Does the Australian Government Immigration Detention Policy Comply With Mental Health Laws

DOES THE AUSTRALIAN

GOVERNMENT’S IMMIGRATION

DETENTION POLICY COMPLY WITH

DOMESTIC AND/OR INTERNATIONAL

MENTAL HEALTH LAWS?

Submission date: 29 July 2011

Word Count (3542)

Table of Contents

1 Introduction _______________________________________________ 1

1.1 Australian Government Immigration Detention Policy ____________ 1

1.1.1 Sub-policies ____________________________________________________ 2

1.2 Mental health impact of immigration detention: literature review ___ 3

2 Relevant international mental health laws _______________________ 5

2.1 Compliance with international mental health laws ________________ 6

3 Relevant domestic mental health laws ___________________________ 8

3.1 Compliance with domestic mental health laws ___________________ 9

4 Conclusion _______________________________________________ 13

5 Bibliography ______________________________________________ 16

Table of Figures

Figure 1: Australian Government’s seven key immigration detention values 2

Figure 2: Irregular Maritime Arrival numbers 1990-2010 4

Figure 3: International laws relevant to mental health impact of immigration detention 6

Figure 4: Domestic laws relevant to mental health impact of immigration detention 9

Figure 5: Map of Australia's immigration detention facilities 10

Research paper: “Does the Australian Government’s immigration detention policy

comply with domestic and/or international mental health laws?”

1

1 INTRODUCTION

This paper will provide an evaluation of the extent to which the Australian Government‟s

current immigration detention policy (the policy) complies with domestic and/or

international mental health laws.

In the early 2000s there was growing antipathy from Australian human rights advocates

to immigration detention. Around this time the Migration Act (1958) was amended to

create an excised migration zone and the mandatory immigration detention policy

introduced by the Keating Government in 1992 was retained.1 Overtime changes to the

Migration Act and the policy resulted in asylum seeking men, women and children who

arrived irregularly by sea, spending long periods of time in detention and many of them

suffering from a range of very serious mental health issues, in particular self-harm,

untreated psychiatric illnesses and in some instances suicide.2

In 2003 and 2005 systemic errors lead to the unlawful immigration detention of two

persons - Vivian Alvarez Solon, an Australian citizen, and Cornelia Rau, an Australian

permanent resident. Both persons suffered from mental health issues.3

Soon after these events a new government was elected and one of their election

commitments was to reform the immigration detention system to ensure the mental health

care of immigration detainees was paramount.4 The aim of this paper is to analyse

whether the current government has successfully achieved their reform objectives.

1.1 Australian Government Immigration Detention Policy

The current immigration detention policy, the „New Directions in Detention‟, was

announced in July 2008. This policy outlines „seven key values‟ which aim to take a

risk-based approach to the management of people in immigration detention. The

government‟s seven key immigration detention values are outlined in Figure 1.5

1 Migration Act 1958 (Cth).

2 Human Rights Commissioner, „A Report on Visits to Immigration Detention Facilities‟, Australian

Human Rights Commission (2001), viewed 22 July 2011, www.hreoc.gov.au. 3 Claire O‟Connor QC, „The impact of detention on the mental health of detainees in immigration

detention: the implications of failure to deliver adequate mental health services – who cares?‟, Dame Roma

Mitchell International Women’s Day Lunch (2007), Melbourne. 4 Department of Immigration and Citizenship, „Key Immigration Detention Values‟, © Commonwealth of

Australia (2008), viewed 18 July 2011, www.immi.gov.au. 5 Ibid 4.



2

Figure 1: Australian Government’s seven key immigration detention values6

1.1.1 Sub-policies

Sri Lankan and Afghan processing suspension

In response to a spike in irregular maritime arrival (IMA) numbers, on 9 April 2010 the

Australian Government announced a processing suspension of three months on

Sri Lankan and six months Afghani asylum claims for those who arrived irregularly by

sea. The goal of this targeted suspension was to stem people smuggling activities by

delaying processing at the Australian end, therefore making it less attractive to seek an

irregular passage.7 All arrivals effected by this suspension remained in detention during

which time no advancement was made on assessing their claims during the suspension

period.

6 Ibid 4.

7 AAP, „Immigration clampdown: processing asylum claims for Sri Lankans and Afghanis suspended‟,

Sydney Morning Herald (9 April 2010), www.smh.com.au.

1. Mandatory detention is 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:

a. 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

b. 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 (IDC).

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, would 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.



3

Regional cooperation framework

As a result of increasingly large numbers of unauthorised boat arrivals in the Asia-Pacific

region, a Bali Ministerial Conference on People Smuggling, Trafficking in Persons and

Related Transnational Crime was established in 2002 and continues to convene regular

workshops for member countries. This is now known as the „Bali Process‟ and is aimed

at building capacity and cooperation within the Asia-Pacific region to address people

smuggling and transnational crime.8

Following a recent Bali Process, on 7 May 2011 the Australian Government announced a

Regional Cooperation Framework under which Australia will not process asylum claims

for any non-citizen who arrives irregularly by sea, instead transferring them to Malaysia.

