"Australia's Immigration Detention Policy and Practice"

"According to Australia Human Right Report"

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Immigration detention around the world has become “big business,” and it continues to grow. Over 71% of the billions of dollars in annual government funding for immigration detention goes to private prison companies.

Money, rather than humane treatment, is the bottom line for these companies, and the standards for conditions in the immigration detention system are complex and difficult to enforce. The result leaves asylum-seekers with very few rights and little recourse, but UFVRA has programs in place to support these individuals both during and after detention.

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This chapter addresses the following questions regarding Australia's detention policy and practice:

6.1 What are the human rights relevant to the detention of children?

6.2 What is the history of mandatory detention in Australia?

6.3 When are children detained?

6.4 Where are children detained?

6.5 Is detention in the 'best interests of the child'?

6.6 Are children detained as 'a measure of last resort'?

6.7 Are children detained for the 'shortest appropriate period of time'?

6.8 Can courts provide effect review of the legality of detention?

6.9 Is the detention of children 'unlawful' and 'arbitrary'?

There is a summary of the Inquiry's progressive findings on these issues and two case studies at the end of the chapter.

 

6.1 What are the human rights relevant to the detention of children?

United Nations instruments have defined what is meant by 'detention' as follows:

Deprivation of liberty means any form of detention or imprisonment or the placement of a person in another public or private custodial setting from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.

United Nations Rules for the Protection of Juveniles Deprived of their Liberty, rule 11(b)(2)

UNHCR considers detention as: confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory.

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UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers, guideline 1(3)

The 1998 Human Rights and Equal Opportunity Commission (the Commission) report on immigration detention, Those who've come across the seas, examined Australia's detention policy as it applied at that time to adults and children, and found that it was inconsistent with and contrary to human rights.(4) This Inquiry applies much of the reasoning used in that report, but focuses specifically on whether Australia's detention policy contravenes the rights set out in the Convention on the Rights of the Child (CRC), which are much more specific and demanding than those contained in the International Covenant on Civil and Political Rights (ICCPR).(5)

Article 37(b) and (d) of the CRC provide that:

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; ...

(d) Every child deprived of his or her liberty shall have the right to promptaccess to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Thus article 37 of the CRC contains four key elements relating to the human rights of children:

• detention of a child must be a measure of last resort

• any detention of a child must be for the shortest appropriate period of time

• every detained child has the right to challenge the legality of his or her detention before a court or other competent, independent and impartial authority, and to a prompt decision on any such action

• no child should be detained unlawfully or arbitrarily.

The international law regarding each of these issues is discussed in more detail in sections 6.6, 6.7, 6.8 and 6.9 respectively. However, at this stage the Inquiry notes that the provisions of article 37 of the CRC are generally reiterated in several of the United Nations High Commissioner for Refugees (UNHCR) guidelines on refugee children(6) and the provisions of article 37(b) are repeated throughout relevant UN standards on children. For example, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the JDL Rules) states that detention 'should be used as a last resort' and 'be limited to exceptional cases'.(7) The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), which also provide some guidance regarding the treatment of children who are not charged with a crime, state that any detention should be brief(8) and that it should only occur where the child has committed 'a serious act involving violence'.(9)

The UN Committee on the Rights of the Child raised the placement of children in immigration detention centres as one of its 'Principal Subjects of Concern' in its concluding observations on Australia's periodic reports.(10) The UN Human Rights Committee has also found, on several occasions, that Australia's immigration detention system breaches human rights.(11)

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There is a substantial divergence between views of the Inquiry and the Department of Immigration and Multicultural and Indigenous Affairs (the Department or DIMIA) regarding the correct interpretation of article 37(b) of the CRC.(12) Those differences can be summarised as follows: whereas the Inquiry is strongly of the view that international human rights law requires the rights of each individual to be considered and protected, the Commonwealth asserts that international law permits the application of public policy measures to a group of people as long as that general policy is 'legitimate, non-punitive and proportionate'.

