Chapter 6 - Mandatory detention in practice
Following the previous chapter's consideration of the
background and evolution of the policy of mandatory detention, this chapter focuses
on the conditions of detention and treatment of detainees in Australian immigration
detention centres. Under domestic law the Commonwealth and private contractors
involved in the delivery of detention services owe a duty of care to detainees.
As noted in Chapter 5, international standards also apply to the detainees,
including non nationals in immigration detention.
Evidence to this inquiry raised concerns in relation to
eight matters, which are listed below:
The use of detainee labour
Penal approach to immigration detention
Allegations of mistreatment
Access to detainees by lawyers, health
professionals and other visitors
Health standards and medical care of detainees
Mental health care
The chapter concludes with a discussion of proposals
for alternative approaches to mandatory detention.
The use of detainee labour
The use of detainees to perform tasks that would
normally be undertaken by employees of GSL or its subcontractors is relevant to
the concerns expressed by the Social Justice Committee of the Conference of
Leaders of Religious Institutes (NSW). The Committee was informed that
detainees may voluntarily undertake work which is related to the normal
functioning of the centre. Detainees are awarded the equivalent of $1 per hour
of value under a merit point system, which may be spent in the cafeteria on
confectionary, tobacco or phone cards or other personal items.
The committee notes that during a visit to Villawood
there were only two paid workers and 17 detainees working in the kitchen. DIMA and GSL were questioned on the
prevalence of this practice. The Committee also sought information on:
how many detainees are engaged in work within
detention centres; and
whether there are explicit obligations contained
in the contract, which require a minimum level of staffing to be provided by
DIMA advised that
The provision of the 'merits
point' system is required under the contract
between DIMA and GSL. It is administered by GSL and operates within a framework
agreed by the Department. This includes an operational procedure which
addresses the practical implementation of the merits point system.
The committee is aware that GSL is prohibited from
employing detainees but must provide 'meaningful
activity'. Nevertheless, the committee is
concerned that work normally performed by paid employees is being carried out
by detainees for minimal reward. In this context the practice offers an obvious
financial benefit to the contractor and subcontractors.
Media reports indicate that an asylum seeker, at the Villawood
IDF, has initiated proceedings in the
Federal Court, seeking an injunction to stop DIMA, GSL and Delaware North
Companies Australia Pty Ltd from employing detainees under the merit system
claiming that it has no legitimate basis in law. The argument in that case is that work
is not undertaken on a voluntary basis because detainees have:
... no choice but to work, because visitors could not bring them
more than $10 a visit, there was no ATM within the detention centre to withdraw
their own money and the federal Government charged detainees about $130 a day
to stay there.
The committee also received further evidence from Thea
Birss, Principal Solicitor for Refugee Advocacy
Service of South Australia (RASSA) concerning the use of the merit point system
at Baxter IDF:
We referred Senator Ludwig's
query to DIMA staff at the Baxter
IDF but have received no response to date.
We are advised by a former detainee recently released that GSL received the
money detainees paid to send faxes. Faxes, like photocopying cost around $1 per
page. This money was paid on a points system as cash is not allowed in Baxter
Detainees were required to pay upfront and even if faxes were
urgent or addressed to lawyers they would not be sent if a detainee has
insufficient points. In 2005 a complaint was brought to the managers of DIMA
and GSL at Baxter about a detainee being unable to send a fax
to his lawyer because he had insufficient points and they confirmed GSL's
position that he was not permitted to send the fax.
Detainee labour raises an important public issue. In
the context of detention, where detainees are dependent on centre management
and have little or no access to cash, the merit point system is open to abuse. The
committee is concerned that exploitative practices have been allowed to
Among the issues that need to be addressed is the
number of hours worked; the level of remuneration and the health and safety of
detainees when performing such labour. During hearings DIMA agreed that there
was no specific limit to the number of hours of work that could be performed
and no specific standards relating to detainee labour but general standards
relating to the dignity of the person would apply. DIMA subsequently advised that:
the Meaningful Activities program at each detention centre is
managed by GSL. Like all other activities there is a regular audit. Audits
cover areas such as:
- suitability of the activities made available
through the program;
- detainee access to the program;
- the allocation and redemption of 'merit
points' by detainees; and
- training and OHS issues arising from detainees
participating in the program.
Any issues arising from these audits are raised directly with
GSL to ensure that they are addressed.
DIMA would also use the complaints process in a positive way to
identify any potential concerns in this area. This could include complaints to
the Office of the Ombudsman, Members of Parliament and the Office of the Human
In light of the systemic problems in the oversight of
the contract and the Immigration Detention Standards, the committee finds no
comfort in DIMA's response. While involvement
in meaningful activity is crucially important to the health and wellbeing of
detainees, work related activity is not a substitute for a structured activity
The committee is also extremely concerned about the
level of voluntariness of those participating in work related activity. Forced
labour is prohibited under international law. In the prison context exemptions
which apply to criminal detainees, expressly prohibit compulsory labour for the
benefit of private individuals, companies even where a public authority has
legal oversight. The use of
detainee labour in private prisons for activities related to running the
facility remains prohibited and is a controversial in the international arena.
Immigration detainees are equally vulnerable to exploitation and warrant no
In addition, access to the outside world, particularly
to lawyers and therefore to the court, is a fundamental human right. Impeding
access to the outside world is likely to place Australia
in breach of its international human rights obligations and warrants
The committee recommends that the use of detainee
labour should be subject to independent investigation by the Ombudsman or HREOC
and re-examined as part of the review of the immigration detention services
Penal approach to immigration detention
Some witnesses opposed the use of a company whose core
business is security and prison management and, what they regard, as a penal
approach to immigration detention.
It was claimed that staff at detention centres are
often ex-prison officers and are not trained appropriately to deal with
immigration detainees, in particular detained asylum seekers. It was also
argued that personnel frequently lack the necessary understanding of the trauma
many detainees have suffered, the psychological impact of these experiences and
the effects of detention. This has often unnecessarily led to detainees
becoming frustrated, agitated and on some occasions aggressive. The Torture and Trauma Assistance
and Rehabilitation Service (STTARS) told the Committee that:
Detention centre staff have little experience of, or training
in, recognising or working with mental disorders and can be unsympathetic and
unskilled in their management strategies. When disorders manifest the custodial
response is to manage the behaviour by placing the individual in isolation
under surveillance which in turn often exacerbates the problem.
Frustration and conflict was also attributed to
the lack of understanding of cultural difference by detention staff. In
relation to Baxter, the Palmer Inquiry found many instances of
poor communication and cultural approaches to communication being
misinterpreted, creating unnecessary misunderstanding. The Federation of
Ethnic Communities' Council of Australia
(FECCA) considered the lack of cultural understanding a particular problem.
They said that:
It is vitally important
that there be clear guidelines and protocols for management of detention
centres that ensures that human rights are upheld, that people be treated with
compassion and concern for their physical, emotional, spiritual and
The committee was told that the emphasis on security
means the environment of detention centres is very similar to a correctional
facility and practices often reflected those used in prisons and detainees were
often seen as trouble-makers. Certain practices were regarded as
inappropriate and unnecessary and often the source of considerable distress to
detainees. Some of the practices referred to include detainees being required
to sleep with lights on, waking detainees at night to check on them and failure
to take into account cultural issues, particularly in relation to women.
The committee was concerned by evidence about
the use of behaviour management techniques. Dr Newman
told the Committee:
We have been particularly concerned about the misuse, in our
opinion, of so called behavioural principles, largely because those principles
and practice have in some cases been used in a punitive way – merely for the
purpose of maintaining behavioural control, with the fundamental problem of a
lack of understanding of the reasons behind disturbed behaviour... The
fundamental problem, particularly in the behaviour management unit Red 1 in Baxter,
is the way that simplistic psychological models are applied to really complex
and very disturbed people which, in effect, means that those people are
potentially made worse by the treatment they receive.
