Transcript of Hearing - SYDNEYMonday 2 DECEMBER 2002, 9.20 AM
Please note: This is an edited transcript.
Commissioners:
- Dr S. OZDOWSKI, Commissioner
- Dr T. THOMAS, Assistant Commissioner
- Ms P. MOORE, Executive Officer
DR OZDOWSKI: Good morning everybody. I would like to formally open this public hearing which is the last, hopefully, of the series held around Australia. My name is Sev Ozdowski and I'm the Human Rights Commissioner and to my right I've got Professor Trang Thomas, who is Professor of Psychology at the Royal Melbourne Institute of Technology. Today the Commission will be assisted by counsel Michael Wigney and Mr Jonathon Hunyor of the Commission and I would like to ask for the benefit of the audience that the counsel for DIMIA and ACM would introduce themselves.
MR R. BROMWICH: Commissioner, my name is Robert Bromwich, I seek leave to appear for the Department of Immigration, Multicultural and Indigenous Affairs.
DR OZDOWSKI: Thank you.
MR S. RUSHTON, SC: If the Commission pleases, my name is Stephen Rushton, SC, I seek leave to appear for Australasian Correctional Management Pty Limited.
DR OZDOWSKI: Thank you. Before the hearing commences I would like to remind all present of the following: directions have been issued to protect the privacy, security and employment and human rights of all people assisting or otherwise involved in the subject of the Inquiry. The effect of this order is that the identity of asylum seekers is not to be disclosed throughout this hearing, that the identity of any other person who requests anonymity is not to be disclosed and that the identity of any third parties is not to be disclosed and this includes current and former employees of detention centres, these people should not be named because they have not had an opportunity to defend themselves against allegations made.
Obviously this does not prevent the use of names of people who have attended before the Inquiry to give evidence or who make public submissions. As you know I have issued separate directions to the media encompassing the above.
Talking about the program of these hearings, it will take approximately four days and be difficult to predict when particular issues will be discussed and how long they will take. This is a very complex Inquiry and there has been a very substantial volume of records to work through. So I would hope that you will be patient. If there is any particular issue you want to listen to and it is not clear just when it will be on, please feel free to come in or out during the following four days. We hope to have a morning break around 11.00 o'clock and then afternoon break around 3.30 and lunch will be around 12.30.
Talking about the nature of this hearing, this is not an adversarial hearing. The underlining objective of it is to determine the extent to which the Commonwealth has met the principles of the Convention on the Rights of the Child with respect to children in immigration detention. To meet the obligations of such a convention it is incumbent not only on the Commonwealth to do everything itself, the actions of States and Territories also contribute to meeting these principles.
The hearing will seek to meet this objective by the following: first, understanding the basis of the immigration detention process including the theoretical and practical principles by which DIMIA operates; second, establishing the services DIMIA expects ACM to provide and the level of such service provision, this could include obtaining services from other agencies; third, understanding the means by which ACM reports to DIMIA and DIMIA assesses and evaluates ACM.
This is quite an important hearing because, due to a number of reasons, it is the first opportunity we have had to hear in detail from DIMIA on issues relating to principles of detention management and day to day operation of places of detention. I must acknowledge we have received quite substantial submissions from DIMIA and considerable additional materials. There was also a directions hearing in September concerning the status of material provided and my decision on this was issued on the 9th of October and I do not intend to re-open that matter. But it's important to remember that it's the first time we'll be able to talk to DIMIA about the issues they identified in their submissions and to focus on its detail.
We also will hear evidence from ACM, and ACM is the contracted service provider and responsible to DIMIA. ACM is a relatively unknown entity to the public. We cannot obtain a clear picture of immigration detention without understanding its role and responsibilities. I understand a tender process has been ongoing for a considerable period of time in respect of provision of immigration detention centre services, this fact has heavily influenced DIMIA responses, it has also affected the Inquiry's timetable substantially. The Human Rights Commission has made every effort to accommodate DIMIA in this matter. However, I have a responsibility to report on this Inquiry and it is not possible to continue postponing hearings because DIMIA is unable to determine when the tender process, which is totally in its control, will be finalised.
Another issue of importance has been that concern has been expressed about providing information on the current service provider, ACM. I will not go into this except to state that I remind witnesses that they are asked to make an affirmation or take an oath, both of which require telling the whole truth.
The hearing will also refer to individual case studies. Permission has been obtained by the Commission to reveal some of the family details for the purposes of the Inquiry. Previously when individuals have been mentioned, it has been done in in camera hearings. In the case studies to be discussed during this hearing in order to illustrate service provision, the individual families will be identified only by case numbers and within that as adult 1, adult 2 and so on. Even though media and others may believe they can identify who these people are, they must not name the family or families.
The Inquiry so far has proven to be the most comprehensive and thorough Inquiry I've ever undertaken. The Inquiry's methodology included public submissions, hearings in each capital city other than Canberra, Darwin and Hobart, visits to immigration detention centres, focus groups, review of documentation provided by DIMIA and ACM pursuant to several notices to produce issued under the Human Rights and Equal Opportunity Commission Act. Here I would like to acknowledge both DIMIA and ACM staff for the work undertaken in identifying the relevant documents and providing them to the Human Rights Commission.
Rather than talk more in detail about methodology, I have provided a separate sheet which outlines the numbers of submissions, hearings and so on and it is available for you if you would like to have it. However, I would like to emphasise that the process of the Inquiry so far has been public as much as possible and I would like to acknowledge also the contributions made by professional and community groups as without those contributions we wouldn't have been able to reach as far as we have.
Today's process for the hearing will start with opening statements, then it is my intention that DIMIA will be asked questions first and ACM will be offered an opportunity to comment and then counsel assisting the Commission may re-examine. I believe that where questions are taken on notice answers should be provided by the end of the hearings, that is on Thursday, 5th December. I simply do not wish to prolong the Inquiry process by waiting for additional information.
Now, I will move through the program in the order listed. The program does not preclude me or my Assistant Commissioner following the matters which may be of particular interest to us. Some of the issues we may choose to discuss on the final day and here I, for example, refer to issues such as lip sewing, quality of food services and so forth.
So, perhaps we now could start with opening statements and I would like to invite Ms Philippa Godwin, Deputy Secretary of the Department of Immigration, Multicultural and Indigenous Affairs to make an opening statement on behalf of the Department.
MS P. GODWIN: Thank you, Commissioner, and thank you for this opportunity to make an opening statement. The opening statement supplements the Department's comprehensive written submission to the Inquiry provided in May this year.
It is now twelve months since the Commission announced this Inquiry and six months since the Department lodged its submission. It is important to reflect that in a program as dynamic as the detention program things have not been standing still. During that time there have been significant changes in the detention environment and arrangements but it also important to reiterate that the law in Australia requires the detention of unlawful non-citizens. The government has made it clear that it does not propose to undo the mandatory detention framework. It has equally made it clear that within this framework the objective is to ensure that detention is humane.
I will draw attention to some of the changes over the past few years and place those in the context of the Department's efforts to continuously improve the way detention is managed. What's changed? The most significant change is that the detention population has reduced dramatically. When the Inquiry was first announced in late November 2001 there were approximately 3400 people in detention of whom 748 were children. These figures were already a reduction from the historically high number of 3721 people in detention in August 2001. Now, as of the 15th of November, which is the date that we'll be working from in terms of comprehensive statistics during the course of the hearings, there are 1282 people in detention of whom less than 600 are unauthorised boat arrivals. That is, there are 62 per cent less people in detention now than there were 12 months ago.
Of the total boat arrival population in detention only 4, and none of them is a child, are awaiting a primary decision and all of those 4 awaiting a primary decision are waiting for it on the basis of significant public interest concerns. There has been an even more dramatic reduction in the number of children in detention. There are now just 139 children under the age of 18 in detention, that is less than 20 per cent of the total of 12 months ago. Of these 139 children, 7 are residing at the Woomera Residential Housing Project, 17 are unaccompanied minors of whom 12 are in foster care or alternative detention arrangements in the community, only 5 unaccompanied minors are in a detention centre.
There has also been a very significant change in the education arrangements for children in detention. 100 of the children in detention are school aged, 49, that is approximately half, now attend either government or non-government schools in the community. This does not include the 5 primary school aged children at the Woomera Immigration Reception and Processing Centre, who, as part of their education program recently began attending a non-government school at Roxby Downs on a two day a week basis.
