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HREOC submission to Inquiry into Immigration Detention in Australia

Legal Legal
Friday 14 December, 2012

Submission of the
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
(HREOC)

to the

Joint Standing Committee on
Migration

Inquiry into Immigration Detention in
Australia

4 August 2008

Human Rights and Equal Opportunity
Commission

Level 8, 133 Castlereagh St
GPO Box 5218
Sydney NSW
2001


Table of Contents


Introduction

  1. The Human Rights and Equal Opportunity Commission (‘HREOC’)
    welcomes the opportunity to make a submission to the Joint Standing Committee
    Inquiry into Immigration Detention in Australia.
  2. HREOC is established by the Human Rights and Equal Opportunity Commission
    Act 1986
    (Cth) (‘HREOC Act’). HREOC is
    Australia’s national human rights institution.
  3. This submission draws on extensive work HREOC has conducted in the area of
    immigration detention, including:

    • submissions to parliamentary inquiries
    • national inquiries into immigration detention, in particular A last
      resort: National Inquiry into Children in Immigration Detention
      (2004)
      (‘A last resort?’) and Those who’ve come across the
      seas: Detention of unauthorised arrivals
      (1998) (‘Those
      who’ve come across the seas
      ’)
    • annual inspections and reports on conditions of immigration detention
    • investigating complaints from individuals in immigration detention
    • examination of proposed legislation
    • commenting on policies and procedures relating to immigration
      detention
    • developing minimum standards for the protection of human rights in
      immigration
      detention.[1]
  4. This submission provides information under headings which correspond to the
    Terms of Reference as much as possible.

Government’s
announcement of a new direction in immigration detention policy

  1. HREOC welcomes the announcement on 29 July 2008 by the Minister for
    Immigration and Citizenship, Chris Evans, of a new direction in immigration
    detention policy.[2] HREOC understands
    that this new direction provides for a fundamental shift in immigration
    detention policy, away from the requirement that all unlawful non-citizens be
    detained, towards a presumption that detention will occur as a last resort and
    for the shortest practicable period.
  2. The new direction will be guided by a set of seven immigration detention
    values:

    1. Mandatory detention is an essential component of strong
      border control.
    2. To support the integrity of Australia’s immigration program three
      groups will be subject to mandatory detention:

      1. a. all unauthorised
        arrivals, for management of health, identity and security risks to the community
      2. unlawful non-citizens who present unacceptable risks to the community
      3. unlawful non-citizens who have repeatedly refused to comply with their visa conditions.
    3. Children, including juvenile foreign fishers and, where possible, their
      families, will not be detained in an immigration detention centre (IDC).
    4. Detention that is indefinite or otherwise arbitrary is not acceptable and
      the length and conditions of detention, including the appropriateness of both
      the accommodation and the services provided, would be subject to regular
      review.
    5. Detention in Immigration Detention Centres is only to be used as a last
      resort and for the shortest practicable time.
    6. People in
      detention will be treated fairly and reasonably within the law.
    7. Conditions of detention will ensure the inherent dignity of the human
      person.
  3. HREOC notes that the new direction appears to incorporate some of the
    features of recommendations raised previously by HREOC, and also referred to in
    this submission, in particular:

    • a move towards the presumption that detention is an exception not the norm
      (Recommendation 1)
    • a limited set of circumstances where detention can take place (in the case
      of unauthorised arrivals, for the purposes of establishing identity, health and
      security) (Recommendation 1)
    • legal safeguards for asylum seekers arriving in excised offshore places
      (Recommendation 3)
    • periodic and regular reviews of the need to detain with opportunity for
      independent review after a maximum time limit (Recommendation 9).
  4. However, HREOC has not received further detail on the practical
    implementation of the new approach, in particular how such changes will be
    enforced or guaranteed.
  5. While HREOC welcomes the government’s intention to prevent long term
    and indefinite detention (expressed in value no 4), we are concerned that
    without legislative change these intentions may not be sufficient to create a
    system that guarantees freedom from arbitrary detention, among other human
    rights.
  6. HREOC welcomes the government’s stated intention to consult with
    community interest groups, HREOC and the Commonwealth Ombudsman on the
    implementation plan to give effect to these values. We hope that this submission
    can highlight some of the means of implementing the changes, and also some of
    the concerns which HREOC may continue to have regarding the immigration
    detention system.

Summary

  1. Australia’s system of mandatory detention has led to prolonged and
    indefinite detention for many people. HREOC has consistently called for an end
    to this policy because it places Australia in breach of its obligations under
    the International Covenant on Civil and Political Rights (‘ICCPR’) and the Convention on the Rights of the Child (‘CRC’) to ensure that no one is arbitrarily detained. It has also
    led to fundamental breaches of a child’s right to be detained only as a
    matter of last resort and for the shortest appropriate period of time.
  2. The operation of the Migration Act 1958 (Cth) (‘Migration
    Act’) has also led to the prolonged detention of long term residents whose
    visas have been cancelled under s 501, and of those who may require protection
    from refoulement under the Convention against Torture (‘CAT’), ICCPR and CRC. Asylum seekers who arrive on excised
    offshore places are also detained, but have even fewer safeguards to ensure
    their human rights.
  3. While detention may be acceptable for a short period in order
    to conduct security, identity and health checks, currently, mandatory detention
    laws require detention for more than these purposes, for unlimited periods of time and in the absence of independent review of the need to detain.
  4. The Migration Act should be amended so that detention takes place only when
    necessary. This should be the exception not the norm. Even then 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.
  5. Any decision to detain a person should be subject to judicial review and
    there should be clear legal limits on the period of time for which immigration
    detention is permitted.
  6. Conditions in immigration detention should meet international human rights
    standards. While the private provider of detention services is contractually
    obliged to provide minimum standards of services, and there is some external
    scrutiny by several agencies, HREOC is concerned that these mechanisms are
    inadequate to safeguard the treatment of people in immigration detention.
  7. HREOC welcomes the development of alternative forms of detention, in
    particular the ability to place detainees, especially children and families, on
    Residence Determinations. However, HREOC has continuing concerns about the
    physical environment and infrastructure of detention facilities, and the
    conditions of detainees in immigration detention.

Recommendations

Recommendation 1: The Migration Act should be amended so that
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 (ExComm
Conclusion 44). These limited grounds for detention should be clearly prescribed
in the Migration Act.

Recommendation 2: The Migration Act should be amended so that the need
to detain is subject to prompt review by a court, in accordance with
international law.

Recommendation 3: The government should repeal the provisions of the
Migration Act relating to excised offshore places.

Recommendation 4: The government should adopt the recommendations of A last resort? in full, including the independent review of detention at
72 hours.

Recommendation 5: The government should review the operation of s 501
as a matter of priority, with the aim of excluding long term permanent residents
from the provision.

Recommendation 6: In order to ensure that Australia complies with its
non-refoulement obligations under the ICCPR, CRC and CAT, the Parliament should
introduce a system of complementary protection which incorporates the following
features:

  • clear criteria setting out when a person should be protected from
    non-refoulement under the ICCPR, CRC or CAT
  • procedures that protect against errors in applying that criteria (due
    process)
  • mechanisms to implement Australia’s protection obligations for those
    who meet the criteria (visas).

Recommendation 7: That there
should be greater efforts to promptly release people in immigration detention
onto bridging visas.

Recommendation 8: Asylum seekers released from immigration detention
and living in the community should be granted work rights and access to
Medicare. Those who are unable to work should be granted access to financial and
medical assistance.

Recommendation 9: The Migration Act should be amended to include
periodic and regular reviews of the need to detain an individual and a system of
maximum time limits for detention. If it is deemed necessary to detain a person
beyond the maximum time limit, his or her case must be subject to independent
review.

Recommendation 10: HREOC recommends that the Minister's
powers under ss 417, 501 and 195A and 197AB should be reduced and measures put
in place to provide for transparent, accountable decisions which are subject to
review.

Recommendation 11: Australia’s laws should codify the minimum
standards of treatment in immigration detention facilities, with content guided
by international human rights law.

Recommendation 12: HREOC urges the government to accede to the
Optional Protocol to CAT which requires the establishment of an independent
national scheme of inspection of all places of detention.

Recommendation 13: HREOC recommends that VIDC Stage 1 is demolished
and replaced with a new facility as a matter of priority. This recommendation is
made subject to there being a continuing need for such a secure facility at all. Recommendation 14: PIDC should be promptly and substantially renovated to
address the concerns raised by the Human Rights Commissioner in his 2007
report.

Recommendation 15: Immigration detainees should not be held on
Christmas Island.

Recommendation 16: DIAC should fully utilise the IRH facilities.

Recommendation 17: DIAC should ensure that detainees in IRH have
access to recreational and educational programs.

Recommendation 18: Children and their families should only be detained
in IRH for a maximum period of four weeks. Unaccompanied children should only be
detained in IRH for a maximum period of two weeks.

Recommendation 19: All people in immigration detention for three
months or more should be able to apply for a Residence Determination.

Recommendation 20: The Minister or DIAC should have discretion to vary
the conditions of Residence Determinations so that detainees can engage in
meaningful activities such as further education and training leading to
occupational qualifications, and work, if appropriate.

Recommendation 21: DIAC should allow long term detainees to enrol in
substantive education courses at TAFE and other institutions, irrespective of whether it leads to a qualification. Enrolment could be by
correspondence. DIAC should also consider permitting detainees to attend certain
classes in person.

Recommendation 22: DIAC should ensure a regular and varied excursions
program for all detainees in immigration detention facilities, including those
in IRH. Detainees on s 501 visa cancellations should not be automatically barred
from participating in excursions.

Recommendation 23: DIAC and GSL should increase their human rights
training for all current and future employees.

Recommendation 24: DIAC should, where possible, ensure the
availability of onsite interpreters when there is a large detainee population
from a single language group. This is particularly relevant to VIDC which has a
large population of Mandarin-speaking detainees.

Recommendation 25: DIAC should ensure that all official documents,
including documents and notices about the operation of the centres, are provided
in the main languages of the detainee population. Detainees should be able to
request assistance in translating personal documents.