In a similar vein Dr
The fact that they are labelled as behaviour management
strategies gives them some kind of credence. It is an extremely punitive
program. The program talks specifically about rewards; there are no rewards.
People have absolutely everything taken away from them and then gradually get
some of it given back. It is at times almost a sadistic mentality.
RASSA said that 'management units'
are in effect isolation cells which have been used to punish detainees and
should be abolished. They described the Management Unit at Baxter
in the following terms:
The Management Unit is about 3 metres square, contains a
mattress and no other furniture. Fixed upon the wall is a closed circuit TV
camera which observes and records the inmate’s movements at all times. The cell
is always lit. There is no view of anything outside the room. There is a small
frosted window up high which lets in some light. In the past detainees have
been confined to their cell for more than 23 hours in each day. 
Report describes the Management Unit as
being comprised '10 single rooms, each with a
door, a window, toilet and shower facilities and a mattress. Detainees are
permitted limited periods in outside courtyards.'
The committee notes that the processes, procedures and
practices of Red One behaviour management compound and the Management Unit at
Baxter Immigration Detention Facility are listed as an area of concern
previously raised by the Commonwealth Ombudsman with DIMA. DIMA advised that the operational
procedures were developed in consultation with the Ombudsman Office. Nevertheless,
evidence given by Dr Newman
suggests grounds for continuing concern about the use of restrictive detention,
particularly its appropriateness where a person may be suffering mental
disorder. The fact that the majority of detainees do not experience Red One does
not lessen the importance of those concerns.
A Just Australia complained that 'behaviour
modification' is unregulated:
This regime is a prime example of the
unregulated nature of conditions within the overall migration detention regime.
It is hard to find any lawful basis for allowing detention officers employed by
a private company the power to arbitrarily impose the punishments of separation
and isolation on people who have never been charged nor found guilty of any
offence. The use of isolation and separation, its legal and welfare
ramifications, needs to be investigated by an independent judicial body.
QC also criticised the lack of a clear legal basis for the use of a further
deprivation of liberty:
... That is the largest problem – the fact that they do not know
when, if ever, they are going to be released. Within that context, the use of
solitary confinement without any regulation is an additional problem of very
grave proportions. I see that the latest MSI looks as though it is addressing
the way in which solitary confinement will be used, but, so far as I am aware,
there are still no regulations that dictate and restrict the way in which
solitary confinement can be used.
That stands in marked contrast to the prison system, where even
the worst convicted criminal cannot be put in solitary confinement without a
very clearly defined process which is subject to judicial review if misused. It
is very hard to see why a private operator of a detention centre should be
allowed to put people in solitary confinement without any preconditions at all
and, for practical purposes, without any judicial oversight.
In response to these criticisms DIMA refuted the claim
that 'solitary confinement'
is used in IDFs but conceded that 'restrictive
detention' is and that:
Unless specific reasons exist, no restrictions are imposed on
the detainee's freedom of movement within the
compound, on their use of telephone or association with other detainees within
the same compound ... .
In cases where transfer is being considered due to behavioural
concerns, detainees are notified, except in emergencies, of the reasons why
they are being considered for transfer and given the opportunity to avoid such
a transfer. Where transfer occurs, a care plan agreement may be formulated
between the detainee and the Placement Review Team (PRT). The goal of these
agreements is to facilitate the detainee's
return to general accommodation as quickly as possible. Restrictions are not
imposed, and return to general accommodation is not delayed, simply because a
detainee declines to participate in such programs or agreements. Rather, the
PRT conducts a daily assessment to ensure that no other, more appropriate,
alternative placement exists.
MSI 403: transfer
of detainees within immigration detention facilities sets out the basic
policy and procedure to be used when moving a detainee to 'restrictive
detention' or a 'management
unit' within a centre. 'Restrictive
detention' is described as one aspect of a
behaviour management strategy 'which aims to
achieve constructive participation by detainees in the daily life of the IDF'
and is part of a ' multifaceted approach...which
is incentive and progress based'. The
strategies listed include:
behaviour management agreements,
restrictions of movement to specific areas
within the compounds,
restriction of movement to individual rooms; and
restriction on the periods of access to specific
areas of the IDF.
If the detainee is placed in restrictive detention the
requirement for contact by the DSP case manager is weekly, as opposed to
transfers to a management support unit or self harm unit which require daily
The committee also notes that MSI 403 envisages that limitations
on a person's communication with other detainees
and the outside world may occur in certain circumstances. Paragraph 3.4.40
states that a behaviour management agreement should be specific to the
individual and include, among other things, 'access
to amenities and visitors'.
The core issue is whether the use of 'behavioural
management techniques' is appropriate in a
non-punitive administrative detention environment and requires further
investigation. The use of these practices without clear legal authority is also
a matter of concern. There is wide discretion left to centre management as to
the reasons, duration and conditions of restrictive detention and minimum standards
and procedural rights are not directly enforceable. Nor is there any regular
independent administrative or judicial oversight built into the system as a
protection from abuse of power.
The committee considers that the unregulated use of
segregation and restrictive detention for disciplinary purposes has no place in
a non-punitive administrative detention environment. Strict regulation of the
use of separation detention is essential and should only be permitted where it
is necessary to protect the life of the detainee or is strictly necessary to
protect the safety of others. In these circumstances, the minimum level of
segregation necessary to achieve that objective and for the shortest possible
time should the guiding principle.
health needs of detainees and the use of behaviour management techniques is
discussed further below.
The committee recommends that the use of behavioural
management techniques and restrictive detention be re-examined as part of the
government's proposed review of the
immigration detention contract. The committee further recommends that HREOC and
the Royal Australia
and New Zealand College
of Psychiatrists and other stakeholders be consulted during the process.
The committee recommends that the 'management units' be
closed. In the alternative, their use should be limited for short periods not
exceeding twenty-four hours in cases of emergency.
The committee recommends that all measures which
constitute a further deprivation of liberty within a detention centre be
established by law, the grounds and procedural guidelines should be specified
and procedural safeguards enforceable in the general courts.
Allegations of mistreatment
The committee is particularly concerned by allegations
that detainees have been abused by detention staff.
Lascaris, a visitor to Baxter Detention
Centre for nearly two years, referred to two examples. The first concerned an
alleged assault by '8 guards'
which resulted in the detainee being hospitalised for two days in Port Augusta
hospital. The alleged assault had not been reported as the detainee not only
feared reprisal from detention centre staff but also feared that it could
adversely affect his appeals which were still pending. The second case involved
an allegation that a nurse from Glenside hospital had
reported that the detainees had felt intimidated by the 'GSL
guards' stationed outside the ward, who they
claimed had previously 'bashed them with
Several witnesses attested to a culture of impunity
within detention centres. For example, Mr
Jamal A Daoud
described the atmosphere based on his experience of visiting detainees:
... there is a deep feeling among detention authorities, officials
and workers that they have an absolute mandate to do whatever they wish, with
no real prospect of losing anything, been [sic] disciplined or ending up in
courts for any reason or acts they may commit. During my regular visits to
Villawood, this was very clear. On many occasions I (or other Australian
citizen visitors) threatened to take actions against security, officials or
manager, and we were confronted with the simple answer: do whatever you want... .
The workers in these detention centres feel that they are immune
from any accountability ... There were many reports about security guards accused
of mistreating detainees, for whom the government facilitated departure from
Australia – presumably to avoid their prosecution here. Some of them went to New
Zealand, and some of them were even
transferred to work in the Nauru
detention centre, away from any accountability.
The committee also notes recent media reporting of an
alleged assault by two officers during the reception of a man into Villawood
IDF. It was reported that the man sustained
a fractured wrist and, although the officers were reported to the police, the
men were suspended for three months but the matter was 'dropped'
after the detainee was deported. The article suggested that no further
disciplinary action was taken because GSL had failed to train the staff – in
breach of the contractual obligation to do so.
