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Crowley-Cyr, Lynda --- "Mental Illness and Indefinite Detention at the Minister's Pleasure" [2005] UWSLawRw 4; (2005) 9(1) University of Western Sydney Law Review 53

MENTAL ILLNESS AND INDEFINITE DETENTION AT THE MINISTER’S PLEASURE

Lynda Crowley-Cyr[*]

Introduction

This article is an analysis of immigration detention in Australia as the worst form of detention without trial. It is based on a border-control, anti-terrorist policy fortified by unconfined, unstructured and unchecked discretion by the executive and its officers. Such unfettered discretion has led to extraordinary injustices against detainees. This is so, despite judicial authority that states the assumption of the power of control over detained persons (while immigration eligibility is assessed) creates in the government a non-delegable duty to act to safeguard detainee welfare and rights.

The plight of two women, Cornelia Rau and Vivian Alvarez[1], one wrongfully detained, the other wrongfully deported under the Migration Act (Cth) 1958 has captured for the public, much of what is wrong with Australia’s immigration processing system. Their experiences expose a system based on opaque unfettered discretion. Such discretion is buttressed by a culture of indifference to international human rights obligations, the abrogation of the Rule of Law, and the denial of natural justice.

The article is divided into four parts. It begins with an overview of the architecture of the detention regime by way of background and to provide context to the discussion. Part two, the centrepiece of this article, is a chronology of discretionary decisions exercised during the detention of Ms Rau and Ms Alvarez. The chronology aims to illustrate the extent and impact of the innumerable discretionary acts and omissions committed by public officials and then, by privately contracted servants of the Commonwealth. It exposes the human consequences of the exercise of discretionary power without boundaries. It is by assembling the myriad of frequent failures by the Department of Immigration & Multicultural & Indigenous Affairs (DIMIA) and State mental health and missing persons systems that a sense of the magnitude of the dysfunctionality and hazards of unfettered discretion develops. Part three provides an analysis of the discourses of the various reports about the DIMIA’s conduct in terms of the detention of Ms Rau and deportation of Ms Alvarez. Part four analyses the lack of accountability in these cases. It concludes with a review of the fortress/security state’s responses to the recommendations made by the various reports on these detention scandals.

Part One: The Architecture of the Detention Regime – Background and Context

The experiences of two vulnerable detainees, Ms Rau and Ms Alvarez, are emblematic of the ailing immigration system. There are hundreds of others. The quirk is that their notorious story is known and the history of their oppression is now transparent because they were, in reality, not unlawful non-citizens.

Mary Crock captures the essence of the debate and controversy about a system that threatens the very fabric of the Rule of Law in Australia, the DIMIA, in the following statement:

There is a sense in which refugees have threatened to bring Australia’s judicial system to its knees, both literally and juridically. By the end of 2001, the High Court was becoming overwhelmed by applications for judicial review lodged by failed refugee claimants. At the time, refugee cases in the High Court have been at the centre of gargantuan struggles between the government and the judiciary. On the one side is a government intent on stifling the judicial review of refugee decisions on the ground that the determination of protection matters should lie with the executive and with elected politicians, rather than with the unelected judiciary. On the other side are judges imbued with the notion that the courts stand between the individual and administrative tyranny; and that refugee decisions must be made in accordance with the rule of law. In 2003, the battle ceased to be a fight over ‘Protection’—be it protection of borders or protection of human rights. The fight was all about control, and about the balance of power between Parliament, the executive and the Judiciary within the compact that is the Australian Constitution.[2]

I depart slightly from this position insofar as I have reservations about the ‘gargantuan struggle’ between the government and the High Court, at least in cases involving ‘unlawful non-citizens’. In an ideal world we would like to believe that the High Court is the defender of the Rule of Law, but in the recent decision of Ruddock v Taylor[3], it seems that it may have been co-opted into defending the fortress state rather than the Rule of Law.

Detention and Removal under the Migration Act (Cth) 1958

The operation of the Migration Act (the Act) hinges on the distinction between ‘lawful non-citizens’ and ‘unlawful non-citizens’. At the time of their detention, Cornelia Rau was a ‘lawful non-citizen’ in accordance with section 13(1) of the Act, and Vivian Alvarez was a naturalised Australian citizen. An ‘unlawful non-citizen’ is a person who is within the migration zone (an Australian State or Territory) without a current visa.[4] A logical conclusion would be that if a person is either a citizen or a lawful non-citizen and such person is erroneously detained as an unlawful non-citizen, a wrong has been committed against the person. The High Court’s recent interpretation of s 189 of the Migration Act casts shadows of uncertainty on such logic.[5]

Sections 188, 189, 196, 198 and 256 of the Migration Act are of particular relevance to the Rau and Alvarez cases. At the time of their detention, s 189 of the Act required a person to be detained ‘if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen’. An ‘officer’ included a DIMIA officer, a customs officer, a protective services officer, a member of the Australian Federal Police or State or Territory police, ‘or any other person authorised by the Minister’.[6] Section 196 fixed the period of detention. Unlawful non-citizens had to be detained until they were either ‘removed, deported or granted a visa’. Section 188 provided that an officer could require anyone suspected of being a non-citizen to produce ‘evidence of being a lawful non-citizen’.

Section 198 allowed for the removal from Australia of unlawful non-citizens ‘as soon as reasonably practicable’ where the person requests this in writing to the Minister, or the person’s temporary visa has expired, or where the person is a detainee but does not hold or has not applied for a current visa. Section 256 of the Act required DIMIA to afford detainees ‘all reasonable facilities’ for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

Compliance with Human Rights Obligations

An analysis of the trauma and suffering experienced by Ms Rau and Ms Alvarez through a human rights prism would be different to those that have been generated in the inquiries and in the media. A critique constructed around human rights discourse would focus on the breach of fundamental individual rights to life, liberty and security of the former ‘detainees’ in accordance with the principles of fundamental justice and international human rights law.[7] It would also focus on the denial of appropriate physical and mental health care available to detainees in general.[8] As reported by the Senate Committee about Ms Alvarez, for instance, ‘the lack of attention to the mental health of Ms Solon itself is a damning indictment of the level of care provided to this woman’.[9]

The human rights of detainees in immigration detention facilities are recognised by international law in a number of human rights instruments. Australia has agreed to uphold the rights and obligations contained in these treaties when it signed and hence ratified them. The Australian Human Rights and Equal Opportunity Commission (HREOC) has highlighted the following instruments as the most relevant for detainees in detention centres[10]:

the International Covenant on Civil and Political Rights (ICCPR) (1996);
the Convention on the Rights of the Child (CROC) (1989);
the Convention (1951) and Protocol (1967) relating to the Status of Refugees (Refugee Convention).

The key human rights principles relevant to this discussion include the freedom from arbitrary arrest or detention (article 9(1) ICCPR) which means that the detention ‘must be reasonable, necessary and a proportionate means to achieve a legitimate aim’[11] ; the right to judicial review of detention (article 9(4) ICCPR); the right to access independent legal advice and assistance (Principles 13, 14 and 17 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988); the right to be treated with humanity and respect (article 10(1) ICCPR); freedom from torture and cruel, inhumane or degrading treatment or punishment (article 7 ICCPR); and the right to be treated without discrimination (article 2(1) and 26 ICCPR).

