THOM, Dr Graham Stephen, Refugee Coordinator, Amnesty International

Evidence was taken via teleconference—

[9:51]

CHAIR: Hello, Dr Thom. I invite you to, if you wish, make a brief opening statement before we start with some questions.

Dr Thom : Thank you. I would like to thank the committee for inviting Amnesty to speak and also for enabling us to put in our submission. I will not make too long an opening statement, given that you have our submission. I just want the reiterate that this inquiry does present a unique opportunity, and we welcome the committee looking at the immigration detention network.

We would like to highlight some of the questions that the Secretary of the Department of Immigration and Citizenship, Andrew Metcalfe, raised at the beginning of this committee—in particular, the question he raised about whether immigration detention is a deterrent. I have spoken at a number of committees in the past that have looked at detention. This is a question that comes up again and again, and I think the simple answer is no. It is not just not a deterrent in Australia. I have had the opportunity to visit detention centres around the world. This year I was able to look at detention centres in the Netherlands. Quite clearly, wherever detention is put in place, it is not a deterrent. The next question the secretary raised was: does immigration detention facilitate case resolution? Again, I think the simple answer to that question is no—especially in the Australian environment, where we have such remote detention centres. I am happy to talk more about that if people would like to ask questions around that.

I think we need to move to a more human rights based approach in this country. Again, as highlighted in our submission, I think it is embarrassing that in recent years Australia has been criticised by a number of UN committees—including the Human Rights Committee and the Committee Against Torture—around the way we practise detention and the way we treat people who come to this country seeking asylum.

We need to start looking at how we can introduce a far more humane approach to detention and how we can legalise and put in procedural safeguards around some of the detention values that the government outlined a number of years ago. With that, I would like to again thank the committee for inviting Amnesty to speak, and I am open to answer any questions.

Mr BANDT: Can you expand a bit more on your overseas experience and the statement that you made in your opening about it not being a deterrent and not affecting processing time. Are there examples that you can point to of alternatives to mandatory detention that are working and that you think particularly should be adopted and that perhaps the committee should look at more closely?

Dr Thom : There are a number of examples out there. No doubt you have seen the submission by the International Detention Coalition, of which Amnesty International Australia is a member. I do not think there is a perfect system anywhere in the world, unfortunately, when it comes to detention. But I think the presumption against detention in most European countries and now more recently statements made in the United States highlight why Australia is so out of step with like-minded countries.

The most recent clear example is the use of community detention here in Australia and the simple fact that people in community detention have access to mobile phones and so are now able to freely communicate with family who are deported but, more importantly, with their lawyers, providing coherent information around their claim. I think that is crucial. Most of the legal practitioners who have seen clients come out of detention and go into community detention would acknowledge just how much better the system works once they are out. That is why most European countries will only detain people very quickly at the beginning to establish health, identity and character and then detain at the end for removal, if that is what is deemed necessary. There is clear legislation in a number of countries, as highlighted in the submission by the International Detention Coalition, to enable people to have their claims looked at efficiently while they are in the community and that is something that Australia should be moving towards.

Mr BANDT: What would be the appropriate conditions to place on someone while they were in the community, and are their international models that you could point to as working successfully?

Dr Thom : There are a number of international models. There are a range of options used. The US is probably one of the strictest, if we are going to look at some of the models, in terms of having electronic tagging as a way to monitor people. I do not necessarily agree that that is the best model, but it provides an example of what can be done as opposed to simple reporting mechanisms. We need to remember that people who are in an asylum process have a very vested interest in engaging with that process. Fears about absconding clearly are not borne out by the statistics in some of the recent research that has been done. Again, it depends on the individual. This is what we have been calling for. Where people are placed and how they are placed, whether it is a reception centre, where you can keep a closer eye on people but they still have the freedom to come and go, or bail conditions, which are used in the UK—again, they try to use a financial disincentive for people to abscond—or what they have in Sweden, which is a far more open system with simple reporting on a regular basis, all those systems can be utilised. Australia already has a range that it can use, from community detention to bridging visas et cetera which would be far more humane and efficient than is the current practice of mandatory detention.

Mr BANDT: I will just jump to another matter. Your submission talks about review of adverse security assessments. I think you talked about the AAT as potentially having a role. Can you explain in a bit of detail how you think that would work? Especially given that we are talking about potentially sensitive issues, how do you see a balancing of the nature of the issues that may be raised versus an applicant's right to appeal and to know what is put against them? How would it work?

