Chapter Two

Domestic framework for detention

1.5   Relevant legal rules outside the migration context

Outside of the migration context there are a number of other legal rules which impact upon the detention of children. These can be divided into two broad groups: those standards relevant to the treatment of children, and those standards relevant to conditions of prisoners and persons in detention.

1.5.1  Standards relevant to treatment of children

Guardianship rules

At common law guardianship equates to the powers, duties and responsibilities of a good parent.  The jurisdiction of courts to intervene lay in the Sovereign’s duty as parens patriae to protect subjects who were unable to protect themselves.  This power was delegated to the Lord Chancellor and then to the Chancery Courts.  In Australia the jurisdiction resides in the Family Court of Australia (in respect of children of a marriage) and in the Supreme Courts (in respect of ex-nuptial children).  This jurisdiction is variously described as the parens patriae jurisdiction, wards of court jurisdiction, or the welfare jurisdiction, but these terms are essentially interchangeable.

Where it is claimed that a child is in need of protection, the relevant court may intervene and either become the formal guardian or appoint another person as guardian who acts subject to the supervision of the court.

As this was a common law development it has retained its great flexibility to adapt to changing needs and circumstances.  The Supreme Courts still retain that power (albeit within a more limited scope) as part of their inherent jurisdiction.  The jurisdiction is conferred on the Family Court by statute.  The decision of Justice North of the Federal Court in X & Y v the Minister for Immigration (1999) 92 FCR 524 indicates that at least in relation to unaccompanied minors, the Federal Court has jurisdiction through section 39B (1A)(c) of the Judiciary Act.  It is not clear, however, whether the Federal Court has guardianship or other similar jurisdiction in relation to other minor detainees, that is, in relation to those children in Australia whose parents or other guardian are in detention.

The parens patriae jurisdiction provides the relevant court with the full range of rights, powers and responsibilities which would be exercised by an adult in respect of the welfare of the child within the adult’s guardianship, and it is guided by the welfare of the child as the paramount consideration.  While historically it was directed to the protection of the property of a minor, it has now for some time extended to the protection of the child from any relevant or anticipated danger or harm.

An application in the parens patriae jurisdiction may be made by a relative or other person having a recognisable “interest” in the welfare of the child.  Alternatively, the child himself or herself could apply (if necessary without a next friend) if that child is able to give instructions.

In practical terms, a distinction is often drawn between guardianship and custody, guardianship being directed to issues of the longer term welfare of the child and custody to issues of daily care and control.

So far as the family law jurisdiction is concerned, these terms were included in the Family Law Act in 1983. Pursuant to that Act, guardianship was defined to mean the long term welfare of the child and all the powers, rights and duties that are vested by custom or law in a guardian, and custody to mean issues of daily care and control.

Those definitions have been followed in the child protection legislation of some of the States and Territories.  Under that legislation (see, for example, the Children and Young Person’s Act 1989 (Vic)), the departmental head may become the guardian of the child or may ask the Children’s Court to make an order directing guardianship or custody to a third party.[42]

Guardianship of child detainees

In addition to the duty of care which the Minister and the Department of Immigration has towards all children in immigration detention, the Immigration and Guardianship of Children Act 1946 (Cth) provides that the Minister for Immigration is the guardian of non-citizen children who enter Australia outside of the care of relatives. Although the power may be delegated to State authorities, essentially it resides in that Minister.  In that capacity, the Minister is obligated to fulfill the responsibilities and duties of a good guardian and, unless there are Commonwealth statutory provisions to the contrary, may be amenable to challenge in the courts if it is apprehended that the standard of guardianship falls below an appropriate level.

Recognising their particular vulnerability, the Department of Immigration claims to have in place special arrangements for UAMs in immigration detention. Among those special arrangements, the Department endeavors, where possible to place UAMs, with adults willing and able to take a caring and mentoring role in relation to the child. Nevertheless, while the government clearly acknowledges that UAMs need particular care, no apparent justification is offered in suppport of the fact that UAMs are held in immigration detention in the first place, rather than being released into the community on bridging visas. The only basis offered is the government’s view that the best interests of a child are served by having them remain in the company of their compatriots.

The guardianship position of children who are accompanied by either their parents or other suitable adults, and who are in detention, is not clear.  Presumably the parents continue to remain the child’s guardians, but in practical terms the Minister exercises all the powers of a guardian and custodian in respect of such children and, arguably, may be amenable to challenge if it were considered that the circumstances of the detention fell below an appropriate standard.  This would be, however, subject to statutory provisions to the contrary.

The jurisdiction of the relevant courts relates to any minor who is present within the jurisdiction other than for transitory purposes (though in that case jurisdiction would include circumstances of imminent danger):  Re P [1965] Ch 568.  The UK courts have held that the relevant courts had jurisdiction to make an order for the custody, education and maintenance of a child ordinarily resident within the jurisdiction although not a British subject.  An alien infant ordinarily resident in the United Kingdom owes allegiance to the Crown and, as a corollary of that, has a right to the protection of the Crown and the jurisdiction of the courts.  This approach was generally approved by the House of Lords in Re S [1997] 4 All ER 251 at 259.  But in Re Mohammed Arif [1968] Ch 643, the court made it clear that the wardship jurisdiction should not be used to undermine the immigration legislation which provided a code and which entrusted its administration to the minister and department so long as they exercised their powers honestly and reasonably.

Child welfare legislation

State authorities with responsibilities for child welfare and protection also have responsibilities for children held in immigration detention centres in their states.  The DIMIA website states that DIMIA is currently working to develop Memoranda of Understanding (MOUs) between DIMIA and a number of state welfare authorities regarding appropriate protocols relating to children held in immigration detention centres, to provide the framework for a cooperative approach for the care of children in immigration detention.

The Flood Report[43] recommended that MOUs between DIMIA and each of the state child welfare and protection authorities be developed so as to clarify the roles and responsibilities of each party in cases where state authorities recommend that a child be removed from an immigration detention centre.  It is not clear why, in March 2002, two years after the report was released, negotiations regarding the development of MOUs are continuing and, as a result, no MOUs are yet in place. Further, no statement appears to have been made regarding the progress of the current negotiations.

State legislative requirements

Victoria

Pursuant to section 64 of the Children and Young Persons Act 1989 (Vic) (CYPA/VIC) people working in a number of specified occupations must report beliefs (that is, beliefs formed on reasonable grounds) that:

·                     a child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type; or

·                     a child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type.

The CYPA/VIC states that such suspicions must be reported if formed in the course of a person’s employment. People failing to notify suspicions may be fined.

Occupations to which the reporting requirement applies include: registered medical practitioners; registered psychologists or probationary psychologists; registered nurses; registered teachers; head teachers or principals of State schools; proprietors of, or people with a post-secondary qualification in the care, education or minding of children who are employed by a children's service; people with a post-secondary qualification in youth, social or welfare work who work in the health, education, community or welfare services field; people employed in the Public Sector to perform the duties of a youth and child welfare worker; members of the police force; probation officers; and youth parole officers.

New South Wales

Section 27 of The Children and Young Persons (Care and Protection) Act 1998 (NSW) (CYPA/NSW) requires people who hold management positions in organisations that deliver, or who themselves deliver,health care, welfare, education, children's services, residential services, or law enforcement, wholly or partly, to children, to report in cases where:

·                     they suspect on reasonable grounds that a child is at risk of harm; and

·                     that suspicion is formed in the course of the person’s work.

At risk of harm is defined in the CYPA/NSW as including actual harm or the possibility of physical, sexual or psychological harm.

Western Australia

There is no legislative requirement in Western Australia to report suspicions of child abuse to the Department of Family and Children’s Services (FCS).  While FCS has in place arrangements with a number of agencies where relevant officers report suspicions to FCS), no such arrangement currently exists for immigration detention facilities in Western Australia.

South Australia

Pursuant to section 11(1) of the Children’s Protection Act 1993 (SA) (CPA/SA) people working in a number of specified occupations must notify Family and Youth Services (FAYS) as soon as practicable after he or she forms the suspicion if:

·                     he or she suspects on reasonable grounds that a child has been, or is being abused or neglected; and

·                     that suspicion is formed in the course of the person’s work(whether paid or voluntary) or in carrying out of official duties.

Abuse or neglect have corresponding meanings under the CPA/SA and are definedin relation to a child as including:

·                     sexual abuse; and

·                     physical abuse, emotional abuse, or neglect of the childto the extent that: 

-        the child has suffered, or is likely to suffer, physical or psychological injury detrimental to the child's well-being; or

-        the child's physical or psychological development is in jeopardy.

Failure to notify is an offence under the CPA/SA. Themaximum penalty for failing to report an offence is $2,500. Section 12 of the CPA/SA provides that people who report suspected instances of child abuse are immune from civil liability if they report their suspicion in good faith.

Occupations to which the reporting requirement applies include (see section 11(2)):

·                     medical practitioners;

·                     registered or enrolled nurses;

·                     dentists;

·                     psychologists;

·                     members of the police force;

·                     community corrections officers (officers or employees of an administrative unit of the Public Service whose duties include the supervision of young or adult offenders in the community);

·                     social workers;

·                     teachers in any educational institution (including a kindergarten);

·                     approved family day care providers;

·                     any other people who are employees of, or volunteers in, a government department, agency or instrumentality, or a local government or non‑government agency, that provides health, welfare, education, child care or residential services wholly or partly for children.

Sections 15 and 17 of the CPA/SA provide thata member of the police force, or an employee of the Department for Family and Community Services (DFCS) authorised by the Minister to exercise powers under the CPA/SA, may remove the child from the guardian or guardians, using such force (including breaking into premises) as is reasonably necessary for the purpose if he or she believes on reasonable grounds:

:

·                     that the safety of a child who is in the company of his or her guardian or guardians is in imminent danger; and

·                     that the child is a child who is at risk.

Section 15 and 16 of the CPA/SA provides that if an officer believes on reasonable grounds:

·                     that a child is in a situation such that, if not removed pursuant to this section, the child's safety would be in serious danger; and

·                     the child is not in the company of any of his or her guardians,

that officer may remove the child from any premises or place, using such force (including breaking into premises) as is reasonably necessary for the purpose.

Section 37 of the Act provides if the DFCS Minister is of the opinion

·                     that a child is at risk; and

·                     that a Court Order should be made in respect of the child to secure his or her care and protection,

the Minister may apply to the Youth Court (YC/SA) for such an order under section 38.

If the YC/SA finds that a child is at risk because a person other than the guardian with whom the child resides has abused, neglected or threatened the child, the YC/SA cannot make an order removing the child from the guardianship or custody of the guardians with whom the child resides unless satisfied they knew, or ought to have known, of the abuse, neglect or threats.  Where the CEO/DFCSC or some other specified person or authority is, by order of the YC/SA, to supervise a child who has entered into an undertaking, the supervisor may exercise such powers as the DFCS Minister authorises either generally or in relation to a particular supervisor.

Practical operation of mechanisms

The Flood report noted that legal advice received by DIMIA and state authorities had confirmed that child welfare agencies such as FAYS were legally empowered to investigate child abuse allegations in Commonwealth detention facilities.

However, the report acknowledged that difficulties may arise if child welfare authorities sought to remove a child from a detention facility, as the state legislation empowering that removal may be inconsistent with the Migration Act, which requires the mandatory detention of “unlawful” non-citizen children. 

