HREOC Report No. 18

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

HREOC Report No. 18

1. Introduction

2. The Commission's jurisdiction

3. Outline of complaint and the inquiry process

4. Findings and recommendations

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

APPENDIX 1

APPENDIX 2

1. The commission's jurisdiction

2. The complaint

3. The complainant's evidence and submissions

4. Respondent's response

5. Documentary material before the commission

6. Conciliation

7. Preliminary findings of Commissioner Sidoti

8. Response to Commissioner Sidoti's preliminary findings

9. My Further Preliminary Findings

10. Respondent's response to my Further Preliminary Findings

11. Section 21 Notice

12. Findings of fact

13. Findings on liability

14. Article 10

15. Article 9(1)

16. Recommendations

APPENDIX A

APPENDIX B

APPENDIX C

1. Introduction

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

2. The Commission's jurisdiction

The Commission's functions in relation to the investigation and conciliation of complaints of human rights breaches against the Commonwealth of Australia and the Commission's functions in relation to reporting on complaints with substance that have not been resolved through the process of conciliation are outlined in Appendix 1 to this report.

3. Outline of complaint and the inquiry process

3.1 The nature of the complaint

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

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

3.2 The complainant's removal from Australia

Mr Ha was deported by DIMIA on 15 December 1999.

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

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

3.3 The Inquiry process

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

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

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

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

4. Findings and recommendations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…..Recommendations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The President has also stated that:

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

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

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

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

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

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

Dated at Sydney this 17th day of May 2002

Professor Alice Tay, President

APPENDIX 1

Functions of the Human Rights and Equal Opportunity Commission

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

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

(1) The functions of the Commission are:

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

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

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

Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth.

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

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

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

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

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

APPENDIX 2

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

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

Complainant:

Mr Duc Anh Ha

Respondent:

The Commonwealth of Australia

(Department of Immigration and Multicultural and Indigenous Affairs)

TABLE OF CONTENTS

1. The commission's jurisdiction

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

2. The complaint

2.1 The nature of the complaint

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

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

2.2 The complainant's removal from Australia

The complainant was deported by DIMIA on 15 December 1999.

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

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

2.3 Relevant legislation and guidelines

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

Section 5(1) of the Migration Act provides that:

"detain means:

(a) take into immigration detention; or

(b) keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

detainee means a person detained.

immigration detention means:

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

(i) an officer; or

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

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

(i) in a detention centre established under this Act; or

(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or

(iii) in a police station or watch house; or

(iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel-on that vessel; or

(v) in another place approved by the Minister in writing."

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

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

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

"Section 189 Detention of unlawful non-citizens

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

(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter the migration zone; and

(b) would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person."

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

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

2 Detention in prisons

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

Behavioural concerns

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

the risk to other detainees;

violent behaviour and/or unlawful behaviour, the inability of management and the detainee to resolve the unacceptable behaviour; or

the risk of absconding from lawful custody; or

at the time of being taken into immigration detention a person is assessed as being unsuitable to mix with other detainees at an IDC.

Completion of a custodial sentence

The detainee has completed a custodial sentence in prison and:

(a) removal or deportation is expected to take place within seven days of the expiration of the criminal sentence; and

(b) a review has determined that there are good reasons for the person not being detained at an IDC.

Location (Absence of an IDC)

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

3 Decision making in the transfer process

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

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

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

i. past or current narcotics use or distribution or;

ii. a history of sexual offences, and

iii. the admission or continuing accommodation of the detainee at the IDC is reasonably likely to constitute a risk to other detainees, the person should be placed in a state prison or other institution where there are more suitable facilities for their custody, or

§ management and the detainee are unable to resolve the unacceptable behaviour;
there is harassment of, or threats towards other detainees;
there is criminal activity particularly if it involves violence;
there is an escape or attempted escape;
there is reasonable cause to suspect that a detainee may pose a risk to the safety of the other detainees as a result of:
there is evidence that the person is suffering from a psychiatric illness.