Dr Thom : I think this is a fundamental issue in Australia at the moment, because we do have mandatory detention. Regardless of which political party is in power, this is always going to be very difficult because, once ASIO has provided an adverse security assessment, it will be a very brave minister who will decide to release that person into the community. Yet the alternative, as we have seen, is to keep people, including families with children, locked up indefinitely. The damage that is doing is horrendous. We visit one family in Villawood on a regular basis. We watch them disintegrate and watch what is happening to those small children as they go to school and have to explain to their classmates why they are going back to detention and what detention means to kids at school. 'Are your parents bad? Why are they in detention?'

To get to your question, there has to be someone independent as a circuit-breaker for both those people who are being detained and the government. There are a number of alternatives. We need to remember that, if there is an adverse ASIO case against permanent residents and Australian citizens, they can go to the tribunal. We are not asking for something that is out of left field here. We are simply asking for these people, who are in a far more dire circumstance—they are already being locked up and they have been for a number of years—to have the same rights before a tribunal as other people in this country, to be able to point out what is being used against them. What are the claims? How can they defend themselves against accusations when they have absolutely no idea what they are?

Whether we adopt something like the New Zealand model where a retired judge, an eminent person, is able to look at sensitive material, because clearly governments or agencies do not want to highlight where they are getting their sources from—and there are genuine security implications there—when we are talking about the rights of human beings to actually have some idea of why they are being kept indefinitely in detention, there has to be that circuit-breaker there. Given that the AAT already does this for everybody else, it should not be too difficult to tweak the legislation to allow people who have sought asylum in this country to do the same.

Mr BANDT: From both a merits and a procedural fairness point of view, are you satisfied that the current arrangements for other people appearing before the AAT would work in this context?

Dr Thom : I think it can work. I do not want to go on record saying that the system is perfect at the moment, because this is clearly another issue that needs to be looked at. But it is a vast improvement on keeping somebody indefinitely in detention, who has absolutely no idea what is being used against them, where this evidence has come from and what evidence it might be. Some cases we are looking at at the moment involve small numbers of Rohingya Sri Lankan Tamils. We are talking about a conflict that ended 2½ years ago. In one case we are talking about a woman who has been a full-time mother for the last seven or eight years. What sort of risk does that person pose to the community? I think they have a right to have a day in court to find out what evidence is being used against them.

CHAIR: That is the aspect I want to come to. It is one thing to perhaps be successful in these matters and to have the adverse security assessment removed. What do we do with people—let us just say you go through this process—who might be in the situation, as you say, where an assessment has been made, it is maintained and that they are a security threat. When I was representing people in the criminal justice system, people convicted of murder, of paedophilia—you name it—all got defined sentences. They all got an opportunity. In a number of jurisdictions there is a sentence of 'for the term of your natural life' in relation to a number of murders. How do you then deal with someone who, let us say, has that adverse assessment? When is enough enough to release them into the community and how do we do that?

Dr Thom : I think that is, as you say, the next step—and it is a very important one because, once again, you just cannot keep people locked up indefinitely without ever finding them guilty of anything, but at the same time you have to weigh up very real public interest criteria. There are other things that can be used—control orders, electronic tagging, other forms of monitoring that are available and which are used in other circumstances where we have had people who we have deemed to be some sort of risk. That is part of the Australian legislation that has been used and could be used in these circumstances.

I think it is really important for this committee to actually highlight when and how some of those alternatives can and should be used, because otherwise every government that gets elected is going to be faced with the same circumstance and know that, whatever it does, it is going to play out in the media or in public in a way that is just going to paralyse good public policy. And that is what we have seen in this country for a number of years now. Those alternatives do exist already in the legislation and it would be very useful for this committee to highlight how they can be used. At the moment we are stuck with a situation where we cannot return people, because we have made a declaration that they will be killed or seriously harmed if we return them, but we are not able to release them. So we are looking for third countries that are going to take them. Everybody acknowledges: why would Canada, the US, Sweden or anybody else take somebody that our security agency says is some sort of risk? It is a nonsense; we know it is a nonsense. Keeping people locked up while we slowly destroy them is not the solution.

