigated numerous complaints from people in detention and conducted two

national inquiries into the mandatory detention

system.[2] The Commission has concluded that this system breaches fundamental human

rights.[3]

Because of its ongoing concerns, the Commission undertakes monitoring

activities which include conducting visits to immigration detention

facilities.[4] The overarching aim is

to ensure that conditions of detention meet internationally accepted human

rights standards. Further information about the Commission’s immigration

detention visits and visit reports can be found on the Commission’s website.[5]

3 Overview: immigration

detention in Darwin

At the time of the Commission’s visit there were 783 people in

immigration detention in Darwin – 468 men, 67 women and 248 accompanied

children and unaccompanied minors.[6] The majority were asylum seekers who had arrived by boat (referred to by DIAC as

‘irregular maritime arrivals’). There were also a significant number

of Indonesian crew members and a small number of alleged illegal foreign

fishers. The largest group of people were from Afghanistan, followed by smaller

groups from Indonesia, Iran, Iraq, Sri Lanka and Burma. There were also around a

hundred stateless people.[7]

During the visit, people were held in immigration detention in five

facilities in Darwin, as outlined below. The facilities were operated by Serco

Australia, the detention service provider contracted by the Australian

Government. Photos of the facilities are available on the Commission’s website.[8]

3.1 Northern

Immigration Detention Centre

The Northern Immigration Detention Centre (NIDC) is a high-security detention

centre located on the grounds of the Defence Establishment Berrimah, just

outside of Darwin. The NIDC is used to detain adult men. At the time of the

Commission’s visit there were 397 men detained at the NIDC, including 151

Indonesian crew.[9]

The capacity of the NIDC is approximately 500 people. The centre is split

into two main areas – the North area and the South area, each of which

contains three separate compounds. Accommodation is provided in demountable

buildings.

3.2 Berrimah

House

Berrimah House is a low-security immigration detention facility located on

the grounds of the Defence Establishment Berrimah. It is next to the NIDC, but

outside the NIDC fence. Berrimah House was constructed in 2008-2009 for the

purpose of accommodating unaccompanied minors in immigration detention.

At the time of the Commission’s visit there were 15 unaccompanied

minors detained at Berrimah House, all of them Indonesian crew. They were all

boys and they ranged in age from 11 to 17

years.[10]

The capacity of Berrimah House is 16 people, accommodated in four shared

bedrooms. The facility also contains a Serco office, a communal bathroom, a

laundry room, a lounge room and a combined kitchen, dining and activities

room.

3.3 Airport

Lodge

The Airport Lodge is a low-security immigration detention facility located

next to Darwin Airport. It is a new facility, constructed by a private owner as

a lodge for workers and now leased by DIAC. The Airport Lodge is used to detain

unaccompanied minors and families with children.

At the time of the Commission’s visit there were 194 people detained

there, including 143 children. There were 35 accompanied children ranging in age

from 8 months to 17 years and 108 unaccompanied minors ranging in age from 13 to

17 years.[11]

At the time of the visit, the capacity of the Airport Lodge was approximately

200 people. That has recently been increased to approximately 400 people with

the construction of additional accommodation.

3.4 Asti

Motel

The Asti Motel is a privately owned property leased by DIAC and operated as a

low-security immigration detention facility. It is located near the Darwin city

centre. The Asti is used to detain unaccompanied minors and families with

children.

At the time of the Commission’s visit, there were 174 people detained

there, including 87 children. There were 45 accompanied children ranging in age

from six weeks to 17 years and 42 unaccompanied minors ranging in age from 14 to

17 years.[12]

The capacity of the Asti depends on the make-up of the groups being detained

there. It was being used to its full capacity during the Commission’s

visit.

3.5 Botanic

Gardens Apartments

The Botanic Gardens Apartments are a privately owned property located near

the Darwin city centre. Occasionally DIAC rents an apartment for use as an

alternative place of detention. At the time of the Commission’s visit

there were three unaccompanied teenagers in immigration detention in one

apartment. They were all Indonesian – two were crew members and one was an

alleged illegal foreign fisher.[13]

The apartments contain bedrooms as well as kitchen and dining areas, laundry

facilities and lounge areas. There are no onsite recreation facilities. DIAC

informed the Commission that unaccompanied minors detained at the Botanic

Gardens Apartments are taken to Berrimah House on a daily basis to participate

in recreational activities there.

 


PART B: Key concerns

about immigration detention in

Darwin

4 Mandatory

detention

We have committed no crime, to be put in detention for seven

months.”(Man detained at the NIDC.)

As has been the case with past visits to immigration detention facilities,

the Commission’s overarching concern during the Darwin visit was the

impact of the mandatory detention system on the human rights, wellbeing and

mental health of those detained. The Commission is particularly concerned about

the mandatory detention of children, as discussed in section 7 below.

