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Legal and Constitutional Affairs Legislation Committee

COLEMAN, Ms Misha, Executive Officer, Australian Churches Refugee Taskforce

CURR, Ms Pamela, Detention Rights Advocate, Asylum Seeker Resource Centre

DALE, Ms Sarah, Solicitor, Refugee Advice and Casework Service

JEGASOTHY, Reverend John, Board Member, Australian Churches Refugee Taskforce

MARTIN-IVERSON, Ms Victoria, Spokesperson, Refugee Rights Action Network

POWER, Mr Paul, Chief Executive Officer, Refugee Council of Australia


CHAIR: I call back to order the Senate Legal and Constitutional Affairs Legislation Committee, dealing today with the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. I welcome representatives from the Refugee Council of Australia, the Refugee Advice and Casework Service, the Australian Churches Refugee Taskforce, the Asylum Seeker Resource Centre and the Refugee Rights Action Network. Thank you for your submissions, which we have numbered for our records 27, 20, 14, 26 and 21. I appreciate you taking the time to assist the committee. As you know, these are proceedings of the federal parliament and parliamentary privilege applies. We have given you some information about parliamentary privilege so that you are aware of that. I invite you all to make a short opening statement and then we will ask some questions. If you want to make any amendments or alterations to your statements, that can be done now as well. If there is anything that you want to say that you think should be said in confidence, you should raise that with the committee and we can talk about hearings in camera.

As you can see, the proceedings are being broadcast by A-PAC. I should mention to you that, as you can see, the proceedings are being broadcast by A-PAC. They are normally broadcast live on the parliamentary web, but today we have A-PAC. It has nothing to do with the committee or with parliament; they have sought permission to be here and we have agreed to that, subject to none of you having any objection to that. If anyone has any objection, please raise that and we will deal with it. With silence, I will take that as an agreement. I will invite you all to make a short opening statement, then we will ask questions.

Ms Dale : Good afternoon senators. My name is Sarah Dale, and I am a solicitor with the Refugee Advice and Casework Service in Sydney, more commonly known as RACS. RACS provides expert legal assistance and advice to asylum seekers in Australia who are seeking protection. Relevant to this hearing today, RACS has extensive experience of visiting clients and working with clients who are or who have been in the detention network. Over the past 12 months we have had a specific focus on assisting children in detention, having visited Christmas Island, Darwin and Brisbane detention centres. Today we are here to confirm our view that the bill should not be accepted in its current form.

RACS is deeply concerned by the affirmation of increased use of force against detainees, particularly in light of the finding of the Human Rights Commission that excessive force was used against unaccompanied minors in their transfer from Charlie to Bravo compound in March 2014. RACS continues to be alarmed by the reports as tendered in earlier submissions today of particular guards who will be granted such powers who share the views of Reclaim Australia, and anti-Islamic sentiments. We also note IHMS's submission which noted that, in the majority of cases, the current powers have been sufficient to meet their needs. Today we echo the recommendations put forward by the Australian Human Rights Commission. I do not intend today to continue to provide commentary on the broad interpretation of reasonable force, nor the undefinable test of good faith, as has been discussed earlier by our sector colleagues. RACS is deeply concerned by the lack of definition of the scope of power in this bill, and we put forward that legislative measures should be made to limit such force. The detention service manuals detail protocols, procedures and reporting mechanisms, as well as special considerations that ought to be addressed. We would argue that in the legislation of force so too should these safeguards be legislated. We note our concerns about the limited training often received by officers who will be authorised to use such force. We note our concerns that the department themselves have identified that, whilst raising the powers to that of police, the training will not be comparative to that received by police. We also note that there are already MOUs signed between the Australian Federal Police, local police and detention centres.

In light of the submissions already made, RACS wishes to focus on two key issues that remain unaddressed. Firstly, the definition of 'detention facilities' is particularly broad and includes alternate places of detention, as well as community detention. Asylum seekers who are placed in such care arrangements have been identified as vulnerable, and protections for this cohort ought to be considered. We are troubled by the lack of safeguards and limitations on the exercise of power upon vulnerable persons, and would strongly encourage the inclusion of protective measures for vulnerable persons such as children and people with significant mental illness or disabilities. RACS has made a series of other recommendations noting our concerns surrounding the lack of transparent or enforceable complaints procedures with regard to the use of force amongst others. Due to the time limitations on today we would ask the committee to strongly considers all other recommendations and, again, we echo the recommendations put forward by the Australian Human Rights Commission. We thank you for providing us with this opportunity.

Ms Martin-Iverson : Hello. My name is Victoria Martin-Iverson, and I am with the Refugee Rights Action Network in Perth. We provide ongoing advocacy and support for persons in immigration detention. Members of our group enter the immigration detention network on an almost daily basis and are in constant communication many times every day with persons who are, in fact, so detained.

We also wish to put forward our strong objections and concerns about the implications of this bill and the extraordinary powers that it is going to give to Serco officers. We witness firsthand the problems that currently exist with the arbitrary exercise of power and abuse within the detention network and within our detention centres. We see firsthand the issues with training and recruitment. Recruitment is something that has not really been mentioned. Mr Charles commented a little earlier that, from the news reports, he could see that the situation within immigration detention was explosive and unpleasant. As someone who goes into these places on at least a weekly basis, I can assure you that that is in fact the case.

It is important to note couple of things. Firstly, Serco officers are not merely guarding people by providing security; they are involved in the constant and continual management of people and the interference of family relations. That power and authority is exercised arbitrarily not just on a daily or weekly basis but on a minute-to-minute basis. Our concerns around training and recruitment are as follows: the primary issue currently facing persons in immigration detention is the degradation of mental health. I am someone who has worked in mental health and who has witnessed firsthand the mental health of perfectly ordinary, normal persons with no mental health issues become degraded by their experience in immigration detention. Part of that is due to the systemic problems and the violence inherent in the way that immigration detention is structured. Part of that has to do with the nature of the interactions with departmental staff and Serco officers. We know that at the moment Serco officers have up to six months to get any form of training at all. When they do get training, they may get as little as four hours training on mental health. We are now in a situation where the majority of people in immigration detention have severely degraded mental health. The staff have no capacity currently to deal with it. This bill will be gifting them with the power and authority to utilise force to deal with what are essentially severe mental health problems.