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The effect of the Commonwealth's position is that the mandatory detention of children who are unlawful non-citizens would not breach article 37 of the CRC because there are 'legitimate, non-punitive and proportionate' reasons behind the policy which requires their detention. The Inquiry rejects this proposition, because it is not supported as a matter of international law. A proper application of article 37 requires a case-by-case assessment of whether the detention of each and every child is justified in the individual circumstances. While the execution of legitimate policy goals may be one of the circumstances to consider in such an assessment, it will not be the sole or determinative factor in assessing whether the detention of an individual child accords with the right to liberty under international law. The Inquiry's interpretation is consistent with the views of the UN Human Rights Committee (see section 6.9 below).

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Article 3(1) of the CRC requires Australia to ensure that the best interests of the child are a primary consideration 'in all actions concerning children'. In order to comply with article 3(1), the Commonwealth - relevantly here the Parliament, the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) and the Department - must specifically address its attention to the impact of detention on children, and make their best interests a primary consideration in deciding what laws will regulate immigration in Australia and how those laws should be administered.

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As discussed further in Chapter 4 on Australia's Human Rights Obligations, in order to comply with article 3(1), laws in relation to immigration detention must permit - and the Executive must make - individualised decisions regarding the best interests of each child. Such individualised decisions should relate not only to the question of whether or not a child needs to be detained, but also to the circumstances and manner in which that detention is to take place.

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As discussed throughout this report, there are a variety of factors that make up what may or may not be in the best interests of the child. This chapter concentrates on two factors - the liberty of the child and the protection of family unity (see especially article 9(1), CRC).

Also of relevance is the requirement that asylum-seeking children receive the appropriate assistance to enjoy their rights under the CRC (article 22(1)). Furthermore, special attention and assistance must be provided to unaccompanied children to ensure that they can enjoy their right to liberty and that their best interests are a primary consideration (article 20, CRC).

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Finally, several submissions to the Inquiry have argued that article 31 of the Refugee Convention - which prohibits the imposition of penalties on certain asylum seekers who arrive without a visa - is also relevant to a discussion of Australia's detention policy. While the Inquiry is of the view that the Refugee Convention is relevant to immigration detention, it has focussed its analysis on the CRC in this chapter on the basis that the protections under article 37(b) of the CRC are stronger than those in the Refugee Convention.(13)

 

6.2 What is the history of mandatory detention in Australia?

Prior to 1992, Australian law permitted the detention of certain persons who were in Australia without a valid visa but did not require it.(14) The introduction of mandatory detention laws in 1992 was a reaction to the arrival of 438 Vietnamese, Cambodian and Chinese 'boat people' to Australia's shores between November 1989 and January 1992.(15) Concerns about another 'influx' spurred bipartisan support for increasingly tough measures on persons who arrived in Australia without a visa.

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The 1992 legislation both required mandatory detention of certain 'designated persons' and prevented any judicial review of detention by specifically providing that 'a Court is not to order the release from custody of a designated person'.(16)However, the legislation did impose a 273-day time limit on detention.(17)

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Another increase in boat arrivals and asylum applications in 1993 and 1994(18) resulted in the Parliament broadening the application of mandatory detention to all persons who either arrived without a visa or who were in Australia on an expired or cancelled visa.(19)

The 1994 legislation also removed the 273-day time limit on detention and instead provided that an unlawful non-citizen could only be released from detention on the grant of a visa, removal or deportation from Australia. The 1994 amendments also introduced a non-compellable discretion in the Minister to issue bridging visas which would allow for the release of persons who were otherwise mandatorily detained. The limitations on judicial review of detention that were introduced in 1992 remained.

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In 1999, the Australian Government introduced legislation that increased penalties for 'people smuggling' offences and that prevented this Commission from sending letters informing detainees of their right to legal assistance. However, that legislation did not alter the mandatory detention provisions regarding unlawful non-citizens.(20)

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The next major change to the mandatory detention policy occurred in September 2001 when a raft of amending legislation was enacted in reaction to what has become known as 'the Tampa crisis'(21) and in pursuit of the so-called 'Pacific Solution'.(22) Amongst the series of changes that were introduced by this legislation was the designation of Christmas Island, Ashmore and Cartier Islands and the Cocos (Keeling) Islands as 'excised offshore places'. The legislation enables the transfer of persons who are intercepted at sea or who land on any of those excised offshore places, to processing centres on Nauru or Manus Island in Papua New Guinea. The legislation also prohibits those persons from making a protection visa application, other than at the discretion of the Minister. See further section 6.4.4 on the 'Pacific Solution'.

