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ADDITIONAL COMMENTS
Senator Sarah
Hanson-Young for the Australian Greens
Introduction
Australia
is obliged to protect the human rights of all asylum seekers and refugees who
arrive in our country, regardless of how or where they arrive, and whether they
arrive with or without a visa. Our obligations to vulnerable people who are
fleeing persecution arise from Australia's commitment to international
treaties, and a shared sense of justice and fairness as a safe, prosperous and
humanitarian nation.[1]
The Australian
Greens welcomed the opportunity to participate in the Joint Select Committee on
Australia's Immigration Detention Network because it was apparent that, after
decades of controversy and inflammatory public debate in this important area of
policy, successive Australian governments have not yet found a workable
solution for humanely, safely, and cost-effectively accessing the asylum
applications of people who arrive by boat.
In
conducting its investigations the Committee travelled across Australia and
received a massive volume of information and submissions. The evidence
presented to the Committee was overwhelmingly clear that Australia's
immigration detention network is in crisis.
Chapter
5 of the Committee Report provides a thorough survey of the crisis and the
impact it is having on the men, women and children who are confined in places
of detention, as well as the staff and services providers working in the
centres. The evidence put before the Committee was explicit that detention
centres are places of hopelessness, suffering and mental illness. The
immigration detention network is highly expensive and unwieldy to maintain, and
daily life within the centres lacks adequately clear practices and procedures
to minimise some of the significant harm being caused to asylum seekers and
staff.
The
Australian Greens support the recommendations of the Committee Report. Having
observed the extent of the crisis from a multiplicity of angles, the Committee
has put forward a range of effective and practical measures to address the
crisis.
The
Australian Greens endorse the Committee Report recommendations in the belief
that implementation of those reforms would go a long way towards fixing the
detention system. The Greens assert that wherever possible, the recommendations
outlined in the Committee Report must be incorporated into Australia's legal
framework through amendments to existing legislation.
The
recommendations in the Committee Report and these Additional Comments would
make possible an immigration detention network which would be:
-
Healthier and
more humane for asylum seekers through clear and mandated time limits on
detention, regular judicial review of extended detention, and no children in
detention;
-
More cost
effective through improved procedures and training in detention centres, and
properly rigorous auditing of service provider outcomes;
-
Less damaging
for detainees through review of security decisions, greater use of community
detention and bridging visas, and the removal of the conflict of interest
regarding unaccompanied minors.
The
importance of immediate legislative reform
The past
two decades of immigration detention practices have demonstrated that
non-legislative reforms are incapable of withstanding the vicissitudes of
governmental or ministerial changes, nor the 'toxic' political rhetoric that
regretfully distorts public discussion of asylum seeker policy.[2]
The New
Directions for Detention values-based approach announced by the Minister
for Immigration on 29 July 2008 included, amongst seven key principles, a
policy undertaking that ‘detention in immigration detention centres is only to
be used as a last resort and for the shortest practicable time’. As the
Committee heard from a succession of witnesses, the New Directions
policies have largely not been carried out in practice, to the great detriment
of detained asylum seekers, service providers in the detention network and
Australian taxpayers and agencies.
It is
critical that the Migration Act 1958 (Cth) (Migration Act) and
relevant legislation be urgently amended to ensure the longevity and resilience
of the reforms proposed by the Committee report and herein. This is the only
way that Australia can draw closer to achieving a humane, cost-effective, and
secure detention network.
Time
limits on detention
As at 29
February 2012 there were 4122 people in detention who had been there for over
92 days, amounting to 62% of current immigration detainees. Of that group,
there were 253 people who had been in detention for greater than 730 days.[3]
Asylum seekers continue to be detained for unacceptable periods of time at
great risk to their mental health and well-being.
We refer
to and endorse recommendation 22 [5.118] of the Committee Report which
calls on the Australian Government to 'take further steps to adhere to its
commitment of only detaining asylum seekers as a last resort and for the shortest
practicable time, and subject to an assessment of non-compliance and risk
factors, as enunciated by the New Directions policy'.
