Australia's ratification of the Optional Protocol to Convention against Torture (OPCAT)

The Law Society Northern Territory (The Society) has welcomed the opportunity to make a submission to Australia?s ratification of the Optional Protocol to Convention against Torture (OPCAT).

The Society represents approximately 600 lawyers in the Northern Territory including Government and private lawyers. The mission of the Society is to enhance access to justice, improving the law and maintaining individual rights. Importantly the Society is charged with considering proposed changes in the law and aiding such amendments and reforms thereof that are likely to benefit the public. In doing this the Society focuses on evidence based interventions and ensuring legal needs are addressed.

There is no immigration legal service in Darwin or elsewhere in the NT similar to those operating interstate. Existing legal service providers offer limited legal and advocacy assistance taking into account a range of service delivery requirements to the region and their existing budgetary constraints.

The backdrop against which this assistance is provided is also of note. Larger jurisdictions have a significant profession which includes a large pool of pro bono practitioners. Importantly the private profession is made of approximately 35 firms the bulk of whom are sole practitioners, many elect not to absorb this work for commercial reasons. The Society?s Pro Bono Clearing House faces challenges specific to the region to meet the calls for assistance as the small pool of practitioners is already stretched.

The level of legal need is higher in the Northern Territory than in other parts of the country. Legal assistance providers including those providing legal information and help in relation to refugee and immigration matters are under-resourced and advocacy assistance to asylum seekers in the NT is limited. To achieve improvements in access to justice in the Northern Territory, a significant increase in funding for legal assistance services is required. Conversely any shortage of funding and services in the Northern Territory has a disproportional impact on disenfranchised people?s access to justice.

There is abundance of evidence that unrepresented litigants are costly to the legal system and place a burden on already stretched resources.

The Society has conducted consultations with the following stakeholders in developing this response to the OPCAT:

• The Social Justice Committee (The Committee) of the Society
• Northern Territory Council of Social Services (NTCOSS)
• Darwin Asylum Seeker Support and Advocacy Network (DASSAN)
• Migration Support Program (MSP) at Australian Red Cross in the Northern Territory
• Australian Medical Association (AMA) in the NT
• legal practitioners who work with asylum seekers in immigration detention centres on a pro bono basis

The Society strongly endorses Australia?s ratification and implementation of the Optional Protocol to the Convention Against Torture.

Part I, Art. 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as ?any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.?

Asylum seekers are people within our society that are particularly vulnerable to disadvantage and human rights abuses. The treatment of asylum seekers in immigration detention centres in the Northern Territory is torture by this definition. That is why the focus of our submission will be on asylum seekers and immigration detention in the NT.

This submission provides Northern Territory specific information on:

• Evidence for the positive impact/benefits that ratification of OPCAT would have on detention facilities in the NT
• Any relevant case studies that demonstrate potential cost savings, for example case studies involving the payment of compensation for deaths in custody, wrongful detention and/or unlawful conditions of detention
• Any relevant procedures or policies that currently apply to representatives visiting detention facilities that could be used as models to ensure the safety of UN officials inspecting Australian detention facilities

 

SUMMARY

The Society seeks

• Australia?s ratification and implementation of OPCAT
• Recognition of the legal needs created by the inhuman treatment of asylum seekers in immigration detention and adequate funding to ensure those needs are met
• The urgent use of community detention in the NT
• The urgent establishment of a Legal Advice Service for asylum seekers in the NT

 

IMMIGRATION DETENTION CENTRES IN THE NORTHERN TERRITORY

The Law Society Northern Territory is uniquely positioned to comment on asylum seekers and immigration detention issues. This arises principally from the location of immigration detention facilities in Darwin itself, as opposed to in remote locations in Australia or offshore.

In Darwin, asylum seekers are held in detention at:

1) Darwin Airport Lodge (an alternative place of Detention or APOD).
This private sector facility holds families and unaccompanied minors. This includes babies, children and women. The current capacity of this facility is 435 people but it is currently under capacity. It is important to note that this figure can vary from one day to the next depending on visas granted, movement to community detention and arrivals from other centres. It is a modified motel thus not well suited for family accommodation.

2) Northern Immigration Detention Centre (NIDC)
This facility holds unaccompanied men (usually who have wives and families still in unsafe situations overseas). The NIDC has a capacity of 536 but is currently under capacity. Unaccompanied minors who are alleged foreign fishers are also held in this facility. We have reports that up to 70 children are in this facility.

3) Wickham Point.
This is a new facility opened in December 2011. The centre will hold up to 1,500 unaccompanied men. As of March 2012 Wickham Point held approximately 800 men. It is predicted that the facility will hold 1200 detainees by June 2012.