A Just Australia also expressed concern about:
... the number of
allegations of serious abuse, assault and breaches of duty of care made by
people within the detention environment. Yet in the face of these numerous
serious allegations, not one major complaint has been upheld. Conversely, many
detained people have been found guilty of major and minor behavioural infractions,
resulting in penalties from isolation and segregation within the migration
detention centres, up to prison terms. It is difficult to accept that every
single allegation made by detainees is unfounded. This therefore makes it
difficult to accept that the Department is the proper oversight body for
conditions in migration detention centres.
The committee is concerned about the reluctance to
use existing complaint mechanisms, which suggests a systemic weakness in
accountability arrangements. Cases of alleged corruption, intimidation and
abuse of power raise significant issues concerning the supervision and
accountability of detention centre staff. It is the responsibility of centre
management to ensure that staff are properly trained and supervised and
disciplinary procedures are implemented.
It is a matter of particular concern if conduct that is likely to
constitute a criminal offence has not been reported to police authorities for investigation. The forthcoming review of the
detention services contract should examine and recommend concrete steps to
combat criminal activity and the culture of impunity. The internal complaint
processes should be reviewed and the adequacy of mechanisms for confidential
complaints and protection from victimisation examined.
The committee also notes that amendments to the Migration Act 1958 on 30 November 2005 now enable the
Ombudsman to contact an immigration detainee where that person has not made a
complaint to the Ombudsman. However, no comparable provision was made to permit
HREOC a similar role, although HREOC is the Commonwealth body with a specific
human rights jurisdiction. A system of regular official visits by an independent
complaints body should be instituted. The committee considers that this function
is best shared and performed cooperatively by HREOC and the Commonwealth
The committee recommends that the forthcoming review of
the detention services contract include specific examination of internal
complaint processes including, among other things, mechanisms for confidential
complaints and protection from victimisation.
The committee recommends that the Migration Act be
amended to provide HREOC with an express statutory right of access to all
places of immigration detention;
The committee recommends that a system of regular
official visits by an independent complaints body be instituted and this
function be performed cooperatively by HREOC and the Commonwealth Ombudsman.
Access to detainees by lawyers,
health professionals and other visitors
Access to lawyers, health professional and other
visitor was a particular area of complaint. The remote location of some IDFs was
cited as a significant impediment to access to services. FECCA and the Catholic Migrant Centre advocated the importance of locating
IDFs, in or close to, capital cities to ensure asylum seekers have reasonable
access to local service providers, community groups, faith representatives and
independent legal and migration advice.
QC also saw the problem as a systemic one arising from the fact that:
social worker, migration agents, lawyers and doctors are not
allowed ... to go there just in case someone needs their help. They can only go
there if someone asks for their help. But, by the nature of things, the people
who most need their help are probably least able to ask for it. Cornelia
Rau is a startling example of exactly that.
The rules on access to a lawyer were criticised as more
restrictive than that imposed in prisons. Ms
referring to the Cornelia Rau
case to illustrate the point, said:
I do not understand for the life of me why
I as a lawyer cannot go into Baxter without an appointment made by the client, a letter from the
client saying the area of law that is going to be covered and that they want to
instruct me. That was the problem with Cornelia Rau.
There were a number of people who were trying to get me to go and see her ... I
could not get in there without a request from her. She is ill - how is she
going to make a request that she needs to see a lawyer? If I want to go to
Yatala tomorrow to see someone who has been charged with the Snowtown murders ...
I can just go and see them. They will not ask me whether that person has asked
to see me. They will not ask me what area of law is being covered ... This is for
someone who has committed the most horrific crimes in South
Australia. If I want to go to Baxter,
I cannot do that.
In response, DIMA said that its policies are designed
to facilitate access to legal representation wherever possible:
However, in order to protect privacy of detainee and ensure
equal access to resource, there are certain requirements which must be met by
lawyers visiting immigration detention facilities.
... the Departmental Protocol requires lawyers to produce evidence
of their qualifications prior to receiving their initial access to a detention
facility. They are also required to establish their identity and provide
written evidence to the Detention Service Provider (DSP) that a detainee has
requested legal advice from them. Visits by lawyers for non-migration matters
are facilitated wherever operationally possible.
Prior to meeting with clients, legal representatives can make a
request to the Department, seeking permission to bring mobile telephones and
lap-top computers into an immigration detention facility.
Several organisations and individuals who visit
detainees also expressed concerns at the attitude of detention centre
management and staff towards them. They considered that obstacles had been put
in place to either restrict or deny their access to detainees. It was claimed
that rules on visits were continually being changed and a lack of communication
between detention centre staff often impacts on visitors being able to see
detainees. For example, it was
reported that following a written request being made as required by the
detention centre, permission to visit was cancelled without any explanation. And that restrictions on detainees
having access to mobile phones and the limited number of land phone lines
available in detention centres, means that access to detainees can be severely
The Hopestreet Urban Compassion also complained about inconsistency and
arbitrariness in visiting arrangements:
On one occasion children were denied
access where we had earlier been advised that they would be allowed in. On
another occasion visiting hours were different when we arrived to what we were
advised over the phone. Similarly different officers had different rules about
what could be taken in and varied in their attitudes to visitors. On one
occasion a gift for a detainee was held at the security desk for checking. The
gift never reached the detainee ...
The committee was particularly concerned about access
to patients. When questioned on about access to patients at Baxter
told the Committee he had:
... given up trying to get there in person, having encountered
some difficulties nine or 12 months ago. All the work I have done in recent
times has been by telelink. I do not know what would happen if I attempted to
go and see somebody there again now. I have not tried for some time. The only
way I have ever had any access to any detainees over the last year or so is
when it has been arranged by a lawyer.
At the last meeting that I was in Baxter for,
the operations manager from GSL behaved in a very intimidating and demeaning
manner towards me and my team of staff who were there. I have been told on
occasions that I could not go and see a particular person, that they did not
need expert child psychiatric input, and that they had services in there
readily available. After getting knocked back for a while and refused, if there
is a way that you can do it that works a bit better, you give up trying to gain
Limitations placed on chaplaincy and other pastoral
services in detention centres was another area of concern raised by several
witnesses. Despite DIMA having agreed in December 2004 to discuss the issue of
pastoral care in detention centres with a committee of the Catholic Church and
the National Council of Churches, they have continually declined to meet with
the committee despite numerous requests.
However, Mr John Ball, Manager, of the National Program on Refugees and
Displaced People, Christian Service, National Council of Churches in Australia
advised the Committee that 'a
number of church and other religious group representatives are meeting with
members of the immigration department to look at the issue of a protocol for
religious visitors to detention centres.'
The meeting had been arranged for 28 September 2005.
The committee observes that principles 18 and 19 of the
UN Body of Principles for the Protection of All Person under Any Form of
Detention apply to immigration detainees:
Principle 18 requires that a detained person
shall be entitled to communicate and consult with his legal counsel; that
adequate time and facilities must be allowed and access to counsel must not be
delayed, suspended or restricted 'save in
exceptional circumstances' that are 'indispensable'
to maintain security and good order'.
Principle 19 requires that a detained person
must have the right and shall be given adequate opportunity to communicate with
the outside world, subject only to reasonable conditions and restrictions as
specified in law or lawful regulations.
Based on the foregoing evidence the committee considers
that practices in Australian IDFs appear to impose unreasonable restrictions on
access to lawyers and other visitors, and fall short of acceptable standards.
Immigration detention is administrative detention. It is intended to be
non-punitive but is designed solely to prevent a person residing unlawfully in Australia
and to facilitate removal. Restrictions on access that go beyond those which
are unavoidable and inherent to the operation of a centre are not justifiable.
On this basis, it is unclear why these highly
restrictive measures are necessary. DIMA's procedural rules do in fact permit
the minimum of access to lawyers, visitors, communications etc, but are the
very minimum of the acceptable range. In the Committee's view, DIMA's
explanations, pointing to such matters as the protection of detainees' privacy,
do not seem very convincing. They seem in fact to be punitive in nature and
open to considerable abuse.