In excess of 400 IMAs came after the announcement and these people remained in

detention on Christmas Island awaiting the outcome of final negotiations between

Australia and Malaysia.9 The formal inter-country transfer agreement was signed on

25 July 2011 under which Australia conceded to process the asylum claims for people

who arrived between the initial announcement and the actual signing of the agreement.10

The stated intention of the government is that Australia will enter into similar agreements

with other neighbouring countries in the Pacific-Region in an attempt to combat people

smuggling activities.11

1.2 Mental health impact of immigration detention: literature review

In recent years the majority of the immigration detention population in Australia has

consisted of IMAs because of a spike in their numbers (Figure 2 refers) and immigration

detention centre (IDC) capacity limitations.12

There is ongoing public and political

debate as to what has caused this recent swell – either „push‟ or „pull‟ factors. The

argument for pull factors is that the change of government in 2008 from a Coalition to a

Labor Government and subsequent change from the provision of temporary protection

visas to granting permanent ones encouraged people to attempt migration by irregular

8 Bali Process (n.d.), About the Bali Process, viewed 23 July 2011, www.baliprocess.net.

9 AAP, „High Court bid to reunite detainee family‟, News Limited (21 July 2011), www.news.com.au.

10 Chris Bowen MP, Minister for Immigration and Citizenship, Media Release: „Australia and Malaysia

sign transfer deal‟ (25 July 2011). 11

Chris Bowen MP, Minister for Immigration and Citizenship, Media Release: „The regional cooperation

framework‟ (5 May 2011). 12

Department of Immigration and Citizenship (2011), „Immigration detention statistics summary as at

1 May 2011‟, viewed 24 July 2010, www.aph.gov.au.



4

means.13

The counter argument is that the global push factor of war has caused a spike of

irregular migration by people fleeing countries where they are either experiencing or in

fear of suffering violation of their human rights.14

Because of the current detention

population dynamic the focus of this paper will be on IMAs.

Figure 2: Irregular Maritime Arrival numbers 1990-201015

* Number of people for 2008-10 includes boat crew

The impact of the increased arrivals is that there are now large numbers of people

remaining in detention for extended periods of time. This is a similar situation to what

occurred during the previous IMA spike that occurred from 1999 to 2001 (see Figure 2

above). The prolonged detention is due to the volume of people arriving, and the time

and staffing resources needed to assess asylum claims and the required health, security,

character and identity checks, as well as the fact that all of these people are mandatorily

detained until these processes are finalised.16

There is a strong correlation between length of time in detention and the development of

mental health conditions.17

Further to this, the detention environment in Australia

13 Coalition Border Protection Policy, „Restoring sovereignty and control to our borders: Policy directions

statement‟, (21 July 2010), www.liberal.org.au. 14

Alice Edwards, „Back to Basics: The Right to Liberty and Security of Person and „Alternatives to

Detention‟ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants‟, United Nations

Commissioner for Refugees (2011), Legal and Protection Policy Research Series. 15

Adapted from: Parliament of Australia, Parliamentary Library, „Background Paper: Boat Arrivals in

Australia Since 1976‟, viewed 22 July 2011, www.aph.gov.au. 16

Australian Human Rights Commission (2011), „Independent Review of the Intelligence Community‟,

www.hreoc.gov.au. 17

Ibid 3.



5

predominantly holds people in institutionalised facilities which are not conducive to the

effective management of persons already suffering from mental health illnesses much like

any penitentiary setting.18

19

Many of the studies conducted on the impacts of immigration detention are focussed on

children in detention, in particular its impact on their developmental well-being. There is

strong evidence that suggests any time spent in a detention-like environment will have a

negative impact on the developmental and psychological welfare of a child.20

The human impact of prolonged detention has resurfaced with the Commonwealth and

Immigration Ombudsman, Allan Asher, reporting having “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 and fifty-four were reported during the first week of July

[2011] ...”21

However, this paper aims to go beyond the emotive status of this subject

matter and objectively analyse legal compliance with mental health laws.

2 RELEVANT INTERNATIONAL MENTAL HEALTH LAWS

There are a number of international laws that are relevant to the mental health impact of

detention on immigration detainees as outlined in Figure 3.

18 Serco (n.d.), „Information Guide for People in Detention‟.

19 Jamie Feller, „A Corrections Quandary: Mental Illness and Prison Rules‟, Harvard Civil Rights-Civil

Liberties Law Review (2006), Vol. 41, pp. 391-412. 20

J Garbarino, „Developmental Consequences of Living in Dangerous and Unstable Environments: the

Situation of Refugee Children‟, in McCallin, The Psychological Well Being of Refugee Children, p1. 21

Allan Asher, „Australia‟s immigration detention values: Milestones or motherhood statements?‟

(29 July 2011), Commonwealth of Australia (2011), viewed 29 July 2011, www.ombudsman.gov.au.



