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Report of an inquiry into a complaint by Mr Duc Anh Ha of acts or practices inconsistent with or contrary to human rights arising from immigration detention

HREOC Report No. 18

1. Introduction

2. The Commission's jurisdiction

3. Outline of complaint and the inquiry process

4. Findings and recommendations

5. Actions taken by the respondent as a result of the findings and recommendations

APPENDIX 1

APPENDIX 2

1. The commission's jurisdiction
2. The complaint
3. The complainant's evidence and submissions
4. Respondent's response
5. Documentary material before the commission
6. Conciliation
7. Preliminary findings of Commissioner Sidoti
8. Response to Commissioner Sidoti's preliminary findings
9. My Further Preliminary Findings
10. Respondent's response to my Further Preliminary Findings
11. Section 21 Notice
12. Findings of fact
13. Findings on liability
14. Article 10
15. Article 9(1)
16. Recommendations

APPENDIX A
APPENDIX B
APPENDIX C

1. Introduction

This report to the Attorney-General concerns an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") into a complaint made by Mr Duc Anh Ha on 7 August 1999. The complaint is against the Commonwealth of Australia (Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA")) under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOC Act"). The complaint was made pursuant to section 20(1)(b) of the HREOC Act, which provides for a complaint to be made in writing to the Commission alleging that an act or practice is inconsistent with or contrary to any human right.

2. The Commission's jurisdiction

The Commission's functions in relation to the investigation and conciliation of complaints of human rights breaches against the Commonwealth of Australia and the Commission's functions in relation to reporting on complaints with substance that have not been resolved through the process of conciliation are outlined in Appendix 1 to this report.

3. Outline of complaint and the inquiry process

3.1 The nature of the complaint

On 27 July 1999, Mr Ha was detained by officers of DIMIA in Perth. Mr Ha was detained first at the Perth Immigration Detention Centre (the "Perth IDC") and then transferred to Casuarina Prison (the "Prison") on 30 July 1999.

In his complaint to the Commission, Mr Ha alleged that, during his transfer to and detention at the Prison, he had suffered treatment which constituted breaches of his human rights.

3.2 The complainant's removal from Australia

Mr Ha was deported by DIMIA on 15 December 1999.

The removal of Mr Ha from Australia prevented the Commission from putting to the complainant some of the respondent's submissions, but it does not affect the Commission's jurisdiction in relation to his complaint.

The Commission sought the assistance of the respondent to locate the complainant. The respondent stated that it did not have the complainant's contact details and further indicated that was not within the respondent's power to obtain those details.

3.3 The Inquiry process

Commissioner Sidoti initially investigated this complaint pursuant to section 11(1)(f) of the HREOC Act. Conciliation was not possible because the complainant had already been deported. Commissioner Sidoti formed the view that this matter was not amenable to conciliation. Commissioner Sidoti then made preliminary findings in a report dated 11 July 2000.

After Commissioner Sidoti left the Commission, I assumed responsibility for the investigation of this complaint. After further inquiry, I considered it appropriate to make certain further preliminary findings, dated 13 November 2001.

Following the preliminary and further preliminary findings, Commissioner Sidoti and I each made directions for the provision of further evidence and submissions by the parties. Pursuant to sections 33 and 27 of the HREOC Act, Commissioner Sidoti and I invited the respondent to make further submissions orally and/or in writing. The respondent provided a number of written submissions. No further contact was had with Mr Ha [1].

On 8 March 2002, I issued a notice of my findings and recommendations in relation to the complaint under section 29(2) of the HREOC Act (the "Notice"). A copy of the Notice is Appendix 2 to this Report.

4. Findings and recommendations

In summary, in the Notice I found that Mr Ha's transfer to and detention in the Prison involved acts and/or practices that were inconsistent with or contrary to articles 9(1), 10(1) and 10(2)(a) of the International Covenant on Civil and Political Rights.

I made the following recommendations directed to the prevention of a repetition of the relevant acts and/or a continuation of the relevant practices:

"(a) The respondent undertake a review of the conditions of detention of all persons held in immigration detention in state prisons to ensure that the respondent is not breaching article 10(1) or the separate treatment limb of article 10(2)(a) of the ICCPR in other cases. Amongst other matters, that review should address:

It may be appropriate for that inquiry to be referred to a third party such as the Commission or the Commonwealth Ombudsman.

(b) If the inquiry referred to in (a) above reveals further breaches of articles 7, 10(1) or the separate treatment limb of article 10(2)(a) of the ICCPR, then the respondent should take immediate steps to remedy those breaches and ensure that they do not take place again.
(c) The respondent ensure that Commonwealth decision makers consider whether it is possible to achieve segregated detention in cases where immigration detainees are to be held in state prisons.
(d) DIMIA establish secure detention facilities within Immigration Detention Centres for the purpose of holding immigration detainees whose behaviour is not able to be effectively managed in a lower security environment of mainstream immigration detention centres.
(e) DIMIA, in conjunction with ACM, develop and implement strategies for effectively dealing with detainees with drug dependency issues. Such strategies should include training for ACM and Departmental officers in:

(f) DIMIA liaise with state and federal police services to discuss means of ensuring the accuracy of information exchanged between DIMIA and those services regarding particular detainees and of ensuring that such information is made available as expeditiously as is possible.
(g) In training of Departmental and ACM officers in relation to the provisions of MSI 244, DIMIA ensure that all officers are aware of their obligations to:

This is not an examination of an enactment under section 11(1)(e) of the HREOC Act. However, I should add that it is my view that the facts of this case seem to me to require that the Migration Act 1958 (Cth) be amended so as to provide that detainees can only be transferred from Immigration Detention Centres to State prisons if they are either charged with or convicted of a criminal offence that would result in remand in custody or the serving of a criminal sentence.
Until such legislative reform takes place, I would recommend that MSI 244 be amended so as to insert a similar restriction (ie so as to provide that detainees can only be transferred from Immigration Detention Centres to State prisons if they are either charged with or convicted of a criminal offence that would result in remand in custody or the serving of a criminal sentence). That recommendation was made by the Commission, in relation to the then applicable Migration Series Instruction, in Those Who've Come Across the Seas."

5. Actions taken by the respondent as a result of the findings and recommendations

Under section 29(2)(e) of the HREOC Act the Commission is required to state in its report to the Attorney-General whether the respondent has taken or is taking any action as a result of its findings and recommendations.

On 11 March 2002 the Commission wrote to the respondent to seek its advice as to what action it had taken or proposed to take as a result of the findings and recommendations. In a letter to the Commission dated 11 April 2002, Mr William Farmer, on behalf of the respondent, provided the respondent's comments in relation to the Notice. I have extracted those parts of Mr Farmer's letter that state what action the respondent has taken or proposes to take:

…..Recommendations

a) The respondent undertake a review of the conditions of detention of all persons held in immigration detention in state prisons to ensure that the respondent is not breaching article 10(1) or the separate treatment limb of article 10(2)(a) of the ICCPR in other cases. Amongst other matters, that review should address:

It may be appropriate for that inquiry to be referred to a third party such as the Commission or the Commonwealth Ombudsman.