The criteria for
detention

Mandatory
detention policy and its impact

  1. Since 1992, the Migration Act 1958 (Cth) (‘Migration
    Act’) has made it mandatory, under s 189, for any person in Australia
    without a valid visa to be detained. Section 196 requires that, once detained,
    unlawful non-citizens must be kept in detention unless they are removed or
    deported from Australia, or granted a visa.
  2. While there are some mechanisms in place to release people onto bridging
    visas, or into alternative forms of
    detention,[3] in practice most
    unlawful non-citizens are detained in immigration detention facilities for a
    significant period of time. For example:

    1. In June 2008 the Commonwealth Ombudsman completed reviews of 72 people who
      had been held in detention for longer than two
      years.[4]
    2. On 27 June 2008, of 390 people in immigration
      detention,[5] 129 had been in
      detention for longer than 12 months, 84 longer than 18 months, and 52 longer
      than two years. Two people were detained for over six
      years.[6]
  3. While the Minister for Immigration and Citizenship (‘the
    Minister’) announced that he was acting to resolve the immigration status
    of many of these individuals immediately, either by granting visas or removing
    them from Australia,[7] it is an
    indication that a significant number of people continue to face prolonged
    detention.
  4. Despite efforts to improve the environment inside immigration detention
    facilities, the fundamental problems with immigration detention remain the same
    – namely, the length of detention and the uncertainty about how long that
    detention will last. The negative impact of immigration detention for an
    uncertain period of time on the mental health of detainees is well
    established.[8]

Detention
as an exception not the norm

  1. HREOC has consistently called for an end to the policy of mandatory
    immigration detention because it places Australia in breach of its obligations
    under the ICCPR and the CRC to ensure that no one is arbitrarily
    detained.[9] If detention is necessary
    in exceptional circumstances then it must be a proportionate means to achieve a
    legitimate aim and it must be for a minimal period. The detention regime under
    the Migration Act does not meet those requirements.
  2. HREOC accepts that detention may be legitimate for a strictly limited period
    of time in order to get basic information about health, security and identity.
    However, currently the detention of unlawful non-citizens, often for prolonged
    periods of time, is the norm, not the exception.
  3. The requirement to detain all unlawful
    non-citizens[10] needs to be
    replaced with a presumption that detention is the exception, not the norm. The
    need to detain an unlawful non-citizen should be assessed on a case by case
    basis, taking into consideration the unique circumstances of the individual
    concerned. The exceptional criteria that determine when detention can take place
    should be codified in the Migration Act.
  4. The exceptional criteria must ensure that detention complies with
    Australia’s human rights obligations. The Executive Committee of the
    United Nations High Commissioner for Refugees (ExComm) Conclusion 44 states that
    where the detention of asylum seekers is deemed necessary, it should only be
    used:

    • 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 identification 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.[11]
  5. Those who’ve come across the seas recommends that the grounds
    on which asylum seekers may be detained should be clearly prescribed in the
    Migration Act and be in conformity with international human rights law. The
    report stated that where detention of asylum seekers is necessary, it must be
    for a minimal period, be reasonable and be a proportionate means of achieving at
    least one of the legitimate aims as discussed in ExComm Conclusion 44.
  6. Those who’ve come across the seas provides an alternative
    detention model developed with a number of peak organisations in Australia. This
    model specifies criteria that must be met for release from detention to be
    denied.[12]
  7. While both these sets of criteria were developed in reference to asylum
    seekers only, they provide a starting point for the development of a set of
    exceptional criteria for detention of other unlawful non-citizens, including
    visa overstayers and people whose visas have been cancelled.
  8. Recommendation 1: The Migration Act should be amended so that
    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 (ExComm
    Conclusion 44). These limited grounds for detention should be clearly prescribed
    in the Migration Act.

Judicial
review of immigration detention

  1. Judicial oversight of all forms of detention is a fundamental guarantee of
    freedom and liberty from arbitrariness (ICCPR, article 9(4)). However, this
    right is not guaranteed under the Migration Act in respect of the right to
    judicial review of decisions to detain unlawful non-citizens under s 189.
  2. The courts are precluded from authorising the release from detention of
    unlawful non-citizens detained under ss 189 and 196 of the Migration Act, unless
    their detention under these provisions contravenes domestic law.
  3. The courts have no authority to order that a person be released from
    immigration detention on the grounds that the person’s continued detention
    is arbitrary, in breach of article 9(1) of the ICCPR. This is because under
    Australian law it is not unlawful to detain a person (or refuse to release a
    person) in breach of article 9(1) of the ICCPR.

Limited grounds
of review

  1. In migration matters, the lack of legislative protection against arbitrary
    detention has been exacerbated by the efforts of the legislature to curtail the
    availability of judicial review on common law grounds for decisions made under
    the Migration Act.
  2. The Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) replaced Part 8 of the Migration
    Act[13] and introduced a privative
    clause. Section 474 of the Migration Act provides that, subject to specified
    exceptions, any decision of an administrative character made under the Migration
    Act or the Migration Regulations is a ‘privative clause decision’
    and ‘must not be challenged, appealed against, reviewed, quashed or called
    into question in any court’; or ‘subject to prohibition, mandamus,
    injunction, declaration or certiorari in any court on any account’.
  3. The privative clause limits the availability of judicial review of migration
    decisions, including those decisions which impact upon a person’s
    fundamental human rights, such as whether to grant a protection visa.
  4. In Plaintiff S157 of 2002 v Commonwealth (‘Plaintiff
    S157
    )[14] the High Court upheld the constitutional validity of s 474. However, the
    High Court construed s 474 narrowly and found it did not exclude the
    jurisdiction of the High Court because it did not apply to decisions infected by
    jurisdictional error.
  5. As a result of the High Court’s decision, migration decisions that are
    infected by jurisdictional error are still subject to review so courts can
    review decisions that are infected by an error of law such that the decision is
    not a valid exercise of power.[15]
  6. The Australian Constitution provides some limitations on the ability
    of the legislature to curtail the scope of judicial review. However, the Constitution does not give the courts the authority to order a
    person’s release from immigration detention on the grounds that their
    detention breaches article 9(1) of the ICCPR. This was confirmed in 2004 when
    the High Court held that indefinite detention is in fact permissible under the Constitution and the terms of the Migration
    Act.[16]
  7. Recommendation 2: The Migration Act should be amended so that the
    need to detain is subject to prompt review by a court, in accordance with
    international law.

Asylum
seekers processed offshore cannot seek judicial review

  1. In January 2008 the Government ended the policy of sending asylum seekers to
    Nauru. HREOC welcomed the Australian Labor Party (ALP) government’s
    decision to end the policy of sending asylum seekers who arrive in
    ‘excised offshore places’ to offshore processing centres such as
    Nauru and Manus Island.[17] However,
    the Migration Act still permits the detention of an ‘offshore entry
    person’ in a declared
    country.[18]
  2. An ‘excised offshore place’ includes Christmas Island, the Cocos
    Islands and the Ashmore Reef.
  3. The Minister, Chris Evans, has stated ‘[t]he Rudd Government is
    committed to processing the asylum claims of future unauthorised boat arrivals
    on Christmas Island’.[19]
  4. People who arrive in excised offshore places are unable to make a valid visa
    application under the Migration Act unless the Minister exercises his discretion
    under s 46A.[20] They have also been
    unable to access the same legal assistance as those who arrive on mainland
    Australia and their cases cannot be reviewed by the Refugee Review Tribunal or
    the courts.[21]
  5. HREOC has repeatedly raised concerns that the practice of offshore
    processing denies asylum seekers their rights under article 9(4) of the
    ICCPR.[22] This lack of legal
    safeguards increases the risk of a person genuinely in need of Australia’s
    protection being returned to a place of persecution. It also leads to a breach
    of CRC rights:

    1. article 2(1), on non-discrimination; and
    2. article 22(1), on the right of child asylum seekers and refugees to
      protection and
      assistance.[23]
  6. Recommendation 3: The government should repeal the provisions of the
    Migration Act relating to excised offshore places.

Children
should only be detained as a last resort

  1. In A
    last resort?
    , HREOC found that Australia’s mandatory detention policy
    breaches a child’s right to be detained as a matter of last resort and for
    the shortest appropriate period of time. In addition, long term detention
    significantly undermines a child’s ability to enjoy other basic rights,
    including the right to enjoy the highest attainable standard of physical health.
  2. In 2005, the Migration Amendment (Detention Arrangements) Act 2005 (Cth) introduced s 4AA(1) into the Migration Act to ‘affirm’ the
    principle that children only be detained in immigration detention centres as a
    measure of last resort.[24] It also
    gave the Minister new powers to make a Residence Determination specifying
    alternative residence arrangements for a person in immigration
    detention.[25]
  3. Following these amendments, DIAC has made greater efforts to utilise
    mechanisms to release children and their families on bridging visas and provide
    them with alternative detention in the community on Residence Determinations. As
    a result, most children and families are no longer placed in facility-based
    detention.
  4. The conditions of Residence Determinations are discussed in more detail in
    the section ‘Current alternatives to immigration detention facilities in
    this submission’ (see [169]-[181]).
  5. However, HREOC is concerned that there continues to be insufficient
    protection against breaches of children’s rights.
  6. Section 4AA of the Migration Act is a statement of principle only and does
    not create legally enforceable rights.
  7. Further, the principle in s 4AA(1) is qualified by s 4AA(2) which states
    ‘for the purposes of subsection (1), the reference to a minor being
    detained does not include a reference to a minor residing at a place in
    accordance with a Residence Determination’.
  8. Although the stated purpose of Residence Determinations is to enable the
    Minister to allow families with children to reside in the community in a
    specified place,[26] the power of
    the Minister to make a Residence Determination sits uneasily with
    Australia’s international obligation to detain children only as a measure
    of last resort because Residence Determinations do not offer alternatives to detention, but rather alternative forms of detention.
    People on Residence Determinations reside in the community; however, they must
    abide by certain conditions, which may include residence at a specified
    place.
  9. Child detainees are still unable to challenge the lawfulness of their
    detention. The limitations on the power of the courts to effectively review the
    legality of detention which contravenes Australia’s human rights
    obligations also applies to cases concerning the detention of children. The
    constitutional validity of holding children in immigration detention was
    unsuccessfully challenged in the High Court in Woolley, Re; Ex parte
    Applicants M276/2003 (by their next friend
    GS).
    [27]
  10. In A last resort? HREOC recognised that although it may be necessary
    to briefly detain children for identity, health and security checks,
    international law imposes a presumption against any detention of children even
    for these purposes. Therefore to comply with article 37(b) of the CRC, HREOC
    found that the need for, and period of, detention of children must be closely
    supervised by an independent body.
  11. A last resort? recommended that Australia’s laws should require
    independent assessment of the need to detain children within 72 hours of any
    initial detention. Similar to bail application procedures in the juvenile
    justice system, if DIAC has been unable to complete its security checks within
    72 hours, it might ask a tribunal or court to order continuing detention of the
    particular children and their parents until those checks are
    completed.[28]
  12. In addition to a prompt individualised assessment of the need to detain in
    the first place, article 37(b) of the CRC requires that there be an opportunity
    to seek review of any decision to detain in ‘a court or other competent,
    independent and impartial authority’. Such review is most appropriately
    provided by a court.
  13. The major recommendations of A last resort? are provided in Appendix
    Two of this submission.
  14. Recommendation 4: The government should adopt the recommendations of A last resort? in full, including the independent review of detention at
    72 hours.