6

Figure 3: International laws relevant to mental health impact of immigration detention

2.1 Compliance with international mental health laws

To effectively analyse whether the policy complies with international mental health laws

it is pertinent to assess its compliance in tandem with relevant international laws that

apply to the detention of unlawful non-citizens in Australia. This is because the laws

involved in detaining a person will have flow on implications for how successfully

mental health laws are applied in the detention environment.

Australia is a party to the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment and signed the Optional Protocol to the Convention

against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment on

19 May 2009, but this agreement is yet to be ratified.22

At this time there is no obligation

for Australia to comply, however the United Nations Committee Against Torture

recommended that once it is adopted, Australia should enshrine it in law – more

specifically, within a national bill of rights.23

Article 9 of the International Covenant on Civil and Political Rights provides that „no

one shall be subjected to arbitrary arrest or detention‟ and that „no one shall be deprived

of his liberty except on such grounds and in accordance with such procedure as are

22 Human Rights Commissioner, „Optional Protocol to the Convention against Torture (OPCAT)‟,

Australian Human Rights Commission, viewed 25 July 2011, www.hreoc.gov.au. 23

United Nations Committee Against Torture, „Consideration of Reports Submitted by States Parties under

Article 19 of the Convention - Concluding observations of the Committee against Torture‟, Fortieth

Session, CAT/C/AUS/CO/3 (22 May 2008).

International treaties

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (1984) and the Optional Protocol to the Convention against Torture

and other Cruel, Inhuman or Degrading Treatment or Punishment (2002).

Convention on the Rights of Persons with Disabilities (13 December 2006).

Convention on the Rights of the Child (2 September 1990).

International Covenant on Civil and Political Rights (16 December 1966).

The Universal Declaration of Human Rights (10 December 1948).

Principles for the protection of persons with mental illness and the improvement of

mental health care (17 December 1991).



7

established by law‟.24

These provisions are reinforced by Article 9 of The Universal

Declaration on Human Rights which states that „no one shall be subjected to arbitrary

arrest, detention or exile‟.25

Finally, in accordance with s 75 of Australia‟s Constitution a

person may seek judicial review of these matters as they arise under a treaty.26

After the introduction of the Migration Amendment (Excision from Migration Zone) Act

in 2001, IMAs were denied judicial review rights for processing of their asylum claims

on the basis that the decision was made using the Minister‟s non-compellable powers and

therefore a non-statutory decision. This matter was challenged in the High Court in

Plaintiff M61 of 2010 v Commonwealth of Australia27

where the denial of review rights

was found to be a breach of international obligations and Australia‟s Constitution.28

As a

result, the majority of IMAs are now provided access to judicial review.29

However, the

sub-policies identified earlier, the „Sri Lankan and Afghan processing suspension‟ and

the „Regional cooperation framework‟, have resulted in people being held in detention

arbitrarily for several months which breaches The Universal Declaration on Human

Rights.30

Further to this, the IMAs impacted by these sub-policies were not afforded any

form of judicial review rights, which fails to comply with the International Covenant on

Civil and Political Rights and Australia‟s Constitution.31

32

Principle 1 from the Principles for the protection of persons with mental illness and the

improvement of mental health care provides that „any decision that, by reason of his or

her mental illness, a person lacks legal capacity, and any decision that, in consequence of

such incapacity, a personal representative shall be appointed, shall be made only after a

fair hearing by an independent and impartial tribunal established by domestic law. The

person whose capacity is at issue shall be entitled to be represented by a counsel.‟33

Similarly, Article 12 of the Convention on the Rights of a Child provides that „States

Parties shall assure to the child who is capable of forming his or her own views the right

24 International Covenant on Civil and Political Rights (16 December 1966).

25 The Universal Declaration on Human Rights (10 December 1948).

26 Commonwealth of Australia Constitution Act 1901 (Cth).

27 [2010] HCA 41.

28 Ibid 26.

29 Chris Bowen MP, Minister for Immigration and Citizenship, Media Release: „Government announces

faster, fairer refugee assessment process‟ (5 January 2011). 30

Ibid 25. 31

Ibid 24. 32

Ibid 26. 33

Principles for the protection of persons with mental illness and the improvement of mental health care

(17 December 1991).