The other issue we have is the environment of increasing violence within some of our detention centres because of the large number of 501s or compliance cases, some of whom are violent criminals who have been moved into the immigration detention network. Out at Yongah Hill we have seen threats of rape. We have had allegations of rape by some of the 501s against asylum seekers. We have a facility in Perth—the Perth Immigration Detention Centre—where male 501s, some of whom are convicted rapists, are held in exactly the same facility as vulnerable female asylum seekers, including on one occasion a woman with severe intellectual disability who was regularly exposing herself. It took us several months to get her out of that environment. Also out at Yongah Hill we had a 501 from New Zealand who beat and put into a coma an asylum seeker. This creates a background of violence that Serco officers are currently not trained to deal with. The use of force and the arbitrary use of force in these environments will continue to degrade the situation and simply increase the level of violence and hostility.

We already see and bear direct witness to the racism and anti-Muslim sentiment that is expressed by many guards and the calls from people in extremist right-wing organisations for their members to get jobs in detention centres so that they have the ability specifically to abuse asylum seekers. The disgraceful and abhorrent racist, Islamophobic views you see reported in the media are the tip of the iceberg. I put this to you: from what I witness when I go into detention facilities, if that is how officers behave in front of me, what are they doing when I am not there?

From what I witness when I go into detention facilities, if that is how officers behave in front of me, what are they doing when we are not there?

CHAIR: Ms Martin-Iverson, for those who might be listening to this, can you tell us what a 501 is?

Ms Martin-Iverson : A 501 is a person whose right to live in the Australian community has been revoked because they have committed a criminal offence. They might be here on a 457 work visa, a tourist visa or even a permanent residency visa. They can be from virtually any country—the UK, New Zealand et cetera. After their term of imprisonment in a correctional facility, they are moved into an immigration facility. It is at that point that their deportation proceedings are commenced. They are then mixing with the asylum-seeker population and bringing with them, unfortunately, many of the same sorts of behavioural issues that exist within the prison: they bring drugs, they bring alcohol, they bring violence. The SERCO officers are not prison officers; they are not trained to deal with that population. At Yongah Hill, almost a third of the population now is in that 501 category, and at times people can spend as long as or longer in immigration detention than they did in prison.

CHAIR: That is waiting for—

Ms Martin-Iverson : Deportation.

CHAIR: deportation.

Ms Martin-Iverson : They are all people who have a deportation notice hanging over them. This is where your bikies and your rapists and murderers who are noncitizens are, and they are on a removal pathway.

CHAIR: Do they normally contest the deportation? Is that why they are there for so long?

Ms Martin-Iverson : It is common to contest the deportation, but it is important to note that, even in cases where they do not contest the deportation, they may still sit in an immigration detention facility for a considerable period of time because none of the deportation proceedings are commenced until they are released from the correctional facility.

Asylum seekers who maybe hold up a banner saying 'freedom' or climb up on a roof are currently allowed to be held in correctional facilities without charge or trial. We currently have a group in Casuarina maximum-security prison in solitary confinement, not charged with any crime. I put it to you that there are alternatives open to the government besides mixing those populations.

CHAIR: Why are they there?

Ms Martin-Iverson : Punishment.

Ms Curr : Because they protested while in detention.

Ms Martin-Iverson : Punishment. They are there for punishment.

CHAIR: Okay. Who is next?

Ms Curr : We have some similar problems, although those in the west are far worse. My role at the Asylum Seeker Resource Centre is that of detention rights advocate. I am also a person designated by the immigration department as able to take people out of detention, without guards, on excursions, just to lighten their lives for a little while.

What I wanted to bring to you today are my observations as a person who goes into detention centres but also a bit of clarification, because I think most Australians think that everybody in immigration detention is an asylum seeker, and that is not so. The current population is very mixed. As Victoria said, there was a time when it was half and half: 200 ex-prisoners and 200 asylum seekers in Yongah Hill. Eighty asylum seekers were then airlifted to Darwin for their own safety because the department was not able to keep them safe. We had a similar situation in Maribyrnong, which you would have read about. Everyone thinks, 'Oh, yes, detention centres—that's the asylum seekers.' It is not at all. In Maribyrnong you had around 50 people who had come out of the prison system—and I am not saying that every ex-prisoner is a violent, frightening person; that is not so. But in November last year a bill was passed that provided for the cancellation of visas, and one unintended consequence of that legislation has been a sixfold increase in the number of ex-prisoners in immigration detention centres. Because, as Victoria said, the numbers have blown out, I believe the department is working on a prison-to-plane plan.

This is not a forum to discuss the rights or wrongs of the cancellation of visas. Many of these people have been here in our country since they were children, but that is another matter. For the moment, I would like to draw your attention to the numbers that Fairfax dug out of the immigration department. You can see that for the three years from July 2011 to July 2014, 372 visas were cancelled. From December to February 2014-15, three months, 203 visas have been cancelled, and the numbers are growing. So what you have in detention centres is a group of highly volatile, angry men who were expecting to go home to their lives and their families after completing a prison sentence but who have wound up in immigration detention centres instead.

If we look at the rationale given by the minister for the good order bill, he talks about the number of detainees who present 'behavioural challenges', but it is not made clear that it is the problem of the ex-prisoners in the detention centre that is precipitating a lot of the current discussion around behavioural challenges in detention. He talked about the people with adverse security assessments. I visit regularly—these are called ASIO, the ASIO adverse security assessments—and we still have around 30 people in the MITA, which is a low security detention environment. In no way is it high security. I can tell you there is no more compliant a population than those people on these adverse security assessments, so this bill is not designed to do anything to them because there is no need.

There is also a mention of others deemed to be a 'high security risk', such as outlaw motorcycle gangs. I do not know whether it is a crime in every state to be a member of such a gang, but there has been no evidence or reason why we are going to fill immigration detention centres with outlaw motorcycle gangs—I do not know why.

CHAIR: I would assume it is outlaw motorcycle gang members who have breached some immigration law.

Ms Curr : But there must be a plan to have a substantial number that we would pass legislation and particularly identify them? And then we have people who are alleged to have—

CHAIR: That is not your experience, you are saying?