Moreover, there are severe practical limitations on the effectiveness of state child protection mechanisms. Currently, if a state authority investigates an allegation of child abuse in a detention facility and recommends the child’s removal, DIMIA can:

·                     move the child and family to another detention facility or location which DIMIA declares  a place of detention; or

·                     release the child into the community on a Bridging Visa.

This lack of clarity between the role of the police and that of child welfare authorities in relation to immigration detention facilities has resulted in a critical absence of ordinary accountability in relation to child detainees. State child welfare legislation is rarely invoked in practice, even though situations in detention often give rise to the real possibility of emotional or psychological harm being caused to child detainees. The rights of entry and investigation enjoyed by state welfare agencies are not exercised at IDCs, with those entities preferring to rely on “permission” from the Commonwealth government before they act.

These problems are exacerbated by the fact DIMIA does not apply relevant state laws and, as the following examples illustrate, is not pro-active in arranging alternative accommodation for child detainees or UAMs at risk. DIMIA is only ever reactive: where community groups raise concerns; where serious health risks (mental or physical) are imminent, or; , where a proposal of alternative accommodation is actually put in place. This passive attitude is not a proper discharge of the Department or the Minister’s guardianship responsibilities.

Example 1

On Monday 18 December 2000, the DHS/SA issued a Media Statement regarding the FAYS investigation into allegations of sexual abuse of a 12 year old detainee by his father and other men at Woomera IRPC.  DHS/SA Chief Executive Christine Charles said the investigation was launched following the receipt by DHS/SA in November 2000 of a medical incident report dated 13 March 2000 providing particulars of the child and the allegations. 

The Crown Solicitor of South Australia and an independent adviser, Mr Jim Cramond a former Chief Magistrate of South Australia, both considered the information available to the investigation and found that allegations of child sexual abuse could not be substantiated.  Ms Charles stated that following the completion of the investigation, the child and his father had been reunited, and decisions about their future rested with the Minister for Immigration.

At the time of the media statement, Ms Charles stated FAYS were considering the implications of the delay between the alleged incident (13 March 2000), and receipt by DHS/SA in November 2000, eight months later, of information regarding the incident. . Ms Charles stated the matter would be pursued in the 2000 HREOC inquiry of Philip Flood, and no further comment regarding the investigation would be made by DHS/SA.

Example 2

In January 2002 a number of UAMs at Woomera IRPC were removed from the centre and taken into alternative care. The decision followed detailed discussions between the Federal Immigration Minister, Phillip Ruddock, and South Australian Human Services Minister Dean Brown.  Both Ministers agreed the alternative arrangements were needed to protect some children at the facility from the coercion of other adult detainees.  DIMIA provided to Mr Brown a report outlining concern that some parents or other detainees had been coercing children to take part in protest action.  As a result, child protection notifications were made in relation to a number of those children, which included UAMs and other children at risk.

Problems in processes relating specifically to Woomera IRPC

The Flood Report stated that files maintained at Curtin, Maribyrnong, Perth, Port Hedland and Villawood by ACS staff were satisfactory, but the files at Woomera IRPC indicated careless procedures and possible interference. Mr Flood stated that a separate report commissioned by DIMIA confirmed his view that arrangements for the security of files at the Woomera IRPC during 2000 were inadequate.

Mr Flood was specifically asked to look into the case of allegations concerning a 12 year old boy then being investigated by FAYS (example 1 above).

No formal incident report was prepared for this matter, and it was reported to DIMIA’s Canberra Office eight months after the alleged incident.  Mr Flood stated that the matter’s history clearly indicated legislative and administrative requirements had not been followed by ACS.  He said the problems were not a result of the agreed legislative and administrative incident processes,  but rather a result of these processes not having been followed by ACS.[44] 

After assessing the evidence made available, Mr Flood stated his belief that, on 13 and 14 March 2000, when advised by the duty nurse of her belief that the child was sexually assaulted,  the ACS Centre Manager at Woomera IRPC failed to comply with requisite policy and procedures as well as contractual requirements related to reporting of the incident and alleged assault. 

A report by a nurse of her belief that a child has been allegedly raped is an incident requiring official reporting to DIMIA’s Canberra Office. Upon the allegations being reported, the child should have been referred for hospital examination and the allegations reported to the police.  In addition, the matter should have been reported to FAYS as required by legislation. 

Mr Flood suggests that these problems could have been avoided if DIMIA staff at Woomera IRPC had advised DIMIA’s Canberra Office of earlier recommendations from an ACS welfare officer and an ACS doctor that the boy and his father be relocated to an urban detention centre to address their particular needs. 

Mr Flood said the incident indicated Woomera IRPC staff were not well briefed on DIMIA and ACS policy.  Some Woomera IRPC staff reported to Mr Flood that they had received no formal or informal induction or orientation on arrival to take up duty at Woomera IRPC.  There was also a significant lack of understanding among staff of South Australian legislative requirements relating to child abuse.

Although FAYS did conclude allegations of sexual abuse of the child could not be substantiated, FAYS noted that an investigation at the time of the incident would have benefited the child, ACS and DIMIA.

1.5.2    Standards relevant to conditions of detention

Prisons legislation

There is no overarching national legislative regime governing prisons in Australia, nor are there any federal prisons. Each State (and the Northern Territory) is governed by its own particular correctional legislation.[45] Accordingly, the rights of prisoners and others in custody vary depending on the jurisdiction. The Commonwealth and Territories (aside for the Northern Territory) transfer their prisoners to other jurisdictions for detention.[46]

Prisons are largely regulated via subordinate legislation, in particular, by prison regulations. The key sources of law for prisoner rights and standards (which vary in their legal effect) are as follows:

·                     Correctional legislation;[47]

·                     Subordinate legislation (primarily regulations established under the principal correctional legislation);[48]

·                     In the case of Victoria and Tasmania,  statutory charters of prisoners’ rights included in the correctional legislation;[49]

·                     Additional rules or determinations (which are made by differing bodies depending on the jurisdiction, and have the force of law);[50]

·                     Internal guidelines and instructions;[51] and

·                     International standards.

These rights can be contrasted with the relatively weak protection afforded to persons in immigration detention.

The operation of Correctional Legislation & the Statutory Charter of Prisoners Rights in Victoria:

There are various rights relating to the treatment of prisoners in Victoria which are expressly afforded under Victoria’s charter of prisoner’s rights. These rights cover a range of aspects of prisoner treatment, and exist in addition to any rights which are provided for under the Act or exist at common law.[52]

The key rights embodied in the Victorian charter are contained in s47(1)[53]:

(a) if not ordinarily engaged in outdoor work, the right to be in the open air for at least an hour each day, if the weather permits;

(b) the right to be provided with food that is adequate to maintain the health and well-being of the prisoner;

(c) the right to be provided with special dietary food where the Governor is satisfied that such food is necessary for medical reasons or on account of the prisoner's religious beliefs or because the prisoner is a vegetarian;

(d) the right to be provided with clothing that is suitable for the climate and for any work which the prisoner is required to do and adequate to maintain the health of the prisoner;

(e) if not serving a sentence of imprisonment, the right to wear suitable clothing owned by the prisoner;

(f) the right to have access to reasonable medical care and treatment necessary for the preservation of health including, with the approval of the principal medical officer but at the prisoner's own expense, a private registered medical practitioner physiotherapist or chiropractor chosen by the prisoner;

(g) if intellectually disabled or mentally ill, the right to have reasonable access within the prison or, with the Governor's approval outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances;

(h) the right to have access to reasonable dental treatment necessary for the preservation of dental health;

(i) the right to practise a religion of the prisoner's choice and, if consistent with prison security and good prison management to join with other prisoners in practising that religion and to possess such articles as are necessary for the practice of that religion;

(j) the right to make complaints concerning prison management to the Minister, the Secretary, the Commissioner, the Governor, an official visitor, the Ombudsman, the Health Services Commissioner and the Human Rights Commissioner;

(k) the right to receive at least one visit which is to last at least half an hour in each week under section 37;

(l) the right to be classified under a classification system established in accordance with the regulations as soon as possible after being sentenced and to have that classification reviewed annually;

(m) subject to sections 47A and 47B, the right to send letters to, and receive letters from, the following people without those letters being opened by prison staff--

(i) the Minister, the Secretary, the Commissioner or an official visitor;

(ii) a member of Parliament;

(iii) a legal practitioner representing the prisoner, or from whom the prisoner is seeking legal advice;

(iv) the Ombudsman;

(v) the Health Services Commissioner;

(vi) the Human Rights Commissioner;

(vii) any person authorised to act on behalf of a person listed in sub-paragraph (iv), (v) or (vi);

(n) subject to section 47D, the right to send and receive other letters uncensored by prison staff;

(o) the right to take part in educational programmes in the prison.

Limitations and comparison with immigration detainees

There are various important limitations on the effective operation of the above rights. In particular, there is no mechanism to enforce such rights nor are there alternative remedies available (such as an action in damages). [54] Moreover, certain rights (such as the right to take part in educational programmes) lack further detail, and many of the rights require the approval of prison authorities before they can be enjoyed.[55] Various rights or benefits contained in the charters simply repeat those which have already been granted to prisoners by virtue of provisions in the correctional legislation (such as the right to be classified according to the classification system established under the regulations). Finally, the practical effect of such rights from the prisoners point of view is questionable; prisoners have been largely unsuccessful in invoking such rights in legal actions for a number of years.[56]

Nevertheless, the rights enjoyed by prisoners are in stark contrast to the standards governing the detention of immigration detainees - in particular, no statutory or subordinate legislation encodes detainees’ rights in respect of treatment in detention. Their treatment is subject only to the Immigration Detention Standards[57] contained in the Commonwealth’s contract with ACS, which cannot be enforced by individual detainees. The day-to-day operation of the centres is based in highly discretionary administrative powers conferred on the Minister for Immigration and delegated to the detention centre operators. Finally, there is no equivalent in the immigration context to the office of the Inspector-General of Prisons, which operates to ensure accountability and the maintenance of standards.

Juvenile detention legislation

The legislation relating to detention of children and juveniles varies in each jurisdiction and, in some jurisdictions (such as the NT and ACT), has experienced recent legislative developments.At a general level, however, the comment can be made that the legislation and subordinate legislation governing juveniles who are suspected of, or have been convicted of, a criminal offence, provides a far clearer and more effective framework of safeguards and delineation of responsibility for minors deprived of their liberty than that governing the detention of child asylum seekers who have committed no crime.

Legislative framework in Victoria

The primary Act governing the detention of juveniles in Victoria is the Children and Young Persons Act 1989 No. 56 (“the Act”)[58]. The relevant sections of the Act are detailed below.

A “child” is defined under the Act as:

(a) in the case of a person who is alleged to have committed an offence, a person who at the time of the alleged commission of the offence was under the age of 17 years but of or above the age of 10 years; and

(b) in any other case, a person who is under the age of 17 years or, if a protection order continues in force in respect of him or her, a person who is under the age of 18 years.

Custody of children following arrest

·                     If arrested, a child must be bought before the court or a bail justice no later than 24 hours after arrest: s129(1).

·                     Under s130 (1) a child remanded in custody by a court or a bail justice must be placed in a remand centre.