The main impediments to children attending schools in the community are external barriers, such as the views of State education authorities or local communities. Children who are not attending external schools are provided with a range of programs within the centres. For the 39 pre-school children, varying in age from a few months to five years, a range of programs both outside and within the detention facilities is provided.
The improvements in education arrangements for children in detention over the past six months illustrate how seriously the Department takes its obligations in relation to children. In this context it is important to note that we are continuing to negotiate to achieve even higher levels of access to schools in the community.
Since our submission was lodged the first purpose planned immigration detention facility has been commissioned. The Baxter Immigration Detention Facility near Port Augusta, South Australia, became operational on the 6th of September this year. There are currently 212 detainees including 35 children residing there. In planning Baxter the Department drew lessons from its experience in managing detention over the last few years. Baxter provides higher levels of amenity and security than existing centres, there are nine compounds which allow more flexibility in managing detainees in a community oriented environment. It better accommodates families by having family designated compounds, rooms with ensuites and some interconnected rooms. Two of the nine compounds are designed to accommodate people with mobility disabilities.
To ensure that appropriate education arrangements were put in place from the beginning in Baxter the detention services provider engaged the East Gippsland Institute of Technology to provide a curriculum for a full education program from pre-school to secondary school in line with South Australian education requirements. While negotiations continue with the South Australian government and the Port Augusta community to get access to external schools, the children are able to attend school in the centre five days a week.
As a result of the opening of Baxter and the reducing numbers in detention the Department was able to mothball Curtin IRPC and scale down the operation of Woomera. In our submission in May this year we referred to the establishment of the Woomera Residential Housing Project in August 2001. That project has now been evaluated, the evaluation found that, while costly, it has been successful. Participants have clearly benefited from the living conditions provided and we have been able to maintain security while residents live in the town environment. Staff and regular visitors to the project have commented on the positive effects for participants and their role as mothers in the family was reinforced. They were able to take control of managing their homes, their time, their priorities and their children's activities in a more normal domestic environment than was possible in the centre.
In the light of this success the Minister announced a continuation of the existing project and the broadening of eligibility criteria for women and children to participate in these alternative detention arrangements. This means that women and children may now be eligible to participate in the project while the Refugee Review Tribunal or the courts are considering their cases. The Minister also announced that he proposed to explore the possibility of establishing similar alternative detention arrangements in Port Augusta or the surrounding region.
I'd like to set the context in which we have been operating. The provision of immigration detention services is a complex and dynamic area of public administration. It is not possible to predict the number of unauthorised arrivals that may come to Australia. After all people simply do not book in. Nor is it possible to predict the means of their arrival, the characteristics of the population that arrives nor the validity of any claims they may make to remain in Australia.
For example, in the first nine months of 1999 the number of unauthorised arrivals fluctuated around 200 per month. Numbers in detention remained relatively low at around 500 to 700 up until May 1999 but starting in the later part of 1999 there was a very significant, and largely unexpected, increase in the number of unauthorised arrivals to Australia. In November 1999 alone over 1200 people arrived. This was almost a three-fold increase in unauthorised boat arrivals from the previous month and was almost six times greater than for any other month of that year. It was the highest number in any single month up to that time.
Overall the number of unauthorised boat arrivals in 99/2000 increased four and a half times from the previous year. This required a rapid response from the Department which had to accommodate and care for these people in accordance with the Migration Act and Australia's international obligations. The high number of arrivals continued until towards the end of 2001 peaking at 1645 in August 2001. During this two year period the number of children in detention also increased significantly. From 58 in July 1999 to 842 in September 2001.
In August 2001 when there were 3721 people in immigration detention facilities around 1200 people were awaiting a primary decision on their protection visa application. Less than 12 months later by the 1st of July 2002 there were 1340 people in detention of whom only 26 were awaiting a primary decision, the rest were pursuing either merits or judicial review or were awaiting removal.
In addition to the dramatic fluctuations in the number of people in detention the nationality and family mix of arrivals also changed. For example, the Department began to see an increasing number of children arriving unlawfully. From 58 children in detention in July '99, as I've already mentioned, the numbers increased to 628 in July 2001, more than a tenfold increase.
At the same time, however, turnover in the centres was also high as applications were processed and protection visas granted. In 1999/2000 a total of 790 temporary protection visas were granted. In 2000/2001 the total was 4382. Inevitably over time this resulted in an increasing proportion of detainees who had received a negative decision on their application. These figures alone give a sense of the volatile and challenging context within which detention services are provided. In response to these changes the nature of detention services has also changed.
In 1997 the Department entered into a whole of service contract with Australasian Correctional Management for the provision of detention services. This replaced previous fragmented service delivery arrangements and for the first time detention service requirements were formalised into a set of principles and standards. In the Human Rights Commissioner's 1998/1999 review of immigration detention the Commissioner stated:
The program improvements noted during inspections in 1998 are attributable in large part to the transfer of detention service provision to ACM and the opportunity that transfer created for DIMA to design and impose immigration detention standards.
At that time there were four dedicated detention facilities. Villawood, Maribyrnong and Perth immigration detention centres were used mainly for compliance cases and Port Hedland was used for unauthorised boat arrivals. As numbers increased dramatically in late '99 the government moved quickly to find appropriate accommodation. The choices were few. The Curtin facility, which had been decommissioned in January 1996 was an obvious choice. The most efficient option was to recommission Curtin and expand its capacity from around 400 places to 1200, that was done in September 1999. However, this alone was not enough.
The Department needed another location on Commonwealth land with power, water, sewerage and physical infrastructure such as accommodation, kitchens, laundries and ablution blocks to accommodate the burgeoning numbers. At the time, given the requirements, Woomera was the best solution. The Department had to move ahead of the rate at which people were arriving. We did not have the luxury of time to seek purpose designed and built solutions. Indeed, centres were being constructed around detainees.
The Department's initial focus in these circumstances was to ensure that all unauthorised arrivals were provided with the necessities. Good quality food in adequate supply, comprehensive medical services, safe clean accommodation, adequate ablution facilities, clothing and footwear appropriate to the circumstances. The demand for a rapid response required the Department to focus on the practical aspects of managing detention.
As these basics were established we turned to improving facilities, amenities and services such as developing education buildings, sports fields and other recreational facilities within the centres and arranging external excursions. There was a particular focus on the development of educational and recreational programs. Operations in the centres were supported by a management infrastructure that had two main components. The first of these was onsite Departmental staff including a senior officer titled at that time the DIMA Business Manager.
These staff were responsible for two main areas. First, oversighting ACM service delivery and contract performance through day to day involvement in the centre as well as ongoing monitoring and reporting. Second, co-ordinating and supporting those aspects of service delivery that remained the responsibility of the Department, that is any issue related to the person's immigration status, application processing and so forth.
The other main component existed in Central Office where the Detention Operation Section subsequently supplemented first by a separate Detention Policy Branch and then by the Detention Management Section was responsible for supporting staff and operations on the ground and for overall policy procedures and contract management.
The contract with ACM provided a sound framework for the delivery of services. Management of the contract evolved as the environment changed. For example, when we were operating only four centres, communication and service monitoring was through individual contact with Centre Managers, incident reports made by the services provider and quarterly reports submitted by DIMA Managers. Over time as the number of detainees in centres and the complexity of the program increased these management strategies were augmented by increased reporting and analysis and continuing development of policy and procedures.
Written reporting mechanisms increasingly became important particularly in monitoring performance. This trend is evident in the monitoring documentation supplied to HREOC by the Department. The lessons learned from this contract have been consolidated in the documentation and planning for the new detention services contract.
In order to deliver quality services in detention centres we also need the co-operation of State and Territory agencies. This started in practical ways such as forming relationships with local and central offices of State and Territory agencies responsible for policing child welfare and health. This meant, for example, that if a potential criminal offence was committed in detention police would be contacted. If there were concerns about the wellbeing of a child in a centre the appropriate welfare agency would be approached for an assessment, recommendation and advice.
Subsequently we sought to formalise these relationships into memoranda of understanding and also to establish agreements in other areas such as education. These negotiations have in some cases been protracted and challenging. Nonetheless in most areas discussions have proceeded co-operatively.