Long
term permanent residents with criminal convictions

  1. Under s 501 of the Migration Act, both DIAC and the Minister have the power
    to cancel or refuse a visa on character grounds. The person then becomes an
    unlawful citizen[29] and is subject
    to mandatory detention[30] and
    removal from Australia.[31]
  2. Some people who have had their visas cancelled under s 501 are permanent
    residents who have been found guilty of a crime in Australia and served their
    prison sentence. At the end of their prison sentence, their visa has been
    cancelled and the person is taken directly from prison to the detention centre
    to be deported.
  3. Prior to the introduction of s 501 in 1998, the deportation of non-citizens
    who had committed criminal offences was covered by ss 200-201 of the Migration
    Act. Under these sections, the Minister could only deport a non-citizen who had
    been convicted of a crime punishable by imprisonment for one year or more, if
    they had been resident in Australia for less than ten years.
  4. The Commonwealth Ombudsman has observed it is unclear whether s 501 was
    meant to supersede ss 200-201, with its limitations on
    cancellations.[32] Nonetheless,
    since 1998, s 501 has operated to cancel the visas of residents of more than ten
    years.
  5. During his inspections of immigration detention facilities, the Human Rights
    Commissioner has observed that an increasing number of immigration detainees,
    especially long term detainees, are people whose visa has been cancelled because
    of a criminal conviction, despite the fact that they have served their
    sentence.[33] HREOC has also
    received complaints from long term permanent residents whose visas have been
    cancelled on completion of their prison sentences, and who have been detained
    for many months prior to
    deportation.[34]
  6. Many of the long term detainees that the Human Rights Commissioner has
    interviewed during inspections have lost all contact with their country of
    origin. Some cannot speak the language of the country they are being deported
    to. Many of them have no social or familial connection to that country. Some
    have children, family and friends in Australia.
  7. Statistics provided by the Minister to the Senate show that, as at 7 May
    2008, of the 25 people in immigration detention whose visas had been cancelled
    due to their criminal convictions, all but one person had been in Australia for
    over 11 years, and two had been in Australia for over 40 years. All 25
    individuals have been in immigration detention for over 100 days. One person
    has been detained for over 1000 days. As many as 15 of them had arrived in
    Australia for the first time when they were under 15 years of age.[35]
  8. The Commonwealth Ombudsman has recommended improving aspects of
    administration of s 501 of the Migration
    Act.[36] The Ombudsman has also
    suggested reviewing the application of s 501 to long term permanent residents
    and, in particular, if the threshold for cancellation under s 501 should be
    raised in relation to long term permanent residents. The Ombudsman
    suggested:

    One option that should be considered by DIMA in that
    review is whether visa holders who came to Australia as minors and have lived
    here for more than ten years before committing an offence should not be
    considered for cancellation under s 501 unless either:

    • the severity of the offences committed is so grave as to warrant
      consideration for visa cancellation, or
    • the threat to the Australian community is exceptional and regarded as
      sufficiently serious to warrant consideration for visa
      cancellation.[37]
  9. Recommendation 5: The government should review the operation of s 501
    as a matter of priority, with the aim of excluding long term permanent residents
    from the provision.

The
need for a system of complementary protection

  1. HREOC repeats its recommendations to introduce a system of complementary
    protection.[38] As outlined in
    Appendix One, Australia has an obligation to protect people who do not fall
    within the definition of refugee under the Refugee Convention but
    nonetheless must be protected from refoulement under CAT, ICCPR and CRC.
  2. A number of countries now provide protection to these people either by
    creating separate visa categories (complementary or subsidiary protection), or
    by expanding the definition of refugees who are owed
    protection.[39]
  3. However, Australia currently has no effective system of protection for these
    asylum seekers. Instead, their claims can only be considered after they have
    been rejected at each stage of the refugee determination process and then seek a
    personal intervention by the Minister under s 417 of the Migration Act. Although
    the Minister may consider Australia’s obligations under other treaties,
    his or her decisions in these cases are non-compellable and non-reviewable. The
    Minister is also not obliged to give reasons for his or her decisions, which
    means that the decisions lack transparency and accountability, and
    consistency.
  4. One of the effects of the current system of Ministerial discretion in these
    cases is the possibility of prolonged detention in breach of article 9(1) of the
    ICCPR. To get to the stage at which exercise of the s 417 may be considered,
    asylum seekers must first make an application for a refugee protection visa and
    apply for review of that decision. It is not until they have exhausted that
    process that they can be considered by the Minister under s 417. Once they reach
    the s 417 stage, the process can take months. Overall, the process can take
    years.
  5. In January 2008, the Report to the Minister for Immigration and
    Citizenship on the Appropriate Use of Ministerial Powers under the Migration and
    Citizenships Acts and Migration Regulation
    recommended that the government
    give consideration to the introduction of a system of complementary
    protection.[40]
  6. In May 2008, the UN Committee against Torture repeated its recommendation
    that Australia introduce a system of complementary protection to ensure that
    Australia no longer relies on the Minister’s discretionary powers to meet
    its non-refoulement obligations under
    CAT.[41]
  7. Recommendation 6: In order to ensure that Australia complies with its
    non-refoulement obligations under the ICCPR, CRC and CAT, the Parliament should
    introduce a system of complementary protection which incorporates the following
    features:

    • clear criteria setting out when a person should be protected from
      non-refoulement under the ICCPR, CRC or CAT
    • procedures that protect against errors in applying that criteria (due
      process)
    • mechanisms to implement Australia’s protection obligations for those
      who meet the criteria
      (visas).

The
criteria for release from detention

  1. As discussed above, HREOC submits that the Migration Act should be amended
    so that detention is the exception, rather than the norm (see above [22]-[29]).
    Unlawful non-citizens should only be detained according to criteria in
    conformity with international law.
  2. If an unlawful non-citizen does not meet the criteria for detention, then
    they should be released on bridging visas. If they do meet the criteria for
    detention, consideration should be given to detaining the person in the most
    appropriate form of detention for that individual.
  3. Currently there are some alternative forms of detention available to some
    unlawful non-citizens. Although these may be preferable to immigration detention
    facilities, they are still detention under the Migration Act. As such, transfer
    of detainees to these alternatives does not constitute release from detention
    (see above [53] and the discussion of ‘Current alternatives to immigration
    detention facilities’ [150]-[181]).

Access
to bridging visas

  1. HREOC submits that there should be greater efforts to promptly release
    unlawful non-citizens from detention on bridging
    visas.[42]
  2. HREOC is concerned that bridging visas are not used as often as they could
    be. For example, in A last resort? HREOC found that although bridging
    visas, as specified under s 72 of the Migration Act, were the most obvious tool
    for releasing children from immigration detention, this was almost never used to
    secure the release of unauthorised arrival
    children.[43]
  3. The Migration (Detention Arrangements) Act 2005 (Cth) also gives the
    Minister a non-compellable, non-reviewable power to grant a visa to someone in
    detention when it is in the public interest to do
    so.[44]
  4. HREOC supports the recommendation of Elizabeth Proust that DIAC take steps
    to overcome the problems surrounding the current process for granting bridging
    visas, including delays in processing, applicants not knowing whether they
    should apply for a bridging visa and applicants being ineligible for a bridging
    visa because an unsolicited letter or inadequate case was presented to the
    Minister.[45]
  5. Recommendation 7: That there should be greater efforts to promptly
    release people in immigration detention onto bridging visas.

Conditions
on bridging visas

  1. HREOC is aware that bridging visas in their current form can pose some
    difficulties for unlawful non-citizens, especially asylum seekers. The
    conditions and restrictions attached to some bridging visas may significantly
    impact on the ability of asylum seekers and refugees to exercise their basic
    human rights, including the right to work, the right to social security, the
    right to an adequate standard of living and the right to the highest attainable
    standard of health.[46]
  2. As a result of these restrictions, many asylum seekers and refugees face
    poverty and homelessness.[47] Without the ability to support themselves through work or social security, they
    are entirely dependent on community services for their basic subsistence.
    Research has also shown that these pressures can have negative effects on the
    physical and social well-being of asylum seekers, including anxiety, depression,
    mental health issues and family
    breakdown.[48]
  3. Recommendation 8: Asylum seekers released from immigration detention
    and living in the community should be granted work rights and access to
    Medicare. Those who are unable to work should be granted access to financial and
    medical assistance.

Periodic
reviews of detention and independent oversight

  1. Even if DIAC is required to take a case by case approach to the need to
    detain, based on a set of criteria in conformity with international law, the
    ongoing detention of individuals may still lead to prolonged and indefinite
    detention.
  2. Those who are subject to prolonged detention can include those who have no
    prospect of return. For example, those who cannot be returned to their country
    of origin as they are stateless, or have a need for protection which is not
    covered by the Refugee Convention. Those in need of protection may also
    have their visas cancelled due to criminal convictions. These people may
    effectively be locked in limbo, without resolution of their case.
  3. A system of periodic reviews, independent oversight, and access to judicial
    review, would ensure that the ongoing detention of an individual does not become
    arbitrary in breach of international law.
  4. In 1996, HREOC and a number of peak organisations developed an alternative
    model of detention for asylum seekers arriving unauthorised to Australia, which
    was submitted to the then Minister. The model proposed a legislative and
    regulatory framework for a more flexible and appropriate detention regime in
    keeping with our international human rights obligations. Although designed with
    asylum seekers in mind, the model demonstrates how the immigration detention
    system may be restructured to provide a more humane framework for dealing with
    people without visas.
  5. The model proposes that asylum seekers are released from detention after 30
    days maximum, although this may be extended for 30 days on no more than two
    occasions if additional time is needed to consider grounds for possible denial
    of release. However, the maximum period which can precede release from detention
    is 90 days. At 90 days, an independent review tribunal must review the detention
    status of the applicant, and can grant a bridging visa to the applicant.
  6. A last resort? indicates that in the case of children, international
    law specifies an extra presumption against detention. Shorter maximum time
    limits on detention may need to be set in the case of children and families (see
    [55]-[57]).
  7. Recommendation 9: The Migration Act should be amended to include
    periodic and regular reviews of the need to detain an individual and a system of
    maximum time limits for detention. If it is deemed necessary to detain a person
    beyond the maximum time limit, his or her case must be subject to independent
    review.

Ministerial
discretion and immigration detention

  1. HREOC welcomes the findings of the Proust Report to the Minister, and the
    Minister’s consideration of the recommendations on the appropriate use of
    the Minister’s Powers under the Migration
    Act.[49]
  2. Several of the Minister’s intervention powers have a direct impact on
    whether an unlawful non-citizen will be detained or not, the type of detention
    under which he or she will be held, the length of detention and the prospects of
    release from detention.
  3. For those in immigration detention, the prospect of receiving a Residence
    Determination or being released into the community following the grant of a visa
    are dependent on the exercise of a non-reviewable, non-compellable personal
    discretion by the Minister.
  4. Fundamental human rights should not be dependent on the exercise of a
    personal discretion. Decisions to deprive a person of their liberty or to
    restore that liberty to them should be made in accordance with clear criteria.
    Decisions must comply with Australia’s human rights obligations and be
    subject to judicial review.

