CURRENT ISSUES

Alternatives to detention

PREAMBLE

This document is a humanitarian intervention about the current conditions in immigration detention centres as they apply to asylum seekers. It results from the concerns of a consortium of agencies with expertise in this area and sets out what are considered to be the minimum standards that must govern the operation of the centres.

Support for these minimum standards should not be taken to reflect support for the current policy of mandatory non-reviewable detention of asylum seekers. The Alternative Detention Model reflects our view of an acceptable detention regime.

To facilitate cooperation and dialogue with the detaining authorities on establishing minimum detention standards, this document is based on the Department of Immigration and Multicultural Affairs (DIMA) standards as set out in the Department's Immigration Detention Standards.

PRINCIPLES UNDERLYING CARE AND SECURITY

Immigration detention is prescribed by the Migration Act on unconvicted persons and is not a prison or correctional sentence. Consequently, the treatment of detained asylum seekers must in no way be inferior to the conditions imposed on people convicted on criminal charges.

Ultimate responsibility for the detainees remains with DIMA at all times.

Conditions in detention facilities should conform to Australia's international obligations as set out in the relevant international refugee protection standards and in no way impede the refugee stakes determination process.

The detention authority will ensure asylum seekers are advised, in a language and manner they understand, about the reasons for their detention and their rights, including the right to seek asylum and the right to have access to an interpreter, to independent application advice and to relevant human rights agencies.

Each centre should provide a comprehensive information handbook to detainees within 24 hours of admission. This handbook should advise detainees of all the services available to them, the centre's rules and their rights and entitlements while in detention. Each handbook should be kept up to date and translated into the main community languages spoken by detainees in the centre.

If a detainee is illiterate in their language or speaks a language for which there is no translation of the Handbook, the contents must be conveyed to them orally in a language and manner they understand.

There should be a detention advisory committee at each centre consisting of representatives from DIMA, Australian Correctional Management (ACM), detainees and engaged Non-government Organisations (NGOs).

NGOs are encouraged to work in partnership with the detention authority in promoting the welfare of detainees. The contribution of NGOs to conditions in detention facilities, however, in no way absolves the detaining authorities from responsibility for providing all resources needed to maintain the standards as set out in this document.

SECTION 1. DIGNITY

1.1 Each detainee is to be treated with respect and dignity.

1. 2. Services, facilities, activities and programs must be based on the concept of individual management and designed to meet the and designed to meet the individual needs of detainees having regard to cultural, religious gender issues.

1. 3. All written and oral communication relating to their management and the refugee determination process is to be conveyed in a language the detainee can understand. An interpreter must always be provided for a detainee who does not understand English, when discussing with them matters relating to their management.

SECTION 2 - PRIVACY

2.1 Information about detainees is to be treated in confidence. Information beyond that reasonably required for the detention of the individual and for effective planning and supervision and the management of the detention facility is not to be collected or retained.

2.2 Information from a detainee's file is to be made available to the detainee on request, except where the disclosure of the information can be shown to endanger life or physical safety or is prejudicial to the security or good order of the facility.

2.3 All detainees are to have unimpeded access to and privacy of communication with their legal adviser, family friends and community groups.

2.4 Having regard to legal obligations relating to privacy, confidentiality of the communications of asylum seekers must be respected . Personal correspondence must not be retained on file.

SECTION 3 - SOCIAL INTERACTION

3.1. The right of detainees to receive visitors will be facilitated and encouraged, except where the security and good order of the detention facility would be compromised.

3.2. Detainees must be provided with access to spiritual, religious and cultural activities of significance to them.

3.3. Detainees must be provided with access to materials and facilities for exercise, recreation, cultural expression and intellectual and educational pursuits so as to utilise their time in detention in a constructive and beneficial manner.

3.4. Detainees are to have unlimited access to open air except where the security and good order of the detention facility would be compromised or where the detainee is in isolation. In such cases, supervised exercise periods must be scheduled.

SECTION 4 - SAFETY AND SECURITY

4.1. Commonwealth Government occupational health and safety standards set out inthe Occupational Health and Safety (Commonwealth Employment) Act and itssupporting framework of regulations and codes of practice apply to all detention facilities.

4.2. All reasonable steps must be taken to ensure that detainees, staff and visitors feel safe and secure in the facility and detainees' property is safeguarded.

4.3. Detainees should be prevented from escaping from detention either while within the confines of a detention facility or while outside the facility for a specified purpose.

4.4. Detainees are not to have access to, or be able to manufacture, any implement that could be used as a weapon.

4.5. Staff are to monitor tensions within detention facilities and take action to manage behaviour to forestall the development of disturbances or personal disputes between detainees. If these occur, they are to be dealt with swiftly and fairly to restore security to all in the facility.