Australia continues to have one of the strictest immigration detention

regimes in the world – it is mandatory, it is not time limited, and people

are not able to challenge the need for their detention in a court. The

Commission has for many years called for an end to this system because it leads

to breaches of Australia’s international human rights obligations –

in particular, the obligation not to subject anyone to arbitrary detention and

the obligation to ensure that anyone deprived of their liberty is able to

challenge their detention.[14]

The Commission acknowledges that use of immigration detention may be

legitimate for a strictly limited period of time in order to undertake initial

health, identity and security checks. However, the need to detain a person

should be assessed on a case-by-case basis taking into consideration their

individual circumstances. A person should only be held in immigration detention

if they are assessed as posing a risk that cannot be appropriately met in a less

restrictive way.[15]

5 Length

of detention

Some people have been nearly one year waiting. It is very

frustrating.” (Man detained at the NIDC.)

One day looks like a year. It looks like the day is not going

anywhere.” (Unaccompanied minor detained at the Airport Lodge.)

The Commission is concerned that many people are being held in immigration

detention for prolonged periods of time. This is the case across Australia,

including in Darwin. At the time of the Commission’s visit, almost 80

percent of the 783 people in immigration detention in Darwin had been detained

for longer than three months, and more than 30 percent had been detained for

longer than six months. Twenty people had been detained for longer than nine

months.[16] For most people, their

time in detention included an initial period on Christmas Island followed by a

further period in Darwin. Some also spent time in detention facilities in other

locations before being transferred to Darwin.

During its Darwin visit, the Commission was concerned about a number of key

factors contributing to prolonged periods of detention:

  • The suspension of processing of claims lodged by asylum seekers from Sri

    Lanka and Afghanistan who arrived on or after 9 April 2010 contributed to the

    prolonged detention of hundreds of

    people.[17] At the time of the

    Commission’s visit, there were 148 people detained in Darwin who had been

    affected by the suspension, including 132 unaccompanied

    minors.[18] The Commission has

    welcomed the lifting of both suspensions and encouraged DIAC to move quickly to

    process the backlog of asylum claims.

  • Delays in obtaining security clearances appeared to be prolonging the

    detention of a significant number of people in Darwin. Delay with a security

    clearance resulting in the prolonged detention of any person is of significant

    concern, but it is of particular concern in the case of people in respect of

    whom Australia has been assessed as owing protection obligations. The Commission

    met with a number of people who remained in detention awaiting a security

    clearance months after receiving a provisional positive refugee status

    assessment. This included families with children and people with significant

    mental health concerns.

  • Delays in processing the cases of Indonesian crew members suspected of

    possible involvement in people-smuggling appeared to be prolonging their time in

    immigration detention. During the visit there were more than 160 Indonesian crew

    members in immigration detention in Darwin, including 17 unaccompanied

    minors.[19] Many had been detained

    for months without charge. Frustration about their prolonged detention led to

    unrest at the NIDC in August 2010. Since the visit DIAC has informed the

    Commission that work is being undertaken with the Commonwealth Department of

    Public Prosecutions to expedite processes, and that 28 crew members have been

    moved from immigration detention in Darwin to other state jurisdictions where

    they will be charged.

During its visit, the Commission was concerned

to hear reports that a significant number of people in detention in Darwin had

not been informed of their negative refugee status assessment decisions until a

number of weeks – or in some cases up to two months – after the

decisions were made. This could have the effect of prolonging people’s

detention. DIAC stated that there had only been delays in a handful of cases,

and that in these cases action had been taken to try to mitigate the delay by

requesting that the cases be moved up the waiting list for independent merits

review.

The Commission was also concerned to hear reports that the three and six

monthly detention review processes introduced under the 2008 New Directions

reforms were not being conducted in those timeframes for some people in

detention in Darwin. The Commission has raised concerns about this issue in past

reports, and has encouraged the Australian Government to take steps to increase

transparency surrounding these review

processes.[20]

The Commission has serious concerns about the potential impacts of prolonged

and indefinite detention on the mental health of those detained. As discussed in

section 8 below, these impacts were evident during the Commission’s Darwin

visit.

6 Physical conditions of

detention

During its visit, the Commission had particular concerns about some aspects

of the detention infrastructure and physical conditions at the NIDC, the Airport

Lodge and the Asti Motel. These concerns are summarised below.

6.1 Northern

Immigration Detention Centre

Northern Immigration Detention Centre

Previously, the NIDC was used for the immigration detention of alleged

illegal foreign fishers, many of whom were detained for short periods. During

2010 this has changed and the centre is now used to detain asylum seekers and

Indonesian crew, many of whom spend much longer periods in detention. At the

time of the Commission’s visit, the centre was not adequately equipped for

this purpose.

In its 2008 immigration detention report, the Commission raised concerns

about the harsh physical appearance of the

NIDC.[21] These concerns remain.

There is a significant amount of high wire fencing both around and within the

centre, which creates a punitive feeling. The North and South areas are

separated by an electrified fence. People in detention do not have freedom of

movement between compounds, which creates unequal access to recreation

facilities located in certain compounds.

There are few trees and there is little grass inside the NIDC. Some compounds

have sheltered cabana areas, but overall the combination of the heat, dirt and

lack of shade means there are few comfortable outdoor areas. Most compounds do

not have an open grassy area for sport or recreation, and some compounds do not

have adequate indoor recreation space. The Commission has been informed that

minor works are planned to construct further recreational areas in some

compounds, and that there are ongoing works aimed at increasing grassy areas.