The
Committee has resolved that the government must take immediate, concrete action
to remedy this situation. The Committee has proposed at recommendation 23
[5.119] that 'all reasonable steps be taken to limit detention to a maximum
of 90 days'.
The
Australian Greens believe the first and most crucial remedial step is to amend
the Migration Act so that time limits on detention are enshrined in
Australian law.
A large
cohort of submitters to the Inquiry supported the call for legislative reform so
as to ensure specific time limits on detention. The United Nations High
Commissioner for Refugees said in its written submission:
The
UNHCR recommends that the presumption against detention should be explicitly
incorporated into Australia's legal framework and that all efforts should be
made to avoid the situation of protracted detention and possibility of
indefinite detention in Australia.
The
UNHCR recommends that asylum-seekers should not be detained beyond the purpose
of assessing identity, health and security checks. Detention should not extend
to a determination of the merits because this is not a legitimate ground for
detention.[4]
The Law
Council of Australia also called for the enactment of provisions imposing time
limits on detention:
The
Law Council is also disappointed that the Government’s subsequent policies and
legislative reforms do not appear to fully comply with the seven values [New
Directions] described above ... In light of these developments, without
implementing these values in legislation, it is difficult to have confidence
that these values will continue to guide Government policy making in this area.
Implementing the principles in legislation will help solidify Australia’s
commitment to ensuring its laws and policies comply with international human
rights standards.[5]
In its
written submission the Gilbert & Tobin Centre for Public Law called for the
Migration Act to be amended to reflect a presumption against detention
unless justified.[6]
The Refugee and Immigration Legal Centre, represented by Mr David Manne, also
called for the implementation of policies to limit detention.[7]
Other
groups that gave unequivocal support for legislated time limits on detention
include the Law Council of Australia, Labor for Refugees (Vic), Forum of Australian
Services for Survivors of Torture and Trauma, Migration Institute of Australia,
Jesuit Refugee Service Australia, Castan Centre for Human Rights, Refugee
Advice and Casework Service NSW, Liberty Victoria, International Detention
Coalition, Australian Psychological Society, Uniting Church Australia, Refugee
Council of Australia and the International Refugee and Migration Law Project
UNSW.
It
should be noted that numerous organisations who made submissions to the inquiry
called for mandatory detention of asylum seekers to be abolished altogether, on
the basis that it does not accord with the rule of law and Australia's human
rights obligations.[8]
A number
of submitters to the Inquiry supported the Greens’ long-time call for time
limits of 30 days to be placed on immigration detention. The Australian Medical
Association (Northern Territory) recommended that detention of asylum seekers
should be limited to 30 days for adults and 3 days for children.[9]
Amnesty International noted that a 30 day time limit would be comparable to
other countries.[10]
The Australian Greens continue to broadly support the position that 30 days is
an appropriate maximum time frame for initial checks.
The
Committee was provided with a great deal of evidence showing that the extended
duration of detention is directly linked, indeed underlies, many of the core
problems associated with immigration detention, including unrest in immigration
detention centres, costs to tax payers for privatised management of the
centres, costs to society for supporting asylum seekers once they are finally
released, difficulties in accessing services in remote locations, and lack of
appropriate care and protection for children. Most importantly, extended
detention is crucially linked to the mental health crisis that is a constant
concern in Australia's immigration detention network, leading to
over-medication, self-harm, suicide attempts and, in a small but tragic number
of scenarios, deaths of asylum seekers.
The link
between time limits and mental health was put clearly in written materials and
in person by Dr Jon Jereidini, a Professor of clinical psychiatry at the
University of Adelaide who has been working with detainees since 2002. He
informed the Committee:
If
I talk about it just from the point of view of protecting people's mental
health, then from that point of view I do not have a problem with detention,
provided it is a matter of weeks rather than months, in order to allow
processing and those kinds of things that people seem to believe need to happen
in a closed environment... But I do think that when it is sustained beyond
those weeks it does become dangerous, and it has been extremely damaging to
many people, and not just, I might add, to the people who have been detained
but also those who have detained them. Increasingly, we have become aware over
the years of the damage done to people working in those environments. From the
point of view of protecting people's mental health, detention must be kept to a
matter of weeks rather than months.[11]
As
reflected in recommendation 23 [5.119] the Committee has resolved that
detention of 90 days or less would be a workable and safe period of detention.