Mental Health Issues

The link between indefinite and protracted immigration detention and the deterioration of the mental health and well-being of detainees is well documented in Australia’s mental health and human rights literature, reports and case law.[12] This is particularly so for detainees who are already vulnerable, ‘especially children, or those with pre-existing trauma or mental illness’.[13] Sultan and O’Sullivan have found that detention contributes to feelings of anxiety, hopelessness and depression and that these symptoms worsen over time.[14] These authors found that the symptoms exhibited by long term detainees may develop into debilitating psychological distress, paranoia, delusions, detachment and may result in self-harm, self-mutilation and suicidal tendencies.[15]

In its submission to the Senate Legal and Constitutional References Committee’s Inquiry into the Administration and Operation of the Migration Act, the Royal Australian and New Zealand College of Psychiatrists (RANZCP) stated that immigration detention centres do not have ‘adequate mental health staff, appropriately trained supervisory staff, or adequate capacity to review and monitor biological treatments’. [16]

The RANZCP was also highly critical of the subcontracting of detention ‘which produces the separation of the mental healthcare of detainees from the mainstream mental health system’. They submitted that the lack of ‘formalised arrangement between the detention centres and state mental health services’ is a ‘key factor in the deficient treatment of mental illness in detention centres’.[17]

The Extent of Scrutiny of Actors Involved in the Immigration Detention Process and Critique

Australia does not have an independent body dedicated solely to monitoring its immigration detention facilities. Hence, there is no external organisation or ‘inspectorate’ that has power to compel DIMIA to change its detention practices where warranted. DIMIA sets its own standards (Immigration Detention Standards), policies and procedures and conducts its own monitoring of detention service provision.

The manner in which DIMIA chooses to provide health care services in its detention facilities is by resorting to an outsourcing arrangement. At the time of Ms Rau’s detention, Global Solutions Limited (GSL) was the private immigration detention provider engaged by DIMIA to provide day-to-day services, including health care services at Australian detention centres. Ms Rau was detained at the Baxter Detention Centre in South Australia. The services provided by GSL did not extend to any decisions relating to the immigration status of detainees or of their removal.

GSL discharged its contractual obligation to provide the required health care services to DIMIA by subcontracting with two companies to provide those services. Professional Support Services (PSS) provided psychological care and International Medical Health Services (IHMS) provided general medical services. IHMS in turn subcontracted with other private organisations to provide actual medical and psychiatric services.

In S v Secretary, DIMIA the Federal Court stated that:

Consistent with its duty of care to Baxter detainees, the Commonwealth had to ensure both that the mental health care services so provided were reasonably designed to meet the mental health care needs of Baxter’s detainees and that the requisite level of mental health care was in fact being provided and with reasonable care and skill. To do this, one would have thought that it was imperative that the Commonwealth conduct regular and systematic performance audits of the providers of its psychiatric and psychological service providers, the more so as (a) the extended chain of contracting for service provision left the Commonwealth in no legal relationship with, and remote from, the service providers; and (b) service provision itself was fragmented between various, uncoordinated separate providers.[18]

Justice Finn went on to find that in S’s case, such audits had not been conducted by DIMIA. Further, GSL had not audited, as DIMIA’s surrogate in this matter, IHMS’s psychiatric services or PSS’s psychological services.[19] Instead, the court found that ‘some essentially reactive processes’ had been established but that these ‘for the most part were ad hoc, involving responses to, or investigations of, particular incidents etc.’[20]

In its submissions to the Senate Inquiry, the RANZCP referred to the inadequacies of the mental health services provided in immigration detention centres as follows:

The use of inappropriate behavioural management techniques, including solitary confinement is of great concern to the RANZCP. These techniques are not considered to be standard treatment of behavioural disturbance resulting from mental illness, and are not acceptable to international psychiatric bodies. Brief uses of low stimulus environments are only used as part of overall comprehensive treatment of mental illness. The use of antipsychotic medications for behavioural control is inappropriate. 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.[21]

Justice Finn’s decision in S’s case further confirms that the Commonwealth owes detainees a non-delegable duty of care and that for both detainees in S’s case, and in general, it had failed to meet an appropriate standard of care.[22] Finn J found that as a result of its failure to oversee, monitor or investigate the provision of psychiatric and psychological services that GSL was contracted to supply, DIMIA allowed Baxter detainees to be unlawfully denied appropriate mental health treatment and care.[23] Such system failures were held to not only ‘put the Commonwealth in continuing breach of its duty’ to detainees, but also ‘exacerbated the mental illnesses from which they suffered’.[24]

To make matters worse, the criticism levelled at the DIMIA for its failure to make detailed regulations for detention centres is a criticism that had been made by Finn J and other judges in previous cases. The Full Federal Court in Secretary, DIMIA v Mastipour, for instance, considered that the failure to make regulations which purport to regulate the manner and conditions of immigration detention necessarily resulted in uncertainty as to what powers and obligations applied in detention centres.[25] Finn J considered that there were at least two reasons for this, ‘to curtail the possible abuse of power... [and] to protect those who have to exercise them’.[26] Mr Mastipour claimed that he had been tortured during his detention at Baxter. He claimed that guards had entered his living area, beat him on his head, chest and right knee, ordered him to take off his clothes in front of his seven year old daughter, handcuffed him when he refused to do so and placed him in solitary confinement for about two months in the infamous Management Unit.

A particular concern for Finn J, is whether those exercising the power to detain are of the view that ‘once a person is in lawful immigration detention, the form of that detention is entirely within the Minister’s discretion so that a form of detention which is imposed for punitive purposes (even if unwarranted or capricious) is not subject to judicial review’.[27] Gleeson CJ commented on the possible liability of those who manage or are employed in detention centres and who breach the duties imposed on them by law in Behrooz v Secretary, DIMIA:

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 a duty of care, they may be liable in tort.[28]

The DIMIA’s ongoing neglect to institute a system of independent review of services, of auditing and monitoring was heavily criticised in the Palmer and Comrie reports. DIMIA’s neglect to institute detailed regulations or a code of conduct specifically to guide those working on contract for DIMIA and who are engaged in the detention of suspected unlawful non-citizens exemplifies the insidious nature of unfettered discretion in detention centres. Ironically, there exists a comprehensive code of conduct to ensure a proper standard of professional conduct is established and maintained by migration agents.[29] Similarly, DIMIA staff and officers are bound by the requirements of the Australian Public Service Code of Conduct. Indeed, the Comrie report found that the conduct of at least three senior DIMIA officers, who failed to take any action when advised of the removal of Ms Alvarez an Australian citizen, might constitute a breach of the Public Service Code.

Three 2005 reports, the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau[30] (the Palmer Report), and a bipartisan Senate Committee interim report into The removal, search for and discovery of Ms Vivian Solon[31] (the Senate Committee report) and the Commonwealth Ombudsman report, The Inquiry into the Circumstances of the Vivian Alvarez Matter[32] (the Comrie report) have exposed the immigration detention system in Australia as an inept and cruel system. They are damning of DIMIA and its lack of transparency and accountability for the wrongs committed against Ms Rau and Ms Alvarez. The findings in the reports share similar conclusions as those that have appeared in the litany of media reports and opinion pieces which have revealed to the public this unfolding scandal.