 

6.3 When are children detained?

As set out above, the effect of the Migration Act is to require an immigration officer to detain all 'unlawful non-citizens' present in Australia.(23) Those detained may only be released if granted a visa or removed from Australia.(24) Asylum seekers must stay in detention until either a bridging visa or protection visa has been granted, or they are removed from Australia. This can take weeks, months or years.

There are no special considerations regarding the initial detention of unlawful noncitizen children as opposed to adults. While the Migration Regulations 1994 (Migration Regulations) do contemplate the early release of children by the grant of a bridging visa, between 1999 to 2002 they were issued to only one unaccompanied child, one mother and her two children (leaving the father in detention) and one whole family who arrived unlawfully by boat. This is discussed further in section 6.7.4 below.

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Since September 2001, any family or unaccompanied child who has landed, or is seeking to land, on Christmas Island, Ashmore and Cartier Islands or Cocos (Keeling) Islands, or any other place determined to be an 'excised offshore place', without a visa may be detained as 'excised offshore persons'. The reason this is a discretionary rather than a mandatory requirement appears to be to facilitate the transfer of excised offshore persons to Nauru and Manus Island.(25) The Department has stated that the 'discretion to detain is likely to be exercised unless such persons are moved to an offshore processing place'.(26) Thus, in practice, 'excised offshore persons' are detained either on Christmas Island, Nauru or Manus Island in Papua New Guinea.(27)Almost all of those persons are also asylum seekers and they will remain in detention at least until their refugee status processing is complete.

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Some children and families arrive in Australia on one type of visa, for instance a tourist visa, and then apply for protection as a refugee (authorised arrivals). If a family or child seeks asylum while the original visa is valid, the Department will usually issue a bridging visa pending the outcome of their application so that the person is not detained. If a family or child seeks asylum after the original visa has expired then they may be subject to mandatory detention. However, in practice these persons are almost always granted a bridging visa immediately upon lodging a protection visa claim and therefore 'released' within hours of being detained. In most cases they are not taken to a detention facility at all.(28)

Other reasons a child must be detained include overstaying the period of a visa or cancellation of a visa due to breach of conditions. Those children will generally be eligible for bridging visas that will restore their lawfulness and avoid detention.(29)

 

6.4 Where are children detained?

The vast majority of unauthorised arrival children and families detained under Australia's mandatory detention laws have been held in secure immigration detention facilities like Woomera, Port Hedland, Curtin and Baxter which are described in some detail in Chapter 3, Setting the Scene.(30) Accordingly, the majority of the Inquiry's report focuses on examining whether the conditions within those facilities comply with the CRC.

However, the Migration Act permits the Minister to approve any place to be a place of 'immigration detention'. The Secretary of the Department must also direct a person to 'accompany and restrain' the detainee for the purposes of immigration detention.(31)That person need not be an officer of the Department or Australasian Correctional Management Pty Limited (ACM).

Prior to 2001, the Minister's power to declare a place of 'immigration detention' was generally used to facilitate the provision of certain services outside immigration detention centres. For instance, a motel may have been declared a place of detention to allow for temporary accommodation, a hospital may have been declared to allow medical treatment of a detainee, or a school may have been declared to allow certain children to attend outside schools.(32)

In August 2001, the Minister exercised those powers to establish a Residential Housing Project (RHP) near the Woomera detention centre. Further, in January and February 2002, the Minister declared several homes in Adelaide to be places of detention for unaccompanied children in foster care (home-based detention). The Department describes the aim of these 'innovative approaches to alternative detention arrangements' to be to 'respond to the needs of particular groups such as women and children and unaccompanied minors'.

The Inquiry agrees that these initiatives represent a positive step forward regarding the conditions in which women and children are detained. However, it must be remembered that these places are not alternatives to detention, but rather alternative forms of detention. The Department retains full control and responsibility for everything that happens to children in these places.