Ministerial discretion to release
persons from detention or make a Residence Determination order

  1. The Migration Amendment (Detention Arrangements) Act 2005 (Cth) gave
    the Minister new powers to:

    • Grant a visa to a person in immigration detention where the Minister is
      satisfied that it is in the public interest to do
      so.[50]
    • Make a residence determination specifying alternative residence arrangements
      for a person in immigration
      detention.[51]
  2. Both of these powers are
    non-reviewable[52] and
    non-compellable.[53] The Minister
    also has a non-reviewable, non-compellable power to vary or revoke a residence
    determination.[54]
  3. The decision of the Minister not to exercise, or consider exercising, the
    powers in ss 195A, 197AB and 197AD is a privative clause
    decision.[55]
  4. The non-reviewable and non-compellable character of ss 197AB and 195A means
    that:

    • A decision of the Minister not to release a person from immigration
      detention (pursuant to the grant of a visa) or not to place that person in a
      less restrictive form of detention (pursuant to a Residence Determination)
      cannot be challenged in the Courts, even though the effect of that decision is
      that the person continues to be detained in breach of article 9(1) of the ICCPR.
    • A person in immigration detention is unable to challenge the
      Minister’s decision to refuse to exercise his or her powers to grant a
      visa to that person or to make a Residence Determination, even though the effect
      of that refusal is that a person continues to be detained in breach of article
      9(1) of the ICCPR.
  5. Guidelines in relation to the exercise of the power to make Residence
    Determinations are still to be finalised.

Ministerial discretion
to grant visas under s 417

  1. HREOC has expressed concerns about the Minister’s powers under s 417
    of the Migration Act. As discussed in [69]-[75], an application for Ministerial
    intervention under s 417 of the Act is the primary mechanism for Australia to
    fulfil its international human rights obligations not to refoule a person at
    risk of violations under ICCPR, CRC and CAT. However, the Minister’s
    decisions in these cases are non-compellable and non-reviewable. The Minister
    is also not obliged to give reasons for his or her decisions, which means that
    the decisions lack transparency and accountability, and consistency.

Ministerial discretion to cancel visas under s 501

  1. HREOC also has some concerns with the operation of Ministerial powers with
    regard to cancellation of visas under s 501 of the Migration Act. The law allows
    for a visa to be cancelled by either the Minister or a delegate of the Minister
    if a person fails the character test. If the decision is made by a delegate
    – that is, a DIAC officer – the decision may be appealed and
    reviewed on its merit. However, if the Minister decides to cancel a visa, the
    decision is subject to only limited review.
  2. Further, the Minister is not required to comply with the rules of natural
    justice under these personal powers, or the Direction issued under s 499 of the
    Migration Act which provides detailed guidance in respect of the refusal or
    cancellation of visas. HREOC further notes that what constitutes the
    ‘national interest’ as a ground for visa cancellation under these
    powers is left to the Minister’s
    discretion.[56]
  3. As discussed in [60]-[68] of this submission, the result of cancellation
    under s 501 is detention, prior to deportation. Some people whose visas have
    been cancelled under s 501 have been detained for years, or deported. This may
    also have a significant impact on the human rights of a person and their family,
    including rights of their children.
  4. Recommendation 10: HREOC recommends that the Minister's powers under
    ss 417, 501 and 195A and 197AB should be reduced and measures put in place to
    provide for transparent, accountable decisions which are subject to
    review.

Transparency
and accountability in immigration detention

Internal
mechanisms to protect the human rights of immigration
detainees

  1. The Australian Government contracts a private provider, GSL (Australia), to
    run its immigration detention facilities. The contract between DIAC and GSL
    requires regular reporting on a range of service requirements, including the
    conditions for immigration
    detainees.[57]
  2. While the Immigration Detention Standards (IDS) help ensure that people in
    immigration detention are treated with respect and dignity, they are not
    enshrined in legislation and do not provide people in immigration detention with
    access to effective remedies for alleged breaches of their human rights.
  3. HREOC has previously expressed concerns that:
    • Aspects of the IDS do not provide sufficient guidance on what service
      providers must do to ensure conditions in immigration detention comply with
      international human rights standards.
    • The mechanisms for scrutinising whether or not the service provider complies
      with the IDS are inadequate. This is because the standards on monitoring and
      reporting place responsibility for compliance on the service
      provider.[58]
  4. HREOC understands that the DIAC is in the process of reviewing the IDS as
    part of a tender process for a new detention services contract. HREOC is hopeful
    that the new contract will:

    • provide more specific guidance on what steps service providers need to take
      to comply with human rights standards; and
    • improve the accountability mechanisms set out in the IDS.
  5. However, HREOC’s preferred approach is for the government to codify in
    legislation the minimum standards that should apply to all persons in
    immigration detention.[59] The
    content of any such codification should be guided by the minimum standards for
    detention set out in international human rights
    law.[60]
  6. HREOC also notes that in 2008, the UN Committee against Torture recommended
    that the IDS be codified into
    legislation.[61]
  7. Recommendation 11: Australia’s laws should codify the minimum
    standards of treatment in immigration detention facilities, with content guided
    by international human rights law.

External
scrutiny of immigration detention facilities

  1. HREOC is one of a number of external agencies responsible for scrutinising
    conditions in immigration detention
    facilities.[62] However,
    HREOC’s work in immigration detention has some limits.
  2. Under the HREOC Act, HREOC has the power to investigate individual
    complaints of breaches of human rights in detention under s
    11(1)(f).[63] If conciliation is
    unsuccessful or inappropriate and HREOC finds that there has been a breach of
    human rights, then HREOC can prepare a report of the complaint, including
    recommendations for action, for the Attorney General. The report must be tabled
    in Parliament. Many of these complaints have involved breaches of article 10(1)
    of the ICCPR which specifies that all persons deprived of their liberty shall be
    treated with humanity and respect for the inherent dignity of the
    person.[64]
  3. However, HREOC’s recommendations to provide remedy for breaches of the
    ICCPR and the CRC are not legally enforceable.
  4. Pursuant to its statutory functions, HREOC has also sought to protect the
    rights of those in immigration detention by conducting inspections of
    immigration detention facilities for the purpose of monitoring whether the
    conditions in immigration detention and the treatment of immigration detainees
    comply with Australia’s human rights obligations. To effectively perform
    these functions, HREOC must have access to immigration detention facilities.
  5. HREOC does not have a specific statutory power to enter immigration
    detention facilities.[65] As a
    matter of practice, HREOC has always obtained access to detention facilities for
    the purposes of general inspections and investigating individual complaints of
    human rights breaches by detainees.
  6. HREOC does not have the legal powers to effectively monitor
    Australia’s compliance with CAT. This is because CAT is not scheduled to
    the HREOC Act and has not been declared under s 47 of the HREOC Act.
  7. Other agencies which scrutinise immigration detention facilities also face
    limitations because they are either advisory or their recommendations are not
    enforceable.
  8. The Commonwealth Ombudsman’s powers with regard to immigration
    detention were expanded in 2005 to include reviews of the cases of people who
    had been in detention for two years or
    more.[66] The Ombudsman’s
    findings and recommendations in these cases are tabled in Parliament. However,
    as with individual complaints investigated by the Ombudsman, the recommendations
    are not enforceable.
  9. The role of the Immigration Detention Advisory Group (IDAG) is advisory.
  10. HREOC welcomes the Australian Government’s commitment to accede to the
    Optional Protocol to the CAT (OPCAT). The Optional Protocol establishes a system
    of regular visits to all places of detention in order to prevent torture and
    ill-treatment.
  11. The domestic and international inspection mechanisms envisaged by OPCAT
    would improve Australia’s ability to prevent torture and other cruel,
    inhuman or degrading treatment or punishment in places where persons are
    deprived of their liberty. It would also assist Australia in fulfilling its
    obligations under the CAT, ICCPR, and CRC.
  12. HREOC encourages the government to explore the options for a national
    mechanism to inspect places of detention in compliance with
    OPCAT.[67]
  13. Recommendation 12: HREOC urges the government to accede to the
    Optional Protocol to CAT which requires the establishment of an independent
    national scheme of inspection of all places of
    detention.

The
infrastructure and physical environment of immigration detention
facilities

  1. The Human Rights Commissioner’s Summary of Observations following the
    Inspection of Mainland Immigration Detention Facilities in 2006 and 2007 make
    various recommendations in relation to the infrastructure and physical
    environment of mainland immigration detention
    facilities.[68]
  2. The Human Rights Commissioner’s inspections for 2008 are currently
    taking place. A report is expected before the end of 2008.
  3. Rather than repeat all the findings of past reports here, this submission
    highlights a few key observations drawn from the Human Rights
    Commissioner’s inspections.
  4. In general, while there have been some improvements since 2005 in terms of
    the physical environment and infrastructure of detention facilities (including
    the closure of remote facilities such as Woomera and Baxter), immigration
    detention facilities remain security-driven and prison-like environments. High
    fences topped by wire, walled-in courtyards, series of locked gates, lack of
    greenery and outdoor space contribute to the prison-like atmosphere of many
    facilities. Some facilities are run-down, dilapidated and need to be renovated
    or restructured.
  5. There are some key issues on specific facilities as follows.

Villawood
Stage One

  1. HREOC welcomes the announcement of a feasibility study into the
    redevelopment of Villawood Stage 1.
  2. Villawood Immigration Detention Centre (VIDC) holds the largest number of
    detainees of all the centres, many of them long term. VIDC is divided into
    three Stages of facilities, with the Sydney Immigration Residential Housing
    (SIRH) in adjacent buildings. Stage 1 provides the most secure facility of the
    VIDC Stages, perhaps among all facilities in Australia. Hence detainees who are
    perceived as difficult to manage seem to be placed in Stage 1. This adds to an
    overall atmosphere at VIDC as security-driven and tense, compared to the
    atmosphere at the smaller centres.
  3. During his inspections of immigration detention facilities in 2007, the
    Human Rights Commissioner was particularly concerned with the prison-like
    appearance of Stage 1. HREOC staff were shocked by the dilapidated
    infrastructure of Stage 1 compared to other centres and facilities they visited.
    Of particular note were:

    • dormitory 1, which is dark, depressing and lacks privacy
    • external areas, which do not have enough greenery or outlook
    • the bleak visitors facilities
    • the dining room, without windows or natural light or
      decoration.
  4. The Human Rights Commissioner was also concerned with the practice of
    transferring detainees with mental health concerns from Stages 2 and 3, which
    hold lower security detainees, to Stage 1 for Suicide and Self-Harm (SASH)
    observation. There are no dedicated observation rooms for detainees on SASH in
    Stage 2 and 3 of VIDC. As Stage 1 is a completely separate and secure facility
    where ‘high risk’ detainees are held, detainees view the move as
    punitive.[69] This may discourage
    referrals for SASH among detainees and staff, hence increasing their mental
    health risks.
  5. Although HREOC is aware that there are plans to improve the facilities in
    Stage 1, there have not been any substantial changes to Villawood Stage 1 to
    change this view of the infrastructure and environment of that section of the
    facility. HREOC repeats the recommendation the Human Rights Commissioner made in
    his report in 2007.
  6. Recommendation 13: HREOC recommends that VIDC Stage 1 is demolished
    and replaced with a new facility as a matter of priority. This recommendation is
    made subject to there being a continuing need for such a secure facility at
    all.[70]

Perth
Immigration Detention Centre

  1. HREOC is concerned about the inadequacy of Perth Immigration Detention
    Centre (PIDC) in its current form, to accommodate anyone other than a small
    number of short term detainees.
  2. In his visit to PIDC in 2007, the Human Rights Commissioner noted that PIDC
    is a small, cramped centre which is not equipped to house detainees for long
    periods of time. Some problems include:

    • The dormitory accommodation is drab and dark.
    • The two outside areas are shabby and claustrophobic. There is no greenery,
      poor ground covering and it is not conducive to outdoor activities.
    • Area 1 bathrooms are shabby and dark.
    • There is no Visitors area. It is not appropriate for visiting families to
      have to meet in the detainee common areas.
    • The education area is cramped – English classes are conducted while
      other detainees are on the computers or trying to access the internet. PIDC
      needs a dedicated education
      area.[71]
  3. While the Human Rights Commissioner was informed of plans to renovate PIDC
    substantially during 2008, HREOC understands that most of the planned
    renovations have been cancelled due to budgetary constraints.
  4. Recommendation 14: PIDC should be promptly and substantially
    renovated to address the concerns raised by the Human Rights Commissioner in his
    2007 report.