The detention of adults for no more than three months, while health, identity
and security checks are undertaken, would bring vast improvements to the
network as a whole.
A time
limit on detention to 90 days was supported by a number of submitters to the
Inquiry, including the Chair of the Council for Immigration Services and Status
Resolution, Mr Paris Aristotle, who noted that as people start to become unwell
after 90 days of detention then 90 days should serve as the outer limit.
The
Australian Greens see recommendation 23 of the Committee Report as a clear
opportunity to begin taking ‘all reasonable steps’. In the context of this
Inquiry and its significantly beneficial raft of recommendations we support the
time limit of 90 days. Consequentially, amendment of the Migration Act
to achieve this reform should be the top priority coming out of this extensive
inquiry process.
Positing
time limits as a policy goal (that may be readily departed from on the basis of
momentary political imperative) rather than as a legislative requirement (that
requires approval by both houses of federal parliament to be changed) will not
lead to genuine and long-term reform of detention practices in Australia.
Current
and future Australian governments must be compelled by law to ensure that time
limits are adhered to by all public or private agencies responsible for accommodating
asylum seekers while initial checks are completed.
Recommendation 1
Migration Act to be amended
to ensure that a time limit on detention, preferably 30 days, is adhered to,
over which time initial health, identity and security checks can be conducted
to ensure there is no risk to the community.
Judicial
Review of Extended Detention
Where
the Department of Immigration forms the view that a person needs to be detained
beyond the mandated time limit, there must be clear processes in place to
ensure that the continuing detention is adequately explained, scrutinised and
justified.
Recommendation
24 [5.120] of
the Committee Report requires the Department to publish reasons on a quarterly
basis for the ongoing detention of any person beyond 90 days. This reform would
provide a basic level of scrutiny and transparency for people in the broader
Australian community, such as legal and community advocates, to be regularly
informed of the situation within the centres and circumstances relating to
individual detainees, and is intended to promote a best case scenario where
people will not be detained beyond 90 days without observably good reason.
It is a
long-standing policy of the Australian Greens that extended detention – beyond
the initial time limited detention for health, identity and security checks –
must be subject to judicial review at intermittent periods with the onus on the
Department of Immigration to prove why it is necessary.
The need
for automatically required judicial review of extended detention was supported
by numerous submitters to the inquiry.[12]
The Australian Human Rights Commission noted that, in light that the indefinite
detention of asylum seekers is not currently reviewable by any court, Australia
is currently acting in breach of its international obligations according to
articles 9(40) of the International Covenant on Civil and Political Rights and
37(d) of the Convention on the Rights of the Child.[13]
The Commission noted that, in order to ensure that detention is not arbitrary,
the decision to detain or continue detaining must be subject to prompt judicial
review.
Recommendation 2
Detention beyond the legislated time
limit must be justified before a court and subject to periodic review by the
court from that point, with the onus on the Department of Immigration to make
the application and show why extended detention is necessary for that
individual.
Cost
and Remoteness
One of
the main reasons that immigration detention is so expensive is due to the
remoteness and isolation of many of the centres. It is impractical to the
point of impossibility for detainees and service providers to access quality
services and for the network to attract well-trained, experienced staff on a
cost-efficient basis when detention centres are so remotely situated.