The Department does not agree with the President's findings in this case in relation to the threshold of treatment required to constitute a breach of Articles 10(1) and 10(2)(a). Further, the Department does not agree that the facts of this case indicate that the treatment of Mr Ha or other detainees detained in state correctional facilities approaches the threshold of treatment required to breach Article 7.

As of 03 April 2002 there are only 11 immigration detainees held in state correctional facilities (not including Queensland), with 6 detainees in NSW, 2 in Victoria and 3 in South Australia. Of these detainees, only 1 detainee has been transferred from an Immigration Detention Facility to a correctional facility. The remaining 10 detainees have been held in correctional facilities following the completion of criminal sentences.

Further, the rules and regulations applicable to immigration detainees held in state correctional facilities have been and continue to be reviewed in the context of ongoing negotiations with a number of State correctional authorities on Memoranda of Understanding (MOUs). The conditions under which detainees are held in state facilities necessarily form part of the negotiations.

In relation to point 2 of the recommendation (a), the Department submits that although the Standard Minimum Rules may be taken into account in determining the standards for humane conditions of detention, the Standard Minimum rules do not form a code, nor are States Parties required to adhere to the Standard Minimum Rules in order to comply with the ICCPR.

Australia is not bound under international law to comply with the Standard Minimum Rules, a fact the President acknowledges in the report. Nevertheless, the treatment of detainees in state correctional facilities in most instances complies with Part II Section C of the Standard Minimum Rules.

Further, in all jurisdictions where immigration detainees are currently held in state correctional facilities, it is standard practice that, at minimum, immigration detainees are held as unconvicted/remand prisoners. In one jurisdiction, where legislation provides for a further degree of separate treatment, immigration detainees are subject to separate treatment as civil inmates.

As has been indicated above, conditions for immigration detainees in state correctional facilities in Western Australia differ from those that apply to sentenced prisoners.

In Victoria, it is normal for detainees held in state correctional facilities to be detained in accordance with Part II Section C of the Standard Minimum Rules. Detainees in Victorian facilities:

In New South Wales, it is normal for immigration detainees to be classified as civil inmates. Generally speaking, civil inmates are treated in much the same way as unconvicted inmates, except for some additional privileges.

In Queensland, detainees are held in a separate wing of the Arthur Gorrie Correctional Centre and are held separate from both convicted and unconvicted prisoners.

In South Australia, detainees are transferred to the Adelaide Remand Centre on completion of their sentences (ie at the beginning of their detention as immigration detainees). They are held under the same conditions as inmates on remand, and in some cases, have access to additional privileges such as more private visits from family members.

As has been stated above, the Department is currently negotiating MOUs with a number of State correctional authorities with respect to the detention of immigration detainees in state correctional facilities. During the MOU negotiation process, the Department is placing particular emphasis on reporting requirements and access to information relating to detainees.

In relation to the President's suggestion that the Department consider transferring some detainees to interstate prisons, as previously advised, the pressure on prison capacity throughout Australia means that states and territories are generally reluctant to take persons from other jurisdictions, including immigration detainees.

(b) If the inquiry referred to in (a) reveals further breaches of articles 7, 10(1) or the separate treatment limb of 10(2)(a) of the ICCPR, then the respondent should take immediate steps to remedy those breaches and ensure that they do not take place again.

As stated above, the Department does not agree with the findings in this case in relation to the threshold of treatment required to constitute a breach of Articles 10(1) and 10(2)(a). Further, the Department does not agree that the facts of this case indicate that the treatment of Mr Ha or other detainees detained in state correctional facilities approaches the threshold of treatment required to breach Article 7.

However, if it were clear to the Department that the conditions under which an immigration detainee was being detained in a state correctional facility breached the ICCPR, then the Department would take immediate steps to request that the relevant correctional authority address the issue immediately.

(c) The respondent ensure that Commonwealth decision makers consider whether it is possible to achieve segregated detention in cases where immigration detainees are to be held in state prisons.

Australia maintains a reservation in relation to the segregation limb of Article 10(2)(a). As stated above, Australia's reservation to article 10(2)(a) is not binding on Australia until the reservation is removed. There is nothing in the language of the reservation that supports the approach adopted by the President.

Further, in most jurisdictions it is not possible to achieve full segregation from convicted inmates, even where immigration detainees are held in purpose built remand facilities.

Nevertheless the Department agrees that, where possible, detainees held in state correctional facilities should be segregated from convicted inmates. Further, in a number of jurisdictions, the requirement to segregate different classes of prisoners where practicable is reflected in the relevant legislation of that state.

(d) DIMIA establish secure detention facilities within Immigration Detention Centres for the purpose of holding immigration detainees whose behaviour is not able to be effectively managed in a lower security environment of mainstream immigration detention centres.

The Department is continually examining the most appropriate and optimal use of its immigration detention facilities. The streaming of certain groups of detainees, possibly including high risk detainees, is something the Department is considering.

There are pros and cons to the proposition that high-risk detainees be accommodated together in one purpose-built facility. Concentration of all difficult detainees in one centre would remove the benefit of the ameliorating influence of better-behaved detainees, making the management of this cohort much more difficult.

It would also mean that detainees who are community compliance cases would have to be moved from states where they have lived and have community support. This may provoke criticism from the courts and legal representatives of those who are pursuing litigation. There would also be increased costs associated with transporting and escorting detainees, including for tribunal and court hearings.

While continuing to assess these issues, as we have informed the President on several occasions, we are aiming to ensure that, in time, all IDCs and IRPCs will have some capacity to manage closely detainees who pose behaviour management problems.

In designing the new centres to be built in Darwin, Brisbane and Christmas Island and in redeveloping and refurbishing existing facilities, the Department is seeking to ensure that appropriate infrastructure is in place to better manage difficult detainees within our own facilities. Further measures to better manage difficult detainees are also being considered. Nevertheless, the Department maintains that there will continue to be a need to transfer a small number of high risk detainees to state correctional facilities.

(e) DIMIA in conjunction with ACM, Develop and implement strategies for effectively dealing with detainees with drug dependency issues. Such strategies should include training for ACM and Departmental officers in:

ACM already have a number of policies in place for dealing with detainees with drug dependency issues including policies relating to health screening to identify drug dependency issues, alcohol and drug services including detoxification programs and methadone programs.

Drug dependency in and of itself would not be considered to be sufficient grounds for the transfer of a detainee to a state correctional facility.

(f) DIMIA liaise with state and federal policy services to discuss means of ensuring the accuracy of information exchanged between DIMIA and those services regarding particular detainees and of ensuring that such information is made available as expeditiously as possible.

DIMIA already has MOUs in place with the AFP and NSW Police relating to the exchange of information between those agencies and the Department. Further, the Department is currently negotiating MOUs with a number of State Police agencies in relation to services in detention centres.

(g) In training of Departmental and ACM officers in relation to the provisions of MSI 244, DIMIA ensure that all officers are aware of their obligations to:

While recommendations by the detention services provider are taken into account in the decision making process, all decisions to transfer immigration detainees to state correctional facilities are made by DIMIA officers.