We have also had an eye to the future. We have learnt valuable lessons from experience and always have an eye to the future. Continuous improvement has been the pattern and remains our practice. As I mentioned we were not in the position of being able to develop and implement a perfect system from the beginning, rather we had to manage the evolving situation whilst simultaneously drawing from our experience to improve service delivery and to build a better management framework. As infrastructure was upgraded and management strategies consolidated the focus increasingly moved to tailoring responses to the individual circumstances of detainees.
At the same time there was a greater focus on the need to formalise the increasing body of experience in policy and procedural documents such as Migration Series Instructions and as mentioned MOUs. This was matched by the significant changes in departmental structure and resourcing to meet the changing needs in the management of detention which was identified in chapter five of our submission.
Additional departmental resources were directed to improving the existing and development new detention infrastructure. Increasing the capacity for departmental monitoring of the detention services contract, clarifying the legislative framework, developing policy and procedural instructions and responding to increasingly high levels of public scrutiny. Developments in two areas, education and detention standards illustrate our focus on continuous improvement.
As I mentioned, at present almost half of school age children in immigration detention attend schools in the community. The Department acknowledges that access to schooling is likely to be appropriate and beneficial for most children. So, establishing these arrangements has been a priority over the last nine months. Earlier on when there were large numbers and a high turnover of children in detention it was not practical to place children in local schools. Schools would have been reluctant to take large numbers of children for short periods.
For example, around September 2001 there were over 450 children at the Woomera centre. The local school had a student population of around 70 children. The logistics of integrating the detainee children, many of whom moved out within the short time, would have been impossible. In these circumstances education was conducted mainly within the detention facilities and focused on English language, literacy, numeracy and socialisation skills. This enabled children to integrate into local schools effectively if they were granted a visa.
We have received a letter from a school in South Australia attended by former detainee children saying how well prepared the children were in terms of their English language development. Not that attendance in mainstream schools for detainee children is an entirely new development. Over the years at various times children from Maribyrnong, Villawood, Curtin, Port Hedland and Christmas Island have attended local schools outside the detention facilities. The Department has been keen to formalise such access and has been negotiating with a number of State governments about the terms and conditions of access by detainee children to government schools. These negotiations while not get finalised in all cases have progressed positively.
At present the Department has formal arrangements in place for access to State schools in New South Wales, is nearing finalisation of an MOU with the Victorian government on the basis of which children from Maribyrnong started attending external government school in October this year, and we continue to negotiate with South Australia. Attending a school in the community provides children with much more than a formal education. It allows them to experience a normal day in the life of any school aged child, offers them opportunities to socialise and make friends outside the detention environment and importantly has a very positive effect on the emotional and social wellbeing of the whole family.
In these circumstances parents generally seem to show a greater interest in their child's progress at school and they are provided with opportunities to attend parent/teacher interviews in the same way as other parents do. For children who cannot be placed in local schools education continues to be provided within the centres. Programs are conducted by qualified teachers and based on the normal school curriculum while also accommodating the individual needs of the children. These programs take into account the children's variable lengths of stay, address their abilities, any learning difficulties they may have such as literacy and numeracy problems and their proficiency in English.
A further tangible example of the improvements made in the management of detention is the development of the new Immigration Detention Standards and the Statement of Requirements which earlier this year formed the core of the next services contract. This process was the culmination of valuable lessons learned from managing detention. We used this opportunity to develop a more robust performance management frameworks and introduced improved service delivery standards into the next contract.
As part of that process the IDS and the associated performance measures were substantially revised. The Department took into account key issues which had emerged over the life of the current detention services contract. The Department was also guided by the recommendations of the Flood Inquiry, this Commission, parliamentary committees and various Commonwealth Ombudsman inquiries. The new IDS were then developed in consultation with your organisation, Commissioner, the Commonwealth Ombudsman, and the Immigration Detention Advisory Group and were informed by Australia's international obligations.
While the IDS continue to be outcome focused and the broad parameters remain the same the revised IDS are more precise and more detailed than the current version. They include, for example, extensive coverage of requirements in relation to children including their educational and developmental needs. The greater degree of specificity in the standards and the clearer link between the IDS and performance measures will enable more targeted monitoring of service delivery.
In addition to the IDS the Statement of Requirements contains contextual material that sets out in considerable detail the Departments expectation of the services provider in delivering services under the contract. This material draws on the best practice and procedures in managing immigration detention which have developed over the recent years. It covers a broad range of issues that arise in detention facilities and constitutes the most comprehensive statement of policies and procedures to date. The Statement of Requirements and the IDS were provided to the Commission in July 2002, they reflect the Department's practice of continuous improvement in the management of detention.
I'd like to turn now to particular issues that have arisen during the course of the Inquiry, in particular during public hearings. A number of submissions have raised concerns about the length of time people spend in detention. While talking of processing, people often include not only the primary process for which the Department is responsible but also merits and judicial review. These processes are outside the mandate and therefore the control of the Department. Nevertheless the speed of primary processing is clearly the key issue. The faster the detainees can have their applications processed the sooner they can be given a decision about their situation. Either they will be granted a visa and released or they will be refused. Either way their situation will be clear.
To this end a very significant focus of the Department is to have applications for protection visas processed as quickly as possible, consistent with the need to maintain the integrity of the process and of the individual decisions. In 2000 in response to the sustained trend in unauthorised boat arrivals the Department established a boats taskforce to address the need for streamlined processing and increased numbers of protection visa decision makers. Significant numbers of staff were taken off line and trained to make protection visa decisions. The Department introduced front end loading of health and character checks to reduce processing times.
By mid 2001 the time taken for the Department to process protection visa applications for 80 per cent of applicants had decreased from an average of seven and a half months to twelve and a half weeks. This improvement in processing visas was achieved in the twelve month period when around 4400 temporary protection visas were granted. By the end of 2001 the significant reduction in processing times meant there was greater throughput in detention facilities. Many detainees were in facilities for a short period and then released into the community on a visa.
Today we are left essentially with three groups of people in detention: a very small number of complex cases who have not yet had a primary decision; those who have been refused a visa by DIMIA and are pursuing merits review or judicial appeals options; and those whose applications have been finalised and are awaiting removal. Noting that now about two thirds of those in detention are available for removal.
Most of the people now in detention are increasingly unlikely to get the outcome they want, that is a visa. This presents further challenges in managing their detention. We recognise that detainees are likely to feel frustrated and angry when faced with the negative outcome on their applications for review. For many of these people their length of time in detention may be affected by the timetable of the courts. This is outside the control of the Department.
Others have exhausted all avenues of appeal and are not entitled to be granted a visa. We recognise this is a very difficult situation for detainees. They experience mixed emotions concerning their decision to come to Australia unlawfully and for families concerning the impact of that decision on their children. Many have invested a lot, taken considerable risks to get to Australia. They have not obtained the outcome they were led to expect by unscrupulous people smugglers. They need to make the transition to accepting that there is no other option but to leave Australia.
The decision to co-operate in leaving Australia will understandably be a difficult and, for some, a bitter one in light of the hardships they have faced in order to come to Australia. As much as possible the Department's focus is on providing effective support and helping them to reach that point and focus on leaving. As the numbers of people in this situation increase and their stay extends, while efforts are made to achieve their removal, their ongoing management presents new and significant challenges for the Department and the services provider.
While the Department has a significant focus on reducing the amount of time people spend in detention, length of time in detention does not of itself constitute a reason for release. In domestic and international law it is legitimate to detain unlawful non-citizens if processes for determining their claims are continuing or efforts are being made to remove them where they have no right to remain. After a primary decision has been made the time spent in detention is not just a matter for the government or the Department. For many detainees including parents the choice to bring their detention and that of their children to an end is in their hands.
The further detainees are through the review and appeal process the more their detention and that of their children is extended by their own decisions. Agreeing to return to their home country and co-operating with removal arrangements will bring their detention to an end. Such a choice allows them to re-establish a life for themselves and their children in their country of origin, in some cases with the help from the Australian government in the form of a reintegration package.
I'd like to make just a few comments before I finish about the current Inquiry. A number of the submissions to the Inquiry focus on incidents that occurred long ago. Many submissions raise issues which have now been addressed. Often these issues have been the subject of other inquiries including those undertaken by the Commonwealth Ombudsman and Mr Philip Flood AO. The Department has considered the recommendations of these other inquiries and in responding has improved detention service delivery. This surely must be the point of such inquiries.