Ms Curr : We certainly do not see—

Senator LINES: They are only outlawed in Queensland, aren't they?

Ms Curr : Look, in Maribyrnong certainly a large percentage of the population of the so-called 501s are young men from New Zealand. It is not a problem to send them home, but for some reason it takes an inordinately long time and there are problems created in the centre. We have seen two young boys, just 18—two little, skinny Tamil boys—having to be moved. They were flown right across Australia to Yongah Hill for their own safety, because it could not be guaranteed they would be safe in the Maribyrnong detention centre.

My concern is that we are talking about legislation that is predicated on what? Certainly, if you look at the other populations in detention, we have groups of people now, because there has been no processing—there has been an absolute 'go slow' on processing—who are refugee cleared and security cleared, and yet they still sit in our detention centres. We have air arrivals—

CHAIR: Why is that do you think?

Ms Curr : Because the minister is not minded to sign them out. The minister is the only one who has the power—

CHAIR: He wants to keep them here?

Ms Curr : This is a question that entertains us all. On top of that—

CHAIR: I am sure it entertains the minister too.

Ms Curr : Yes. I would love it if you would take it to him.

CHAIR: I will.

Ms Curr : We have seen air arrivals now routinely kept in detention for two years. We have just had three people, after two years, released on temporary protection visas. The other two for some reason cannot get the TPV, although they are eligible—they are refugee cleared, security cleared—so they are going to get a bridging visa. So we have a population of people who have been in long-term detention for reasons that are right outside the Migration Act. Obviously we are trying to entertain lawyers into looking at these questions because it seems grossly unfair. The adverse security people: a young bloke who was in detention for five years on a Serco adverse security assessment was cleared last year, and yet it took another five months to release him from detention into the community. Why? Detention has become a default position.

CHAIR: We will ask the department that later. I would assume, with the huge number of arrivals in recent years, the department was simply overwhelmed. But we will ask the department.

Ms Curr : The last group, and the most critical group, are those people transferred down from Manus and Nauru. This is perhaps who the bill is primarily looking at. We saw last night the absolute, abject terror and fear for a group of families who were being sent back to Nauru, including a woman with a three-month-old baby and a pregnant woman. A lot of force was used and a lot of assets were used in Darwin to force then onto a plane to send them back to Nauru. That is outside the purview of this bill, but my concern is that this legislation is designed to harm the most vulnerable of all people.

CHAIR: Designed to harm them? So the government has specifically set out to harm these sorts of people? Is that what you are saying?

Ms Curr : I believe you said recently, Senator, that it is clear the government wants to deter people from coming here and to deter people seeking asylum. The guards at the MITA in Broadmeadows are in a very different category. I have been to these detention centres. I have been to Yongah Hill. They are reasonable people on the whole—kindly, even; middle aged; often not the fittest specimens of Australians but doing a decent job as best they can within a harsh system. We have seen a complete change in the last few months: young men, muscles rippling out of their t-shirts, covered in tattoos, shaved heads and terrifying. They would terrify me on a dark night. There is an absolute culture change, and what is going to happen is that Border Force will come in, in two to three months, and take over detention, and this legislation will become an umbrella under which they can operate in ways that not too many Australians will be proud of. I will leave it there.

CHAIR: Thank you, Ms Curr. Who is next? Ms Coleman.

Ms Coleman : Thank you. I am the Executive Officer of the Churches Refugee Taskforce and I am here with my colleague, Reverend John Jegasothy. We have got some concrete proposals to take this debate forward today, after listening to the evidence this morning. By way of introduction, we have 541 member entities in the task force. On behalf of those entities, we do not believe that this bill should proceed. We do not believe it is necessary and we hope that the committee will reject it out of hand.

As it stands in paragraph 52 in the explanatory memorandum, the bill basically seems to allow private security guards to inflict grievous bodily harm, including death, on asylum seekers and detainees, with legal immunity. We believe there is far too much force currently being used in the detention centres. Father Jegasothy is a visiting chaplain at Villawood; he will give you some examples. But you yourself said, Senator Macdonald, when we were talking about the guard who used a baton to hit a child in a mother's arms, that it might have been bad aim. I am sorry: if he was aiming for the mother, that is not acceptable either.

CHAIR: I think I acknowledged that.

Ms Coleman : Thank you. Our overarching request today is that the committee ask the department to provide some more detail. Mr Dutton, in his second reading speech, talked about the risk mitigation measures and the governance controls that are supposedly being prepared. The department, in section 2.4 of their submission, say that this would be done down the track. But these controls do need to be documented, spelt out and put into the legislation before parliament is asked to vote on it.

In the meantime we have proposed some amendments, on page 7 of our submission, about when force should and should not be used, and that is to provide the clarity that Serco had been seeking. With regard to the training requirements—you were talking about this this morning—we believe that the training should be akin to what is required in the respective jurisdictions for corrective services officers. For example, here in New South Wales, the corrective services officers have to complete an intensive, nine-week, full-time course prior to even being able to get a job. They also have to sit psychological and medical assessments to see if they are up to it. I am happy to send you the links to those requirements.

We have also made recommendations in our submission and drafted some amendments around the need for independent monitoring, oversight of private contractors and a much better complaints mechanism, on page 8. We are quite perplexed as to why you would want to give the secretary of the department the opportunity to effectively police himself. You are basically giving him the ability to decide whether to investigate a complaint made by staff that his department has essentially contracted through the security arrangements. We have also made suggestions around this whole section 197BF, which ideally should be removed altogether. The proposal is to give guards and the Commonwealth immunity from legal action, but it seems to give them more protection than we give even our own police officers. The Australian Federal Police have protection from legal action in the course of their duties, but the Commonwealth still remains liable. That is section 64B of the Australian Federal Police Act 1979. New South Wales, Queensland and Victoria also have legislation that still renders the state liable while protecting those individual police officers. So why would you have these detention centre guards having greater immunity and greater protections than our state and federal police bodies do?