4.6. All staff are to do their utmost to maintain the holistic security of the detention facility through the promotion of a stable and harmonious environment.

SECTION 5 - SELECTION AND TRAINING OF PERSONNEL

5.1. All staff are to be and remain, of good character and good conduct and pass a nationalpolice check before appointment.

5.2. The following form part of the minimum set of competencies required of all staff:

5.3. All staff are to have:

5.4. The following elements are to form part of the required knowledge base of all staff:

5.5. The experience and knowledge of UNHCR and NGOs should be utilised in training all staff.

5.6. Staff are to be trained at a level commensurate with their duties to recognise and deal with the symptoms of depression and psychiatric disorders so as to minimise the potential for detainees to do self-harm.

5.7. Medical personnel must have the capacity to recognise, assess and deal with detainees who have suffered torture and trauma.

5.8. Staff are to be regularly assessed against the highest professional standards.

SECTION 6 - PROPERTY

6.1. All money, valuables, clothing and other effects belonging to a detainee which they are not allowed to retain with them in detention are to be itemised and placed in safe custody. Steps are to be taken to keep such items in good condition. An inventory of the property retained is to be signed by the detainee. On release from detention all such articles and money are to be returned to the detainee who must sign a receipt for them.

6.2. Each detainee is to be provided with a secure space to store personal effects.

SECTION 7 - TRANSPORT AND REMOVAL

7.1. When detainees are being transported outside a detention facility, they are to be exposed to public view as little as possible and protected from curiosity and publicity in any form.

7.2. When detainees are outside the detention facility, use of restraint should be commensurate with an assessment of an individual's capacity to abscond.

7.3. Detainees are not be transported in vehicles without adequate ventilation or light, or which would in any way subject them to unnecessary physical hardship.

7.4. Detainees are to be informed of removal, especially from Australia, in sufficient time to contact family and friends so as to inform them of ongoing travel plans and to obtain through their own resources items necessary for onward travel.

7.5. If there are reasons to believe the detainee may be unduly distressed by the be prospect of removal, appropriate professional responses must employed.

SECTION 8 - ACCOMMODATION

8.1. All parts of the facility are to be properly maintained and kept clean at all times.

8.2. Accommodation facilities must ensure an appropriate level of privacy for personal activities.

8.3. Separate facilities must be available for men, women and families.

8.4. Heating and/or cooling appliances must be available.

8.5. Adequate bathing and showering installations are to be provided to enable every detainee to maintain general hygiene by bathing or showering daily at a temperature suitable to the climate.

SECTION 9 - EDUCATION

9.1. The right of minors to have access to education is recognised.

9.2. Educational programs appropriate to the child's age and abilities and respectful of their culture, are to be available to all children in detention.

9.3. Access to English instruction, further education and vocational training is to be provided for adult detainees.

SECTION 10 - DISCIPLINE AND PUNISHMENT

10.1. The rules regulating behaviour should conform to human rights norms and should uphold personal dignity.

10.2. The decision to take disciplinary action must have regard to:
the psychological health of the detainees; and
the detainee's account of events.

10.3. There must be a mechanism whereby the decision to take disciplinary action can be reviewed at the request of any staff member or detainee.

10.4. The types of conduct of the detainee that constitute disciplinary offences during detention, the description and duration of disciplinary punishment that may be inflicted and the authorities competent to impose such punishment shall be specified in writing to detainees in the aforementioned Handbook.

10.5. Collective punishment is not to be used.

10.6. Prolonged solitary confinement, corporal punishment, punishment by placement in a dark cell, reduction of diet, sensory deprivation and all cruel, inhumane or degrading punishments are not to be used.

10.7. When detainees are in solitary confinement for security reasons a qualified medical officer is to visit daily to ensure that continued separation is not having a deleterious effect on physical or mental health.

10.8. In instances where detainees commit a criminal act while in detention and a decision is taken to charge the detainee with a State or Federal offence, there is to be a judicial hearing with the right to legal representation for the detainee charged with the offence.

10.9. No detainee is to be assigned to perform activities as a form of discipline. This is not intended to preclude detainees from voluntarily performing selected activities at the facility for the purpose of earning points to purchase additional items from outside the facility

SECTION 11 - USE OF FORCE

11.1 Staff may use reasonable force only as a last resort to compel a detainee to obeya lawful order. Where such force is used the staff member must report the fact to theDIMA Manager at the detention facility orally within one hour and provide a written incident report within 4 hours unless the staff member's shift finishes before that time in which case a written report is to be provided before the staff member completes the shift.