The
Committee was told the remoteness of centres causes problems across the board
including: service providers and the Department of Immigration have
difficulties attracting staff, and particularly teachers;[14]
detainees do not have access to essential services and community support;[15]
detainees find it difficult to obtain legal advice and give instructions;[16]
the feeling of physical remoteness adds to the alienation and depression
experienced by detainees;[17]
and it is difficult for service providers to obtain culturally appropriate
resources, excursions and communications facilities for detainees.[18]
The
Committee was advised on 10 August 2011 that the cost of running the held
detention network over recent years have been as follows:
2011-2012 $628.75
million[19]
(note: this figure does not appear to take into account updates on account of
recent contract variations)[20]
2010-2011
$772.17 million
2009
– 2010 $295.55 million
2008
– 2009 $146.57 million [21]
The
projected cost of community detention of $150 million for financial year
2011-2012 was provided in February 2012, after a relatively large-scale
increase in community detention placements in late 2011-early 2012 (community
detention having been initially projected in August 2010 to cost $15.74 million
in 2011-2012). However the Department of Immigration commented in Senate
Estimates that the community detention program was not yet equipped to manage
the scale of client movements, and as such 'there are still a lot of setup
costs, and economies of scale are not realised and so on. The time will come
when there is more of a seamless flow of arrivals into accommodation, and not
the need to be continually renting new properties'.[22]
The Department Secretary Mr Andrew Metcalfe voiced his presumption that 'in due
course there will be a lower average cost because those setup costs... will be
rolled across multiple clients. So while there is a setup cost, the ongoing
costs are going to average out to a lower number'.[23]
Clearly,
as a costs saving measure at least, asylum seekers should be moved into the
community as quickly as possible. Where asylum seekers must be briefly
detained, it should be in detention centres that are close to metropolitan
services rather than in impractical and expensive remote locations.
Recommendation 3
Remote and isolated detention centres
should be decommissioned.
Children
Chapter
5 of the majority report canvasses the unequivocal and extensive evidence given
by a vast number of submitters in condemnation of the continued detention of
children. Children continue to be housed in secure accommodation including
transit accommodation and ‘alternative places of detention’ or 'APODs', i.e.
detention facilities in all but name. As at 29 February 2011 there were 496
children in detention-like facilities.[24]
The
Australian Greens maintain that no child should be placed in detention of any
description beyond a maximum 12 day period while initial health, security and
identity checks to be conducted. Throughout that initial detention, the
Department of Immigration should be required by the Migration Act to
ensure that children are only ever placed in appropriately low security, family
friendly environments in a metropolitan area.
The
Australian Greens endorse recommendation 18 [5.65] of the
Committee Report and support enshrining this recommendation in the Migration
Act.
The
argument that detention is an entirely unsuitable place for children was
supported by key children’s advocates throughout the inquiry process. The
Australian Children’s Commissioners and Guardians recommended that children be
accommodated outside detention facilities while awaiting decisions about
protection.[25]
Save the Children used its written submission to ask the Committee to
recommended revision of the Migration Act so that child asylum seekers
are not subject to mandatory detention.[26]
Dr Peter Morris of the Australian Medical Association of NT described the
detention of children and their families as 'a form of child abuse'.[27]
ChilOut
recommended that the government develop alternative accommodation facilities in
order for detention to adhere to the principle that is a last resort. Here it
should be noted that the ‘APOD’ facilities are not family appropriate
alternatives to detention. Family appropriate facilities should not bear a
close resemblance to other detention facilities, should be not be staffed by
security guards, should have a welcoming and community-like environment, and
should exclude regular night-time head checks.
The
Australian Greens point to the Inverbrackie place of detention (Adelaide Hills,
South Australia) as the most child and family appropriate of existing immigration
detention centres, and a basic example of what family reception centres should
be like for families undergoing initial short-term health and security
assessments prior to being transferred into the community.