I would also like to raise the question about community detention. It is quite unclear, in the bill as it stands, whether officers who are in a community detention model would also be allowed to use this force, if you like. The distinctions between APODs and detention centres have been removed in this bill, so if you imagine, in a community detention model, you have got different levels of staff, contracted staff, basically in residential care situations. If they are authorised to use this level of force, you imagine what would happen if teenagers in a house kick a footy through the window and it breaks, and the provider gets angry and decides to use some force, and then the police come. In that scenario, the residential care worker could have more ability to use force and more legal immunity to do that than the police officer who arrives on the scene. So I think this question about community detention and whether that falls under this legislation really needs to be clarified by the department.

Finally, I think that the problem you are fix with this bill could be fixed without giving guards more protection to use force. The problem, as Pamela said, is the changing demographic in the centres. In June 2014, three per cent of the detention population had had their visas cancelled. These are not the overstayers; these are visa cancellations. In March that was up to 26 per cent. So you have got a very different culture in those centres. If you had the asylum seeker population in community detention instead of this held, indefinite mandatory detention, these facilities could deal with what they deem as higher risk or more violent scenarios in a way that does not further persecute asylum seekers. Another one of the justifications for the bill is to stop people suiciding and self-harming. Again, you could reduce people wanting to kill themselves by getting them out of held mandatory detention—especially people who have been in detention for more than five years, or six years in some cases, in Villawood.

I wanted to ask how we can ensure that the ability to use force will not be abused. One of the provisions that the minister highlighted in his speech was around the issue of the officer not being allowed to impose indignity.

My colleague, Reverend John Jegasothy, is going to give you a couple of examples of where indignities are regularly inflicted, and I cannot imagine how you would prove or disprove an indignity in the way that the minister described in his second reading speech. Thank you very much.

CHAIR: Thank you. Reverend?

Rev. Jegasothy : Thank you for the opportunity. I have a few examples. Some are recent ones, but some are over the years. I have been visiting detention centres for 20 years, so I have a few historical facts there in my record. I will start with the recent ones. This might look sort of trivial, but for the asylum seekers it was pretty serious.

Only last week, Friday last week, one of the Tamil detainees was redetained because of the code. He was to go out to get a scan—it was a medical appointment—and, as he went to meet with the officers, they brought handcuffs to put on him. He said, 'I am not a criminal and I am not going to wear these.' He walked back home to his house. I met him the same day and he told me what happened.

I met another guy who was treated the same way the previous week. He got very angry and he kicked a few chairs, and the officers did not handcuff him but took him to the medical appointment. This makes a person feel very small and dehumanised. And they are not criminals. They have been sort of looked at as criminals. As it has already been said—the causes why it is happening like that. This is something that has been going on and perhaps we did not hear about it because they are Tamil guys. I look after Tamil guys so I was able to find out.

A few years ago, two little boys were playing with or using the computer in the housing area, SIRH, and the officer for some reason plucked the mouse out of their hand, reprimanded them and chased them to their house, back to their mother. The two boys are not there anymore. They are with their stepfather, and they are doing fantastically well in school at the moment. But, while they were there, they were very sad boys; for three months or more they refused to go to school because of the different treatment they got in the school—and getting into the van to go to the school with the officers.

You would have come to know about a young chap who has been there for the sixth year now. He has serious mental illness. At the moment he is in the hospital in Liverpool. One day he did something to antagonise the officers. He got onto a pile of something and stood there and would not come down. They brought him down, put him down, put his hands behind him and sat on him with their knees on him. The brother was there but could not help. The brother begged them to stop doing it. But I think the officers did not know where they were going—the excessive power they thought they had, even at that time. This happened about three years ago.

The story of another boy was that there was a random check in the room. This is also his sixth year at SIRH, and when he said, 'Why did you come? Why didn't you tell me you were coming into the room?', they took it as an aggressive act, dragged him out of the room and searched him all over his body. In the process they pulled his trousers down and, inadvertently or deliberately, made this guy very upset and angry. And he still lives with it. He is in the other section. They do not want to stay in that place any more.

This goes back a long time ago. I do not know if people remember; it was sometime in late 1990s or early 2000s, some of the Islamic people got into a hunger strike and they were in a large room. The riot squad was brought in. In the night, at two o'clock in the morning, they started banging the door, keeping them awake. Early in the morning they broke open, went inside, handcuffed all 60 of them and, ironically, they gave food for them to eat when they were handcuffed. They all refused to eat, and they were put in vans and taken to Woomera and Port Hedland—this might be the beginning of Woomera's problem. We know the problem of what happened in Woomera and the violence that took place there. The guys who went to Port Hedland were also in trouble because some group burned one block, and they wanted to find out where they would sleep that night. When they knocked at the door the officers came out all of a sudden, caught them by the belt and put their hands behind them and twisted their hands, then took them to Juliet block and kept them there for one week as punishment, just for knocking to find out where they were sleeping that night. We took the matter up; after one week I came to nobody because they rang me every day. I used to look out for them from here. John Clausen, the lawyer from Amnesty, helped me and he came to the parliament—I have the whole document at home, piles of papers—to ask for compensation for what they did.

In my experience I have seen that the people are so vulnerable—they cannot question much, and even if they complain they do not get any proper answers. There is a culture of protecting each other among the officers, and this is happening in almost every area that I have come across. I will leave it there, but if you want any more I will provide it.

CHAIR: Thank you, Reverend. We are here to hear your views on the bill, but I have to say in passing to all of these individual cases that you raise—and I accept your good faith and your ability—that I am sure that if the officers involved were here they would give, in some cases, a different view of the things that you have been relating. They may say why they were doing that. Of course, we do not have them here and they are not on trial here. That is not the role of this committee. But I feel compelled to make that point—that it is sometimes inappropriate to make all these suggestions without ever having the other person give their side of the story, and I am sure they have a story. Maybe it is just a story.

Senator LINES: To be fair, we did ask Serco to come and they refused.

CHAIR: These would be individuals that I am talking about, going back a long period of time. Mr Power, did you have a statement?

Mr Power : My name is Paul Power and I am the Chief Executive Officer of the Refugee Council of Australia. We have outlined in our submission our concerns, which really mirror what you have heard from this panel just now, and also points raised in earlier sessions about the lack of limitations on the use of force, the lack of protection for vulnerable people, the oversight and complaints mechanism, which really disturbs us. It is very similar in many ways to the immigration assessments authority that the government is setting up for rejected asylum claims under this new Resolving the Asylum Legacy Caseload Act, where the department of immigration makes decisions about which of its negative decisions get reviewed. We have got a similar process where the head of the department decides whether or not to investigate actions for which his department is responsible.