8

to express those views freely in all matters affecting the child, the views of the child

being given due weight in accordance with the age and maturity of the child‟ and that „for

this purpose, the child shall in particular be provided the opportunity to be heard in any

judicial and administrative proceedings affecting the child, either directly, or through a

representative or an appropriate body, in a manner consistent with the procedural rules of

national law‟.34

All immigration detainees have free access to the Immigration Advice

and Application Assistance Scheme (IAAAS). The IAAAS provides independent

professional migration advice, application assistance, liaison with the department, and

advice on complex immigration matters.35

The provision of this service is compliant with

Principle 1 from the Principles for the protection of persons with mental illness and the

improvement of mental health care and Article 13 of the Convention on the Rights of a

Child, however Principle 3 states that „every person with a mental illness shall have the

right to live and work, as far as possible, in the community‟ which a mandatory

immigration detention policy does not align well with.36

37

Article 20 of the Convention on the Rights of Persons with Disabilities provides that

„States Parties shall take effective measures to ensure personal mobility with the greatest

possible independence for persons with disabilities‟.38

In recent detention centre

inspections, it was noted that many of the buildings are not accessible by physically

impaired detainees and there is a lack of access to appropriate mobility equipment. This

has prevented some detainees from fully engaging with the services and activities

provided in detention which in turn led to deterioration of their mental health.39

This fails

to comply with the requirements of Article 20.

3 RELEVANT DOMESTIC MENTAL HEALTH LAWS

There is a range of legislation and case law that are relevant to the mental health impact

of detention on immigration detainees. These are outlined in Figure 4.

34 Convention on the Rights of the Child (2 September 1990).

35 Department of Immigration and Citizenship (2010), „Fact Sheet 63 – Immigration Advice and

Application Assistance Scheme‟, viewed 29 July 2011, www.immi.gov.au. 36

Ibid 32. 37

Ibid 33. 38

Convention on the Rights of Persons with Disabilities (13 December 2006). 39

Linda Briskman et. al. 2010.



9

Figure 4: Domestic laws relevant to mental health impact of immigration detention

3.1 Compliance with domestic mental health laws

As with the investigation of compliance with international laws, it is necessary to analyse

the policy‟s compliance with relevant domestic laws that apply to the detention alongside

mental health laws.

Following the introduction of the Migration Amendment (Excision from Migration Zone)

Act40

in 2001, all IMAs were required to be detained on Christmas Island to have their

refugee claims assessed. Consequently, the spike in IMAs between 2008 and 2010

placed an immense strain on detention infrastructure capacity. Christmas Island‟s

detention centre was designed to accommodate approximately 800 people at surge

capacity and by mid-2010 there were around 2,500 detainees staying in overcrowded

40 Migration Amendment (Excision from Migration Zone) Act 2001 (Cth).

Case law

Behrooz v Secretary, Department of Immigration, Multicultural and Indigenous

Affairs (2004) 208 ALR 271.

Plaintiff M61/2010E & Ors v Commonwealth of Australia & ORS [2010] HCA 41.

Plaintiff M168/10 & Ors v The Commonwealth & Ors [2011] HCA 25.

Re Woolleys [2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369; (2004) 79

ALJR 43.

S v Secretary, Department of Immigration Multicultural and Indigenous Affairs.

Secretary, Department of Immigration and Multicultural and Indigenous Affairs v

Mastipour (2004) 207 ALR 83.

Legislation

Disability Discrimination Act 1992 (Cth).

Mental Health Act 2007 No. 8 (NSW).

Mental Health Act 2009 (SA).

Mental Health Act 1996 (Tas).

Mental Health Act 1996 (WA).

Mental Health Act 2000 (Qld).

Mental Health Act 1986 (Cth).

Mental Health and Related Services Act 2011 (NT).

Migration Act 1958 (Cth).

Migration Amendment (Excision from Migration Zone) Act 2001 (Cth).



10

rooms and tents.41

The Australian Government subsequently commissioned a range of

temporary detention facilities that are now operating nationally (outlined in Figure 5).42

Figure 5: Map of Australia's immigration detention facilities43

Because of the geographic spread of immigration detention facilities, almost every state

or territory Mental Health Act (excludes the Australian Capital Territory) has relevance

to detention operations. These acts mirror provisions and definitions in almost

identically. The acts define „mental illness‟ as a condition that seriously impairs, either

temporarily or permanently, the mental functioning of a person in one or more of the

areas of thought, mood, volition, perception, orientation or memory. They broadly state

that mental illness can be characterised by the presence of at least one of the following

symptoms:44

(i) delusions;

41 Allan Asher, „Christmas Island immigration detention facilities: Report on the Commonwealth and

Immigration, Ombudsman‟s oversight of immigration processes on Christmas Island October 2008 to

September 2010‟, Commonwealth and Immigration Ombudsman (2011), Report No. 2|2011. 42

Department of Immigration and Citizenship (2011), „Map of Australia‟s immigration detention facilities‟,

viewed 27 July 2011, www.immi.gov.au 43

Ibid 32. 44

Mental Health Act 2007 No. 8 (NSW); Mental Health Act 2009 (SA); Mental Health Act 1996 (Tas);

Mental Health Act 1996 (WA); Mental Health Act 2000 (Qld); Mental Health Act 1986 (Cth); Mental

Health and Related Services Act 2011 (NT).