ChilOut
made the following submission:
Detaining
children violates their basic human rights. But when they are housed in locked
facilities such as Christmas Island, it is the responsibility of the government
and its contractors, in this case Serco Asia Pacific, to take the very best
care of the children. There is irrefutable evidence that the detention regime
damages people. Allowing that effectively state-perpetrated damage to extend to
children should be absolutely unconscionable in a developed, civilised society.[28]
The
Refugee Council of Australia encouraged the government to make greater use of
its residential determination powers to release children and families from
detention and from 'APODs' in sites such as Phosphate Hill on Christmas Island.[29]
The
Committee was provided with ample evidence demonstrating why detention centres,
or detention-like environments, are inappropriate for children:
-
Children’s
mental health is severely negatively impacted by indefinite mandatory
detention, as demonstrated by evidence that between 1 July 2011 and 26 September
2011, 26 minors were involved in self-harm incidents including 19 actual
self-harm attempts;[30]
-
There are no
trained paediatricians working at the Darwin Airport Lodge, which is currently
listed as an APOD. Rather, there are a few workers with paediatric experience
and a psychologist 'skilled in working with children and families';[31]
-
Schooling
within immigration detention or detention-like facilities is not subject to the
national quality agenda in the Early Childhood Development Strategy;[32]
-
There are
difficulties retaining and accommodating teachers on Christmas Island;[33]
-
In some
instances, such as in Port Augusta, children have been receiving education that
is substandard, ad hoc and incommensurate to their needs;[34]
-
There is no
contractual requirement for detention service provider staff who deal with
children to have a Working with Children check unless it is required under
relevant state legislation.[35]
Recommendation 4
The best interests of the child should
be enshrined in the Migration Act as the paramount in decisions
regarding the accommodation of all children.
Recommendation 5
Migration Act to be amended
to remove any mandatory detention of children.
Recommendation 6
Migration Act to be amended
to place time limits on children and their families being accommodated in low
security family appropriate facilities prior to being moved into the community.
Recommendation 7
Children should not be subject to ASIO
security checks beyond the standard security checks used at airports (i.e.
checks against the Central Movement Alert List).
Recommendation 8
All asylum seeker children of school age
(early childhood, primary and secondary) must be given access to local
schooling.
Recommendation 9
Children should only be housed in
facilities where all service providers and officers who interact with them have
obtained a Working with Children check.
Unaccompanied
minors
Serious
concerns about the guardianship of unaccompanied minors were raised in the
course of the Inquiry. Many of the experts and advocates appearing before the
Committee expressed their intense dismay at the clear and apparent conflict of
interest of the current situation, where the Minister for Immigration is
simultaneously the person responsible for the detention of unaccompanied minors
and their legal guardian.
The
Australian Human Rights Commission told the Committee that there is an inherent
conflict in interest in allowing the Minister or his delegates to be the
guardian when the Minister is also responsible for the granting of visas or
continuation of detention.[36]
This view was supported by the Australian Children's Commissioners and
Guardians.
As legal
guardian the Minister is required to act in the best interests of the child,
yet the Minister is also the person responsible for continued detention, which
is manifestly not in the child's best interest. Furthermore, the
Department of Immigration advised the Committee that the Minister or
departmental delegate is responsible for arranging legal representation for the
unaccompanied minor, that is, for a legal challenge which will ultimately be
against the Minister.[37]
Almost
all submitters agreed that the Minister should be removed as the legal guardian
of unaccompanied minors as a matter of urgency.[38]
The
Australian Greens wholeheartedly endorse the Committee Report's recommendation
19 [5.95] that the Minister be replaced as legal guardian of unaccompanied
minors. This is a reform that the Australian Greens have been calling for over
years. The Minister cannot be relied upon to fulfil these dual and conflicting
roles. We look forward to the next steps in the process, which should be an
investigation of how to best implement this particular reform as a matter of
urgency.
Mental
Health
The
Australian Greens share the view of experts who gave evidence to the Committee
that the extended and indefinite periods of detention is directly causative to
the high levels of mental illness in the detention network.
Chapter
4 of the Committee Report provides a thorough survey of mental health services
in the detention network and illustrates why the level of mental illness among
detainees was the most pressing area of concern throughout the Inquiry. We
acknowledge the evidence contained within Chapter 4, particularly the
information given by Professor Louise Newman in her role as Chair of the
Detention Health Advisory Group (DeHAG) and other mental health specialists.
