In the process of researching material on women in immigration detention, we became aware of how inadequately such services met their own limited stated aims, let alone wider standards of justice and due process. Detainees and advocates described experiences which, measured against the published Immigration Detention Standards, revealed large gaps between the rhetoric and what was happening.
The two damning official reports of July 2005 on major flaws in detention and deportation services confirmed these findings. The Palmer report had wider coverage than the equally devastating critique by the Australian National Audit Office (ANAO) of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) management but both clearly criticised the system and the way it was applied. Presumably it was his awareness of their imminent tabling that induced the Prime Minister in late June to agree to some of the demands of dissident Liberals, particularly moving families with children out of detention facilities.
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Why did the Government act this time when similar issues were raised over twelve months ago by the Human Rights and Equal Opportunity Commission (HREOC) in their report on children in detention? This earlier report and others had been scathing about the risks to children in detention centres so the PM’s belated action needs to be welcomed with caution. The current action indicates the PM has little concern for detainees or the findings of Government instrumentalities but a visceral reaction to media criticism and back bench pressure. The responses are also seriously limited as the PM has not approved any major policy changes, just facilitated the wider use of ministerial discretion. The much criticised system survives, with minor changes perhaps, and, no doubt, new detainees will start to fill up the centres again.
Reading the reports and our own analysis suggests that there are two major problems demanding attention: the lack of effective outside scrutiny and the inadequacy of the standard setting, the contract with Global Solutions Ltd and its enforcement. The continuing problems make it obvious that the limited proposals for change offered by Palmer and the ANAO are unlikely to fix the system because they were not asked to propose policy changes so did not do so.
We would prefer to see the facilities closed but as this is not likely to happen, those enduring detention/deportation processes need to be subject to external scrutiny and competent forms of independent decision making. This requires opening up a closed system that has been shown to put detainees and deportees at unacceptable risks of abuse. Therefore, our first recommendation is that a range of the decisions made about detention, isolation and deportation must be transferred to Federal magistrates and not left with DIMIA officials.
Only the courts should have the power to deprive people of their liberty, deport them or subject them to forms of segregation. Other types of public servants, however well trained and willing, should not have the power to imprison and deport people. This type of provision mirrors other scrutiny such as that for involuntary mental patients and would set procedures for the proposed actions that deprive people of basic human rights. So magistrates should decide on deportations, where safety or identity is an issue, incarceration where identity is not clear, long term behaviour management regimes and other major decisions with legal representation where required and publicly reported.
To shift certain decisions beyond departmental power would require the government to change basic policy. The necessity for such changes is evident if only because the current system dismally failed to identify errors in the cases of the wrongly detained women until they became public. It was only publicity that triggered the inquiries which identified problems: the publicised concerns of other detainees in Cornelia Rau’s case and media tip-offs in Vivian Alvarez Solon’s. There are suggestions of cover ups and we can assume these were not isolated incidents and other detainees were similarly mistreated. This reinforces the need for possible scrutiny by often unwelcomed citizen/media interventions and for a major systems change to make this easier.
Claims by DIMIA that the current system has external checks – such as detainees being able to lodge a complaint with HREOC – are undermined by time delays reported in the last couple of weeks in two other cases. One detainee complaint to HREOC about sexual assault is still at the draft report stage after two years, and a finding of serious abuse of detainees in transit has just emerged nine months after the incident. Those in detention are too vulnerable to wait for such slow attention to their problems, even if they find out how to complain.
These examples of reactions by DIMIA officials to complaints and their inability to identify their own problems make a mockery of assertions that we value the human rights of people in detention. Many of the issues were already known to advocates and the visitors who were our informants when Rau hit the headlines. If a system requires the pressure of public scandal to comply with its stated standards, it is stuffed and requires fixing.
Change must include effective external decision making and scrutiny or the system will continue to use confidentiality to cover up necessary exposure and remedying of wrong doing. Since it was not in their remit, neither the ANAO nor Palmer reports could propose such dramatic change even though this is the logical remedy for their findings.
Any closed system can be mismanaged, even where there is good will and no wrong intentions, but problems are more likely if inmates have been publicly demonised. Add in the mixed messages from political leadership affecting departmental cultures and services outsourced with forms of contract that dissipate accountability because of ineffective official scrutiny, and workplace cultures can go feral. Advocates knew about major dysfunctions in the immigration detention system but they were not listened to. Known problems continued unchecked.
The Government has a long established pattern of ignoring damning reports from ANAO and HREOC, so it is unlikely to act to ensure the latest problems identified will be remedied. There is therefore need to continue pressure, and not assume the problems are over. There are still vulnerable people being detained and more will be admitted. Unless those who carry influence, such as Liberal backbenchers, pressure for real systems change, they will share responsibility for publicly funded injustices that breach stated government intentions.
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