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

in the IDC.

4 Grounds for transfer

………………………

4.4 Detainee with a history of violence

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

……………………

4.6 Detainee with a history of sexual offences or drug offences

4.6.1 Where a decision has been made that:

due to a history of sexual offences or drug offences; or
there is reasonable suspicion that the detainee has had involvement with i.e. taking or supplying prohibited drugs at the IDC;

there are reasonable grounds to believe that a detainee poses a risk to other detainees at the IDC.

Or,

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

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

……………….

4.8 Escape (attempted or successful)(3)

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

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

4.8.2 The decision about whether the police are asked to

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

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

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

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6 Case management

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

6.1.1 The ongoing monitoring of immigration detainees in state institutions is essential to ensure that they are always being held in the most appropriate place of detention. Where an immigration detainee is being held in a State prison, the case officer, or the Detention Review Officer, should have regular weekly contact with the institution to monitor the condition of the detainee. In addition, the officer is to undertake monthly personal visits with the detainee which may be timed to coincide with the 30 day review (refer to part on Review of the place of detention). The purpose of these regular contacts is to ensure that the detainee's condition whilst held in a custodial institution is closely monitored. These contacts are to be documented and file notes placed on the detainee's file.

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6.1.3 Although the determination of the security classification of detainees held in prison is made by the prison authorities, the case officer should seek to ensure that the prison system does not over-classify immigration detainees. It is desirable for immigration detainees to be held in remand areas of the prison, to reduce any exposure to violent convicted criminals.

7 Review of the place of detention

……………….

7.3 Formal monthly reviews - DIMA initiated

7.3.1 Each Regional Office should have a Detention Review Officer who is responsible for reviewing the detention details of each detainee at least every 30 days.

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7.4 Decision making in the review of the place of detention

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

on file.

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

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

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

3. The complainant's evidence and submissions

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

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

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

4. Respondent's response

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

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

2 the complainant subsequently informed DIMIA that he was unable to locate his passport; and

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

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

at the time that the complainant was transferred to the Prison, DIMIA was aware that:
1 the complainant would not be separated from convicted criminals; and

2 the Prison was subject to a general lock-down which could result in the complainant being locked in his cell for up to 22 hours per day;
DIMIA was advised of those matters by the Western Australia Ministry of Justice, which further stated that other facilities in the Perth metropolitan area were filled over their capacity;
reviews of the complainant's place of detention were undertaken on four occasions (with the outcome being, on each occasion, that the complainant should remain in detention at the Prison);
DIMIA retains ultimate responsibility for immigration detainees in state prisons, however, the "day to day management and duty of care of detainees" was said to be a matter for the relevant state authorities and the institution;
DIMIA rejected the complainant's request to be transferred to the Perth IDC and the Villawood IDC because of DIMIA's assessment that the complainant represented a security risk (on the basis that those detention centres were low security environments and the fact that the complainant had a criminal background and a history of drug use);
this apparently resulted in DIMIA concluding that there were no "sound operational reasons" for transferring the complainant;
the complainant was given access to legal representation and an application form for a bridging visa whilst in the Prison; and
the complainant was deported from Australia on 15 December 1999.

5. Documentary material before the commission

5.1 Material initially provided by DIMIA

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

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

5.1.1 Incident Reports prepared by Australasian Correctional Management

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

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

"Background:

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

Perth I.D.C.

Narrative:

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

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

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

"Background:

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

Narrative:

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

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

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

Summary and Recommendation:

Detainee HA is a past and present heroin user.

He has had criminal exposure.

He has admitted at least one term of imprisonment in NSW.

His tattoos suggest possible drug underworld connections and

He is a possible suspect in NSW drug activity.

Detainee HA's demeanour suggests that he is a high risk of escape and has been placed on 30 minute security observations.

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

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

DIMA Business Manager Detention N Smith advised."

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

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

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

Narrative:

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

NCA Officers attended the PIDC to interview detainee HA (with the permission of DIMA). The Officers advised that the detainee is believed to have been recently charged in NSW for Armed Robbery offences and to have a bench warrant out for Failing to Attend (viz skipped bail).