11

(ii) hallucinations;

(iii) serious disorders of the stream of thought;

(iv) serious disorders of thought form;

(v) serious disturbances of mood; or

(b) by sustained or repeated irrational behaviour that may be taken to indicate the

presence of at least one of the symptoms referred to in paragraph (a).

Based on the definition mental illness provided in the Mental Health Acts, it could be

concluded that a large proportion of the people held in immigration detention

environment may present at least one or more of the characterisations given the

background many have come from seeking asylum in Australia.45

Similarly to Article 20 of the Convention on the Rights of Persons with Disabilities46

,

s 6 of the Disability Discrimination Act provides that „the failure to make reasonable

adjustments has, or is likely to have, the effect of disadvantaging persons with the

disability‟ is a form of indirect discrimination.47

Considering this, the identified

accessibility and mobility issues breach the requirements of s 6 of this act.48

S 189 of the Migration Act provides an immigration officer with the power to detain an

unlawful non-citizen and s 190 states that where a person is detained under s 189, they

must remain in detention until they are either granted a visa or removed from Australia.49

However, there are no regulations prescribing the conditions of immigration detention

under the Migration Act. This has been criticised by the Federal Court in S v Secretary,

Department of Immigration Multicultural and Indigenous Affairs50

and Secretary,

Department of Immigration and Multicultural and Indigenous Affairs v Mastipour51

.

However, the High Court held that the conditions of detention do not make the detention

itself unlawful.52

53

45 Ibid 3.

46 Ibid 38.

47 Disability Discrimination Act 1992 (Cth).

48 Linda Briskman et. al. 2010.

49 Migration Act 1958 (Cth).

50 (2005) 216 ALR 252 at [198].

51 (2004) 207 ALR 83 at [2], [8] ff.

52 (2004) 208 ALR 271.

53 Ibid 3.



12

A person can be detained in the Australian community if the Minister chooses to exercise

Residence Determination powers under s 197AB of the Migration Act.54

On 18 October

2010 the Australian Government announced it would “commence moving significant

numbers of children and vulnerable family groups out of immigration detention facilities

and into community-based accommodation” using the Minister‟s residence determination

power.55

This change better aligns detention with the provisions of s 4AA of the

Migration Act which state that a minor shall only be detained as a resort, which does not

include residing in community detention arrangements.56

In a recent High Court case, Plaintiff M168/10 Ors v The Commonwealth Ors57

, the ratio

decidendi referred to Kirby J‟s note in Re Wolley; Ex parte Applicants M276/2003[18]:

“[The Act] is specific, particular and clear so far as its requirement for universal

mandatory detention is concerned, including in relation to children. Such requirements

prevail over any otherwise existing general powers enjoyed by federal courts, including

this Court ...Detention is the deliberate policy of the Australian Parliament, repeatedly

affirmed. In default of a constitutional basis for invalidating it, it is the duty of this Court

to give effect to the Act, whatever views might be urged about the wisdom, humanity and

justice of that policy.” 58

Crennan J acknowledged that although “the continued detention

of the plaintiffs in detention centres involves a serious risk of psychological or other harm

to the plaintiffs and that detention and supervision of the plaintiffs otherwise than in their

present place of detention is available” (meaning community detention), the law does not

require it.59

60

With regard to treatment and care under the Mental Health Acts, the requirement is that

people with a mental disorder should be given timely and high quality treatment and care

in accordance with professionally accepted standards.61

The current health care

arrangement for all people in immigration detention is that they „can gain access to

appropriate health care commensurate with the level of care available to the broader

community… <Their> Treatment management is coordinated through the

54 Ibid 34.

55 Chris Bowen MP, Minister for Immigration and Citizenship, Media Release: „Government to move

children and vulnerable families into community-based accommodation‟ (18 October 2010). 56

Ibid 37. 57

[2011] HCA 25. 58

[2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369; (2004) 79 ALJR 43. 59

Ibid 43. 60

(2004) 208 ALR 271. 61

Ibid 36.



13

<Immigration> department‟s contracted health services manager for all people who have

a clinically identified need for ongoing medical treatment. As well as the initial health

assessment, there are mechanisms in place to identify health needs that may emerge

during a person‟s time in detention, including formal monitoring processes such as the

three-monthly mental health review in detention centres‟. 62

These arrangements were

implemented in January 2009 and comply with the legal requirements for treatment and

management of mental health disorders across Australia.63

4 CONCLUSION

A policy of mandatory immigration detention for unlawful non-citizens was introduced in

1992 by the Keating Government. This policy has been retained by three successive

governments. The combination of this policy and changes to the Migration Act in 2001

lead to systemic errors and breaches to human rights of detainees by the Immigration

Department particularly in relation to mental health care. 64

After this matter climaxed in

the public forum, a new government was elected and they pledged to reform the

immigration detention system to prioritise better mental health care for detainees.65

The

intent of this paper is to objectively analyse whether the policy of the current Australian

Government complies with mental health laws.