The Commission welcomes these efforts and urges the completion of this work as

soon as possible.

6.2 Airport

Lodge

Airport Lodge detention

In general, the Commission welcomes the standard of accommodation at the

Airport Lodge, which is higher than some detention facilities used for

unaccompanied minors and families with children (such as the Asti Motel in

Darwin and the Construction Camp on Christmas Island).

However, during its visit the Commission had significant concerns about the

lack of recreation space in the facility, particularly given the high number of

children detained there. There were no indoor recreation rooms and there was

only one freely accessible outdoor recreation area which contained a table

tennis table and a pool table. While there was a small oval area at the rear of

the facility, it had very little shade and was not freely accessible. The

Commission welcomes plans to install some shade cloth over part of the oval

area.

Many parents raised concerns about the lack of safe and appropriate play

areas for their young children. While there was a recently-installed playground

area, it appeared to be unusable during the heat of the day because of a lack of

shade. Because of the heat in Darwin and the lack of indoor recreation areas,

many families reported spending the majority of their time inside their

bedrooms.

6.3 Asti

Motel

Asti Motel detention

In the Commission’s view, the Asti Motel is not an appropriate place to

use as an immigration detention facility, particularly for families with

children and unaccompanied minors. It is the most restrictive of the detention

facilities in Darwin in terms of the amount of open space.

During its visit the Commission had significant concerns about the high

number of people detained at the Asti – including more than 80 young

children and unaccompanied teenagers – in a very cramped environment with

little room to move. The Commission was particularly concerned about the lack of

indoor and outdoor recreation space. The outdoor areas were all paved or

concrete and had limited shade. There were no open grassy areas. There were

several rooms dedicated for recreation, but they were small and not always

accessible. Many parents raised concerns about the lack of safe and appropriate

play areas for their toddlers or young children.

7 Children in detention

We understand but the children don’t understand –

they want to go outside.”

(Kurdish woman detained at the Airport

Lodge.)

We don’t understand why people under 18 are kept inside as

if we are a risk to the community. We should be in the community, learning. All

we do is eat and sleep.” (Unaccompanied minor detained at the Airport

Lodge.)

The Commission has significant concerns about the high number of children in

immigration detention facilities around Australia. During the Commission’s

visit, there were 248 children in immigration detention in Darwin – 34

girls and 214 boys. This included 81 accompanied children ranging in age from

six weeks to 17 years, and 167 unaccompanied minors ranging in age from 11 to 17

years.[22]

During its Darwin visit, the Commission had particular concerns about the

following issues relating to the detention of families with children and

unaccompanied minors:

  • Child asylum seekers continue to be subjected to mandatory immigration

    detention. This breaches Australia’s obligations under the Convention

    on the Rights of the Child, which require that a child should only be

    detained as a measure of last resort and for the shortest appropriate period of

    time.[23]

  • Many children are spending longer periods in immigration detention. At the

    time of the Commission’s visit, more than 70 percent of the 248 children

    in detention in Darwin had been detained for longer than three months. Nineteen

    children had been detained for longer than six

    months.[24] The Commission has

    serious concerns about the impacts of prolonged detention on

    children.[25]

  • The Commission was concerned about the prolonged detention of unaccompanied

    minor Indonesian crew members in Darwin. There were 17 of these boys in

    detention at the time of the visit. They were aged between 11 and 17 years, and

    had been detained for periods ranging between three and eight

    months.[26]

  • There was no Memorandum of Understanding between DIAC and Family and

    Children’s Services in the Northern Territory Department of Health and

    Families regarding child welfare and protection concerns that may arise in

    relation to children in immigration detention in Darwin.

  • There did not appear to be appropriate procedures in place to ensure that

    all staff were aware of, and complied with, requirements for making child

    welfare and protection notifications in relation to concerns arising in respect

    of children in detention in Darwin. There appeared to have been at least one

    incident in a detention facility in Darwin following which the appropriate

    notification was not made to Family and Children’s Services in the

    Northern Territory Department of Health and Families in a timely manner. This

    was not in line with DIAC and Serco policies, both of which require that

    notifications be made

    ‘immediately’.[27]

  • Unaccompanied minor asylum seekers in immigration detention fall under the

    legal guardianship of the Minister for Immigration. During the

    Commission’s visit, there appeared to be no legal guardian for those

    unaccompanied minors in immigration detention in Darwin who were not seeking to

    remain in Australia (Indonesian crew members and alleged illegal foreign

    fishers). The Commission continues to be of the view that independent legal

    guardians should be appointed for all unaccompanied minors in immigration

    detention.[28]

  • Some DIAC and detention service provider staff were not aware of which DIAC

    officer had been delegated the Minister’s powers of legal guardianship of

    unaccompanied minor asylum seekers in detention in Darwin, and in which

    situations that legal guardian should be consulted.

  • It appeared that Independent Observers (provided by the organisation Life

    Without Barriers) were not always present in interviews involving unaccompanied

    minors detained in Darwin. DIAC has since informed the Commission that posters

    have been displayed to remind staff of when they are required to request the

    presence of an Independent Observer.

