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Submission to the National Inquiry into Children in Immigration Detention from

Australian Lawyers for Human Rights

Part One - Introduction

Part Two - Public Accountability, Monitoring and Intervention

Part Three - Ideal Practice - Recommendations for Change

PART ONE - INTRODUCTION

Australian Lawyers for Human Rights

Australian Lawyers for Human Rights (ALHR) is a network of Australian lawyers interested in furthering awareness and advocacy of human rights in Australia. ALHR promotes the practice of human rights law in Australia and works with Australian and international human rights organisations to achieve this aim.

Outline of this submission

This submission is structured in three parts:

1. a statement of ALHR's position in relation to the immigration detention of child asylum seekers; its interim position; and an overview of the implications of the current system of mandatory detention of asylum seekers, including child asylum seekers, in terms of the relevant international legal normative framework;

2. a review of the current standards of accountability, monitoring and intervention in relation to immigration detention, including a critique of the operation of Immigration Detention Centres in the context of mandatory reporting of child abuse;

3. a proposal of an ideal model of accountability, monitoring and intervention in relation to immigration detention.

Terms of Reference

This submission will address the following selected terms of reference announced by the Human Rights and Equal Opportunity Commission (HREOC):

1. The provisions made by Australia to implement its international human rights obligations regarding child asylum seekers, including unaccompanied minors;

2. The mandatory detention of child asylum seekers and other children arriving in Australia without visas, and alternatives to their detention;

3. The adequacy and effectiveness of the policies, agreements, laws, rules and practices governing children in immigration detention with particular reference to the conditions under which children are detained, guardianship issues and security practices in detention; and

4. The additional measures and safeguards which may be required in detention facilities to protect the human rights and the best interests of all detained children.

Mandatory Detention of Asylum Seekers

Currently, under the Migration Act 1958 (Cth) (Migration Act), all persons who arrive in Australian without proper authorisation are detained. This captures so-called 'onshore' asylum seekers as a class of people, that is, people who arrive in Australia without authorisation and subsequently seek to claim refugee status.

Mandatory detention of all asylum seekers in this fashion is in breach of Australia's international legal obligations. We outline the reasons for this below, with reference to the applicable international legal standards and norms.

INTERNATIONAL NORMATIVE FRAMEWORK

There are a number of international conventions, guidelines and commentary relevant to Australia's treatment of children within its jurisdiction, which necessarily extends to child asylum seekers. These include:

In addition to the instruments listed, Australia is bound by customary international law obligations relating to the treatment of children, in particular, those obligations which relate to the 'best interests' principle (mentioned below in more detail). These obligations are applicable at all levels of government and are not limited to the Commonwealth.

The background papers prepared by HREOC provide a comprehensive description of the nature of the international legal obligations incumbent upon Australia. We outline some key points which are relevant to our submission.

Application of international legal principles to child asylum seekers

Under the CROC, Australia has the obligation, when passing legislation and implementing policy, to respect the following four key principles:

1. the best interests of the child as the primary consideration in all actions concerning them (Art. 3(1);

2. the right of all children to enjoy the rights under the Convention without discrimination (Art. 2);

3. the right to survival and development (Art. 6); and

4. the right of all children to participate meaningfully in all matters affecting them (Art. 12).

Further, the CROC provides at Article 37(b) that no child shall be deprived of his or her liberty unlawfully or arbitrarily and that the detention of a child is to be used only as a measure of last resort, and when it is used, only for the shortest appropriate period of time.