ACM Officer A Cairns has reported today, that detainee HA has been asking questions and trying to get information about the location of the PIDC and the security systems at the Centre. He also stated that he wanted to run away. When another detainee (PAZOOKI) said that HA would not be able to escape, detainee HA replied "I can, I could get out of here with my bare hands".

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

That he has previously been in gaol in Vietnam for the killing of a Police Officer. He stated that he was only 10 years old and a member of a gang at the time.

That he has been in gaol in NSW on four occasions for shop lifting, stabbing a person, breach of bail and breach of Community Service Order. DIMA have now agreed to detainee HA's transfer to a MOJ (sic) WA prison facility."

5.1.2 Departmental Minute dated 30 July 1999

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

"1 DETAINEE WITH A HISTORY OF VIOLENCE

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

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

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

2 DETAINEE WITH A HISTORY OF DRUG OFFENCES

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

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

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

3 ESCAPE (ATTEMPTED OR UNSUCCESSFUL)

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

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

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

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

"RECOMMENDATION

I recommend that:

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

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

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

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

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

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

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

5.1.3 Notice of transfer dated 30 July 1999

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

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

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

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

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

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

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

5.1.4 Minute dated 6 August 1999

This minute, prepared by Mr Smith,

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

"In respect of:

PHAM Quoc Hung

also known as HA Duc Anh,

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

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

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

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

Mr Williams apparently accepted that recommendation.

5.1.5 Minute dated 20 September 1999

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

"In respect of:

PHAM Quoc Hung

also known as HA Duc Anh,

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

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

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

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

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

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

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

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

5.1.6 Minute dated 4 November 1999

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

"In respect of:

PHAM Quoc Hung

also known as HA Duc Anh,

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

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

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

I am able to report the following.

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

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

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

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

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

Again, that recommendation was accepted by Mr Williams.

5.1.7 Minute dated 7 December 1999

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

"In respect of:

PHAM Quoc Hung also known as HA Duc Anh,

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

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

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

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

I am able to report the following:

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

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

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

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

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

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

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

5.2 Additional material provided by DIMIA

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

5.3 Material prepared by the WA Ombudsman

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

"Casuarina Prison riot and lock-down

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

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

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

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

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

I pointed out several of my observations:

the lock-down regime applied to all prisoners whether or not they were suspected of any involvement in the Christmas Day riot; it included prisoners who were not even in the prison at the time;

significant numbers of prison officers were seen present in the units without any apparent duties which involved engagement with prisoners and who seemed in the main to be occupied in a "watching" role;

no good reason had been advanced for not allowing prisoners to access the wing recreation areas given the presence of these officers or for not engaging officers in managing prisoners in small groups out of the units for attendance at education, work or recreation.

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

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

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

I will continue to monitor the situation."

6. Conciliation

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

7. Preliminary findings of Commissioner Sidoti

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

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

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

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

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

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

8. Response to Commissioner Sidoti's preliminary findings

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

"My response to the preliminary finding that DIMA's actions in detaining Mr Ha at Casuarina Prison from 20 July 1999 to 15 December 1999 were inconsistent with and contrary to his human rights under ICCPR Article 10 is as follows.

The reasons for Mr Ha's detention in the Perth IDC and subsequent transfer to Casuarina Prison prior to his removal from Australia were detailed in two letters to Mr Sidoti dated 10 November 1999 and 9 March 2000. In brief, the grounds for transfer were:

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

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

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

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

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

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

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

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

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

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

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

You have requested the following information:

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

DIMA does not accept that of Mr Ha Duc Anh's rights were breached under Article 10(2)(a), which provides that detainees should be segregated from convicted persons except "in exceptional circumstances". There were clearly exceptional circumstances in Mr Ha's case.