The following sections discuss:

6.4.1 The Woomera Residential Housing Project

6.4.2 Home-based detention

6.4.3 Findings regarding alternative places of detention

6.4.4 'Pacific Solution' detention facilities

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6.4.1 The Woomera Residential Housing Project

The Woomera RHP is a more friendly detention facility set up for a small number of mothers and children among the detainee population. It was opened on a trial basis on 7 August 2001. The Department stated that:

The trial was intended to look at ways in which alternative detention arrangements could be made which would provide a more 'normal' existence for children with their mother or guardian, whilst still abiding by the terms of the Migration Act 1958.(33)

When established, the Woomera housing project consisted of a cluster of three houses to accommodate detainees and a fourth house for ACM staff and communal activities. Originally, at full capacity the housing project could accommodate 25 women and children. The project was expanded in 2003 to a capacity of 30-40 detainees, depending on family composition.

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The houses are located in the Woomera township, a short distance away from the Woomera detention centre. Each of the three original houses has three bedrooms and a communal lounge area and kitchen. The Inquiry has not visited the expanded project but understands that the houses have a similar configuration. In the centre of the houses is a grassed area and garden which is tended by the detainees. Unlike in the Woomera detention centre, the detainees are given a budget to spend on food ($7 per person per day), do their shopping in the local supermarket and cook for themselves. This is an attempt to provide more autonomy to mothers.

 

View of communal garden and an accommodation unit at the Woomera Residential Housing Project, June 2002.

Prior to the closure of Woomera detention centre in September 2002, children in the housing project attended the same education and recreation activities provided for the children in the detention centre. In addition, they participated in additional excursions such as food shopping trips.

The housing project has a calmer, quieter atmosphere and is more attractive than the detention centre. There is no razor wire or palisade fencing surrounding the cluster of houses, although there is an infrared detection system. Detainees are not free to leave the area without being accompanied by an ACM guard and cannot leave their houses to go to any of the communal areas after 11pm.

 

View of communal garden and an accommodation unit at the Woomera Residential Housing Project, June 2002.

The Department opened a housing project in Port Hedland in September 2003 and in Port Augusta, near Baxter, in November 2003.(34)

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(a) Who can be detained at the Woomera Residential Housing Project?

Participation in the Woomera RHP is voluntary but not all who want to live there are eligible, nor can all eligible detainees be accommodated. As at 12 December 2003, two children were housed there. 81 children have been accommodated there since the project began.(35)

Detainees who wished to be transferred to the Woomera RHP had to submit an application form which was considered by a panel consisting of the ACM Centre Manager and Health/Welfare Manager, the Department's Manager and a resident of the Woomera township.(36)

All detainees had to be volunteers and either:

• women accompanied by children (excluding boys aged 13 and over) who have an immediate family member at the Woomera (or Baxter) facility, or

• unaccompanied female minors, or unaccompanied boys under 13, or

• unaccompanied women with or without children.

They must also have passed initial health checks, pose no known management risk and agree to the conditions of participation including:

• not to leave the boundary of the property without an officer

• to be sensitive to the needs and wishes of other participants

• to behave in a responsible manner.(37)

As indicated above, fathers and boys aged 13 years or over, were ineligible to live at the housing project - although there were visiting rights. This rule was changed in September 2003 so that boys aged between 13 and 17 were permitted to live there. Both the old and new eligibility rules meant that women and children from two-parent families were separated from their husbands and fathers and some were separated from sons and brothers.

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During the first year of the housing project, only detainees who were awaiting their primary refugee decisions were permitted to participate (although, when a family lodged a merits appeal at the Refugee Review Tribunal after they had already been transferred to the housing project, they were usually permitted to stay). It appears that the reason for this criterion was that persons in the primary phase were regarded as a lower flight risk than those in appeal stages. However, the result of the policy was that those who had been in the detention facility for the longest were ineligible to participate. As the Department's Woomera Manager noted in February 2002:

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this style accommodation benefits greatest those who are likely to be spending lengthy periods in detention - and [I] would support an approach being made to the minister or his office if that is required to attempt to achieve that end.(38)