Rather than dwelling on the history I believe that focussing on improvements for present and future will provide a better result for the ongoing management of detention and ultimately for detainees. Reflection, of course, is useful to the extent that we can learn lessons from a helpful and constructive analysis. But to the extent that dwelling on historical events ignores the many improvements in place in the detention environment and the Department's demonstrated efforts to continually review and improve arrangements for detention such retrospective reflection, it is not productive and in fact is flawed, partial and misleading.
The Department is also concerned that issues have been raised in written submissions and in public hearings that are factually incorrect or based on untested allegations. A constructive debate on the detention program cannot proceed on this basis. It is important that the Commission tests carefully the claims and allegations made in submissions to the Inquiry, particularly those made by people who have never visited a detention facility or who visited or worked in facilities some time ago when circumstances were quite different.
Allegations are often repeated by individuals or organisations but without verification are no more than hearsay. The fact that an allegation is repeated a number of times does not add to its veracity.
Consistent with our general view that it is desirable to proceed on the basis of fact rather than allegation I would like to briefly refer to what we see as a widely mis-held conception, that immigration detention centres are not open to scrutiny. Federal parliamentarians, parliamentary committees and the Immigration Detention Advisory Group, all these bodies play an active role in the oversight of immigration detention arrangements. In addition international bodies such as the UNHCR and the UN working group on arbitrary detention have access. The media has also had access to a number of centres on a number of occasions.
Importantly, both your own Commission and the Commonwealth Ombudsman have statutory roles in relation to the detention program. In fact immigration detention is one of the most closely scrutinised government programs. The Department invests considerable time, effort and resources to assist the Commission in that role. Our co-operation with this Inquiry is no different.
Our purpose here is to continue to assist the Inquiry. In that spirit I look forward to recommendations that will result in improving the services offered to children in detention within the current legislative framework. Thank you.
MR BROMWICH: Commissioner, before we commence to the next phase, before the opening statement was made you made a reference to questions on notice being answered by Thursday. The position of the Department is that whilst everything will be done within the Department's capacity to answer such questions, to some extent it depends on how much notice we're given of a question and how complex they are and how much is involved, remembering that a number of the key people who are in a position to assemble the information are here not back in Canberra where their primary source of information is. All I wanted to say about that is that whilst every endeavour will be made to meet that Thursday deadline there may be some questions where we just simply can't do it and I wanted to indicate that now rather than later.
DR OZDOWSKI: Yes, thank you very much, counsel. Let's wait for individual issues as they arise. I still would like to have the responses as soon as possible because in the past some of the responses have taken a considerable period of time and I am intending on finishing this Inquiry as soon as possible, so let's deal with it as a case by case basis.
MR BROMWICH: Yes, Commissioner.
DR OZDOWSKI: Thank you. Now, I would like to ask Mr McIntosh whether he would like to make a statement on behalf of ACM.
MR RUSHTON, SC: Can I speak on his behalf, Commissioner?
DR OZDOWSKI: Yes, please do so.
MR RUSHTON, SC: Members of the Commission, Australasian Correctional Management respectfully decline the Commission's kind invitation to make an opening statement. It does so for two reasons: first, much of what can be said has been said by the Department in its opening statement; second, ACM takes the view that it is not appropriate for it to make an opening statement as such a statement may imply that it takes a position on the issues which are the subject of investigation. I must emphasise that it takes no position. ACM is a service provider which provides services to a high standard pursuant to a complex contract. Although those services are provided within a particular legislative and policy context, that context is set by others.
Now, that having been said, Australasian Correctional Management has provided and will continue to provide its fullest co-operation and assistance to the Commission.
DR OZDOWSKI: Thank you. Could I ask you, Mr Bromwich, is there anything else you would like to ask to do with any statement by Ms Philippa Godwin?
MR RUSHTON, SC: There's nothing to be added at this stage, however we're not entirely sure where we go next, we're in your hands, Commissioner.
DR OZDOWSKI: Okay, thank you very much. So, in this case I would like to perhaps ask that an oath or affirmation be administered now.
PHILIPPA GODWIN, affirmed [10.08am]
DEPUTY SECRETARY DIMIAROBERT ILLINGWORTH, affirmed [10.08am]
ONSHORE PROTECTION BRANCH, DIMIADOUGLAS WALKER, affirmed [10.08am]
VISA FRAMEWORK BRANCH, DIMIAROSEMARY GREAVES, affirmed [10.08am]
DETENTION POLICY BRANCH, DIMIADR OZDOWSKI: Thank you very much. Now, I would like to hand over to the counsel assisting, Mr Wigney and Mr Hunyor.
MR WIGNEY: Thank you, Commissioner. Ms Godwin, unless the Commissioner or you or your representative have any objections to this I propose to direct my questions principally to you as the senior officer and you, no doubt, will be in a position to refer any other questions more appropriately answered by your colleagues if that's the situation.
MS GODWIN: Sure, that's fine.
MR WIGNEY: Now, I'm afraid that I'm going to start on a fairly mundane note and ask a few questions about procedural matters that may make the next day or so of evidence slightly more understandable. Can I firstly - is it the situation that the Department is fully aware of what has transpired at the public hearings of this Inquiry over the past months?
MS GODWIN: Well, we've certainly been following the public hearings. I think there's probably been Departmental officers at most, if not all, hearings.
MR WIGNEY: Yes. Departmental officers have been attending at least the public hearings of the Commission, is that correct?
MS GODWIN: That's my understanding, yes.
MR WIGNEY: And indeed you're aware, are you not, that most of the public submissions, if not all of the public submissions that have been received by the Commission have been posted on the website of the Commission?
MS GODWIN: Yes.
MR WIGNEY: That's being monitored by the Department and Department officers?
MS GODWIN: Well, to the extent that's possible. I mean obviously the volume is very significant.
MR WIGNEY: And indeed on various occasions the Minister has seen fit to respond on his own website to evidence and submissions received, at least public evidence and submissions received at the Inquiry, is that correct?
MS GODWIN: Well, I believe so but clearly it's a matter for the Minister.
MR WIGNEY: I may, on various occasions, refer you to some public evidence or submissions that have been received and I will take you to the documents if need be. You are also aware, are you not, that some confidential evidence, in camera evidence and submissions have been received by the Commission?
MS GODWIN: Sure.
MR WIGNEY: It may be that I will take you to the substance of some of that material or submissions of course without revealing the identity of the person or persons who gave that evidence.
MS GODWIN: Mm hm.
MR WIGNEY: Can I ask you briefly some questions in relation to the production of documents to this Inquiry. Obviously at various stages during my questioning I will be asking you questions about or by reference to documents which the Department has provided to the Commission. You're aware, are you not, that in about July of this year the Department was served with a number of notices under the Commission's Act?
MS GODWIN: Yes.
MR WIGNEY: And they required the Department to produce a broad range of documents relevant to the Inquiry?
MS GODWIN: Yes.
MR WIGNEY: You, as one of the senior officers in the relevant area, were involved at least at a high level in the compliance with those notices, is that correct? You're aware of the terms of the notices and the documents that were required to be produced?
MS GODWIN: In broad terms. I mean I'd have to refer to them individually if you wanted me to say anything more than that.
MR WIGNEY: You agree that they were fairly broad and required a broad range of documents to be produced?
MS GODWIN: Extensive range of documents, yes.
MR WIGNEY: And do you say that the Department took all reasonable steps to locate and produce all documents within the terms of the notices, that is documents that it had in its custody and control?
MS GODWIN: That's my understanding and also you may well be aware that as we've subsequently identified anything else that we think might have been relevant or should have fallen within the ambit that we've located subsequently I think there have been a couple of instances where we've actually provided additional documents.
MR WIGNEY: Quite so. Indeed you or Department officers have conducted extensive searches of its files and archives to comply with these notices, is that correct?
MS GODWIN: To the extent possible, yes.
MR WIGNEY: And in the course of answering those notices there's been liaison between the Department and ACM in relation to documents?
MS GODWIN: There has.
MR WIGNEY: You're aware that ACM received notices in similar form to those received by the Department?
MS GODWIN: Yes.
MR WIGNEY: And to avoid duplication it was essentially agreed that ACM would produce the documents it had in its custody and control to the Department who would then collate them and then produce one set of documents, is that correct?
MS GODWIN: That's the process as I - yes - that we followed, yes.
MR WIGNEY: And no doubt you or Departmental officers sought assurances from ACM that it had conducted a thorough search for relevant documents?