Part Two: Unconfined, Unstructured and Unchecked Discretionary Power

The Rau and Alvarez cases are contemporary tales of unfettered discretion permitting oppression and brutalisation of detainees by the state. Such highly discretionary use of power is linked to the expansion of the ‘fortress/security’ state’s coercive capacities and the progressive erosion of the Rule of Law with a commensurate expansion of the rule of force. These changes reflect moral panics, fears and radical insecurity engendered by those who are less like ‘us’, as demonstrated by the M.V. Tampa scandal in 2001 based on Australia’s harsh border control policy, and exaggerated since 9/11.

Such fears and insecurities are nurtured, amplified and reproduced by the fortress state’s declaration of ‘war against terror’. It is a war without frontiers and without end[33] and although skin colour is extremely relevant in identifying alien suspects, the Rau case demonstrates that even those who look like ‘us’ are susceptible to the fortress state’s abuses.

The Rau and Alvarez cases reveal fundamental threats to good governance through a failure to adhere to the Rule of Law, a lack of respect for human rights and fundamental freedom and the deprivation of access to justice.[34] The DIMIA’s unconfined, unstructured and unchecked discretionary power and its contempt for basic human rights are the mechanisms through which good governance is most threatened.

Extraordinary Discretion and the Rule of Law

Discretion is an ambiguous concept. Some philosophers refer to it as space in the middle of a ring, a ‘hole in a doughnut’ surrounded by a ‘belt of restriction’.[35] It is a space that consists of policies and procedures, an area H.L.A. Hart described as the ‘penumbra’ where the law runs out and discretion is exercised.[36] A loose interpretation of the term would include the exercise of individualised judgments of public servants in circumstances where although law exists, the rules are vague and there is permission to act freely in making choices about applying the rules.

Discretion is not, however, completely arbitrarily exercised by public servants when in the ‘grey area’ or in the ‘holes’ of, let’s say, the Migration Act pastry. The exercise of discretion ought to be circumscribed by professional, community, legal and moral norms, but appears not to be.

In a modern society, principles such as the Rule of Law and natural justice that control the arbitrariness of government when determining or disposing of the rights of individuals ought to be fundamental. The DIMIA seems licensed to ignore these principles. The inquiries reveal a basic deficit in the DIMIA’s capacity to do discretionary justice. Discretion is basic to good governance. As Kenneth Culp Davis says[37]:

Discretion is a tool, indispensable for individualisation of justice...Rules alone, untempered by discretion, cannot cope with the complexities of modern government and of modern justice.

Yet, while recognising the need for and benefits of discretion, Davis warns against its dangers and harms by exhorting that we ‘oppose discretionary justice that is improperly unconfined, unstructured and unchecked’.[38]

Where ambiguous legislative provisions authorise a drastic interference with the liberty of a person the common law requires such provisions to be interpreted strictly, at least insofar as language permits. As Fullagar J stated in Trobridge v Hardy, ‘the mere interference with the plaintiff’s liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights’.[39] The tort of false imprisonment for instance, reflects the fundamental interest of the common law in protecting individual liberty and freedom of movement.[40]

In terms of s 189 of the Migration Act, McHugh J in Ruddock v Taylor found that ‘the need for a strict construction of the provision ‘is reinforced by the fact that otherwise a person could be deprived of liberty and left without remedy’.[41] To paraphrase Kirby J in the same case, ‘[i]t is a fundamental principle of constitutional law’ that members or officers of the Executive Government ‘may not interfere with the liberty of an individual without valid authorisation’.[42] As Deanne J explained in Re Bolton; Ex parte Beane:

Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. ...It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny.[43]

The current regulatory vacuum has forced the courts to decide the meaning of ‘reasonably suspects’ in terms of an officer’s state of mind when exercising the discretion to detain a person as an unlawful non-citizen pursuant to s 189 of the Act. The legislature has vested administrative officers with extreme power over the freedom of individuals that is exercisable when such officers have a ‘reasonable suspicion’ that specified factual circumstances prevail. The Full Federal Court in Goldie v The Commonwealth held that the reasonableness of such suspicion must be judged ‘on objective examination of relevant material’ and that ‘in deciding whether an immigration officer’s suspicion is reasonable all relevant doubts and circumstances including contradictory or insufficient evidence should be taken into account’.[44] The majority judgment of the High Court in Ruddock v Taylor found that ‘what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time’.[45] Mr Taylor had been detained on two occasions as an unlawful non-citizen when his visa had been cancelled by the Minister under a mistake of law. The detaining officers drew the logical conclusion that Mr Taylor must have been an unlawful non-citizen after checking that his visa had been cancelled. His detention was therefore held to be lawful pursuant s 189 despite questions as to whether the Ministers acted beyond their legislative power. This is because the provision only applies to an ‘officer’ and not to a ‘Minister’.[46]

What appears to have become pivotal in terms of determining whether suspicions held by ‘officers’ who detain people suspected of having been born outside Australia to non-Australian parents, as is the case with Ms Rau, who had a strong German accent and claimed that she was a German tourist, and with Ms Alvarez, who also spoke with an accent and appeared to be a foreigner, is that they make proper and prompt inquiry as to whether the person has been issued with an appropriate visa.[47] In the absence of any suggestion that the detaining officers have acted in bad faith, it seems that a reasonable suspicion that a person is an unlawful non-citizen and that the detention is lawful and required by the Act, ‘follows inevitably’.[48] As Freckleton points out, however, ‘it would not have been legitimate in Ms Rau’s case for immigration officials to have simply accepted at face value the bizarre and varying accounts provided by a person whose state of mind was at least questionable’.[49] This is even more evident in Ms Alvarez’s case. Ms Alvarez was interrogated while recovering from head injuries and yet consistently advised DIMIA officials that she held an Australian passport and was married to an Australian. This raises the question of whether the courts, if the matter was litigated, would exercise their power to interfere with DIMIA’s authority by considering whether it failed to take into account or neglected to take into account matters which it ought to have taken into account. This is not an appellate authority to override the decision of the DIMIA, but a judicial authority which is only concerned with seeing whether DIMIA contravened the law by acting in excess of the powers conferred on it by Parliament. The court is entitled to supervise and review the exercise of discretion by legislative authorities.[50] In recognizing this, the Comrie report in referring to the decision to detain Ms Alvarez under s 189 of the Act states that in the Inquiry’s view, at least, the decision ‘was not based on reasonable suspicion’ and therefore ‘by implication, unlawful’.[51]

Another matter that should be determined by a court of competent jurisdiction relates to the authority’s failure to advise Ms Alvarez about her right to refuse the medical examination undertaken for the purpose of her removal. In light of overwhelming evidence that Ms Alvarez was ‘not fit to travel’ immediately prior to her removal, a quick examination by a local doctor (who had not had the patient’s medical history made available to him) stated that she was fit to travel.[52] This proved sufficient to allow DIMIA officers to carry out the removal process. These examples suggest that although it may be possible to say that DIMIA officials kept within the four corners of the matters which they had to consider, they nevertheless came to a conclusion that no reasonable authority could ever have come to.