  • As outlined above, the Commission was

    particularly concerned about the inappropriate nature of the Asti Motel as a

    place for holding children in immigration detention.

  • Some parents at the Asti Motel and the Airport Lodge raised concerns about

    the safety of their young children in the context of sharing a closed

    environment with high numbers of unaccompanied teenagers, the vast majority of

    whom are male.

The Commission is pleased that children are not

detained in the high-security environment of the NIDC. However, the Commission

is concerned that hundreds of children are detained in other facilities in

Darwin rather than being placed in community-based alternatives to detention.

The Commission has raised concerns about the under-utilisation of the

Community Detention system both in Darwin and

nationally.[29] The Commission

therefore welcomed the announcement on 18 October 2010 that the Minister for

Immigration will begin to use his existing Residence Determination powers to

move some families and unaccompanied minors into Community Detention. The

Commission has encouraged the Australian Government to expand these efforts to

include all children in immigration detention and to implement them as quickly

as possible.

8 Health

and mental health services

My humble request. Find a solution for us before we completely

lose our minds. So in future I can help myself and my family. So if accepted as

refugees we can make a contribution to this country as well. If we are healthy

we can make a good contribution to Australian society. If we lose our minds and

are not able to help ourselves, how can we make a contribution?” (Man

detained at the NIDC.)

Under international human rights standards, all people have a right to the

highest attainable standard of physical and mental

health.[30] Each person in detention

is entitled to medical care and treatment provided in a culturally appropriate

manner and to a standard which is commensurate with that provided in the general

community. This should include preventive and remedial medical care and

treatment including dental, ophthalmological and mental health

care.[31]

At the time of its visit, the Commission had significant concerns about the

provision of health and mental health services for people in immigration

detention in Darwin. These concerns were informed by a consultant psychiatrist

who was part of the Commission team conducting the visit.

The concerns about health and mental health care raised by this visit are

similar to concerns raised by previous immigration detention visits. The

Commission is of the view that there is a need for rigorous ongoing monitoring

of the delivery of health and mental health services in immigration detention

facilities, and has recommended that an independent body be charged with this

monitoring function.[32]

Staff members of the health service provider (IHMS) that the Commission met

with in Darwin were clearly hard-working and committed. However, the Commission

had a number of concerns about the staffing of the service and the conditions

under which staff were working. These concerns included the following:

  • Both the health and mental health services appeared to be understaffed given

    the high number of people in detention in Darwin and the complex nature of the

    caseload. Since the visit, the Commission has been informed that DIAC has

    submitted a request for additional health and mental health staff in

    Darwin.

  • The model of care had resulted in inadequate clinical governance,

    particularly in the case of mental health. The health service was led by a nurse

    who held duty of care responsibilities, but who had limited clinical oversight.

    This was mitigated in part by regular contact with a general practitioner for

    physical health, who was potentially able to take clinical responsibility.

    However, there was no parallel clinical governance framework for mental health.

    The mental health service was led by a mental health nurse and there was no

    psychiatrist on staff. This resulted in mental health staff carrying significant

    clinical and duty of care responsibilities. This should be addressed by ensuring

    regular oversight by a psychiatrist able to provide clinical guidance and

    supervision of the clinical decision making of staff.

8.1 Health

care

During its visit, the Commission heard a high number of complaints from

people in immigration detention in Darwin about access to timely and appropriate

health care. These included the following:

  • Complaints about long waiting periods to see a doctor, particularly at the

    NIDC and the Airport Lodge.

  • Numerous complaints about long waiting periods for dental, optometry and

    other specialist appointments.

  • Numerous complaints from people who felt they had not been provided with

    prompt or appropriate treatment for a range of medical issues including kidney

    stones, shrapnel wounds and follow-up care after miscarriage.

  • Complaints about delays in receiving test results or a lack of prompt

    responses from the health service provider about progress with requests for

    treatment.

IHMS staff reported that doctor’s appointments were

arranged within 72 hours of a request being made. However, they acknowledged

that the doctor’s hours at the NIDC were insufficient for the number of

people detained in the centre. They also reported that they had requested the

provision of further dental and optical services. Since the visit, DIAC has

informed the Commission that it has submitted a request for an increase in

doctor’s hours and dental hours.

8.2 Mental health

care

I have feared I will get crazy in here and will lose my

mind.”

(Unaccompanied minor detained at the Airport Lodge.)

The children suffer from the restrictions without freedom. They

are affected mentally.” (Woman detained at the Airport Lodge.)

The Commission has serious concerns about the potential impacts of prolonged

and indefinite detention on the mental health of those detained. Those impacts

were evident during the Commission’s Darwin visit. The Commission spoke

with many people in detention who expressed concerns about the psychological

impacts of being detained for a lengthy and uncertain period of time.

The Commission’s key concerns about mental health included the

following:

  • The Commission met with people in detention who did not appear to be

    receiving mental health treatment despite having significant

    vulnerabilities.