As previously advised, the Department is currently in the process of reviewing MSI 244 and, in response to the resolution of the Corrective Services Minister's Conference in June 2001, is currently negotiating MOUs with a number of states in order to determine the procedures for the transfer of detainees to state correctional facilities in "exceptional circumstances".

The President has also stated that:

"It is my view that the facts of this case seem to me to require that the Migration Act 1958 (Cth) be amended so as to provide that detainees can only be transferred from Immigration Detention Centres to prisons if they are either charged with or convicted of a criminal offence that would result in remand in custody or the serving of a criminal sentence."

As has previously been outlined in the Government's response to recommendation 6.12 in the Commission's 1998 report, Those who've come across the seas: Detention of unauthorised arrivals, the reasons for transfer of detainees are not restricted to criminal behaviour, but may relate to other concerns such as the risk to other detainees, risk of escape and health concerns.

Section 5(1) of the Migration Act 1985 explicitly provides for detainees to be held in a prison or remand centre of the Commonwealth, a State or a Territory. This indicates that the Parliament recognised the necessity for some detainees to be held in such a place for the purposes of immigration detention.

To accommodate detainees who exhibit aggressive, violent or abusive behaviour in immigration detention centres raises a significant risk of harm to other detainees, visitors to the facilities, staff of the department and of our service provider. It could also increase the risk of some detainees absconding or escaping into the community, which raises a public safety concern.

Nonetheless, the Department accepts that it is not ideal for immigration detainees to be accommodated in correctional facilities and the Department is making progress towards ensuring the better management of difficult detainees within an immigration detention environment.

However, as stated above, the Department maintains that there will continue to be a need to transfer a small number of high risk detainees to state correctional facilities. Indeed, state and territory Ministers recognised this in agreeing, at the Corrective Service Ministers Conference in June 2001, to hold immigration detainees in state correctional facilities "in exceptional circumstances".

Dated at Sydney this 17th day of May 2002
Professor Alice Tay, President

APPENDIX 1

Functions of the Human Rights and Equal Opportunity Commission

The Commission has specific legislative functions and responsibilities for the protection and promotion of human rights under the HREOC Act. Part II Divisions 2 and 3 of the HREOC Act confer functions on the Commission in relation to human rights. In particular, section 11(1)(f) of the HREOC Act empowers the Commission to inquire into acts or practices of the Commonwealth that may be inconsistent with or contrary to the rights set out in the human rights instruments scheduled to or declared under the HREOC Act.

Section 11(1)(f) of the HREOC Act states:

(1) The functions of the Commission are:

(f) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:

where the Commission considers it appropriate to do so-to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and

where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement-to report to the Minister in relation to the inquiry.

Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth.

The Commission performs the functions referred to in section 11(1)(f) of the HREOC Act upon the Attorney General's request, when a complaint is made in writing or when the Commission regards it desirable to do so (section 20(1) of the HREOC Act).

In addition, the Commission is obliged to perform all of its functions in accordance with the principles set out in section 10A of the HREOC Act, namely with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights.

The Commission attempts to resolve complaints under the provisions of the HREOC Act through the process of conciliation. Where conciliation is not successful or not appropriate and the Commission is of the opinion that an act or practice constitutes a breach of human rights, the Commission must give the respondent to the complaint an opportunity to make written and/or oral submissions in relation to the complaint (section 27 of the HREOC Act). If, after the inquiry, the Commission finds a breach of human rights, it must serve a notice on the person doing the act or engaging in the practice setting out the findings and the reasons for those findings (section 29(2)(a) of the HREOC Act). The Commission may make recommendations for preventing a repetition of the act or practice, the payment of compensation or any other action or remedy to reduce the loss or damage suffered as a result of the breach of a person's human rights (sections 29(2)(b) and (c) of the HREOC Act).

If the Commission finds a breach of human rights and it furnishes a report on the matter to the Attorney General, the Commission is to include in the report particulars of any recommendations made in the notice and details of whether, to the knowledge of the Commission, that person has or is taking any action that the person is taking as a result of the findings and recommendations of the Commission (sections 29(2)(d) and (e) of the HREOC Act). The Attorney General must table the report in both Houses of Federal Parliament within 15 sitting days in accordance with section 46 of the HREOC Act.

It should be noted that the Commission has a discretion to cease inquiry into an act or practice in certain circumstances (section 20(2) of the HREOC Act), including where the subject matter of the complaint has already been adequately dealt with by the Commission (section 20(2)(c)(v) of the HREOC Act).

APPENDIX 2

Notice pursuant to section 29(2) of the Human Rights and Equal Opportunity Commission Act

Notice under section 29 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) Concerning Acts or Practices Inconsistent With or Contrary to Human Rights


Complainant:
Mr Duc Anh Ha


Respondent:
The Commonwealth of Australia
(Department of Immigration and Multicultural and Indigenous Affairs)
TABLE OF CONTENTS

1. The commission's jurisdiction

This notice concerns a complaint under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the "HREOC Act") of acts or practices inconsistent with or contrary to human rights which allegedly occurred during the detention of the complainant at Casuarina Prison (the "Prison") in 1999. The jurisdiction of the Human Rights and Equal Opportunity Commission (the "Commission") in relation to complaints of acts or practices inconsistent with or contrary to human rights in the context of the detention of unauthorised arrivals was described in detail in the Commission's report to the Attorney General entitled Those Who've Come Across the Seas: Detention of unauthorised arrivals. [2] A description of the Commission's jurisdiction is also set out at Appendix A of this notice.

2. The complaint

2.1 The nature of the complaint

On 27 July 1999, Mr Duc Anh Ha (the "complainant"), was detained by officers of the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA" - formerly the Department of Immigration and Multicultural Affairs - "DIMA") in Perth. The complainant had previously entered Australia under a Student Visa. The complainant was detained first at the Perth Immigration Detention Centre (the "Perth IDC") and then transferred to the Prison on 30 July 1999.

On 7 August 1999, the complainant lodged a complaint with the Commission. He alleged that, during his transfer to and detention at the Prison, he had suffered treatment which constituted breaches of his human rights.

2.2 The complainant's removal from Australia

The complainant was deported by DIMIA on 15 December 1999.

The removal of the complainant from Australia prevented the Commission from putting to the complainant some of DIMIA's submissions, but it does not affect the Commission's jurisdiction in relation to his complaint.

However, in making its finding on this complaint the Commission has had to rely principally on documentary evidence and other material from DIMIA. The Commission has also made use of material prepared by the Parliamentary Commissioner for Administrative Investigations of Western Australia (also known as the Ombudsman and hereinafter referred to as the "WA Ombudsman"). That material dealt, in general terms, with the conditions at the Prison.

The Commission sought the assistance of the respondent to locate the complainant. The respondent stated that it did not have the complainant's contact details and further indicated that was not within the respondent's power to obtain those details.