I think our most fundamental concern is really about the direction of government policy and the replication of the mistakes of the past. In 2004 and 2005 we had the Palmer and Comrie inquiries into aspects of Australia's immigration detention system, because the detention system was treating people who were being detained in such a way that there were all sorts of issues which needed to be resolved to offer even the most basic protection and procedural fairness for people in the detention system. The further we go down the track of using indefinite detention, using detention in many situations where it is clearly not necessary and in giving people working within the detention system almost unlimited capacity to use whatever force they deem necessary, the more we increase the likelihood of the problems that we have seen in the past recurring. These will be issues that will rebound against whoever is in government at the time. There has been a huge change in the personnel in the Department of Immigration and Border Protection, particularly over the last six months, and many of the lessons that were learned eight, nine or 10 years ago by the department have also gone with the people who have left. It is, unfortunately, not a surprise to us that we are seeing this legislation and other pieces of legislation coming up as the culture of the department changes.

Immigration detention is meant to be administrative detention, and what we are seeing is that it is being grossly overused. We have 1,848 people in locked detention in Australia and another 1,700 in detention arrangements in the Pacific, and the average length of time is 13 months. We cannot see the justification, even if they are people who are convicted criminals who are on their way out of the country, for so many people—for close to 2,000 people—to be held for an average of 13 months. Inevitably, when that occurs you end up with a lack of good order in detention. In other words, the system is actually creating the lack of good order, because we know, and we have learnt so many times over the last 15 years, that if you want disorderly detention centres you leave large numbers of people locked up in difficult circumstances with no information about when they will be released and no real rationale for why they are being held for such long periods of time.

CHAIR: I know your organisation is in close contact with the government all the time, but how do you address those things? The department and the government of the day—whoever it is—do not deliberately set out to hold people in detention for 13 months if they can ship them back to where they came from if they are not otherwise lawfully meant to be in Australia.

Mr Power : I am not suggesting that the department is going out of its way to harm people, but often the more extreme answers, or the answers which involve longer detention, are the easiest ones to grab for, and I think the classic example would be the situation of refugees who have been found by ASIO to have adverse security assessments. There are any number of alternatives available to government, including the use of control orders, the use of community detention, the use of supervised release into the community.

CHAIR: That depends on the sort of assessment that ASIO has given.

Senator HANSON-YOUNG: ASIO does not say how they have to be treated.

Mr Power : The ASIO Act does not require that to be—

CHAIR: That would surely indicate to someone the reason for it.

Ms Curr : They are still sitting there.

CHAIR: That is a different question.

Mr Power : At the heart of our response to this legislation, we cannot see the justification for it. We also see the need for the government to put as much scrutiny as possible on the Department of Immigration and Border Protection about its overuse of detention because the problems rebound on the government and on the entire nation as we see a breakdown in order within detention which is related to its overuse. It was Senator Lines's predecessor in the Senate, Senator Chris Evans, who released the New Directions in Detention principles in 2008, which unfortunately were never legislated but which say clearly that detention should be used as a last resort. It is administrative detention. We need to look at what alternatives are available, and Australia has amongst the most clearly and well developed alternatives to detention and, in fact, has had since the period that Amanda Vanstone was minister: community detention; release into the community on bridging visas; and, in cases where there are adverse security assessments, any number of options available, in relation to our ASIO supervisors, to Australian citizens with some form of adverse assessment. So our fundamental concern is that, rather than looking at how administrative detention can be used only when it is required and how alternatives to detention can be used wherever practically possible, we are actually heading in the opposite direction: giving greater power to people who are supervising people in detention to use force whenever necessary. We are unfortunately quite sure, based on past experience, that we are going to see greater issues, more trouble within detention and more public scandals about the inappropriate use of force in the future, because we have seen it happen in the past.

CHAIR: Thanks, Mr Power. Can I ask all of you: would some form of separation of various classes of inmates address some of the issues that most of you have raised?

Ms Curr : Certainly. Mixing an ex-prison population with vulnerable asylum seekers is not a good idea. It has never been a good idea. But now it has blown up in everyone's face because of the numbers. That is one thing. And why are we holding families and children, still? We have still got two babies and parents in detention in Broadmeadows. Why? Those children have learnt to walk in detention. Serco will not let them—

CHAIR: I cannot answer the question, but I am sure the department could if we had all day to ask for specifics. There must be a reason. I do not know what it is—

Ms Curr : Actually, it is very easy to blame the department. I have great faith in our local Victorian Immigration people.

CHAIR: So you are suggesting that it is the government that is keeping these two babies—

Ms Curr : It goes to Canberra, and something happens in Canberra. The submissions go to Canberra. They are written in good faith—

CHAIR: So you think the minister wants to keep these babies in detention?

Ms Curr : The minister may not even know, because his minders may not be putting the submissions before him.

CHAIR: Yes, okay. Right.

Ms Curr : But the fact is: there is a blockage. There is a young man who has been sitting in detention for years. He has been to court. First of all, he was found guilty. A barrister took the thing on appeal and said: 'There is no evidence.' And he said: 'Well, I did not do it.' They were going back to court on the Monday in Perth. He was in Melbourne. They were going to fly him out on Friday night. They changed their minds. They called him up and they said: 'It's okay; the matter's been dropped.'

CHAIR: Well, look—

Ms Curr : He is still in detention!

CHAIR: I cannot, and I am not here to, answer for the government.

Ms Curr : I know, but you have a voice back to the minister, and maybe you can take back—

CHAIR: I am sure if I take every case to the minister—

Ms Curr : No, the system—it is a system problem.

CHAIR: Oh well; okay.

Ms Martin-Iverson : You have asked a question, Chair, and I would like to give my answer to it and that is: I think there are some problems that we are currently experiencing within the detention environment which would be ameliorated by separating the populations, and I put it to you that under no circumstances, ever, should convicted rapists and asylum-seeker women who are trauma survivors or who have an intellectual disability be held in the same facility where they mix during the day.