Pursuant to s130(2), where a child is remanded in custody in a police gaol, he or she is entitled to the following:

(a) to be kept separate from adults who are detained there;

(b) to be kept separate according to their sex;

(c) subject to the Corrections Act 1986 and the regulations made under that Act, are entitled to receive visits from parents, relatives, legal practitioners, persons acting on behalf of legal practitioners and other persons;

(d) to have reasonable efforts made to meet their medical, religious and cultural needs including, in the case of Aboriginal children, their needs as members of the Aboriginal community;

(e) to complain to the Chief Commissioner of Police or the Ombudsman about the standard of care, accommodation or treatment which they are receiving in the police gaol;

(f) to be advised of their entitlements under this sub-section.

Alternatives to detention

Where a court has convicted a child of an offence, it may make various orders in relation to detention, including:

·                      Youth attendance order: This  may be granted where the Court considers that the child would otherwise be sentenced to detention in a youth training centre as a result of the gravity or habitual nature of the child's unlawful behaviour, and on the day of sentencing, the child is of or above the age of 15 years but under 18 years: s170.

·                      Youth residential centre order: This  may be granted where the Court considers the offence to be sufficiently serious, and the offence is punishable by imprisonment. This Order applies to children aged 10 years or more but under 15 years: s186(1).

·                      Youth training centre order: This applies to children aged 15 years or more but under 18 years, where the court considers the order appropriate and the offence is punishable by imprisonment: s188(1).

Temporary leave of absence from legal custody

Pursuant to s256 of the Act, where a person is detained in a remand centre, youth residential centre or youth training centre, he or she may be permitted by the Secretary or the officer in charge to take temporary leave of absence from detention. Purposes for which this permit may be granted include:

(a) to engage in employment, whether with or without remuneration;

(b) to attend an educational or training institution;

(c) to visit his or her family, relatives or friends;

(d) to participate in sport, recreation or entertainment in the community;

(e) to attend a hospital or a medical, dental or psychiatric clinic or like place for receiving treatment or for examination;

(f) to attend a funeral;

(g) to accompany members of the police force for a specified purpose or for assisting in the administration of justice;

(h) to seek employment;

(i) to live in any other accommodation specified in the permit for any purpose specified in the permit.

Other conditions of detention

·                     A person may be searched under the Act consistently with s256A.

·                     Under s256C, the officer in charge of a remand centre, YRC or YTC may authorise the isolation of a person detained in the centre, that is, the placing of the person in a locked room separate from others and from the normal routine of the centre, subject to s256C (2)-(8).

However, undersection 256B of the Act, the following actions are prohibited in relation to a person detained in a remand centre, youth residential centre or youth training centre or a child detained in a police gaol:

(a) the use of isolation (within the meaning of section 256C) as a punishment;

(b) the use of physical force unless it is reasonable and--

(i) is necessary to prevent the person or child from harming himself or herself or anyone else or from damaging property; or

(ii) is necessary for the security of the centre or police gaol; or

(iii) is otherwise authorised by or under this or any other Act or at common law;

(c) the administering of corporal punishment, that is, any action which inflicts, or is intended to inflict, physical pain or discomfort on the person or child as a punishment;

(d) the use of any form of psychological pressure intended to intimidate or humiliate the person or child;

(e) the use of any form of physical or emotional abuse;

(f) the adoption of any kind of discriminatory treatment.

It is an offence under the Act to fail to take reasonable care to protect a child from “significant harm” (arising, for example from sexual or physical abuse):  s261.

1.6   Existing legal framework for detention

There are a number of legal mechanisms which prescribe and govern the detention of asylum seekers in Australia. However, in assessing the adequacy of the existing legal framework for detention, it is important to distinguish between those mechanisms which set out rights and standards, and those which provide enforcement and accountability. The nature of the visa framework, as well as the constitutional issues raised by detention must also be considered.

1.6.1    Rights and standards under existing framework

The detention of asylum seekers in Australia is authorised and regulated under four legal mechanisms:

(a)        Statutory;

(b)        Administrative;

(c)        Contractual; and

(d)        Common law.

The nature of these mechanisms, and the rights of children and UAMs in detention under each is discussed below.

Statutory mechanisms

Migration Act

The Migration Act (‘the Act’) is the principal statutory basis for the detention of asylum seekers, including children and UAMs, in Australia. The power to detain is contained in section 189 of the Act, which provides that if an officer knows or reasonably suspects that a person is an unlawful non-citizen (defined in section 14 as a non-citizen without a valid visa), the officer must detain the person. Section 196 provides that an unlawful non-citizen must be kept in immigration detention until he or she is removed from Australia, deported or granted a visa.

The word “detain” is defined in section 5 of the Act to mean to:

(a)        take into immigration detention; or

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

and includes taking such action and using such force as are reasonably necessary to do so. “Immigration detention” is defined in section 5 of the Act as being in the company of, and restrained by, an officer, or as being held by, or on behalf of, an officer in, for example, a detention centre established under the Act.

The power to establish detention centres is contained in section 273 of the Act, which provides:

(1)        The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.

(2)        The regulations may make provision in relation to the operation and regulation of detention centres.

(3)        Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:

            (a)        the conduct and supervision of detainees;

(b)        the powers of persons performing functions in connection with the supervision of detainees.

There are various other provisions of the Act which deal with detention and detainees. Pursuant to sections 193 256, detainees who arrive unlawfully by boat have the right to legal advice or visa assistance if they request it but not the right to be advised of their right to legal advice or visa assistance. These provisions have been effected in conjunction with the administrative practice of ‘separation detention’ (defined earlier as the system whereby new detainees are isolated from the main population of the detention centre for the purposes of ‘screening out’ those detainees who do not, in DIMIA’s view, immediately engage Australia’s international protection obligations).

Under section 252 of the Act, authorised officers are empowered to search detainees, without warrant, for the purposes of finding out whether the person has “a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape from immigration detention.” Under ss 252A-252F, strip searches are permitted, without warrant, if “an officer suspects on reasonable grounds” that the detainee has a hidden weapon or other thing capable of being used to inflict bodily injury or to help the person to escape from immigration detention. Section 252A specifically provides for strip searches of detainees between the ages of 10 and 18, so long as the search is authorised by a magistrate. If the detainee is over 18, the strip search needs only to be authorised by a senior Departmental officer.

Migration Regulations

Despite the terms of s 273 of the Act, the Migration Regulations 1994 (Cth) (‘the Regulations’) contain very few provisions which relate to the operation or conditions of detention. The only substantive regulation is regulation 5.35, which allows the Secretary to authorise “medical treatment” (which is defined to include “the administration of nourishment and fluids”) of a detainee without that detainee’s consent. Sub regulation (3) specifically provides that an authorisation by the Secretary “is authority for the use of reasonable force (including the reasonable use of restraint and sedatives)”. The provision applies without differentiation to child detainees and UAMs.

Rights in relation to statutory mechanisms

Detention of non-citizens has been held by the High Court to be within the legislative power of the Commonwealth: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. In Lim, the High Court distinguished between punitive and non-punitive detention, holding that “administrative” detention of unauthorised arrivals was not punitive. However, the Court noted that administrative detention may become punitive if not “limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable the application for an entry permit to be made and considered” (see (1992) 176 CLR 1 at 10 per Mason CJ, 30-32 per Brennan, Deane and Dawson JJ, and at 45-46 per Toohey J).

It should also be noted that the power of the courts in relation to judicial review of decisions and conduct under the Act has been severely restricted in recent years. In September 1994, Part 8 of the Act was introduced, which purported to create an exclusive regime for judicial review of administrative action under the Act and which limited the available grounds of review by excluding those, such as breach of the rules of natural justice or Wednesbury unreasonableness, that were perceived to be too advantageous to applicants. In Abebe v Commonwealth (1999) 197 CLR 510 the High Court ruled the scheme to be constitutionally valid, thereby funnelling more and more applicants towards its own constitutionally entrenched jurisdiction under s 75(v) of the Constitution.

Further amendments in October 2001 have now purported to oust judicial review entirely. Section 474 of the Act now provides that, unless specifically excluded, any decision of an administrative character made, or proposed to be made, under the Act, or under a regulation or other instrument made under the Act (defined as a “privative clause decision”):

·                     is final and conclusive; and

·                     must not be challenged, appealed against, reviewed, quashed or called into question in any court; and

·                     is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

It is interesting to note, however, that s 273 is expressly excluded from the operation of s 474, along with ss 217 (conveyance of removees), 218 (conveyance of deportees), 223 (valuables of detained non-citizens) and 252 (searches of persons) (though not s 252A, which relates to strip searches). It should also be noted that the administration of detention centres is carried out by private contractors whose actions might not be subject to the administrative law remedies which are available in respect of decisions and conduct of officers of the Department.[59] As Davies notes, there are two lines of authority on this point.[60]

This renders the rights of detainees in relation to the conditions of their detention uncertain. On the one hand, it could be argued that any actions of the Department in relation to detainees which are not specifically provided for under the Act are implied incidents of the power to detain, and as such are privative clause decisions which cannot be reviewed in any court. On the other hand, it could be argued that such conduct arises under the power to establish and maintain detention centres, and as such is outside the scope of the privative clause and may be reviewed under the Administrative Decisions (Judicial Review) Act 1975 (Cth) or s 39B of the Judiciary Act (Cth).

Moreover, the constitutionality of the privative clause, and the extent of its effectiveness, have yet to be authoritatively determined by the High Court.  The Explanatory Memorandum to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) makes it clear that the government intends the High Court to interpret s 474 in accordance with the doctrine enunciated in R v Hickman; ex parte Fox (1945) 70 CLR 598. If that is the case, it is arguable that “excess of jurisdiction” remains an available ground of review. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, the High Court held that the notion of jurisdictional error includes an error which causes the decision-maker “to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion”. It is possible, therefore, that the rights of detainees under the privative clause are broader than they at first appear.

Finally, it should be noted that under Part 8A of the Act, restrictions are placed on court proceedings that may be brought in relation to decisions under the Act. In particular, under s 486B representative proceedings, and under s 486C public interest proceedings, are prohibited in relation to all proceedings “that raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non-citizens.”

On a broader level, the comment can be made that neither the Act nor the Regulations is in any respect a mechanism for the grant of rights; rather, each is concerned only with denying or authorising restrictions on rights. As a result the position of detainees under the Act, and of children and UAMs in particular, is extremely constrained, not just in relation to the mechanisms for review which do exist, but also in relation to the conditions of their detention more generally.

Administrative mechanisms

Migration Series Instructions (MSIs)

The Department has produced a number of documents described as Migration Series Instructions (MSIs) that purport to prescribe procedures in relation to, among other things, the conditions and operation of detention. The legal status of MSIs is uncertain - they are not statutory instruments, but they contain procedures which appear to go beyond the bare skeleton of powers provided in the Act. The Department describes MSIs as setting out its interpretation of its obligations under the Act and Regulations. To the extent that they purport to authorise action not specifically provided for under the Act, therefore, it seems that MSIs regulate the operation of administrative power under the broad enabling provisions contained in the Act.

An important feature of these guidelines is what they lack: there is no MSI which specifically relates to children or UAMs in detention. MSI-234 “General Detention Procedures” outlines “the general procedures in relation to the exercise of the detention powers” under the Act. There is also an MSI in relation to “Detention of unlawful non-citizens” and a “Compliance and enforcement overview” which deals with detention of non-citizens.

