Those who've come across the seas
Detention of unauthorised arrivals
© Commonwealth of Australia 1998.
This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Human Rights and Equal Opportunity Commission. Requests and inquiries concerning reproduction and rights should be addressed to the Executive Director, Human Rights and Equal Opportunity Commission, GPO Box 5218, Sydney NSW 1042.
National Library of Australia Cataloguing-in-Publication entry
Those who've come across the seas: detention of unauthorised arrivals.
ISBN 0 642 26958 0
1. Refugees – Government policy – Australia. 2. Refugees – Services for – Australia. 3. Detention of persons – Australia. 4. Aliens – Institutional care – Australia.
I. Australia. Human Rights and Equal Opportunity Commission.
325.210994
Design and layout by jodey wills art & design.
Printed by J.S. McMillan Pty Ltd.
... For those who’ve come across the seas
We’ve boundless plains to share ...
[Advance Australia Fair]
Humans Rights and Equal Opportunity Commission
11 May 1998
The Hon Daryl Williams AM QC MP
Attorney-General
Parliament House
Canberra ACT 2600
Dear Attorney
I present Those who’ve come across the seas, the report of the Commission’s inquiry into the detention of unauthorised arrivals in Australia.
Yours sincerely
Chris Sidoti
Human Rights Commissioner
Abbreviations
ACS Australasian Correctional Services Pty Ltd
AFP Australian Federal Police
APS Australian Protective Service
Authority Migration Agents Registration Authority
Body of PrinciplesBody of Principles for the Protection of All Persons under Any form of Detention or Imprisonment 1988
CEDAW Convention on the Elimination of All Forms of Discrimination Against Women 1979
Commission Human Rights and Equal Opportunity Commission
Complainant numbering PH – Port Hedland; V – Villawood; P – Perth; M- Maribyrnong
Council Refugee Council of Australia
CROC Convention on the Rights of the Child 1989
Department Department of Immigration and Multicultural Affairs
DIMADepartment of Immigration and Multicultural Affairs
ExComm Executive Committee of the High Commissioner for Refugees] Programme
ExComm Conclusion 44 Conclusion on ‘Detention of Refugees and Asylum Seekers’ 1986
General Comment General Comment by the UN Human Rights Committee
HREOC Act Human Rights and Equal Opportunity Commission Act 1986 (Cth)
ICCPR International Covenant on Civil and Political Rights 1966
ICESCR International Covenant on Economic, Social and Cultural Rights 1966
IDC Immigration Detention Centre
Migration Act Migration Act 1958 (Cth)
Migration Regulations Migration Regulations 1994 (Cth)
MSI Migration Series Instruction
Protocol Protocol Relating to the Status of Refugees 1967
RACS Refugee Advice and Casework Service (Victoria)
Refugee Convention Convention Relating to the Status of Refugees 1951
Refugee Protocol Protocol Relating to the Status of Refugees 1967
Religion Declaration Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981
Sex Discrimination Act Sex Discrimination Act 1984 (Cth)
Standard Minimum Rules UN Standard Minimum Rules for the Treatment of Prisoners 1957
STARRTS Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (NSW)
TIS Translating and Interpreting Service
Torture Convention Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 1984
UN Doc. United Nations Document (followed by a serial number)
UNHCR United Nations High Commissioner for Refugees
UNHCR Guidelines on Detention of Asylum Seekers 1985
Contents
Executive summary
Recommendations
Part 1 Background to the Inquiry
1 Background to the Inquiry
1.1 Introduction
1.2 Complaints to the Commission
1.3 Conduct of the Inquiry
2 Unauthorised arrivals
2.1 Migration legislation
2.2 Immigration detention
2.3 Refugee status determination
2.4 Boat people granted entry into Australia since 1989
Part 2 Human Rights Law
3 Detention and human rights law
3.1 Overview of human rights principles
3.2 Human rights and non-citizens
3.3 Rights relevant to detention of unauthorised arrivals
3.4 Rights relevant to the conditions of detention
Part 3 Conditions of Detention
4 Evaluation of conditions of detention
4.1 Introduction
4.2 Structure of analysis
4.3 Description of centres Port Hedland
4.4 Departmental duty of care and the contracting of services
5 Physical conditions of detention
5.1 Introduction
5.2 Human rights law relevant to physical conditions
5.3 Australian correctional institutions
5.4 Villawood
5.5 Perth
5.6 Port Hedland
6 Security
6.1 Authority
6.2 Physical layout
6.3 Surveillance