MS GODWIN: I believe so. Can I just say, Mr Wigney, I'm agreeing with these propositions because it broadly covers the range of issues that we went through but, you know, this has all taken place over some period of time so I'd need to refresh my memory about individual steps.
MR WIGNEY: Yes. Well, when we get to - if needs be - when we get to particular issues relating to documents then I'll take you specifically to the notice if that's necessary.
MS GODWIN: Sure, yes.
MR WIGNEY: Now, indeed there was fairly extensive correspondence between the Department and the Commission in relation to compliance with these notices?
MS GODWIN: Yes.
MR WIGNEY: And you were involved in that correspondence and indeed involved in some meetings?
MS GODWIN: I think they were mostly conducted by phone so when you say meetings I would need to check whether there were actually any meetings, but there's certainly been a lot of talking back and forth if that's your point.
MR WIGNEY: Yes. Well, I suppose the point is, is it the situation that the Department ultimately was satisfied that all the documents in its custody and control and also in the custody and control of ACM within the terms of the notices were produced to the Commission?
MS GODWIN: Well, to the extent that we could be. I make the caveat that I made, and I think we made when we supplied things, that if we located material after the event that we thought was relevant we would seek to produce that to the Commission. So, you know, there's been that sort of process of going through documents on an ongoing basis.
MR WIGNEY: I understand. The notices had a number of paragraphs and largely dealt with particular topics relevant to the Inquiry, you'd agree to that?
MS GODWIN: I'm sorry?
MR WIGNEY: The notices had a large number of paragraphs dealing with rather complex - - -
MS GODWIN: Yes, different parts and so forth, yes.
MR WIGNEY: In cases where the notices required production of documents on a particular topic and either no documents or very few documents have been produced, the Commission can be satisfied, can it, that neither the Department or ACM have documents on that topic?
MS GODWIN: Yes, that's my understanding. Unless we subsequently located something that we believed was relevant but we've certainly made as thorough a search as we possibly can up to this point.
MR WIGNEY: What I propose to do in a moment is to ask you some fairly general and broad questions really as an overview of the detention regime. Can I ask you this firstly, in your opening address to the Commission you indicated that the focus ought be on the present and the future, not the past, is that right, amongst other things?
MS GODWIN: Well, amongst other things. But I think I was making the point that because this is a program which has sort of developed and evolved as rapidly and dramatically as it has over the last few years that, to the extent that we can learn lessons which then go to the future, that's obviously what we're focused on. That doesn't mean, as I said, we're not interested in a proper examination of what happened in the past but to the extent that it can provide lessons for the future I guess that's where we're focussed.
MR WIGNEY: You accept, do you not, that at least part of the function of this Commission is to report on breaches of human rights?
MS GODWIN: Sure.
MR WIGNEY: And that, of course, may include past breaches, particularly if they may be continuing, is that correct?
MS GODWIN: Well, I understand the function of the Commission in those terms, yes.
MR WIGNEY: Now, you've referred to the learning of lessons from the past, would you accept this as a general proposition, that for things to improve in the future one often has to acknowledge and recognise mistakes that have been made in the past?
MS GODWIN: Well, as a general proposition, but I mean I guess what I was pointing to was things that were of necessity done that now we can see how it worked and whether it worked well, whether there's a better way to do something, that should be fed into the way in which things are done in the future.
MR WIGNEY: Well, I suppose the very general proposition I want to put to you is this that as I read the Department's submissions and as I listened to your opening address it seems to be that whilst the Department has pointed out the pressures that were on it at various times due to the influx of asylum seekers at various stages that the Department does not acknowledge or accept that it has got it wrong on occasions in the past. Is that an accurate portrayal of the Department's attitude?
MS GODWIN: I think it would be more accurate to portray our attitude as we had to focus on the things that needed to be done at the time but through that process clearly we've learned ways of doing things that would be more constructive in the future. So, it has been a process of continuous learning and improvement, as I said in my opening statement.
MR WIGNEY: Do you acknowledge that in various occasions and various respects in the past the Department got it wrong?
MS GODWIN: Well, I don't see that there's a point in making a sort of general point like that. I'm sure there are individual incidents where when we look back we can think it may have been better to do that a different way but without sort of looking at those individual circumstances clearly, as I have said a number of times, we recognise that we were working in a very dynamic environment which required us to move quickly and for example with facilities which were not purpose designed for the circumstances. But, through that process, we've been able to examine what was done, how it was done, whether there are better ways of doing it, and that's what we're trying to incorporate into our practice and have been over the last couple of years.
MR WIGNEY: Well, perhaps you're right, it may be more fruitful to come to specific examples in due course. Just one other general matter, in terms of the dynamic nature of things and you can perhaps regard this as a question on notice, we observed from at least media outlet this morning that there are foreshadowed some significant proposed changes to detention of families and unaccompanied children. Is that your understanding? Is there to be some proposed changes announced shortly?
MS GODWIN: Well, I'm aware of the article but I haven't read it. As far as I'm aware it remains media speculation.
MR WIGNEY: You're not in any position, even if you take the question on notice, to shed any light on any proposed changes to those regimes?
MS GODWIN: No.
MR WIGNEY: Well, the media article includes this paragraph:
Under the proposed changes women and children will live in supervised accommodation outside detention centres while fathers will be held in detention to deter them from absconding. Children will be free to attend local schools.
Is there a proposal to extend the project that has taken place at Woomera, the housing project, to other states and other centres?
MS GODWIN: Well, I already said in my opening statement that the Minister has announced that we're looking to establishing something similar in relation to the Baxter facility.
MR WIGNEY: The article continues:
Mr Ruddock is also expected to outline new procedures for handling unaccompanied children that does not involve them being held in detention.
Are you able to shed any light on any proposals in that respect?
MS GODWIN: I'm unable to comment because, as I say, it's - as I understand it - simply media speculation at this point.
MR WIGNEY: So, as far as you're aware, there's no proposed speech by Mr Ruddock to parliament this week about those matters? You don't know anything about it?
MS GODWIN: This is a parliamentary sitting week. The Minister will no doubt be speaking on a range of matters during the course of the week, it's a busy parliamentary week. In terms of that article I'm not able to comment any further on anything that's made - any comments that are made in that article.
MR WIGNEY: Well, you're one of the most senior officers - - -
DR OZDOWSKI: Mr Wigney, I think public servants cannot respond to that question. Please move on.
MR WIGNEY: Now, before turning to some more specific issues that the Commission has indicated it wishes to explore during these public hearings, I want to ask you some fairly general questions, really by way of overview concerning the Department's attitude and approach to the detention of children. You may take it, of course, that I have, and the Commission has read the Department's detailed submissions and taken them on board. But what I want to do is to ensure that we fully comprehend the Department's position and will seek clarification as necessary.
Now, obviously the starting point of course is the fact that, as we all know, the Migration Act provides for the detention of all unlawful non-citizens and that of course includes children.
MS GODWIN: Correct.
MR WIGNEY: That includes children whether accompanied or unaccompanied by a parent or other adult, is that so?
MS GODWIN: Well, it's all unlawful non-citizens in Australia are required to be detained.
MR WIGNEY: Subject of course to the grant of a bridging visa, which is an issue that I'll return to in due course, all children who are unlawful non-citizens will or must be taken into immigration detention under the present regime?
MS GODWIN: Yes.
MR WIGNEY: Can I just, as it were, make the Commission's attitude in relation to that clear and I'm sure you're aware of this, that the Commission has previously expressed the view that mandatory detention of most unlawful non-citizens, in particular when that detention becomes prolonged, amounts to arbitrary detention in contravention of, amongst other things, article 9 of the International Covenant on Civil and Political Rights, you're aware of that aren't you?
MS GODWIN: Well, I'm aware of the Commission's attitude on that point, yes.
MR WIGNEY: Now, we accept that the Department takes issue with that but to make it plain we accept that it would not be fruitful to take up time in this public hearing with a debate on that particular issue. But you would certainly agree, would you not, that even in the present regime the Department or the Minister has a discretion firstly as to what form immigration detention will take, correct?
MS GODWIN: Yes, I'd accept that.
MR WIGNEY: And obviously also a discretion as to the conditions and circumstances that exist in the dedicated detention facilities, right?
MS GODWIN: Yes.
MR WIGNEY: The definition of immigration detention in the Act, you would agree, allows for considerable flexibility on the part of the Department and the Minister in relation to the form of detention?
MS GODWIN: Yes.
