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Thursday, 20 August 2009
Page: 8590

Mr GEORGIOU (11:00 AM) —I rise to speak on the third and final report of the Joint Standing Committee on Migration in its inquiry into immigration detention, Immigration detention in Australia: Facilities, services and transparency. I have written a dissent to the report, as I have a number of concerns with it, and I will speak to them now. The first concern is the committee’s repeated failure to adequately address in its reports the issue of the detention of children at immigration detention facilities both in Australia and offshore. The second is the lack of a recommendation in this report regarding the establishment of an immigration detention health review commission. The third is the inadequacy of the committee’s recommendations on improving transparency.

The issue of children being detained in immigration detention facilities has been raised on many occasions. It has not been effectively addressed in the committee’s reports. This report is no exception. According to the latest publicly available Department of Immigration and Citizenship figures, as of 24 July 2009 there were 78 children in immigration detention, only 26 of whom were living in the community on residency determinations, four being held in immigration residential housing and 48 being held in what is described as ‘Alternative temporary detention in the community (Christmas Island) and the mainland’. The notion of ‘alternative temporary detention’ is nowhere defined.

In its submission to the inquiry, the Australian Human Rights Commission raised significant concerns about the detention of children in immigration residential housing and in transit accommodation. The evidence has not been addressed in this or any of the other committee reports. In relation to residential housing, the commission stated:

It is important to recognise that IRH facilities are still closed facilities, and a mix of detainees with different needs, and detention experiences, may all be contained in the same facility.

It goes on:

HREOC has been aware of several cases where children and families have been detained in IRH facilities for a significant period of time.

It goes on:

While the IRH facilities are significantly better than the IDCs, they are still a closed detention facility and, for children and their families, are inappropriate for anything but the briefest of periods.

The commission says it must be made crystal clear that both immigration residential housing and transit accommodation are closed environments. It needs to be made clear that detainees are monitored by guards and they are not able to freely come and go, and that applies to the children.

In this report before us, there are no detailed descriptions of security arrangements in operation at immigration residential housing and transit accommodation. Indeed, a failing of the report is its failure to provide detailed factual descriptions of security and infrastructure in the immigration detention facilities. When information from DIAC regarding security infrastructure was requested by the committee, insufficient time was allowed for its provision before the report was completed. In the end, I am afraid that the committee sacrificed the inclusion of substantive and highly relevant material in order to meet the requirements arbitrarily imposed by reporting time frames that were not related to reality and were too tight to allow important material to be included.

The third report makes mention of the detention of children on Christmas Island. The report records that on 29 May 2009 at what the committee designates as ‘construction camp immigration detention centre’ there were 18 female children and 43 male children detained. The report makes no comment about the suitability of the construction camp for the detention of children. With regard to its consideration of the detention facilities on Christmas Island, the report is, as elsewhere, inadequate in its representation of the concerns of the Australian Human Rights Commission. It does not, for example, include the Human Rights Commission’s opinion:

DIAC classifies the construction camp as ‘alternative temporary detention in the community.’ The Commission is of the view that this is not accurate. The construction camp is not community based accommodation; it is a facility being specifically used as a place of immigration detention.

Also not included is a reference to the commission’s recommendation:

Children should not be held in immigration detention on Christmas Island. However, if DIAC intends to continue this practice, children should be accommodated with their family members in DIAC’s community based accommodation.

The end of the quote is this:

They should not be detained at the construction camp facility, the Phosphate Hill IDC or the new Christmas Island IDC.

While nothing is said of this matter in the majority report, my dissenting report recommends:

Children and their families should not be held in any immigration detention facility either onshore or offshore.

Madam Deputy Speaker, you would recollect that in 2005 the Howard government implemented significant reforms, including reforms to ensure the release of children and their families from immigration detention. This principle was passed by the parliament and introduced into the Migration Act, in accordance with international law:

… a minor shall only be detained as a measure of last resort.