  • It appeared that many staff had not received training on DIAC’s

    torture and trauma policy or the Psychological Support Program (PSP), or

    sufficient refresher training such that they were able to confidently implement

    these policies. Since the visit, DIAC has informed the Commission that PSP

    training has been conducted in Darwin.

  • There appeared to be an extremely low referral rate for specialised torture

    and trauma services in Darwin, given the number of asylum seekers in detention

    likely to have experienced significant torture or trauma.

  • DIAC reported that there had been 21 self-harm incidents among people in

    immigration detention in Darwin during

    2010.[33] The Commission heard

    reports of hunger strikes, a hanging attempt and other physical acts of

    self-harm.

During its visit the Commission met with a number of

people in detention in Darwin, including minors, who had experienced significant

trauma in their home country or who had attempted self-harm while in detention.

There appeared to be numerous cases where people met the priority criteria for

consideration of a Community Detention placement based on mental health concerns

or a background of torture or trauma, but they had not been placed in Community

Detention.

The Commission has encouraged the Australian Government to make full use of

the Community Detention system.[34] As noted above, the Commission welcomed the announcement that some families and

unaccompanied minors will be placed in Community Detention. Under the Residence

Determination Guidelines, people with significant physical or mental health

concerns, people who may have experienced torture or trauma and people whose

cases will take a considerable period to substantively resolve should also be

given priority consideration for Community

Detention.[35]

9 Education, recreation

and excursions

Under international human rights standards, people in immigration detention

should have access to materials and facilities for exercise, recreation,

cultural expression and intellectual and educational pursuits to utilise their

time in detention in a constructive manner, and for the benefit of their

physical and mental health.[36]

Meaningful recreational and educational activities and opportunities to leave

the detention environment are vital to people’s capacity to cope in

detention, particularly when they are detained for long and indefinite periods

of time. At the time of the Commission’s visit, many people in detention

in Darwin raised significant concerns about these issues.

9.1 Education

for children

It is very important for us to be in society. We are segregated.

We don’t learn anything here. We should be learning.”

(Unaccompanied minor detained at the Airport Lodge.)

Under the Convention on the Rights of the Child, all children have a

right to education.[37]

The Commission has serious concerns about the protracted period during which

children in immigration detention in Darwin were unable to attend external

schools. At the time of the Commission’s visit, there were 248 children

detained in Darwin and none of them was attending an external school or

kindergarten.[38] While the majority

had been in detention in Darwin for less than three months, 50 children had been

there for longer than three

months.[39]

During the Commission’s visit, many parents at the Airport Lodge and

the Asti Motel expressed significant concerns about their children not being

able to attend school – both for the educational opportunities and for the

chance to play and socialise in a ‘normal’ environment outside the

detention facility.

Parents also expressed concerns about the educational opportunities provided

inside detention for children at the Airport Lodge and the Asti Motel. These

opportunities were seriously inadequate at the time of the Commission’s

visit. Children were only provided with a one hour English class each day. At

the Asti Motel the lack of indoor recreation space meant the classes were held

outdoors in the heat.

The Commission welcomes the fact that children aged 5 to 15 years in

detention at the Airport Lodge and the Asti Motel were able to start attending

external schools in October

2010.[40] However, the Commission

remains concerned that there are still not adequate educational opportunities

provided for 16 and 17 year olds, who are not allowed to attend external

schools.[41] These minors should be

provided with access to high quality educational alternatives outside the

detention environment as soon as possible.

9.2 Recreation

We don’t have a place to play.” (10 year old girl

detained at the Asti Motel.)

There are no newspapers here and we cannot access news of our

country. We feel isolated culturally.” (Arabic-speaking man detained

at the Airport Lodge.)

At the time of its visit, the Commission was concerned about the limited

opportunities for people in immigration detention in Darwin to engage in

meaningful recreational activities. This was particularly concerning given the

long periods of time some people are being detained for, and the indefinite

nature of their detention.

During the visit, people detained at the NIDC, the Asti Motel and the Airport

Lodge expressed frustrations about the lack of regular organised activities. In

particular, many parents expressed concerns about the need for more activities

for toddlers and young children. Some recreational activities were offered by a

combination of volunteers, Serco staff and Life Without Barriers employees.

These activities were greatly appreciated by people in detention, but they did

not appear to be adequate to meet the needs of the high number of people

detained. The limited availability of regular purposeful activities appeared to

have resulted in high levels of boredom, frustration and tension.

As noted above, external and internal recreation spaces at the NIDC, the Asti

Motel and the Airport Lodge were inadequate. In particular, none of the

facilities had an appropriate library area, nor were multilingual reading

materials available (other than occasional foreign language newspapers at the

NIDC). The majority of detainees did not have access to a gym area for

exercising. Many parents raised concerns about the lack of play areas for young

children.

At the Airport Lodge, space constraints and the lack of recreational

facilities and toys appeared to be generating tensions between children as well

as associated friction between parents. The Commission witnessed one altercation

during its visit and heard about two others that had occurred the previous

night.

Since the visit, DIAC has informed the Commission that greater efforts are

being made to provide a range of recreational activities to people in detention

in Darwin including some activities for pre-school aged children; that some

reading materials have been distributed; and that efforts are being made to

engage further volunteers in activities at the NIDC.