The committee recommends that the review of the
immigration detention services contract include a review of the Immigration
Detention Standards, Migration Series Instructions and Operational Procedures
and ensure that rules relating to access to detainees are consistent with
The committee recommends that the Migration Act be amended
to give effective recognition to the right of detainees to have access to
lawyers and other visitors, including medical and religious visitors.
The committee recommends that restrictions on access to
lawyers and other visitors imposed for disciplinary or behavioural management
purposes should be expressly prohibited.
Health standards and medical care of detainees
The health care of detainees, and in particular the
mental health of detainees was a major area of concern for a large number of
witnesses. The Committee notes that Schedule 2 clause 7.1.1. of the immigration
detention contract states:
The Department expects that detainees should be able to access
either in a facility or externally, a level and standard and timeliness of
health services, including optical and dental services, broadly consistent with
that available in the Australia community, taking into account the special
needs of the detainee population.
The Palmer Inquiry found in that, in relation to Baxter,
the operational standards did not discharge the duty of care and, in relation
to health care, clause 7.1.1. is fundamentally flawed because 'it
does not recognise that the detainee population has specific needs that
differentiate it from the broader Australian community. This is particularly
the case in relation to mental health care.'
The NSW Refugee Health Service is funded by the NSW
Department of Health to protect and promote the health of refugees. They
described the particular health needs of asylum seekers:
Key health issues for asylum seekers are often similar to those
of refugees arriving through the offshore refugee program, and include:
psychological distress; dental disease; under-managed chronic conditions (e.g.
diabetes, heart disease); exposure to TB and parasites; nutritional problems;
and injuries from war and/or torture. Health care needs may therefore be high.
Several studies in Australia
have demonstrated asylum seekers to be a highly traumatised population with a
high prevalence of depression, anxiety and post-traumatic stress disorder, and
that such problems are likely to be worsened by their experiences here.
The evidence in relation to health related matters
falls into five main areas of concern:
medical services are inadequate;
medical staff are poorly trained to deal with
the needs of detainees with disabilities and mental health issues;
essential medical treatment has been delayed;
recommended treatment has not been followed; and
requests for independent medical advice has been
Many witnesses questioned the quality and appropriateness
of health care generally. It was said that the type of medical treatment is
often left to nursing staff instead of a doctor which resulted in delays in
access to proper medical treatment.
Examples provided by witnesses included:
A Just Australia referred to a case where it was
alleged that a detainee who had broken his leg and who had x-rays taken the
next day was not taken to hospital for treatment until 3 weeks later.
Following a minor operation at the Pt Augusta
hospital a detainee's wound had become
infected for which he was initially offered Panadol. A doctor prescribed
antibiotics but these were not provided until two days later after a friend had
rung to inquire about his condition.
The daughter of a detainee, who was wheelchair
bound, was not referred to an occupational therapist for treatment during the 9
months that she was held in detention. It was not until she was released from
detention with her mother that treatment was arranged through the Red Cross.
It was argued that even in cases where independent medical
advice has been obtained this advice has not always been followed. It was
claimed that ex-detainees had advised that 'even
if they were successful in gaining a medical check-up by a specialist outside
detention, the prescribed medications would not be [bought.']
It was alleged that it is extremely difficult for
detainees to obtain proper dental treatment.
One witness claimed that detainees have to wait weeks to see a dentist and that
it appears the only treatment offered is teeth extraction rather than
restorative treatment. The committee
was told of an instance where a detainee who suffers from diabetes lost most of
his teeth, allegedly as a result of lack of dental care.
Graham, who has visited and corresponded
with detainees in the Baxter IDF
for the past 2 years, advised that detainees are not being referred for dental
treatment even though services are available. She said that she had contacted
the South Australian Dental Service in Port Augusta to try to expedite
treatment for a detainee who had been having on-going pain. The Service had in
turn contacted the dentist who she understood provided dental services to
detainees under contract. He advised that there were plenty of appointments
available but detainees were not being brought to his surgery.
The NSW Refugee Health Service identified a number of
issues based on their experience providing health care services at Villawood
IDF and to ex-detainees following their
release into the community. These issues include:
the cost considerations in providing health
services to detainees could impact on the level of health care provided;
confidentiality of medical records do not appear
to be assured, with non-health staff having potential access to the records: it
was alleged that custodial and management staff had requested details on the
pregnancy and HIV status of detainees;
health staff working in the centre are seen as
part of the system, exacerbated by nurses having to wear uniforms similar to
that of custodial staff;
the inability of doctors to act as advocates for
their patients which raises a ethical challenge;
the degree to which informed consent is sought
for testing or medical care among a detained population where many individuals
have limited English skills is unclear;
where detainees are hospitalised, the hospital
is deemed an 'alternative place of detention'
which means guards accompanying the patient at all times and may, and indeed
have, forbidden access to visitors and have even been said to monitor access by
medical follow up for those released into the
community has been poor with no written summaries of the health care provided
while in detention and without arrangements being made for follow-up care. This
is of particular concern where people have been released on a Bridging Visa as
they are not entitled to access Medicare; and
once released information on a person's
whereabouts cannot be obtained due to privacy laws.
Companion House also commented that there did not
appear to be any policy in place about providing detainees with their medical
records on their release into the community. Whether medical records are
provided appeared to be a matter solely at the discretion of the attending
Mental health care
The Committee received a large body of evidence which argued
immigration detention contributes to high levels
of mental illness;
the provision of mental health care is
the effective treatment of mental disorder
cannot take place within the detention environment.
view was that 'prolonged, indefinite detention
causes psychological harm in an already vulnerable population'. Royal Australia
and New Zealand College of Psychiatrists (RANZCP) said that:
High levels of mental illness will continue to occur as long as
immigration policy is implemented in this way. The RANZCP recommends that
prolonged detention is replaced with an alternative system, such as community
placements, with detention centres used only for brief initial processing.
It was also stressed that a detention centre is not a
mental health facility and that the treatment of mental disorder in a detention
centre is therefore inherently flawed, especially where the cause of ill health
is attributable in part or in whole to the conditions of detention. Dr
considered the environment of immigration detention to be 'so
toxic that meaningful treatment cannot occur' within
a detention centre.
A summary of independent research and evidence of the
detrimental effects of immigration detention on the mental health of detainees
was provided by RANZCP which showed that rates of mental illness including
post-traumatic stress disorder, depression, anxiety are very particularly high
among people in immigration detention:
Detention contributes to feelings of anxiety, hopelessness and
depression. Sultan and O’Sullivan (2001) report a pattern of
psychological reactions among those held in detention for long periods. After
an initial period of shock, detainees typically exhibit symptoms of major
depressive disorder which worsen over time, and may eventually develop
psychotic symptoms such as delusions and hallucinations. These authors surveyed
33 detainees at the Villawood Detention Centre in Sydney,
who had been in detention for more than nine months. All but one of these
people displayed symptoms of psychological distress at some stage of their
detention. 85% had chronic depressive symptoms and around half of the
respondents had very severe depression. Seven respondents showed signs of
psychosis, including persecutory delusions, ideas of reference, and auditory
hallucinations. 65% of respondents had pronounced suicidal ideation. A survey
of Tamil asylum seekers found significantly higher levels of mental illness –
depression, post-traumatic stress disorder, anxiety, panic and physical
symptoms – in those detained at the Maribynong Detention Centre compared with
those living in the community (Thompson et al., 1998). In another study
describing the psychiatric status of families in an unnamed Australian
detention centre (average length of time in detention two years and four
months; Steel et al., 2004), all the adult detainees were diagnosed with a
major depressive disorder, and a majority with post-traumatic stress disorder.
Two adults showed psychotic symptoms, and met criteria for a severe major
depressive disorder with psychotic features. Almost all the adults assessed had
experienced persistent thoughts of suicide, though none had had suicidal
thoughts prior to detention; a third of the adults had harmed themselves.