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The Department did make changes to the criteria so that by the second year of the project, women and children (other than boys aged 13 and over) could move there at any time during their refugee status determination process, including during any appeal to courts. The fact that there were no actual or attempted escapes during the first phase of the project may have contributed to the change in policy.(39)

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Another change in the policy, in July 2002, was to permit the housing project selection committee to include:

a small number of women and children who do not meet the eligibility criteria but have compelling circumstances. This includes special needs cases and those who are vulnerable or at risk and who could otherwise not be accommodated appropriately in an immigration facility.(40)

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Migration Series Instruction (MSI) 371 on Alternative Places of Detention, issued by the Department in December 2002, opens the door to early transfer to housing projects, stating that '[e]very effort should be made to enable the placement of women and children in a RHP as soon as possible. All decisions should be made as expeditiously as possible'.(41)

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(b) Why were fathers and boys aged 13 and over excluded from the housing project?

In its Fact Sheet on the Woomera housing project, the Department stated that '[f]or cultural and practical reasons males over 12 years could not be appropriately accommodated in the Project'.(42)

During the hearings in December 2002, the Inquiry sought to clarify what the Department meant by the 'cultural and practical reasons' for excluding teenage boys and men.

MR WIGNEY (INQUIRY COUNSEL): ... The first point that you raised as being a reasonable rationale or principle behind not having fathers at the Woomera housing project was that it was necessary to provide culturally appropriate living arrangements, and I think that is a phrase that is used in the DIMIA submissions as well. What do you mean by 'culturally appropriate living arrangements'? Do you suggest that in some cultures it is not normal for fathers to reside with their families?

MS McPAUL (DIMIA ASS SEC (UNAUTH ARRIVALS)): I think what I was trying to refer to is the expectation that members of one family would be able to live in a culturally appropriate environment without any suggestion that there would be inappropriate interaction with males who are not of that part of that family group. So I'm not suggesting that it is inappropriate for family members to be together, rather that families need to be certain that whatever living arrangements are in place for them will be something that they are comfortable with personally.(43)

Additional comments provided by the Department on this issue emphasise that consultations with detainees indicated that some women might choose not to participate if other women's husbands and sons were present:

for cultural reasons having males involved was expected to significantly influence the decisions of females who might otherwise wish to participate.(44)

On the face of it this would appear to be a reasonable consideration. However, in the view of the Inquiry, it is important to examine this rationale against the background that within the Woomera detention centre itself, several families - including fathers and teenage boys - would share one 'donga' (demountable) in which the families were separated by a curtain only. The Department was pressed at the hearing to explain the distinction between the 'cultural appropriateness' of housing full families together in the Woomera detention centre and the housing project. The Department ultimately came back to the point that this was a project designed to encourage 'voluntary participation' of women and children and therefore the comparison was invalid.(45) This still does not explain why there was no effort to improve conditions for families where there were fathers and boys over 12.

The Department suggested that the capacity of the housing project meant that they could not provide separate facilities for older male detainees:

The overall capacity of Residential Housing Projects are relatively small, compared to the number of people in immigration detention. The need to provide separate facilities for males would further reduce the number of participants overall who could take part in the arrangements.(46)

However, once again, this does not explain why the Department did not seek to increase the 'overall capacity' to accommodate this concern. Furthermore, it does not explain why the same 'cultural factors' did not require similar separation of families with teenage boys and men inside the Woomera detention centre.

It appears to the Inquiry that another possible reason for the Department's exclusion of teenage boys and men, was that they may be more likely to escape than women and children:

DIMIA ASS SEC (UNAUTH ARRIVALS): Commissioner, there are a number of factors that are also taken into account in the context of the housing project itself. As you may know, it is a low security environment, you've been there yourself and you've observed that. It is surrounded by just a normal colorbond kind of fence. So in making the operational decisions about who might participate in that project there are a number of different factors that we would take into account. As I said, participation in the project was voluntary so we needed to be able to encourage women and children to come forward to participate. Secondly, I guess, we also needed to have regard to the security aspects of all members of the family and I think it would be - my understanding is that it is more likely that women and children would be adequately accommodated in that less secure environment than some other family members that they may also have with them.