MSI-234 contains provisions regarding the use of interpreters (sections 3 and 4) and the requirement to advise detainees of the nature of and reasons for detention (section 5), the lawful use of the power to detain (section 7), the duty of care on the part of officers, including their duty in respect of medical attention (section 8), the use of force, including principles governing the use of handcuffs (section 9), access by detainees to legal advice (section 10) and transfer of custody of detainees (section 14). Of these provisions, the only one which mentions children or UAMs directly is a direction in section 9.3.2 that “minors, the frail and the elderly should not be handcuffed”.

General administrative powers - separation detention

The practice of separation detention is described in many of the reports which have assessed the system of mandatory detention. However, in none of those reports is a legislative basis for the practice identified; the Flood Report simply states that “On initial arrival at or prior to removal from a facility, provision is made for periods of separation detention”, while the Ombudsman’s report describes separation detention as “an administrative arrangement that restricts a person or a group of persons to a particular area of a detention facility on initial arrival at or prior to removal from a facility.”[61] The only possible conclusion is that the authority to maintain separation detention derives as an administrative incident of the power to detain. Needless to say, the adequacy of this foundation for such an onerous and restrictive practice is open to question. In particular, it is arguable that separation detention is neither necessary for nor proportionate to the grant of power.

As mentioned above, the only provisions of the Act that contemplate separation detention are s 193 and s 256, which removes the right of detainees who arrive unlawfully by boat to be advised of their rights to legal advice or visa assistance. In practice, this restriction could only be effective in conjunction with the artificial screening practice of separation detention, whereby new detainees are removed from the ordinary detention population and, if not seen as invoking Australia’s protection obligations, denied any further right to do so in future.

Rights in relation to administrative mechanisms

As mentioned above, the legal status of both MSIs and the practice of separation detention is uncertain. Actions which are taken pursuant to or in furtherance of these policies can therefore best be described as administrative acts under the broad detention powers contained in the Act. The rights of detainees in relation to such actions is discussed above.

It should also be noted that pursuant to cl 7.1 of the General Agreement between the Commonwealth and Australasian Correctional Services (“ACS”), ACS must “comply with all Relevant Legislation, Policy and Procedures” when delivering detention services. “Policy” is defined in the Agreement as “the policy of or adopted by the Commonwealth government from time to time in connection with the Australian Immigration Detention and Removal Function”, and would presumably include MSIs.

Contractual mechanisms

Detention Centre Agreement

On 27 February 1998 the Department entered into a contractual agreement with ACS for the provision of detention and transport services throughout Australia. ACS provides the services through its agent Australasian Correctional Management (“ACM”). The agreement comprises three separate contracts with ACS:

·                     General Agreement;

·                     Detention Services Agreement; and

·                     Occupation Licence Agreement.

The General Agreement states “the Commonwealth wishes to enter into a long term relationship with [ACS] for the provision of Services under separate Services Contracts” (cl 2.1). Services are defined in the Detention Services Contract (cl 3.1.1) to include guarding, interpreting and translating, catering, cleaning, education, welfare, health services, escort and transport services and any other services necessary to enable delivery of Detention Services in accordance with the Immigration Detention Standards (the Standards). Under clause 7.1 of the General Agreement ACS must when delivering Services under a Service Contract comply with all relevant legislation, policy and procedures and provide all services efficiently, and in accordance with industry best practice and the Standards. However, under the Standards ultimate responsibility for immigration detainees remains with the Department.

The General Agreement provides (in cl 7.3) that each Service Contract shall have performance measures which specify how the delivery of the Services is measured against the Standards. The Commonwealth must pay a “Performance Linked Fee” in consideration for providing the Services (cl 7.4). The details of what constitutes benchmark performance for each Standard, and the details of how the Performance Linked Fee is calculated, have been deleted from the publicly available versions of these contracts. However, draft Standards containing benchmarks for performance have been released in relation to the proposed request for tender to be issued by the Department once the current Detention Services Contract expires. Generally those benchmarks either require there to be “no substantiated instance” of a failure to comply with a particular obligation (eg, “no substantiated instance of detainees not being provided with safe and secure accommodation”), or that “the Department is provided with evidence” of compliance with an obligation (eg “the Department is provided with evidence that the staff have had appropriate ongoing awareness training”).

The General Agreement also requires ACS to “keep the Commonwealth fully informed of all aspects of the delivery of the Services” by providing reports “in the medium which allows the Commonwealth to access the information in the manner that best fulfils the requirements of the [Standards]” (cl 4.3). ACS also must “immediately report any major incident or material problem that may affect delivery of Services in accordance with the relevant Service Contract and take appropriate action to deal with that incident or problem so that delivery of the Services is not affected” (cl 4.4). Failure to remedy a major incident or material problem, or taking action which is ineffectual, is an event of Default under the General Agreement (cl 4.4).

Incident reporting

Clause 13.3 of the Standards requires ACS to fully report in writing to the DIMIA Facility Manager immediately, and within 24 hours to the Director of the DIMIA Detention Operations Section in Canberra, any incident which threatens or disrupts security and good order, or the health, safety or welfare of the detainees. 

Incident/s are defined in the Standards as a variation from the ordinary routine of detention centre, and are classified as Critical, Major and Minor.  The classification depends on the potential perceived by ACS for the incident to threaten the order of the facility, detainee transport services, or immigration processing.  The following incident examples relate specifically to detainee health:

·                     critical incidents include medical emergencies such as death of a detainee, serious accident or injury, or serious self-harm;

·                     major incidents include medical risk such as voluntary starvation over 24 hours; and

·                     minor incidents include medical issues such as attempted or threatened self-harm, voluntary starvation under 24 hours, end of voluntary starvation, and birth of a child.

The Flood Report notes that DIMIA has outlined the following content for incident reports:

·                     date and time of commencement and conclusion of the incident. (If the incident is not concluded, follow-up reporting is required);

·                     details of those involved in the incident including:

·                     ACS officers by name and title;

·                     detainees by name and numerical identifier, including date of birth, sex, nationality, date of detention, and reason for detention;

·                     immigration staff;

·                     other staff such as medical officers;

·                     contextual background including any previous incidents involving the detainee;

·                     immediate background to the incident;

·                     clear outline of the incident; and

·                     implications of the incident for management of the detention centre, ACS, DIMIA and other detainees.

Immigration Detention Standards

The Standards constitute the primary means by which the Department regulates and monitors the performance of ACS in operating the detention centres. As mentioned above, compliance with the Standards is ostensibly the benchmark against which the “Performance Linked Fee” is calculated. The Standards also contain the mechanism by which the Department monitors the performance of ACS, in the form of incident reporting and the requirement for a secure box within each detention centre for complaints by detainees (cl 7.11.1).

The Standards commence with a statement of the principles which “should underpin the provision of the detention function and the standard of care to be provided” and indicates that “the service provider’s actions must be guided by them.” These principles, such as “immigration detention is required by the Migration Act and is administrative detention, not a prison or  correctional sentence” and “the dignity of the detainee is upheld in culturally, linguistically, gender and age appropriate ways”, are followed by detailed “outcome standards” that “relate to the quality of care and quality of life expected in immigration detention facilities.”

The Standards prescribe obligations with respect to the lawfulness of detention, the dignity and privacy of detainees, their social interaction and safety, the selection and training of detention centre personnel, the management and security of detention centres, the management of detainees, religious and “individual care” needs, community contact, notification, monitoring and reporting. The only clause which relates specifically to children and UAMs is clause 9, “Individual Care Needs”, which provides:

9.1       The individual care needs of detainees with special needs are identified and programs provided to enhance their quality of life and care

9.2       Unaccompanied Minors

Unaccompanied minors are detained under conditions which protect them from harmful influences and which take account of the needs of their particular age and gender

9.3       Infants and Young Children

The special needs of babies and young children are met

9.4       Children

9.4.1    Social and educational programs appropriate to the child’s age and abilities are     available to all children in detention

9.4.2    Detainees are responsible for the safety and care of their child(ren) living in detention

9.4.3    Where necessary, help and guidance in parenting skills is provided by appropriately qualified personnel

It should be noted that both HREOC and the Detention Working Group have produced alternative Immigration Detention Standards, which prescribe in greater detail obligations which more fully accord with Australia’s international obligations, in particular the Convention on the Rights of the Child. However, these standards have not been adopted and therefore, currently, only the rather sparse guidelines above are in force.

Operational Orders

Clause 7.1.1 of the Standards requires ACS to develop “a clear set of operational orders in accordance with relevant DIMIA policies and guidelines, and Commonwealth and State/Territory legislation [to] govern the operation of each detention facility and the management of detainees.” While these operational orders have not been made publicly available, a number of ACS policy documents were reproduced as annexures to the Flood Report in February 2001. Among those documents was Policy Number 16.1 from the ACM Detention Services Operating Manual, “Special Care Needs for Minors and Unaccompanied Minors”.

This policy provides that all detainees under the age of 18 years will be deemed minors for the purpose of management within detention centres. It states that all child detainees will be assessed on induction for special needs commensurate with their age and gender, and that those needs will be provided where possible. It further states that all unaccompanied minors will be further assessed to determine their possible risks while in detention and to develop measures to remove such risks, and that all unaccompanied minors will be allocated a suitable de facto guardian to oversee their welfare while they remain in detention. The policy provides that “the welfare of all minors and their parents will be constantly monitored to ensure they are afforded the most appropriate care throughout their stay” in detention.

Also annexed to the Flood Report was a new Child Protection Policy in relation to the Woomera Detention Centre. The policy sets out the obligations of ACM staff under the Child Protection Act 1993 (SA) and acknowledges that “children and young people have the right to be emotionally and physically safe at all times” and that “the protection and safety of children [in detention] is fundamentally the responsibility of ACM staff.” It requires any staff member “forming a suspicion on reasonable grounds to believe a child is, has been or may be abused or neglected” to notify South Australian Family and Youth Services and report the incident to a supervisor or manager who must “ensure the safety of the child/children involved”. Attached to the policy are indicators of physical abuse, physical neglect, emotional abuse, sexual abuse, and female genital mutilation. It should be noted that while the Flood Report referred to ACM’s Child Protection Policy as “a thorough yet very overdue document” it also stated: “I remain unsatisfied that this policy has still not been implemented and that similar documents have not been developed for the other centres and I recommend that ACM address this issue immediately.”

The lack of transparency by ACM management of detention centres also means that it is very difficult to assess whether these policies are now complied with consistently. Certainly detainees do not necessarily know of their existence, and cannot, in any event, enforce their content.

Rights in relation to contractual mechanisms

There are few, if any, means by which detainees can enforce directly the rights and obligations provided under the contract between ACS and the Commonwealth. Aside from the complaints mechanism specified under the Standards (section 7.11), detainees do not appear to have any means under the Detention Centre Agreement by which they can hold ACS accountable for a failure to comply with its contractual obligations.