MR WIGNEY: Detention, of course, does not have to be in a detention centre or a reception and processing centre such as Woomera or Port Hedland or the like, that's so isn't it?
MS GODWIN: Well, as you say the Act provides a degree of discretion about the nature of detention, it simply requires that the person be detained.
MR WIGNEY: As a broad proposition a person can be detained essentially in any place that's approved by the Minister in writing, is that right?
MS GODWIN: I might ask Mr Walker to comment on that. Do you mind?
MR WALKER: Certainly there is a degree of flexibility in terms of where a person may be held but of course the definition does say that the person is held on behalf of an officer at - and it can be a place approved by the Minister in writing.
MR WIGNEY: Well, in terms of that the Minister could, of course, approve any number of places including places specifically for the detention of children and families, you agree to that don't you?
MR WALKER: Yes.
MS GODWIN: Yes, he can but I think the point Mr Walker is making is that it's not just about declaring the place there's also got to be the capacity for someone to hold the person on behalf of an officer, so it's sort of a dual process, if you like.
MR WIGNEY: The Act also provides, does it not, that any person directed by the Secretary to accompany or restrain the detainee can perform that function?
MS GODWIN: Oh yes, there's a variety of people who can be in a sense designated, if you like, but they have to agree to that process.
MR WIGNEY: So, in the past there have been examples where the Secretary has designated a holder of a temporary protection visa as being a person that could perform that role?
MR WALKER: I'm not aware of that happening. There are two parts to the definition of immigration detention, there's paragraph a) which talks about another person directed by the Secretary to accompany or restrain the detainee. Paragraph b) refers to being held by or on behalf of an officer in another place. So they're two separate alternatives of immigration detention.
MR WIGNEY: So it follows, does it not, that you can - if you're just looking at places approved by the Minister in writing, then one doesn't have to look at a) as an additional requirement?
MR WALKER: No, you don't have to look at a) but the opening words at paragraph b) do say that the person must be held by or on behalf of an officer.
MR WIGNEY: It can be anyone?
MR WALKER: It can be anyone that the officer determines.
MR WIGNEY: Officer, for example a state welfare body?
MR WALKER: It could be a state welfare body.
MR WIGNEY: So again that provides significant flexibility, does it not, in terms of the type of detention and obviously of interest to this Inquiry, is relevant to children and families.
MR WALKER: There is flexibility there.
MR WIGNEY: It's essentially up to the Department and the Minister to determine the conditions in and services provided when someone is in detention, right?
MR WALKER: Yes, but there's also - as Ms Godwin mentioned - the fact is that you have to have co-operation of the person holding on behalf of an officer, so you have to have a degree of consent and acceptance.
MR WIGNEY: Yes, but for example if a state welfare body was willing to take on that role that wouldn't produce any difficulties, would it?
MS GODWIN: Perhaps if I could make a general point here. As a general proposition the point you're making is a correct one, there are numbers of people who could be designated for the purpose. The point though I think needs to be seen in the context of the purpose of detention and the purpose of detention is to ensure that people are available for processing - this is in summary, I think we spell out in more detail in our submission - but, in summary that people are available for processing and available for removal if they're found not to have a lawful reason to remain. Now, if a person is going to take on the responsibility of detaining a person then their co-operation in the overall context of the purpose of detention is also relevant as to whether or not they would be designated as a person who could undertake that role.
DR OZDOWSKI: One of the purposes, as I understand, was also deterrent function of detention, could you comment on it?
MS GODWIN: No. The purpose for detention is, as we've set out in our statement, that people are available for processing which includes identity checks, assessing any claims they have to remain in Australia, health, character, and any other sort of administrative processing that needs to go on. If they're found not to have a visa that they're available for removal.
DR OZDOWSKI: So deterrent wasn't the purpose of the current regime of detention?
MS GODWIN: That's not my understanding.
DR OZDOWSKI: Thank you.
MR WIGNEY: On various occasions we hear politicians referring to the detention regime as a deterrent to - trying to deter boat people from coming to Australia, you say that's not the Department's position?
MS GODWIN: Well, they may make those sorts of comments and it may have that incidental - that may be an incidental outcome, if you like, but the purpose for detention, the reason we have detention is to have people available for processing and for removal should they be found not to have a lawful reason to remain. Of course if they're found, through processing, to have a lawful reason to remain then they're granted a visa and in that way their detention comes to an end.
MR WIGNEY: You've referred there to the purposes of detention and you've emphasised I suppose the fact that people have to be available for processing and available for removal, are you in a sense referring there to the fact that there may be a fear that people will abscond?
MS GODWIN: Well, that's obviously one element further along, if you like, but there's also an issue about ensuring people are quickly available for processing. Clearly there are logistical issues in terms of if you think about the numbers of people we had arriving the logistics of trying to locate those people in the community, take them through their various processing stages and so forth would have been quite significant. So there's a sort of a logistical benefit as well of having people available for processing. Ultimately, yes, there is an issue about absconding. If people don't make themselves available for processing or more particularly don't make themselves available for removal at the end of the process then that is a consideration clearly that has to be taken into account.
MR WIGNEY: I want to come back to that issue in due course but in general terms has the Department ever conducted any studies or is aware of any studies in relation to the risk of unlawful non-citizens absconding?
MS GODWIN: Well, we've got some statistical material that sort of gives us an indication of people's propensity to not make themselves available for example for removal and there are also international comparisons which are relevant in this sort of context where people not only have not made themselves available for removal at the end of a process but in some instances don't even make themselves available for processing. Their entry into the community was in a sense sufficient outcome and so they haven't even made themselves available for processing in some overseas instances. So, yes, we have looked at this issue to some extent.
MR WIGNEY: I suppose you may take this as a question on notice but I wonder if you wouldn't mind, I don't think that has been a subject of a notice to produce, but I wonder if you wouldn't mind producing to the Inquiry those studies that you say the Department is aware of or has considered in relation to that issue, is that acceptable to you?
MS GODWIN: Sure, we can provide some information. When you use the word studies these are not research studies but we have examined this issue and we've looked at statistics and so forth and overseas experience, we can certainly point you to the information we've got.
DR OZDOWSKI: I would be especially interested in any information relating to families and children. I am much less interested in single males but I am interested in information about families absconding and children.
MS GODWIN: I'd have to look but I'm not aware that it necessarily breaks it down in that way it just talks generally. Now, some of the people that are involved in the general descriptions would obviously be families with children but I'm not sure that the information we've got breaks it down in quite that way.
DR OZDOWSKI: You could check.
MS GODWIN: We'll look for what we've got and in fact I think we've probably got some stuff here, maybe you can have a look at it during the course of the next couple of days, if it's helpful we'll give it to you, if not that's fine.
MR WIGNEY: In addition to the possibility of having, what I'll call alternate detention arrangements, that is in places approved by the Minister, you'd also agree that it's really up to the Department and the Minister to determine the conditions in and services provided in the dedicated detention centres, that's correct isn't it?
MS GODWIN: Yes.
MR WIGNEY: Particularly relevant to this Inquiry as regards the housing of children and families. So, it's really not enough to simply say well the present system provides for the mandatory detention of children and that's that, is it?
MS GODWIN: No, and I don't think that is our position. I think our position is that people are required to be detained and while they're detained our focus is on doing that in a way that meets their needs in the best way. So, you know, accommodation and all of the other services and so forth. Now, that's clearly constrained by, in many respects, the physical infrastructure that we've got and the physical infrastructure is constrained to a significant degree by the process we went through in a sense to establish that physical infrastructure, nonetheless there has been a process of improving physical infrastructure and therefore improving our capacity to sort of address some of the issues.
MR WIGNEY: By physical infrastructure you mean amongst other things the centre, physical centre at Woomera, Port Hedland and the like?
MS GODWIN: Yes, sure.
MR WIGNEY: And they're still with us aren't they?
MS GODWIN: Well, yes, they're all operational except for Curtin at the moment.
MR WIGNEY: And there are still children and families in, for example, Woomera?
MS GODWIN: There's a small number of children in there at the moment.
MR WIGNEY: Port Hedland?
MS GODWIN: Yes.
MR WIGNEY: And of course Woomera and Port Hedland and Curtin when it was still commissioned housed during the years 1999 through to fairly recent times, housed the bulk of the children, is that correct, those three centres?