Christmas
Island

  1. The Human Rights Commissioner has yet to inspect the new facilities on
    Christmas Island. While HREOC cannot yet comment on the infrastructure of the
    new centre, HREOC has inspected the previous facilities on Christmas Island in
    the past.[72]
  2. HREOC understands that the new facilities on Christmas Island cost $396
    million and can accommodate up to 800 detainees. These facilities are currently
    empty, although one family of two adults and two children is living in community
    detention on the island.
  3. HREOC is concerned by the remote location of the centre. The problems of
    providing appropriate support for children in the remote Woomera, Curtin and
    Port Hedland facilities in particular are set out in A last
    resort
    ?.[73] For example, it
    becomes more difficult to access legal assistance, specialist health and mental
    health services, religious instruction and community support. For this reason,
    UNHCR Guidelines regarding unaccompanied children suggest
    that:

    Facilities should not be located in isolated areas where
    culturally appropriate community resources ... may be
    unavailable.[74]

  4. Christmas Island is more remote than the facilities inspected by HREOC in A last resort?. HREOC is also concerned that it may be difficult, and
    impractical, to place large numbers of families in 'community detention' on the
    island, if such a number were to arrive in the future.
  5. The same concerns about the remoteness of Christmas Island arise for adult
    detainees.
  6. Because Christmas Island is an excised offshore place, detainees are unable
    to access the same visa application process, free legal advice, and access to
    review rights which are provided to protection applicants who arrive on the
    mainland.
  7. Recommendation 15: Immigration detainees should not be held on
    Christmas
    Island.

Current
alternatives to immigration detention facilities

  1. There are now a number of alternatives to detention in immigration detention
    centres. A small, but significant, number of detainees have been able to access
    these alternative forms of detention.
  2. The Human Rights Commissioner has visited the Sydney and Perth-based
    Immigration Residential Housing (IRH) facilities and has also interviewed a
    small selection of people on Residence Determination arrangements in their
    homes. He has also inspected some alternative detention arrangements, including
    the detention of juvenile illegal foreign fishers in Darwin.
  3. As discussed above, HREOC recommends legislative amendments to the Migration
    Act which would facilitate reduced numbers of people held in immigration
    detention, and increased use of bridging visas for those awaiting the results of
    applications or awaiting removal.
  4. In the event that an unlawful non-citizen is detained, all possible
    alternatives to immigration detention centres should be considered. HREOC
    welcomes the development of alternative forms of detention, as in general they
    provide an improved environment for detainees.
  5. However, HREOC has some concerns with the alternative forms of detention,
    as follows.

Immigration
Residential Housing

  1. There are two IRH facilities currently in operation:

    • Sydney Immigration Residential Housing (SIRH), which opened in 2006,
      continues to operate adjacent to the Villawood IDC, in Sydney.
    • Perth Immigration Residential Housing (PIRH), in the suburb of Redcliffe in
      Perth, opened early in
      2007.[75]
  2. In 2006 and 2007, the Human Rights Commissioner visited and interviewed
    detainees at both these facilities.
  3. The IRH facilities are undoubtedly softer detention environments than
    detention centres. IRH facilities aim to provide family-style housing where
    detainees can experience greater autonomy. Detainees can prepare and cook their
    own food and make shopping trips and other excursions under the supervision of
    the detention services provider. The detainees whom HREOC spoke to in these
    facilities were in general happier to be in IRH than in the IDCs, due to
    increased freedom, privacy and autonomy.
  4. However, in his 2007 Summary Report of Inspections, the Human Rights
    Commissioner noted some concerns about the IRH facilities.

Low
usage of IRH

  1. The IRH facilities do not seem to be used to their full capacity. SIRH has a
    capacity of 40. However, only half that number were detained there during the
    2007 inspections. PIRH can hold 20 but only four were accommodated there during
    the 2007 inspections. This low usage has been a consistent feature.
  2. HREOC has come across a number of detainees in IDCs who would appear to be
    suitable for accommodation at the IRH facilities. It is unclear why the
    facilities have not been used to their full
    capacity.

Activities at the SIRH

  1. HREOC understands that the IRH facilities are designed to allow detainees
    more autonomy and to allow greater engagement in external activities, and as a
    result there are few activities provided internally. However, it appears that
    for various reasons and at various times the provision of external activities is
    limited, especially at SIRH. When external activities are restricted for
    operational reasons, or for reasons specific to certain detainees (as was the
    case with four detainees in the SIRH at the time of our visit in 2007), they are
    left with fewer activities than if they were in the detention centre.
  2. Recommendation 16: DIAC should fully utilise the IRH facilities.
  3. Recommendation 17: DIAC should ensure that detainees in IRH have
    access to recreational and educational programs.

Children and
families at the IRH

  1. It is important to recognise that IRH facilities are still closed
    facilities, and a mix of detainees with different needs, and detention
    experiences, may all be contained in the same facility. HREOC has been aware of
    several cases where children and families have been detained in IRH facilities
    for a significant period of time. While the IRH facilities are significantly
    better than the IDCs, they are still a closed detention facility and, for
    children and their families, are inappropriate for anything but the briefest of
    periods.
  2. During 2007 inspections of immigration detention facilities, HREOC spoke to
    a family with a small child who was detained in IRH for two months before they
    were given a Residence Determination. The father told us that he had been
    concerned about the effect of the detention on his daughter, who was distressed
    at being surrounded by strangers. His wife was also
    pregnant.[76]
  3. HREOC notes that, unlike Residence Determinations, which are specifically
    excluded from the principle of last resort in s 4AA, children and their families
    should only be detained in IRH facilities as a matter of last resort.
  4. The Human Rights Commissioner recommended in his 2007 summary report that
    children and families should only be detained in IRH facilities for four weeks
    maximum. Unaccompanied minors should only be detained in IRH for two weeks
    maximum.
  5. Recommendation 18: Children and their families should only be
    detained in IRH for a maximum period of four weeks. Unaccompanied children
    should only be detained in IRH for a maximum period of two weeks.

Residence
Determinations

Benefits of Residence Determinations

  1. An increasing number of people have been released from detention centres
    into community detention arrangements under Residence Determinations. On 4 July
    2008, 44 people were in community detention on Residence Determinations, 12 of
    them children.[77]
  2. In 2007, the Human Rights Commissioner and staff visited some detainees
    subject to Residence
    Determinations.[78] In general,
    these people were happy with their living arrangements, and said that the
    arrangements were significantly better than being detained in IDCs or IRH. Most
    important was the opportunity to engage in community life, the ability to
    provide a normal living environment for their children, and the privacy and
    freedom from supervision.
  3. Children in particular benefit from the comparative freedom of community
    detention. They are able to attend school and engage in community life along
    with their parents. Although it appears that children, like their parents,
    cannot travel and cannot have other children stay at their houses without DIAC
    permission, in most other respects they are able to lead a normal life.
  4. Based on these findings, the Human Rights Commissioner concluded that within
    the current immigration detention system, if a person must remain in detention,
    then Residence Determinations are the best alternative detention arrangement.
    The Commissioner recommended that DIAC make greater efforts to arrange Residence
    Determinations for all people who are detained for three months or more.
    The only qualification to this recommendation may be where the person is a
    demonstrated high security or public health
    risk.[79]

Narrow
criteria for referral for Residence Determinations

  1. However, the eligibility criteria for referral to the Minister for Residence
    Determinations are limited. The Draft Guidelines on the Minister’s
    Detention Intervention Powers (s 197AB) specify that a detainee may be referred
    to the Minister for Residence Determination in the following circumstances:

    • minor children and their families
    • unaccompanied minors
    • an adult with special needs that cannot be cared for in detention
    • an adult with unique and exceptional circumstances such that failure to
      recognise them would result in hardship and harm to an Australian citizen or
      Australian family unit
    • torture and trauma background.
  2. During his inspections, the Human Rights Commissioner met many adult
    detainees who would benefit from a Residence Determination. In some cases this
    may have helped prevent an escalation of mental health problems.
  3. Given that the public interest principle is guiding the exercise of the
    Minister’s discretion in these cases, HREOC considers that the Draft
    Guidelines unduly restrict the ability of DIAC to refer adults for Residence
    Determination. It is unclear why the circumstances for the exercise of the
    discretion need to be ‘unique’ or ‘exceptional
    circumstances’. HREOC has previously recommended that the Draft Guidelines
    (which are still to be finalised) be broadened so that all people detained for
    three months or more are able to apply for Residence
    Determinations.[80]
  4. Recommendation 19: All people in immigration detention for three
    months or more should be able to apply for a Residence Determination.

Conditions under Residence Determinations

  1. Despite the general satisfaction among detainees with the conditions of
    Residence Determinations, there are some problems:

    1. Some detainees would like to be able to work to support their family
      themselves, and to be able to engage in meaningful activities.
    2. Some detainees express a desire to study for a qualification in order to
      prepare for the future.
  2. At present, detainees on Residence Determinations can attend English classes
    and community education classes, but are not permitted to study for a
    qualification. Some detainees have been on Residence Determinations for several
    years. It would be a valuable use of time to study for a qualification, or a
    module leading to a qualification, while awaiting a decision on their
    applications
  3. Recommendation 20: The Minister or DIAC should have discretion to
    vary the conditions of Residence Determinations so that detainees can engage in
    meaningful activities such as further education and training leading to
    occupational qualifications, and work, if appropriate.

Care
and welfare of detainees in the community

  1. Despite general satisfaction with the conditions under Residence
    Determinations, some detainees expressed anxiety and depression about their
    uncertain future, especially parents. In several cases, individuals were
    accessing mental health services.
  2. Community detention provides greater autonomy for immigration detainees.
    However, for some immigration detainees, especially those with significant
    health issues, community detention needs to be supplemented with significant
    community and welfare support. HREOC understands that the government’s
    Community Care Pilot, operating on a trial basis in Sydney and Melbourne,
    provides greater support for detainees with complex needs to be able to live in
    the community.