Moreover, any attempt to bring an action would be met with the argument that the contract, though for the benefit of the detainees, is between ACS and the Commonwealth only. The doctrine of privity of contract would therefore prevent the detainees from bringing an action to enforce it directly. In Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107, the High Court was willing to allow a subcontractor who was not a party to an insurance contract which was, at least partly, for his benefit, to nevertheless bring an action under the contract. It is arguable that similar principles might allow detainees to sue under the Detention Centre Agreement, though the problems associated with such an action should not be understated. At least three of the judges in Trident relied on notions of estoppel to support their decision in favour of the subcontractor, based on his legitimate expectation and detrimental reliance.[62] It would be exceedingly difficult to establish such elements for any cause of action in relation to immigration detainees.[63]

Common law mechanisms

Overview

All persons who have a responsibility for the detention, safety and welfare of children in detention owe these children a duty of care, which is complex and serious. These persons include:

·                     The Commonwealth of Australia (through its agent the Department of Immigration and Multicultural and Indigenous Affairs);

·                     In relation to unaccompanied minors, their legal guardian, Phillip Ruddock, the Minister for Immigration;

·                     Australian Correctional Services (through its agent Australasian Correctional Management Pty Ltd).

·                     Australasian Correctional Management Pty Ltd (through its agents, servants and employees)

The detention centre context within which the common law duties operate

We are not aware of a decided negligence case involving immigration detention in Australian common law[64]. Much of the case law regarding the duties owed by a custodian to persons in their custody relates to adults in prison and police custody.

Many of the principles and scenarios examined in this body of case law are clearly applicable to the context of children in detention.

However, it must be clearly acknowledged that holding children in administrative detention creates unique problems, and the duties associated with such detention are likely more stringent that those pertaining to adults in custody.

Nevertheless there is a clear relationship between the duties of care owed to adults and the equivalent and additional duties owed to children in the detention context. Both accompanied and unaccompanied children within detention centres live in close proximity to adult primary carers and other adults. Thus the management regime and conditions that is applied to adults is more than likely the same regime that is experienced either directly or vicariously by children. By way of example, RILC in their submission to DIMIA on Family Unity and Refugee Protection[65] stated:

Aside from proposals that encourage the physical separation of refugee family units, it is clear that the confinement of family members within a detention centre places extreme strain on a family relationship and can do lasting damage.  We have acted for a great number of asylum seekers in detention over the years where the detention environment has damaged the family relationship and thus the integrity of the family. The following are three relevant case studies:

In 1998 we acted for a single female Afghan asylum seeker with three children who was detained in the Maribyrnong Detention Centre for over eight months.  We witnessed the slow deterioration of the relationship between mother and children over the months as our client proceeded through the refugee determination process.  We watched as the children became progressively more morose, withdrawn and uncontrollable.  The strains on our client were extreme.  Her children were told by other schoolchildren outside the centre that they must have a ‘bad mother’ as they were living in a jail.

We were involved with an Iranian family of mother, father and two young daughters who were held in the Maribyrnong Detention Centre for over 18 months until August 2001.  During that period the marital relationship between mother and father deteriorated, the father’s hair turned white, the mother was diagnosed with extreme depression, both parents were on doses of anti-depressant medication and both children began to exhibit signs of extreme distress. 

We currently act for an Iraqi father who was detained for many months with his 12-year-old daughter in the Woomera detention centre.  During the riots in Woomera in 1999, the father was arbitrarily detained in the ‘secure’ section of the detention centre with his daughter and 22 other male adults and one young boy.  There were no other female asylum seekers in the section.  Our client’s daughter began to exhibit signs of post-traumatic stress disorder, began to have nightmares and developed a bed wetting habit that was documented by detention centre medical staff.  Our client says he can never forgive himself for bringing his daughter to a detention centre in Australia.  His daughter currently attends regular trauma counselling sessions. 

By way of further example of this shared or intermeshed reality between the experiences of children and adults in detention, Moira Rayner states:

What is life like, for children in immigration detention? It means being under constant video surveillance, being addressed by your number, not your name; having no play facilities and sharing sparse recreation space with adults (I have affidavit evidence that children detained in Port Hedland are expected to use the ball ground between 2 and 2.30 – the hottest time of the day). There may be no medical facilities for mentally ill children, no paediatricians, and interminable queues, boredom and regimentation. Child detainees live behind razor wire, surrounded by uniforms, identification badges, roll calls and searches. Their food is prepared by strangers, not by parents, queued for and eaten on schedule or not at all (In one case reported to me by a visitor, guards had told the parents of an 8 month old baby they were ‘there to look after adults not children so there was no baby food.’ Her parents claimed she lost 3 kilos in one week.). It means children seeing adult distress and even violence, watching batons, riot shields, water canons or gas being used.  

Perhaps the best description of what detention means for children is a personal one.

This is Arnold Zable, writing in the Age on 12^th October:  

‘The imprisonment of children is a form of slow torture. I have seen the effects first hand. I first met children from the Maribyrnong detention centre in January. They ranged in age from eight months to teenagers. On the Friday before Christmas last year, 52-year-old Tongan inmate Viliami Tanginoa jumped from a basketball ring to his death after an eight-hour stand-off with detention centre guards. He had just been told that he was to be deported to Tonga for overstaying his visa. Children at the centre had come to know him as a gentle man. A few weeks later, on January 6, the tension was compounded when a 17-year-old detainee cut his throat. Some of the children heard the commotion that followed. This is the tense atmosphere in which child detainees live. I have now visited the Maribyrnong detention centre on many occasions. I have spoken to psychologists about what I have seen and heard. The children display the classic symptoms of trauma resulting from incarceration. These include bed-wetting, sudden bouts of anger and periods of withdrawal and depression. Some wake up screaming from nightmares. Others have recurring dreams of their parents being arrested and taken from them. Some symptoms, say psychologists, may stay with these children for the rest of their lives.[66]

The Non-Delegable duty of care owed by the Commonwealth of Australia (through its agent DIMIA)

The Commonwealth of Australia through its agent DIMIA owes a positive and non- delegable duty of care to children in detention. The concept of a non-delegable duty of care involves the idea that, in relation to the tort of negligence, some duties of care are too important to be delegated even to a competent and appropriate delegate. That is, liability cannot be avoided by the delegation of this duty. The concept of a non-delegable duty was described by Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 32 (“Stevens”), as an example of a ‘personal’ duty of a ‘higher’ or more ‘stringent’ nature. The duty was said by Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 at 686 (“Kondis”), to arise where a person “has undertaken the care, supervision, or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.”[67]

The Commonwealth Ombudsman in his Report of Own Motion Investigation into The Department of Immigration and Multicultural Affairs’ Immigration Detention Centres[68] argued:

“DIMIA has clearly taken responsibility for detainees’ care, supervision and control by placing them in immigration detention. I consider that this places DIMIA in the role of having a special and more stringent “non-delegable” duty of care… In my view (which DIMIA accepts), DIMIA is not able to pass on its duty of care to ACS but rather, remains responsible notwithstanding its contractual arrangements with ACS. The existence of any contractual arrangements, MOU or other link, financial or otherwise, between DIMIA and ACS is irrelevant to DIMIA’s non-delegable duty of care.”

The standard and content of the duties of care owed to children in detention

The standards and duties owed can be imported and derived from a number of sources. These include:

·                     the Migration Act and Migration Regulations as amended

·                     DIMIA Migration Series Instructions

·                     Specific and general contractual obligations required under the DSA;

·                     ACM Operational Orders, policies and procedures

·                     Relevant and applicable case law;

·                     Binding International Human Rights instruments and related standards;

·                     The professed expertise and experience of managing immigration detainees reposed in DIMIA and its predecessors;

·                     The professed international expertise in detention management by the Operator, ACM and its parent company Wackenhut Corrections Corporation (WCC);

·                     The state of knowledge available to all custodians (DIMIA and ACM) and health service providers from State-based and Non-Government inquiries, statistical, epidemiological and qualitative research relating to the vulnerabilities and known and foreseeable risks posed to children in the immigration detention context, comparative institutional care environments in Australia and other relevant and comparative jurisdictions.

Fundamental to any formulation of the applicable standards inherent in the duty of care owed by custodial authorities to children in their care, supervision, guardianship and custody is an understanding that this standard is an evolving one. In Re Cekan v Haines (1990) 21 NSWLR 296 at 313 (a custodial negligence case), Mahoney JA observed that:

“ It is necessary to recognise that, in some areas of government activity, the standard of care is not fixed but evolving. I mean by this that, though the legal formula (“…the reasonable man’s response…”) may remain the same, the actual precautions which that response requires a defendant government to change: as the evidence in this case suggests, as time goes on that response will require Government to take further or more stringent precautions. This is not a phenomenon peculiar to government activities; the same kind of evolution may be seen in other areas where the law of negligence applies. But it has, I think, a particular application in respect of the activities of Government because, in contexts such as that now in question, it is the function of Government to plan the nature and extent of the facilities to be offered, to lay down the systems to be observed, and to do so in respect of matters which are envisaged as lasting for a significant period. The age of gaols, hospitals, and public transport illustrates this.”

In Re Quayle v State of NSW and Ors[69] Justice Hocking stated:

“[I]t is surely a fundamental precept that when the liberty of a citizen is constrained by the community then the community assumes a heavy burden to ensure his or her safety.”

Children are, by definition, development and dependency, the most powerless of all social groups. They do not have access to the means of exerting power, or protecting their own vulnerability. They are restricted in the extent to which they can make decisions about their own lives.[70] It is submitted that children’s unique legal and developmental status requires their custodians to discharge their complex duties of care to a very high standard.

Because the policy of mandatory detention of children is arguably contrary to the obligations and minimum standards set down in international instruments[71] it is clear that the Commonwealth and ACM owe a very high duty of care to children simply by virtue of the fact of the policy being in place. Many of the principles and standards articulated in International Instruments are non-derogable, and have been asserted in the knowledge that their violation would constitute a violation of fundamental human rights. Where a policy is implemented that contravenes these Instruments the likelihood of human rights violations and negligent acts and injuries occurring is very high and very foreseeable.

Health care professionals also owe distinct duties of care to child detainees as patients in their care.  In the landmark case of Rogers v Whittaker [1992] 175 CLR 479 at 483 the High Court of Australia broadly defined the nature and standard of the duty of care owed by health care professionals to their patients:

“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a ‘single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgement’; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case…The standard of reasonable care and skill required is that of an ordinary skilled person exercising and professing to have that special skill.”

Defining the content of the duties of care owed

In light of the above discussion the duties of care owed by detainee health care professionals to children in detention include:

·                     The duty to prevent and protect against physical and sexual assault from other detainees;[72]

·                     The duty to prevent and protect against physical and sexual assault from staff;[73]

·                     The duty to prevent suicide and related self-harm;[74]

·                     The duty to prevent psychological injury either as a result of direct acts or omissions or as a result of acts or omissions directed against adult(s) within close proximity to a child;[75]

·                     The duty to provide general and specialist medical treatment and care to the requisite standard;

·                     The duty to provide a safe and secure physical environment.[76]

Each of these broad duties is capable of further particularisation. For example, in relation to the care and treatment of a patient at known risk of committing future acts of self-harm, or at risk of  suicidal behaviour, the duty owed necessarily extends to the following:[77]

·                     The duty to evaluate for suicide risk at initial assessment;

·                     The duty to evaluate for suicide risk on an ongoing basis;

·                     The duty to expeditiously and comprehensively secure records of prior treatment;

·                     The duty to accrue, compile and document a detailed history;

·                     The duty to undertake and document structured and rigorous risk assessments including a mental status examination;

·                     The duty to make an appropriate diagnosis;

·                     The duty to establish, implement and monitor a comprehensive and integrated treatment plan proportionate to the level and characteristic of the patient’s risk of suicidal and/or self- harming behaviour;

·                     The duty to comprehensively document clinical judgements, rationales, observations and treatment processes;

·                     The duty to evaluate properly for the need and level of pharmacological intervention or unsuitable and/or excessive pharmacotherapy;

·                     The duty to develop and maintain appropriate supervision, cross-consultation and communication with other treating health professionals and other professionals responsible for the ongoing management and care of the patient.