MS GODWIN: Yes, as a general proposition. I mean clearly, you know, the numbers fluctuated and you know at different times there were probably smaller numbers at Woomera, in fact I think at one point we got down to a very small number at Woomera before we saw the numbers in unauthorised arrivals take off again. But, yes, as a general proposition that's correct.
MR WIGNEY: Of course you've referred in your evidence this morning to the fact that - and you do so also in your submissions - that immigration detention is an entirely administrative matter or action, right.
MS GODWIN: Yes, I accept that it's administrative detention.
MR WIGNEY: The Department accepts, does it not, that when making administrative decisions or taking administrative actions relating to the detention of children it must take into account the rights and obligations set out in various international treaties which have been ratified by the Commonwealth government?
MS GODWIN: We're certainly, yes, operating within that context.
MR WIGNEY: You say operating in the context, do you accept that as a practical matter this means that in taking administrative decisions or actions in relation to the detention of children the Department is obliged to satisfy various obligations and rights set out in international treaties?
MR BROMWICH: Commissioner, to the extent that my friend is overstating the legal position, I'd object to the question. He is, as he I think knows, overstating the position?
DR OZDOWSKI: I think there is a difference of opinions between the Commission and the Department and I think what counsel has been trying to establish is the depth of that difference, to what extent - what is that difference, so I would allow continuation of the question.
MR WIGNEY: I'm actually just trying to explore what the Department's attitude is to international conventions. On a number of occasions in your submissions the following phrase is used:
Australia's international obligations inform the approach to delivery of the detention function.
Do you accept that as a practical matter Australia, the Department, ought to try to meet all of the rights and obligations set out in international treaties?
MR WALKER: The Department attempts to give effect to all Australia's international obligations set out in the various treaties. As a matter of principle international obligations, unless they are specifically incorporated into domestic law, don't necessarily incur domestic obligations. Of course the Commission would be aware of the High Court's decision in Teoh which gives rise to a legitimate expectation that those obligations would be adhered to in administrative decision making and actions. However, there is an executive statement that the government has made in response to that. Now, I'm not going to get into any arguments over just what the legal effect of that statement is but just to reiterate that we, in discharging our functions, seek to operate within a manner that is consistent with our international legal obligations.
MR WIGNEY: Those international legal obligations include the Convention on the Rights of the Child?
MR WALKER: That's correct.
MR WIGNEY: It is, of course, as you well know the case that the Convention has not been incorporated into domestic law nor has it been or any of its provisions been excluded by domestic law as far as you're aware?
MR WALKER: That's correct.
MR WIGNEY: Is it the Department's position that in no circumstances the Department is required to take into account the rights and obligations set out in that convention, which I'll call the CRC, when making decisions concerning the detention of children?
MR WALKER: The Department, as I said before, seeks to give effect to those obligations. Now many of those obligations are found in various pieces of Commonwealth and state legislation, if not specifically incorporated the values are there. We certainly give effect to all obligations in Australian domestic law and we seek to give effect to any of those obligations that haven't been specifically incorporated in some form.
MR WIGNEY: The Department of course accepts that it has a duty of care towards all children in immigration detention, that's right isn't it?
MR WALKER: Yes.
MR WIGNEY: And that duty of care effectively includes upholding the rights of those children under the CRC, the Convention on the Rights of the Child, would you agree with that proposition?
MR WALKER: I think that we would probably see that our duty of care may well in some areas go broader than the Rights of the Child Convention. As I said before we seek to give effect to all of Australia's obligations under the Rights of the Child Convention.
MR WIGNEY: You're obviously aware of the various provisions in the CRC are you not?
MR WALKER: Yes.
MR WIGNEY: You're obviously aware that perhaps the most fundamental or overriding provision in the CRC is that in all actions of administrative bodies, such as the Department, the best interests of the child is a primary consideration?
MR WALKER: It is certainly a primary consideration. We wouldn't necessarily accept that it's an overriding consideration, there are a range of rights on sovereign states, certainly in terms of dealing with children it's a primary consideration, we accept that.
MR WIGNEY: Well, you accept that in making decisions and taking action in relation to the detention of children and that includes relevantly where they're detained, the conditions in which they're detained and how long they are detained for, the Department must have as its primary concern the best interests of the child?
MR BROMWICH: I will object to that. That's not a statement of what the Convention even says.
MR WIGNEY: I'm asking what the Department's attitude is.
MR WALKER: It is a primary consideration and it is certainly taken into account as a primary consideration in the way in which we administer the Act.
MR WIGNEY: Let me ask you this general question and if we can focus for the moment on unaccompanied minors, meaning relevantly those children that have been in immigration detention under the age of 18 years without a parent or family member over the age of 21. You accept of course that in the preceding three years or so quite a number of unaccompanied minors have been detained at, amongst other places, Woomera?
MS GODWIN: There have been a number of unaccompanied minors at Woomera, yes.
MR WIGNEY: Most, if not all of those unaccompanied minors have been asylum seekers?
MS GODWIN: At Woomera I guess the vast majority would have been asylum seekers, yes.
MR WIGNEY: Some of those unaccompanied minors have, in the past, been held for very long periods of time at Woomera?
MS GODWIN: Well, I'd have to check the statistics on that. I don't know that I'd accept as a general proposition that they've been held for a long time. I mean numbers of them got visas reasonably quickly, a number of them now are and have been since early this year in alternative places of detention. So, you know, there's a variety of circumstances around the management of unaccompanied minors.
MR WIGNEY: You would accept that at least some of the unaccompanied minors that have been detained at Woomera have been there for periods in excess of 12 months on occasion?
MS GODWIN: I honestly don't know. I would have to check the statistics.
MR WIGNEY: Well, let me ask you this, does the Department say that in detaining each and every one of the unaccompanied minors at the Woomera Detention Centre over the past three years or so the Department took into account as its primary consideration the child's best interests?
MS GODWIN: Well, that's our overall position. But clearly, as Mr Walker said, there are a range of other considerations. Best interests of the child, as we understand it, is required to be a primary consideration but not the only consideration and there were a variety of other circumstances and considerations that needed to be taken into account including, for example, the groups with which people have turned up. People often wanted to stay together as a group even though one of that group was an unaccompanied minor.
MR WIGNEY: Do you say that in each of the cases of the unaccompanied minors that were detained in Woomera over the past years from 1999 onwards, the Department turned its mind to their best interests and determined that those best interests were served by keeping them in the Woomera Detention Centre?
MR BROMWICH: That's a mis-statement again of the position of the Convention, with respect.
MR WIGNEY: I'm not saying that, I'm asking what the Department's view is?
MR BROMWICH: Well, it's misleading to ask a question which is contrary to the Convention and suggests that somehow there's compliance or non-compliance with the Convention when that's not the terms of the Convention. It's contrary to what the High Court said in the Teoh case and my friend knows it.
DR OZDOWSKI: Could you rephrase your question please.
MR WIGNEY: Do you say that in the case of the unaccompanied minors who were detained in the Woomera Detention Centre in the past three years or so, that the Department in detaining them in that centre took, as its primary consideration, the best interests of those children?
MS GODWIN: Well, it may be more helpful if I explain part of the process which is that when numbers of people were arriving, quickly and in large groups, generally speaking the practice was to move people as quickly as possible to a point where they could be processed. It was often only during the course of that processing that it became clear that someone was unaccompanied. If you've got a large group of people made up of adults and children it's not always immediately apparent that someone is an unaccompanied minor.
Secondly, our focus was on working people through the process as quickly as possible because obviously the most immediate way to resolve someone's detention is to find out whether they've got a lawful right to remain in Australia and if they have grant them a visa. So, that was the focus of considerable efforts at that time. During the period they were being processed the question of whether they should remain where they were or go somewhere else would have been a consideration but, as I say, there were a number of other considerations including the need to get people processed as quickly as possible, that would have been taken into consideration.
DR OZDOWSKI: That fast processing possibly is in the best interest of the child and you mentioned earlier a number of considerations which, to me, also sounded like in the best interests of the child. Could you perhaps mention what other considerations apart from the best interests of the child you have to consider. I understand, yes, you mentioned the issue of sovereignty of the borders which was one, are there any others which you have to consider in competition with the issue of the best interest of the child?
MS GODWIN: You mean in relation to where children were detained?
DR OZDOWSKI: Yes. When decisions were made about children, what considerations were taken into account to do with them.