Mr BANDT: On both the system of review and the restrictions and controls et cetera that might be imposed afterwards, you mentioned New Zealand before. Is it your view that in either New Zealand or anywhere else there is something close to an acceptable system? If so, can you tell us about that?

Dr Thom : There are a range of different systems that are used. The New Zealand system is a good one only in that it will be very easy to implement and could be implemented fairly quickly in the Australian context. As I say, it does provide that circuit breaker if it is an eminent person saying: 'I have reviewed the information.' That is the real problem at the moment: there is absolutely no transparency around what information is being used to condemn these people to a life in detention. I think it is a good model, I think it is a workable model and I think it would be one that could be implemented very quickly; but I do think it would be very useful for this committee to look at other models and how the ASIO Act could be amended to allow these people to actually go before the AAT.

Mr BANDT: Are you aware of whether or not the New Zealand system allows the applicant to know the case against them?

Dr Thom : My understanding is that it does not and that it is the eminent person—retired judge or whoever—who is the one who gets to look at the sensitive security information. What they can then do with that information in order to pass some of it on to the individual I think it is up to them. It is certainly not a full disclosure of what the security agency has established, but I think there is some discretion around how that person can make parts of that information known.

Senator HANSON-YOUNG: Dr Thom, you have given us 10 very clear recommendations in your submission, all of which call for fundamental reform of the current system, of course putting time limits on detention and the idea of using detention simply for health and security checks as opposed to the administration of somebody's claim for asylum. Does Amnesty International have a strong view on the length of time that should be mandated? We have heard from other witnesses throughout this inquiry of a 30-day period. Would Amnesty agree with that?

Dr Thom : Amnesty has never come out and set a specific time. We have certainly supported calls by the Refugee Council of Australia and others for a 30-day time limit, because from what we have seen in other countries around the world most checks can clearly be done in that time. Some countries are able to do it quicker than that, and that is why we have never come out and set a specific time. We would hate for people to be held for a couple of extra weeks in European detention centres simply because they think Amnesty thinks it is a good idea. But, joking aside, a 30-day time limit would be something pretty significant for Australia to introduce and would be really important. It would bring us in line with general practice in like-minded countries. But we should be aiming for the shortest period possible. If checks can be done in a couple of days or a couple of weeks, then that is what we should be aiming for. So my concern with stating a time limit is that it is human nature for people to work to a time limit, as opposed to if you are under instructions that this should be done as quickly as possible and if this person does not pose a risk they should be out. That is what we should be going for.

Senator HANSON-YOUNG: Would you agree with the additional recommendation of following some sort of time limit where any detention longer than that period would be reviewable by a court?

Dr Thom : I think that is fundamental. That is where we do need to legislate some of these changes. Again, this is common practice in other parts of the world, so we are not doing something aberrant or unique in providing fundamental rights to human beings. I think allowing people beyond a certain period of time to say, 'Why am I still being locked up?' is normal for a Western liberal democracy based on the rule of law. So we would fundamentally agree that that should be introduced.

Senator HANSON-YOUNG: You mentioned the issue of legislating these things. I guess that is a fundamental difference between a recommendation to set down a mandated time and the government policy we have seen over the last three years of a 90-day period. That clearly blew out, and not just because of the numbers of people in detention. In fact the issue was that when the government introduced the suspension on processing claims that automatically threw out the 90-day period.

Dr Thom : That is right, and I think that is why legislation that sets down a maximum limit is important. As we have highlighted in our submission, we have fundamental concerns with how those suspensions were put in place and why they were put in place. If you are going to keep people in a detention environment during that period then you have to accept that you will face international condemnation for doing that. That is why I agree that maximum time limits need to be legislated and people should be out. If governments want to review country information while people are in the community, they can justify it then. But justifying keeping people locked up while these reviews are done is extremely difficult, given that we know—and I assume you have just heard from Professor Louise Newman—some of the psychological impacts that detention has been causing.

Senator HANSON-YOUNG: Your team does a lot of support in terms of ministerial intervention, trying to deal with people's cases when they get into that bogged down and difficult stage. In your view, do you see that having people in the community while they are having their applications assessed will make it easier to get credible information brought forward by asylum seekers about their cases?

As we travelled around and spoke directly to the detainees and this committee got evidence from them we continued to see a lack of understanding of the process. There is total confusion. It seems that that escalates the longer people are in detention and the worse their mental health state becomes. It directly impedes their ability to give credible information about their case. Has that been your experience?