In any event, DIMA cannot be found to have breached a provision of the ICCPR against which Australia has maintained a reservation. Australia, in its instrument of ratification of the ICCPR, made the following reservation to paragraph 2 of Article 10:

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

In Australia's reports to the United Nations Human Rights Committee, the Commonwealth has set out clearly the reasons for this reservation. These include the prohibitive cost of implementation of separation, in some instances, in the Australian context and that in some cases segregation might in fact entail solitary confinement or living in conditions less amenable than those of the general prison population.

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

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

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

9. My Further Preliminary Findings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

10. Respondent's response to my Further Preliminary Findings

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

"Other Findings

At paragraph 2.9.1 of your further preliminary findings you state:

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

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

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

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

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

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

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

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

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

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

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

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

At paragraph 2.9.1 you state:

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

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

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

At paragraph 2.9.1 you also state:

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

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

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

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

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

Further, MSI-244 states at para 3.3 that:

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

Other Comments

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

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

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

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

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

You also state at para 3.17 that:

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

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

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

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

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

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

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

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

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

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

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

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

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

11. Section 21 Notice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12. Findings of fact

12.1 Findings of fact made by Commissioner Sidoti

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

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

12.2 My findings of fact

My findings of fact are as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Annual Report:

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

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

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

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

"steps were taken to increase work and education opportunities at Casuarina and for prisoners to leave the unit buildings for recreation"

It seems reasonable to conclude that the complainant obtained some benefit from those "steps" some time between the third and fourth reviews of his place of detention (ie between 4 November 1999 and 7 December 1999).

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

13. Findings on liability

13.1 Elements of the inquiry

One of the functions conferred on the Commission is to inquire into any act or practice that may be inconsistent with or contrary to human rights (section 11(1)(f) of the HREOC Act). In deciding whether the matters complained of fall within the terms of section 11(1)(f) of the HREOC Act, I must consider two main issues:

whether there is an act or practice under the HREOC Act; and if so
whether the act or practice is inconsistent with or contrary to any human right under the HREOC Act.

13.2 Whether there is an act or practice

Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth.

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

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

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

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

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

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

13.3 "Human rights"

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

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

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

14. Article 10

14.1 Terms of the article

Article 10 relevantly provides:

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

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

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

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

Article 7 of the ICCPR provides as follows:

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

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

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

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

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

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

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

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

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

14.3 Article 10(1)

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

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

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

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

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

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

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

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

Rule 21(1)

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

Rule 89

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

Rule 94

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

Rule 95

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

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

I have found in section 12 that:

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

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

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

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

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

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

"Article 10

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

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

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

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

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

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

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

Rule 86

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

Rule 87

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

Rule 88

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

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

Rule 89

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

Rule 90

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

Rule 91

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

Rule 92

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

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

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

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

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

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

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

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

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

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

"Western Australia

636. In Western Australia, the Prisons Regulations 1982 require that as far as is practicable, prisoners on remand must be separated from sentenced prisoners. Remandees may be held at regional prisons for short periods of time due to the distance from Perth. Adult remandees may also be held at

metropolitan prisons when the Remand Centre is full. Wherever possible segregation is maintained, however this is not always practical in view of the need to ensure remandees have access to work, recreation and medical and other services. Different management regimes apply to remandees including visits by legal representatives to facilitate their defence case." [39]

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

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

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

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

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

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

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

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

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

14.8 Exceptional circumstances

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

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

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

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

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

15. Article 9(1)

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

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

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

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

within the IDC by the respondent would amount to a breach of article 9(1), leaving the respondent with "almost no options for dealing with non-cooperative detainees".

As to the respondent's contention that article 9(1) did not apply because the complainant was already detained, this submission seems to me to be erroneous. It is true that the complainant was subject to restrictions, in the Perth IDC, that would amount to a deprivation of liberty prior to his transfer to the Prison. It is also true (although the respondent did not appear to specifically rely upon this matter) that the complainant's detention in the Perth IDC and the Prison had a common statutory basis: being sections 189 and 196 of the Migration Act, read with the definition of "immigration detention" in section 5(1). However, the UNHRC has recognised that detention that is not, at the outset, in breach of article 9(1) may, at a later time, come to breach that article [48]. The fact that the complainant was already detained thus seems to me to be immaterial.