CHAIR: Well, thanks for that. I take your point—

Ms Martin-Iverson : So we need to deal with that.

CHAIR: and I will put that to the department, who are listening to this. So, please, Department, make a note of that, in case I forget.

Ms Martin-Iverson : That sort of thing should not be happening.

CHAIR: I will try and find out why that is happening.

Ms Martin-Iverson : It happens at PIDC.

CHAIR: What is PIDC?

Ms Martin-Iverson : Perth Immigration Detention Centre—the one out at the airport currently under renovation. But it has been a feature of that detention centre for years that those populations are mixed—

CHAIR: Okay; let us see if we can find out about that.

Ms Martin-Iverson : The second question is: what is an appropriate mechanism for dealing with vulnerable people in detention who may, on occasion—as Ms Triggs said earlier—present with some behavioural issues and stressors that someone needs to deal with. At the moment, what is happening is that Serco officers, who do not have mental health training and who are not experienced in de-escalation techniques, are using violence and aggression, handcuffing people, and putting them in solitary confinement in management units on Christmas Island or in prisons where they are held without charge or trial, rather than applying a mental health framework, which is not done in detention. So—

CHAIR: Well, again—

Ms Martin-Iverson : that is something else that really needs to be looked at.

CHAIR: It is not germane to the bill, but—

Senator HANSON-YOUNG: It is.

Ms Martin-Iverson : It is.

Senator HANSON-YOUNG: It is about behaviour management. Restoring good order would—

CHAIR: Just excuse me, Senator Hanson-Young; I do not like you interrupting.

Senator HANSON-YOUNG: Well, I do not like you taking up all the time.

CHAIR: We can stay as long as you like.

Ms Martin-Iverson : The whole purpose, the whole conceit behind the introduction of this bill is that there are behavioural and management problems in detention that need to be managed. If that is the conceit of the bill, then we need to look at, as Mr Powers has said, what is causing the problems. It is long-term detention—

CHAIR: You are on APEC so you have made your point; thank you for that. Again, we can ask the department. It is not directly germane to the bill but we will ask the department to see if there is something that as a result of this hearing we might be able to assist with. I appreciate that.

Ms Martin-Iverson : As an alternative to the use of force.

CHAIR: Is there anyone else who would like to have—

Ms Coleman : I would like to say that the answer to your question is, yes, that separation would—

CHAIR: A better separation.

Ms Coleman : I guess what I was trying to say before is that Australia is one of the few countries that keeps people in detention while they are processing their asylum-seeker claims. If you had asylum seekers in the community, including the 124 kids who are currently in detention, you would not need to have specially designed facilities. You would have asylum seekers in the community and people who are in different circumstances would be in the detention facility. I think that is the answer to this question about separating people.

CHAIR: That is a policy issue for the government, and—

Ms Coleman : Yes, exactly.

CHAIR: there is a reason. There was an uncontrollable influx of people to our country—

Ms Coleman : Yes, but going forward—

CHAIR: and the government has reacted to community concern. It is not for me to debate with you, it is simply for me and the committee to listen.

Rev. Jegasothy : In Villawood there is a section called Blaxland. It is stage 1, a high-security area. That is where some of the people are brought who have criminal offences and also those who are being prepared for deportation. So there is a section. Then there is an area of less security. There are two or three stages in the main area and they have built this new place—and still the buildings are going on.

The whole idea is to bring all these people of different security levels, whether they are high or low, to one area from morning to night, to have activities, to have food and to create a culture so that everyone belongs to a community. But this particular issue can cause more problems or disrupt the whole thing. They are going to be from different houses or buildings but they will be coming together. There is no way you can stop them, unless you take the cafeteria back to their barracks.

The idea is fine, to separate them so that excessive force to protect us can be applied to some sections with detainees. Others who are vulnerable, who are asylum seekers, are kept in safe places.

Ms Dale : Chair, if I may respond to your question—


Ms Dale : I note that you do not want to get into the policy or how we treat asylum seekers when they arrive, so I will—

CHAIR: My role is to chair a committee dealing with this particular bill.

Ms Dale : That is fine, but if I can get to my point.

CHAIR: There is a lot of evidence that has been given that is—

Ms Dale : Sure. I would like to get to my point though, which is that—

CHAIR: I just want to make sure that there is a semblance of balance in the fact that just because you get your photo taken with a particular person that suddenly makes you bad. That is not, to my way of thinking, the Australian way.

Ms Dale : Sure. My point was going to be that you asked us a question as to whether separation would be preferred. RACS will always maintain the policy that we oppose indefinite mandatory detention for asylum seekers.

CHAIR: Of course.

Ms Dale : We further oppose having children in detention. There should be no children in detention.

CHAIR: The government agrees with you.

Ms Dale : Following your point of separating the areas, I would stress the point that we made in our opening submissions: if you are going to separate people, there need to be protective limits in place for vulnerable people.


Ms Dale : As I stated in my opening submission, detention facilities do include community detention. If we go to section 5 of the definition of the act, it does include those places that have been established for vulnerable persons. Simply moving vulnerable asylum seekers from high-risk candidates is not going to afford them protection under this bill. We need protective limits in place, for vulnerable persons, if this bill needs to be in place.

I further want to mention that I understand the Reverend Jegasothy has given you examples where he believes that excessive force was used.


Ms Dale : I would like to draw you to The forgotten children report, where the Human Rights Commission reported on the transfer of the children from Charlie Compound to Bravo Compound. The Human Rights Commission found that reporting mechanisms were not sufficient, in this example, that the reports provided by Serco were not detailed sufficiently to make a determination. However, Maximus Solutions are there to provide care and foster support for these children in this centre, and they said:

I think force was over-used. Yes I do. I don’t think it was necessary. I think that the whole thing could have been handled very differently from the start.

So we do have examples, Chair, where excessive force has existed and the current law is not providing protections for these vulnerable persons.

CHAIR: That was not my question. My question was, I thought, a simple one: would the situation, which many of you relayed, be slightly better served if—bearing in mind where you all come from—there were a better separation of the categories?

Ms Dale : I do agree with you, if there are protective limits in place in the legislation.

Senator LINES: Reverend, you gave an example—and I think it was a recent example—of where an asylum seeker was handcuffed when being taken to a medical appointment. What code is put in place to allow the handcuffing of an asylum seeker?