The
provision of services in immigration detention facilities

  1. The provision of services within immigration detention facilities has a
    direct impact on the human rights of immigration detainees.
  2. As discussed in Appendix One, international law sets out what is required
    for humane detention consistent with respect for human dignity as required by
    the ICCPR and CRC.
  3. The vulnerability of immigration detainees and the fact that they are not
    held as suspects or convicted offenders argue strongly for the adoption of
    international minimum standards. Since immigration detainees are not held as
    criminal suspects or because they represent a risk to community safety, the most
    lenient detention regime is appropriate. The primary concern of immigration
    detention authorities should be one of care for the well-being of
    detainees.
  4. Much of HREOC’s work on human rights and immigration detention to date
    has been involved in examining the services provided to detainees within
    immigration detention, assessing whether these services have met human rights
    standards, and making recommendations for
    action.[81]
  5. In March 2000, HREOC produced the Immigration Detention Centre
    Guidelines
    .[82] These Guidelines
    are based on the relevant international minimum standards which set out what is
    required for humane detention. The aim of the Guidelines was to establish a
    benchmark against which HREOC and others may evaluate the conditions in
    immigration detention.
  6. The Summary of Observations following the Inspection of Mainland Immigration
    Detention Facilities 2007 by the Human Rights Commissioner provides the most
    recent assessment of the conditions in immigration detention facilities.
  7. While HREOC cannot repeat all the recommendations made with respect to the
    administration of services in immigration detention, the following are some
    areas where HREOC has repeatedly raised
    concerns.[83]

Mental
health and detention

  1. Mental health services are now better than they were several years ago. In
    particular:

    • The newly introduced system of routine mental health assessments has
      improved the capacity of mental health services to identify and treat mental
      illness.
    • Mental health staff recommendations or referrals are generally treated
      seriously by DIAC staff.
  2. However, the Human Rights Commissioner, during inspections of facilities in
    2006 and 2007, has found that indefinite and prolonged detention continues to be
    a fundamental problem that has a significant impact on the mental health of
    detainees, regardless of the delivery of mental health services. It is not
    possible to properly treat the mental health problems suffered by most
    immigration detainees. This is because the main way to treat a mental health
    concern is to remove the primary cause of the problem. In the case of
    immigration detainees, detention and uncertainty are amongst the main causes and
    they usually cannot be addressed by mental health professionals.
  3. HREOC also has concerns with the lack of observation facilities for
    detainees on Suicide and Self-Harm (SASH) observation in Villawood Stage 2 and
    3, as discussed in the section on ‘Infrastructure and Physical
    Environment’ in this submission.

Meaningful
activities within detention

  1. Many detainees continue to complain of a lack of meaningful activities. Long
    term detainees in particular wish to do something constructive with their time
    in detention. The Human Rights Commissioner has found that:

    • Although there are limited education programs in the centres, these are
      mostly English classes and are often irregular and not part of a set course of
      study. Detainees are unable to engage in study leading to qualifications,
      according to DIAC policy. This is also the case for those on Residence
      Determinations as well.
    • Excursions and home visits provide one means of relieving boredom and mental
      stress, yet these have not been provided with regularity and were restricted due
      to security concerns in 2007.
  2. HREOC repeats the following recommendations made in the 2007 Report:
  3. Recommendation 21: DIAC should allow long term detainees to enrol in
    substantive education courses at TAFE and other institutions, irrespective of whether it leads to a qualification. Enrolment could be by
    correspondence. DIAC should also consider permitting detainees to attend certain
    classes in person.
  4. Recommendation 22: DIAC should ensure a regular and varied excursions
    program for all detainees in immigration detention facilities, including those
    in IRH. Detainees on s 501 visa cancellations should not be automatically barred
    from participating in excursions.

Treatment
of detainees by detention staff

  1. In general, HREOC has observed an improvement in staff attitudes in
    immigration detention. DIAC and GSL staff appear more open to requests,
    suggestions and concerns voiced by detainees. However, HREOC continues to
    receive complaints from individuals about their treatment within immigration
    detention facilities. Some of these investigations have resulted in findings of
    breaches of article 10 of the ICCPR, which affirms that all persons deprived of
    their liberty shall be treated with humanity and respect for their inherent
    dignity of the person.[84]
  2. For example, the recently released HREOC Report No. 39 (2008) concerned a
    complaint by two immigration detainees transferred from Maribyrnong Immigration
    Centre to Baxter Immigration Detention Facility on 17 September 2004. The
    President of HREOC found that DIAC and GSL had breached articles 7 and 10(1) of
    the ICCPR by subjecting the detainees to degrading treatment and a lack of
    respect for human dignity during the first seven hour leg of that transfer. In
    that report, the President made various recommendations including to enhance
    detainee complaint making procedures and to improve human rights training for
    the providers of detention services.[85] DIAC and GSL’s responses to these recommendations are contained in
    the report.[86]
  3. Recommendation 23: DIAC and GSL should increase their human rights
    training for all current and future employees.

Interpreters
and translation

  1. GSL and DIAC use the Telephone Interpreting Service for most interpreting
    needs. While DIAC and GSL staff generally feel that TIS is adequate for basic
    communication, the Human Rights Commissioner has raised concerns that there are
    times when TIS is inadequate, or inappropriate, for dealing with complex issues.
  2. HREOC acknowledges that where there is a mix of different language groups
    among detainees, it is not cost-effective to employ on-site interpreters at all
    centres. However, where there is a large body of detainees from one language
    group, DIAC and GSL should consider employing an on-site interpreter, or
    contract an on-site interpreter on a regular basis.
  3. The Human Rights Commissioner has also heard a number of times about the
    difficulties of understanding written communications provided only in English.
  4. Recommendation 24: DIAC should, where possible, ensure the
    availability of onsite interpreters when there is a large detainee population
    from a single language group. This is particularly relevant to VIDC which has a
    large population of Mandarin-speaking detainees.
  5. Recommendation 25: DIAC should ensure that all official documents,
    including documents and notices about the operation of the centres, are provided
    in the main languages of the detainee population. Detainees should be able to
    request assistance in translating personal documents.

Appendix
One – What are the main human rights principles relevant to immigration
detention?

  1. The treatment of people in immigration detention must comply with
    Australia’s international human rights obligations. Australia has
    voluntarily agreed to be bound by:

    • The International Covenant on Civil and Political Rights 1996 (‘ICCPR’).
    • The Convention against Torture and Other Cruel, Inhuman and Degrading
      Treatment or Punishment 1984
      (‘CAT’).
    • The Convention Relating to the Status of Refugees (‘Refugee
      Convention’) (1951) and Protocol Relating to the Status of Refugees
      (1967).
    • The Convention on the Rights of the Child (‘CRC’).
  2. Immigration detention is not a prison or correctional sentence. Immigration
    detainees are detained pursuant to the Migration Act 1958 (Cth)
    (‘Migration Act’) and not pursuant to arrest or charge for any
    criminal offence. Accordingly, the treatment of immigration detainees should be
    as favourable as possible, and in no way less favourable than that of untried or
    convicted
    prisoners.[87]

Freedom
from arbitrary detention

  1. The right to liberty is a fundamental human right protected by all major
    human rights instruments. While there are occasions when the state deprives
    people of their liberty, article 9(1) of the ICCPR states:

    Everyone
    has the right to liberty and security of person. No one shall be subjected to
    arbitrary arrest or detention. No one shall be deprived of liberty except on
    such grounds and in accordance with such procedure as are established by law
    (ICCPR, art 9(1)).

  2. The prohibition on arbitrary detention includes detention which, while it
    may be lawful, is unjust or unreasonable. The United Nations Human Rights
    Committee (‘UNHRC’) has stated that to avoid being arbitrary,
    detention must be a proportionate means to achieve a legitimate aim, having
    regard to whether there are alternative means available which are less
    restrictive of
    rights.[88]

Judicial
review of detention

  1. Judicial oversight of all forms of detention is a fundamental guarantee of
    freedom and liberty from arbitrariness. Article 9(4) of the ICCPR
    provides

    Anyone who is deprived of his liberty by arrest or
    detention shall be entitled to take proceedings before a court, in order that
    the court may decide without delay on the lawfulness of his detention and order
    his release if the detention is not lawful.

  2. The UNHRC has stated that that the right to challenge the
    ‘lawfulness’ of one’s detention under article 9(4) must
    include the opportunity to challenge detention which is arbitrary within in the
    meaning of article 9(1).[89] In A v Australia[90] the UNHRC
    stated that ‘lawfulness’ in the context of article 9(4) does not
    simply mean lawfulness under municipal
    law.[91] The UNHRC found
    that:

    1. While the complainant had the opportunity to seek judicial review of his
      detention, the operation of the Migration Act precluded any chance of success;
      his detention was automatically lawful in municipal
      law.[92]
    2. To comply with article 9(4) courts must be empowered to order the release of
      a person in detention, if their detention is incompatible with article 9(1) or
      any other provisions of the ICCPR. [93]
  3. In C v Australia,[94]Bakhtiyari v Australia,[95]D & E v Australia,[96] and Baban v.
    Australia,
    [97] and Shams et al v
    Australia
    ,[98] the UNHRC
    confirmed its view that an inability to challenge detention that is incompatible
    with article 9(1) will result in a breach of article
    9(4).[99]

Freedom
from torture, cruel, inhuman and degrading treatment and the right for detainees
to treated with humanity

  1. Article 7 of the ICCPR provides that ‘[n]o one shall be subjected to
    torture or to cruel, inhuman or degrading treatment or punishment’.
  2. Article 10(1) of the ICCPR further provides people deprived of their liberty
    must be treated with ‘humanity and respect for the inherent dignity of
    their person’.[100]
  3. There is some overlap between articles 7 and 10(1) in the case of detained
    persons. That is, inhuman or degrading treatment or punishment will also
    constitute a lack of treatment with humanity and respect for the inherent
    dignity of the human person.
  4. However, the UNHRC has confirmed that the threshold for establishing a
    breach of article 10(1) is lower than the threshold for establishing
    ‘cruel, inhuman or degrading treatment’ within the meaning of
    article 7 of the ICCPR.[101]
  5. Further, the UNHRC has confirmed that while article 7 imposes a prohibition
    against certain forms of treatment or punishment, article 10(1) imposes a
    positive obligation upon States to protect the humanity and dignity of detained
    prisoners due to their particular
    vulnerability.[102]
  6. Torture and cruel, inhuman or degrading treatment or punishment is also
    prohibited by CAT. Under article 3 of CAT, the refoulement of a person to
    another country if there are substantial grounds for believing that he or she
    would be in danger of being subjected to torture is
    prohibited.

Special protection of children’s
rights

  1. International human rights law recognises the rights of those with special
    needs – in particular children, asylum seekers and refugees – to
    special protection.
  2. The CRC protects comprehensively the human rights of children. Of particular
    importance with respect to children in immigration detention are that:

    • children have a right to
      non-discrimination[103]
    • the best interests of the child must be a primary consideration in all
      actions concerning children[104]
    • detention must be a measure of last resort and for the shortest appropriate
      period of time; children must not be deprived of their liberty unlawfully or
      arbitrarily[105]
    • no child shall be subjected to torture or other cruel, inhuman or degrading
      treatment or punishment[106]
    • children in detention have the right to be treated with humanity and respect
      for the inherent dignity of the
      person[107]
    • children in detention must be able to challenge the legality of their
      detention before a court or other competent, independent and impartial
      authority[108]
    • children have the right to enjoy, to the maximum extent possible,
      development and recovery from past
      trauma[109]
    • asylum-seeking and refugee children are entitled to appropriate protection
      and
      assistance.[110]
  3. The CRC goes further than the general prohibition on arbitrary and unlawful
    detention in article 9(1) of the ICCPR, by adding that detention of children
    should be a measure of last resort and for the shortest appropriate
    period
    of time.
  4. While there is no set definition of the 'shortest appropriate period', when
    read with the 'last resort' principle, it is clear that Australia must consider
    any less restrictive alternatives that may be available to an individual child
    in deciding whether and for how long a child is detained. Detention of children
    should only occur in exceptional cases and, in these exceptional cases, the
    detention is only permitted for the shortest appropriate period of
    time.