The prohibition against depriving a child of his or her liberty, which is similarly recognised as a general prohibition at Article 9 of the ICCPR, is supported by the Conclusion Number 44 of the ExComm, entitled Detention of Refugees and Asylum Seekers (1986) UN Doc. A/AC.96/688 which sets out four acceptable purposes for which asylum seekers may be detained:

(a) to verify identity;

(b) to determine the elements on which the claim for refugee status or asylum is based;

(c) to deal with cases where asylum seekers have destroyed their travel and/or identity documents or have fraudulent documents with which they intend to mislead the authorities of the state in which they intend to claim asylum;

(d) to protect national security or public order. [1]

To detain asylum seekers for reasons other than those listed above, or for an unjustifiable period for whatever reason, risks detaining an asylum seeker arbitrarily and therefore unlawfully, at international law. 'Lawfulness' of detention is not the measure of 'arbitrariness' of detention at international law - detention must be for a proper purpose, and proportionate, to achieve its aim to be lawful. [2]

The special vulnerablity of children is recognised at international law under the Riyad Rules and the Beijing Rules, which emphasise that detention of children should be a measure "of last resort" and, if it must occur, should be as brief as possible. [3] The UNHCR's Guidelines on Detention goes further when giving guidance to state parties in their implementation of the Refugee Convention: it provides that "minors who are asylum seekers should not be detained". Australia's current practices of detention of asylum seekers, and in particular, child asylum seekers, does not comply with international standards.

INADEQUACY OF EXISTING REPORTS AND INQUIRIES

There have been a number of inquiries into the running of Australia's IDCs [4]. While some of them have made reference to the inaccessibility of the content of the government's contract with ACM [5], and made recommendations for the improvement management practices within detention centres [6], none has dealt in any detail with the issue of public accountability or made recommendations in respect of that issue. This role would be better played by an independent body with a mandate to inspect detention centres on a regular basis and broad enough powers to allow them to monitor effectively.

RECOMMENDATIONS

1. That the current system of mandatory detention of asylum seekers be dismantled.

2. That detention of asylum seekers be restricted to circumstances in which is it is essential and that health and security screening be expedited in cases involving children.

3. That until mandatory detention is discontinued the Commonwealth should look implementing processes for regular, rigorous and independent monitoring of Australia's detention centres.

PART TWO - PUBLIC ACCOUNTABILITY, MONITORING & INTERVENTION

1. PUBLIC ACCOUNTABILITY

Private Management of Australian Immigration Detention Centres

Four immigration detention facilities (Curtin, Woomera, Maribyrnong and Villawood) are currently managed by the firm Australasian Correctional Services Pty. Ltd., also known as Australasian Correctional Management (ACM), pursuant to a General Agreement with the Commonwealth dated 27 February, 1998, and a Detention Services Contract dated 27 February, 1998. The full, unedited version of these agreements are not publicly available due to commercial confidentiality.

The arrangements involving the detention of asylum seekers, many of whom are children, raise issues involving Australia's obligations under international law, as outlined above and, accordingly, should be subject to public scrutiny. The arrangement for the provision of detention services by ACM to the Commonwealth, through DIMIA, lacks transparency by virtue of commercial confidentiality, and does not allow sufficient independent scrutiny.

In particular, the actual contract performance measures for the General Agreement and the Detention Services Contract are not available to the public. Clause 3.3(a) of the Detention Services Contract states:

The Secretary will measure the performance of the Contractor in delivering the Detention services against the Immigration Detention Standards as measured in Schedule (Performance Measures).

The actual assessment indicators for the Standards are not provided because of commercial confidentiality. However, the Standards cover the following subject matter:

Management and Security of Detention Facility

Management of Detainees

Individual Care Needs

Several of these issues go to the very heart of Australia's obligations under the CROC, and the Refugee Convention. Accordingly, the actual performance measures for these issues should be publicly available to allow assessment of the degree to which management and operation of the Immigration detention facilities comply with Australia's international obligations.

Record of ACM's public accountability in Australia

In April 1997 ACM entered into a contract with the Victorian Government for the management and operation of the Fulham low/medium security prison, located in Gippsland. Requests for copies of the unedited service agreements by prison advocates were initially refused, with the Service Delivery Outcome section of the contract claimed as commercially confidential. Access to these sections was eventually obtained by virtue of a Freedom of Information Application which was ultimately decided by the Victorian Civil and Administrative Tribunal in July 1998. The full, unedited service is agreement is now publicly available on the Victorian Government website (www.vgpb.vic.gov.au/major/fulham.htm).