Rev. Jegasothy : To my knowledge, there was not any understanding of the asylum seekers or the temporary people to be handcuffed when taken out. To be correct, the first person they took, two weeks ago, refused to wear it. He made a big fuss and they took him without the handcuffs. The next week they tried it on another guy. When they come to my place, to have meals, they are allowed to come two boys with four guards. They come without any handcuffs. This happened only in the last two weeks. It surprised us. It worries the others—they do not want to go for a medical, because they might be handcuffed.

Senator LINES: I am just trying to get to the basis of the use of handcuffs.

Ms Martin-Iverson : It is arbitrary.

Senator LINES: What is the code that allows for the use of handcuffs?

Ms Dale : I would probably refer to the Detention Services Manual. I cannot answer that, off the top of my head, but I would expect that those protocols would be listed in that.

Senator LINES: It is unlawful for a guard in a detention facility to use handcuffs, is that what you are telling me? Just because it is in a manual does not make it lawful.

Ms Dale : No. I could not comment on whether it is lawful or not, but I would expect that those protocols would be detailed in that manual.

Senator LINES: I will ask the department.

Ms Curr : There is certainly a change in the culture, in detention centres, at the moment.

Senator LINES: Yes. How do you think that has come about, Ms Curr?

Ms Curr : Clearly, new guidelines are coming through to Serco offices. From small conversations with officers in Broadmeadows and Maribyrnong show that people are not happy with it. There are some officers saying they are going to leave. They cannot stand it; this is not the way they want to be. There is a clash of cultures.

Senator LINES: Why do think it is a new policy? Sometimes it is a new manager that brings their own people.

Ms Curr : We have seen new management. We are going through, at Broadmeadows, a change in visiting hours. We are now going to have to apply 24 hours in advance to visit one person, to get a two-hour slot, and you have to be escorted by an officer to a numbered chair. It is extraordinary, really, because we have a small number of people and a very large centre. I do not know how it is going to work. This has never been the culture at the MITA. It has been a family-friendly centre, and now that is changing.

Senator LINES: We will ask the department about handcuffing. Ms Dale, are you saying that this proposed bill would apply to community detention? Is that your reading of it?

Ms Dale : That is our understanding. The bill refers to the definition of detention facilities. Under subsection (51) that does include community detention—or, rather, residence determination notices as granted and authorised by the minister. We would feel that it could be interpreted to include it, as such, yes.

Senator LINES: The use of authorised force in community detention.

Ms Dale : That is right.

Rev. Jegasothy : In regard to the new heads, the new head of Serco in Villawood is a very nice lady. If you give her a phone call or send her an email, immediate action will be taken on any matters of discrimination or whatever.

Senator LINES: We should not have to rely on personalities, should we? There should be a clear policy in place.

Rev. Jegasothy : I know. Even the immigration director there is really good. Everyone is happy with that. I do not think the people who work there—many of them are very good. The culture has changed a lot over time and they are friendly and all that. But there are elements who are still holding on, coming with prejudice or racist behaviour. Even our young fellows over the years have said it is about the colour. They have said any white skin is better for the officers. That is how they were so vulnerable, on the one hand—asylum seekers, detainees, illegals—they were the wrong colour.

Senator LINES: Ms Curr, we have seen The Guardian report yesterday or the day before on these eight officers who worked for Wilson's, presumably subcontracted by Transfield, and were stood down. Are you saying that is the type of guard that you are seeing more of across the detention centres?

Ms Curr : I realise that this bill is specifically for onshore Australia, and certainly they were offshore. What the people transferred from Nauru tell me is that many of the Wilson's security guards are ex-Army. They have been fighting in Afghanistan and Iraq. In fact, they ask people, 'Where do you come from?' One young girl in the group with us—there were four of us playing cards—said, 'I come from Iraq.' He said: 'Yes, Iraq. Yeah, they killed my friends, and I killed 30 of them.' I question the state of mind of young men who come home from a war zone and then go off and work in a refugee camp in Nauru. Are they suitable people to be working here? It is a problem.

More recently we have seen examples of detention centres around Australia where there are guards who have clearly racist views, but then there are others who do not. It is a mixed camp. When I went to Scherger I got on a plane—you know those little planes in the country—and there were the guards sitting there saying, 'I kick arse.' I did not know they were guards; but, the next day when I went to Scherger, they were all lined up there. I thought, 'Oh, they're the "I kick arse" people.' People do this job for all sorts of reasons, some of them not necessarily with a human rights framework in mind.

Senator LINES: Thanks.

Senator HANSON-YOUNG: Obviously there is the issue of training of staff in the centres. It has been an ongoing issue for a long time. The joint parliamentary inquiry into Australia's detention network throughout 2011 and 2012 focused very specifically on the training of officers and the management of detention centres as a result of the 2011 riots on Christmas Island, where there were a lot of these questions, particularly from Serco as the contractor at the time, wanting clarification about what their staff could or could not do. One of the recommendations out of that inquiry—and most of your organisations participated in that process—was to ensure that there is clarity for contractors and officers, not just to make it clear but to protect them, as well, as workers to know what is okay and what is not.

What I am concerned about is that the level of training that currently exists is not sufficient, that it has not really changed since that time and that the minimum requirements as outlined by the department and in this legislation's explanatory memorandum are simply what are already the minimum requirements in terms of having a certificate II in security services, which is, as I said earlier today, what you need minimum if you are going to be a nightclub bouncer. You all visit detention centres. You all see that. Can you give us some examples or an understanding as to how you think training at the very least would help overcome some of these issues?

Ms Coleman : Embedded in training is an assessment of a person's ability to work in a certain scenario.

Senator HANSON-YOUNG: A screening type of thing.

Ms Coleman : Yes. It is not just training; it is a process by which you assess somebody's competence or ability to do a certain job. The point about a period of not just training but also assessment prior to somebody starting in a particular context is what is important. That is why, as I said, in the corrective services you have to have this period of training and assessment before you can even apply for the job. Obviously we have seen in Nauru and Manus a whole bunch of incredibly unqualified, ill-equipped people, but here in Australia we should be able to enforce a minimum level of competence. That has to be assessed, and that is why the training required in this context is as much about assessing a person's ability to do the job prior to them starting as it is about giving them manuals, protocols and procedures. So what is really important is the screening not just of somebody's educational qualifications but of their psychological ability to deal with such a high-stress environment.