2.3 Relevant legislation and guidelines

In order to understand the factual circumstances underlying this complaint, it is necessary to set out the relevant provisions from the Migration Act 1958 (Cth) (the "Migration Act") and from the applicable Migration Series Instruction.
Section 5(1) of the Migration Act provides that:

"detain means:

(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.

detainee means a person detained.

immigration detention means:

(a) being in the company of, and restrained by:

(i) an officer; or
(ii) in relation to a particular detainee-another person directed by the Secretary to accompany and restrain the detainee; or

(b) being held by, or on behalf of, an officer:

(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel-on that vessel; or
(v) in another place approved by the Minister in writing."

Section 14 of the Migration Act provides that an unlawful non-citizen is a person who is present in the "migration zone" who is not an Australian citizen and who does not hold a visa that is in effect.

Section 15 of the Migration Act provides (for the avoidance of doubt) that if a person is in the migration zone and their visa is cancelled then, upon cancellation, that person becomes an unlawful non-citizen, unless immediately after the cancellation the former holder holds another visa that is in effect.

Section 189 of the Migration Act provides for the detention of unlawful non-citizens in the following manner:

"Section 189 Detention of unlawful non-citizens

(1) If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.
(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter the migration zone; and
(b) would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person."

Section 196 of the Migration Act provides that, once detained, an unlawful non-citizen must be kept in immigration detention unless removed from Australia [3], deported or granted a visa.

At the time of the complainant's transfer to the Prison, Migration Series Instruction 244, entitled "Transfer of Detainees to State Prisons" ("MSI 244"), provided guidelines for decisions regarding the transfer of people from Immigration Detention Centres to prisons. MSI 244 included the following relevant provisions:

2 Detention in prisons

2.1 Detention of immigration detainees within prisons occurs as a last resort. In this restricted context it can occur for a number of reasons, which include:

Behavioural concerns

While being held at an IDC a person's behaviour is considered to be unacceptable for the low security IDC environment, because of:

  • the risk to other detainees;
  • violent behaviour and/or unlawful behaviour, the inability of management and the detainee to resolve the unacceptable behaviour; or
  • the risk of absconding from lawful custody; or
  • at the time of being taken into immigration detention a person is assessed as being unsuitable to mix with other detainees at an IDC.

Completion of a custodial sentence

  • The detainee has completed a custodial sentence in prison and:

(a) removal or deportation is expected to take place within seven days of the expiration of the criminal sentence; and
(b) a review has determined that there are good reasons for the person not being detained at an IDC.

Location (Absence of an IDC)

  • No purpose built IDC exists in the State or Territory where the person entered Australia or was detained by DIMA.

3 Decision making in the transfer process

3.1 There is no clear statutory basis for the selective transfer of detainees and the decision to transfer a detainee from an IDC to a prison should be made as a last resort. The decision to transfer a detainee to a prison should be made by the State Director or the Director's delegate, usually the OIC of Compliance. Where this is not possible; eg, the decision on a transfer needs to be made after hours or at weekends, it should be endorsed by the State Director or the delegate on the first working day after it takes place.

3.2 The decision should take into account the advice provided (sic) Australasian Correctional Management Pty Ltd (ACM) in a submission recommending a change in the place of detention, and should be made in consultation with the relevant custodial institution. The Director, Detention Section, Central Office, is to be advised immediately of all decisions to transfer a detainee to a state correctional institution, and is to be kept informed, on a weekly basis, of the monitoring and review of the case.

3.3 In deciding whether to transfer a detainee to a state prison, decision makers will need to take into account any factors in the detainee's behaviour which raise questions as to whether it is in the best interests of the efficient running of the IDC or of the detainee himself/herself to continue to remain in the IDC, bearing in mind that IDCs are low security establishments. These factors could include cases where:

3.4 All decisions to transfer a detainee must be fully documented to ensure that the transfer process is transparent and accountable. This may include but need not be limited to file notes regarding, the incident/or sequence of incidents of unacceptable behaviour, counselling sessions, additional strategies implemented to address behaviour concerns, and medical/psychiatric assessments and/or intervention. Decision makers must ensure that a detainee is not transferred to a prison as a form of punishment for actions while
in the IDC.

4 Grounds for transfer
 ………………………
4.4 Detainee with a history of violence

4.4.1 A person with a history of or a predisposition to violence, or other disruptive or threatening behaviour should not, where practicable, be placed in an IDC but in a state prison or other institution where there are more adequate and appropriate facilities for custody and/or treatment. The facilities at the IDCs should, however, be used to the greatest extent possible in the management of immigration detainees. Any decision to locate an immigration detainee in a State prison should be taken in accordance with the procedures outlined in this Instruction.
……………………
4.6 Detainee with a history of sexual offences or drug offences

4.6.1 Where a decision has been made that:

Or,

the person should be placed in a state prison or other institution where there are more adequate facilities for custody.
……………….

4.8 Escape (attempted or successful)(3)

4.8.1 Escape, or attempted escape, from lawful immigration detention is an offence against s 491 of the Act, with a maximum penalty of imprisonment for two years. Under Section 47 of the Crimes Act 1914 escape from lawful custody carries a maximum penalty of 5 years imprisonment. The decision about which provisions should be used to initiate prosecution are determined by the DPP, and take into account the circumstances in which the detainee escaped and was taken back into custody. The Prosecution Policy of the Commonwealth at 2.22 states:

Ordinarily the provisions of the specific Act rather than the general provisions of the Crimes Act should be relied on unless to do so would not adequately reflect the nature of the criminal conduct disclosed by the evidence.

4.8.2 The decision about whether the police are asked to

consider laying charges against a detainee who escapes, or attempts to escape, is to be decided by ACM in close consultation with the IDC DIMIA Business Manager. The decision must be fully documented on the detainee's case file.

4.8.3 If prosecution is considered likely then a brief should be prepared for the DPP for the purpose of laying charges. Officers should consider the likelihood of success of such action. For example, there is little point in pursuing prosecution if the penalties are going to be minimal or if, on the advice of the prosecuting authority, there is little chance of a conviction being made.

4.8.4 Where prosecution is not considered to be a viable option, officers will need to consider the escape (attempted or successful) in terms of it being a management issue. Depending on the circumstances of the escape, a strong warning to the detainee may be a preferable option to reconsidering the place of detention. If it is considered that the low security environment at the IDC is unable to adequately detain a person then a review of the place of detention will need to be considered. (Refer to the MSI 'General Detention Procedures' [Para 22 'Escape from Detention']).

……………………
6 Case management

6.1 Each detainee should be assigned a case manager who is responsible for the ongoing management of the detainee's case. Where the case officer or the Detention Review Officer is on extended leave, alternative arrangements should be put in place by the OIC Compliance to ensure that regular reviews can and will be conducted.

6.1.1 The ongoing monitoring of immigration detainees in state institutions is essential to ensure that they are always being held in the most appropriate place of detention. Where an immigration detainee is being held in a State prison, the case officer, or the Detention Review Officer, should have regular weekly contact with the institution to monitor the condition of the detainee. In addition, the officer is to undertake monthly personal visits with the detainee which may be timed to coincide with the 30 day review (refer to part on Review of the place of detention). The purpose of these regular contacts is to ensure that the detainee's condition whilst held in a custodial institution is closely monitored. These contacts are to be documented and file notes placed on the detainee's file.
……………………………
6.1.3 Although the determination of the security classification of detainees held in prison is made by the prison authorities, the case officer should seek to ensure that the prison system does not over-classify immigration detainees. It is desirable for immigration detainees to be held in remand areas of the prison, to reduce any exposure to violent convicted criminals.