Many detainees – in particular, those seeking asylum in
Australia – have suffered human rights abuses, including torture, in their
countries of origin; family members may have disappeared or been murdered, and
many are separated from their loved ones as well as their homes and countries.
The traumatic histories of this group makes them particularly vulnerable to the
effects of further psychological distress. Overall, prolonged detention
exacerbates existing psychological distress and precipitates further mental
STTARS also advised that a survey undertaken over the
past 3 years of 264 people released from detention centres on Bridging or
Temporary Protection Visas, found that 162 had been assessed as suffering
psychological problems which severely interfered with their every day
A literature survey commissioned by the Senate Select Committee
on Mental Health indicates that the deterioration of mental health is
attributable to a number of factors in the detention environment – the exposure
to violence and traumatic events; racist comments; being handcuffed during
transport and denial of food; lack of faith in asylum claim system; indeterminate
lengths of stay, seclusion, lack of access to medical care, treatment by
detention centre staff and the centre environment. Inadequate mental health care was
cited as a significant factor in some studies. The severity of depression was
linked to the length of time in detention and, in one study, half the group:
... had reached what was described as the severe tertiary
depressive stage which included psychotic symptoms such as delusions and
The particular vulnerability of refugees and asylum
seekers has long been accepted by the Commonwealth. The National Mental Health
Plan 2003-2008, recognises that refugees and asylum seekers are one of the
groups at greatest risk of mental illness.
The National Mental Health Strategy, which incorporates a number of
pre-existing mental health plans, was adopted by the Australian Health
Ministers in 2003. The underlying principles of the Strategy include a
recognition of the principle of non-discrimination:
All people in need of mental health care should have access to
timely and effective services, irrespective of where they live.
The National Mental Health Plan in Multicultural
Australia also emphasises the importance of access to health care, which
The ability to reasonably and equitably provide services based
on need irrespective of geography, social standing, ethnicity, age, race, level
of income or sex.
Standard 7 of the National Standards for Mental Health
Services developed in 1996, based on UN standards designed to protect the rights
of people with mental illness, requires the non-discriminatory treatment of
people with mental illness and the delivery of mental health services that are
sensitive to the social and cultural values of the consumer.
It is against this background of empirical evidence and
the national policy framework that the committee considered evidence about the
adequacy of mental health care in Australian immigration detention centres.
RANZCP summed up the situation when it said:
The current provision of mental health services to people in
detention is clearly inadequate. Existing systems do not understand, recognise
or respond adequately or appropriately to mental disorder. The recent case of
the prolonged detention of Cornelia
Rau clearly illustrates this.
In a recent Federal Court case concerning mental health
care of two detainees, Finn J affirmed the Commonwealth's
duty to ensure that reasonable care is provided:
That duty required the Commonwealth to ensure that a level of
medical care was made available to them which was reasonably designed to meet
their health care needs including psychiatric care. They did not have to settle
for a lesser standard of mental health care because they were in immigration
Given the known mental conditions of the applicants, the
Commonwealth permitted its contractor to provide an inadequate and, on the
evidence, poorly functioning mental health care service to them.
The committee is also aware that in at least two
international cases Australia was found to have acted in violation of articles
7 and 10 of the ICCPR, by continuing detention after the deterioration of
mental health was known to the Department.
Article 7 prohibits the use of cruel, inhuman or degrading treatment and
article 10 imposes a positive obligation to ensure that all detainees are
treatment humanely and with respect for the inherent dignity of the person.
Mental health and children
Particular concerns were expressed at the effect of
detention on the physical, emotional and mental health of children. HREOC referred to the Committee its
report A last resort, in which it
concluded that the Commonwealth was in breach of the Convention on the Rights
of the Child (CRC) in that it had, inter
failed to take appropriate measures to protect
the safety of children;
failed to take all appropriate measures to
protect their physical health; and
failed to take all appropriate measures to
protect and promote their mental health.
RANZCP summarised the evidence relating to the
particular vulnerability of children to the effects of prolonged detention:
Parenting capacity and child protection are significantly
compromised in the detention environment and rates of depression and
post-traumatic stress disorder (PTSD) are high. Children are adversely affected
by institutionalisation, witnessing adult distress, parental depression and
emotional withdrawal, limited educational and recreational opportunities and
isolation (Mares et al., 2002). Children not uncommonly self-harm, a pattern
that is not noted in the general community. Studies of children in prolonged
detention (more than two years) found that all children were diagnosed with at
least one psychiatric disorder and 80% were diagnosed with multiple disorders.
There was a 10-fold increase in total number of diagnoses found during the
period of detention compared to pre-existing rates (Mares and Jureidini, 2004;
Steel et al., 2004). The holding of children in detention centres raises issues
of child protection, as children are also at risk of harm due to their enforced
proximity to potentially dangerous adults.
HREOC concluded that the only effective way to address
the mental health problems caused or exacerbated by detention is to remove the
children from that environment.
Systemic factors that contribute to
poor mental health care
There were a range of systemic factors that submitters
and witnesses referred to, based on their direct experience of working in
detention centre or with detainees. It was argued that detention itself
separates detainees from mainstream services and the outsourcing of immigration
detention exacerbates the problem:
The RANZCP believes that the subcontracting of detention, which
produces a separation of the mental healthcare of detainees from the mainstream
mental health system, is a key factor in the deficient treatment of mental
illness in detention centres. At present, there is no formalised arrangement
between the detention centres and state mental health services. It can be very
difficult to find appropriate treatment for mentally ill detainees,
particularly in area mental health services already stretched to capacity.
said the lack of clear arrangements between the Commonwealth and State mental
has contributed ... to what we would consider on clinical grounds
to be an inordinate delay in getting people to an appropriate mental health
facility for the treatment that they need.
SSTAR told the Committee that requests to provide an
independent psychiatric examination:
are frequently met with the assertion that internal services are
adequate and there is no need for independent assessment or intervention.
Visiting professionals are treated with suspicion instead of as a valuable
resource integral to the overall care and support of detainees.
And that treatment recommended
by independent mental health professionals are not always implemented. For
example, Dr Louise
Newman, commented that she had been:
...particularly concerned on recent visits about the persistent
lack of recognition of the seriousness of people’s mental distress and mental
disorder. There was the case of a man I assessed as having a psychotic
depression, who has also been assessed by other psychiatrists. We were of the
opinion that this man needed to be transferred to a psychiatric hospital, and
that had not been acted on. He remained in a very distressed state and was
being treated with medication with very inadequate psychiatric review.
Coffey, a clinical psychologist who conducts
psychological assessment of detainees at the Maribyrnong Immigration Detention
Centre said there are a number of reasons for not implementing recommendations,
the facility may not have the expertise to
implement the recommendation or the detention environment may make certain
psychological and psychosocial treatments are
difficult to implement in detention because, even if the expertise is available
(and often it is not), the environment is often an insuperable barrier to the
provision of such treatment;
recommendations with regard to pharmacological
treatments are more readily implemented.
The committee was especially alarmed to hear those
suffering from serious mental illness are the least likely to be released from
Recommendations least often followed in my experience related to
opinions that the detained person can not be treated in the detention
environment, and that therefore considerations should be given to releasing the
individual on a bridging visa (under s 2.20(9) of the migration regulations).
The grounds whereby this refusal to act on such an opinion are opaque. The
practical operation of this provision requires urgent examination.
Seriously mentally ill individuals have in my experience been
left to deteriorate over months and years in disregard of expert opinion
regarding the damaging effect that ongoing detention is having.
The Asylum Seekers Resource Centre alleged that the
Department had not disclosed and had actually hidden independent medical
reports, which recommended the release of asylum seekers on the ground that
they cannot be cared for in detention, in order to prevent the granting of a
bridging visa and their release. They claimed the Department had consistently
ignored reports they had submitted from independent, respected psychiatrists
and psychologists expressing grave concerns for the mental health of asylum
seekers. The committee is unable
to test these particular claims. However, the evidence is consistent with the
systemic problems identified by Mr Palmer
in the case of Cornelia Rau.