As per
the Committee Report, we draw the conclusion that acute mental illness is widespread
amongst the detention network and current services are severely inadequate to
deal with the quantum and severity of cases. The crisis at hand was illustrated
by the Department of Immigration, who noted that 'self harm incidents as
reported by service providers to DIAC have experienced a 12 fold increase
between 2009-2010 and 2010-2011'.[39]
Dr Jon
Jureidini noted that by time people in detention see clinical psychological or
psychiatric experts who are outside the services provided by IHMS, ‘they are
already damaged by immigration detention. It is necessary to move such people
to start healing them’.[40]
In the
hearing at Scherger immigration detention centre in Weipa, Dr Bruce Gynther, a
psychiatrist working for the Cairns and Hinterland Health Service District who
regularly sees detainees, told the Committee that the long and indefinite
duration of mandatory detention, and the remoteness of detention centres, must
be seen to be closely linked to the development or exacerbation of mental
health problems:
I
think that that the actual process of prolonged involuntary detention is an
abusive process.
[Prolonged
detention] actually damages the patients in the long term. It produces
psychiatric illness and long-term damage for these people, whether they are eventually
released into the community or returned to where they have come from. I think
we are actually causing them harm.
The
way things are set up now, with the remote location of Scherger, means that,
when patients are admitted with psychiatric conditions to Weipa Hospital, the
degree and quality of the psychiatric care that we can offer is really
suboptimal. Even though we strive very hard and liaise with the mental health
nurses that are located in Weipa and the doctors at Weipa Hospital and everyone
does the best they can, in the end, for patients with really severe psychiatric
conditions who are suicidal and who have major depression or post-traumatic
stress disorder, I am making decisions over the phone about their management,
and it is just not acceptable.[41]
As
outlined in Chapter 4 of the Committee Report, many of the members of the
Committee were staggered to learn that in remote detention centres such as in
Darwin and Weipa, there are no trained mental health specialists or nurses from
evening to morning on weeknights, and in some there are no specialist mental
health workers on site through the weekend. Serco staff who are confronted
with the constant tide of mental health, self-harm or suicide incidents have no
recourse for assistance beyond calling a triage phone line in Sydney for advice
from a mental health worker.
The
Department of Immigration and International Health and Medical Services (IHMS)
acknowledged some of the shortfalls in psychiatric and psychological
assistance, and have recently expanded IHMS' contract for health services.
However it is unacceptable that remote centres like those on Christmas Island
have no full time psychiatrist on staff, and only one psychiatrist who visits
the Island up to 8 times per month.[42]
The Regional Medical Director of IHMS confirmed that specialists have generally
been arranged to visit detention centres not on a set timeframe, but on an
'objective needs basis'.[43]
The
Committee Report in recommendation 15 [4.39] proposes reforms that go
significantly towards addressing this glaring inadequacy in services by
requiring that IHMS staff be rostered on a 24 hour basis at all
non-metropolitan detention facilities. Likewise, recommendation 16 [4.69]
requires that the Department of Immigration work with IHMS to provide proactive
health and mental health outreach services in detention facilities.
Recommendations
5, 6, 7, 8, 9, 10
of the Committee Report offers crucial recommendations that, once implemented,
would assist to address the mental health crisis in the detention network,
through enhanced consultation with the expert panel DeHAG, improved staff
training in the areas of mental health care, and more transparent, accountable
and consistent processes across the agencies and workforce that form the
immigration detention network.
There
are still thousands of people in detention who have been there for many months
and are growing increasingly unwell. It is important that those people receive
quality assessment and treatment. As such the Australian Greens propose that
detainees, particularly long-term asylum seekers, be able to apply for funding
for independent psychological and psychiatric reports.
Recommendation 10
IAAAS funding to be expanded to cover
independent psychological and psychiatric reports.
Staff
Training
The
Committee Report at recommendations 5 [3.78] and 6 [3.91]
suggests new methodologies and quality assurance processes for the recruitment
of service provider staff and the day-to-day implementation of the DeHAG
approved Psychological Support Program policy. In recommendation 8 [3.93]
and 9 [3.104] the Committee Report suggests ways for service provider
staff to be more adequately trained to deal with mental health issues and cope
with critical incidents.
The
immediate implementation of these reforms is integral to fixing the mental
health malaise in the immigration detention network. Improved and more
transparent training for Serco staff (Client Services Officers) is utterly
necessary.