7 Review of the place of detention
 ……………….
7.3 Formal monthly reviews - DIMA initiated

7.3.1 Each Regional Office should have a Detention Review Officer who is responsible for reviewing the detention details of each detainee at least every 30 days.
………………….
7.4 Decision making in the review of the place of detention

7.4.1 The review of the place of detention should take into account any reports provided by the social, welfare or medical workers in the institution, correctional service officers and/or the relevant prison contact officer, in regard to the detainee's behaviour or medical condition. At Attachment B is a form which can be used to assist in this reporting process. Officers should also accept oral reports from these persons, which must be recorded and placed
on file.

7.4.2 Where reports on the detainee's medical condition and/or behaviour have been received, the IDC Manager and the OIC of the guarding service contracted by the department at the IDC should consider the detainee's return to the IDC. Whilst input is required from the correctional services, the decision as to whether the detainee is to return to the IDC is not to be made by them. Where a decision to return the detainee to the IDC is made, the transfer should be effected as soon as practicable to reduce the time the detainee is required to stay in the prison system.


7.4.3 Where a decision is made not to return the detainee to the IDC the State Director or the Director's delegate (usually the OIC guarding agency Compliance) must be consulted. That person, should then consider the information provided by the prison authorities, the department's contracting guarding service and the IDC Manager and decide whether to affirm or override the decision.

7.4.4 Where a refusal decision has been made the detainee is to be advised of this decision and advised as to when the next review of the place of detention is to take place. Subsequent reviews could be made during either the case officers weekly telephone contact with the institution or during their monthly visits with the detainee."

3. The complainant's evidence and submissions

The complainant wrote to the Commission on a number of occasions. I have summarised the contents of those letters below (which necessarily involves some degree of repetition).

In his letter of complaint dated 7 August 1999, the complainant stated, inter alia, that:

4. Respondent's response

In a written response to the complaint dated 10 November 1999, DIMIA stated that:

Following a request made by the Commission on 21 December 1999, DIMIA provided to the Commission, by letter dated 9 March 2000, further information and documents. In that response, DIMIA stated that:

5. Documentary material before the commission

5.1 Material initially provided by DIMIA

In response to requests made by the Commission, DIMIA also provided to the Commission documentary material relevant to the inquiry. That material was annexed to the Preliminary Report.

I have set out below, in chronological order, extracts from that material.

5.1.1 Incident Reports prepared by Australasian Correctional Management

During the period 28 July 1999 to 30 July 1999, ACM staff at the Perth IDC prepared an "Incident Report" and "Incident Follow Up Reports" in respect of the complainant.

On 28 July 1999, Ms Shirley Ann Walker, an Acting Supervisor at the Perth IDC, prepared a document entitled "Incident Report". That document was addressed to "ACM-EGM Operations", "General Manager, Detention Services", "Director Detention Section (DIMA)" and "DIMA Business Manager Perth". In that document, Ms Walker stated:

"Background:
 Detainee HA Duc Anh alias PHAM Quoc Hung P009650 a Vietnamese National, who is an alleged drug user. The detainee was received on the 27 July, 1999 at
Perth I.D.C.

Narrative:
 On Wednesday 28th July, 1999, Michael Cain, the Compliance Manager requested if the detainee HA Duc Anh alias PHAM Quoc Hung had any tattoos on his body. Michael Cain stated this information was vital as the detainee Ha's description has fitted a N.S.W police crime suspect who was involved in drug activity. I informed Michael Cain that detainee Ha has two large tattoos on either arm. Both tattoos are of large Asian dragons with skull heads.

Once the detainee's identification and previous criminal activity is established, it will be necessary to determine this detainee's suitability to remain within the minimum-security of the global village of the P.I.D.C."

On 29 July 1999, Mr Wayne Hart, Centre Manager at the Perth IDC, prepared a document entitled "Incident Follow Up Report". In that report, which was addressed to "ACM-EGM Operations", Mr Hart stated:

"Background:
 Detainee HA Duc Anh alias PHAM Quoc Hung (P000650), is a reported Vietnamese national received at the PIDC on 27 July 1999. DIMA Compliance have advised that the detainee description fits that of a NSW crime suspect involved in drug activity. The detainee has been observed to have two large tattoos on each arm depicting large Asian dragons with skull heads.

Narrative:
 The detainee is now a confirmed heroin user and is receiving medication for withdrawal symptoms.

During his interview with medical staff he continually questioned on whether he would be treated in a hospital if he became ill. Staff felt that he was looking for an avenue of escape from detention. The detainee also stated that he had been in the NSW prison system where he had last come off heroin. HA then requested to be placed on methadone treatment like his fellow prisoner mate in NSW.

Detainee HA also stated that he was willing to pay his own airfare to NSW and then on to Vietnam. He said that he needed for his friends to sell his house and car in Sydney.

Summary and Recommendation:

  • Detainee HA is a past and present heroin user.
  • He has had criminal exposure.
  • He has admitted at least one term of imprisonment in NSW.
  • His tattoos suggest possible drug underworld connections and
  • He is a possible suspect in NSW drug activity.
  • Detainee HA's demeanour suggests that he is a high risk of escape and has been placed on 30 minute security observations.

Given the information above, detainee HA is assessed as presenting a high risk of escape and a risk to the good order and management of the Perth Immigration Detention Centre. His criminal and drug exposure also presents as a bad influence on other detainees in the PIDC minimum security environment.

I therefore recommend and request that detainee HA be placed in an alternative more secure environment asap under MSI 157, pending further clarification of his involvement in crime.

DIMA Business Manager Detention N Smith advised."

On 30 July 1999, Mr Hart prepared a document entitled "Incident Follow-Up Report No 2". In that report, which was addressed to "ACM-EGM Operations", Mr Hart stated:

"Detainee HA Duc Anh alias PHAM Quonc Hung (P000650). Is a reported Vietnamese national received at then PIDC on 27 July 1999.
Please refer to Incident Report 1999 (dated 28.07.99) and Follow Up Report (29.07.99) for details of criminal exposure, drug use, high escape risk assessment and request to DIMA to transfer to a secure facility

Narrative:
 Further information has been received that heightens the profile and security risk of this detainee to the good order and management of the PIDC and makes him totally unsuitable to remain at the Centre.

  • NCA Officers attended the PIDC to interview detainee HA (with the permission of DIMA). The Officers advised that the detainee is believed to have been recently charged in NSW for Armed Robbery offences and to have a bench warrant out for Failing to Attend (viz skipped bail).
  • ACM Officer A Cairns has reported today, that detainee HA has been asking questions and trying to get information about the location of the PIDC and the security systems at the Centre. He also stated that he wanted to run away. When another detainee (PAZOOKI) said that HA would not be able to escape, detainee HA replied "I can, I could get out of here with my bare hands".