Service Delivery Outcomes previously considered commercially confidential include the following:

CORRECTIONAL SERVICES REQUIRED OUTCOMES
PRISON OPERATION (25%)
Escapes 1 Prisoner per year
Number of incidents of self mutilation/attempted suicide as a proportion of the average muster 2.19% per year

Assaults on Prisoners

(a) by other Prisoners where an incident is recorded
(b) by staff where charges are proven

 

0.1038 per Prisoner Year

0.000 per Prisoner Year
Assaults on staff or other persons where an incident is recorded 0.035 per Prisoner Year
Percentage of Prisoners testing positive for non-prescribed drug use, as a result of random testing over time 7.9% per year
EDUCATION & TRAINING (12.5%)

Adult Basic Education (for Prisoners Identified as requiring Adult Basic Education in their individual Management Plans):

(a) Enrolment in ABE modules and

(b) Completion/certification achieved in ABE

(c) Enrolment in vocational training Modules

(d) Completion/certification achieved


2 modules per Prisoner Year

1 module per Prisoner Year

3 modules per Prisoner Year

2 modules per Prisoner Year

Vocational Training (For Prisoners not Requiring Adult Basic Education in their Individual Management Plans).

(a) Enrolment in modules and

(b) Completion/certification achieved

(A module is defined as 40 student hours.)



5 modules per Prisoner Year

4 modules per Prisoner Year
PRISON INDUSTRIES 12.5%

(a) Number of skill areas or functions in which Prisoners are able to participate.

(b) Participation Rate

3


85%
HEALTH 10%

(a) Percentage of Prisoners who are medically
screened by a health professional within 24 hoursof reception into the Prison as a proportion of all Prisoners received.
(b) Percentage of Prisoners considered a risk to themselves and who are assessed by a psychiatric professional within 2 hours of referral as a proportion of all Prisoners who are so referred.
(c) Complaints received regarding health issues or access to appropriate health care which the Commissioner receives directly and/or via the Ombudsman and proven to the Commissioner's Satisfaction to be valid.

100%


100%

0.000 per Prisoner Year
OTHER PROGRAMS 5%

Substance Abuse Programs

(a) Percentage of Prisoners provided with the following courses programs against the number of Prisoners who require them as set out in the Individual Management Plans:
- substance abuse awareness
- substance abuse education

(b) Percentage of Prisoners who successfully complete the residential drug program as a proportion of all Prisoners who commenced the program.

 

 


100%
100%

90%

The issues raised in the Service Delivery Outcomes are of concern in terms of transparency of operations and their impact on key human rights issues. Real issues of performance, however, can only be gauged by accessing the operation manuals and contractual specifications. In Victoria, these were also subject to commercial confidentiality.

The Victorian Auditor-General found the service delivery outcomes, in and of themselves, to be inadequate to encouraging a high standard of service delivery. In his Special Report No. 60, Victoria's Prison system: Community protection and prisoner welfare, the Auditor-General expressed concerns that the Service Delivery Outcomes are:

IMPLICATIONS FOR IMMIGRATION DETENTION CENTRES

The record of ACM in terms of public accountability for its operation of Fulham Prison in Victoria raises concerns for the level of accountability for the management of the four Immigration Detention facilities under its control. The details of the performance measures under the General Agreement and the Detention Services Contract between ACM and the Commonwealth are not available for public scrutiny. In addition, there is no public access to the Operation Manuals or the monitoring reports which operationalise the performance measures and contract specifications. It is therefore impossible for an independent assessment of the degree to which the operations and management of Immigration Detention Centres comply with Australia's international obligations in relation to the protection of children deprived of their liberty, as outlined in the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Riyad Rules).

The Western Australian Inspector of Custodial Services, Professor Richard Harding, has described the Immigration Detention Centres as "an absolute disgrace in terms of conditions and standards that are applied." [8] He states that "….. 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. Immigration Detention Centres need an autonomous Inspectorate of the kind that now exists in Western Australia."