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

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

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

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

15.2 Interpretation of MSI 244

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

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

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

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

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

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

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

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

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

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

15.3 Detainee with a history of violence

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

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

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

"Detainee HA has volunteered to the guarding officer:

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

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

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

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

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

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

15.4 Detainee with a history of sexual offences or drug offences

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

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

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

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

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

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

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

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

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

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

15.5 Escape (attempted or successful)

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

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

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

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

15.6 Other material relied upon by the respondent

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

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

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

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

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

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

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

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

15.7 Compliance with MSI 244 in the transfer decision

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

15.8 Reviews of the complainant's place of detention

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

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

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

15.9 Findings regarding article 9(1)

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

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

16. Recommendations

16.1 Introduction

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

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

16.2 Recommendation on financial compensation

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

16.3 Other Recommendations

I recommend that:

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

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

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

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

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

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

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

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

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

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

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

Professor Alice Erh-Soon Tay

President

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

APPENDIX A

"The Commission's Jurisdiction"

FUNCTIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN RELATION TO HUMAN RIGHTS

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

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

(1) The functions of the Commission are:

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

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

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

Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth.

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

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

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

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

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

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

APPENDIX B

"Commissioner Sidoti's Preliminary Findings"

Our Ref: 208966FC

Mr W J Farmer

Secretary

Department of Immigration and Multicultural Affairs

PO Box 25

BELCONNEN ACT 2616

Dear Mr Farmer

Complaint by Mr Ha Doc Anh

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

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

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

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

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

Process to be followed

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

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

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

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

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

a) preventing a repetition of the acts

b) the payment of compensation for loss or damage suffered as a result of the acts and

c) any other action to remedy or reduce any loss or damage suffered.

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

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

My report will include

a) details of my inquiry into the acts

b) my findings and reasons for those findings

c) any recommendations included in the notice and

d) details of any action the person responsible for the acts is taking or proposes to take as a result of my findings or recommendations.

That report will be served on the parties.

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

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

Future contact

The Director of Legal Services or a Legal Officer at the Commission will be in touch with you within 28 days of the date of this letter. You are requested to mark all future correspondence in relation to this matter with the file reference number that appears at the top of this letter and address it to:

Director of Legal Services

Human Rights and Equal Opportunity Commission

GPO Box 5218

SYDNEY NSW 1042

Yours sincerely

Chris Sidoti

Human Rights Commissioner

Date: 11 July 2000

Report of unconciliable complaint under the Human Rights and Equal Opportunity Act 1986 (Cth)

Complaint by Mr Ha Duc Anh against the Commonwealth of Australia, Department of Immigration and Multicultural Affairs

Parties:

Complainant: Mr Ha Duc Anh

Respondent: Commonwealth of Australia

Department of Immigration and Multicultural Affairs

Mr WJ Farmer

Secretary

PO Box 25

BELCONNEN ACT 2616

Contents

1 Outline of the complaint

2 Outline of the response

3 Outline of other information

4 Relevant law

5 Preliminary findings

6 Index to inquiry documentation

Attachment 1 - Relevant sections of Act

1 Outline of the complaint

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

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

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

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

2 Outline of the response

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

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

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

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

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

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

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

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

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

3 Outline of other information

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

or education.

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

4 Relevant law

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

In particular, ICCPR article 7 provides that

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

ICCPR article 10 provides

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

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

5 Preliminary findings

1 I make the following preliminary findings of fact

i From 27 July 1999 to 15 December 1999 Mr Ha was detained under the provisions of the Migration Act 1958.

ii During this period DIMA retained ultimate responsibility for the conditions under which Mr Ha was detained. In particular, DIMA was responsible for providing humane conditions of detention appropriate to Mr Ha's unconvicted status.

iii On 30 July 1999 at DIMA's instigation Mr Ha was transferred to Casuarina Prison, a state prison operated by the WA Ministry for Justice.

iv Mr Ha remained in Casuarina Prison until around the time of his removal from Australia on 15 December 1999.

v The decision to detain Mr Ha was periodically reviewed by the DIMA.