Many of these duties intersect with those which can be reasonably expected to be discharged by custodial authorities towards a child detainee in their care and control, who is at risk of suicide and/or self harm. Although the general principles and content of the relevant duty have been articulated by the House of Lords in Reeves v Commissioner of Police for the Metropolis [1999] 3 All ER 897, the content of the duty in such a context necessarily encompasses the following:

·                     The duty to ensure the co-ordination and case management of all elements of a regime of care, custody and broader management regimes within a framework of dynamic suicide and self harm risk awareness and intervention;

·                     The duty to ensure strict adherence to all policy and procedures aimed at preventing and minimising suicidal and self-harming behaviour;

·                     The duty to minimise and otherwise manage prison induced distress, which may increase the known risk of suicidal and self-harming behaviours;

·                     The duty to provide a safe physical cell accommodation environment in light of the fact that hanging is the predominant mechanism for suicide in custody and that a significant percentage of the detention population is, from time to time, at risk of suicide.

Finally, the material set out in Part 2 of Chapter 1, above, which suggests a prima facie breach of international legal obligations arising out of the treatment of children in detention, is equally suggestive of breaches of the standard of care owed by DIMIA and ACS to child detainees. It also indicates the profound difficulty of enforcing these standards in any meaningful way.

1.6.2    The visa framework and its application to child   detainees

Children and protection visas

By section 36 of the Migration Act, a class of visas known as protection visas is established.  Both the Migration Act and the Migration Regulations set out criteria against which an application for a protection visa is assessed. Where it is assessed that Australia has a protection obligation and the applicant has satisfied all legislative requirements (including health and character checks) a protection visa is granted. The person is released from detention and is permitted to travel to and enter Australia for a period of 3 years from the date of the grant.

Protection visa criteria

A criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugee Convention (s 36(2)(a)).  An alternative criterion is that an applicant is a non-citizen who is a dependant of a person to whom Australia has protection obligations who holds a protection visa (s 36(2)(b)).

Australia has protection obligations to a non-citizen who has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his or her nationality and is unable, or owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. Particular issues arise in relation to the application of this definition to children which, in turn, impacts on the length of their stay in detention.

Authorities on children and protection visas

In the case of  Chen Shi Hai, the High Court[78] made it clear that children born in contravention of China’s one child policy could constitute a social group for the purposes of the Refugee Convention.  The appellant was a child born outside the parameters of China’s one child policy and was born of an “unauthorised” marriage and was therefore known in China as a “black child” or “hei haizi”.  The appellant’s parents were in immigration detention at Port Hedland, Western Australia, at the time of his conception and birth. He did not acquire Australian citizenship by being born in Australia[79]. Chen Shen Hai spent the first four years of his life in immigration detention.

The Refugee Review Tribunal found that as a “black child” he would be denied access to food, education and to health care beyond a very basic level and would probably face social discrimination and some prejudice and ostracism. The High Court held that the full court of the Federal Court erred in holding that “black children” could not constitute a particular social group for the purposes of the Refugee Convention and, also, in holding that the adverse treatment which the appellant was likely to experience was not by reason of his being a “black child” but because his parents had contravened China’s “one-child policy”.

Similarly, the Full Court of the Federal Court of Australia in Minister for Immigration & Multicultural Affairs v Sarrazola (2001) 107 FCR 184 [2001] FCA 263 held that a family could also constitute a particular social group.  Merkel J stated at [28]:

“It seems to now be accepted in the Court that a family can constitute a particular social group. In Sarrazola No 1, after observing that there is decisive authority to the contrary, Hely J concluded that ‘a family can constitute a particular social group within the meaning of Article 1A(2)’. His Honour said (at [36]):

‘A family is cognisable as a group in society such that its members share something which unites them and sets them apart from the general community.’

Wilcox J observed in C v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 366] at [33] that it was unnecessary for the Full Court in Sarrazola No 2 to deal with the correctness of the above statement of Hely J but said, however, that the statement was ‘plainly correct’.”

Merkel J cited Sackville J in Giraldo v Minister for Immigration & Multicultural Affairs [2001] FCA 113 who accepted that there is authority for the propositions that: (i) a particular family or extended family is capable of constituting a particular social group for the purposes of the Refugee Convention; (ii) a member of such a family who is at risk of persecution by reason of his or her association with another family member may have a well-founded fear of persecution for a Convention reason; and (iii) the family member may have such a well-founded fear notwithstanding that the persecutors may have more than one motive for persecuting him or her, and the other family member could not claim to be a refugee within the meaning of the Refugee Convention. The government has attempted to narrow this interpretation in section 91S of the Act, specifying that where a person claims to have a well-founded fear of persecution by reason of their family membership, the other members of the family must fear persecution for a convention reason.

Subclause 866.230 of the Regulations and section 46A of the Act make provision for an application for a protection visa to be made as part of a family unit. In practice, this is the way that the bulk of protection visa applications by child asylum seekers are made. However, even though the decision-maker has an obligation to consider separate claims made by dependants,[80] it is submitted below that this practice may in some circumstances not protect the best interests of the child.

Impact of new rules concerning family applications on children

Section 48A(1) provides that an on-shore non-citizen whose previous application for a protection visa was refused may not make a further on-shore application.  The bar against further protection visa applications has now been extended to persons who were part of an unsuccessful family unit application.[81]  By section 48B, the Minister has a non-compellable discretion, exercisable if he thinks it is in the public interest to do so, to determine that s 48A does not apply for a seven day period starting on the day on which notice is given (despite the fact that it may not necessarily have been received on that day).  This power may only be exercised by the Minister personally.  The Minister has no duty to consider whether to exercise the power in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances. By s 50, the Minister is not required to consider any information considered in the earlier application and may have regard and take to be correct any decision that the Minister made about or because of that information.

While it is common for all relevant refugee claims from a particular family unit to be lodged at the beginning of a refugee determination process, there may be situations in which a dependent family unit member does not lodge her own claims initially or at all, for complicated and sensitive cultural reasons.  The UNHCR Guidelines provide that all refugee claims should be assessed on their individual merits and this right is not adequately protected.  The Minister’s non-compellable discretion does not safeguard against the denial of the right of an applicant to lodge an application for refugee status if they have individual claims even after the refusal of a principal applicant of a family unit, or guarantee rights set out in the Convention on the Rights of the Child.

Children and bridging visas

Overview

For an unlawful non-citizen, the Migration Act leaves only four ways out of a detention centre:

·                     Transfer to detention in another place, eg., prison, or some form of "house arrest" under some form of "release" program

·                     Bridging visa

·                     Substantive visa

·                     Deportation or removal from the country.

The last two options are permanent outs, alternatives that mark the end of the legal process of a claim for asylum. The first two are temporary measures, designed to ameliorate - or in some cases reinforce - the stringencies of incarceration during the process. Of these, the second option - bridging visa - is the only one that contemplates the release of asylum seekers into the community.

Bridging visas

The power to grant bridging visas rests with the Minister: section 73. But there are conditions on that power, both under the Migration Act, and under the regulations.

Children

In the case of children, the key conditions on the power are:

·                     under 18;

·                     in the process of pursuing a protection visa;

·                     Minister satisfied that arrangements for care have been made with an Australian citizen, or permanent resident (or eligible NZ citizen); and

·                     Minister satisfied that visa (ie., release) would not prejudice interests of the child's guardian or custodian, or anyone having rights of access.

(See Migration Regulations, regulation 2.20(7), and section 72 (1) (b); there are other conditions there imposed, but the ones recited are the main ones).

Other bridging visas

For adults, the position is more difficult. The conditions to be satisfied vary, depending on the basis on which a bridging visa is sought. In relation to old age and health bridging visas, the key requirements are that the Minister is satisfied adequate community-based care arrangements are in place and, in the case of the former, that the detainee is over 75, while in relation to the latter that the detainee has a special need - due to health, or torture or trauma - that a medical specialist appointed by DIMIA certifies is unable to be met in detention.

Adult detainees are also eligible for bridging visas on the ground that they are married to and in a genuine relationship with an Australian citizen or permanent resident, or are a child of such a marriage, or that they have been in detention for more than six months without a primary determination - though this last category of visa is only available if the Minister thinks it is in the public interest and personally determines the applicant to be eligible.

Practical operation of bridging visas

Despite the fact that, prima facie, all children in detention are eligible for bridging visas, in practice very few children are released into the community.[82] The principal reason for this fact is the highly discretionary nature of the bridging visa regime, coupled with the absence of an active or effective regime for the monitoring of child detainees and their interests.

The lack of clear delineation of responsibility between State welfare authorities and DIMIA means that efforts to assess the child’s best interests are usually met with inaction or a denial of authority. There is no regular or systematic review of the conditions of children for the purpose of granting bridging visas, and indeed in practice it is exceptionally difficult to convince DIMIA of the need to undertake an assessment in relation to a child.

In large part this is due to the highly discretionary nature of the bridging visa regime, and in particular, DIMIA’s interpretation of the concept of the child’s “best interests”. This discretion means, in practice, that accompanied children are never separated from their parents, regardless of their physical or mental condition or the conditions under which they are held, while the notion of “best interest” tends to vary according to departmental priorities, and can in fact be used as a barrier to release - for instance, the Department’s view that the “best interests” of child detainees are served by keeping them with fellow country persons, or its ability to demand that persons seeking a bridging visa on behalf of a child provide a level of care which is far higher than that enjoyed in detention.

Another systematic problem with the bridging visa regime is that the department takes no responsibility, and indeed there is no independent mechanism at all, for finding alternative accommodation for eligible detainees. This duty therefore falls completely on social welfare groups and non-government organisations. However, these are the entities with the most difficulty in gaining access to detainees, primarily due to the government’s lack of transparency in the operation of the detention centres. In the case of children, this difficulty is particularly exacerbated by the need to organise schooling and health care, at a level far in excess than that offered in detention.

Finally, it should also be noted that there is no government-funded legal assistance in the preparation of bridging visa applications - the IAAAS does not extend to such applications, further reducing the ability of detainees to effectively access the processes.

Legal representation of detainee children

Immigration Application Advice and Assistance Scheme

The IAAAS is the only government-funded scheme for the provision of legal assistance to asylum seekers in detention. The IAAAS purports to provide assistance to:

·                     All people in immigration detention who seek to apply for a protection visa,

·                     Prospective protection visa applicants in the community with cases of merit who are experiencing financial hardship and are disadvantaged, for example, because of their non-English speaking background or are suffering a disability as a result of past torture and trauma, and

·                     Other disadvantaged prospective onshore visa applicants in the community in greatest need who are unable to access the services of a registered migration agent.

Assistance and advice is funded by the Commonwealth at no cost to the applicant and is delivered by nineteen service providers throughout Australia.  Application assistance is provided to eligible applicants to prepare, lodge and present applications for visas.

The IAAAS is reported by the Department as providing for application assistance at the merits review stage when a primary application has been refused.  However, many advisers do not attend tribunal hearings because applicants are not considered by subcontractors to “need” assistance.  One contractor reportedly provided representation only in exceptional and unusual circumstances.