9.3 Excursions

I want to be allowed to go outside to somewhere else.” (10 year old girl detained at the Airport Lodge.)

We are all forgetting what it is like to be out. We want to see

what Darwin looks like. I’m forgetting the shape of a city.”

(Man detained at Northern IDC.)

At the time of its visit, the Commission had serious concerns about the lack

of opportunities for people in immigration detention in Darwin to leave the

detention environment on external excursions.

Regular excursions were not being conducted for any of the people detained in

Darwin, with the exception of the unaccompanied minors detained at Berrimah

House. There were no excursions at all for irregular maritime arrivals detained

at the NIDC, for anyone detained at the Airport Lodge or for unaccompanied

minors detained at the Asti Motel. Family groups at the Asti were being taken on

infrequent excursions to a local park. Each family was able to participate once

every few weeks.

The Commission was particularly concerned about the lack of excursions for

people detained at the Airport Lodge and the Asti Motel, who had limited room to

move and limited access to recreational facilities inside detention. Many of

them had been detained there for months without an opportunity to leave the

detention environment. This had clearly caused distress and increased tension

within the facilities.

Since the visit, DIAC has informed the Commission that there has been an

increase in the number of excursions being conducted for people in detention in

Darwin, and that excursions are now being conducted from each of the detention

facilities.

10 Other concerns

During its visit, the Commission heard a range of other concerns from people

in immigration detention in Darwin. These included the following:

  • A number of people detained at the NIDC raised concerns about being referred

    to by their identification number rather than their name. The Commission

    witnessed this during the visit. Some people were distressed by the practice.

    For example, one man said: “They want us to respect them, but they

    don’t respect us.” Another man said: “We think we are not

    human beings anymore.”[42] The

    Commission is concerned about this practice because it is dehumanising and fails

    to accord respect to people in detention. People should always be referred to by

    their name. Their identification number should only be used as a secondary

    identifier where this is necessary for clarification purposes.

  • Many people detained at the NIDC and the Airport Lodge raised concerns about

    the limited number of telephones and internet terminals – both critical

    means of communication with the outside world for people in detention. For

    example, in the North 1 compound at the NIDC there were only two telephones for

    use by 211 detainees.[43] Irregular

    maritime arrivals were not permitted to have mobile telephones, which added to

    the pressure on the limited landline telephones. The Commission was informed

    that additional telephones and internet terminals would be installed at the

    NIDC.

  • There were no organised religious services for people in detention in

    Darwin, and very few people were being provided with any opportunity to attend a

    place of worship outside the detention environment. There was no designated

    prayer room at the Asti Motel or the Airport Lodge. Since the visit, DIAC has

    informed the Commission that the local Imam has begun conducting visits to the

    detention facilities, and that some external visits have been conducted to a

    local Church, a mosque and a Hindu temple.


PART C:

Recommendations

Recommendation 1: Australia’s mandatory detention law should

be repealed. The Migration Act should be amended so that immigration detention

occurs only when necessary. This should be the exception, not the norm. It must

be for a minimal period, be reasonable and be a proportionate means of achieving

at least one of the aims outlined in international law. The limited grounds for

detention should be clearly prescribed in the Migration

Act.[44]

Recommendation 2: The Migration Act should be amended to accord with

international law by requiring that a decision to detain a person, or a decision

to continue a person’s detention, is subject to prompt review by a

court.[45]

Recommendation

3: Until the above legislative changes are implemented, the Australian

Government should avoid the prolonged detention of asylum seekers by:

  • Ensuring full implementation of its New Directions policy under which asylum

    seekers should only be held in immigration detention while their health,

    identity and security checks are conducted. After this, the presumption should

    be that they will be permitted to reside in the community unless a specific risk

    justifies their ongoing detention.

  • Ensuring that security clearances are conducted as quickly as possible.

Recommendation 4: The Australian Government should

implement the outstanding recommendations of the report of the National Inquiry

into Children in Immigration Detention, A last

resort?.[46] These include that Australia’s immigration detention laws should be

amended, as a matter of urgency, to comply with the Convention on the Rights

of the Child. In particular, the new laws should incorporate the following

minimum features:

  • There should be a presumption against the detention of children for

    immigration purposes.

  • A court or independent tribunal should assess whether there is a need to

    detain children for immigration purposes within 72 hours of any initial

    detention (for example, for the purposes of health, identity or security

    checks).

  • There should be prompt and periodic review by a court of the legality of

    continuing detention of children for immigration purposes.

  • All courts and independent tribunals should be guided by the following

    principles:

    • detention of children must be a measure of last resort and for the

      shortest appropriate period of time

    • the best interests of children must be a primary consideration

    • the preservation of family unity

    • special protection and assistance for unaccompanied children.

Recommendation 5: DIAC should ensure that

relevant DIAC officers and staff members of detention service providers are

provided with information and training on:

  • the requirements and procedures for making child welfare and protection

    notifications in relation to concerns that arise in respect of children in

    immigration detention in Darwin

  • which DIAC officer or officers have been delegated the Minister’s

    powers of legal guardianship of unaccompanied minor asylum seekers in

    immigration detention in Darwin, and in which situations the guardian should be

    consulted.