It also points to the importance of the development in Australia
of statutory obligations for reasons in administrative decision making. This is
particularly so in the immigration detention context where, by reason of their
incarceration, detainees are particularly vulnerable to the influence of
irrelevant considerations and unreasonable decision making. The committee
considers that this is area in which unfettered executive discretion is a
significant legislative gap. The exercise of ministerial discretion and the
implementation of bridging visas are discussed in Chapters 4 and 8.
Use of behavioural management
The use of behavioural management techniques was raised
repeatedly during the inquiry. This model was criticised as inconsistent with
best medical practice and harmful, especially to detainees with emotional and
psychological problems. The RANZCP said:
The use of inappropriate behavioural management techniques,
including solitary confinement, is of great concern to the RANZCP. These
techniques are not considered to be standard treatment of behavioural
disturbance resulting from mental illness, and are not acceptable to
international psychiatric bodies. Brief uses of low stimulus environments are
only used as part of overall comprehensive treatment of mental illness. The use
of antipsychotic medications for behavioural control is inappropriate. We are
also concerned that the environment of the detention centre creates a culture
which perceives disturbed behaviour as deliberately disruptive, rather than a
symptom of illness.
argued that the 'behaviour management'
is demeaning and an affront to human dignity. He gave an example of a man, who
had permission to get married in the visitors centre, being deprived of the
right to have guests and music at his wedding.
What was particularly demeaning was that it was still a number
of weeks between then and the time that the man was to get married and he was
told that, if he was a good boy, he could earn back guests to his wedding at
the rate of two or five a week, or something like that. An environment in which
that level of capricious – I think sadistic – demeaning of somebody ... can never
be described as a therapeutic environment.
When asked about the effect of the recent upgrade in
visitor and recreational facilities at Baxter would have on
the mental health of detainees, Dr Jureidini
It is self-evidently completely useless to somebody who has
already been badly damaged by what has happened. Having a different visitors
facility when you are not capable of engaging with any other human being is not
going to do you much good. Having sports facilities when you cannot rouse
yourself from your room more than once a day to limp off to get something to
eat is not going to be of any benefit to you.
Use of medication for behaviour
The Committee also heard reports of the use of sedating
medication for behavioural control. During a committee hearing Dr
Our group has made submissions to the Health Care Complaints
Commission in New South Wales
regarding the inappropriate use of medication in Villawood. Similar concerns
have been raised about the use of psychotropic medications in other detention
environments. There are several issues. There is no doubt that some of the
people do need medication and are being appropriately treated. However, the
issue is more about the use of sedating medications, or antipsychotic
medications being used inappropriately for the purpose of behavioural control,
and about some individuals being threatened with the use of extremely sedating
medication when they have been involved in any form of protest or conflict with
the management of the centres, which we believe is inappropriate.
Recent media reports of the case of Virgina
Leong, a Malaysian woman detained in
Villawood for three years with her child, illustrates the problem about the
forced use of medication. In June 2005, the Australian reported that videotape
evidence depicts Ms Leong
being forcibly removed from the roof of Villawood, where she was staging a
protest against her detention, and removed to a management unit:
Leong, a slight built woman hardly larger than a child, was
dragged along with her head held down by two large detention centre officers.
When they reached the management unit Leong was pushed face down on the floor
and a male officer about twice her size sat astride her, tightly holding her
hands behind her back as a nurse instructed Leong, who was crying, to take
Valium ... The video shows a distressed Leong calling out: 'I don't
want the Valium'.
The committee is not aware whether this incident was
reported to DIMA under the requirements of the contract. However, cases like
the Leong matter raise serious issues about training of detention centre staff,
assault and breach of medical ethics. The use of force and sedation for
behaviour control requires further independent investigation.
Reform of mental health care in
Australian immigration detention centres
DIMA advised the Committee that it was currently
implementing changes in mental health care in response to the Palmer Inquiry
report. These changes include:
fortnightly visits by a psychiatrist to the
the establishment of two new psychiatric nursing
positions at the Baxter IDC to achieve 7 day coverage and on-call arrangements
routinely seeking additional third party medical
advice whenever it receives conflicting medical opinions from sources other
than the medical professionals subcontracted by GSL, rather than on a
case-by-case basis as was previously the case; and
improved access to health care outside detention
centres and reviewing monitoring and oversight arrangements for health care
services. DIMA is accessing further specialist medical expertise to assist it
in these processes.
The Committee was
further advised that since January 2005, all immigration detainees are screened
for physical and mental health issues when they are received at an IDF. This
involves a suicide and self-harm assessment undertaken by a Detention Service
Officer and an 'at risk' assessment by the nurse.
In relation to Baxter, the Department
A voluntary client-rated Kessler 10 screening is undertaken, a
clinician-rated health of the nation outcomes scale is undertaken and a mental
state examination is undertaken. These last three examinations are widely used
in mainstream mental health services.
DIMA told the committee that if a detainee screens
positive on a 'HoNOS, K10 or MSE instrument' he or she will be referred to a
multidisciplinary mental health team for diagnosis, a mental health management
plan and ongoing mental health care.
If the management plan requires inpatient treatment this will be arranged
through 'clinical pathways developed with identified public and private sector
health providers' and the all detainees will be re-screened at 90 days.
DIMA also advised that the Department has received a
costed proposal from GSL to 'enhance mental health services at all other
immigration detention facilities in line with the current and planned process
at Baxter IDF.'
In relation independent medical opinions, DIMA informed
the committee that it was developing a detailed protocol and that interim
procedural arrangements applied to GSL and its subcontractors are in place (see
The reforms currently being implemented by DIMA were
acknowledged by many witnesses. But overall access to independent medical
opinion and services and independent oversight of health care was advocated if mandatory
detention is to remain in place.
The RANZCP argued that psychiatrists employed by
detention centre management have a conflict of interest and that patients may
perceive them as being aligned with the detaining authorities which could
impact on their effective treatment. The RANZCP recommended that the mental
health care of detainees be provided by mainstream mental services, independent
of DIMA and detention centre management.
The LIV also argued that responsibility for mental health should be devolved to
State mental health authorities:
DIMA is not the
appropriate government agency to have ultimate responsibility for the health
care needs of mentally ill or incapacitated immigration detainees. The shocking
circumstances of Ms Rau’s ten-month period of immigration detention
clearly demonstrate this point.
RANZCP recommended that standards of care applying to
mental health services generally must apply in immigration detention:
Systems must be set in place to ensure that detainees suffering
psychiatric symptoms are adequately assessed and treated for the inevitable
mental health problems that will arise. At a minimum, independent review panels
of clinicians must be established to assess detainees for mental illness, and
assessments must be conducted regularly. Responsibility for such panels should
be assigned to state mental health services to ensure their independence. If a
person is found to be mentally ill, he or she must be removed from detention to
an appropriate place of treatment. 
Similarly, RASSA argued that 'detainees should have
full and unrestricted access to independent mental health professionals and
accorded proper medical treatment.'
Detention centres are an unsuitable location for treatment.
Psychiatric illness requires an appropriate treatment environment, trained
nursing and mental health staff, and a comprehensive biopsychosocial treatment
approach. The immigration detention centre does not have adequate mental health
staff, appropriately-trained supervisory staff, or adequate capacity to review
and monitor biological treatments.
The NSW Refugee Health Service suggested that national
guidelines on the health care needs of refugees are necessary. They suggested
that a National Refugee Health Committee
comprised of 'health professionals with
expertise in the health of humanitarian entrants and with knowledge of the
public health systems in Australian states and territories' could develop the
guidelines in consultation with DIMA and Commonwealth and State health
A Just Australia also argued that health standards 'should
be monitored by an oversight body independent of the Department, with the power
to impose penalties for breaches.'