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

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

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

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

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

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

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

Chris Sidoti

Human Rights Commissioner

Date: 11 July 2000

6 Index to Inquiry Documentation

Date Description

7.8.99 Letter from Mr Ha to Commission

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

Oct 99 Undated letter from Mr Ha to the Commission

9.10.99 Letter from Mr Ha to the Commission

11.10.99 Letter from Mr Ha to the Commission

18.10.99 Letter from Commission to DIMA seeking preliminary information

10.11.99 Letter from DIMA to Commission

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

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

Minute dated 30 July 1999 from Mr Nigel Smith

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

Minute dated 6 August from Mr Nigel Smith

Minute dated 20 September 1999 from Mr Nigel Smith

Minute dated 4 November 1999 from Mr Nigel Smith

Minute dated 7 December 1999 from Mr Nigel Smith

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

ACM Incident Report dated 29 July 1999 by Mr Wayne Hart

ACM Incident Report dated 30 July 1999 by Mr Wayne Hart

ACM Incident Report dated 2 August 1999 by Mr Wayne Hart

MSI-244: Transfer of Detainees to State Prisons

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

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

Letter dated 19 August 1999 from DIMA to Mr Ha

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

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

APPENDIX C

"My Further Preliminary Findings"

FURTHER PRELIMINARY FINDINGS ON COMPLAINT UNDER THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986 (Cth)

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

1 Background

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

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

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

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

2 Further Findings of Fact

2.1 Findings of Commissioner Sidoti

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

"On 30 July 1999 at DIMA's instigation Mr Ha was transferred to Casuarina Prison, a state prison operated by the WA Ministry for Justice ….

….The decision to detain Mr Ha was periodically reviewed by the DIMA…

….While held in immigration detention, Mr Ha had not been charged or convicted of any offence. "

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

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

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

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

"Background

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

Narrative:

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

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

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

"Background:

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

Narrative:

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

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

in NSW.

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

Summary and Recommendation:

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

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

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

DIMA Business Manager Detention N Smith advised. "

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

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

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

Narrative:

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

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

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

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

guarding officer:

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

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

2.3 Departmental Minute of 30 July 1999

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

"1. DETAINEE WITH A HISTORY OF VIOLENCE

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

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

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

2. DETAINEE WITH A HISTORY OF DRUG OFFENCES

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

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

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

3. ESCAPE (ATTEMPTED OR UNSUCCESSFUL)

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

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

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

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

"RECOMMENDATION

I recommend that:

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

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

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

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

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

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

2.4 Notice of transfer dated 30 July 1999

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

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

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

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

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

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

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

2.5 Minute dated 6 August 1999

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

"In respect of

PHAM Quoc Hung

also known as HA Duc Anh,

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

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

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

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

2.5.2 Mr Williams apparently accepted that recommendation.

2.6 Minute dated 20 September 1999

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

"In respect of

PHAM Quoc Hung

also known as HA Duc Anh,

who was transferred from the Perth Immigration Detention Centre on

30 July 1999, I am able to report the following.

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

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

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

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

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

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

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

2.7 Minute of 4 November 1999

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

"In respect of

PHAM Quoc Hung

also known as HA Duc Anh,

1 who was transferred from the Perth Immigration Detention Centre on

30 July 1999;

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

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

I am able to report the following.

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

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

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

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

2.7.2 Again, that recommendation was accepted by Mr Williams.

2.8 Minute of 7 December 1999

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

"In respect of

PHAM Quoc Hung also known as HA Duc Anh,

1 who was transferred from the Perth Immigration Detention Centre on

30 July 1999;

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

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

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

I am able to report the following:

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

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

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

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

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

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

2.9 Other findings

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

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

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

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

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

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

"4.4 Detainee with a history of violence

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

.....................