The question is whether it was legitimate or ‘reasonable’ for officers to suspect these women to be unlawful non-citizens, when in fact they were not. Both women had a right to remain in Australia indefinitely. Contentions for distinguishing between cases of mistake of law and mistake of fact were rejected by the Court in Taylor’s case.[53] Hence, in terms of Ms Rau’s initial detention, it is likely that the courts would follow Taylor’s case and find that in terms of the existing facts, the officers could have formed a reasonable suspicion that she was an unlawful non-citizen. The question is whether the suspicion became increasingly less reasonable during the continued detention and mounting evidence that she was mentally ill. Such reasonableness deteriorates in light of what Freckleton describes as ‘the limited and dilatory inquiries made as to her identity and status in the face of apparent anomalies in her presentation’.[54] It is far more difficult to imagine a legitimately drawn suspicion in Ms Alvarez’s case.

Following this logic, we are left with uncertainty about the remedies available in wrongful immigration detention cases. Perhaps like Mr Goldie, Ms Rau and Ms Alvarez may have rights against the Commonwealth for misfeasance in public office and breach of statutory duties, even if they fail in a claim for false imprisonment?

The Rule of Law and Freedom from Discrimination

In the words of Hutchinson and Monehan, ‘[t]he enduring concerns of the Rule of Law are the limitation of state power, the maintenance of a broad sphere of private liberty and the preservation of a market-exchange economy’.[55] Thompson’s conception of the Rule of Law is that it is an ‘unqualified human good’[56] in so far as it ‘(actually) limits ruling powers by requiring equal application of the legal rules to rich and poor, the powerful and the powerless’[57]. Hence, the good must not be denied or belittled even though the Rule of Law is, as Cole puts it, ‘by no means sufficient to ensure just legal rules or a just society in general. But it is a necessary condition in that its opposite–unbridled power–ensures injustice.’[58]

Such unbridled exercise of power is highlighted by the Alvarez case. Despite her citizenship and passport, documents that represent a right to mobility in terms of freely entering and remaining in Australia, the ‘unacceptable’ measures in place in 2005 with regards to the unfettered discretion to remove suspected unlawful or illegal immigrants from Australia eclipsed such rights. The Senate Committee’s findings reveal that the Migration Act is structured in such a way that technically, removal of a person from Australia is not based on a ‘decision’ per se. Instead, according to the DIMIA Assistant Secretary of Unauthorised Arrivals and Detention Operations Branch,[59]

Removal is a duty that an officer is required to carry out if a person is an unlawful non-citizen and they have not applied for a visa, or they have applied for one and it has been refused...

Does this mean that technically, no one is responsible for the decision to remove Ms Alvarez because no such ‘decision’ is required under the Act? In Ms Alvarez’s case, it was not only the lack of a properly reviewed decision to remove her by appropriately responsible and experienced officers that was badly amiss, but the process also reveals a denial of natural justice.

At no time prior to her removal was Ms Alvarez given information about her legal rights or provided with legal representation. Technically, she may not have requested it in accordance with s 246 of the Act. There are, however, considerable barriers to detainees actually accessing legal advice that are relevant when considering the application of s 246. For instance, the requirement placed on DIMIA is only triggered, when detainees make a ‘request’ for such assistance. In order to make such a request, detainees must first be made aware of this legal right. The Refugee Advocacy Service of South Australia Inc (RASSA) has highlighted some of the impediments to the acquisition of such knowledge. First, lawyers continually face difficulties in ‘accessing clients in detention centres due to the obstructive behaviour of DIMIA officials’.[60] Since they ‘are not allowed entry into the actual compounds where detainees reside’, lawyers cannot access detainees who because of mental illness, cultural or language barriers, or lack of education are unaware of their right to obtain legal advice in order to make them aware.

Further, DIMIA is not required to make available an interpreter to assist detainees to understand their legal rights. In Ms Alvarez’s case, an interpreter was not made available to inform her that her removal from Australia was what was being proposed. This dereliction was coupled with the DIMIA’s inability to produce the appropriate document that contains a checklist of the ‘steps for removal’ which according to its own procedures, must be completed and filed by officers when engaging in the removal process.[61]

Lawyers are also prevented from reviewing conditions in notorious areas, for instance, the Management Unit (MU) or Red 1 at the Baxter Detention Centre.[62] Detainees who are in the MU or Red 1 can be kept in their room for as much as 20 hours a day. Although ‘one off’, supervised visits from other detainees can occur, external visits other than from the Red Cross, the Human Rights and Equal Opportunity Commission or the Ombudsman are restricted. Not even public mental health services are permitted access to Baxter. Effectively, this also means that detainees usually learn about the availability of legal assistance through other detainees or community people who are allowed to visit the centres.

The Alvarez case also highlights discriminatory injustices experienced by immigration detainees. Ms Alvarez was clearly denied her right to the equal protection and benefit of the law without discrimination based on her race, national or ethnic origin and colour.[63] In order to rationalise and legitimise the impetuous removal of this ‘very frail, tiny woman’ from Australia to the Philippines, a place where she had ‘no relatives...to assist her’, DIMIA slurred her character and dignity.[64] Racist assumptions that Ms Alvarez was ‘smuggled into Australia as a sex slave’ were made and reproduced by public service officers ‘without a shred of evidence’ and ‘possibly affecting diligence applied to her case’.[65] The Senate Committee inquiry seems to be less critical of the use of such discriminatory comments by the officers as it was of the fact that ‘such assumptions were carried through until her removal’, another system failure. This was described by the Committee as a ‘disturbing aspect of the Solon case’[66] and only mentioned in the Comrie report’s findings with a recommendation that officers are trained to ‘focus on objectivity in decision making’. This was accompanied by a ‘strong warning that false assumptions will contribute to poor decisions’.[67]

These appear to be relatively mild criticisms in comparison with those targeted against other government officials who expose similar prejudices. New South Wales Liberal Leader, John Brogden, is a case on point. Mr Brogden resigned from politics after making offensive racist remarks about Bob Carr’s wife, in alleged jest, suggesting she was a ‘mail order bride’. The comment, aimed at a popular politician’s wife, was condemned by the media, the Australian public and governments (at least at the State level).[68] Mr Brogden’s experience illustrates, that in some circumstances, there is a level of intolerance for discriminatory remarks in Australia.

Surprisingly, there is a marked absence of any explicit statement of the unlawfulness of the treatment of Ms Alvarez and Ms Rau in the inquiries recommendations. As such, there is a real possibility that the Minister and her officers will escape the consequences they deserve.

Part Three: Human Consequences of Unconfined, Unstructured and Unchecked Discretion

The experiences of Cornelia Rau and Vivian Alvarez are demonstrative of what can go wrong when discretionary power is not properly confined, structured and checked. Their detention raises pressing legal, ethical and social questions. Did the DIMIA fail these persons and breach its duty of care including its own regulations? If so, to whom is it accountable? Why does DIMIA detain some unidentifiable ‘non-citizens’ indefinitely and promptly deport others without carrying out appropriate identity investigations? Why are detainees denied access to appropriate psychiatric treatment when they become so visibly unwell? Why are there no appropriate checks and balances to monitor decisions made by those exercising discretion over the detention or removal of suspected unlawful non-citizens?

At a State level, why did Queensland police fail to identify Ms Rau from missing persons reports in New South Wales? Why was Ms Alvarez’s assault or accident never reported to New South Wales police? Why were professional investigators not assigned to co-ordinate a search of all relevant databases in an effort to unravel the identities of these women?

The following discussion considers the human consequences of unfettered discretion by focusing on specific instances in a) the wrongful detention of Cornelia Rau and b) the wrongful deportation of Vivian Alvarez. They reveal the way that unfettered discretion has served to brutalise and oppress these women.