In July 2005 all children and their families were released from immigration detention through a mechanism known as a ‘residence determination’. Current reports that children are now being detained in immigration residential housing for extended periods and that so many children are being held at the construction camp immigration detention centre on Christmas Island are deeply troubling because they seem to indicate a regression, despite the government’s claims that it is strengthening the protection of children. I am concerned that a new tolerance of the detention of children in facilities, euphemistically described as ‘alternative’ and ‘family style’ facilities, is emerging. This tolerance is apparent in the government and the department of immigration and, I believe, is in this committee’s report, which blurs the distinction which had formerly divided incarceration in immigration detention facilities from residence determinations, where people are free to come and go.

The health, particularly the mental health, of immigration detainees is widely recognised as a critical area of concern. The provision of health services is an area in which the department of immigration has been shown repeatedly, and often in the courts, to have failed in its duty of care. The report, in fairness to it, cites a large volume of evidence expressing concern about the adequacy of both physical and mental health services being provided to detainees. Evidence was provided by the community and such authorities as the Commonwealth Ombudsman, the Refugee Council of Australia, the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors and the Australia Psychological Society.

In 2005, in a report that was a landmark report and that managed to shock even people who thought themselves unshockable, the Palmer inquiry into the unlawful detention of Cornelia Rau identified serious deficiencies in the immigration department’s provision of health services to detainees. The report concluded:

… the delivery of adequate and appropriate health care for immigration detainees, and their welfare in general, need to be safeguarded by continuous oversight by an independent, external review body …

To achieve this, the Palmer inquiry recommended:

… the Minister for Immigration establish an Immigration Detention Health Review Commission as an independent body under the Commonwealth Ombudsman’s legislation to carry out independent external reviews of health and medical services provided to immigration detainees and of their welfare.

The Palmer inquiry recommended this immigration detention health review commission be empowered:

… to initiate reviews and audits of health care standards and the welfare of detainees.

It said it needed to be:

… appropriately staffed and resourced, with a core of experienced people with relevant skills …

In the course of the committee’s inquiries it was revealed that this major recommendation put forward by Palmer was never implemented. DIAC has confirmed that a decision was instead made to establish the Detention Health Advisory Group. At the inquiry hearings, Professor Harry Minas, the chair of this committee, told the committee that the Detention Health Advisory Group was not set up to discharge the responsibilities of the immigration detention health review commission as recommended by Palmer. Professor Minas advised the committee that DeHAG was only an advisory body. It had no role in monitoring the welfare of detainees and no statutory right of entry to detention facilities. It was not independent; it was not statutory; it could not gain access as a right. Professor Minas told the committee that the Palmer recommendation:

… has not been implemented and it is our—


view that such a body remains essential.

When the Commonwealth Ombudsman was questioned about the fact that his office had not taken up the role as intended by Palmer, he told the committee that he had at the time expressed concerns about the capacity of his office to undertake that role. However, in testimony before the committee he added:

… if this Committee or the government proposes that a function of that kind should be located in the Ombudsman’s office then I will take a very open minded view of the need for the function and how it can be sensibly located within the office.

Unfortunately, despite the failure of the implementation of Palmer, despite the openness of the Commonwealth Ombudsman to re-examine the situation and despite the copious evidence provided in the committee report about the ongoing problems in the delivery of health services, the committee chose not to recommend that the Palmer recommendation be implemented.

One of the problems with governments is that there is a deep trench between the intention to act and the implementation of action. Had it been known before this committee’s hearings, and especially after the Palmer report was originally brought down, that a fundamental recommendation had not been implemented by bureaucratic agreement, there would have been outrage. I express that outrage now. I believe that the Australian government should redress past failings by implementing Palmer recommendation 6.11 and establishing an immigration detention health committee.

Finally, regarding transparency, I reiterate the view articulated in the dissenting report to the committee’s first report presented by me, Dr Alan Eggleston and Senator Sarah Hanson-Young. Judicial review of detention decisions is the only reliable mechanism for ensuring independent and effective oversight of detention decisions. There is one thing that the sad history of detention of people seeking refuge in this country has demonstrated: if you create closed institutions and you do not subject them to external scrutiny—and external judicial scrutiny—then inevitably abuses will arise. I am concerned that we have ameliorated the situation significantly but have still left the fundamental conditions under which it is possible for abuses to arise and to go unchecked.