6.4 The use of force
6.5 Hunger strikes
6.6 Observation rooms
6.7 Transfer from Stage Two to Stage One at Villawood
6.8 Transfer to prison
6.9 Human rights law relevant to security in detention
6.10 Findings and recommendations on security measures in detention
7 Segregation
7.1 Conditions of segregation
7.2 Complaints
7.3 Conclusions
7.4 Human rights law relevant to segregation
7.5 Findings and recommendations on segregation within detention
Part 4 Services
8 Evaluation of services to detainees
8.1 Overview Port Hedland
8.2 Finding and recommendation on the provision of information
9 Interpretation and translation
9.1 Access to the Translating and Interpreting Service
9.2 On-site interpreters
9.3 Translation services
9.4 Human rights law relevant to interpretation and translation services
9.5 Findings and recommendations on interpretation and translation services
10 Medical services
10.1 Medical services at the Perth centre
10.2 Medical services at Villawood
10.3 Medical services at Port Hedland
10.4 Adequacy of medical care
10.5 Access to medical services
10.6 Use of medical opinion
10.7 Human rights law relevant to medical services
10.8 Findings and recommendations on medical services
11 Education and training
11.1 Elementary education for children
11.2 English tuition for adults
11.3 Vocational training
11.4 Additional educational resources
11.5 Human rights law relevant to education and training
11.6 Findings and recommendations on education and training
12 Recreation
12.1 Recreation at Villawood
12.2 Recreation at the Perth centre
12.3 Recreation at the Port Hedland centre
12.4 Human rights law relevant to recreation
12.5 Findings and recommendations on recreation
13 Religion and culture
13.1 Provision for religious expression
13.2 Management of religious difference
13.3 Human rights law relevant to religion and culture
13.4 Findings and recommendations on religion and culture
14 Provision of legal assistance
14.1 Interpretations of the Migration Act
14.2 Complaints
14.3 Access to lawyers at Port Hedland
14.4 Quality of assistance
14.5 Human rights law relevant to the provision of legal assistance
14.6 Findings and recommendations on the provision of legal assistance
Part 5 Accountability
15 The human cost of detention
15.1 Case study
15.2 Prolonged detention
15.3 Conclusions and relevant human rights law
15.4 Findings and recommendations on accountability
Part 6 An Alternative Model
16 Alternatives to detention
16.1 Transfer of responsibility for refugee determination
16.2 Alternative detention model
Appendix 1 - Boat arrivals since 1989 - alphabetical
Appendix 2 - Boat arrivals since 1989 - chronological
Appendix 3 - Participants in the Inquiry
Executive summary
Introduction
This report addresses the human rights dimensions of two issues. The first is Australia’s policy of holding in detention most people who arrive without a visa pending a determination of their refugee status and admission to or removal from Australia. The second is the conditions, services and treatment for detainees at three of the four immigration detention centres, Port Hedland, Villawood and Perth, with a focus on Port Hedland where the majority of unauthorised arrivals, particularly boat arrivals, are held.
Mandatory detention
The policy of mandatory detention of most unauthorised arrivals breaches international human rights standards which permit detention only where necessary and which require that the individual be able to challenge the lawfulness of his or her detention in the courts. Children and other vulnerable people should be detained only in exceptional circumstances (Recommendations 3.1-4, 16.2). These standards are incorporated into Australian law.
Prolonged detention
The policy of mandatory detention leads to prolonged detention in many cases. Many of the conditions of detention described in this report would be acceptable over a short term. They become unacceptable, however, when detention is prolonged. In those circumstances they violate Australia’s human rights commitments.
Education and vocational training, welfare services, recreation facilities, provision for religious and cultural observance and access to specialist medical services would not be required or would not be required at a high standard during short-term detention. Human rights law, however, requires that, when detention extends for several weeks or months as at present and for several years as still occurs too frequently, an appropriate standard of services be provided.