MS GODWIN: Well, there would have been a variety of practical considerations. As I mentioned if people arrive in a group altogether, one of the considerations is where did we have accommodation for that group. Now, if all of the group was moving to a particular centre then they tended to move as a group. You're probably aware that numbers of people turned up at Ashmore Island, they would at that time routinely have been transferred either to Darwin or to Broome, more usually Darwin, and then they would be transferred. So a range of practical and logistical issues.
DR OZDOWSKI: Yes, but we are talking very much about the initial period of detention when people arrive, so really before real assessment of the situation started.
MS GODWIN: Yes, but then that was the point I was trying to make. Once someone is in a centre and processing has already been initiated, and bear in mind that we re-engineered the process, if you like, during the early part of 2000 to make sure that almost as soon as people arrived at a centre there were processing staff there ready to work with them in terms of whether or not they were making an asylum claim and then to work through the asylum process, including the provision of advisers through the IAAAS scheme. Once someone was at a centre in those large numbers the focus, as I say, was on moving people through the process as quickly as possible.
Now, in a number of instances and I wouldn't like to say what the number was, it was probably small rather than large, there may well have been considerations that, notwithstanding this might interrupt processing, it might be appropriate in this situation to relocate this particular child. The focus in that initial processing period was mostly on trying to get the process done as quickly as possible and provide services and support to the detainee population with particular focus on children such as unaccompanied minors while the process was going on rather than relocating people midstream, if you like, although there would have been occasions when that happened.
So, I guess I'm just saying the question about where someone was detained was often taking into account that overall processing strategy as well as the individual needs of individual detainees.
DR OZDOWSKI: I'm not getting at this issue of best interest of the child. I can understand when they arrive, when they were in a group, when they were transferred from one of the islands to mainland Australia possibly it was difficult, yes, to look at individual needs. But my assumption would have been that after people arrived in Woomera, Curtin or whatever, the moment after they went through the first interview possibly the best interests of the child could be addressed?
MS GODWIN: Well, I guess what I'm saying is that what we were trying to do was process people as quickly as possible while at the same time having an eye to particular needs of particular children. But I mean the sorts of considerations that I'm talking about are not, I think, only relevant up to the time of the first interview. Once someone has had an interview and yet doesn't have a decision and other people within the group with which they came are also in the same process there's a sort of a group cohesiveness, a group dynamics sort of issue that would have been a consideration. There would be a variety of considerations over a period of time and as processing developed, you know, as the decision came closer and closer and it became clear that someone was potentially likely to be granted a visa then clearly at that point a decision would be made well look, you know, just keep the process going as quickly as possible because every move, every interruption to the process had the potential to lengthen the process and quick processing was obviously one of the significant focuses for us.
DR OZDOWSKI: Maybe let's put the question differently, were there any considerations given which were inconsistent with the best interests of the child during that period?
MS GODWIN: Well, no. I guess what we would say is that because processing was the single most important focus at that point and the reason people were in detention was to be processed, that it is consistent with the best interests of the child that that happen as quickly and as cohesively as possible.
DR OZDOWSKI: Thank you. Mr Wigney, if you could conclude that topic if you wish because we are coming close to our morning break.
MR WIGNEY: Well, I don't think I propose to ask any further questions in relation to that particular article of the convention so that may be an appropriate time.
DR OZDOWSKI: It's 11.00 o'clock, let's meet at a quarter past 11.00 here.
MORNING TEA [11.00am]
RESUMES [11.20am]
MR BROMWICH: Commissioner, there is just one practical matter if I could raise it quickly and that's just a logistical one in relation to witnesses. I've spoken to Mr Wigney and he's been most helpful in explaining where he sees the balance of today going. I think a letter was sent to you last week which indicated that some of the departmental people had commitments, for example, in parliament during the course of this week. As I understand it the topics that we're dealing with for the balance of today there's no difficulty with our people being available but at some stage I would be seeking some indication as to which topics we will be dealing with over the next few days in broad terms so that we can make sure that as best as possible we have the necessary people here to answer the questions.
DR OZDOWSKI: I will indicate to you after the lunch break what the proposed program of topics is for the rest of the hearing.
MR BROMWICH: I'm grateful for that, Commissioner, thank you.
DR OZDOWSKI: So, Mr Wigney, if you would start again please.
MR WIGNEY: I want to return, very briefly, to the topic that I was addressing just before the morning tea and just explore a few more questions in relation to that topic if permissible.
DR OZDOWSKI: Please do.
MR WIGNEY: Ms Godwin, I think the question I initially asked was whether, in the case of unaccompanied minors detained at Woomera and let's say Curtin as well in the period from 1999 onwards and just accept from me for the moment that there were some that were detained for periods in excess of 12 months. The question is whether the Department had as a primary consideration or concern throughout their period of detention the best interests of those children and you referred I think to some other considerations in answer to a question asked by the learned Commissioner, is that correct?
MS GODWIN: Yes.
MR WIGNEY: Now, I gather from your rather lengthy answer that there were two other considerations that you referred to, one was the speed of processing. Now, that of course in a sense would be in the best interests of the child in any event, would it not? And I think the other consideration you referred to was border protection?
MS GODWIN: I don't recall using that phrase.
MR WIGNEY: Okay, well one consideration was speed of processing, were there any other considerations that the Department had in mind in detaining these children at Woomera and Curtin for some cases in excess of 12 months?
MS GODWIN: Well, I think what I was pointing to was the fact that there would have been a variety of circumstances which resulted in somebody arriving at Curtin or Woomera, not the least of which would be the group with which they arrived and the fact that at that point we wouldn't necessarily have known that someone was an unaccompanied minor. The question of their ongoing management, there would have been a variety of issues and I think I also referred to the group, you know, the group with which the person had arrived, the cohesiveness of that group.
There would also have been a range of other considerations such as the age of the unaccompanied minors. I mean the vast majority of unaccompanied minors and I know there are exceptions to this but the vast majority of unaccompanied minors were 16 or 17 year old young men who, in their own sort of cultural context, were regarded as adults. Now, we acknowledge that doesn't mean they're adults in the Australian context but nonetheless that would have been a consideration at the time in relation to, as I say, the group with which they arrived, the group dynamics, all of those sorts of things.
The other issue about whether there is any other place that a person can be detained raises questions of the availability of such places. We talked before, I think, about the fact that while there is a considerable degree of flexibility in the Migration Act they're not things that can necessarily be instantly located. So the availability of an alternate arrangement, whether there were appropriate support available elsewhere and so on. So there would have been a range of considerations which would have been taken into account.
MR WIGNEY: Just touching on, and I don't want to get into too much detail at this stage, we're still dealing really with generalities, but in relation to Woomera, at least, at the beginning of this year I think a large number of the unaccompanied minors were put into alternative detention, that is released from Woomera and put into immigration detention in the community as it were.
MS GODWIN: Transferred, yes.
MR WIGNEY: That was done on an urgent basis, it was done fairly swiftly in a short space of time was it not?
MS GODWIN: In that particular case I think it did happen reasonably quickly, bearing in mind though that this was done in collaboration with state government agencies and where we'd already developed a pretty strong working relationship with that particular agency.
MR WIGNEY: Well, it occurred in circumstances where that particular agency advised the Department in the strongest possible terms that it was not in the best interests of these children to remain in the Woomera Detention Centre, that's right, isn't it?
MS GODWIN: I'd need to refresh myself about the exact sort of sequence of events but certainly there were concerns about those children at that time shared by us and that agency.
MR WIGNEY: And the Department was able, in that case, to move them out of Woomera, correct?
MS GODWIN: Yes. But my point is because that agency was able to assist by identifying appropriate alternatives. I mean there have been times when we have been looking for such an alternative in individual circumstances and it's been relatively more difficult to identify. So, yes, in that situation it happened quite quickly. In other situations it hasn't been as easy as that to identify an appropriate alternative.
MR WIGNEY: Did you ask that particular agency earlier whether they would be able to come up with any alternate forms of detention acceptable to the Department?
MS GODWIN: Well, there's been an ongoing relationship between us and that agency in relation to a number of circumstances and situations. I wouldn't be able to comment specifically on whether we'd asked a general question of that sort but, you know, these are matters that would have been discussed usually on a case by case basis.
MR WIGNEY: Are you able to recall whether they asked a specific question in relation to any of the child detainees, whether it was possible to obtain alternate detention or alternate facilities prior to this urgent situation arising at the beginning of this year?
MS GODWIN:
Site navigation
Change font size: 