IAAAS application assistance expressly does not include assistance with applications for judicial review through the courts.  The drawing of a line in the sand at this point is unjustifiable given that Australian court proceedings are conducted in an alien cultural context, language and austere environment that unrepresented Australians frequently find intimidating and inaccessible.  The burden for an asylum seeker who may have had traumatic experience of authority without assistance would be insurmountable. 

The Federal Court now administers its own pro bono referral scheme to which many unrepresented protection visa applicants appealing unfavourable reviews by the Refugee Review Tribunal are referred.  This scheme is dependent upon the goodwill of barristers to make up the lacuna in the IAAAS.

Problems with the IAAAS

According to Australian Immigration Fact Sheet 63 of the Department, IAAAS service providers are selected, amongst other things, on their capacity to focus assistance on those cases most in need.  However, conflicts of interest in the administration of the IAAAS compromise the advice given to prospective applicants:

·                     Fees to contractors are paid by the Department of the Minister responsible for assessing the application;

·                     Confidentiality obligations are placed on contractors which prevent advisers from publicly expressing their concerns about conditions in immigration reception and processing centres. Failure to comply with this obligation has led to termination of employment of at least one employee of an IAAAS contractor;

·                     Apparent discrimination in the award of contracts against those whose advisers are too proactive in support of the claims of asylum seekers.

Further problems with the IAAAS include the fact that the quality of work performed by contractors, officers or employees of contractors, is often not sufficiently scrutinised or monitored.  Many advisers do not have legal qualifications.  The level of training required to obtain registration as a migration agent is not sufficient to provide agents with requisite skills to deal with the complexity of legal issues raised by many applicants, nor with the interpretation and application of the Convention.  One contractor registers administrative assistants who have no legal training as migration agents.

The complaints mechanism is not effective to protect against the provision of inaccurate or incompetent advice because, in part, it rests on the individual asylum seeker’s ability to make judgments with respect to a system and, most likely, a language with which they are not familiar and in circumstances where they are unlikely to have any point of reference or comparison.  The problem is greatest in the case of unaccompanied children, because they cannot be expected to have any of the knowledge or skills required to protect their own interests.

Another problem with the IAAAS is that separate funds are often needed for medical and psychiatric assessments, translation and interpreting services.  However, IAAAS managers do not have the discretion to extend funding in cases where more extensive services are required.

Finally, because they are often not lawyers, and also because they are not funded to do so, IAAAS contractors will generally not represent children’s interests in respect of their conditions of detention, nor will they undertake the considerable work which may be necessary to arrange to have a child released on a bridging visa. Thus, they cannot be regarded as an independent person appointed to represent the needs of unaccompanied minors, as their conduct is confined to protection visa applications.

1.6.3    Enforcement and accountability under the existing framework

The purpose of this section is to examine the mechanisms that are available to hold those who own and operate detention centres accountable to appropriate standards, and the mechanisms that are available to enforce relevant rights and standards. These can be divided broadly into state and non-state mechanisms.

State mechanisms

Commonwealth Ombudsman

In recent years the Ombudsman’s Office has made a number of dedicated reports on the operation of Commonwealth Immigration Detention Centres in the context of its broader supervisory brief. The role of the Ombudsman’s Office is not to comment on the government’s policy, for instance actions by the Minister, but rather to look at complaints which might raise issues pertaining to policy. Many of these reports have elements which are made in private, mainly for reasons of confidentiality. Section 35A of the Ombudsman Act states that the Ombudsman can only make public certain matters if he considers it to be in the public interest.[83]

The Ombudsman’s Office is able to undertake an inspection of detention facilities in a general way, looking at provisions for women, children and unaccompanied minors. In its Annual Reports, which are tabled in the Federal Parliament by the Commonwealth Ombudsman, detention issues remain a key issue discussed. The Ombudsman has also (in March 2001) examined asylum seekers who have been detained in state institutions. It also continues to examine issues of children, their handling, care education and medical care in its reports.

The Government has through legislation attempted to limit access by the Ombudsman’s Office and the Human Rights and Equal Opportunity Commission in accessing asylum seekers in detention when there is no direct approach by the asylum seekers themselves. This came after a Federal Court decision allowing access by the Human Rights Commission to detention centres.   Yet any impairment of the ability of the ombudsman to visit detention centres will inevitably have a profound impact in the case of children, for whom the detention centre environment and its processes must seem particularly alien and inaccessible.

In relation to the detention of children of asylum seekers outside Australia, it is currently unclear whether the jurisdiction of the Ombudsman’s office extends to Nauru and Papua New Guinea. The Office itself is seeking to clarify this internally.

Parliamentary Mechanisms

Question Time and Debate

Each Minister is theoretically accountable for the conduct of their Department under the Westminster Conventions on responsible governments. The Minister can be directly called to account for their actions or for those of their Department in Parliamentary Question Time, and indirectly in debate around the passage of legislation. However, the difficulties with using question time for effective scrutiny include: it is limited in its effect; memberships of committees change; it is subsumed often by party political imperatives; and does not really have an effective regulatory operation.

The Committee System

There are various Committees which have investigated conditions in detention, including the Joint Standing Committee on Migration, the Senate Legal and Constitutional Committee and the Joint Standing Committee on Foreign Affairs, Defence and Trade. However, one member of Parliament spoken to in the preparation of this submission stated that, “Parliamentary Committees were only as good as the calibre of particular members and the vigor with which they want to find the truth and hold Parliamentarians to account”. It was observed that some politicians use the Committee system to advance their particular party’s agenda or for “point scoring” and sabotaging avenues of inquiry, whereas other committee members see it as an important opportunity for review, questioning and ensuring that the public interest and accountability are maintained.

The public service sees itself as subject to their Minister, however various members of Parliament consulted in the preparation of this submission noted privately that DIMIA tends to have a culture that is generally defensive and often uncooperative and acts as if it is “under siege”, unlike other Departments that are questioned. The view was expressed that DIMIA should have two functions, one regulatory and the other as a facilitator, but that its focus is on the first and border control.  It was noted that often requests for information by the Parliamentary Estimates Committee are provided at the eleventh hour leaving little opportunity for detailed scrutiny or follow-up prior to the next meeting of the committee. Prevarication and stonewalling by DIMIA is considered to be common. It was noted that often legalistic/scientific and pedantic responses will be given with care so as to ensure the question is not answered in full.

A strength of the committee system is that members of the committee can ask any question they want.  This is of real importance because of the climate of secrecy in which detention centres operate. Many of the contractual arrangements in the tendering process and afterwards may be commercial-in-confidence.

A weakness of the committee system is lack of timeliness. The Committees are not well resourced when compared to the large number of departments and operations that they must scrutinise. There is much paper work and not enough support staff. Timelines set for departments can be missed and questions or issues can easily escape members’ attention. Often, for instance, requests are made for statistical verification and these are not provided, the person who holds the data is on leave and the information is not ready in time for the committee which may have a deadline to report. Three main categories are also used, sometimes loosely, to prevent revelation. These are national security, cabinet documents, and commercial in confidence.

The Human Rights and Equal Opportunity Commission

The Human Rights and Equal Opportunity Commission (HREOC) has an important role to play, as is demonstrated by the fact of the current inquiry and the length of this submission.  It has direct and indirect responsibilities under the Human Rights and Equal Opportunity Act to ensure Australia's compliance with its human rights obligations and to make recommendation for improvements. It has statutory obligations to inquire into human rights adherence by government and its instrumentalities.

HREOC has the capacity to deal with complaints from asylum seekers[84] and to conduct inquiries into areas of human rights on its own initiation or at the recommendation of the Federal Attorney General. In its report, Those who've come across the seas: Detention of unauthorised arrivals[85] HREOC concludes that "Australian law does not permit the individual circumstances of detention of non-citizens to be taken into consideration by the courts. Neither does it permit the reasonableness and appropriateness of detaining an individual to be determined by the courts. Therefore, Australia is in breach of ICCPR article 9.4 and the Convention on the Rights of the Child (CRC) article 37(d)."[86]

Although the High Court has retained some power to check the lawfulness of detention, under international law such checking involves consideration of whether the detention is reasonable and proportionate. The HREOC notes that in most cases Australia's policy of detention is both mandatory and automatic and applies to almost all unauthorised persons until their claim is determined.[87]

Immigration Detention Advisory Group (IDAG)

The establishment by DIMIA in February 2001 of the immigration Detention Advisory group (IDAG) is another cited example of independent scrutiny of the federal government’s immigration detention program. DIMIA states that IDAG’s role is to provide advice on the appropriateness and adequacy of services, accommodation and facilities at immigration detention centres.

The DIMIA website states that members of the IDAG have unfettered access to immigration detention centres and may consult with detainees and immigration detention centre staff to obtain information on the operating environment of each detention centre. 

However, the weight that DIMIA places on recommendations made by IDAG is not indicated.  Further, it is not clear whether detainees are made aware of their right to make complaints to IDAG.  Finally, it is not obvious how young children, particularly UAMs are to make complaints – ie with the help of an adult, custodial officer, interpreter etc.

ABC News Online reported on 30 January 2002 that a 2 week hunger strike by detainees including children at Woomera IRPC ended following negotiations with members of IDAG.  The ABC report stated that while Philip Ruddock had publicly declared DIMIA would not respond to the hunger strikers’ demands, DIMIA, at the end of the hunger strike, indicated that it would consider IDAG’s recommendation that asylum seeker claims be treated in a more transparent fashion.  DIMIA also indicated that it would consider relocation of detainees at Woomera IRPC after IDAG recommended Woomera IRPC be closed.  IDAG had warned that unless the detainees were moved out of Woomera there was a risk of a "human tragedy of unknowable proportions".  It suggested that the Woomera site might be used only as an emergency overflow centre instead.

Given that, to date, Woomera IRPC remains an operative immigration detention centre, and that it is difficult to determine to what extent, if any, there has been increased transparency in DIMIA’s dealing with asylum seeker claims, it is fair to say that, though welcome, the practical value of IDAG’s recent recommendations remains unclear.

Non-state mechanisms

Amnesty International Australia

The object of Amnesty International (“AI”), is to contribute to the observance throughout the world of human rights as set out in the Universal Declaration of Human Rights.[88] As such, AI is concerned with the treatment of refugees and asylum seekers, who may have suffered human rights abuses in their countries of origin and whose treatment by governments in countries where they seek asylum should be governed by international human rights standards.

Amnesty International Australia has a “work on own country rule” which means that members and staff of Amnesty International around the world comment on human rights abuses in countries other than the country they live in. In relation to refugee and asylum seekers issues, AI has made an exception to this limitation so that members can comment on this issue in relation to their own countries.

However, AI’s researcher for the Asia Pacific Region, Dr Heinz Schumann Zeigel, has not visited Australia’s immigration detention centres and so the comments of AI and AI Australia are necessarily based on evidence gathered by third parties. The fact that the Australian Government facilitated the visit of AI’s delegate, Mr John Pace, to Australia’s asylum seeker centre in Nauru indicates that AI might gain access to detention centres in Australia if it were sought.