The above information was discussed with DIMA Business Manager Detention N Smith who agreed to this detainee not returning to the mainstream area. A Detention Officer was placed with the detainee in an interview room (observation room occupied). Detainee HA has volunteered to the guarding officer:

  • That he has previously been in gaol in Vietnam for the killing of a Police Officer. He stated that he was only 10 years old and a member of a gang at the time.
  • That he has been in gaol in NSW on four occasions for shop lifting, stabbing a person, breach of bail and breach of Community Service Order. DIMA have now agreed to detainee HA's transfer to a MOJ (sic) WA prison facility."

5.1.2 Departmental Minute dated 30 July 1999

This document was, on its face, prepared by Mr Nigel Smith (employed by DIMIA as "Business Manager (Detention)") and submitted to Mr John Williams (employed by DIMIA as "State Director, Perth Office"). In the minute, Mr Smith sought Mr Williams' authorisation for the transfer of the complainant to the "prison system". Under the heading "Grounds for Transfer", Mr Smith set out the following matters:

"1 DETAINEE WITH A HISTORY OF VIOLENCE

Subsequently to [the incident report prepared by Ms Walker] it has been verbally reported to me that the National Crimes (sic) Authority (NCA) has engaged the above-name (sic) in interview this morning on the reasonable belief that the above-named may have been involved in an armed robbery in New South Wales, that he may have 'skipped bail', and that a Bench Warrant remains for his arrest. This is consistent with observation made in respect of the tattoos on the detainee's arms indicative of involvement in gang or organised criminal groups.

If this reasonable belief is to be accepted, this clearly represents a serious violent predisposition.

In accordance (sic) the MSI, the detainee should be placed into a state prison or other institution where there are more adequate and appropriate facilities for custody and/or treatment than in an Immigration detention centre.

2 DETAINEE WITH A HISTORY OF DRUG OFFENCES

The detainee has admitted to having been incarcerated in NSW and to having withdrawn from heroin unassisted during that time. The detainee has made repeated demands for methedone (sic) treatment in the PEIDC, based upon the rationale that a friend of his was supplied with the substitute drug during his period of incarceration.

Based upon further repeated questioning, with increasing intensity, about ACM response to the potential for him to become ill, ACM has, I consider reasonably in the circumstances, drawn the conclusion that the propensity for the detainee to make himself ill, in order to achieve a stated end of escape, is significant. The sum of the detainee's enquiries on this subject indicate that he may be seeking to be placed into a hospital or place other than the PEIDC which is not secure.

In accordance (sic) the MSI, the detainee should be placed into a state prison or other institution where there are more adequate and appropriate facilities for custody and/or treatment than in an Immigration detention centre.

3 ESCAPE (ATTEMPTED OR UNSUCCESSFUL)

Subsequent to [the incident report prepared by Ms Walker], yet to be confirmed in further Follow-up Report, is that the detainee has now openly stated to another detainee that he intends to escape from the PEIDC, and that he would engage any method to do so 'including using his own bare hands if necessary'. This threat is considered very real if indeed the detainee is an escapee from bail and, also, where the detainee has the history of violence and illicit drug use as indicated.

Neither the physical parameters of the PEIDC nor the particular circumstances requiring static guarding outside the PEIDC and separation detention within, are conducive to providing the necessary level of security to prevent this real threat to escape. This real threat represents a significant management issue, particularly at this time.

On balance of this set of circumstances, I do not consider that a strong warning to the detainee would be the preferable option to relocating the detainee into the prison system."

On the basis of those matters, Mr Smith made the following recommendation:

"RECOMMENDATION

I recommend that:

1 you authorise the transfer of the detainee to a prison;

At this time, I am seeking to negotiate with the Ministry of Justice at Casuarina Prison (which appears to be the only one with capacity at this time) to accept the detainee if you authorise the transfer.

2 the detainee be advised, in accordance with the MSI, as to the reason for transfer; and

3 a regime of review of the detainee's case management be established in accordance with the requirements of the MSI."

It appears, from a handwritten annotation at the foot of Mr Smith's memorandum, that Mr Hart's Follow Up Incident Report of 30 July 1999 was received after Mr Smith's memorandum had been prepared and submitted to Mr Williams. It further appears from that annotation that Mr Williams had regard to Mr Hart's report.

Mr Williams apparently authorised the transfer and in doing so made the following comment (which appears in handwriting above his signature under the heading "Comments"):

"I am satisfied that the most appropriate place of detention is in a state prison."

5.1.3 Notice of transfer dated 30 July 1999

By this document, Mr Smith apparently gave the complainant notice that he was to be transferred to the Prison. He advised the complainant that the reasons for transfer were as follows:

"1 You are a detainee with a history of violence.

You have admitted to criminal activity for which you have been incarcerated, which clearly represents a violent predisposition.

2 You are a detainee with a history of drug use.

You have admitted to being a user of an illicit substance, heroin.

3 You are a detainee who has indicated that he will employ any method available to him to escape from the Detention Centre.

Because of your criminal background and your threats of escape, I find that your detention cannot be managed in the low security environment of the Perth Immigration Detention Centre."

5.1.4 Minute dated 6 August 1999

This minute, prepared by Mr Smith,

records the outcome of a review of the complainant's place of detention. In the minute, Mr Smith stated:

"In respect of:

PHAM Quoc Hung

also known as HA Duc Anh,

who was transferred from the Perth Immigration Detention Centre on 30 July 1999, I am able to report the following in regard to his behaviour:

That, although the detainee claims to have maintained good behaviour within the Prison, he continues to represent a security risk for return transfer to the Perth Immigration Detention Centre.

The detainee claims, against significant evidence to the contrary, that he did not admit to criminal behaviour, that he was not previously incarcerated in Australia, and that he did not make any attempt to escape from the Centre. Notwithstanding the latter, the detainee does not claim to deny having indicated that he would escape.

I am satisfied that the balance of the evidence is that the above-named continues to represent a security risk to the Centre and recommend to you, the Detention Review Officer, that his immigration detention continue in the Prison."

Mr Williams apparently accepted that recommendation.

5.1.5 Minute dated 20 September 1999

This minute, prepared by Mr Smith, records the outcome of a further review of the complainant's place of detention. In the minute, Mr Smith stated:

"In respect of:

PHAM Quoc Hung

also known as HA Duc Anh,

who was transferred from the Perth Immigration Detention Centre on 30 July 1999, I am able to report the following.

Monthly review of the above-named's detention was not able to be undertaken on 6 September due to my absence for that week. The review has been combined with another visit to the Prison.

On Wednesday 15 September 1999, Compliance Officer-in-Charge Mick Cain visited the above-named in Casuarina Prison, principally in connection with issues for removal. During the course of this process, Mr Cain made observation (sic) in respect of the above-named's dealing with detention in a prison facility and in respect of the above-named's demeanour.

The detainee raised no issues of concern in respect of his treatment in the facility. Whilst again, the detainee claims to have maintained good behaviour within the Prison, I estimate that he continues to represent a security risk for return transfer to the Perth Immigration Detention Centre (IDC).