A. The Wrongful Detention of Cornelia Rau

Cornelia Rau, was a former QANTAS flight attendant. An Australian resident of German origin, Ms Rau was detained as a suspected unlawful non-citizen in a Queensland prison for six months and at the Baxter Detention Centre in South Australia for four months. Ms Rau has chronic schizophrenia. However, during her detention from March 2004 to February 2005 her mental illness remained untreated and her identity remained a mystery. In the case of Cornelia Rau, the following chronicle of events is mainly derived from the Palmer report[69], 4 Corners[70] and other media reports.

At the time of her detention under the Migration Act, Ms Rau had an eight year history of absconding from mental health care and later ‘resurfacing’, usually by contacting her family. Caught in the mental health system’s revolving door, Ms Rau had been hospitalized in Sydney, Brisbane and Europe since 1998. Her journey to Baxter begins with her disappearance from a psychiatric unit in Manly Hospital where she was being treated for schizophrenia. She left immediately prior to a Mental Health Review Tribunal hearing into her involuntary status on 17 March 2004. An important question at this point, is what steps were taken by the mental health services to ensure that Ms Rau was not a danger to herself or others after she left the Manly Hospital without medication? The decision not to follow her case up is an exercise of discretion by the public servants of the New South Wales mental health care system.

The mental health system’s failure[71] to search for and find Ms Rau meant that she was able to hitch-hike to North Queensland. She was found in a pub by Queensland Aborigines, homeless and without money. The police were involved because of concerns about her behaviour and her safety. She presented herself as Anna[72] Brotmeyer, and later as Anna Schmidt, a German tourist with an accent, but gave conflicting accounts of her arrival in Australia. Without a valid passport, ‘Anna’ was suspected of being in the country illegally. The police exercised their discretion pursuant to s 189 of the Migration Act and detained Anna at the Cairns police watch-house as a suspected unlawful non-citizen. She remained in police custody, without being charged of any offence, until April 5.

Meanwhile, DIMIA officials were unable to verify Anna’s identity. This was the case, despite the Department of Foreign Affairs having a file on Ms Rau after a failed attempt by her to secure a German passport in 2002. It was precisely this lack of appropriate German travel documentation that hindered DIMIA’s attempts to deport Anna to Germany. As such, Anna was transferred to a Brisbane Women’s Correctional Centre. Anna was to receive monthly follow-up visits but this did not occur. Instead, DIMIA breached its own departmental regulations when officers only visited Anna three times during her six months in prison.

In June, prison officers recorded their concerns about Anna’s unusual behaviour after fellow prisoners had complained about her incessant pacing, crying and violent outbursts. By now, Anna had been without medication for three months and the other prisoners suspected she was mentally ill. Despite her unusual behaviour, Anna was not psychiatrically assessed. Instead, the prison guards deemed Anna to be a ‘trouble maker’ and transferred her to the ‘suicide cell’ for up to three consecutive days. This occurred several times despite Anna displaying no suicidal tendencies, suggesting that such decisions were intended to punish rather than protect her. This was a view that was shared by Queensland Government officers who were investigating the alleged abuse of prisoners. Following an interview with prisoners in July, the investigators reported the severity of Anna’s treatment and her Australian accent to prison officials. However, prison officials exercised their unreviewed discretion to detain Anna for another two months. In that time, she spent a further five weeks locked in an isolation cell, mainly for what authorities deemed ‘bad behaviour’.

In August, Cornelia Rau was listed as missing with NSW police by her family after she failed to resurface. The police did not, however, deem it sufficiently serious to share this information with other States. By this time, fellow prisoners at the Correctional Centre were so concerned about Anna that they requested that she be given access to a psychiatrist. In response, Anna was assessed by the prison psychiatrist who found her behaviour ‘very unusual’, ‘increasingly bizarre’ and ‘consistent with psychotic disorder’. She was described as having poor hygiene; acting inappropriately towards male officers; laughing to herself; and pacing in circles or up and down for hours. In his clinical judgment, Anna required external psychiatric assessment. Soon thereafter, Anna was assessed at the Princess Alexandra Hospital but was discharged six days later because the Hospital Mental Health Services found that she did not to meet ‘any diagnostic criteria for mental illness’. It is unknown whether the issue of her immigration detention was raised by the Mental Health Services practitioners but she was sent back to the prison, again without having been charged of any offence.

In October, Anna was forcibly transferred to the GSL run Baxter Detention Centre in South Australia. At the time, Baxter held more than 280 detainees with about a third of these having spent more than three years in detention. She was assessed upon her arrival and again five days later by the subcontracted PSS psychologist. Her unusual behaviour continued but was deemed to be attention seeking behaviour rather than a psychiatric condition. Notwithstanding, DIMIA was advised by the PSS psychologist that this is an environmental management issue. He recommended that Anna be detained in a female compound like Villawood, not in isolation. Once again, GSL officers exercised their discretion by placing Anna in isolation in the Management Unit (MU).

In accordance with written operating procedures, GSL officers can transfer detainees to the MU whenever they deem it necessary ‘for the good order and security of the facility and the safety of other detainees’. Although under the DIMIA-GSL contract no element of ‘punishment’ is to be applied to detainees in the MU, and special medical or psychiatric health needs must be identified and treated, DIMIA failed to monitor or check this. Further, there is no evidence to suggest that DIMIA would have intervened if it had been aware of the decision to isolate Anna.

The PSS psychologist had also made a request for Anna’s psychiatric assessment by the South Australia Rural and Remote Mental Health Services (RRMHS) at Glenside Psychiatric Hospital. An assessment was booked for early November, but was subsequently cancelled because her case was not deemed to be sufficiently urgent.

The IHMS subcontracted psychiatrist, Dr Frukacz, a private practitioner who flew to Baxter from Bathurst every six to eight weeks to see detainees, assessed Anna. His consultation notes of 6 November state that she was ‘uncooperative’. Finding that she may be schizophrenic, Dr Frukacz recommended that Anna be assessed and treated at a psychiatric facility. He further warned against placing Anna in isolation (either in the MU or in Red 1) as this can be ‘frightening’ for persons with schizophrenia. Despite Anna’s apparent mental illness and distress, GSL officers moved Anna to the MU on two occasions during her detention at Baxter. The second such isolation was after Dr Frukacz’s report warned against it. Fellow detainees stated that Anna had to be forced into her MU cell every night by three to four guards. GSL staff’s ability to ignore clinical judgment was made clear by their repeated decision to continue to isolate her. Indeed, Anna was moved to Red 1 when she became increasingly difficult to manage. Like the MU, Red 1 was mainly used for behaviour modification purposes. Unlike the MU, there were no written operating procedures specific to Red 1 at the time of her detention.[73]

During the course of Anna’s detention at Baxter, a refugee advocate, an immigrant detention advisory group and a PSS psychologist wrote to the Mental Health Services, the GSL manager and a senior DIMIA official alerting them that a woman detained at Baxter, who may be a local, is in need of psychiatric treatment. Notwithstanding, Anna remained in Red 1, untreated until her transfer to the Glenside Hospital for psychiatric care on February 3, 2005. Her family had made the connection and identified Ms Rau after reading a newspaper story entitled ‘Mystery woman held at Baxter could be ill’ published in The Age a few days earlier. Dr Phillips, an IHMS subcontracted medical practitioner, also suspected Anna was the missing Australian Cornelia Rau and decided to commit her under the South Australian Mental Health Act.