Recommendation 6: The Australian Government should, as a

matter of priority, implement the recommendations made by the Commission in A

last resort? that:

  • Australia’s laws should be amended so that the Minister for

    Immigration is no longer the legal guardian of unaccompanied children in

    immigration detention.

  • An independent guardian should be appointed for unaccompanied children in

    immigration detention and they should receive appropriate support.

Recommendation 7: DIAC should ensure that people in

immigration detention in Darwin are provided with timely access to appropriate

health and mental health services. In particular, DIAC should enhance clinical

governance of the mental health service by ensuring that a psychiatrist is

available to provide clinical guidance and supervision of the clinical decision

making of mental health staff.

Recommendation 8: DIAC should ensure that all people in immigration

detention in Darwin have access to:

  • appropriate indoor and outdoor recreational spaces including open grassy

    areas and, where applicable, play areas that are safe and appropriate for young

    children

  • an adequate supply of reading materials in the principal languages spoken by

    detainees

  • sufficient communication facilities, in particular telephones and internet

    terminals

  • regular external excursions

  • regular religious services conducted by qualified religious

    representatives.

Recommendation 9: The Australian

Government should ensure that all school-aged children in immigration detention

in Darwin and elsewhere are provided with access to educational opportunities of

a standard and quality equivalent to that in Australian schools. Wherever

possible, this should take place outside the detention environment by

facilitating access to the Australian school system.

Recommendation 10: The Australian Government should stop using the

Asti Motel in Darwin as an ‘alternative place of detention’ as soon

as possible.


[1] See http://www.humanrights.gov.au/human_rights/immigration/idc2010_darwin_response.html.
[2] The Commission’s reports of complaints about alleged human rights breaches

in immigration detention are available at http://humanrights.gov.au/legal/humanrightsreports/index.html.

The Commission’s national inquiry reports are A last resort? National

Inquiry into Children in Immigration Detention (2004) (A last resort), at http://humanrights.gov.au/human_rights/children_detention_report/index.html,

and Those who’ve come across the seas: Detention of unauthorised

arrivals (1998) (Those who’ve come across the seas), at http://humanrights.gov.au/human_rights/immigration/seas.html (viewed 9 November 2010).
[3] See,

for example A last resort, note 2; Those who’ve come across the seas, note

2.
[4] Further information about

the Commission’s activities relating to immigration detention is available

at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9.
[5] See http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9_3.
[6] Figures provided by DIAC,

current as of 6 September 2010.
[7] DIAC provided the Commission with figures current as of 6 September 2010. These

figures list the nationality of the 783 people in immigration detention in

Darwin as follows: 333 from Afghanistan, 169 from Indonesia, 94 stateless, 57

from Iran, 54 from Iraq, 49 from Sri Lanka, 20 from Burma, 5 from Kuwait, 1 from

Bangladesh, 1 from Yemen.
[8] See http://www.humanrights.gov.au/human_rights/immigration/idc2010_photos.html.
[9] Figures provided by DIAC, current as of 6 September

2010.
[10] Figures based on

statistics provided by DIAC, current as of 6 September

2010.
[11] Figures based on

statistics provided by DIAC, current as of 6 September

2010.
[12] Figures based on

statistics provided by DIAC, current as of 6 September

2010.
[13] Information provided

by DIAC, 6 September 2010.
[14] See International Covenant on Civil and Political Rights (1966) (ICCPR),

art 9, at http://www2.ohchr.org/english/law/ccpr.htm (viewed 9 November 2010); Convention on the Rights of the Child (1989)

(CRC), art 37, at http://www2.ohchr.org/english/law/crc.htm (viewed 9 November 2010).
[15] See further UNHCR, Revised Guidelines on Applicable Criteria and Standards

Relating to the Detention of Asylum Seekers (1999), guidelines 2, 3. At http://www.unhcr.org/3bd036a74.html (viewed 9 November 2010).
[16] These figures are based on statistics provided by DIAC, current as of 6

September 2010. They refer to the overall time spent in immigration detention

– including on Christmas Island, in Darwin and in any other immigration

detention facilities in

Australia.
[17] For further

discussion of the suspension, see Australian Human Rights Commission, 2010

Immigration detention on Christmas Island (2010) (2010 Christmas Island

report), section 8. At http://humanrights.gov.au/human_rights/immigration/idc2010_christmas_island.html (viewed 9 November 2010).
[18] These figures are based on statistics provided by DIAC, current as of 6

September 2010. The total of 148 people included 143 people from Afghanistan

(including 130 unaccompanied minors) and five people from Sri Lanka (including

two unaccompanied minors).
[19] Figures current as of 6 September

2010.
[20] See 2010 Christmas

Island report, note 17, section 10; Australian Human Rights Commission, 2009

Immigration detention and offshore processing on Christmas Island (2009),

section 9.2, at http://humanrights.gov.au/human_rights/immigration/idc2009_xmas_island.html (viewed 9 November 2010).
[21] See Australian Human Rights Commission, 2008 Immigration detention report:

Summary of observations following visits to Australia’s immigration

detention facilities (2008), section 11.4. At http://humanrights.gov.au/human_rights/immigration/idc2008.html (viewed 9 November 2010).
[22] These figures are based on statistics provided by DIAC, current as of 6

September 2010. The age breakdown of the 248 children was as follows: 32 aged

0-5 years; 28 aged 6-10 years; 60 aged 11-15 years; 128 aged 16-17

years.
[23] See CRC, note 14, art

37(b). For further discussion see A last resort, note

2.
[24] These figures are based

on statistics provided by DIAC, current as of 6 September 2010. They refer to

children’s overall time in immigration detention – including on

Christmas Island, in Darwin and in any other immigration detention facilities in

Australia.
[25] In A Last

resort?, the 2004 report of the National Inquiry into Children in

Immigration Detention, the Commission found that children in immigration

detention for long periods were at high risk of serious mental harm. See A last

resort, note 2, executive summary, major finding

2.
[26] Figures based on

statistics provided by DIAC, current as of 6 September

2010.
[27] Department of

Immigration and Citizenship, Detention Services Manual, Chapter 2, Minors in

Detention, section 18.3; Serco, APOD Working With Minors PPM, section

13.3 (Reporting of Abuse /

Neglect).
[28] See further 2010

Christmas Island report, note 17, section

16.2.
[29] See further 2010

Christmas Island report, note 17, sections 11,

13.2.
[30] See International

Covenant on Economic, Social and Cultural Rights (1966) (ICESCR), art 12, at http://www2.ohchr.org/english/law/cescr.htm (viewed 9 November 2010); CRC, note 14, art

24.
[31] See Human Rights and

Equal Opportunity Commission, Immigration Detention Guidelines (2000),

section 13. At http://humanrights.gov.au/human_rights/immigration/idc_guidelines2000.html (viewed 9 November 2010).
[32] See further 2010 Christmas Island report, note 17, section

19.
[33] According to information

provided by DIAC, there were 21 self-harm incidents in immigration detention

facilities in Darwin during the period 1 January to 19 October

2010.
[34] See further 2010

Christmas Island report, note 17, sections 11,

13.2.
[35] Minister for

Immigration and Citizenship, Minister’s Residence Determination Power

Under S. 197AB and S. 197AD of the Migration Act 1958: Guidelines (2009),

para 4.1.4.
[36] See Immigration

Detention Guidelines, note 31, section

7.2.
[37] CRC, note 14, art

28.
[38] These figures are based

on statistics provided by DIAC, current as of 6 September 2010. The age

breakdown of the 248 children was as follows: 32 aged 0-5 years; 28 aged 6-10

years; 60 aged 11-15 years; 128 aged 16-17

years.
[39] Figures based on

statistics provided by DIAC, current as of 6 September

2010.
[40] DIAC informed the

Commission that as of 18 October 2010, all children aged 5 to 15 years in

detention at the Airport Lodge and the Asti Motel would be attending external

schools.
[41] Information

provided by DIAC showed that as of 13 October 2010 there were 75 minors aged 16

or 17 years in immigration detention at the Asti Motel or the Airport Lodge who

were not attending external

schools.
[42] Interview with

group of Afghani and Iranian men, NIDC, 7 September

2010.
[43] Information current as

of 6 September 2010.
[44] Under

United Nations High Commissioner for Refugees (UNHCR) guidelines, there should

be a presumption against the detention of asylum seekers–it should be the

exception rather than the norm. Detention should only be resorted to if there is

evidence to suggest that other alternatives (for example, reporting

requirements) will not be effective in the individual case. The permissible

exceptions to the general rule that detention should normally be avoided must be

prescribed by law. The detention of asylum seekers may only be resorted to if

necessary to verify identity; to determine the elements on which the claim to

refugee status or asylum is based; to deal with cases where refugees or asylum

seekers have destroyed their travel and/or identity documents or have used

fraudulent documents in order to mislead the authorities of the State in which

they intend to claim asylum; or to protect national security or public order. In

assessing whether detention is necessary, considerations should include whether

it is reasonable and whether it is proportional to the objectives to be

achieved. See UNHCR, Revised Guidelines on Applicable Criteria and Standards

Relating to the Detention of Asylum Seekers, note 15, guidelines 2, 3; UNHCR

Executive Committee, Conclusion No. 44 (XXXVII) - Detention of Refugees and

Asylum Seekers (1986), at http://www.unhcr.org/refworld/docid/3ae68c43c0.html (viewed 9 November 2010).
[45] To

comply with article 9(4) of the ICCPR, the court must have the power to order

the person’s release if their detention is not lawful. The lawfulness of

their detention is not limited to domestic legality – it includes whether

the detention is compatible with the requirements of article 9(1) of the ICCPR.

See, for example United Nations Human Rights Committee, A v Australia,

Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), para 9.5. At http://www.unhchr.ch/tbs/doc.nsf/

0/30c417539ddd944380256713005e80d3?Opendocument (viewed 9 November

2010).
[46] A last resort, note

2, Section 17.3.