There is no change to the fact that the detention of the above-named in the low security environment of the Perth IDC would run contrary to the purpose of the facility being to accommodate persons whose immigration status is unlawful rather than persons with a criminal history. Mr Pham has a criminal background, still does not admit to criminal behaviour, and has been previously incarcerated in Australia. On balance of this, I am not prepared to accept any assurance from him that he would not attempt to escape from the Centre as he had stated when he was there.

Despite previous communications with him, Mr Pham has failed to make any effort to secure his departure from Australia. As OIC Compliance has now initiated removal action, I consider the impetus for the above-named to act upon his previous threat to escape from the Centre, were he to be returned there, augmented.

I am satisfied that the balance of the evidence is that the above-named continues to represent a security risk to the Centre and recommend to you, the Detention Review Officer, that his immigration detention continue in the Prison."

Again, that recommendation appears to have been accepted by Mr Williams.

5.1.6 Minute dated 4 November 1999

This minute, prepared by Mr Smith, records the outcome of a further review of the complainant's place of detention. In the minute, Mr Smith stated:

"In respect of:

PHAM Quoc Hung

also known as HA Duc Anh,

1 who was transferred from the Perth Immigration Detention Centre on 30 July 1999;

2 whose five-day review was conducted on 6 August 1999; and

3 whose one-monthly review was conducted on 20 September 1999;

I am able to report the following.

Two-monthly review of the above-named's detention was not able to be undertaken by me on 20 October due to my absence. The temporary incumbent of the Business Manager (Detention) position was able to pay a belated visit to the detainee on 28 October in connection with this matter.

The Officer reported that the above-named's demeanour was pleasant and that he remained critical of the Department in allegedly not securing his removal from Australia in a timely fashion. The detainee raised no issues of concern in respect of his treatment in the facility. Whilst again, the detainee may claim to have maintained good behaviour within the Prison, I estimate that the Prison environment is one which he must be responsive to in that regard, and that he continues to represent a security risk for return transfer to the Perth Immigration Detention Centre (IDC).

There is no change to the fact that the detention of the above-named in the low security environment of the Perth IDC would run contrary to the purpose of the facility being to accommodate persons whose immigration status is unlawful rather than persons with a criminal history. Mr Pham has a criminal background and has been previously incarcerated in Australia. On balance of this, and the nature of his criticism of the Department, I should not be prepared to accept any assurance, were it to again to be offered by him, that he would not attempt to escape from the Centre as he had stated when he was there.

(I point out that it was due to Mr Pham's failure to make any effort to secure his departure from Australia that OIC Compliance initiated removal action).

I am satisfied that the balance of the evidence is that the above-named continues to represent a security risk to the Centre and recommend to you, the Detention Review Officer, that his immigration detention continue in the Prison."

Again, that recommendation was accepted by Mr Williams.

5.1.7 Minute dated 7 December 1999

This minute, prepared by Mr Smith, records the outcome of a further review of the complainant's place of detention. In the minute, Mr Smith stated:

"In respect of:

PHAM Quoc Hung also known as HA Duc Anh,

1 who was transferred from the Perth Immigration Detention Centre on 30 July 1999;

2 whose five-day review was conducted on 6 August 1999;

3 whose first monthly review was conducted on 20 September 1999; and

4 whose second monthly review was conducted on 4 November 1999;

I am able to report the following:

During the course of communications with the detainee over the month, the above-named's demeanour has remained pleasant but critical of the Department in allegedly not securing his removal from Australia in a timely fashion - an issue which has been addressed repeatedly with the detainee.

The detainee has continued to raise no issues of concern in respect of his treatment in the prison facility, and is satisfied to be engaging in work in the complex. Whilst the detainee may claim to have maintained good behaviour within the Prison, again I estimate that the Prison environment is one which he must be responsive to in that regard, and that he continues to represent a security risk for return transfer to the Perth Immigration Detention Centre (IDC).

There remains no change to the fact that the detention of the above-named in the low security environment of the Perth IDC would run contrary to the purpose of the facility being to accommodate persons whose immigration status is unlawful rather than persons with a criminal history. Mr Pham has a criminal background and has been previously incarcerated in Australia.

On balance of this, and the nature of his criticism of the Department, I should not be prepared to accept any assurance, were it to again to be offered by him, that he would not attempt to escape from the Centre as he had stated when he was there.

(I point out that it was due to Mr Pham's failure to make any effort to secure his departure from Australia that OIC Compliance initiated removal action).

I am satisfied that the balance of the evidence is that the above-named continues to represent a security risk to the Centre and recommend to you, the Detention Review Officer, that his immigration detention continue in the Prison."

The decision maker this time appears to have been Ms Paula Kansky (Acting State Director and delegated detention review officer). Ms Kansky appears to have accepted Mr Smith's recommendation.

5.2 Additional material provided by DIMIA

The respondent subsequently provided further documentary material, primarily composed of documents recording or relating to communications between DIMIA and the New South Wales (NSW) and Western Australian (WA) Police Services. I discuss that material in further detail in section 11 below.

5.3 Material prepared by the WA Ombudsman

As noted above, I have, in addition to the material supplied by the complainant and the respondent, had regard to material prepared by the WA Ombudsman (which was also considered by Commissioner Sidoti - see section 3 of the Preliminary Report). That material appeared in the Annual Report prepared by the WA Ombudsman for the year ending June 1999, which included the following section dealing with conditions at the Prison:

"Casuarina Prison riot and lock-down

On Christmas Day 1998 a sizeable proportion of the prisoner population at Casuarina maximum security prison (reportedly in the order of 200 prisoners) rioted, resulting in injury to a number of prison officers and prisoners and serious damage to prison buildings. As a result a lock-down period began that, in varying degrees of intensity, has continued for the majority of the prison population.

Introduced on the basis that the prison was no longer secure internally or safe for prison staff and to allow for repairs and security upgrades to be made, the lock-down regime initially required that prisoners spend up to 23 hours each day in their cells. In approximately the middle of the year that was amended to 21 hours each day. Time out of cells only allowed prisoners access to the confined common area immediately outside their cells (an area of approximately 3m x 20m). They were not permitted in the wing recreation areas except to use the telephone and generally only leave the unit buildings for visits. Those who could leave the units for work or education for part of the day (most of the prison industries and educational facilities operated at minimum levels) were similarly confined for the part of the day that they were back in their units.

On my most recent visit to the prison (in August 1999) I spoke with prisoners in several units who all wanted, essentially, the same things - namely the opportunity to get out of the units for some of the day to work and to "get some sunshine". At that time many prisoners had not had exercise, sunshine, work or recreation for in excess of eight months. Part of the security upgrade required that "yards" be constructed outside each unit building (the prison has an open campus style layout) and the Ministry has maintained the position that until these are completed it is not possible to permit greater time out of the cells or time out of the units. Indications at the time of my visit were that the completion of the yards was still some way off.

As a result of my visit I had a number of concerns about the situation at Casuarina in terms of both the current functioning of the prison and what might occur in the future. Underlying these concerns was my long-held concern about the need for a high degree of positive interaction between prisoners and prison staff of all types if the concept of unit management is to have any real meaning. My observations at Casuarina left me with a significant sense of unease about the future culture of the prison. This unease was that once the "yards" were in place and operating, not only would there be physical barriers between prisoners and prison staff but also attitudinal barriers that have been allowed to develop because of the lock-down regime - of such a nature and magnitude that the kind of positive interaction that is desirable will not be possible to the necessary degree.