There was a marked increase in the number of non-citizens arriving irregularly by sea to

Australia to seek asylum between 2008 and 2010. There was also a lack of capacity in

detention infrastructure to accommodate the increase. This lead to detainees spending

protracted periods in detention awaiting assessment of their asylum claims. 66

The government has introduced sub-policies to try and reduce the number of irregular

arrivals.67

They have also implemented community-based detention arrangements for

62 Department of Immigration and Citizenship (2010), „Fact Sheet 82 - Immigration Detention‟, viewed

29 July 2011, www.immi.gov.au 63

Ibid 50. 64

Ibid 3. 65

Ibid 2; 4. 66

Ibid 31. 67

Ibid 7-11.



14

some children and vulnerable families.68

All detainees are now afforded full judicial

rights following a successful High Court challenge.69

The evaluation was conducted across relevant domestic and international laws directly

and indirectly related to mental health laws. The outcomes are as follows:

Australia has not yet ratified the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment and the Optional Protocol to the

Convention against Torture and other Cruel, Inhuman or Degrading Treatment or

Punishment and therefore not yet obliged to comply;70

International Covenant on Civil and Political Rights and Australia‟s Constitution

assert that all persons should be able to access judicial rights for issues under

international treaty. This is only partially complied with – most detainees now

have access to judicial review, however those affected by the sub-policies were

not;71

The Universal Declaration on Human Rights and the International Covenant on

Civil and Political Rights state that no one should be subjected to arbitrary

detention. The sub-policies breach this provision;.72

Principles for the protection of persons with mental illness and the improvement

of mental health care and Convention on the Rights of a Child require appropriate

representation for persons with mental capacity issues. The provision of the

IAAAS is compliant with the requirement;73

Convention on the Rights of a Child states that „every person with a mental illness

shall have the right to live and work, as far as possible, in the community‟. A

mandatory immigration detention policy does not align with this;74

Convention on the Rights of Persons with Disabilities and the Disability

Discrimination Act articulate accessibility and mobility requirements. The

detention environment frequently fails to fulfil these requirements;75

68 Ibid 54-55.

69 Ibid 28.

70 Ibid 22.

71 Ibid 24; 26-27.

72 Ibid 24-25.

73 Ibid 33-34.

74 Ibid 33.

75 Ibid 38-39; 47.



15

The Migration Act provides the Immigration Department with the legal authority

to detain unlawful non-citizens. Multiple court decisions have upheld the legality

and attest that conditions of detention are not articulated in law and therefore

cannot be unlawful;76

The Government‟s expansion of community detention complies with the

Migration Act‟s requirement to only detain children as a last resort;77

and

The Immigration Department‟s detention health arrangements comply with each

of the relevant state or territory Mental Health Acts‟ requirements for treatment

and management of mental health disorders.78

The obligations are under international treaties still have several areas of non-compliance

which appear to have a strong link to the sporadic sub-policies that have been developed

to try and reduce irregular migration numbers. The areas where the Australian

Government‟s immigration detention policy has greatest compliance is in domestic

mental health law where the introduced changes to mental health treatment and

management, expansion of community-based detention options and consensus of the

courts is that the detention policy complies with law.

76 Ibid 1; 50-53.

77 Ibid 34; 37; 55.

78 Ibid 36; 50; 52.

Research paper: “Does the Australian Government’s immigration

detention policy comply with domestic and/or international mental health

laws?”

16

5 BIBLIOGRAPHY

Case law

Al-Kateb v Godwin & Ors [2004] HCA 37.

Behrooz v Secretary, Department of Immigration, Multicultural and

Indigenous Affairs (2004) 208 ALR 271.

Koehler v Cerebos (2005) 214 ALR 355.

Ruddock & Ors v Vadarlis & Ors [2001] FCA 1329.

Plaintiff M61/2010E & Ors v Commonwealth of Australia & ORS [2010] HCA

41.

Plaintiff M168/10 & Ors v The Commonwealth & Ors [2011] HCA 25.

Re Woolleys [2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369; (2004)

79 ALJR 43.

Secretary, Department of Immigration and Multicultural and Indigenous

Affairs v Mastipour (2004) 207 ALR 83.

Legislation

Australian Security Intelligence Organisation Act 1979 (Cth).

Commonwealth of Australia Constitution Act 1901 (Cth).

Disability Discrimination Act 1992 (Cth).

Immigration (Guardianship of Children) Act 1946 (Cth).

Mental Health Act 2007 No. 8 (NSW).

Mental Health Act 2009 (SA).

Mental Health Act 1996 (Tas).

Mental Health Act 1996 (WA).

Mental Health Act 2000 (Qld).