Special protection of the rights of refugees and asylum
seekers

Non-refoulement

  1. Article 33 of the Refugee Convention prohibits Australia from
    returning a refugee to a country where his or her life or freedom would be
    threatened. This obligation of non-refoulement is also implied in articles 6 and
    7 of the ICCPR, and article 3 of CAT.
  2. The UNHCR has held that a state will contravene its obligations under the
    ICCPR if it removes a person to another country is circumstances where there is
    a real risk that their rights under the ICCPR – including the right not to
    be arbitrarily detained – will be
    violated.[111]
  3. To avoid breaching article 33 of the Refugee Convention, a state must
    have an effective procedure to determine the validity of an asylum
    seeker’s claim to be a refugee.

Prohibition against
penalties

  1. Article 31 expressly prohibits nations from penalising refugees on account
    of their illegal entry where they are ‘coming directly from a territory
    where their life or freedom was
    threatened’.[112]

Presumption
against immigration detention

  1. The UNHCR Guidelines on Detention of Asylum Seekers state:

    1. The right to liberty is a fundamental right and therefore the use of
      detention against asylum seekers is inherently undesirable’; and ‘as
      a general rule, asylum seekers should not be
      detained’.[113]
    2. Immigration detention is especially undesirable for vulnerable people such
      as single women, children, unaccompanied minors and those with special medical
      or psychological needs.[114]

Appendix
Two – Major recommendations of HREOC’s

A last resort?: National Inquiry
into Children in Immigration Detention, 2004

Recommendation 1
Children in immigration detention
centres and residential housing projects as at the date of the tabling of this
report should be released with their parents, as soon as possible, but no later
than four weeks after tabling.

The Minister and the Department can effect
this recommendation within the current legislative framework by one of the
following methods:

  • transfer into the community (home-based detention)
  • the exercise of Ministerial discretion to grant humanitarian visas pursuant
    to section 417 of the Migration Act
  • the grant of bridging visas (appropriate reporting conditions may be
    imposed).

If one or more parents are assessed to be a high security
risk, the Department should seek the urgent advice of the relevant child
protection authorities regarding the best interests of the child and implement
that advice.

Recommendation 2
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 the
      child must be a primary consideration
    • the preservation of family
      unity
    • special protection and
      assistance for unaccompanied children.
  • Bridging visa regulations for unauthorised arrivals should be amended so as
    to provide a readily available mechanism for the release of children and their
    parents.

Recommendation 3
An independent guardian should be
appointed for unaccompanied children and they should receive appropriate
support.

Recommendation 4
Minimum standards of treatment for children in
immigration detention should be codified in legislation.

Recommendation 5
There should be a review of the impact on
children of legislation that creates 'excised offshore places' and the 'Pacific
Solution'.