Assessment of overall conditions and services
The conditions of detention are inadequate and in violation of human rights when people, especially children and other vulnerable people are detained for prolonged periods. Australia is obliged to promote the well-being of children. Detention is permissible only when it is necessary.
Insufficient resources are provided for education services in the detention centres (Recommendations 11.1-8). In general there is inadequate recognition of the common experience of detainees of traumatic events and even torture (Recommendations 10.2, 10.10-16).
Access to legal assistance and advice is critical to the individual’s assertion of his or her human rights including the right to apply for release from detention. Australia effectively denies the right of access to and protection of the law by failing to inform detainees of their rights (Recommendation 14.1; see also Recommendations 14.2-7).
Security measures within the detention centres have sometimes exceeded what is necessary to prevent escapes and to maintain order. Improved communication and reduced periods of detention will go some way to reducing the frustrations of detainees (Recommendations 6.1-17, 8.1, 9.4-5, 15.1-3).
The conditions, services and treatment of detainees vary markedly among the centres. Significantly enhanced external monitoring of the detention centres is needed to ensure compliance with human rights commitments (Recommendations 15.4-5).
Conditions and services at Port Hedland
Most boat arrivals are held at the Port Hedland detention centre which is remote and difficult to access. Conditions at Port Hedland are adequate on the whole during periods when the detainee population is within capacity (Recommendations 5.12-15, 10.6). However, the conditions have violated human rights standards when numbers at the centre have been high.
The segregated detention of new arrivals at Port Hedland sometimes exceeds what human rights law considers justified both in terms of its duration and in terms of its features, some of which resemble incommunicado detention (Recommendations 7.1-6).
Conditions and services at Villawood Stage One
Villawood Stage One is a medium-security facility in Sydney. It is used to accommodate people whose behaviour becomes difficult to manage, who develop a medical condition requiring observation or who are awaiting removal from Australia. Relatively few boat arrivals are detained at Villawood.
Although Stage One is designed for short-term accommodation, people have been held there in excess of seven months. Dormitory accommodation, restrictions on movement, very limited recreational facilities and education opportunities and overcrowding make Stage One unsuitable for more than short-term detention (Recommendations 5.1-6). In these circumstances detention in Villawood Stage One violates human rights.
Conditions and services at Villawood Stage Two
People are detained at Villawood for periods ranging from 24 hours to more than four years. Accommodation in Stage Two is in small flats and the buildings are surrounded by large areas of open space. Recreation, education and medical services and facilities should be improved (Recommendations 10.1, 10.7, 11.1, 12.1, 12.4).
Conditions and services at Perth
The Perth immigration detention centre is a medium-security facility located at Perth Airport. It is designed, like a police lock-up, for overnight and other very short-term detention pending deportation. In August 1997, however, one-quarter of the detainees had been held there in excess of six months. The dormitory accommodation and consequent loss of privacy, surveillance cameras throughout, inadequate natural lighting and ventilation, the absence of welfare officers and on-site interpreters, the very limited recreational opportunities and absence of external recreation facilities (only a small open-air exercise yard enclosed by a 20 foot brick wall is available), restrictions on movement, and very limited educational services make detention at Perth for longer than seven days inhuman and degrading and a serious violation of human rights (Recommendations 5.7-11, 12.3).
Recommendations
Recommendations on the use of detention
R3.1In accordance with international human rights law the right to liberty should be recognised as a fundamental human right. No-one should be subjected to arbitrary detention. The detention of asylum seekers should be a last resort for use only on exceptional grounds. Alternatives to detention, such as release subject to residency and reporting obligations or guarantor requirements, must be applied first unless there is convincing evidence that alternatives would not be effective or would be inappropriate having regard to the individual circumstances of the particular person. A detailed model for conditional release is set out in Chapter 16.