RANZCP said it was disappointed with the Palmer Inquiry recommendation to establish
another ministerially appointed committee of medical representatives:
We had previously made recommendations about having an
independent clinician run group to overview health standards and to look at
issues about quality assurance within the detention environment, possibly now
incorporating people in various forms of community detention. Our original
proposal was made some time ago now. I believe it was to Minister Ruddock at
the time. There was an agreement across the medical colleges and the AMA that
representatives from those clinical groups who needed to be represented - psychiatrists,
paediatricians, physicians, public health and so on - could form such a committee.
It would be very happy to work with the Commonwealth on the issues and to
report to the minister but should fundamentally be appointed by the medical
DIMA argued that immigration centres are subject to
regular scrutiny from external agencies, such as Parliamentary Committees,
HREOC, the Commonwealth Ombudsman, the Australian National Audit Office, the
United Nations High Commissioner for Refugees and the Immigration Detention
Advisory Group, to ensure that immigration detainees are treated humanely,
decently and fairly.
However, the Committee
notes that none of these bodies has the power to make binding decisions in
relation to particular cases or a specific mandate to oversee the provision of
mental health care. During the hearings it was also pointed out that State
authorities with responsibility for mental health do not have a statutory right
of access to detainees under the Migration Act.
.... neither the Public
Advocate nor mental health agencies in each State had a right to access
detainees held under the Migration Act regardless of the fact that the
provision of mental health services and guardianship law fall under the
jurisdiction of State governments.
The opening of immigration detention centres to State
authorities and the involvement of mainstream and specialist mental health
services would ensure independent delivery of services.
The committee was impressed by the depth and breadth of
experience and expertise evident among witnesses and the quality of evidence
they submitted to the inquiry. The issue of the mental health effects of
prolonged and indeterminate immigration detention emerged as the most critical
aspect of Australia's
mandatory detention policy. There is a significant and credible body of
evidence that prolonged and indeterminate immigration detention results in an
unacceptable rate of psychological harm in the detainee population. Evidence
also demonstrated that asylum seekers and those seeking protection on
humanitarian grounds, including children, are most at risk. The committee
therefore concludes that prolonged and indeterminate immigration detention is
inherently harmful to psychological wellbeing and its abolition should be a priority.
The systemic problems associated with the delivery of
health care, in particular mental health care, in an immigration detention
centre environment may be alleviated by introducing reforms to improve access
to high quality health care under independent supervision. However, the
fundamental issue is the length of detention and the nature of the immigration
There is a significant body of evidence from a wide
range of well qualified witnesses that the provision of mental health care
within immigration detention centres is systemically flawed and below
acceptable community standards. While the reforms proposed and attested to by DIMA
demonstrate a willingness to improve the quality of mental health care, it does
not address the fundamental issue. The committee considers that addressing the
fundamental cause – prolonged and indefinite detention – will help to address
many of the most intractable problems.
Expert witnesses advocated the unimpeded access by
external qualified medical practitioners to immigration detainees; the
provision of mental health care by established mainstream mental health
services; and the development of specific standards of care and oversight of
those standards by the profession. If mandatory detention involving prolonged
periods of detention remains, that such substantial reform will be required to
guarantee a detainees right of access to appropriate, good quality health
Several concerns were expressed about the food provided
to detainees. It was claimed that not only has the food been of poor quality
but in some instances, unfit for consumption.
It was also claimed that the food provided did not take account of detainees'
religious and cultural backgrounds. On some occasions the quality of the food
had provoked demonstrations by detainees resulting in some detainees being
placed in one of the 'punishment units'.
It was claimed that two pregnant detainees had found it
difficult to obtain the food they needed during their pregnancy.
Often people visiting detainees bring food items for
them which supplements that provided by GSL. Ms
stated that when she started visiting detainees at Baxter Immigration Detention
Centre, bringing of food into the Centre was prohibited. This restriction has been
lifted and visitors are allowed to bring full meals to detainees.
September 2005 the Minister issued a media release on the findings
of an independent review into food at the Baxter Immigration Detention Centre. The review was commissioned by DIMA
in response to ongoing complaints by detainees about the food at Baxter.
6.122 Under its contract with DIMA, GSL is
required to provide detainees with good quality, nutritional food that is interesting,
appealing and culturally appropriate. The Minister expressed disappointment that the review had found that 'not all of the required food standards at Baxter have been met.'
6.123 The Minister stated that the review had made
a number of recommendations, many of which have already been implemented. These
include greater menu choice, some self-catering, including regular barbeques,
and increased opportunities for detainees to have a say on food. The Minister
went on to say that she recognised that 'Food has a
substantial impact on the morale of detainees and as such I have instructed my
department to quickly assess and introduce changes that go above and beyond the
recommendations made.' She also said that she had instructed her department to
work with GSL to make all of the necessary changes.
Minister said the Palmer
Report had also made recommendations to improve
food services at Baxter, particularly to allow greater independence
and variety in food. As part of the general review of the contract between DIMA and GSL recommended
in the Palmer report, DIMA is to consider whether any amendments
are needed to the descriptions and standards for food services in the contract.
The committee acknowledges the efforts being made to
improve the food services for detainees at the Baxter Immigration Detention
Centre. However, these improvements must not be restricted to Baxter
but must apply to all immigration detention centres. In addition, there needs
to be considerable improvement in the monitoring of and reporting on these
services to ensure that the standards are being met as this has clearly not
been the case in the past.
Section 209 of the Migration Act provides that a
non-citizen who is detained is liable to pay the Commonwealth the costs of his
or her detention. Criticism was levelled at the imposition of costs
particularly in relation to an asylum seeker's
detention. It was said that not
only are asylum seekers unlikely to have access to funds to meet these costs
but until the debt is paid various restrictions are imposed, including the
prevention of that person returning to Australia.
The LIV said that:
Government’s mandatory detention policy comes at a high financial cost to
persons detained in immigration detention, particularly, those persons within a
family unit or detained for a significant period of time. Detention costs, if
not repaid to the Government, may effectively prevent a person from returning
to Australia, even in situations where they may have
close family ties in Australia. The LIV also notes that a number of former
detainees, who were eventually granted a temporary or permanent visa, have been
forced to repay their detention costs. In some cases, this has meant a debt of
more than $50,000, which is a major hurdle for a person seeking to rebuild their
life in the Australian community. We suggest that it is not appropriate for an
Australian permanent resident to be forced to pay such costs.
The LIV recommends that
immigration detainees should not be charged the costs of detention.
Alternatively, detainees who are subsequently granted a temporary or permanent
visa should not be liable for the costs of their detention.
The St Vincent de Paul Society commented that:
The policy of charging detainees for the cost of detention needs
to be managed very carefully with due regard for the individual circumstances
of each case. If an individual has been detained without cause, or has become
illegal due to circumstances beyond their control (such as the visa being
cancelled en-route) the Society does not feel it is appropriate to charge the
individual for the cost of their detention.
Accordingly they recommended that 'individuals
in these circumstances not be charged the costs of their own detention and that
a cap or limit be placed on the amount of debt that individuals can incur while
in detention, as some bills are so large as to be beyond any reasonable
capacity for individuals to pay.
Ballarat Refugee Support Network
said that while they:
are aware of an administrative decision that, for those on TPVs,
detention debts are to be waived ... there are other asylum seekers who have
achieved release from detention in other ways eg. a permanent visa as a
refugee, and who have been presented with a bill for the accommodation costs of
their years in detention. An Iranian asylum seeker known to us, spent 41/2
years in detention and finally was released on a spouse visa. He has a bill for
over $220,000. He must begin to pay this account if he seeks permanent
residency in this country. It is a serious injustice to charge for
accommodation in Australian detention centres.