4) Berrimah House
Currently empty.

SERVICE PROVIDERS FOR PEOPLE IN DETENTION IN DARWIN

There are a number of major service providers for people in detention in Darwin. These are:

1. The Department of Immigration and Citizenship (DIAC).
DIAC staff undertake case management, contract and operational management, policy, guardianship for unaccompanied minors and are responsible for the processing and determination of claims for a protection visa;

2. SERCO
On 29th June 2009, DIAC entered into a five-year contract with Serco Australia Pty Ltd to provide services to people in immigration detention centres throughout Australia. This includes: management of detention centres; provision of activities and services; and transport and escort services. SERCO runs all 3 Northern Territory Detention facilities.

3. IHMS
In January 2009 DIAC signed a contract with International Health and Medical Services (IHMS) to provide a range of health services to people in immigration detention around Australia. This includes the provision of health services related to mental, physical and dental health.

4. Life Without Barriers (LWB)
LWB provides independent observer support to unaccompanied minors (an independent adult to accompany unaccompanied minors in legal and migration hearings) and carers for unaccompanied minors.

5. Red Cross Australia
Red Cross provides a range of services including: independent humanitarian observers, international tracing services as well as the Asylum Seeker Assistance Scheme (ASAS). The ASAS provides financial assistance and general healthcare support to eligible refugees and asylum seekers. Services include: income support (89% of Centrelink Special Benefit); general health care and medical costs; and casework support including referrals to other agencies. The Federal Government has recently announced that this scheme will be extended to IMA?s who are granted bridging visas.

Red Cross Australia is responsible for providing support to people being released from Detention into both community detention and on bridging visas. In theory the support for people being released on bridging visas is provided for a limited time period while people find accommodation and work.

6. Melaleuca Refugee Centre Torture Trauma Survivors Service of the NT Incorporated
As a torture and trauma service, Melaleuca provides torture and trauma counselling services on referral from IHMS only.

7. Immigration Advice and Application Assistance Scheme (IAAAS) providers
Free, professional migration advice and application assistance to eligible immigration clients including asylum seekers. It ceases once the visa applied for has been finally determined as granted, or refused following merits review. There are potentially 22 different IAAAS providers servicing people in the NT.

8. Northern Territory Government
Memorandums of Understandings exists between Territory Government Departments and other agencies for the provision of Acute Health Services and Education.

9. Other
In addition other service agencies are contracted according to need e.g. IHMS may contract counselling for family relationship counselling, or additional mental health services or for physiotherapy services. SERCO may contract an outside agency to provide specialised support and activities.

COSTS OF TORTURE

The Society understands that one of the concerns of the Australian Government regarding the ratification of OPCAT is the potential costs of implementing the oversight mechanisms in the OPCAT.

Costs: medical assistance

The number of self-harm and suicide attempts of asylum seekers in immigration detention centres in Darwin in 2011 can be counted in the hundreds[1].

The number of people attempting suicide as a result of detention is increasing. There is currently a self-harm epidemic occurring in Darwin detention centres with reports of up to five asylum seekers a day attending the Emergency Department (ED) of Royal Darwin Hospital (RDH) after self-harming. These people are usually discharged the same day and returned to detention (source: Australian Medical Association and ABC News 20 March 2012[2]).

The average daily cost per person attending ED is roughly $500 (source: doctor at Royal Darwin Hospital). Additionally, costs for interpreters have to be covered.

These costs incur as a result of torture. For example, ED attendances as a result of the treatment of asylum seekers by the government, falls within the definition of torture.

The Society investigated and spoke with Dr Paul Bauert, President of AMA NT, who confirmed that doctors are treating up to five asylum seekers each day at Royal Darwin Hospital, on some days the number is even higher. Dr Bauert said that the hospital?s resources are overstretched and RDH is not able to cope with the pressure.

The costs of a preventive strategy, i.e. UN officials inspecting Australian detention facilities, would be at least a cost shift, if not a total cost saving, with better human outcomes.

Costs: policing and legal assistance

The Minister of Immigration and Citizenship. Chris Bowen MP, and NT Chief Minister, Paul Henderson, signed a $53 million Memorandum of Understanding (MoU) for the provision of policing services and cooperation with the Immigration Department on 12 March 2012.

The MoU is an important step in formalizing the federal Government?s relationship with the Northern Territory Government around the growing industry of immigration detention facilities. Darwin is being called the ?detention capital of Australia? with the expansion of detention centres here to 3000 beds.

The Society would like to highlight that it is not enough to provide $53 million over two years on policing without additional funding to other parts of the legal and justice system. As both governments accept this is a growth area for the Territory, then legal service providers such as the Northern Territory Legal Aid Commission need to be funded to meet that growth.

There is abundance of evidence that unrepresented litigants are costly to the legal system and place a burden on already stretched resources. By providing funding for an independent legal advice service the current costs for the legal sector would be limited and resources could be redirected to the community.

The Society calls upon both governments to support the Society?s call for the establishment of a legal assistance service for people in detention.

Natural justice and procedural fairness principles dictate that those subject to legislative provisions ought to have access to legal representation to assist them to address any concerns.

It is thus essential and overdue that asylum seekers have access to an independent legal advice service and appropriate support in the Northern Territory.

 

COMMUNITY DETENTION

Community detention is available in all States and Territories with the exception of the Northern Territory.

The Society is concerned about the use of long-term detention and about its impact on individuals seeking asylum. The Society supports the use of community detention in the Northern Territory while asylum seekers? applications for protection are being processed.

The concerns are primarily related to the impact of long term and indefinite detention on the wellbeing and long term settlement of asylum seekers as potential members of the Australian community. This was also associated with concerns about the cost involved in maintaining detention facilities when these resources could be better used to enhance community services not just for asylum seekers but for the community as a whole.

According to a report by NTCOSS[3] It is estimated to cost $113,000 per year to keep a person in detention in Australia. If people were allowed to live in the community while their application was being processed it would cost approximately $31,480 per year (based on Centrelink benefits with rental assistance). If they are granted work rights, they may in fact contribute to the economy rather than be reliant of government benefits. In addition there is concern about the long-term costs to the community in terms of poor mental health and poor settlement outcomes; however these costs have not been quantified. They would be alleviated if people were not kept in detention while their visa was processed.

The society calls for the urgent use of community detention in the Northern Territory.

MENTAL HEALTH

It is well documented that detention has a dramatic impact on mental health ? current research indicates that excluding pre-existing experiences of torture and/or trauma, 3% of people in detention at three months experience a mental illness. At two years this increases to nearly 50%.

The Mental Health Council of Australia reports high rates of self-harm in detention with 1100 self-harm incidents reported in 2010/2011 or up to three or four a day being reported. These rates place suicidal behaviour by people in detention at more than 26% higher than in the general community[4].

NTCOSS reports that the Royal Darwin Hospital has seen a child as young as nine years old admitted for self-harming.

Because the majority of asylum seekers (up to 90%) go on to receive permanent visas, a long-term settlement problem associated with poor mental health outcomes was being created.

The Society is concerned about the long-term issues created by the detention system. Issues of particular concern identified are: levels of mental illness; levels of self-harm; the impact on relationships and parenting capacity; the reported levels of use of medication to cope and the long term impact of this; and the impact of people?s capacity to contribute to Australian society in terms of work after release. In addition the capacity to provide any therapeutic or recovery services while people were still being subject to the same factors upon is questioned.

DASSAN stated in a press release of 20 March 2012[5]: ?NIDC and immigration detention centres generally are not fit places to house human beings for long periods of time. The levels of self-harm inside the NIDC are now out of control. In the past few weeks there have been four people attempt suicide by hanging themselves, a large number of self-harm incidents and a number of hunger strikes?.

Having UN officials inspecting detention facilities as a mechanism of OPCAT would contribute to the mental health of detainees.

SAFETY

The Society understands that one of the concerns of the Australian Government regarding the ratification of OPCAT is the safety of United Nations officials who will be authorised to inspect detention facilities.

The Society spoke with different types of visitors to detention: official and supportive. None of the people we talked to (lawyers, service providers such as Red Cross or DASSAN) ever felt threatened by detainees. In fact the comments expressed there was greater fear from the security present.

 

CONCLUSION

In conclusion the Society is pleased to comment on the OPCAT.

We strongly support Australia?s ratification and implementation of OPCAT, particularly in order to ensure that Australian detention facilities adhere to international standards.

This submission focusses on asylum seekers and immigration detention issues. Additionally, we would like to raise that the ratification of OPCAT would also be beneficial for people in other detention facilities in the Northern Territory such as secure care facilities for minors and adults as well as prisons.

Assuming adherence to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and OPCAT we envisage savings of the following costs:

• costs of detention
• costs of ED attention
• costs of policing
• human costs.

Furthermore, we expect economic, social and humanitarian contributions. These resources could be redirected to the community as a whole. In essence, compliance would be a net benefit to Australia.