Australia’s immigration detention values: Milestones or motherhood statements?

by Allan Asher, Commonwealth and Immigration Ombudsman

Three years ago today, the Australian Government announced major reforms heralding a new fair go for asylum-seekers and other immigration detainees. Australia’s detention policies henceforth would be driven by seven key values reflecting the compassion and tolerance of our community.

In the wake of years of political and public controversy over border control policies, and public inquiries into the scandalous cases of Cornelia Rau and Vivian Alvarez that revealed bureaucratic ineptitude and administrative apathy, the values signalled a paradigm shift to fairer and more transparent processes.

And they were backed by publicly funded systems for processing claims, independent review of decisions, and external scrutiny by the Immigration Ombudsman.

Where, then, have these compassionate, risk-based new policies delivered us?

From an onlooker’s perspective, it might seem, to a landscape of fear and mutual distrust.

Who will ever forget the images of detainees rioting and buildings burning? Who could fail to be disquieted by rooftop protests, families and children in detention, hunger strikes, and angry activists? New dramas unfold weekly on our television screens followed by stage-managed debates about what they mean, but solutions seemingly elude us.

The realities behind this public angst are complex. In 2008, relatively few asylum-seekers arrived by boat and none were held in detention on Christmas Island. By the end of 2010, more than 2,500 people were detained on the Island; more than 6,000 were in detention nationally.

Inevitably, events overtook processes and tensions ran high. Reports of rising frustrations and detainee protests became a fact of daily life. And now, sadly, increasing numbers of detainees are attempting to suicide or harm themselves.

Why is it proving so difficult to achieve the ideals described by the Government’s immigration detention values?

The answer is practical and political. Detention facilities and logistic and administrative arrangements have been overwhelmed by an unpredictable increase in the volume of asylum-seekers arriving by boat. Too many detainees are waiting too long for bureaucrats to process and review their paperwork. And changing policy or direction on any border control issue is fraught with political risk.

Administrative challenges do not, however, justify elasticity in interpreting or applying the detention values to which the Government has committed. It is my responsibility to speak up if that happens.

More than 4,000 people are currently held in Australian immigration detention facilities. Common challenges include delays in finalising protection visas, assessments and decisions; a lack of detailed plans for managing rejected asylum-seekers who can’t be returned to their countries of origin; remoteness of accommodation; poor levels of decision making – evidenced by a high rate of decisions overturned upon review; and physical and mental health problems.

Tensions generated by these issues are exacerbated by uncertainties about Third Party Transfer policies. And events on Christmas Island during the past week or so show that it remains a tinderbox.

I witnessed the deteriorating psychological health of detainees during a visit to Christmas Island in a week in June 2011 when more than 30 incidents of self-harm by people held there were reported. More than 1,100 incidents of threatened or actual self-harm across all places of detention were reported in 2010-11. Fifty-four were reported during the first week of July this year.

There is clearly something fundamentally wrong. We urgently need an evidence-based assessment of the extent and causes of these tragedies in detention facilities relative to the general population, and guidelines and protocols for preventing and managing them.

Today I have announced that my office will investigate fully the circumstances contributing to these behaviours and seek appropriate strategies for turning the situation around.

In the interim, it is incumbent on the Immigration department to ensure that detainees are offered appropriately structured communal activities to give them a reason to get up in the morning, reduce their sense of isolation and maintain contact with reality.

It is my job as Ombudsman to oversight and guide good administrative policy, not to make it. In that context I suggest the time is right for the Government and the agencies managing its detention programs to re-focus on administering humane and risk-based detention practices, never losing sight of their duty of care to detainees, in which the paramount consideration is every detainee’s health and wellbeing.

What do the Government’s seven key immigration detention values really mean today? Are they milestones to a fairer society, or ‘motherhood’ statements overtaken by reality? The challenges associated with immigration detention are unlikely to diminish, so perhaps the time has come to review, clarify and produce new operational guidelines designed to ensure the values can be fully implemented.

I am concerned principally with good public administration.

Our national values and potential for compassion are for the community to decide.

The Australian Government’s seven key immigration detention values are:

  1. Mandatory detention as an essential component of strong border control.
  2. To support the integrity of Australia’s immigration program three groups will be subject to mandatory detention:
    • all unauthorised arrivals, for management of health, identity and security risks to the community;
    • unlawful non-citizens who present unacceptable risks to the community; and
    • unlawful non-citizens who have repeatedly refused to comply with their visa conditions.
  3. Children, including juvenile foreign fishers and, where possible, their families, will not be detained in an immigration detention centre.
  4. Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, will be subject to regular review.
  5. Detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time.
  6. People in detention will be treated fairly and reasonably within the law.
  7. Conditions of detention will ensure the inherent dignity of the human person.

Media contact: Fiona Skivington 0423 845 160

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Date of release: 29 July 2011