Events that Followed:

On 8 February 2005, Minister for Immigration, Senator Vanstone, announced a closed inquiry to investigate how Ms Rau came to be held in solitary confinement at Baxter for nine months, and why she did not receive treatment despite suffering from a serious mental illness. Former federal police commissioner Mick Palmer, Australia’s independent Inspector of Transport Security, was commissioned to conduct the inquiry.[74] Ms Rau’s case triggered a public outcry. The government-appointed Palmer inquiry was said to have over 200 cases of possible wrongful detention to investigate[75] including that of Vivian Alvarez. Calls were made for a Royal Commission.[76]

During the inquiry, without any admission of guilt and finding ‘it is hard to imagine that the exceptional circumstances of such a case would arise again’, Senator Vanstone announced the following changes to her department’s procedures on 26 February 2005[77]:

oA 28 day limit, in all but complex cases, on the time people would be held in prison, a watch-house or similar state corrections facility;
oFingerprinting of people detained, without their consent if necessary;
o Clearer and more precise guidance for staff about procedures that should be followed when attempting to establish a person’s identity;
oAccess to databases by relevant Commonwealth and State law enforcement agencies.
oReferral of complex cases to Canberra. Where a person’s identity or status has not been confirmed within 28 days, senior staff are to be consulted on the ongoing management of the case.

The following day, Senator Vanstone agreed to a request for further resources for the Palmer inquiry. Neil Comrie, a former Chief Commissioner of Victoria Police, was engaged to assist the inquiry. For the first time, an experienced mental health expert was also engaged.[78] The acting Immigration Minister, Peter McGauran, explained that this expansion of resources was partly due to the Department’s acknowledgement of at least a further 33 Australians who had been wrongfully detained between July 2003 and May 2005.[79]

On March 8, a Senate Select Committee on Mental Health was appointed to inquire into the provision of mental health services in Australia. The Committee released its findings in October 2005.[80] The terms of reference of the Committee, however, did not specifically include an investigation into the mental health of detainees, the mental health care and treatment process in detention centres, or the effect of detention in detention centres on the mental health of detainees.

On May 23, Ms Rau announced that she will be seeking compensation for her ‘gruelling’, ‘terrible’ treatment during 10 months of wrongful immigration detention.[81] Attorney General, Phillip Ruddock, has remained tight-lipped about any proposed compensation package for Ms Rau.[82]

B. The Wrongful Deportation of Australian Citizen Vivian Alvarez

By May 2005, the tale of Vivian Alvarez, an Australian citizen for 15 years, the former wife of a Queensland bank officer and mother of two boys growing up in Brisbane was unfolding in the media. Her case is, in many senses, including from a strictly technical legal standpoint, more appalling than that of Ms Rau. Ms Alvarez was erroneously deported by DIMIA from Australia to the Philippines on 20 July 2001 despite her apparent infirmity and brain injury following a fall into a deep drain in a park in Lismore New South Wales. Confusion about her identity stemmed from two streams of enquiry, one regarding Ms Alvarez as an unlawful non-citizen and the other regarding Ms Solon as a missing person. On 14 July 2003 DIMIA officers first realised the error but it took almost two years for DIMIA to officially acknowledge the unlawful removal only because of the continued inquiries by Mr Young, Vivian’s estranged husband.

Preliminary findings in an interim Senate Committee report[83], the Comrie report and media reports chronicle events as follows.[84]

The events leading up to Ms Alvarez’s removal were in themselves alarming. On 16 February 2001, after Ms Alvarez failed to pick up her 5 year old son from a childcare centre in Brisbane, the Commonwealth Department of Family and Community Services exercised its discretion by placing the child into foster care. The Department did not, however, contact missing persons until five month’s later, and when it did, Ms Alvarez was listed as missing under her married name Vivian ‘Young’. This failure to act promptly greatly limited the likelihood of locating Ms Alvarez before her detention and her removal by DIMIA in July.

When Ms Alvarez was admitted to Lismore Hospital, it was unknown precisely how her injuries were sustained. Yet, the police did not investigate the matter. She was transferred to Liverpool Base Hospital where under the name ‘Vivian Alvarez’ she was admitted as an involuntary patient to the Richmond Clinic Psychiatric Unit. Without her Medicare card and appearing to be a foreigner, hospital staff decided to hand Ms Alvarez over to DIMIA. DIMIA officers did not seek access to hospital records or pursue a friend of Ms Alvarez who had information that would help to identify her.

Ms Alvarez was collected by DIMIA officers on 12 July from St Vincent’s Rehabilitation Unit in Lismore. She was driven to the DIMIA office in Southport Queensland. From the first of a series of interviews in early May, Ms Alvarez had maintained that she was an Australian citizen, she had a passport and she wanted to remain in Australia. Again, without any follow-up on this information, DIMIA officials exercised their discretion to transfer Ms Alvarez to a holding facility in Brisbane, a hotel near the airport. She, like Ms Rau, was detained as an unlawful non-citizen. A nurse who interviewed Ms Alvarez shortly before her deportation described her as ‘agitated and mentally unstable’ and in need of a doctor.[85] This information was not acted upon by DIMIA officers and within days, Ms Alvarez was taken in a wheelchair to the airport and removed from Australia.

Ms Alvarez was deported despite the severity of her injuries which prevented her from signing her name on identity documents. DIMIA officers were content with her thumbprint instead.[86] Ironically, had she been fingerprinted earlier this would have given rise to an opportunity for a match with her fingerprints held at the National Automated Fingerprint Identification System of CrimTrac (the national law enforcement database). Had such discretion been exercised by DIMIA officers, this might well have resulted in her being identified.

Ms Alvarez’s estranged husband, Robert Young, had persisted in his attempts to locate Vivian. He had provided Queensland Police with her other names, ‘Alvarez’ (maiden name), ‘Young’ (married name) and ‘Solon’ (name of family members). In July 2003 database searches by Queensland’s Missing Persons Bureau revealed the link in the names and the discovery that an Australian citizen was removed. This was reported to a supervisor who exercised discretion not to act to redress the problem.

In September 2003, Mr Young was advised of the removal. He contacted and informed the DIMIA but again, this information was not pursued. Nor were two separate reports, one made by an officer at the Entry Systems and Movements Alerts Office and the other by a DIMIA officer, after both officers had viewed a missing persons television program that showed a photo of Ms Alvarez and listed the name ‘Vivian Alvarez-Solon’ in the credits.[87] Both officers reported their findings to their appropriate supervisors but surprisingly, no action was taken by the senior personnel.

It took an email, which was sent by Mr Young in April 2005 to the Minister’s office describing Vivian Alvarez’s unlawful removal, before DIMIA officially acknowledged the error. In May 2005, the media reported the scandal and highlighted DIMIA’s inability to account for Ms Alvarez’s whereabouts. Ms Alvarez was found shortly thereafter in the Philippines, residing in a hospice for the elderly and dying. The hospice was run by the Mother Theresa Sisters of Charity in the town of Ologapo, in North Manila. A priest, Father Mike Duffin, recognized Vivian’s description from news reports and alerted the authorities.[88] Infirmed, Ms Alvarez had spent ‘most of her time [at the hospice] in bed’.[89]

Shortly thereafter, Senator Vanstone admitted that the rushed deportation ‘raises questions that need to be looked at’.[90] On June 28, the media reported that Vivian Alvarez will probably seek more than one million dollars in compensation for her unlawful deportation. [91] She has yet to be appropriately compensated.