Dr Thom : The short answer is yes. Quite clearly that is the case, particularly when you have the IAAAS providers having to travel such long distances and then have such short periods of time in which to pull together somebody's evidence. It takes time to create a sense of trust when somebody has faced torture, sexual violence or something else that carries a deep-rooted cultural stigma. To be able to come out to a complete stranger in such a confrontational environment has been really difficult. They are trying to get that evidence out and present it at the different parts of the process. In part this is why we are seeing such huge turnover rates on review. It takes time to develop that trust. That is so much easier in the community. As I said at the very beginning, that is why the IAAAS providers dealing with people now in community detention have found a whole world of difference. For us the practical difficulties of talking to people in Scherger, Curtin and Christmas Island and getting an interpreter lined up are huge. It would be harder to develop a more difficult system than what we have got at the moment. It is not conducive to proper refugee status determination at all.

The other point you raised around the arbitrariness of the way people are treated in detention also needs to be reiterated. It is one thing for parliamentarians or even Amnesty to go to Curtin when in many respects the red carpet is rolled out and we get to see whatever we like. If you go as a visitor and then go back a few months later you will find that suddenly the rules have changed. There will be no explanation of why the rules have changed—how you can visit people and what you can take to those people. This is the daily experience of people in detention. It is completely arbitrary. The lack of communication just festers. The lack of trust with the system completely breaks down to the point where we see people self-harming or destroying property because that is the only way they think they will get some sort of serious attention. Again these are the sorts of things that completely undermine good practice when it comes to processing people who are exercising their right to seek asylum here.

Senator HANSON-YOUNG: Does Amnesty International have any direct comments to make in relation to the detention in adult jails of Indonesian crew who are claiming to be minors?

Dr Thom : It is not something we have commented on publicly recently. When I went to the centres last year I made a point of visiting the crew and the unaccompanied minors in Darwin just because of the number of correspondence we had had with them and their frustration with the system. We do have very real concerns about the fact that minors may be detained in adult centres. There are very clear implications around our obligation under the Convention on the Rights of the Child. How determinations are being made on age is really problematic in this country. Where clear evidence exists from family or the Indonesian authorities that someone is a minor, as we have seen recently, then that child should be sent home immediately. If it establishes that somebody is a minor, Australia is good in returning them. But the fact that we are seeing terminations being made in ways that there are genuine concerns about, and leading, in cases, to children being locked up in very dangerous situations—locking up a child in an adult facility is extremely dangerous—then I think that we do need to review how that is being done.

Senator HANSON-YOUNG: Does Amnesty International have any policies on an international level in relation to the use of the wrist and skull x-rays for age determination, or is that something you have been silent on?

Dr Thom : We have not commented on that. We have left that for other medical experts to comment on more specifically. I think there is evidence out there around that which we would refer the committee to. It is not something that Amnesty International has commented on specifically.

Senator HANSON-YOUNG: One of the concerns that have been raised in various submissions is the detention or incarceration of these people, sometimes for months, without charge. They are not applying for asylum, they are locked in the detention facilities and they actually have not even been charged. Amnesty deals with cases like this in other places in the world—what is your view?

Dr Thom : As I pointed out, it is something that we have concerns about. It is one of the reasons that we have visited those individuals and why we stay in contact with them. The delays are significant and, again, those delays have very real impacts on the mental health and the physical health of those people who are being detained. So we do see this as an important issue and, once again, I think the government needs to look at why those delays are occurring and how it can mitigate against them.

Part of the problem is that when you have a detention network that is looking at thousands of people your ability to focus on particular groups is limited. If proper, clear and efficient procedures can be set up that keep people in detention, if you decide to detain them, for a minimum amount of time and then have other alternatives—and a range of alternatives exists—then you are not going to end up with situations where one group, like the Indonesians, end up for inordinate periods of time in detention. It is unacceptable.

CHAIR: Dr Thom, thank you very much for that evidence. Please feel free, if there is any other material placed before the committee prior to reporting, to put in a supplementary submission, or comment on or clarify anything. Your submissions are most welcome.

Dr Thom : It has been an absolute pleasure. Thanks again for inviting us.

Proceedings suspended from 10:23 to 10:30