4.6 Detainee with a history of sexual offences or drug offences

4.6.1 Where a decision has been made that:

due to a history of sexual offences or drug offence; or
there is reasonable suspicion that the detainee has had involvement with i.e. taking or supplying prohibited drugs at the IDC;

there are reasonable grounds to believe that a detainee poses a risk to other detainees at the IDC. Or,
that the admission of such a person to the IDC would pose a risk to detainees in the IDC;

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

............................

4.8 Escape (attempted or successful)(3)

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

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

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

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

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

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

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

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

................................

Alice Erh-Soon Tay

President

Date:

13/11/01

1 By the time of Commissioner Sidoti's preliminary findings, Mr Ha had been deported from the country and his whereabouts were unknown.

2 Human Rights and Equal Opportunity Commission, "Those Who've Come Across the Seas: Detention of Unauthorised Arrivals", HRC Report,

11 May 1998.

3 Pursuant to sections 198 or 199 of the Migration Act.

4 Minus the annexures

5 See the summaries of the complainant's letters to the Commission in section 3 above.

6 Which at that time relevantly provided: "Where a Justice or Justices convicts or convict a defendant who is not present, the Justice or Justices may issue a warrant for the apprehension of the defendant for the purpose of the defendant's being brought before a Justice or Justices for sentencing".

7 See the Minutes recording the reviews of those dates (which are partially extracted above).

8 Indeed, in a letter dated 9 March 2000 (referred to in section 4 above), DIMIA appeared to accept that the conditions at the Prison involved the complainant being confined to his cell 22 hours per day.

9 Secretary, Department of Defence v HREOC, Burgess & Ors (1997) 78

FCR 208.

10 I note recommendations made in the Commission's report entitled Those Who've Come Across the Seas: Detention of Unauthorised Arrivals (tabled in Federal Parliament in 1998) that sections 189 and 196 of the Migration Act be repealed and replaced with a system requiring that all unauthorised arrivals be assessed to gauge their suitability for release on a bridging visa. At present only limited classes of detainees held under section 189 and 196 may be released from detention if they satisfy restrictive criteria for bridging visas.

11 Adopted by UN General Assembly 16 December 1966. Signed for Australia 18 December 1972. Instrument of ratification, with declarations and reservations, deposited for Australia 13 August 1980. Entry into force for Australia 13 November 1980 (UNTS 1197 p411).

12 U.N. Doc. HRI\GEN\1\Rev.1 at 33 (1994).

13 See Nos. 4,5,7,8/1977; Nos. 25,28,30,33,37/1978; Nos. 49, 63/1979; Nos. 73,80/1980; Nos.88, 107,110/198 1; No. 115/1982; No. 159/1983; No. 188/1984; No. 240,242,255/1987; Nos.270, 27 1, 277/1988; M Nowak UN Covenant on Civil and Political Rights ICCPR Commentary 1993 at pp 86; D McGoldrick The Human Rights Committee 1994, chapter 9, pp367l.

14 M Nowak, op cit at p186.

15 M Nowak, op cit p188.

16 HRC Report No 10, Report of an Inquiry into a Complaint of Acts or Practices Inconsistent With or Contrary to Human Rights in an Immigration Detention Centre (available at https://humanrights.gov.au/)

17 See eg McLeod v Jamaica, No. 734/1997; Shaw v Jamaica No 704/1996; Taylor v Jamaica No. 707/1996 and Morgan and Williams v Jamaica, No 720/1996.

18 No. 253/1987

19 No. 410/1990.

20 The Standard Minimum Rules were approved by the UN Economic and Social Council in 1957. They were subsequently adopted by the UN General Assembly in resolutions 2858 of 1971 and 3144 of 1983: UN Doc.A/COMF/611, Annex 1.