Under the General Agreement and the Detention Services Contract, DIMIA officials are on site at all Immigration detention facilities, purporting to monitor adherence to the Immigration Detention Standards outlined above. In Professor Harding's view, this purported mechanism of monitoring and accountability of the contractor is quite illusory. While conducting a nine-hour visit to Curtin Detention Centre in June, 2001, Professor Harding made the following observations:

What soon emerged, however, is that the DIMIA representatives and the ACM personnel see themselves as part of a unitary team. There is absolutely no differentiation in the day-to-day behaviour of their roles. As I walked around the facility, I was accompanied by two representatives of ACM and two of DIMIA. In asking questions, I found that they deferred to each other on operational and policy matters quite indiscriminately. There was absolutely no role differentiation apparent between them. When I probed about this, I was informed that DIMIA was not at liberty to discuss monitoring or accountability arrangements as these were dealt with in Canberra, and were in any case, commercial-in-confidence. [9]

The operation and management of Immigration Detention Centres in Australia lacks transparency and public accountability. ALHR shares the concerns expressed by the Inspector of Custodial Services of Western Australia, that monitoring mechanisms put in place by DIMIA are manifestly inadequate to ensure compliance with Australia's international obligations, and the protection of human rights and well being for children and young people currently held in detention.

(C) MONITORING & INTERVENTION

Confidentiality Undertakings and Mandatory Reporting

ALHR is deeply concerned about the obstruction of information regarding alleged incidents of child abuse and mistreatment occurring within Australian Immigration Detention Centres. In particular, those centres for which Australasian Correctional Management has responsibility for administration - Curtin (WA), Maribyrnong (Victoria), Woomera (SA) and Villawood (NSW) - give rise to particular concerns regarding confidentiality undertakings sought by ACM from professionals working within each of the centres.

In three of the four states in which ACM is responsible for the administration of Immigration Detention Centres, New South Wales, South Australia, and Victoria, State Parliaments have enacted mandatory reporting obligations for incidents of suspected child abuse or mistreatment for various classes of professionals. The respective legislative arrangements in respect of reporting of child abuse for New South Wales, South Australia, Victoria and Western Australia are outlined below:

New South Wales

Under Section 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the following professionals are required to report incidents of suspected abuse or maltreatment of children:

any person who, in the course of his or her professional work or other paid employment delivers health care, welfare, education, children's services, residential services, or law enforcement, wholly or partly, to children, and a person who holds a management position in an organisation the duties of which include direct responsibility for, or direct supervision of, the provision of health care, welfare, education, children's services, residential services, or law enforcement, wholly or partly, to children.
This includes:

The following matters are required to be reported (Section 23):

Any reports of alleged child abuse or mistreatment must be made to the NSW Department of Community Services as soon as possible. A failure to do so is a criminal offence and may be subject to a fine of not more than 200 penalty units (Section 27).

South Australia

Under Section 11 of the Children's Protection Act 1993 (SA), where a person to whom the Act applies suspects on reasonable grounds that a child has been or is being abused or neglected and the suspicion is formed in the course of the person's work (whether paid or voluntary) or of carrying out official duties, then the person must notify the SA Department of Human Services of that suspicion as soon as practicable after he or she forms the suspicion. The maximum penalty for failing to do so is $2500.

The Act applies to the following professionals:

Suspicion on reasonable grounds of the matters which must be reported are (Section 6):

Victoria

Under Section 64 of the Children and Young Persons Act 1989 (VIC), a person referred to in sub-section (1C) of Section 64 who, in the course of practising his or her profession or carrying out the duties of his or her office, position or employment as described in that paragraph, forms the belief on reasonable grounds that a child is in need of protection must notify the Victorian Department of Human Services of that belief and of the reasonable grounds for it as soon as practicable-

(a) after forming the belief; and

after each occasion on which he or she becomes aware of any further reasonable grounds for the belief.

The maximum penalty for failing to do so is $1000.