The Comrie report that followed described DIMIA’s overall management of the case as ‘catastrophic’. Since being granted citizenship in 1986, Ms Alvarez had had contact with various Federal and State Government Departments. For instance, Ms Alvarez:

had been married to an Australian and later divorced;
had been receiving social security payments;
had travelled to and from the Philippines with her husband;
was known to Queensland Community Services;
had been issued with a passport by the Department of Foreign Affairs and Trade

and yet, DIMIA did not identify her because of a series of failures including a failure to act in accordance with its instruction series and guidelines relating to compliance.[92]

These failures were condemned in the Palmer, Comrie and Senate Committee Reports. The findings reveal a system in crisis. Each report criticises the dysfunctionality of Federal and State instrumentalities by focusing on system and process failures, maladministration and poorly structured checks and balances. The focus is on the internal workings of the DIMIA machinery so that the particular failing cogs and wheels can be located and replaced by newer mechanisms. What these three inquiries fail to address, however, is the extreme abrogation of the human rights of the victims of the system. Dysfunctionality and abhorrent practices are acknowledged while human rights violations continue to be overlooked in official discourse.

Part Four: Responses to the Recommendations

After repeating the Government’s public apology to Ms Alvarez for her wrongful removal in 2001, Senator Vanstone tabled the Comrie Report on 6 October 2005. The Government’s response was included as an appendix to the report. In a media release on 6 October 2005, the Minister revealed the new initiatives in the Palmer Implementation Plan which incorporates the Government’s response and which include the following:[93]

Much better training of DIMIA staff with an emphasis on quality assurance and decision-making, with enhanced leadership skills for middle to upper management personnel;
Much better health and wellbeing for detainees. This includes a 12 month pilot programme to develop a holistic community care model with DIMIA partnering with the community. This will provide:
oA new case management framework;
oEarly intervention and referral for alternative detention options for clients;
oCounseling and care based on risk assessment for immigration clients awaiting immigration outcomes;
oDelivery of the Baxter Plan which involves fortnightly visits by a psychiatrist instead of the previous six weekly visits and the progressive implementation of two new psychiatric nursing positions which will achieve 7 day coverage at Baxter, including on-call arrangements at night; and
oFor the establishment of a Detention Health Services Taskforce to develop a long-term health service delivery strategy
Much better information management to address IT deficiencies in the areas of border control, compliance and detention management systems;
Much better quality assurance and decision making including internal audit capability to ensure fairer and more reasonable decisions. A compliance quality assurance and monitoring unit is to be established in the DIMIA national office and Mick Roche was appointed to provide independent advice on compliance and detention activities including a review of the current Detention Services Contract.
Much better focus on clients through a new client services division which is to drive client service culture throughout the Department as well as provide appropriate systems and management support for improving DIMIA’s client service.

The Minister also announced additional funding for the Commonwealth Ombudsman to fulfill his enhanced role as Immigration Ombudsman, a position announced on 14 July 2005. A sum of $12.8 over four years will be committed to provide:[94]

A broader detention review role and enhanced detainee health complaints capacity;
An enhanced role in examining compliance activities; and
An expanded role in handling and investigating immigration complaints and issues.

These procedural changes proposed by the Minister in response to the criticisms and recommendations in the Palmer and Comrie reports focus on some of the mental health service inadequacies at the Baxter Detention Centre but are silent about any plans to review or monitor the conditions at Australia’s other detention centres, notably those offshore like the Cocos and Christmas Islands facilities. A key concern is that the Minister’s drive for change will be steered solely by the reports recommendations—as can be extrapolated from her statement in a media release on 25 May, ‘I have asked the Secretary to position the department to be able to rapidly respond to whatever changes are required as a consequence of the Palmer report’.[95] Both the Palmer report and the Senate Committee reports seem to be written in a ‘management’ or ‘consultant’ style and, despite precedent set by the HREOC in its report, ‘A last resort?’[96], they fail to address fundamental human rights issues. They show how far Australia has yet to go to preserve the integrity of its democracy.

In terms of cultural change within the DIMIA, the Minister says she wants a ‘can-do’, ‘user-friendly’ department with an ‘open culture of continuous improvement’. [97] This she states, will require the department to ‘recognise that complaints are an opportunity to review, change and improve performance to do things better’.[98] However, the new use of the word ‘client’ is also a concern. It implies voluntary participation in a business like environment where the client is free to chose the services he or she desires. Detainees are clearly not clients. They are prisoners but without the rights afforded to prisoners in Australia’s criminal justice system.

Apart from the Prime Minister John Howard’s truncated apology reported in the media on 14 July 2005 as follows: [99]

[Both women] are owed apologies for their treatment, and on behalf of the government I give those apologies to both of those women, who were victims of mistakes by the (Immigration) Department

The issues raised in this article have not been adequately addressed by the Commonwealth Government and its instrumentality, DIMIA. Despite a string of promised changes by Senator Vanstone intended to wipe the DIMIA ‘slate clean’, the only changes to be made to Australia’s mandatory detention policy are those agreed to by Mr Howard on 18 June 2005 in a ‘detention agreement’.[100] They involve changes that amend the Migration Act allowing certain asylum seekers to be released from detention centres in a fairer and more flexible and timely manner. This ‘softening’ of the policy has led to an expansion of discretionary powers in the Immigration Minister so that new refugee applications can be dealt with more promptly and so that alternative arrangements (like community detention) can be made for detainees with children.[101]

What is clear from these proposed changes, including those announced in February 2005, is that they will exacerbate DIMIA’s gross overreach of discretionary power rather than fetter it.

Conclusion

The assortment of changes promised by the Minister and her Department appears more symbolic than meaningful. They offer little comfort to those who have or will become unwilling and possibly indefinite residents of Australia’s detention centres. The failures to provide humane care and treatment to Ms Rau and Ms Alvarez reflect a lack of understanding of fundamental human rights concepts, which Australia has agreed to embrace. Such failures are exacerbated by the inadequacies of resources that afflict all public services, including detention facilities, mental health services, police services etc. in most parts of Australia.

Part of the inadequacies with the Government’s responses to the Comrie and Palmer reports is that nothing has been done to enshrine in legislation the minimum standards that should apply to immigration detention standards, a recommendation made by the HREOC of ‘A last resort?’ and again raised by the HREOC in its submission to the Inquiry into the administration and operation of the Migration Act[102] Indeed, nothing has been done to prevent DIMIA from contracting out services to private enterprises that may be as unqualified and unaccountable as GSL or its predecessor ACM. Further, the appointment of an Immigration Ombudsman merely addresses the maladministration by the detention service and outsourced agents. Fundamental issues of human rights and review of the merits of detention decisions are not the subject of adequate independent review processes. Indeed, the High Court’s interpretation of the Migration Act reflects a commitment to purposive interpretation.[103] The purpose of the legislation is to exclude human rights issues and independent scrutiny.