R3.2The grounds on which asylum seekers may be detained should be clearly prescribed in the Migration Act and be in conformity with international human rights law. Where detention of asylum seekers is necessary it must be for a minimal period, be reasonable and be a proportionate means of achieving at least one of the following legitimate aims
- to verify identity
- to determine the elements on which the claim to refugee status or asylum is based
- to deal with refugees or asylum seekers who have destroyed their travel and/or identification documents to mislead the authorities of the state in which they intend to claim asylum and
- to protect national security or public order.
The detention of asylum seekers for any other purpose is contrary to the principles of international protection and should not be permitted under Australian law.
R3.3Detention is especially undesirable for vulnerable people such as single women, children, unaccompanied minors and those with special medical or psychological needs. In relation to children article 37(b) of CROC states that the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. Children and other vulnerable people should be detained, even as permitted by R3.2, only in exceptional circumstances. For children, the best interests of the individual child should be the paramount consideration.
R3.4 Detention should be subject to effective independent review. Review bodies should be empowered to take into consideration the individual circumstances of the non-citizen including the reasonableness and appropriateness of detaining him or her. Review bodies should be empowered to order a person’s release from detention. The lawfulness of detention should be subject to judicial review. Migration Act sections 183, 196(3) and 72(3) so far as they provide that the Minister’s discretion is personal and non-compellable should be repealed.
Recommendations on the physical conditions at Villawood immigration detention centre
R5.1The Department should cease using Stage One at Villawood for the long-term detention of unauthorised arrivals.
R5.2Women and children should not be held in Stage One for any period of time.
R5.3Stage One should be used only for the short term detention of men awaiting transfer to either Stage Two or an immigration detention centre other than Perth. These detainees should be transferred as soon as possible and in any event before the expiry of seven days’ detention.
R5.4The decision to detain a person in Stage One should be reviewed every 48 hours.
R5.5The number of adult detainees held in Stage One should be reduced to no more than 25 to avoid overcrowding.
R5.6The Department should fund the refurbishment of Stage One and
- afford detainees access to sleeping quarters at all times, as recommended by the Human Rights Commission in 1983
- provide sufficient chairs to allow all detainees a place to sit in the recreational areas
- open the grassed areas to detainees from 6.00am to 9.00pm each day
- install adequate shade provision in outside recreational areas so that they can be used in the summer months
- make provisions for greater privacy for detainees sleeping in dormitories, perhaps including the construction of private separate rooms to sleep no more than four detainees.
Recommendations on the physical conditions at Perth immigration detention centre
R5.7The Perth Immigration Detention Centre should be used only for the short-term detention of people awaiting transfer to an immigration detention centre other than Stage One at Villawood. The Department should cease using this centre for the long-term detention of unauthorised arrivals. Adult detainees should not be held in the Perth centre for more than seven days.
R5.8The decision to detain a person in the Perth centre should be reviewed every 48 hours.
R5.9As at present, children and families should not be detained in the Perth Immigration Detention Centre.
R5.10Female detainees should not be held at the Perth Immigration Detention Centre for any period of time due to the gender imbalance in detainee numbers and the nature of the conditions for female detainees.
R5.11The Department should refurbish the Perth Immigration Detention Centre and
- provide sufficient chairs and tables to allow all detainees a place to sit in the recreation areas
- install adequate shade provision in open-air recreational areas so that they can be used in the summer months
- examine the availability of outdoor recreational facilities, such as park land, near the Perth centre and make arrangements for the regular use of these areas by detainees
- make provisions for greater privacy for detainees sleeping in dormitories, perhaps including the construction of separate rooms to sleep no more than four detainees.
Recommendations on the physical conditions at Port Hedland immigration detention centre
R5.12All the gates between the main compound and the administration area should generally be left open, allowing detainees to move freely around centre.
R5.13There should be an independent review, perhaps conducted by the Australian Federal Police, into whether the system of internal fencing is still required at the centre. The review should give consideration to, firstly, the security objectives achieved by the fences and, secondly, whether the restrictions placed on detainees’ freedom of movement are justified by these security objectives.
R5.14Detainees should be provided with access to the beach at least once a week. A pilot program should be begun to allow long-term detainees and families to have unsupervised access to the beach on a regular basis.
R5.15Increased shade should be provided in the outside areas, creating more spaces that detainees can use during the day.