The professions referred to are:

For the purposes of the Act, a child is in need of protection if any of the following grounds exist (Section 63):

(a) the child has been abandoned by his or her parents and after reasonable inquiries:

the parents cannot be found; and no other suitable person can be found who is willing and able to care for the child; the child's parents are dead or incapacitated and there is no other suitable person willing and able to care for the child; the 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; the 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 child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type; the child's physical development or health has been, or is likely to be, significantly harmed and the child's parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.

Western Australia

In Western Australia, there are no mandatory reporting provisions for child abuse or neglect under the Child Welfare Act 1947 (WA) or the Community Services Act 1972 (WA). However, any person may report their concern to the WA Department of Family and Children's Services. The WA system is based on there being a duty of care owed by those involved in the provision of health, welfare and police services, which provides for a moral duty to report any concerns. Certain professionals may be subject to internal or departmental obligations imposed by their relevant Government Department.

As well, section 31A of the Child Welfare Act 1947 (WA) provides punishment provisions for misconduct or neglect causing a child to be in need of care and protection. It states:

(1) Any person who has, either by wilful misconduct or habitual neglect, or by any wrongful or immoral act or omission caused or suffered any child to become, or to continue to be, a child in need of care and protection, or contributed to any child becoming, or continuing to be, a child in need of care and protection, shall be guilty of an offence.
Penalty: $10 000 or imprisonment for 12 months, or both.

Relevance to Immigration Detention Centres under ACM Management

In each of NSW, Victoria and South Australia, professionals covered by the respective legislative instruments are regularly engaged in their professional capacity within Immigration Detention Centres. This includes medical practitioners, nurses, psychologists, social workers and teachers. To obtain entry into the detention centres, these professionals are required to provide confidentiality undertakings to ACM which effectively prevents them from disclosing to third parties any information regarding detainees or the administration of the centre. This is a clear conflict with the professional's obligation to report suspected incidents of child abuse/mistreatment as outlined in the above legislative instruments. The failure to report such incidents constitutes a criminal offence, for which the confidentiality undertaking provided by the professional offers no defence for the professional concerned.

ALHR is concerned that professionals who comply with their mandatory reporting obligations under the State legislative instruments, may be denied entry into ACM managed facilities, on the basis of a perceived breach of their confidentiality undertakings. By requiring confidentiality undertakings from professionals with mandatory reporting obligations under the relevant legislation, ACM is causing these professionals to be in breach of:

(a) section 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW);
section 11 of the Children's Protection Act 1993 (SA); and
section 64 of the Children and Young Persons Act 1989 (VIC),
as relevant.

Under Clause 7.1 of the General Agreement between the Commonwealth of Australia and Australasian Correctional Services Pty. Ltd, dated 27 February, 1998, the contractor must, when delivering Services under the Service Contract, comply with all Relevant Legislation, Policy and Procedures. ALHR submits that the confidentiality agreements place ACM in breach of its service agreement with the Commonwealth.

ALHR is further concerned that ACM's confidentiality requirements puts it at odds with the spirit and purpose of the International Covenant on Civil and Political Rights, which provides for the right and freedom to seek, receive and impart information and ideas of all kinds (Art 19(2)).
Accordingly, ALHR makes the following recommendations.

RECOMMENDATIONS

4. That the confidentiality undertakings which ACM requires of professionals entering into immigration detention facilities which it manages and operates, be assessed by HREOC to determine whether they infringe the mandatory reporting provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Children's Protection Act 1993 (SA), and the Children and Young Persons Act 1989 (VIC) to the extent that such reporting provisions are necessary to avoid breaches of human rights enshrined in State Law.

5. That HREOC investigate whether seeking undertakings which produce these infringements, amounts to a breach of the General Agreement and Service Contract between the Commonwealth and Australasian Correctional Services Pty. Ltd.

6. That HREOC investigate whether seeking such confidentiality undertakings which produce the above mentioned infringements may expose ACM to criminal prosecution.

7. That the possibility of initiating a private prosecution against ACM for seeking confidentiality undertakings which undermine human rights enshrined in the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Children's Protection Act 1993 (SA), and the Children and Young Persons Act 1989 (VIC) be investigated.