The
Committee was provided with deeply concerning evidence of a serious disconnect
between the agencies, and between the staff hierarchies or departments within
each agency. Although now partly remedied, it was previously the case that
DeHAG had not been consulted in relation to the development of Serco's procedures
for managing people at risk of self-harm.[44]
The Committee was confronted to see, while touring various detention centres,
demonstrations of the 'Keep Safe' practice which saw Serco staff standing 1.5m
away from a person at risk of self harm for hours on end.
Seeing
as 'IHMS does not provide advice to Serco as to how to interact with a person
on suicide watch' it is crucial that Serco employ and train staff who will be
well equipped to handle the vulnerable people in detention.[45]
While 90 day time limits to detention would assist with reducing current mental
ill-health levels, it is crucial that all staff interacting with asylum
seekers, including subcontractors in supposedly 'non-client facing roles', are
trained in relevant skill sets.
While
the Serco/Department of Immigration contract requires that Serco staff attend
mental health training prior to commencing work in a facility, the Committee
heard evidence from various witnesses that across the detention network there
are significant inconsistencies in training duration, and most staff start work
in the centres without completing more than a four week training package, which
is equivalent to a Security Office (or night-club bouncer) training.
The
2009-2010 Serco Client Services Officer training manual which was released onto
the Crikey website in March 2012 did not inspire any further confidence, as the
manual was shoddily cobbled together, clearly based on prison officers'
training materials, overtly focused on violent techniques for restraining detainees
and lacked any thorough or appropriate training for new staff working in a
human rights capacity with shell-shocked, vulnerable and culturally diverse
newly-arrived asylum seekers.
There
should be no service provider staff working with asylum seekers who do not have
full and appropriate training.
ASIO
security assessments
Chapter
6 of the Committee Report provides an excellent overview of the process for
ASIO security assessment of people in detention, including changes in practice
by ASIO in late 2010 which triaged, or streamlined, assessment processes. The
Australian Greens endorse the findings of the Committee that 'placing people in
community detention following an initial, routine security check does not
prejudice any subsequent in-depth security assessment ASIO may provide prior to
a permanent visa being issued and a refugee being released into the community'
(page 157). This conclusion is reflected in recommendation 26 [6.96] of
the Committee Report.
The
bleak situation of indefinite mandatory detention that faces an increasing
number of people who have been found to have an adverse security assessment by
ASIO was of great concern to the Committee, and to the Australian Greens. We
urge the Department of Immigration and ASIO to take urgent action to provide
people with pathways out of detention.
The
Committee Report advises at recommendation 28 [6.152] that the ASIO Act
be amended to allow the Administrative Appeals Tribunal to review security
assessments of refugees and asylum seekers. This proposal was backed by
numerous submitters and witnesses to the inquiry, including Amnesty
International, the Australian Human Rights Commission, the Refugee and
Immigration Law Centre and Professor Ben Saul.
UNHCR recommended 'a process by which a bridge can be built
between the security assessment and the confidentiality surrounding that and
the right for someone to know at least the basic elements of the case against
them', which is the practice in Canada, New Zealand and the United Kingdom.[46] The Refugee and Immigration Law Centre pointed out
to the Committee that the inaccessibility of legal review of ASIO decisions as
a great burden on the immigration network and on the people subject to the
adverse findings.
The
Australian Greens view this area to be in critical need of reform. It is
unthinkable that we continue to detain individuals indefinitely on the basis of
adverse security assessments which are not reviewable or disclosed. We endorse
the findings of the Committee Report but we wish to re-state the importance of
finding an appropriate mechanism for releasing the grounds of the adverse
assessment, without which no meaningful review can be anticipated.
Recommendation 11
Relevant legislation to be amended to
ensure that detainees have access to a fair and independent review of a
negative ASIO security assessments, with appropriate disclosure of the grounds
of the adverse security findings regardless of whether judicial or merits
review, and with flexible options for protecting national security on a
case-by-case basis.