Ms Martin-Iverson : And governance issues as well, certainly in addition to dramatic improvements in training around dealing with some of the mental health issues that we currently see inside detention and also training just with really basic things like what a refugee is and what is going on in country of origin. We talk about cultural sensitivity being one of the expected qualities that detention centre staff are meant to have. It is in the hiring criteria. And yet you talk to guards who have been working in detention centres for years, and they do not know what a Tamil is or why Tamils are coming here. They do not know what a Hazara is or why Hazara are coming here. They have not got any of the background training to actually understand the population of people they are dealing with.

Add to that the levels of secrecy that exist within the detention environment, where there is little governance and no oversight over what guards do. There is far less oversight than what you see in a prison and there are few statutory bodies that actually have the ability to go in and remediate or to support people through complaints processes that can result in remediation. I found myself in situations where people have reported to me what are essentially criminal offences perpetrated against them, and then I have to go try to get the AFP, which has jurisdiction, involved in trying to get criminal charges filed. When you have an asylum seeker who is your person giving evidence, it is really hard. We were able to successfully do this in one example where the detention centre employee had sent a series of text messages to the person on their phone, so we had evidence of sexual harassment and efforts to trade favours for sex. Normally there is no evidence even for the quite significant assaults by guards we have had people allege. There is no mechanism—

CHAIR: Were they reported to police?

Ms Martin-Iverson : I have reported assaults to police.

CHAIR: No, the texting—

Ms Martin-Iverson : That was reported to the AFP, and I gave a statement to the AFP.

CHAIR: What response have you got?

Ms Martin-Iverson : The employee was dismissed. No criminal charges were filed. The person who made the allegation was moved from the centre they were in back to Christmas Island. So the other thing we find—and we find it consistently, and this is part of the issue with the women on Nauru—with reporting sexual assault is people who report guards are punished. That is part of what I mean by governance and oversight. People who report racist comments by guards, assaults by guards are punished; they are not supported through a complaints process. Often, by the time there is an investigation, the bruises have healed. At times we succeed in getting people compensation by getting compensation lawyers involved when we can substantiate that there has been significant harm, but it is hard.

CHAIR: I am trying to be helpful. In instances that you say people who complained are punished in some way or other, can I suggest that you contact a serious politician and ask—

Ms Martin-Iverson : Do you know any?

CHAIR: No, I do not but it is a self-serving statement. Perhaps ask a sensible member from around the area where it occurred to ask the minister, who will refer it to the department: is it a fact that this person was transferred? If so, why? Is this a penalisation of those who made a complaint? Do that so you can get to the bottom of that. That may help. If it is true and they know that a serious politician is looking at it then you may get some relief. Alternatively, you may get an explanation as to why that has happened, which may be completely unrelated. I just make that suggestion. You all raised some instances. I have found in my long career in politics that if I write to the minister, who will refer it to his department, either they will give an explanation or, alternatively, if they are in the wrong, they will quickly find a way of addressing the wrong.

Ms Coleman : Can I give you an example of where I did that?

CHAIR: Not now. Why don't you write to—

Ms Coleman : I asked the Prime Minister, who I assume you would categorise as a serious politician—

CHAIR: I am not sure—the Prime Minister has a lot of things to do besides dealing with individual migration complaints.

Ms Coleman : I do not know what you mean by serious or not serious—who passed it onto the department. I have given evidence about a rape that occurred. That is still an unresolved scenario. The woman is still in detention and the perpetrator is in the community on a visa. This is on Nauru. It is very difficult to raise—

CHAIR: I do not want to open the floodgates, because I have plenty to do—

Ms Coleman : You sort of invited it, sorry.

CHAIR: Can you write to me whatever you wrote to Mr Abbott?

Ms Coleman : Absolutely.

CHAIR: How long ago was it?

Ms Coleman : Several times but it started towards the end of last year.

CHAIR: Why don't you write to me and I will refer it to the minister. I am sure the minister will give me an answer—it may not satisfy you but it will explain. I am happy to do that, but I do not want that to be taken as a general comment and have people on Twitter saying, 'Flood Macdonald's mailbox,' which I will ignore. In your case I will try to be helpful.

Ms Coleman : Thank you.

CHAIR: I suggest you approach serious politicians in the area and get them not to grandstand and do TV interviews about it but to see the minister and say: 'Here is an issue. Can you find out seriously what went wrong?'

Ms Coleman : We have approached both Liberal Party and National Party serious politicians who have below the radar, behind the scenes, without any media releases done exactly that and there has been no resolution. You would hope that there could be through that mechanism, but I am sorry to say that that is not currently working.

CHAIR: Perhaps again could you give me a couple of instances where you have done that.

Ms Coleman : Yes, definitely.

CHAIR: And again I can see what is wrong. My understanding of Mr Morrison, Mr Dutton and the department, which is made up of very good people—they have been under a lot of stress over the last six years, for obvious reasons—is that most of them will go out of their way to address serious issues that are raised because, quite frankly, neither the minister nor the departmental officials are out there deliberately harming people.

Rev. Jegasothy : To answer Senator Hanson-Young's question, I think you are very correct that we need adequate training for those who are looking after the asylum seekers, particular in the detention centres. I have been on the community consultative group for many years. We meet every three months. We have not met for over six months. I brought this up two years ago or earlier and the answer was that they are trained. I said: 'No. What about the torture and trauma training? What about'—and we were in the sixth year at that time; fourth year or something like that—'the ASIO adverse report?' I quoted all those things and said we need more training and updated training. We need the time to train the people so they will be able to handle the issues that come up.

I brought it up in the asylum seekers interagency with the leadership of Margaret Piper and Dr Graham Thom. We tried to push that. We have not had any proper answer yet. If they are trained properly then they will know exactly what to do and not to use excessive power and to treat people in a humane way and with dignity. If you have the power to move it that way, we would be glad.

CHAIR: Thank you very much your attendance here and for the evidence you have given. We appreciate your time to come and talk to the committee.