11.2. Staff are to have the skills and knowledge to enable them to restrain distressed or aggressive detainees. This training must emphasise techniques which allow detainees to be restrained in dignity with minimum force.

11.3. Staff are only to use weaponry approved by DIMA. No staff are to be issued weaponry unless specifically trained in its use. Where weaponry is issued or used it must be reported to the DIMA Manager responsible for the detention facility as specified above.

11.4. Instruments of restraint are only to be used with the permission of the Contractor's Facility Manager as a last resort and to the minimum extent necessary in order to prevent detainees from injuring themselves, or others, or from damaging property.

11.5. Chemical restraints are to be used only under medical or nursing supervision.

11.6. Instruments of restraint such as handcuffs, chains, irons, straight-jackets and chemicals (such as sedatives) are never to be applied as punishment.

11.7. Under no circumstances are children to be held in handcuffs or any other form of mechanical restraint.

11.8. Officers should be aware that the use of greater force than necessary to secure and restrain a detainee, may amount to assault and/or may be actionable under common law.

11.9 Witnesses or parties to incidents where force has been used should not be deported until all legal matters are resolved.

SECTION 12 - COMPLAINTS MECHANISM

12.1. Detainees have the right to comment on or complain about the conditions of detention. Provision is to be made for a detainee to lodge a written complaint in a secure box within the confines of the area of detention.

12.2. The Handbook must contain information on the right to lodge a complaint and details about the authorities, including the Ombudsman and HREOC, to which complaints can be made.

12.3. Unless it is evidently frivolous or groundless, every complaint shall be promptly dealt with and replied to without undue delay.

12.4. The detaining authority must ensure that the complainant is not subject to harassment or victimisation.

12.5. All complaints must be referred to the detention advisory committee.

SECTION 13 - MANAGEMENT OF DETAINEES

13.1 Detainee Records

13.1.1 A permanent register is to be maintained of each person detained in each facility detailing:
the photographic and biometric identity of the detainee
the reasons and authority for detention
the date and time of admission
medical and welfare records
designated next of kin or contact person
dietary requirements and religious beliefs
security assessment
fingerprinting.
13.1.2. DIMA is to have access to and ultimate ownership of all detainee records

13.2. Quarantine and public health requirements

13.2.1. The requirements of the Commonwealth Quarantine Act (1908) are to be met with respect to new detainee arrivals.
13.2.2. In order to meet the requirements of the respective State Public Health Acts, medical examinations are to be carried out within 7 days of the detainee being admitted to the centre and appropriate facilities provided.
13.2.3. Where a detainee is found to have an infectious disease, the detainee is to be treated so as to minimise the possibility of contamination of the detention environment before the detainee is allowed to enter the normal routine of the detention facility.
13.2.4. Detainees isolated for health reasons are to be afforded all rights and privileges which are accorded to other detainees so long as such rights and privileges do not jeopardise the health of others. Any instances of isolation for health reasons in excess of seven days are to be notified to the DIMA manager with supporting medical certification.

13.3. Clothing and Bedding

13.3.1. Where detainees do not have sufficient clothing and underwear, they are to be provided with adequate clothing and footwear suitable for the climate.
13.3.2. Detainees are required to maintain their personal clothing in a state which is clean and fit for use.
13.3.3. Every detainee is to be provided with a separate bed and sufficient bedding, This bedding is to be clean when issued, kept in good order and changed often enough to ensure its cleanliness.

13.4. Health Care Needs.

13.4.1. The care needs of each new detainee are to be identified by qualified medical personnel as soon as possible after being taken in to detention. The medical assessment should have due regard to both the detainee's physical and mental health, including the effects of torture and trauma.
13.4.2. All detainees must be informed in a language they can understand about the likely health issues which may affect them (dental problems, post services available to them. Best efforts should be made to provide health services in A culturally appropriate way.
13.4.3. Detainees who require specialist treatment are to be referred or transferred to specialist institutions or to community hospitals. A designated relative, ethnic community member or NGO is to be informed of the transfer.
13.4.4. The care needs of each detainee are to be regularly monitored.
13.4.5. All detainees are to be provided with necessary medical or other health care when required.
13.4.6. Detainees are to be provided with reasonable dental treatment necessary for the preservation of dental health.

13.5 Mental Health

13.5.1 Preventative intervention in relation to the psychological impact of detention will be routine procedure.
13.5.2 Survivors of torture and trauma are to have ready access to assessment and case management by specialist agencies outside the detention centre.
13.5.3. The management of at risk cases must be governed by mental health professionals.
13.5.4. Arrangements are to be made to move detainees who are found to be severely mentally ill to appropriate establishments as soon as possible. In such cases a designated person (as per 13.4.3) is to be informed of the transfer.