In relation to a question from the Committee on
detention debts, Ms Lyn
First Assistant Secretary, Detention Services Division in DIMA advised that:
The amount billed during the 2004-05 financial year for
detention debts was just over $30 million – $30,860,000. In terms of the number
of people that it applied to, approximately 4,600 people were billed with
respect to that debt. In terms of the payments received during that period,
they amounted to just over $1 million – $1,197,000 – during that financial year
in relation to those detention debts.
Perhaps unsurprisingly the success rate in relation to
long term debts, 'The success rate after the person has left the country is
The evidence clearly indicates that the imposition of detention
costs is an extremely harsh policy and one that is likely to cause significant
hardship to a large number of people. The imposition of a blanket policy
without regard to individual circumstances is inherently unreasonable and may
be so punitive in some cases as to effectively amount to a fine. The committee
agrees that it is a serious injustice to charge people for the cost of
detention. This is particularly so in the case of unauthorised arrivals, many
of whom have spent months and years in detention. The fact that this policy has
been implemented in the context of a mandatory detention policy makes it all
the more egregious. It is unclear exactly what pressing social need the policy
addresses or how it can rationally be sustained and the committee therefore
recommends that it be abolished and all existing debts be waived.
The committee recommends that there be a presumption
against the imposition of a liability to pay the Commonwealth for the cost of
detention, subject to an administrative
discretion to impose the debt in instances of abuse of process or where
applicants have acted in bad faith.
Alternative approaches to mandatory detention
In chapter 5 the committee expresses its view that it
is now timely to consider alternative options to the mandatory detention of
unlawful non-citizens, especially asylum seekers. During the course of the
inquiry a number of alternative models were presented to illustrate how one
might comprehensively address the question of how asylum seekers can be better
catered for, while maintaining the integrity of the migration program.
For example, the National Council of Churches in
Australia (NCCA) recommended 'The adoption of
a community release scheme, open to all asylum seekers (unless there are
strong, justifiable reasons to continue detention), based on adequate case
management and proper entitlements, namely work rights, Medicare and
supplementary income support, if required.'
Amnesty International took a similar approach and
recommended that the government should:
establish a formal independent review process to
assess on a case by case basis the necessity and proportionality of detention
of all asylum-seekers and rejected asylum-seekers who are currently detained in
Australia, including Christmas Island, and on Nauru.
ensure that in future, asylum-seekers who arrive in Australia without adequate documentation are detained only
when their detention is consistent with international human rights standards. Such legislation should be
based on a general
presumption against detention.
specify in national law a statutory maximum duration for detention which should
be reasonable in its length. Once this period has expired the individual concerned
should automatically be released.
ensure that detained asylum-seekers have regular and automatic access to courts
empowered to review the necessity of detention and to order release if continued
detention is found to be unreasonable or disproportionate to the objectives to
establish a new class of bridging visa for any future arrivals that allows for asylum-seekers
to remain in the community with rights and entitlements as outlined above.
implement a complementary protection model to
provide for future asylum seekers who do not meet the full and inclusive
interpretation of the definition of refugee under the Refugee Convention but
nonetheless are in need of international protection.
Justice for Asylum Seekers (JAS) and the Brotherhood of
St Laurence advocated the Reception and Transitional Processing System (RTP),
as a viable alternative. Some of key features of the proposal include:
- Detention should only be used for a limited time, in most
cases for Identity, Health and Security (IHS) checks upon arrival; prior to a
person being returned to their country of origin or another country, or if a
claim is unsuccessful and if supervision in the community is inadequate to the
high risk of the person absconding.
- Introduction of a monitored release regime based on a revised
risk assessment – made into community hostels/cluster accommodation.
- Those deemed high security risk to remain in detention, but
with set periods of judicial or administrative review.
- Ensuring children and their primary carers are released from
detention as soon as possible.
- Reception of all unaccompanied minors, families, single
women, vulnerable people into community care with Government support and
- Reception of all people assessed to be psychologically
vulnerable into community care by specialized services with Government support
and compliance requirements.
- Creation of a case worker system whereby an independent
service provider (e.g. Australian Red Cross) provides information, referral and
welfare support services to people claiming asylum, from the time of their
arrival to the point of repatriation or settlement in the community.
- Creation of a Representative Assessment Panel to oversee
conditions of detention and community management. The Panel would make
decisions on risk assessments, security compliance and periodically review
length of detention. The Panel would act as an independent body ensuring
transparency and accountability of service providers entrusted with the humane
manner of treating people.
- The introduction of a specialist service provider such as
International Organisation of Migration to manage return of persons whose claim
has been unsuccessful.
- The creation of a special visa class for long term detainees
who can’t be returned to their country of origin, which would allow them to
live in the community until such time as they can be returned.
It was argued that adoption of the RTP system, or a
similar approach, would not adversely effect the integrity of Australia's
refugee determination system. A trial conducted by the Hotham Mission found
that 85 per cent of those not found to be refugees returned voluntarily to
their home country, while of the other fifteen per cent, some had returned to detention
in order to have their air fare paid so that they could leave Australia.
The committee has received a substantial body of expert
testimony about the psychological harm of prolonged and indeterminate detention
and the systemic problems in the management of immigration detention centres.
Having considered the evidence the committee believes that the prolonged and
indeterminate nature of Australia's
mandatory detention policy is the key problem which must be addressed. The
weight of evidence before the committee demonstrates that the consequences of
mandatory detention demonstrate that immigration detention, in its present
form, is unable to meet the twin of objectives of preserving the integrity of
the migration program while ensuring the humane treatment of non-nationals in
background there must be strong reasons for continuing the policy and the
practice in its present form. The committee agrees with the many witnesses who
argued that comprehensive reform of Australia's
mandatory policy is now essential. The government's
recent commitment to reduce the number of long term detainees and, in
particular, alternative detention arrangements for children and families are
welcome and signify an important shift in position. However, the mandatory
requirement that an 'unlawful non-national'
be detained indefinitely until provided with a visa or removed from Australia
remains Australian law. Release from an IDF to an alternative place of
detention or under a residence determination is still a form of detention and
the person remains subject to the conditions which are at the discretion of the
A number of features are common to the proposals for
retention of mandatory detention for initial
screening, identity, security and health checks;
statutory time limit to periods of detention;
effective access to independent judicial
supervision of legality and merit of detention which continues beyond the
initial period; and
release into the community on a bridging visa
with access to basic services and subject to reasonable reporting conditions.
Prior to the introduction of mandatory detention in
1992, judicial supervision of detention was the norm for the majority of 'unlawful
non-citizens' and most people were permitted
to live in the community. During the past ten years Australia
has continued to permit those who arrive on short term visas and subsequently
claim asylum to remain in the community – they represent the largest proportion
of asylum applicants. The reforms proposed in this report are a fundamental
change to the existing principle of mandatory detention, but are in fact
measures which either previously or currently exist and will bring clarity and
simplicity into a complex system. These reforms are directed at unauthorised
The committee also considers that the system of complementary
protection for future
asylum seekers who do not meet the definition of refugee under the Refugee
Convention but otherwise need protection for humanitarian reasons and cannot be
returned should be introduced. Consideration of claims under both Refugee
Convention and Australia's other international human rights treaty
should take place at the same time. This will significantly reduce the time
spent in detention and allow existing decision making processes, including
merit and judicial review to be applied simultaneously. The committee believes
this is a more efficient, effective and comprehensive approach and one that is
common in other jurisdictions.
The committee recommends that the Migration Act be
amended to permit the mandatory detention of unlawful non-citizens for the
purpose of initial screening, identity, security and health checks and that the
initial period of detention be limited to up to ninety days.
The committee recommends the continuation of detention
for a specified limited period should be subject to a formal process, such as the
approval of a Federal Magistrate, on specified grounds and limited to
situations where: there is suspicion that an individual is likely to disappear
into the community to avoid immigration processes; or otherwise poses a danger
to the community.
The committee recommends release into the community on
a bridging visa with a level of dignity that allows access to basic services, such
as health, welfare, housing and income support or work rights.
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