AJA at the Joint Standing Committee on Migration's Detention Inquiry public hearing

CHAIR?I noted in your verbal submission the constant bracketing of the previous government and the ALP. You do not detect any change in attitude on these issues since the election?

Ms Gauthier?I have detected a change, but I would say that it appears to me to be a continuation of the reform to the detention process that was started in 2005 by the Howard government. I do congratulate?although they were very small changes?the previous government on starting that process. Again, all of the changes that happened under the previous government and are currently happening so far are non-enforceable, non-reviewable and relatively vague changes that rely on the goodwill of the department or the minister to behave in certain ways. I do not believe that is acceptable under our legal systems; what we need is actual legislative change or the political wind could shift at any moment and we are going to go back to the conditions that we had of children and various other vulnerable people being kept in places like Curtin and Woomera.

CHAIR?Do you really see the current government putting children back into detention under certain circumstances?

Ms Gauthier?No, I do not see that. What I am saying is that without legislative change it remains a possibility in the future. Whether or not you have a situation like now where the current parliamentarians of both parties say they do not wish to do that, do we still want to retain the ability that it could happen in the future? If everyone says, ?No, we absolutely do not want to do it?, then what is the problem of having legislation that says it cannot be done?

CHAIR?Is it not possible that under a future government, even if you had legislative change during the current government, that they could legislate to change it back to the system prior to 2005? Another way of looking at it is that Australia and other groups have done a fantastic job in changing public opinion and the political culture and that that is the way to proceed, rather than looking at black letter law changes?

Ms Gauthier?That is one way to proceed. I see both of those things working hand in hand. Certainly to change legislation again in the future requires the government to hold both houses of parliament, which is something that does not happen very often in Australia.

Senator HANSON-YOUNG?Do you consider residential housing to be a form of detention?

Ms Gauthier?Yes, I do. It is certainly a more compassionate form of detention. What happens at the moment is that residential housing is used as the most mild form of detention, but I would say that residential housing could be used as what I would refer to as medium-security level, because they really are still within a detention environment and they do not have access to come and go as they please. It was a great step forward for the families, particularly ones who were held in Woomera and Baxter. It was a great improvement, but it is still a detention environment.

Senator HANSON-YOUNG?In relation to independence and ensuring that we can have transparency in reviewing an individual case or a batch of cases if there are issues in a particular facility, how do you see that the role of the Ombudsman could be strengthened?

Ms Gauthier?The Ombudsman does not have enforceability powers and that is where the whole problem lies. For a start, the Ombudsman is only going to review cases at six months. I would say that reviewing whether or not someone?s detention is lawful at six months is probably a little too long to wait for that to happen. I think the Ombudsman should come in a little earlier.

On the other hand, if we have enforceable remedy review, then six months would be okay, but I think that the Ombudsman should review all cases of detention at that point as a final check on how the system is going. As I said, the whole problem with the Ombudsman is that it is not enforceable. One of the things that we have is the Refugee Review Tribunal. There are already tribunals there who could be mandated to look at these kinds of things.

Another issue I want to raise with the review is that part of the new policy that has been announced will be an internal three-month review conducted by the department, which is a great step forward, but it is not where we need to end up. One of the things I would suggest to the department is that they either hire somebody who has the expertise in making those kinds of detention decisions where you have to weigh up security and compliance risks and the safety of the community versus the inherent right to liberty.

There has been some view by the minister?s office, which I tend to agree with, that they want to ensure that the department retains ownership of decisions to detain, rather than what we have had in the past where detention officers willynilly whack somebody into detention because there is no review. I would recommend that they seek training from outside bodies, particularly from people within judicial review and mental health review boards, to give them the training to adequately make that a robust internal review.

Senator HANSON-YOUNG?We have heard from the Ombudsman himself that he does not have the ability to assess somebody?s mental health condition. I take your point that it is a position without much teeth, because there is really no authority there. You can review whether somebody is being held lawfully or not, but that is not necessarily reviewing that individual?s case in terms of their own safety, as well as the community?s.

Ms Gauthier?The problem is that the law says if somebody does not have a visa you have to keep them in detention. Reviewing whether or not someone is held lawfully really does not catch everything. A merits review is what we need of whether there is a need to detain somebody?just on a cost basis, for a start. It is incredibly expensive when you take into account the amount of money we have spent on this.

Senator HANSON-YOUNG?What is your opinion on the detention facilities on Christmas Island remaining a core platform of the current government?

Ms Gauthier?We disagree strongly with excision and remote detention. That being said, under the parameters of remote detention and excision I believe the department is doing the very best that they can to provide a good service for people currently on Christmas Island, but it is completely impossible to provide the level of service on Christmas Island, as a detention facility, as it is on the mainland. You do not have the NGOs and the oversight bodies out there that you have here. You have to fly everything in.

Senator HANSON-YOUNG?Apparently there is only one flight a week.

Ms Gauthier?Yes. It also creates a lot of difficulty, because it is not just the mandated and paid-for bodies who create oversight. There are small church groups, individual advocacy groups like A Just Australia and many others who constantly visit detention and provide a lot of social support to people in detention. That simply cannot happen in Christmas Island where it costs more to get a plane ticket to Christmas Island than it does to Paris. Quite frankly, who wouldn?t rather go to Paris? It is really beyond our capacity to be able to provide the level of service there.

Again, while the department is doing their very best to be open and treat people humanely there, we never know what is going to happen in the future. Our experience with remote detention, where you create a system where you do not have that oversight by community groups and the media, means there is the opportunity for extremely inhumane treatment of people, because you do not have that community oversight.