Despite assurances from prison administration that steps were being taken to avoid this situation arising, I raised my concerns with the Director-General. I indicated to him that my observation of certain aspects of prison management left me unconvinced with the assurances, in particular that after eight months little had really been done to "normalise" the prison or to take what seemed to be fairly obvious steps to improve the regime.

I pointed out several of my observations:

  • the lock-down regime applied to all prisoners whether or not they were suspected of any involvement in the Christmas Day riot; it included prisoners who were not even in the prison at the time;
  • significant numbers of prison officers were seen present in the units without any apparent duties which involved engagement with prisoners and who seemed in the main to be occupied in a "watching" role;
  • no good reason had been advanced for not allowing prisoners to access the wing recreation areas given the presence of these officers or for not engaging officers in managing prisoners in small groups out of the units for attendance at education, work or recreation.

I expressed the opinion that the continuing restrictive regime at Casuarina was unduly punitive despite the circumstances from which it had arisen and in terms of prisoner/prison officer relations it was not conducive to future unit management. I recommended that there should be an immediate abandonment of most aspects of the present lock-down regime and that a concerted effort be made to get prisoners out of their cells and out of the unit buildings. I also expressed my concerns about the possible impact the lock-down might have on the physical and mental well-being of individual prisoners given the nature of the regime and the length of time that it had been in place, particularly as the overcrowding situation means that many prisoners are locked up for most of each day sharing a cell designed for one person. I was surprised that in such circumstances there had been no apparent overall assessment made from a health and future management perspective to determine the extent of the impact on prisoners, their families and prison staff.

Many other persons and groups with an interest in prisoner welfare have expressed somewhat similar concerns. I certainly do not underestimate the traumatic effect of the Christmas Day riot on some prison officers and, indeed, some prisoners. Likewise, I do not underestimate the task the Ministry had to confront in returning the prison to normality and making it secure against future such incidents. Nevertheless, the continuation of the lock-down regime, even in modified form, seemed to auger badly for the future management of the prison along unit management lines (which assumes a high degree of positive interaction between prisoners and prison officers).

The Director General of the Ministry assured me that great efforts were, and would continue to be, made to ensure that the management of the prison was based on positive interaction between prisoners and prison officers. Shortly after my views were conveyed to the Director General steps were taken to increase work and education opportunities at Casuarina and for prisoners to leave the unit buildings for recreation. Regardless of whether or not those changes or their timing were influenced by my involvement, they were positive steps.

I will continue to monitor the situation."

6. Conciliation

As the complainant had been deported from Australia and his whereabouts were unknown, Commissioner Sidoti was of the view that conciliation was not possible.

7. Preliminary findings of Commissioner Sidoti

In a notice dated 11 July 2000 (referred to hereafter as Commissioner Sidoti's "Preliminary Findings", a copy of which appears in Appendix B [4]), Commissioner Sidoti formed the preliminary view that the alleged acts or practices were inconsistent with or contrary to human rights, stating at paragraphs 5-8:

"5. ICCPR article 10.2(a) requires that, except in "exceptional circumstances" an unconvicted person be segregated from convicted persons. Article 10.2(a) also requires that an unconvicted person be subject to "separate treatment appropriate to their status" as an unconvicted person. I am of the preliminary view that in Mr Ha's case, there were not "exceptional circumstances" which left DIMA with no alternative but to detain him at Casuarina Prison. I am of the view that DIMA has not established that there were no other detention facilities in Australia in which Mr Ha could be detained and kept segregated from convicted prisoners. Therefore, I am of the preliminary view that DIMA's action in detaining Mr Ha with convicted prisoners breached his human rights under article 10.2(a).

6. I am also of the view that the conditions under which Mr Ha was detained, including being held a maximum security prison where he was subject to a highly restrictive regime of being locked up in a cell for up to 22 hours a day, was inappropriate for his status as an unconvicted prisoner. Therefore, I am of the preliminary view that the detention conditions imposed by DIMA also breached Mr Ha's human rights under article 10.2(a).

7. I am also of the view that being subject to these conditions for such a prolonged period was inhumane treatment for any detainee, convicted or unconvicted. Therefore, I am of the preliminary view that the detention conditions imposed by DIMA also breached Mr Ha's human rights under article 10.1.

8. Overall, I am of the preliminary view that DIMA's actions in detaining Mr Ha at Casuarina Prison from 20 July 1999 until around 15 December 1999 were inconsistent with and contrary to his human rights under ICCPR article 10."

As regards the allegation that the complainant was denied legal assistance to challenge his detention and denied an application form to apply for a bridging visa, Commissioner Sidoti found that that aspect of the complainant's complaint was lacking in substance and discontinued his inquiry into that aspect of the complainant's complaint (see letter to DIMIA dated 11 July 2000 enclosing the Preliminary Notice, which also appears in Appendix B). I accept that Commissioner Sidoti was correct in adopting that course and do not further consider that aspect of the complainant's complaint.

8. Response to Commissioner Sidoti's preliminary findings

In the letter of 11 July 2000, Commissioner Sidoti invited the respondent to make submissions orally or in writing or both in relation to the alleged acts or practices. On 23 August 2000, Mr William Farmer of DIMIA forwarded the following further submissions:

"My response to the preliminary finding that DIMA's actions in detaining Mr Ha at Casuarina Prison from 20 July 1999 to 15 December 1999 were inconsistent with and contrary to his human rights under ICCPR Article 10 is as follows.
The reasons for Mr Ha's detention in the Perth IDC and subsequent transfer to Casuarina Prison prior to his removal from Australia were detailed in two letters to Mr Sidoti dated 10 November 1999 and 9 March 2000. In brief, the grounds for transfer were:

Migration Series Instruction 244 (MS1 244) (a copy of which was included in the DIMA response of 9 March 2000) deals with the circumstances and procedures in which an immigration detainee may be transferred to a state prison from an IDC. It was developed in conjunction with the Ombudsman's office. It seeks to cover the transfer of immigration detainees to state correctional facilities where they cannot adequately be detained at an IDC.

Transfer to a state prison or other institution can only be authorised by delegated DIMA officers who are senior immigration officials. They also undertake reviews of such transfers on a regular basis. Guidance on circumstances which may warrant transfer are incorporated in MSI 244.

Both DIMA and Australasian Correctional Management Pty. Ltd. (ACM), as the detention services provider, have a responsibility to ensure that the security and good order of immigration detention facilities is maintained.

As immigration detention facilities are low security environments, there are occasions when it is inappropriate to hold immigration detainees in these facilities due to their criminal or behavioural profile. I stress that the reasons for such transfers vary in each case and are not restricted to criminal behaviour but may relate to other concerns such as the risk to the detainee involved and to other detainees and staff at the IDCs.

DIMA's concerns also focus on the safety of the community at large given the low security environment of the detention facilities and the heightened possibility of escape by high risk detainees.