21 General Comment 21 (UN doc HRI\GEN\1\Rev.1 at 33 (1994)).

22 UNHRC UN doc CCPR/C/79/Add/50 (1995)

23 No. 253/1987

24 M Nowak, op cit at p.748, 749.

25 Ibid, p. 773.

26 1969, ATS 1974 No.2, entry into force for Australia and generally on

27 January 1980.

27 Maleki v Italy UNHRC 699/96

28 See paragraph 5.6 of Commissioner Sidoti's Preliminary Findings

29 For further discussion on the effect of reservations, see Joseph, S and Others, "The International Covenant on Civil and Political Rights" (2000) OUP, Chapter 25.

30 Commonwealth of Australia v O'Donohue [1979] VR 441 at 455-7 per Menhennitt J. See also Waterford v The Commonwealth (1987) 163 CLR 54 at 55 per Mason J.

31 See UN document CCPR/C/42/Add.2. For its consideration by the committee see CCPR/C/SR.806-809 and Official Records of the General Assembly, Forty-third Session, Supplement No. 40 (A/43/40), paragraphs 413-460.

32 See UN document CCPR/C/AUS/98/3. This report covered the period from 1987 to December 1995.

33 See UN document CCPR/C/AUS/98/4.

34 First periodic report, paragraphs 205-206; Second periodic report, paragraph 294, Third periodic report, paragraph 625.

35 First periodic report, paragraphs 205-206; Second periodic report, paragraph 296; Third periodic report, paragraph 628.

36 Second periodic report, paragraph 297.

37 Third periodic report, paragraphs 627-628.

38 Third periodic report, paragraphs 629-636.

39 Third periodic report, paragraph 636.

40 Fourth periodic report, paragraphs 76-78.

41 Cabal v Secretary Department of Justice (Victoria) [2000] FCA 1227

42 Cabal v Secretary Department of Justice (Victoria) [2000] FCA 949

43 I note that, while this is a matter yet to be decided by an Australian Court, Marshall J considered a submission to that effect in Luu v Minister [2001] FCA 1136 at [76], but did not find it necessary to rule on that submission.

44 Bossuyt M "Guide to the Travuax Preparatiores of the International Covenant on Civil and Political Rights", (1987) Martinus Nijhoff Publishers.

45 See letter from the respondent of 23 August 2000, extracted above.

46 United Nations Human Rights Committee, General Comment No. 8, (1982), UN/HRI/GEN/Rev.4, paragraph 1.

47 For example, in many IDCs detainees are able to prepare their own food. Detainees are not able to do so in State prisons.

48 Spakmo v Norway, Communication No. 631/1995, CCPR/C/67/D/631/1995; A v Australia,560/93, CCPR/C/59/D/560/1993 (30 April 1997); Concluding Comments Regarding Switzerland (1996), CCPR/C/79/Add.70.

49 Communication No. 305/1988, CCPR/C/39/D/305/1988 .

50 See paragraph 3.4 of MSI 244

51 Which are summarised in section 3 above.

52 I note that paragraph 3.3 of MSI 244 refers more broadly to "cases" involving "past or current narcotics use or distribution". However, as noted above, section 3.3 does not appear to me to be intended to give a detailed guide to the matters which are to be taken into account for the purposes of a transfer decision. The precise grounds are set out in section 4 of the MSI.

53 which is the issue required to be considered under paragraph 4.6.1 of MSI 244

54 See para 4.8.4 of MSI 244.

55 See eg Pollitt v R (1992) 174 CLR 558 and section 165 of the Evidence Act 1995 (Cth).

56 "Spent Convictions", Australian Law Reform Commission Report No 37 (1987) AGPS, page 53 [78].

57 A v Australia, Communication No. 560/1993.

58 Report of an Own Motion Investigation into Immigration Detainees held in State Correctional Facilities, March 2001.

59 Op cit, p 129 see r6.12.

60 Human Rights and Equal Opportunity Commission, 1998, at page l29.

61 Van Alphen v the Netherlands, Communication No. 305/1998.

62 A v Australia, Communication No. 560/1993.

63 Cited above

Last updated 27 June 2002.