According to Mr Graham Thom, refugee co-ordinator, AI Australia[89], the main problem AI Australia has in monitoring whether human rights standards are being upheld in IDC’s is that AI Australia is only allowed to visit individuals who have requested that AI Australia visits them. Such a request goes to DIMIA, who facilitate the visit of AI Australia. Asylum seekers do not always find it easy to get in contact with, or gain assistance from, AI Australia even when they request to do so. This is due in part to the limited resources AI Australia has for undertaking individual refugee casework in Australia.

Inter-Government organisation/ Non-government organisation meetings

Some NGOs have the opportunity to attend occasional IGO/NGO meetings.  The meetings are chaired by a representative from DIMIA. Attendees include representatives from the united Nations high Commission for Refugees (UNHCR), the refugee Review Tribunal (RRT), the Australian Red Cross, the National Council of Churches, the Victorian Foundation for the Survivors of Torture and Trauma, the Refugee Council of Australia, Amnesty International Australia, and the Refugee Council of Australia. At these meetings, the IGOs and NGOs have the opportunity to ask questions about a range of refugee and asylum seeker issues, including matters relating to children in detention. According to Dr Graham Thom, who has attended these meetings as the representative of Amnesty International Australia, the DIMIA representative generally does answer the questions, however, it is not uncommon for the answers to contradict reports about detention conditions gained from detainees and individuals who visit IDCs.[90] Also, those present at the meeting cannot compel DIMIA to provide information.

Australian Red Cross

The Australian Red Cross (ARC) is the only international humanitarian organisation to have access to all six detention centre facilities.[91]Representatives of the ARC regularly visit all of Australia’s IDCs. Teams of ARC personnel visit urban detention centres once a fortnight and remote IDCs once a month.[92]

The purpose of these visits is primarily to provide Tracing and Message services, which facilitate contact between detainees and their friends and relatives in their countries of origin or elsewhere. ARC representatives also provide some items of use to the detainees and offer general emotional support to detainees. The ARC has extensive access to many areas of IDCs which are not accessible to other visitors.

While the ARC offers a crucial service, the fundamental principles of the organisation, which, like those of the International Committee of the Red Cross at an international level, include neutrality and impartiality, coupled with its preferred “quiet diplomacy” approach, means that the ARC cannot and does not make comment upon what its staff and volunteers see or experience during visits to IDCs.[93] Despite this commitment to impartiality, however, in January 2002 the ARC published a press release expressing its “concerns for the welfare of the individuals, especially the children, who are involved in protests [at IDCs]”.[94]

Church Groups

Under Immigration Detention Standard 4.2, “Detainees [should] have access to spiritual, religious and cultural activities of significance to them”. Under IDS 10, a “qualified religious representative approved under guidelines is allowed to hold regular services and pay pastoral visits to detainees of the appropriate religion at proper times, so long as it does not interfere with the security and management of the detention facility”. Accordingly, representatives of religious organisations have more access to IDCs than other sectors of society, but it is, in practice, at the whim of ACS and the Contract Administrator.

In visiting children in IDCs, members of religious organisations offer spiritual, emotional and practical support. Religious organisations also have an important role in shaping the standards of detention centres through public advocacy. An example of such advocacy is a press release issued by the National Council of Churches in Australia (NCCA) on 31 January 2002, repeating the call for the release of children detained under Australia’s current mandatory and indefinite detention for asylum seekers and calling for a royal commission into mandatory detention.

Individuals

A number of individuals visit detention centres on a regular basis.  They do so because of a concern for the isolation of  detainees.  A number of those individuals have been banned from attending IDCs, with no reason given.  In several instances, these people have been banned once they have become popular among the detainees.  In one instance, a lawyer was refused access during the evening visiting hours on the basis that "lawyers' visiting hours are 9 am to 5 pm". 

Under clause 9.4.4 of the Detention Agreement, the Contract Administrator may at their sole discretion, “impose restrictions or conditions on the rights of access to Immigration Detainees of any third parties including, without limitation, the media and unsolicited lawyers or migration agents”.  There is a widely held belief among detainees that if a person visiting the detention centres is actively involved in political protest in connection with refugee issues, then that person will likely be banned from visiting IDCs.

Because of their location, it is also extremely difficult for lawyers, interested members of the public, the media, non-government organisations or ministers of religion to visit detainees in remote IDCs (Curtin, Port Hedland and Woomera). For example, representatives of the Australian Red Cross have limited their visits to remote IDC’s to once monthly because of the time and expense involved in travelling to the centres.[95]

80% of all detainees are held in the remote IDCs.  Whilst a visit to a metropolitan IDC may occupy a total of 3 or 4 hours including travel time, a visit to a remote IDC is likely to occupy up to 3 days.

Even if the situation were changed to allow greater access to detention centres, visitors to detention centres, including lawyers, NGOs and individuals may not have the resources to spend the time required or the money for travel costs involved in comprehensively monitoring the maintenance of the standards applicable to children and UAMs in detention.[96]

1.7   Constitutional issues raised by detention

The detention of asylum seekers by the Federal government raises particular legal issues in relation to its authorisation under the Commonwealth Constitution and, in particular, the doctrine of separation of powers which is therein enshrined. These issues are addressed below.

1.7.1    Constitutional limits on the power to detain

Limits contained in the Migration Act

Parliament did not intend the Migration Act to have any application beyond what it (that is, the Parliament) can validly authorise.  Parliament gave the Act its own self-limiting mechanism, in the form of section 3A. That section reads:

3A  Act not to apply so as to exceed Commonwealth power

            (1)        Unless the contrary intention appears, if a provision of this Act:

            (a)        would, apart from this section, have an invalid application; but

(b)        also has at least one valid application;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

(2)        Despite subsection (1), the provision is not to have a particular valid application if:

(a)        apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

(b)        the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

(3)        Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

(4)        This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

            (5)        In this section:

application means an application in relation to:

(a)        one or more particular persons, things, matters, places, circumstances or cases; or

(b)        one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.

invalid application, in relation to a provision, means an application because of which the provision exceeds the Commonwealth’s legislative power.

valid application, in relation to a provision, means an application that, if it were the provision’s only application, would be within the Commonwealth’s legislative power.

In Lim’s case[97], the High Court identified limits to the nature of detention that Parliament can validly authorise for migration control purposes. Under the Constitution – so the Court held – detention is generally to be regarded as a punishment. There are established exceptions, that is to say, there are established forms of detention that are not punitive: remand in custody, for example. But beyond these, detention only exists under our system of government for the punishment of crimes. For that reason, it is generally to be characterised as punitive.

Limits derived from the Constitution

The punishment of crimes is a judicial function. The judicial functions of the Commonwealth can only be performed by Chapter III courts; that is to say, by courts – be they State or Federal – that answer to the requirements of Chapter III of the Constitution. This restriction is part and parcel of the separation of powers of the Commonwealth, for which the Constitution provides.

It follows – as the Court in Lim held – that if a Commonwealth Act, such as the Migration Act, were to provide for the imposition of punitive detention on any person, except for a crime of which he or she had been convicted by a Chapter III court, the Act would infringe upon the separation of the judicial power of the Commonwealth; and it would be unconstitutional, and invalid.

The Constitution provides for Parliament to make laws with respect to aliens. These may include laws regulating the admission and expulsion of aliens. Detention – when imposed within reason for the purposes of these laws – is not punitive. As the Court held in Lim, if imposed within reason, the detention will not trespass upon the separate and exclusive preserve of judicial power:

In the light of what has been said above, the two sections will be valid laws if the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.  On the other hand, if the detention which those sections require and authorise is not so limited, the authority which they purportedly confer upon the executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch.III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates.[98] (emphasis added)

The limiting mechanism provided by section 3A of the Migration Act means that the Act is not to be construed as having any invalid applications. So, having regard to Lim – and despite the apparent breadth of its terms – the Act is not to be construed as authorising any form of detention that is beyond what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. Moreover, administrative detention which is lawful when initiated can become punitive, either because the conditions of detention have deteriorated, or because the length of detention goes beyond what can reasonably be considered necessary for administrative purposes.[99]

1.7.2    Constitutionality of detention

Indications are mounting that the detention regimes in Australia’s Immigration Detention Centres go beyond anything that could reasonably be regarded as necessary for the proper purposes of the Act; and, therefore, that those regimes are neither lawful, nor authorised by the Migration Act.

There are at least two important measures of whether a regime of detention goes beyond what is reasonably necessary. One is to be found in the conditions of the regime. The other is to be found in the impact that the regime has on those who live under it.

The conditions prevailing in Australia’s detention centres have been the subject of publicly expressed alarm, including from within the custodial services sector itself. In a recent speech[100], WA’s Inspector of Custodial Services, Professor Richard Harding, had this to say:

That brings me to the question of Immigration Detention Centres. In Australia these are an absolute disgrace in terms of the conditions and standards that are applied.  Whilst there are several factors contributing to this, one of the most important is that there is a complete absence of proper accountability and transparency across the whole system.[101]

Professor Harding then recounted his own observations as to conditions in the Curtin Detention Centre: desert isolation, gross overcrowding, broken toilets, inadequate medical services; and so on:

I visited Curtin Detention Centre for a nine-hour visit on 25th June 2001.  It is a five-hectare site, with just over 100 temporary accommodation and service buildings scattered amongst the red dirt that is characteristic of the area.  The nearest town is Derby, some 40 kilometres away, but the Centre itself gives the impression of being, “in the middle of nowhere”, as it is about 6 kilometres away from the main road .The day I visited there were 849 people living there, mostly Iraqis, Iranians and Afghanis [102]

…….

ACS/DIMIA had been very anxious that one should arrive before 9.00am so as to be able to see the Centre’s education classes in progress.  They were evidently very proud of this initiative. A glossy brochure indicated that children were receiving five hours’ daily education in four different groups.  In reality, they were receiving one hour’s education.  Teaching took place between 9.00am and 10.00am; thereafter, the children stayed in the teaching area until 11.00am, during which time some contact with teachers might occur; then there was a lunch break until 1.00pm; and after that so called ‘homework’, if the children felt like doing it, occurred in the classroom area until about 2.00pm.    The so called ‘education program’ was largely a charade – though doubtless five hours’ full education was being paid for and signed off by the Canberra-based ‘monitors’.

That insight really set the tone for the whole place.  The huts in which people lived were grossly overcrowded; many of the toilets were broken; some of the washing machines were also broken; the so-called ‘shop’ was abominably stocked and rather inaccessible; the system for sending mail breached all standards of privacy and confidentiality; and above all the medical and dental facilities were inadequate. [103]

At length, Professor Harding concluded:

Thus, in summary, the conditions that exist at the Curtin Centre are almost intolerable.  Such evidence as exists indicates things are little better at the other Centres. Yet these things are also largely invisible, except when riots occur.[104]

The impact that the detention regime has had on detainees has raised similar public alarm. In an award-winning ABC broadcast this year[105], psychiatrist Professor Patrick McGorry spoke to reporter Toni Hassan about one of his detainee patients, and his experiences with detainees generally:

Toni Hassan: Concerned about [detainee] Sivam’s mental health, his lawyer contacted Melbourne University Professor Patrick McGorry, an internationally recognised psychiatrist who’s worked with asylum seekers since the 1980s.

Professor McGorry saw Mr Sivam 2-1/2 years into his stay at Victoria’s Maribyrnong Detention Centre.

Patrick McGorry: He was one of the most severely ill people I’ve actually seen in the Maribyrnong Detention Centre, and I’ve been seeing people there for at least a five to ten year period now.

Toni Hassan: