fixing australia human rights sustainable earth sustainable shelter terror australis association member log in
Project SafeCom News and Updates
name:
email:
   
Google
wwwthis site
Be part of the Action image
Twitter
Facebook

Alert a friend button

share widget button
    The Drawing of a child refugee in the Woomera detention centre

Claire O'Connor: Who Cares?

The impact of detention on the mental health of detainees

It is obvious that the Bedraie case is not an isolated case. Many of the thousands who were processed in detention centres then granted protection and other visas from the late 1990s will have ongoing mental health problems as a result of the way that Australia detained them while they were being processed. Some spent up to 5 or more years in that environment. Some will probably never realize their full potential.

The impact of detention on the mental health of detainees in immigration detention, and the implications for failing to deliver adequate Mental Health Services: Who Cares?

by Claire O'Connor
Barrister
Anthony Mason Chambers
Adelaide SA

Presented at
Inaugural Women Lawyers Conference
Sydney, September 2006

1. INTRODUCTION

This paper will provide an overview of the legal implications that arise from detention of refugee applicants in detention centres in conditions that cause mental illness and the failure to then recognise and treat that illness.

Since about 2000 there have been large numbers of cases involving refugees before various State courts, the Federal and the High court of Australia.

These cases can be grouped into a number of broad categories.

  • Challenges to the findings that a particular person or group of persons was or was not a refugee within the definition of the legislation.
  • Challenges to the lawfulness of legislative limitations on the right to appeal or review decisions at various levels e.g. privative clauses challenges.
  • Challenges to the conditions in detention e.g. the keeping of children in detention in circumstances that is not in their best interest; the failure to deliver mental health services in breach of a duty of care; or cases claiming that conditions of detention are unlawful (therefore an escapee might have a defence to a charge).
  • Challenges to the constitutionality of the interpretation of the legislation e.g. indefinite detention of persons not refugees, and non-refoulement cases.
  • Suits against the Minister for detaining in conditions which caused harm.

This paper deals with the consequence of the legal pronouncements that were determined in a number of the categories listed above that-

  1. Conditions of detention, even if amounting to torturous conditions, could not of themselves render the detention unlawful. [1]
  2. Children can be confined in detention conditions even if those conditions are causing harm to the child, until they are removed or given a visa. [2]
  3. The Minister and her officers are permitted to detain a person without a visa for as long as necessary to remove, even if removal is impossible because the person is stateless. [3]
  4. Breaches of International treaties and protocols have little or no relevance to refugees or persons detained in immigration detention who are stateless, even if Australia is a signatory to those treaties and protocols because of the interpretation of the Alien's power in the Constitution. [4]
  5. The Minister for immigration owes a duty of care to non-citizens in immigration detention. [5]
  6. It is the Minister's duty to determine if someone is an unlawful non-citizen before detaining in immigration detention. [6]
  7. The duty of care extends to ensuring the mental wellness of a detainee. [7]
  8. If a duty of care is breached and harm results then an action in tort may lie. [8]
  9. Prohibition against removal from Australia of a non-citizen may lie where the act of removal would cause harm to a detainee. [9]
  10. Prohibition against removal of a non-citizen does not exist where the country being returned to might cause the death or serious harm to the person removed. [10]

In 2004 the High Court of Australia delivered a number of significant decisions about detainees. Some of the cases before the High Court that year were of a high profile nature, for example, the case of the Baktiyari children; [11] others have become definitive cases in the argument for a Bill of Rights in Australia because of the restrictive pronouncements. It became obvious to those who believed that human rights were protected by the High Court, the Constitution, and by International Protocols and Treaties that Australia had ratified, that this was not so.

For many years those who have worked for refugees, those who have conducted inquiries into immigration centres and those who have worked in detention centres had reported on systemic problems in failure to adequately deliver mental health services to detainees locked up for months and years in often cruel and punishing environments. And for many years nothing changed.

What was going on in these detention centres that saw men, women and children cutting themselves, going on hunger strikes and sewing up their lips? What was going on that saw mental illnesses ignored and untreated? How did someone as unwell as Cornelia Rau go unnoticed in both the prison system in Queensland where she was detained initially, or in Baxter Immigration and Processing Centre where she remained in a deteriorated state?

What will happen as a result of the Australia having detention centres which caused and failed to treat mental illnesses to so many? Who is responsible?

2. IMMIGRATION DETENTION

The Migration Act 1958 (the Act) requires all unlawful non citizens to be detained in immigration detention. The detention is to occur until the detainee is released into Australia, granted a visa or removed from Australia. [12]

The Migration Act 1958, Section 5

Immigration detention is defined as Section 5 (S 5)

  1. being in the company of, and restrained by:
    1. an officer; or
    2. in relation to a particular detainee-another person directed by the Secretary to accompany and restrain the detainee; or
  2. being held by, or on behalf of, an officer:
    1. in a detention centre established under this Act; or
    2. in a prison or remand centre of the Commonwealth, a State or a Territory; or
    3. in a police station or watch house; or
    4. in relation to a non-citizen who is prevented, under section 249, from leaving a vessel - on that vessel; or
    5. in another place approved by the Minister in writing;

The Migration Act 1958, Section 36

Section 36 (S 36) of the Act determines who shall get protection

Protection visas

  1. There is a class of visas to be known as protection visas.

    Note: See also Subdivision AL.

  2. A criterion for a protection visa is that the applicant for the visa is:
    1. a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
    2. a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:
      1. is mentioned in paragraph (a); and
      2. holds a protection visa.

Protection obligations

  1. Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
  2. However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
  3. Also, if the non-citizen has a well-founded fear that:
    1. a country will return the non-citizen to another country; and
    2. the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
    subsection (3) does not apply in relation to the first-mentioned country.

Determining nationality

  1. For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.
  2. Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

The Migration Act 1958, Section 189

Section 189 (S 189) of the Act provides

  1. If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
  2. If an officer reasonably suspects that a person in Australia but outside the migration zone:
    1. Is seeking to enter the migration zone (other than an excised offshore place); and
    2. Would, if in the migration zone, be an unlawful non-citizen;
    the officer must detain the person.
  3. If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person.
  4. If an officer reasonably suspects that a person in Australia but outside the migration zone:
    1. Is seeking to enter an excised offshore place; and
    2. Would, if in the migration zone, be an unlawful non-citizen;
    the officer may detain the person.
  5. In subsections (3) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

The Migration Act 1958, Section 196

Section 196 (S 196) of the Act provides

Duration of detention

  1. An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
    1. Removed from Australia under section 198 or 199; or
    2. Deported under section 200; or
    3. Granted a visa.
  2. To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
  3. To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.
  4. Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
  1. (4A) Subject to paragraphs (1) (a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.
  2. To avoid doubt, subsection (4) or (4A) applies:
    1. whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and
    2. Whether or not a visa decision relating to the person detained is, or may be, unlawful.
  1. (5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.
  2. This section has effect despite any other law.

The Migration Act 1958, Section 198

Section 198 (S 198) of the Act provides

Removal from Australia of unlawful non-citizens

  1. An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
    1A. In the case of an unlawful non-citizen who has been brought to Australia under section 198B for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved).
  2. An officer must remove as soon as reasonably practicable an unlawful non-citizen:
    1. Who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and
    2. Who has not subsequently been immigration cleared; and
    3. Who either:
      1. Has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or
      2. Has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.

    2A. An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

    1. The non-citizen is covered by subparagraph 193(1)(a)(iv); and
    2. since the Minister's decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
    3. in a case where the non-citizen has been invited, in accordance with section 501C, to make representations to the Minister about revocation of the original decision-either:
      1. the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
      2. the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.
    Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in regulations under section 501E.
  3. The fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so does not prevent the application of subsection (2) or (2A) to him or her.
  1. An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:
    1. is a detainee; and
    2. was entitled to apply for a visa in accordance with section 195, to apply under section 137K for revocation of the cancellation of a visa, or both, but did neither.
  2. An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
    1. the non-citizen is a detainee; and
    2. the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
    3. one of the following applies:
      1. the grant of the visa has been refused and the application has been finally determined;
      2. the visa cannot be granted; and
      3. the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
  3. An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
    1. the non-citizen is a detainee; and
    2. Subdivision AI of Division 3 of this Part applies to the non-citizen; and
    3. either:
      1. the non-citizen has not been immigration cleared; or
      2. the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
    4. either:
      1. the Minister has not given a notice under paragraph 91F(1)(a) to the non-citizen; or
      2. the Minister has given such a notice but the period mentioned in that paragraph has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.
  4. An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
    1. the non-citizen is a detainee; and
    2. Subdivision AJ of Division 3 of this Part applies to the non-citizen; and
    3. either:
      1. the Minister has not given a notice under subsection 91L(1) to the non-citizen; or
      2. the Minister has given such a notice but the period mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.
  5. An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
    1. the non-citizen is a detainee; and
    2. Subdivision AK of Division 3 of this Part applies to the non-citizen; and
    3. either:
      1. the non-citizen has not been immigration cleared; or
      2. the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
    4. either:
      1. the Minister has not given a notice under subsection 91Q(1) to the non-citizen; or
      2. the Minister has given such a notice but the period mentioned in that subsection has ended and the non?citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.
  6. For the purposes of subsections (6) to (9), a valid application under section 137K for revocation of the cancellation of a visa is treated as though it were a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

So, in summary, a person who arrives in Australia and does not have a valid visa must be detained.

It is the conditions of detention and the duration of that detention that has caused most of the mental health problems of detainees and former detainees.

There are no regulations determining the conditions of detention under the Act. This has been criticised by the Federal Court. On two occasions. [13] And still regulations do not exist. The High Court has held that the conditions of detention do not make the detention unlawful. [14]

The High Court also held that detainees who cannot be removed from Australia, once refused refugee status, could be detained pursuant to the Act indefinitely. [15] In spite on international instruments against detention without trial and in spite of international instruments against torture.

Detention centres in Australia are managed by private companies.

Detention centres in Australia are worse than the prisons for convicted criminals.

And they do not have to be so. The Act does not prescribe the form detention is to take. Detention could occur in community housing, in hospitals, in hostels. But Australia chose to build high security prison-like environments for persons who were seeking refuge and not surprisingly many of those held in these centres have suffered enormously. And now we learn that mistakes were made over who should be in detention. Ms Rau was not an aberration; she was one of 200 persons unlawfully detained in the last decade. [16]

I cannot imagine what the Government was thinking in locking up refugee applicants and other non-citizens in those centres. But the calling of refugee claimants "illegals" might say it all. Maybe that is the key to the issue. It never occurred to those treating people in such a way that they might have protection claims that would be successful. If they were illegal they would be deported and didn't deserve to come here in the first place.

3. MENTAL HEALTH LEGISLATION

In South Australia, as in other parts of Australia mental health legislation exists to support those who are mentally ill and to provide for hospitalization and treatment of persons who are at risk either to themselves or to others because of their illness. (In fact some jurisdictions don't require a mental illness, just that a person has a mental disorder).

Section 12 of the Mental Health Act (SA), which was the mental health legislation applicable in some of the cases mentioned below, says,

Orders for admission and detention

  1. If, after examining a person, a medical practitioner is satisfied-
    1. (a) that the person has a mental illness that requires immediate treatment; and
    2. (b) that such treatment is available in an approved treatment centre; and
    3. (c) that the person should be admitted as a patient and detained in an approved treatment centre in the interests of his or her own health and safety or for the protection of other persons....

4. THE DETENTION ENVIROMENT- MENTAL HEALTH ISSUES AND THE GROWING CONCERNS

Early in 2005 the stories of two women - Cornelia Rau who was unlawfully detained in immigration detention, and Vivian Alvarez Solon, who was wrongfully deported under the Act - became known and shocked many in Australia and elsewhere.

One journalist identified what the problem for Australians really was. He asked Senator Amanda Vanstone, the Minister for Immigration, in an interview on radio in Western Australia following Ms Rau's transfer to a psychiatric hospital, what would have happened to his elderly Eastern European mother who suffered Alzheimer's disease and might forget to speak in English.

It was that pervasive thought that was rippling through Australia at that time: "...but she is one of us!"

It wasn't until the discovery of Cornelia Rau that those of us who were concerned with the failure to deliver mental health services in detention realized that we now had a "poster girl' for mental health issues in detention centres. But why was that so?

It is, as was pointed out in a recent article, ironic because both Cornelia Rau and Vivian Solon were actually not non-citizens. [17]

The reality is that one thing Ms Rau and Ms Salon have in common with each other, apart from being female and having been treated unlawfully, was that they did not come from the East. Most of the thousands, who were detained in immigration detention centres since 1999, were from Iran, Iraq, and Afghanistan. And of those thousands over 80 - 85% were found eventually to have genuine claims under the Act for protection. [18]

No matter how sweet the Baktiyari children looked none was blonde and attractive. All were from Afghanistan. But Ms Rau was from Germany and has lived here since the age of 2, and Ms Solon was an Australian citizen. But Ms Solon was not white so her plight, I suggest, did not concern the public at large as much as Ms Rau's did.

Interest in the plight of the mental health of detainees had caught the eye of some sections of the community including the media before Ms Rau's discovery however. Mental health services in detention had been the subject of inquiries, both national and international, which were highly critical of the conditions for those who were ill. [19]

Gradually more and more staff of detention centres have come forward and spoken out about the failure to exercise care with detainees. A doctor employed at Woomera spoke on Lateline in 2004. In his interview with Margot O'Neill, Dr Simon Lockwood, who had been at Woomera for 3 years said:

"I think I was myself very depressed ... I think from the sheer volume of distress that I saw and the experiences that I witnessed and just the nonsensical nature of it all, and the fact that I couldn't rationally explain it all." [20]

He said that he kept a diary of matters that were significant during his three years in Woomera. Some of his entries are grim reminders of his working life. On the Lateline programme he read out the following entries,

"7 April 2002, a 12 year old boy tried to kill himself today. 6th June 2002 a female detainee signed a suicide note in blood."

He went onto say that during a meeting in Canberra where he was explaining his concerns about the degree of mental illness at Woomera to DIMIA management:

"And then towards the end of the meeting one of the bureaucrats said to me in front of everyone, "That sounds all well and good to us, Simon, but we don't want to make it so nice for them in detention that they won't want to leave" ... The problem I had with DIMIA is that they're not doctors, they're not nurses, they're not psychologists, and yet they would do the opposite of what was recommended by an expert in child psychiatry for example." [21]

Mary Babenec, a former Baxter nurse said on the SBS programme "Behind Closed Doors' aired on 26 April 2005:

"I worked in several detention centres and Baxter was by far the worst of all the centres and we watched people over a period of two years when I worked in detention, I watched almost everybody demonstrate illnesses that were indicative or problems associated with long term incarceration. Every day I medical clinics we had people with assorted problems that, you know, the lest end of the scale we had anxieties and insomnias, right through a range of you know, symptoms of depression through to you know, we had adult bed-wetters, we had a man who'd become blind ... I saw people less and less able to communicate with each other, and Baxter created, or was an environment that was established almost to set up, you know, or create these problems. It was an appalling environment." [22]

Dr Malcolm Richards, who had been at Baxter in the Christmas of 2004 said also on the same programme:

"I sort of came up as a suburban GP to write six reports. Halfway through the day I realised that I'd jumped into something very, very big and came out stunned at the state of the people I saw and really how poor their mental health (was) ... I think I saw essentially young, healthy men ground into depressed institutionalized people who only saw their future in the institution who really, and in some cases, were profoundly, profoundly unwell. As an institution one should never be judged by the easy cases, the ones that are in and out and processed in three weeks. I think that's a complete distraction. I think one should be judged by what the hard cases, the long-term ones, the ones you find difficult and Baxter had failed the difficult cases absolutely."

Glenda Koutroulis, a psychiatric nurse who was employed at Woomera in 2002, for 6 weeks and dealt with 400 or so asylum seekers, wrote:

"As I look back on my time in Woomera Detention Centre, picturing the silver fences and razor wire mark it, entrapping all those whose implacable despair will burden Australia long after I am gone from this earth, I think about what I was involved in. It was unequivocally observation of and participation in something very indecent, devoid of the values that Mooney forwards as representing decent society. As I reflect, angry and ashamed with what I have witnessed and experienced I feel like I was unknowingly part of a perverse social experience, testing endurance in the face of deception and incongruous decisions about freedom, and the capacity to survive in those who have already struggled to survive. Seen in this light there is an urgent need for sociologists, health care workers and the public health community in general to take a more active political stance against a Government and its policies that actively erode the spirit, the body, and for some, even life." [23]

Lyn Bender, a psychologist who had also been at Woomera wrote in a letter in 2004 on behalf of detainees being sentenced for escaping from immigration detention:

"Daily acts of self harm were enacted, and many detainees were suffering extreme mental ill health; including severe depression and traumatic stress".

Following the discovery of Cornelia Rau's identity the world's press became interested in what was occurring in detention centres in Australia. In an article in Time Magazine in February 2005 Lisa Clausan examined the detention centre system and the breakdown in the mental health of detainees. She wrote:

Years after he walked free from Sydney's Villawood detention centre, Mohsen Soltany should be enjoying his freedom. But the 34-year-old, who fled Iran to avoid persecution for his political beliefs and is now studying surveying and writing poetry, has frequent nightmares and panic attacks: the verse he writes are always dark. He has been recognised as a refugee by the Australian government, but he can't shake free of the four years he spent in detention fighting for that recognition, or forget the attempted suicides, mental illness and mistreatment he saw there...

Instituted by a Labor government in the early 1990's Australia's policy of detaining all who arrive on its shores illegally has been continued by the conservative government of John Howard since he won office in 1996 ... Among Australia's long-term detainees are those who have been denied refugee status; some, like Kashmiri Peter Qasim, who has been held for nearly seven years because India will not accept him without any identification papers, could spend the rest of their lives in detention.

Others who have spent years in limbo are still awaiting a decision and TIME has been told that for many of these people, Australia's system for processing visa claims is not moving quickly enough. Its claimed cases are so hampered by delays, challenged decisions and inadequate legal advice that some people who are eventually deemed genuine refugees wait in detention, often with damaging psychological results, for years. [24]

Pamela Curr, well known refugee advocate from Victoria said on the above mentioned SBS Dateline programme:

"...Right now down the road there is a 19 years old boy sitting in his room (in Baxter) rocking backwards and forwards. He's been there for nine months. He's mentally ill, he's depressed, he's come from Kirkuk, a place that was bombed to smithereens. He's terrified of noise and he's going to still sit there until he's suicidal." [25]

As Cyr, in her article in the New South Wales Law Review on mental illness and immigration detention referred to above, the RANZCP submission to the Senate Legal and Constitutional References Committees into the Administration and Operation of the Migration Act (29 July 2005) included the statement that:

"We are also concerned that the environment of the detention centre creates a culture which perceives disturbed behaviour as deliberately disruptive rather than a symptom of illness." [26]

The article goes onto confirm that there are a number of areas where the treatment of psychiatric illnesses in detention was inappropriate.

The number of detainees who have suffered mental health problems may never be known without a proper inquiry but those who were eventually transferred to hospital may give an indication. It was reported in The Advertiser in South Australia in August 2006 that more than 50 detainees from Baxter were transferred to Glenside Hospital from 2002. The newspaper report said:

More than 50 mentally ill detainees at Baxter Detention Centre have been transferred to Glenside Hospital over the past four years, figures tabled in Parliament show. Immigration Minister Amanda Vanstone provided figures to Parliament showing more than have those transferred to Glenside had been detained for more than 2 years. The number of detainees transferred from Baxter, near Port Augusta, peaked in 2005 with 37 admitted to Glenside.

The previous year there were only two according to Greens Senator, Kerry Nettle. Six have been admitted to Glenside so far this year.

Of the 53 detainees admitted to Glenside, 20 received permanent protection visas while 17 received temporary protection visas. [27]

5. SOME LEGAL CASES EXAMINING MENTAL ILLNESS IN DETENTION AND THE CONSEQUENCES

In the middle of 2004 Julian Burnside QC argued a case for Amin Mastipour seeking orders that Mr Mastipour not be detained at Baxter or Port Hedland detention centres. Mr Mastipour had been a single parent of his daughter who was aged 7 when the case was first in the Federal Court.

The case concerned the punishment of Mr Mastipour who was suffering from a mental condition because of the events that had occurred to him in detention.

Mr Mastipour had been ordered in July 2003, while in Baxter, to take off his clothes in front of his daughter. He refused, was handcuffed then placed in the Management Unit in Baxter. He was then confined in that unit until the case challenging his placement there.

In the hearing evidence was given that the management unit at Baxter was 3 metres square, contained a mattress and no other furniture, had bare walls, and contained a close-circuit TV which observed him, was always lit with fluorescent lighting, had no views as the windows were treated, and contained none of the personal property of Mr Mastipour. He was locked in the unit for 23 hours each day. While there his daughter had been deported back to Iran without his knowledge and with lies being told to Mr Mastipour about why she hadn't visited on one particular day. The manager of Baxter, Greg Wallis, had visited Mr. Mastipour in the unit the following day, and told him that his daughter had been returned to Iran. When Mr Mastipour said he didn't believe Mr. Wallis a phone call to Iran was arranged and Mr Mastipour spoke to his distressed daughter. Mr Mastipour then realized for the first time that she had in fact been deported.

His daughter had been in the sole custody of Mr Mastipour since 1998 by a court order in Iran (when she was two years old).

The Full Court of the Federal Court found that the Mr. Mastipour was owed a duty of care. The evidence that had been before the court was from a number of psychiatrists who advised the court that the grief and PTSD that Mr. Mastipour was suffering from was exacerbated by his being detained in the management unit conditions listed above and exacerbated by his being detained away from a capital city where better treatment would be available to him. The orders prohibiting his being held at Baxter and Port Headland mentioned above were granted by the Full Court after an appeal by the Minister against the original court's orders granting similar relief.

The Federal and full Federal Court decisions resulting from Mr Mastipour's matters were one of the first to challenge the conditions of immigration detention. [28]

By the end of 2004 the mental health of many of the long term detainees in Baxter had deteriorated. There were now many detainees who had been in detention for over 3 years. They had arrived prior to Sept 11 2001 and had watched as the world turned against persons of a Middle Eastern background regardless of whether they supported the repressive regimes in their home country or not. The level of psychiatric support was appallingly low; many working in the centre thinking that signs of illness were just detainees acting up. Evidence before the Palmer Inquiry and before the Federal Court confirmed that psychiatric care was often not available at Baxter. There was one psychiatrist who visited irregularly; he had visited in April, August then November, for one day, and not seeing many detainees. He was not scheduled to visit again until February 2005.

Ms Rau arrived at Baxter in about October of 2004, having been initially detained in Queensland Women's Prison. She was seen by medical staff, saw the psychiatrist who on his November visit - and was being 'cared for' by the psychologist who was part of the private health company contracted to deliver medical services.

By the end of November of 2004 Ms Rau was in the management unit that Ahmed Mastipour had been in. No personal property, a mattress on the floor, 24 hour camera surveillance, no window to look out, nothing to read or write and no TV or radio to listen to.

At that time there were about 20 detainees on hunger strike, and three detainees had climbed onto the roof on the gym. One of the detainees, who was refusing food and who had stitched his lips together, was a man named Abdul Hamidi. I had been acting for Mr. Hamidi since he had escaped from Woomera in 2001. I had asked a psychologist to prepare a report for sentencing submissions in his guilty plea. The psychologist, Richard Balfour, reported some weeks before the hunger strike, that he was concerned for the mental health of Mr. Hamidi and thought Mr Hamidi should be transferred immediately to a hospital. As he was a psychologist he did not have the authority to commit him. I learnt that Mr. Hamidi had not seen a psychiatrist except one brief visit in August and although on medication was not being treated. He had self harmed many times; his stomach was so ribboned with scar tissue that he could no longer be stitched when he cut himself, and he had to have sterile strips instead. Both arms had cuts from the armpit to the wrist and his neck was similarly scarred. He had tried to hang himself in detention, had swallowed shampoo on one occasion, and had cut his feet.

I sought a judicial review seeking only that a psychiatrist be permitted to see him. I had a psychiatrist, (the wonderful Dr Jon Jureidini), who was willing to travel the 300 ks to Baxter and visit. DIMIA refused arguing that they were dealing with his health issues appropriately.

The GP used by DIMIA and the psychologist who had seen Mr Hamidi while in detention gave evidence at the Federal Court in the Judicial Review application. Amongst other things they both confirmed that Mr Hamidi was not eating or drinking and had sewn his lips together. They denied his medical condition was as bad as reported by Mr. Balfour and said he did not need any further psychiatric treatment.

Eventually, after days of evidence, the Judge asked the lawyer for the Commonwealth if it was possible for a doctor to see Mr. Hamidi. On the 23rd of December 2004 Mr Hamidi was taken to the Royal Adelaide Hospital, seen by the psychiatric registrar and immediately transferred to Glenside Psychiatric Hospital. He was diagnosed as depressed and was suffering from psychosis. He was hearing voices. He even self-harmed even while in Glenside, as a result of these voices. He was not released from Glenside, even after he obtained a protection visa, until he had recovered sufficiently to live independently. Even now he still receives psychiatric treatment.

While Mr Hamidi was before the Federal Court the three detainees referred to above remained on the roof. The roof was a good place for detainees to be seen. Baxter has been designed so that you cannot see in and detainees cannot see out. It was hot on the roof; some days it was over 30 degrees and there was no shade. After over a week the detainees were taken to the local hospital, not seen by any psychiatrist, rehydrated then sent back to Baxter. The learnt on their return that Mr. Hamidi was being cared for in a psychiatric hospital. They asked me to get medical treatment for them as well.

In February 2005 I lodged applications in the Federal Court seeking treatment in a hospital for these detainees. All were very ill. Dr. Jureidini saw them; Dr. Dudley from Sydney and Dr. Richards from South Australia had seen them after their return from the local hospital for reports for their migration cases. All said they should be receiving psychiatric treatment. [29]

In mid 2005 the Federal Court of Australia brought down their decision in relation to the applications; S v Secretary of DIMIA [30] which held that the Government had failed to exercise care in the treatment of the three mentally ill detainees. Justice Finn found there was systemic failure to deal with the mental health of the detainees and that detention conditions had exacerbated their mental illnesses. It was an interesting judgment, made all the more interesting by two facts - firstly that all three detainees were in hospital by the time the judgement was delivered, second, that all three detainees now have visas and are living in the community. All three continue to receive mental health treatment. All three were refugees from Iran, who developed mental illnesses while in immigration detention because of the conditions of detention.

In the Judgment Justice Finn said that the applications were:

"...a predictable consequence of the decisions of the High Court in Al-Kateb v Godwin (2004) 208 ALR 124 and Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 271 ... In Behrooz it was held that the conditions of immigration detention do not affect the legality of that detention. Nonetheless a clear majority of the court accepted, to use the words of Gleeson J (at [21]) that, Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution or damages. If those who manage a detention centre fail to comply with their duty of care they may be liable in Tort." [31]

In the trial the DIMIA manager of Baxter, Kay Kannis, claimed that she had attempted to locate a psychiatrist to visit Baxter from November 2004 until February 2005. In that time in Baxter there was the 25 odd detainees on a hunger strike, three of them on the roof, and there was Ms Rau who on all reports was in need of psychiatric assessment. [32] Ms Kannis was disbelieved by Justice Finn in his judgment. He said:

"As to the question of whether additional psychiatric services were requested by the Commonwealth in December 2004 - January 2005 to deal with the roof top protestors/hunger strikers I am satisfied that no such request was made by Ms Kannis. I do not accept her evidence on this matter. It is not reflected in the documentary material before me. It is inconsistent with the evidence of Mr. Saxon (the GSL manager). It derives no support from Ms Hinton (the manager of the psychological services). I equally do not accept that, if the concern she said she had had been communicated to Canberra, it would not have elicited a response in the circumstances. There is no evidence of any response having been made.

I regard Ms Kannis' evidence as a reconstructed rationalization of what she now thinks ought to have done. It that at least her appreciation would have been correct." [33]

The cases of Hamidi, Mastipour, and S examine the evidence of psychiatrists who have long claimed that the conditions in detention centres are causing mental illness. As Justice Finn in S said when commenting on the evidence of Drs Dudley and Jureidini on this point:

"Dr. Jureidini's evidence for example is that he is "not actually sure that a psychiatrist can do anything for anybody in Baxter, but if they can, it would require that the were very present in the unit"; he was critical of the regimes both of the management unit and Red 1 and the impact placement in either would have on a person with a mental illness be that placement for observation in isolation or for behavioural modifications; he considered that the fact that these two facilities exist in Baxter "is a significant factor in anybody's life if they live in Baxter Detention Centre, because the possibility of being sent to [either] is always available"; his view was that Baxter "is an environment almost designed to produce mental illness", "there is a pervasive atmosphere of hopelessness in the environment..."

Dr. Richards in turn expressed like views on the atmosphere and environment of Baxter (which he contrasted with Glenside): "Baxter itself is unwell". [34]

Justice Finn found in his judgement that there had been a breach of the duty of care owed to the applicants, that the Commonwealth could not delegate their duty of care for mental health of detainees and that the conditions had 'exacerbated the mental illnesses from which (the detainees) suffered. [35]"

In March of 2006 the Federal Government settled a claim by a child who had been detained in the Woomera and Villawood detention centres - Shayan Badraie - for $400 000 for the mental harm caused to him by his detention. [36] Shayan's case was interesting as Four Corners had disclosed his distress while he was still in Villawood. He had stopped eating and was preoccupied with images of other detainees self harming. Senator Nettle asked how much it cost to litigate against Shayan. The answer was:

ANSWER TO QUESTION ON NOTICE

As at 7 March 2006 the total cost incurred in support of the litigation involving Shayan Badraie was:

Legal fees: $1,390, $ 661.07
Medical Reports: $86,974.70
Other Sundry: $67,495.51
DIMA travel costs: $4,181.43
DIMA accommodation costs: $4,260.00
TOTAL: $1,553,562.71. [37] (my emphasis)

6. WHERE TO FROM HERE

It is obvious that the Bedraie case is not an isolated case. Many of the thousands who were processed in detention centres then granted protection and other visas from the late 1990s will have ongoing mental health problems as a result of the way that Australia detained them while they were being processed. Some spent up to 5 or more years in that environment. Some will probably never realize their full potential.

The cases of Rau and Solon have not settled yet, the litigants in S were not seeking damages. Bedraie settled after he and his family were forced through the court, it only settled after considerable evidence had been called in support of his claim. The costs mentioned above do not include the settlement or the costs of his own lawyers. As was reported at the time of the settlement in an online news report of the case:

"The Federal Government has always argued the Badraie family's detention was lawful.

But Shayan Badraie's lawyer, Rebecca Gilsenan from the firm Maurice Blackburn Cashman, says that is not the point.

"We accept that detention is mandatory and that's what the Migration Act requires," she said.

"What the case is about is the manner in which Shayan was detained, what he witnessed while he was in detention - the fact that he witnessed many events that no child should ever have to witness...."

His desperate parents recorded a secret video inside Sydney's Villawood detention centre documenting the boy's psychological shutdown.

In the video, Mohammad Badraie explained that his son would not drink water nor eat.

He said the boy was very fearful and anxious and that Shayan just sat in a corner not speaking.

Fleeing religious persecution in Iran, the Badraie family arrived in Australia by boat in March 2000.

They were held at South Australia's Woomera detention centre for a year and there another child - a girl - was born.

Ms Gilsenan says the family was living in a very volatile environment.

"It was overcrowded, it became a very volatile environment in which there were riots, protests, there was use of tear gas and water cannons in an attempt to control those protests," Ms Gilsenan told ABC Radio's AM program.

"There were a lot of unhappy, angry and mentally ill adults.

"There were a lot of suicide attempts, hunger strikes, conflict between detainees and between detainees and detention officers."

Ms Gilsenan says the situation did not improve when the family was transferred to Sydney.

"At Villawood detention centre, he [Shayan] and another child found a detainee in his room who had just slashed his wrists and when they found him, he was said to be bleeding profusely from his wrists and that's something that actually figured later on in Shayan's drawings - the man who slashed his wrists," she said.

After that event, Shayan Badraie became mute, suffered night terrors and was medicated, with several psychologists regarding his development as poor.

The boy had to be admitted to hospital and on eight occasions Shayan had to be rehydrated and drip-fed.

Ms Gilsenan says the damage is expected to be permanent.

"Given his severity of his symptoms now, the seriousness of his psychiatric diagnosis, I think that Shayan will find it very difficult to develop as a normal adult, to be able to form normal relationships and to hold down employment and interact with the world as normal adult," she said." [38]

Persons in immigration detention who were harming themselves either directly through cutting themselves etc or indirectly through hunger strikes were persons who were at risk to themselves and therefore were persons who should have been treated under relevant mental health legislation. All who I acted for in 2005 and 2006 in attempts to get adequate mental health care suffered from mental illnesses.

It is interesting that lawyers don't often ask why something goes wrong, but merely try to seek compensation for those who are injured as a result of fault. It may be that the resulting numbers of cases that will arise from the harm done to detainees will begin the debate on the conditions in detention centres. Maybe it won't because coincidentally, (or not), most detainees come from the very parts of the world where to challenge authority was a dangerous thing to do.

The fact that people would escape the horrors of the Taliban, Saddam Hussein or the Iranian regime would not surprise anyone who supports entering into armed conflict in those nations to rid the nations of their horrific and cruel leaders. Yet those who escaped are the very people we targeted in our detention environment.

It is only a short time ago that the Tampa case occurred, that we were lied to about refugees throwing their children overboard, and we failed to mourn those whose lives were lost on the SIEV X.

After the discovery of Rau and Solon the Federal Government announced two closed inquiries, one the Palmer Inquiry which investigated the unlawful detention of Rau, the other, the Comrie Inquiry which investigated the wrongful deportation of Solon.

Both reports made recommendations that were supposed to address what was found to be systemic failures to provide for the health and wellbeing of detainees. Further, there was additional funding granted to the Commonwealth Ombudsman's office to investigate detainees and report on the compliance with the recommendations and deal with complaints.

This is not enough.

In July 2005 the Prime Minister and Senator Vanstone apologized to both Ms Rau and Ms Solon. There has not been any apology to the three applicants in the case of S before Finn J, to Ahmin Mastipour whose daughter was deported without his saying goodbye or being able to instruct a lawyer to prevent the deportation, to those on the Tampa who were found to be refugees, to those accused of throwing their children in the ocean to ensure passage into Australia or to any of the men, women and children whose lives have been ruined by their being locked in such inhumane environments.

I am certain that most who suffered and continue to suffer will just get on with their lives, and would not contemplate litigation. They are just so grateful and thankful to those in the community who did care and who supported their release. But some will, and when they do those who act in these cases have to be aware that the Commonwealth brief lawyers to fight these cases. One has only to look at the resources used to fight the Badraie case to understand that.

So it is with this in mind that I, and others like me, call for a Royal Commission into the detention system, not just the wrongful detention or removal of persons affected by errors. It is not the errors that cause the greatest concern but the system itself.

Any inquiry has to be extensive, open and with the aim of ensuring that the next wave of asylum seekers who come to our shores and through our airports seeking sanctuary are treated with dignity and respect.

Footnotes

[1] Behrooz v Secretary DIMA (2004) 208 ALR 271; Hassan and Ors v ACS and Ors [2002] SASC 127

[2] Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; Re Woolley; Ex parte Applicants M276/2003 by their next friend GS [2004] HCA 49

[3] Al Kateb v Godwin and Ors (2005) 208 ALR 124

[4] e.g. The Universal Declaration on Human Rights:

Article 9: "No one shall be subjected to arbitrary arrest, detention or exile."

- International Covenant on Civil and Political Rights:

Article 7: "No on shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment".

Article 23: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State".

- Convention on the Rights of the Child:

Article 3: "the best interests of the child shall be the primary consideration .... (and state parties are) to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians or other individuals legally responsible for him or her..."

- Ruddock and Vadarlis [2001] FCA 1329

[5] S v Secretary DIMIA (2005) 216 ALR 252

[6] Ruddock v Taylor [2005] HCA 48

[7] S v Secretary DIMIA (2005) 216 ALR 252

[8] Behrooz v Secretary, Dept of Immigration and Multicultural Affairs and Ors (2004) 208 ALR 271

[9] The case of Beyazkilinc is still before the Federal Court in relation to this matter but see Beyazkilinc v Manager Baxter Immigration Reception & Processing Centre [2006] FCA 16 for interim stay judgment.

[10] WAJZ, WAKA, WAGF, WAKB, WAKE and WADX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 1332

[11] Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20

[12] ss 189, 196 and 198 of the Act"

[13] S v Secretary DIMIA (2005) 216 ALR 252 at [198] ; Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 at [2], [8] ff

[14] Behrooz v Secretary, Dept of Immigration and Multicultural Affairs and Ors (2004) 208 ALR 271

[15] Al Kateb v Godwin and Ors (2005) 208 ALR 124

[16] "Wrongful Detention: 200 Cases go to Inquiry" Sydney Morning Herald, 25th May 2005 p1

[17] "Mental Illness and Indefinite Detention at the Minister's Pleasure" Lunday Crowley-Cyr [2005] UWSLRev 4

[18] About Woomera Four Corners 19 May 2005; and Refugee Action Committee and "Alternatives to Mandatory Detention" http://www.refugeeaction.org/ May 2005

[19] Report of Justice Bhagwati, Regional Adviser for Asia and the Pacific for the United Nations High Commission for Human Rights; Mission to Australia 24 May to 2 June 2002. and HEREOC Report on Visit to Immigration Detention Facilities by the Human Rights Commissioner 2001 http://www.humanrights.gov.au/

[20] http://www.abc.net.au/lateline/content/2004/s1229335.htm

[21] http://www.abc.net.au/lateline/content/2004/s1229335.htm

[22] Dateline Transcript April 26 2005

[23] G Koutroulis "Detained Asylum Seekers, Health Care, and questions of Human(e)ness". Australian and New Zealand Journal of Public Health (2003) vol 267 no 4 p 384.

[24] Time, February 21 2005, p 34-5

[25] Dateline Transcript April 26 2005

[26] N 15.3

[27] The Advertiser August 10 2006

[28] See ref to Behrooz above.

[29] There was no real interest in the press about these court cases. Those of us working in the detention environment were already aware of the cases of Mastipour and Hamidi and now three more in court questioning the conditions of detention in Baxter, pointing to cruel units where people were placed who were psychiatrically unwell. Psychiatrists employed by DIMIA rarely visited. Did the press cover this story? If true, the allegations were pretty horrific. Unwell people not being treated. Well, not really. On the first day in the Federal Court for the detainees I think one journalist for The Australian attended. Then a strange thing happened: the Cornelia Rau story broke. On the next day in the Federal Court for the three detainees, every TV station in Adelaide and the print press attended. Now they were interested.

[30] S v Secretary DIMIA (2005) 216 ALR 252

[31] Ibid at [1]

[32] Within the next 6 months at least 8 detainees would be sent to hospital because of serious mental health issues.

[33] Ibid [161] [162]

[34] S v Sec, DIMIA [181] [183]

[35] S v Sec DIMIA [214] [257-262]

[36] See (NOTE: cropped link, only quote true link, not the text displayed here:)
http://www.smh.com.au/.../immigration-pay-boy-400000/.../03/1141191820943.html

[37] [Greens-Media] Immigration has spent nearly $2 million so far in legal costs against refugee child. Press Release 31 May 2006

[38] http://www.abc.net.au/news/newsitems/200508/s1447392.htm Saturday, August 27 2005

2008-2012
2005-2012
Project SafeCom