Recommendation 12
Appointment of a special advocate to
conduct reviews of negative ASIO assessments where there is concern maintaining
confidentiality of sensitive material.
Recommendation 13
Legal assistance should be funded at all
stages of resolution of people's immigration status, including increased
resources for Legal Aid Commissions and IAAAS agents for merits or judicial
review.
Recommendation 14
Where an interview is to be conducted
between the Department of Immigration and a minor that will have ramifications
on visa assessment, there must be a legal advocate present or an accredited
Independent Third Person present.
Community
detention
The
Committee Report includes recommendations which aim to encourage the swift
movement of asylum seekers from immigration detention into community detention.
Placing time limits of 90 days through amendment of the Migration Act is
the best way to achieve this outcome.
Community
detention is not only significantly cheaper than placing people immigration
detention but it is the only humane and healthy solution. Mr Richard Towle of
the UNHCR advised the Committee:
The UNHCR has observed empirically that, internationally, people
cope better if they are in community based settings with support of their
communities than if in detention and can make better and more informed
decisions about returning should their refugee status be denied.[47]
The
Chair of the Council for Immigration Services and Status Resolution, Mr Paris
Aristotle, noted that 'the processing of people in the community yields benefits in terms of
processing arrangements and people's ability to deal with and contemplate what
the next decision should be'.[48]
Mr Aristotle also made a suggestion that is strongly supported by the
Australian Greens, that 'in order for community detention to be expanded, it is preferable
that standards were legislated so that there is consistency'.[49]
The Australian Human Rights Commission urged the Australian
government to make greater use of community based alternatives to detention, as
they can be cheaper and more effective in facilitating alternatives to
detention.[50]
The Australian Greens take note of the constructive criticisms
also raised in relation to community detention and other community based
programs. We deem it crucial that all people on bridging visas have work
rights, which assist them to lead productive lives, gain skills and support
themselves. As noted by the Refugee Council of Australia, allowing people to
be self-sufficient is preferable financially and otherwise.[51]
As well as expanding the capacity for people to work who are able
to do so, services to assist people to find work need to be expanded. Many
people seeking protection come from cultures where job seeking occurs through
family networks rather than through formal application and resumes.[52]
Similarly, the process for accessing health and medical services
need to be streamlined, including some administrative aspects. The Committee
heard evidence that some asylum seekers on bridging visas do not have
Commonwealth certified photo identification, which leads to 'significant difficulties in
meeting the identity requirements to accept a Medicare application over the
counter at a Medicare office. That is a significant problem and it takes up a
great deal of time for the contractors, like the Australian Red Cross, that
provide the support programs to many asylum seekers in trying to overcome these
difficulties'.[53]
Recommendation 15
People on community detention or
bridging visas must be able to make use of public provision of health services
and access public referral services.
Recommendation 16
Families and unaccompanied minors who
are placed on bridging visas should be automatically also placed on the
Community Assistance Support program.
Recommendation 17
All asylum seekers on bridging visas
should be provided with Commonwealth certified photo identification.
Recommendation 18
All people on bridging visas should have
work rights.
Conclusion
In
2010-2011, 6316 people sought asylum at our airports, compared to 5175 people
who arrived by boat, but only the latter cohort will face mandatory detention
for months or years in Australia's immigration detention network.[54]
90 per cent of applicants who suffer through this unfair system are ultimately
found to be genuine refugees, yet we continue to detain them for extended
durations in demonstrably unhealthy circumstances and at our own great expense.[55]
The
government has a duty of care to fix the crisis in the immigration detention
network. On a policy and political basis successive governments can keep
lurching from one 'bandaid solution' to the next, or they can show the wisdom
and courage to embark on reforms that are long overdue. True reforms should
have been implemented as the result of earlier mental health crises and the
wrongful detention of Cornelia Rau and many others in the early 2000s.
The
government failed to do this and we are now seeing history repeat itself.
Legislated time limits would solve many of these issues. The Government must
act on these recommendations because they will make a difference.
Senator Sarah
Hanson-Young Mr Adam
Bandt MP
Deputy Chair
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