13.6 Food

13.6.1. Every detainee is to be provided with culturally appropriate food of sufficient nutritional value, adequate for health and well being.
13.6.2. Three meals a day are to be provided. Fresh drinking water, tea, coffee and light refreshments are to be available to every detainee at all times.
13.6.3. Special dietary food is to be provided where it is established that such food is necessary for medical reasons, on account of a detainee's religious beliefs, because the detainee is vegetarian or where the detainee has other special needs.

13.7. Personal Hygiene

13.7.1. Detainees are responsible for keeping themselves clean and are to be provided with toiletries and ablution facilities that are necessary for health and cleanliness.

SECTION 14 - SPECIAL CATEGORY NEEDS

14.1. The individual care needs of detainees with special needs are to be identified and programs provided to enhance their quality of life and care.

SECTION 15 - UNACCOMPANIED MINORS

15.1. Unaccompanied minors are to be detained under conditions which protect them from harmful influence and which take account of the needs of their particular age and gender.

15.2. Treatment of minors will be in strict accordance with UNHCR Guidelines on refugee children.

15.3. A Legal Guardian be appointed:
In accordance with UNHCR Guidelines on unaccompanied minors, a guardian or adviser will be appointed from an independent formally accredited child welfare agency.

SECTION 16 - INFANTS AND CHILDREN

16.1 The developmental (physical, psychological and social) needs of babies and young children are to be met.

16.2. Social programs appropriate to the child's age and abilities are to be made available to all children in detention. These are to include regular outings.

16.3. Detainees are responsible for the safety and care of their child(ren) living in detention and the authorities will facilitate parenting through the provision of appropriate professional support.

16.4. All staff will be trained in the identification oxt">21.3 The Contractor is to ensure that it responds within agreed time frames to requests for information so as to enable DIMA to meet Departmental and Government briefing requirements.

INFANTS IN DETENTION

17.1. Expectant mothers are to have access to necessary ante-natal services.

17.2. Arrangements are to be made, wherever possible for children to be born in a hospital outside the detention facility. If a child is born in a detention facility, this is not to be recorded on their birth certificate.

17.3. Where a nursing infant is with its mother in detention, provision should be made for the child to be cared for by the mother

17.4. In cases where the parent is hospitalised, that parent must be consulted on the care arrangements for the child(ren) in his/her absence and arrangements must be made for him/her in hospital.

SECTION 18 - RELIGION

18.1. Detainees have the right to practise religion of their choice and, if consistent with detention facility security and good management, join with other persons in practising their religion and possess such articles as are necessary for the practice of that religion.

18.2. A qualified religious representative approved under guidelines set out in the Handbook is to be allowed to hold regular services and to pay pastoral visits to detainees of the appropriate religion, so long as it does not interfere with the security and management of the detention facility.

SECTION 19 - COMMUNITY CONTACTS

19.1. Contact between detainees and their families, friends and the community are to be permitted and encouraged. The contact is to be facilitated through detainee access to telephones, through regular visits and letters.

19.2. Detainees are to be allowed access to necessary facilities to communicate with their legal representatives and/or the diplomatic and consular representatives of the country to which they belong.

19.3. Detainees are to be allowed the opportunity to keep informed of current events.

SECTION 20 - NOTIFICATION OF DEATH, ILLNESS TRANSFER

20.1. Upon death, serious illness or serious injury of a detainee, or a detainee's removal to another institution, the Manager must arrange as soon as possible for the information to be conveyed to the person previously designated as next of kin or contact person.

20.2. A detainee is to be informed as soon as possible following the notification of the death or serious illness of any near relative or member(s) of the detainee's extended family as defined by cultural values of the detainee.

SECTION 21 - MONITORING AND REPORTING

21.1. DIMA and the detention advisory committee are to have full access to all relevant data (subject to privacy provisions) to ensure that monitoring against these standards can take place.

21.2 Any incident or occurrence which threatens or disrupts security and good order, or the health, safety or welfare of detainees is to be reported fully to the DIMA Facility Manager immediately and in writing within 24 hours.

21.3 The Contractor is to ensure that it responds within agreed time frames to requests for information so as to enable DIMA to meet Departmental and Government briefing requirements.

21.4 The Contractor is to ensure that adequate reporting against the standards is provided on a regular and agreed basis.

21.5. The detaining authority, in consultation with the detention centre advisory committee, is responsible for the follow up and investigation of all expressions of concern by engaged community organisations.