PART THREE - IDEAL PRACTICE. RECOMMENDATIONS FOR CHANGE

INSPECTION OF PRIVATELY RUN CORRECTIONAL FACILITIES - A USEFUL POINT OF COMPARISON

The experience of the private prison system in Australia provides some perspective and depth of knowledge on the issue of making private contractors accountable. For those working in the prison sector, the issue of privatisation has been a matter of ongoing concern, and the issue of accountability has been a common subject for discussion and debate. [10]

In a number of jurisdictions the problem of monitoring private correctional facilities has been dealt with by the creation of independent watchdog type bodies. Notable among these is the Inspector of Custodial Services in WA and in The Office of Correctional Services in Victoria. These bodies have been established to monitor the management of correctional facilities within their respective states and to recommend action where standards fall below what is acceptable. These bodies are largely responsible for developing best practice standards and for providing guidelines for correctional facilities management.

The Inspector of Custodial Services - WA

Western Australia established the office of Inspector of Custodial Services in 2000. The powers and scope are set out in the Prisons Act 1981 (WA) (Prisons Act). The Inspector has broad powers to gain access to vehicles, prisons, persons and documents, including documents in the possession of contractors or subcontractors involved in prison management [11]. Importantly, the Inspector has the power to inspect prisons in Westerm Australia at any time without having to give any notice. [12]

The Prisons Act also provides significant penalties for hindering inspections under the Act or for victimising people who assist the Inspector in the performance of the Inspector's functions under the Act. [13]

Office of the Correctional Services Commissioner - Victoria

As in Western Australia, the Office of the Correctional Services Commissioner was created in Victoria in response to the need for an independent monitor of private prison management. The role of this office is to develop policy and standards and to play an independent monitoring role to ensure the safe custody and welfare of prisoners. The monitoring framework of the Office includes a brief to provide detailed feedback to the providers of correctional services, and to measure performance against best practice standards. [14]

Lack of systemic safeguards in Immigration Detention

TheWestern Australian Inspector of Correctional Services Professor Richard Harding has described the condition of Australia's Immigration Detention Centres is 'almost intolerable'. [15] Professor Harding's comments throw into relief the nature and extent of the problems in Australia's IDCs. In some Australian jurisdictions, a system for reviewing the ways in which private prisons are managed, and for monitoring the treatment and wellbeing of the prisoners within those correctional institutions, is being developed, yet there is no equivalent systemic safeguard or ongoing formalised mechanism for doing the same in relation to people in administrative detention.

ALHR endorses the approach taken by Western Australia in respect of its correctional services, and submits that such a system is necessary for the ongoing management of IDCs, and in particular for ensuring the public accountability of ACM in respect of the IDCs.

HREOC has a specific role to play in relation to monitoring the agreement between the Commonwealth Government and ACM or any other contractor taking on the management of immigration detention facilities. HREOC should maintain a watching brief in relation to Australia's IDCs with a view to intervening in cases with in the detention centres where there may be breaches of human rights.

HREOC Legislative Framework

Currently HREOC has a broad discretion to inquire into acts or practices, examine bills or legislation, and to report on anything which it determines as necessary to fulfil its role of promoting human rights in Australia. [16]

The Migration Act, however, prevents HREOC from contacting illegal non-citizens unless they have been contracted in writing by that person. [17] This restriction extends to contact with the Commonwealth Ombudsman. The effect of this section of the Migration Act is that HREOC is prevented from accessing asylum seekers who could have legitimate human rights claims unless those individuals request HREOC's assistance.

Given that most people do not have a sufficiently developed appreciation of the Australian legal and administrative system to understand that they have a right to contact the HREOC, this provision works in practice as a bar to contact with asylum seekers. The existence of such a provision is not in the best interest of those within detention centres in Australia, it impedes HREOC's capacity to fulfil its proper function and by doing so it offends the United Nations Principles relating to the status of national institutions (Paris Principles). The Paris Principles provide minimum standards for the status and advisory role of national human rights institutions and include the capacity of such national institutions to hear any person or obtain any information necessary for assessing situations falling within its competence.