Mental Health Act 1986 (Vic).

Mental Health and Related Services Act 2011 (NT).

Migration Act 1958 (Cth).

Migration Amendment (Excision from Migration Zone) Act 2001 (Cth).



laws?”

17

International treaties

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (1984) and the Optional Protocol to the Convention

against Torture and other Cruel, Inhuman or Degrading Treatment or

Punishment (2002).

Convention of the Rights of the Child (2 September 1990).

Convention Relating to the Status of Refugees (1951) and the Protocol

Relating to the Status of Refugees (1967).

Convention on the Rights of Persons with Disabilities (13 December 2006).

International Covenant on Civil and Political Rights (16 December 1966).

The Universal Declaration of Human Rights (10 December 1948).

Principles for the protection of persons with mental illness and the

improvement of mental health care (17 December 1991).

Secondary sources

Allan Asher, „Australia‟s immigration detention values: Milestones or

motherhood statements?‟ (29 July 2011), Commonwealth of Australia (2011),

viewed 29 July 2011, www.ombudsman.gov.au/media-releases/show/190.

Allan Asher, „Christmas Island immigration detention facilities: Report on the

Commonwealth and Immigration, Ombudsman‟s oversight of immigration

processes on Christmas Island October 2008 to September 2010‟,

Commonwealth and Immigration Ombudsman (2011), Report No. 2|2011.

Alice Edwards, „Back to Basics: The Right to Liberty and Security of Person

and „Alternatives to Detention‟ of Refugees, Asylum-Seekers, Stateless

Persons and Other Migrants‟, United Nations Commissioner for Refugees

(2011), Legal and Protection Policy Research Series.

Anand Grover, „Report of the Special Rapporteur on the rights of everyone to

the enjoyment of the highest attainable standard of physical and mental health‟,

United Nations General Assembly (3 June 2010).

AAP, „High Court bid to reunite detainee family‟, News Limited, (21 July

2011). www.news.com.au/national/high-court-bid-to-reunite-detainee-

family/story-e6frfkvr-1226099039185.

AAP, „Immigration clampdown: processing asylum claims for Sri Lankans and

Afghanis suspended‟, Sydney Morning Herald (9 April 2010),

www.smh.com.au/national/immigration-clampdown-processing-asylum-

seeker-claims-from-sri-lankans-and-afghanis-suspended-20100409-rwcd.html.



laws?”

18

Australian Human Rights Commission, „Australia‟s immigration detention

system continues to breach international human rights obligations‟

(21 July 2011), viewed 22 July 2011, www.hreoc.gov.au.

Bali Process (n.d.), About the Bali Process, viewed 24 July 2011,

www.baliprocess.net/index.asp?pageID=2145831401.

Dr Bhagwati & Matthias Behnke (n.d.), „The Mental Health Effects of

Immigration Detention Centres on Children and Young People‟, Office of the

High Commissioner for Human Rights.

Bernadette McSherry (n.d.), „Providing Mental Health Services and

Psychiatric Care to Immigration Detainees: What the Law Requires‟, Seeking

Asylum in Australia 1995-2005.

Chris Bowen MP, Minister for Immigration and Citizenship: Media Releases:

- „Australia and Malaysia sign transfer deal‟ (25 July 2011).

- „Character test changes passed by Parliament‟ (5 July 2011).

- „The regional cooperation framework‟ (5 May 2011).

- „Government meets commitment on community detention‟ (29 June 2011).

- „Government announces faster, fairer refugee assessment process‟

(5 January 2011).

- „Government to move children and vulnerable families into community-

based accommodation‟ (18 October 2010).

Senator Chris Evans, Minister for Immigration and Citizenship: Media

Releases:

- „Detention values to be enshrined in law‟ (29 July 2008).

- „Labor unveils new risk-based detention policy‟ (29 July 2008).

- „Government committed to mandatory detention on Christmas Island‟

(16 December 2009).

Claire O‟Connor QC, „The impact of detention on the mental health of

detainees in immigration detention: the implications of failure to deliver

adequate mental health services – who cares?‟, Dame Roma Mitchell

International Women‟s Day Lunch (9th

March 2007), The Admission and

Exclusion of Asylum Seekers: The Search for Legitimate Parameters,

Melbourne.

Coalition Border Protection Policy, „Restoring sovereignty and control to our

borders: Policy directions statement‟, (21 July 2010),

www.liberal.org.au/~/media/Files/Policies%20and%20Media/National%20Sec

urity/Coalition%20Border%20Protection%20Policy.ashx.

Department of Immigration and Citizenship (2010), „Fact Sheet 82 -

Immigration Detention‟, viewed 29 July 2011, www.immi.gov.au/media/fact-

sheets/82detention.htm#d.



laws?”