DR OZDOWSKI: So when you talk about security aspects you are implying that there is a risk of absconding of men?

DIMIA ASS SEC (UNAUTH ARRIVALS): That is one of the considerations.(47)

The risk of escape is clearly a legitimate concern in principle. However, it is the Inquiry's view that this concern had already been addressed by the existing eligibility criteria which requires that any participant - mother, daughter or young boy - be assessed to be a low management risk. In the event that any child or parent was assessed as a high flight risk it may have been reasonable to exclude that individual, however this possibility does not explain the general exclusion of all men.

Finally, the Department stated that 'the trial was intended for women and children - therefore, there is no issue of why men and boys were excluded when they were not considered to fall within the intended scope of the project'. Such circular reasoning does not explain why the project was only intended for women and children (to the exclusion of men) in the first place.

Since 2 December 2002, the criteria has permitted boys up to 17-years-old to participate in the project (but not fathers or adult brothers).(48)

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(c) What is the impact of the separation from husbands and fathers?

A father of children who were living in the Woomera housing project had the following to say about the impact of separation:

Children need their father and they need to be all together, like mentally and spiritually we are all sick. Also, they have separated me from the rest of my family and now I am alone in the donga here and my depression has been more and this has had a negative effect on my whole family.(49)

Independent examinations by the Department, the UN, this Commission, child welfare specialists and doctors of the Woomera housing project have all noted that although the environment in the housing project was an improvement on the Woomera detention facility, the separation of mothers and children from their husbands and fathers constituted a serious problem.

The Department commissioned an evaluation of the Woomera housing project in March 2002. That report found that 'participants have clearly benefited from the living conditions provided and it has been possible to maintain security with residents living in the town environment'.(50) The report notes that '[t]he residents and their husbands were unanimous in their views that living in the Project was a great deal better than living in the IRPC [Immigration Reception and Processing Centre]'.(51) It also found that the 'physical separation of family members (with adult male family members remaining in the IRPC) has not been a barrier to detainees wishing to participate in the Project. However, the separation remains the major concern of families'.(52)

In September 2002, the Inquiry joined with this Commission's Sex Discrimination Commissioner to investigate whether the housing project warranted the extension of an exemption from the operation of the Sex Discrimination Act 1984 (Cth). The exemption would protect the Department from complaints that there was discrimination against men by excluding them from participation. The then President of the Commission found that the improved environment for women and children meant that 'the continuation of the project is worthwhile and that the exemption to ensure the Project may operate without challenge under the Act is appropriate'.(53)However, she also found that:

[I]n view of the distress caused to families as a result of separation of family members and the impact separation has on the development and wellbeing of the family unit the Commission strongly urges DIMIA to further pursue the broadening of access by husbands/fathers to their wives/children at the Project, including giving serious consideration to the provision of dedicated family accommodation at the Project.(54)

By the time the Department sought an extension of the exemption in August 2003, the criteria had been expanded to include teenage boys but not fathers.(55)

In July 2002, the United Nations Special Representative for the High Commissioner on Human Rights found that:

Families in detention are sometimes separated (e.g. in the Woomera family housing project, where wife and children are living in Woomera town, while the husband is detained in the centre), which, instead of providing adequate care to families, in fact appears to introduce another element of distress. While the efforts of the Government to provide alternate and more humane places of detention ...have to be recognized, it appears questionable whether the separation of families is advisable, even if the participation in the family housing project is completely voluntary.(56)

The doctor treating patients from the housing project told the Inquiry that, when detainees first went to the housing project, they were content with the change in environment but that a year later the parents had great difficulty coping with the separation:

It is not difficult to predict that when you remove the husband or father from a family which is battling to cope in the face of mental illness and pressure that the mental health of the family will not improve and will likely deteriorate. Without stating the obvious, families do better with a caring mother and father together in the same household.(57)

Further, the South Australian Department of Human Services (DHS)(58) report on Woomera in April 2002 commended the Department's efforts to transfer young children to more family-friendly quarters but recommended that:

Families must be kept together at all times, which includes their stay in detention as well as being released together.(59)

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