RECOMMENDATIONS

8. That as soon as practicable, the Federal Government establish an autonomous Office of Inspector of Immigration Detention Services, with the responsibility of reporting directly to Parliament of the state of Immigration Detention Centres in Australia, and in particular, the level of compliance with human rights standards. Such an Inspector should have the right of free and unfettered access to any immigration detention facility at any time, and take whatever equipment is deemed necessary to carry out his/her lawful activities. The Inspector should be able to make unannounced inspections of Immigration Detention Centres, as well as requiring the production of any documents from DIMIA and/or the managers/operators of Immigration Detention Centres.

9. That until the Office of the Inspector of Immigration Detention Services is established the following documents should be reviewed in their entirety by HREOC to assess whether they comply with all international instruments and conventions annexed to the Human Rights and Equal Opportunity Act 1986.

10. That this review role be handed over to the Office of the Inspector of Immigration Detention Services once it has been established

11. That the Migration Act be amended to repeal S193(3) - which excludes access by HREOC to detainees without the written request of the detainee

1. See ExComm Conclusion Number 44, UN Doc. A/AC.96/688, paragraph 128. Note further Note on International Protection, 15 August 1988: UN Doc. A/AC/96/713, paragraph 19 which provides that asylum seekers who arrive without documentation because they are unable to obtain any in their country of origin should not be detained solely for that reason.

2. See M Bossuyt, Guide to the Travaux Preparatoires of the International Convenant on Civil and Political Rights, Martinus Nijhoff, Dordrecht 1987, p. 343. See also the comments of the Human Rights Committee in A v Australia, Communication No. 560/1993; Views of the Human Rights Committee, 30 April 1997: UN Doc. CCPR/C/59/D/560/1993.

3. See in particular, Riyad Rules (1990), Rules 1 & 2.

4. Some of the more recent reports include:

5. Those who've come across the Seas: Detention of Unauthorised Arrivals HREOC (1999);

6. Joint Standing Committee on Foreign Affairs Defence and Trade- Human Rights sub-committee - A report on visits to Immigration Detention Centres - tabled 18 June 2001;

7. The Flood Report - Inquiry into Immigration Detention Procedures in February 2001;

8. Two reports by the Commonwealth Ombudsman in March 2001 - Report of an Own Motion Investigation in the Department of Immigration and Multicultural Affairs Immigration Detention Centres; Report of an Own Motion Investigation into Immigration Detainees held in State Correctional Facilities;

9. Joint Standing Committee on Migration produced Not the Hilton - Immigration Detention Centres: Inspection Report in September 2001

10. Report of an Own Motion Investigation into the Department of Immigration and Multicultural Affairs' Immigration Detention Centres - p 25; Flood Report - Inquiry into Immigration Detention Procedures - February 2001 at p16

11. Flood Report - Inquiry into Immigration Detention Procedures - February 2001 at p 39

12. Paragraph 7.36, Victorian Office of the Auditor-General, Special Report No. 60 - Victoria's prison system: Community Protection and Prisoner welfare.

13. Prof. Richard Harding, Inspector of Custodial Services of Western Australia, Standards and Accountability in the Administration of Prisons and Immigrations Detention Centres: A Description of the Role of the Western Australian Inspector of Custodial Services and a Proposal for Bringing Equity and Decency tot he Operation of Australia's Immigration Detention Centres, A Speech to the International Corrections and Prisons Association Conference.

14. Prof. Richard Harding, Ibid.

15. See for example "Contracting out Community Correction : the judicial perspective" Justice Frank Vincent, Supreme Court Victoria - Paper presented at AIC Conference Privatisation and public policy: A Correctional Case Study, Melbourne 16, 17 June 1997.

16. Prisons Act 1981 (WA) s 109K (g)(ii).

17. Prisons Act 1981 (WA) s 109J(2).

Last Updated 10 October 2002.