Senator HANSON-YOUNG?You have said in your submission that you do not think it is appropriate to be housing asylum seekers in the same facilities as other types of deportees. Can you flesh that out a little bit for me?

Ms Gauthier?Yes. Again, I have some sympathy, as the Human Rights Commission outlined, with the issue of section 501 and criminal deportee cases being held in detention. That being said, that is the current policy. I know in the past in Villawood that young Afghan male asylum seekers were held in the same compounds as those criminal deportee cases and were subject to serious assault and harassment. You have completely different populations with differing levels of compliance and different socio-psycho needs, and the result is it creates a lot of difficulties for the service providers as well to be able to provide the different levels of services for everybody. Even though now they are holding people in different compounds?

Senator HANSON-YOUNG?They are still getting service by the same people.

Ms Gauthier?Exactly, within the health and education units and things like that, you have got a lot of crossover. I think it is highly inappropriate. For a start with asylum seekers, how long do you need to be keeping someone in there anyway, and how deep is the level of security that you need for those people? I would say that as we have not had any asylum seekers who have ever been a security problem for Australia, who have never been found to have an adverse security assessment, shouldn?t we be using that experience within Australia to say, ?If we have never had a problem, are we being a little heavy handed in requiring that they remain in a high security facility in order to do these health, character and identity checks??

Mrs VALE?I refer back to part of your submission when you stated that you felt there was a need to place these new policy changes in legislation. After hearing your comments on Christmas Island and the fact that it is so far away and therefore hard for the many NGOs and other organisations to monitor what is happening, I think I really understand what you are saying. You would like to see them enshrined in legislation and reflect the new policy changes so there is less chance of reverting at some stage in the future.

Ms Gauthier?Yes.

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Mrs VALE?In your submission you also talk about media access, which is on the same line. DIAC has informed the committee that detainees may call journalists at any time. Have you found that in your experience? Have you received any complaints otherwise?

Ms Gauthier?That may be a new policy. That certainly has not been the case in the past. I would not be able to comment on anything that they have put in place in recent months.

Mrs VALE?In the past has it been your experience that media access has been restricted?

Ms Gauthier?Absolutely. You may recall about the time that Four Corners did the story on Shayan Badria, all of those photos had to be smuggled out. Cameras had to be smuggled in. There was the story about Port Hedland Detention Centre. I know the video cameras for that story had to be smuggled in and smuggled out of the detention centre. It used to be that when they did photos for the Sydney Morning Herald the journalist would go in as a visitor and very furtively write their notes and as they were leaving the car park the photographer would have to lean out of the car and take a quick snap of the person as they were just walking past the fence.

In the past there has not been any permission for people to talk to journalists or have any media video or photography taken. If they have changed that policy then that is good but, again, it really needs to be documented somewhere. The conditions of detention are also something that needs codification because we have the immigration detention standards, but there is no codification of the conditions of detention as there is in the state prison system, so we have the situation where a convicted criminal has more protection for the conditions in which he is kept than a vulnerable asylum seeker.

Mrs VALE?I note your submission required further codification.

Ms Gauthier?The Migration Act was written for that to occur in the regulations, but the regulations were never written and put into effect.

Mrs VALE?For the record, do you want to expand on that? Are you happy with that comment?

Ms Gauthier?I am happy with that comment, that I recommend that there have to be minimum standards of conditions codified in the regulations as originally intended by the Migration Act.

Mrs VALE?That puts a good full stop on it.

CHAIR?I would like to come back to judicial review. If the powers of the three-monthly review that are being conducted, or the Ombudsman?s review every six months, were beefed up, particularly to take your suggestion that three-monthly reviewers should have more training and perhaps people on the outside attending to this on behalf of the department, would that be a satisfactory alternative to having judicial review?

Ms Gauthier?No, I do not believe it would be. I believe those are great steps. Whether or not we have external judicial review, I believe you may actually want external merits review and then judicial review. Those internal steps are great to make the department take ownership of their own decisions to detain but, like any other form of detention we have in Australia, you need to have external review with enforceable remedies, otherwise we still have the system where we have an extraordinary extension of executive powers being conducted by immigration officers and immigration officials. As outlined in the Palmer and Comrey reports, they are being executed with inadequate training and in extraordinary ways when you compare them to other systems of detention in Australia. That really needs to be rectified.

There is a whole range of ways to do it. A very simple way to have both merits review and judicial review of immigration detention is to have a bridging visa available to anybody, with the criteria for applying for that bridging visa to be that you have been in detention for longer than 30 days or whatever the time limit is that they want to set. Part of the criteria of that, of course, is that a person has passed their health and character identity checks and appears to be making a bona fide claim for asylum. By having that bridging visa in existence, which would be very simple; it is just a change to the regulations, that automatically confers merits review at the RRT stage or MRT stage, and then judicial review. What you would have to do is streamline that process a little bit so you do not have any de facto prolonged detention. That is a very simple way of bringing in merits and judicial review without having to set up a new external body and legislate the powers of that body.

CHAIR?Thank you for appearing, for your submission and for the very comprehensive answers to questions that you gave to us. If you have any questions or comments for the committee or you need to correct your Hansard transcript, please do that.

Ms Gauthier?I would like to make one other point. When Mrs Vale asked earlier about the criteria to release people, I should say we already have standards and criteria in other areas. For example, with health checks, we already have quarantine laws for community release. We can look to judicial review and those areas to determine whatever levels of security checks that you need and, for issues of identity and security, shouldn?t we simply be asking those people to meet the same standards of any other visa applicants who are granted a visa and allowed into the Australian community already? We already do this with tens of thousands of people who come here every year. Why do we make these people meet such an incredibly higher standard than other people who we allow into the community? Thank you.

CHAIR?Thank you.