19

Department of Immigration and Citizenship (2010), „Fact Sheet 63 –

Immigration Advice and Application Assistance Scheme‟, viewed 29 July

2011, www.immi.gov.au/media/fact-sheets/63advice.htm.

Department of Immigration and Citizenship (2011), „Immigration detention

statistics summary as at 1 May 2011‟, www.immi.gov.au/managing-australias-

borders/detention/_pdf/immigration-detention-statistics-20110501.pdf.

Department of Immigration and Citizenship (2011), „Map of Australia‟s

immigration detention facilities‟, viewed 27 July 2011,

www.immi.gov.au/managing-australias-borders/detention/facilities/map-

operational-facilities.pdf.

Detention Health Advisory Group, „Submission to the Joint Standing

Committee on migration enquiry into immigration detention in Australia‟

(4 August 2008).

Human Rights Commissioner (n.d.), „Optional Protocol to the Convention

against Torture (OPCAT)‟, viewed 25 July 2011,

www.hreoc.gov.au/human_rights/opcat/index.html.

Jamie Feller, „A Corrections Quandary: Mental Illness and Prison Rules‟,

Harvard Civil Rights-Civil Liberties Law Review (2006), Vol. 41, pp. 391-412.

J Garbarino, „Developmental Consequences of Living in Dangerous and

Unstable Environments: the Situation of Refugee Children‟, in McCallin, The

Psychological Well Being of Refugee Children, p1. Cited in: Human Rights

and Equal Opportunity Commission, „National Inquiry into Children in

Detention‟ (Background paper 3: Mental Health and Development),

www.hreoc.gov.au/human_rights/children_detention/background/mental_healt

h.html#men.

Linda Briskman, Lucy Fiske & Michelle Damasi, „Beyond Reach: Adapted

from a report to the Minister for Immigration and Citizenship on a visit

Christmas Island 6-10 April 2010‟, Centre for Human Rights Education

(2010), Curtin University.

Michael Kirby AC CMG, „The rule of law beyond law of rules‟, Based on part

of an address to the 15th

Malaysian Bar Association Conference, Kuala

Lumpur (29 July 2010).

Office of Inspector General, „Management of Mental Health Cases in

Immigration Detention‟, Department of Homeland Security (March 2011),

United States of America.

Parliament of Australia, „Background Paper: Boat Arrivals in Australia Since

1976‟, Parliamentary Library, viewed 22 July 2011,

www.aph.gov.au/Library/pubs/BN/sp/BoatArrivals.pdf.



laws?”

20

Peter Prince, „The detention of Cornelia Rau: legal issues‟, Laws and Bills

Digest Section, Research Brief no. 14 2004–05 (31 March 2005). Cited from:

www.aph.gov.au/library/pubs/rb/2004-05/05rb14.htm#detention.

Refugee Council of Australia, „Submission to the Senate Legal and

Constitutional Affairs Inquiry into the Migration Amendment (Detention

Reform and Procedural Fairness) Bill 2010‟.

Ronelle Hutchinson and Ian Watts, „Royal Australian College of General

Practitioners Standards for health services in Australian immigration detention

centres‟, The Royal Australian College of General Practitioners (2007), 3rd

ed,

South Melbourne.

Serco (n.d.), „Information Guide for People in Detention‟.

Shannon McDermott, Jasmine Bruce, Ioana Oprea, Karen R. Fisher & Kristy

Muir, „Evaluation of the Mental Health, Housing and Accommodation Support

Initiative (HASI)‟ (Second Report), Report for NSW Health and Housing

NSW, Social Policy Research Centre and Disability Studies and Research

Centre (March 2011), University of New South Wales with ARTD

Consultants, SPRC Report 5/11.

Valerie Braithwaite, „Compliance with Migration Law‟, Regulatory

Institutions Network Australian National University (2010), Report for the

Department of Immigration and Citizenship.

World Health Organization, „Mental Health Care Law: ten basic principles‟

(1996).



laws?”

21

Assessment 3: Research paper (3000 words)

Criteria

Factors Examined

Communication • Correct syntax, grammar and

spelling.

• Clarity of thought and expression

Demonstrated familiarity with readings/literature • The paper reflects a discussion of

the issues from an informed

perspective.

• Gone beyond recommended or

minimal readings/evidence of wider

reading and research.

Analysis, discussion and argument • Identifies the question to be

discussed

• Discusses and analyses relevant

arguments and evidence

• Does not wander

• Moves beyond emotive responses

to deal with evidence and arguments

in a logical, coherent structure

• Comes to some kind of conclusion

Presentation • Typed, stapled and LH 5 cm

margin, LH and RH justified,

bibliography

• Notes and bibliography in

conformance with Australian Guide

to Legal Citation 3ed requirements

• Layout/ setting out (use of

appropriate headings - clarity, ease

of reading).

• Formal requirements expressed in

Unit Outline

Documents

Does the Australian Government Immigration Detention Policy Comply With Mental Health Laws