[1] All HREOC publications relating
to this work are available at www.humanrights.gov.au/human_rights.
[2] Senator Chris Evans,
‘New Directions in Detention – Restoring Integrity to
Australia’s Immigration System’, Seminar – Centre for
International and Public Law, 29 July
2008.
[3] The Minister has the
discretion to release people on visas. He or she also has the power to place
detainees into community detention on Residence Determinations or into
alternative detention arrangements.
[4] Commonwealth Ombudsman,
Immigration Reports tabled in Parliament 4 June 2008, http://www.comb.gov.au/commonwealth/publish.nsf/Content/publications_immigrationreports_tabled_080604
.[5] This total figure includes those in alternative detention, community detention
and immigration detention facilities. 310 of these were detained in immigration
detention centres.
[6] Statistics
provided to HREOC by DIAC, 6 June
2008.
[7] Senator Chris Evans,
Media Release, ‘Long-term detention review completed’, 23 May
2008.
[8] See Chapter 9 on Mental
Health in HREOC, A last resort?: National Inquiry into Children in
Immigration Detention,
2004 (‘A last resort?’) and
submissions to that Inquiry at http://www.humanrights.gov.au/human_rights/children_detention/submissions/index.html
.[9] See A last resort?; Those who’ve come across the seas; Summary of Observations
following Inspections of Mainland Immigration Detention Facilities 2006 and 2007
(‘Summary of Observations’) and various submissions to inquiries
available on the HREOC website at www.humanrights.gov.au/legal/submissions.
[10] Migration Act, ss 189 and
196.
[11] UNHCR, Executive
Committee Conclusion No. 44, Detention of Refugees and Asylum Seekers (1986) (ExComm Conclusion 44), UN Doc. A/AC.96/688, paragraph
128.
[12]Those who’ve
come across the seas,
Part 6 – An Alternative Model,
pp245-256.
[13] The Migration
Reform Act 1992
(Cth) sought to limit the grounds of judicial review that
applied to migration decisions to those set out in Part 8 of the Migration Act
(as opposed to the grounds provided under the Administrative Decisions
(Judicial Review) Act 1977
(Cth) and the common
law).
[14] (2003) 211 CLR
476.
[15] Review for jurisdiction
error can encompass cases where there is alleged to be a denial of procedural
fairness, failure to comply with statutory procedures, error of law, the
inflexible application of policy, consideration of irrelevant material and
failure to consider relevant material.
[16]Al Kateb v Godwin (2004) 78 ALJR 1099 (McHugh, Hayne, Callinan and Heydon JJ; Gleeson CJ, Gummow
and Kirby JJ dissenting).
[17] HREOC Media Release, ‘HREOC welcomes end of ‘Pacific
Solution’, 5 February
2008.
[18] The Migration Act, s
198A.
[19] ABC online,
Government launches immigration detention inquiry’, 10 June 2008, http://www.abc.net.au/news/stories/2008/06/10/2270415.htm?section=justin
[20] Migration Act, s 46A.
[21] Migration Act, s 494AA.
[22] Concerns with this policy have been raised by HREOC in HREOC’s Submission
to the Senate Legal and Constitutional Committee Inquiry into the Migration
Amendment (Designated Unauthorised Arrivals) Bill 2006 and A last
resort?
, Chapter 7.
[23]A
last resort?,
Chapter 7.
[24] Migration Act, s 4AA.
[25] Migration Act, s 197AB.
[26] Explanatory Memorandum, Migration Amendment (Detention Arrangement) Bill 2005 (Cth), 10.
[27] This
case involved an application for the release from immigration detention of
children who had been detained for over 3 years. The High Court rejected the
argument that ss 189 and 196 of the Migration Act were invalid to the extent
that they would authorize the detention of children. Arguments that the effects
of administrative detention were punitive and therefore the power to detain
could only be exercised by the judiciary were unsuccessful. See Woolley, Re;
Ex parte Applicants M276/2003 (by their next friend GS)
(2004) 80 ALD 1. It
is also noted that in Minister for Immigration and Multicultural Affairs v B
Minister for Immigration and Multicultural Affairs v B
(2004) 219 CLR
365, the High Court unanimously held that the Family Court had no
jurisdiction (pursuant to the exercise of its welfare power) to release children
from immigration detention.
[28]A last resort?, pp862-864.
[29] Migration Act, s
15.
[30] Migration Act, s
189.
[31] Migration Act, s
198.
[32] Commonwealth Ombudsman, Administration of Section 501 of the Migration Act as it applies to Long-Term
Residents
, 2006.
[33] Summary of Observations 2006 and
2007.
[34] For example, HREOC, No.
13 Report of an Inquiry into a Complaint of indefinite nature of detention in
Prison
(2001) Kiet & Ors v. Department of Immigration and Multicultural
Affairs http://www.humanrights.gov.au/legal/HREOCA_reports/hrc_report_13.html
.[35] Question No.423, Question to Senate from Senator Allison, reply by Senator Chris
Evans, 17 June 2008.
[36] HREOC
understands that DIAC is working to implement some of these recommendations
which should improve the reasonableness and fairness of the cancellation
process.
[37] Commonwealth
Ombudsman, Administration of Section 501 of the Migration Act as it applies
to Long-Term Residents
, 200), Recommendation 7.
[38] See HREOC, submission to
the 2004 Senate Select Committee on Ministerial Discretion in Migration,
available at: http://www.humanrights.gov.au/legal/submissions/migration_matters.html
.[39] Europe, Canada, and the USA all make some provisions for complementary
protection. New Zealand has a Bill before Parliament to introduce complementary
protection. For more details on complementary protection systems, see Jane
McAdam, Complementary Protection in International Refugee Law, Oxford
University Press, 2007; A Just Australia and Oxfam, June
2008.
[40] Elizabeth Proust, Report to the Minister for Immigration and Citizenship on the Appropriate Use
of Ministerial Powers under the Migration and Citizenships Acts and Migration
Regulation,
31 January 2008, Recommendation 19 (‘Proust
Report’).
[41]Concluding Observations of the Committee Against Torture: Australia,(Advance unedited version) 40th session, 28 April -16
May2008, CAT/C/AUS/CO/115 May 2008; Concluding Observations of the Committee
Against Torture: Australia,
25th session, 13-24 November 2000,
CAT A/56/44/2001; See also Report of Senate Select Committee on Ministerial
Discretion in Migration
, 2004, [8.82]. HREOC notes that an earlier report in
2000 by the Senate Legal and Constitutional References Committee recommended
that the Attorney-General’s Department, in conjunction with the then
Department of Immigration and Multicultural Affairs (DIMA), consider amending
Australia’s laws to explicitly incorporate the non-refoulement obligations
of CAT and the CRC into domestic
law.
[42] Summary of Observations
2007, Recommendation 1.
[43]A
last resort?,
Section
6.7.4.
[44] Migration Act, s
195A.
[45] Proust Report,
Recommendation 9.
[46] ICCPR,
articles 6; ICESCR, articles 9, 11, 12; CRC, articles 22, 24, 26, 27; CERD,
article 5(e).
[47] See HREOC
Submission to the Green Paper on Homelessness – Which Way Home? and
Factsheet on the Impact of Bridging Visa restrictions on Human Rights at http://www.humanrights.gov.au/human_rights/immigration/bridging_visas_f…
.[48] Network of Asylum Seeker
Agencies Victoria, Seeking Safety, Not Charity: A report in support of
work-rights for asylum-seekers living in the community on Bridging Visa E
,
2005, pp27-30.
[49] Senator Chris
Evans, Media Release, ‘Ministerial intervention powers under
review’, 9 July 2008.
[50] Migration Act, s 195A. The explanatory memorandum states that the new provision
is intended to ‘be used to release a person from detention where it is not
in the public interest to continue to detain
them’.
[51] Migration Act,
s 197AB.
[52] Although, as a
result of the High Court’s decision in Plaintiff S157/2002 v
Commonwealth
(2003) CLR 476 review is available for jurisdictional
error.
[53] See further s195A(4)
(in relation to the power to grant visas) and s 197AE (in relation to the making
of residence determinations). Both state that the Minister ‘does not have
a duty to consider whether to exercise the power ... whether he or she is
requested to do so by any other person, or any other
circumstance’.
[54] Migration Act, s 197AD.
[55] Explanatory Memorandum, Migration Amendment (Detention Arrangement) Bill 2005 (Cth), 20.
[56] Submission of
HREOC to the Clarke Inquiry on the case of Dr Mohamed Haneef, May 2008, http://www.haneefcaseinquiry.gov.au/.
[57] Written Replies by the Government of Australia to the List of Issues
(CAT/C/AUS/Q/4) prepared by the Committee against Torture to be considered
during the examination of the fourth periodic report of Australia
(CAT/C/67/Add.7), [140].
[58] HREOC’s comments on Australia’s compliance with the Convention
against Torture and Other Cruel, Inhuman and Degrading Treatment or punishment,
April 2008, http://www.humanrights.gov.au/legal/submissions/2008/080415_torture.html
.[59] HREOC has made this recommendation on a number of occasions. See A last
resort?,
Recommendation 4; HREOC’s comments on Australia’s
Compliance with the Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment, April 2008 at http://www.humanrights.gov.au/legal/submissions/2008/080415_torture.html.
[60] Guidance is also provided by the HREOC’s Immigration Detention Guidelines
(2000) at http://www.humanrights.gov.au/human_rights/immigration/idc_guidelines2000.html.
[61]Concluding Observations of the Committee against Torture: Australia,(Advance unedited version) 40th session, 28 April-16 May
2008, CAT/C/AUS/CO/115, May
2008.
[62] Others are the
Commonwealth Ombudsman and the Immigration Detention Advisory Group.
[63] ‘Human rights’
are strictly defined by s 3 of the HREOC Act and relate only to the six
international instruments scheduled to, or declared under the HREOC Act. The
instruments scheduled to, or declared under the HREOC Act are: (a) the ICCPR;
(b) the Declaration on the Rights of the Child; (c) the Declaration on the Rights of Mentally Retarded Persons; (d) the Declaration on the Rights of Disabled Persons, (e) the CRC; and (f) the Declaration on the Elimination of all Forms of Intolerance and of
Discrimination Based on Religion or
Belief
.
[64] A list of
reports on breaches of human rights of individuals in immigration detention can
be found at: http://www.humanrights.gov.au/legal/HREOCA_reports/index.html
[65] It is noted, however, that s 13(1) of the HREOC Act gives HREOC the power
to ‘do all things that are necessary or convenient to be done for or in
connection with its functions’. Section 11(1)(p) of the HREOC Act also
gives HREOC the function of doing ‘ anything incidental or conducive to
the performance of’ any of the functions in ss 11(1)(a) – (o).
Section 26 of the HREOC Act provides that it is an offence for a person to
‘hinder, obstruct, molest or interfere with: (a)  a member
participating in an inquiry or examination under this Act; or (b) a person
acting on behalf of the Commission, while that person is holding an inquiry or
carrying out an investigation under this Act’. HREOC also has statutory
information gathering powers and powers to examine witnesses under ss 21-24 of
the HREOC Act.
[66]Migration
Amendment (Detention Arrangements) Act 2005
(Cth).The Commonwealth Ombudsman
also has the power to investigate ‘action relating to matters of
administration’ undertaken by a department of a prescribed authority: Ombudsman Act 1976 (Cth), s 5(1). This means that in the immigration and
immigration detention area, the Ombudsman can investigate ‘action relating
to matters of administration’ undertaken by the Department.
[67] The United Nations
Committee against Torture has recommended increasing HREOC’s power to
effectively monitor compliance with CAT. See Concluding Observations of the
Committee Against Torture: Australia,
(Advance unedited version) 40th session, 28 April-16 May2008, CAT/C/AUS/CO/115, May
2008
[68] Summary of Observations
2006 and 2007 at http://www.humanrights.gov.au/human_rights/immigration/detention_rights.html#9_3.
[69] Summary of Observations
2007, Section 6.3.
[70] Summary
of Observations 2007, Recommendation
25.
[71] Summary of Observations
2007, Section 23.
[72] HREOC
visited the old site of detention, the Sports Hall in December 2001. See HREOC
Media Release, Christmas Island Detainees Inspection of Conditions, Professor
Alice Tay, 14 December 2001; HREOC, A Report on Visits to Immigration
Detention Facilities 2001
, the previous Human Rights Commissioner inspected
the Phosphate Hill facility.
[73] Chapter 13, A last
resort?
.
[74] UNHCR,
Guidelines on Policies and Procedures in dealing with Unaccompanied Children
Seeking Asylum, Geneva, 1997,
[7.7].
[75]A last resort? raised a number of concerns with the previous versions of IRH – the
Woomera Residential Housing project - Chapter 6. The greatest concern was the
separation of families which occurred at the time.
[76] HREOC, Summary of
Observations 2007. p20
[77] Statistics provided to HREOC from DIAC, 4 July
2008.
[78] Three families with
children, two individuals, and one unaccompanied
minor.
[79] Summary of
Observations 2007, Recommendation
5.
[80] Summary of Observations
2007, Recommendation 4.
[81] HREOC Reports of individual complaints; Summary of Observations 2006 and 2007; A last resort?; Those who’ve come across the
seas
.
[82] HREOC, Immigration
Detention Guidelines (2000) at http://www.humanrights.gov.au/human_rights/immigration/idc_guidelines2000.html.
[83] Additional concerns can be viewed in Summary of Observations 2006 and 2007 at http://www.humanrights.gov.au/human_rights/immigration/detention_rights.html.
[84] For list of HREOC Reports, see http://www.humanrights.gov.au/legal/HREOCA_reports/index.html.
[85]Report of Complaint by
Mr Huong Nguyen and Mr Austin Okoye against the Commonwealth of Australia and
GSL (Australia) Pty Ltd
[2008] HREOC Report No 39, [324]-325] at http://www.humanrights.gov.au/legal/HREOCA_reports/hrc_report_39.html.
[86]Report of Complaint by
Mr Huong Nguyen and Mr Austin Okoye against the Commonwealth of Australia and
GSL (Australia) Pty Ltd
[2008] HREOC Report No 39, p 92 -94 at http://www.humanrights.gov.au/legal/HREOCA_reports/hrc_report_39.html.
[87] Rule 94, Standard
Minimum Rules for the Treatment of
Prisoners
.
[88]A v
Australia
, Communication No.
560/1993.
[89] UNHCR
Communication No 560/1993, CCPR/C/59/D/560/1993 (1997); UNHRC Communication No.
900/1999, U.N. Doc. CCPR/C/76/D/900/1999 (2002); UNHCR, Communication
No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003); UNHCR
Communication No 1050/2002 UN Doc CCPR/C/87/2D/1050/2002
(2006).
[90] UNHCR Communication
No 560/1993, CCPR/C/59/D/560/1993 (1997).
[91] It is noted that the
current and previous Australia Government reject this view of the meaning of
‘lawful’. The Government has stated ‘[u]nder article 9(4),
the obligation on States parties is to provide for review of the lawfulness of
detention. In the view of the Government, there can be no doubt that the term
‘lawfulness’ refers to the Australian domestic legal system. There
is nothing apparent in the terms of the Covenant that ‘lawful’ was
intended to mean ‘lawful at international law’ or ‘not
arbitrary’. See Response of the Australian Government to the views of
the Committee in Communication numbers
1255/2004, 1256/2004, 1259/2004,
1260/2004, 1266/2004, 1268/2004, 1270/2004, 1288/2004, http://www.ag.gov.au
[92] See further the discussion in Joseph, Schultz and Castan, The International
Covenant on Civil and Political Rights – Cases, Materials and Commentary
(2nd ed), 2004,
[7.60].
[93] The UNHRC rejected
an argument that there had been no breach of article 9(4) because the
complainant had access to the courts but was unable to be released by virtue of
the application of division 4B of the Migration Amendment Act 1992 (Cth); UNHCR Communication No 560/1993, CCPR/C/59/D/560/1993 (1997),
[9.4]-[9.5].
[94] UNHRC
Communication No. 900/1999, U.N. Doc. CCPR/C/76/D/900/1999
(2002).
[95] UNHCR, Communication
No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003),
[8.2].
[96] UNHCR Communication
No 1050/2002 UN Doc CCPR/C/87/2D/1050/2002 (2006).
[97] Communication No.
1014/2001, U.N. Doc. CCPR/C/78/D/1014/2001
(2003).
[98] UNHCR Communication,
Nos. 1255,1256,1259,1260,1266,1268,1270,1288/2004, UN Doc.
CCPR/C/90/D/1255,1256,1259, 1260,1266,1268,1270&1288/2004
(2007).
[99]A habeas
corpus
application to the High Court does not meet the requirements of
article 9 because the High Court cannot consider whether the individual’s
detention was justified.See further Bakhtiyari v Australia, [8.2]; Shams El Al v Australia, [6.5].
[100] The minimum
requirements for ‘humanity’ and ‘dignity’ in detention
have been set out by the Human Rights Committee in General Comments and by
incorporation of the detailed provisions of the Standard Minimum Rules and the
Body of Principles into ICCPR article
10.1.
[101] M. Nowak, UN Covenant on Civil and Political Rights CCPR Commentary (2nd ed, 2005) 247-8.
[102] UNHRC
General Comment 21 (Replaces General Comment 9 concerning humane treatment of
persons deprived of liberty), UN Doc HRI\GEN\1\Rev.1 AT 33 (1994),
[3].
[103]Convention on the
Rights of the Child
, article
2.
[104] CRC, article
3(1).
[105] CRC, article 37(b).
[106] CRC, article
37(c).
[107] CRC, article
37(a), (c).
[108] CRC, article
37 (d).
[109] CRC, articles
6(2), 39.
[110] CRC, article
22(1).
[111]GT v
Australia
, Communication No 706/1996, UN Doc CCPR/C/61/D/706/1996; C v
Australia
Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999; Kindler
v Canada
, Communication No. 470/1991, UN Doc CCPR/C/48/D/470/1991; Ng v
Canada
, Communication No. 469/1991, UN Doc CCPR/C/49/D/469/1991; Cox v
Canada,
Communication No. 539/1993, UN Doc
CCPR/C/52/D/539/1993.
[112] The UNHCR have stated the phrase ‘coming directly’ in article 31(1)
covers the situation of a person who enters the country in which asylum is
sought directly from the country of origin, ‘or from another country where
his protection, safety and security could not be assured’. See UNHCR Guidelines and Applicable Criteria and Standards Relating to the Detention of
Asylum Seekers,
[4].
[113] UNHCR Guidelines on Detention of Asylum Seekers (1985), Guideline
2.
[114] UNHCR Guidelines,
paragraph 2.