The absence of a Bill of Rights in Australia allows this to occur. Bills of Right are usually implemented in response to a crisis. It is the absence of a crisis in Australia that is offered up as the reason for not implementing a Bill of Rights by those that oppose it. However, this author finds that the catastrophic human rights abuses perpetrated on the most vulnerable, children and people with mental illness or physical infirmity in detention, represents a crisis. Further symptoms of a crisis are reflected in the overreach of the new anti-terror legislation, the assault on workers rights represented in proposed Industrial Relations reform that breach the International Labour Organisation Convention on the right to collective bargaining, and the continuing abuse of Australia’s Indigenous citizens.

Until and unless Australia’s draconian and inhumane detention policy and laws are reconsidered and amended, any hope for fundamental change in the DIMIA’s culture is highly optimistic. An enhanced understanding of mental illness, the traumas and extreme human suffering experienced by persons seeking refuge in Australia, and acknowledgement of prejudices and biases would be constructive.

Aside from the case of Ms Alvarez, it has been revealed that Ms Rau is not the only person to have been wrongfully detained by DIMIA officials.[104] There are countless others. A royal commission is needed.[105] Until then, it’s ‘business as usual’.


[*] Lynda Crowley-Cyr. LLB (QUT), LLM (JCU), Senior Lecturer, James Cook University. This article is based on a paper presented at the British Criminology Conference, Leeds, 12-14 July 2005. My thanks to Professor Paul Havemann for his invaluable assistance in the development of the ideas in this article.

[1] Ms Alvarez was married and then divorced. Her mother’s family name is Alvarez, her father’s family name is Solon and her former married name was Young.

[2] ‘Judging Refugees: The Clash of Power and Institutions in the Development of Australian Refugee Law’ [1962] SydLawRw 1; (2004) 4 Sydney Law Review 1, 12.

[3] [2005] HCA 48.

[4] Migration Act 1958 (Cth) s 14(1).

[5] Ruddock v Taylor [2005] HCA 48, as discussed below.

[6] Migration Act 1958 (Cth) s 5.

[7] The right to liberty and security is contained in Article 9 of the International Covenant on Civil and Political Rights (ICCPR).

[8] Of most relevance is Article 12 of the (1966) International Covenant on Economic, Social, and Cultural Rights (ICESCR) which recognise the ‘the right of everyone to enjoy the highest attainable standard of physical and mental health’, ‘without discrimination of any kind’.

[9] Foreign Affairs, Defence and Trade References Committee, The removal, search for and discovery of Ms Vivian Solon, Interim Report (September 2005) Senate Committee, Commonwealth Government, 16.

[10] See Human Rights and Equal Opportunity Commission (HREOC), A Report on Visits to Immigration Detention Facilities by the Human Rights Commissioner 2001 (2002) accessed at http://www.hreoc.gov.au/humn_rights/ic/index.html on 4 November 2005.

[11] Ibid.

[12] See Zachary Steel and Derrick Silove, ‘The Mental Health Implications of detaining Asylum Seekers’ (2001) 175 Medical Journal of Australia, 596-599; HREOC, A last resort? A National Inquiry into Children in Immigration Detention (2004) Canberra; HREOC, Those who’ve come across the seas: The report of the Commission’s Inquiry into the detention of unauthorised arrivals (1998), Canberra; Amnesty International Australia, ‘The Impact of Indefinite Detention’ (23 March 2005) Preliminary Report; S v Secretary Department of Immigration & Multicultural & Indigenous Affairs [2005] FCA 549.

[13] The Australian Psychological Society Ltd., Submission to the Senate Legal and Constitutional References Committee Inquiry into the Administration and Operation of the Migration Act 1958 (26 August 2005) 2.

[14] Kevin O’Sullivan and Aamar Sultan, ‘Psychological Disturbances in Asylum Seekers held in Long Term Detention: A Participant Observer Account’ (2001) 175 Medical Journal of Australia 593, 594.

[15] Ibid.

[16] Royal Australian and New Zealand College of Psychiatrists, Submission to the Senate Legal and Constitutional References Committees into the Administration and Operation of the Migration Act 1958 (29 July 2005) 3.

[17] Ibid.

[18] [2005] FCA 549 [220, 221].

[19] Ibid [221].

[20] Ibid [222].

[21] Royal Australian and New Zealand College of Psychiatrists, above n 15, 3.

[22] [2005] FCA 549.

[23] Ibid [163].

[24] Ibid [214] and [257-262].

[25] Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 [2] and [8].

[26] (2004) 207 ALR 83 [8].

[27] Ibid [16].

[28] [2004] HCA 36; (2004) 208 ALR 271 [21]. See also the reasons of the Justices of the High Court in Sanders v Snell (1998) 196 CLR 329.

[29] The code can be found in schedule 2 of the Migration Agents Regulations 1998 (Cth).

[30] Commonwealth of Australia, (July 2005) accessed at <http://www.minister.immi.gov.au/media_releases/media05/palmer-report.pdf> on 23 September 2005.

[31] Foreign Affairs, Defence and Trade References Committee, The removal, search for and discovery of Ms Vivian Solon, Interim Report (September 2005) Senate Committee, Commonwealth Government.

[32] Commonwealth of Australia, (26 September 2005) <http://www.ombudsman.gov.au> at 29 September 2005.

[33] Jude McCulloch, ‘State of Emergency: Secrecy, Transparency and National Security in the Age of Terror’ (Paper presented at the Public Forum on Manufacturing Fear Who’s Afraid in the ‘War on Terror’?, 13 November 2004) accessed at <http://www.civilrightsnetwork.org> on 6 March 2005.

[34] Ombudsman and Information Commissioner of Ireland, Kevin Murphy, ‘The Boundaries of Government in Modern Ireland’ (Paper presented at the Discussion Forum on Accountability, Corruption and Good Government, 28 April 2003) accessed at <http://www.ombudsman.gov.ie/246a_156.htm> on 23 September 2005

[35] R M Dworkin, ‘Is Law a System of Rules?’ in R M Dworkin (ed), The Philosophy of Law (1977) 54.

[36] H L A Hart, Essays on Jurisprudence and Philosophy (1983).

[37] Kenneth Culp Davis, Discretionary Justice (1971) cited in Kevin Murphy, above n 36.

[38] Ibid.

[39] [1955] HCA 68; (1955) 94 CLR 147 at 152. See also Ruhani v Director of Police [No 2] [2005] HCA 43 at [63]- [65].

[40] Ruddock v Taylor [2005] HCA 48 per Kirby J [137].

[41] Ibid per McHugh J [70].

[42] Ibid per Kirby J [138].

[43] [1987] HCA 12; (1987) 162 CLR 514 at 528-529.

[44] [2002] FCAFC 100 [51].

[45] [2005]HCA 48 [40].

[46] Ibid [31].

[47] Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 78 ALJR 203.

[48] Ruddock v Taylor [2005] HCA 48 [49]-[51].

[49] Ian Freckleton, ‘Madness, Migration and Misfortune: The Challenge of the Bleak Tale of Cornelia Rau’ (2005) Editorial 12:1 Psychiatry, Psychology and Law 1, 4.

[50] Associated Provincial Picture Houses, Ltd. v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[51] The Comrie report, above n 31 [11].

[52] Ibid [14-15].

[53] Ibid [44-47].

[54] Freckleton, above n 48, 4.

[55] Allan Hutchinson and Patrick Monahan, The Rule of Law Ideal or Ideology (1987) 100.

[56] E P Thompson, ‘The Rule of Law’ in Piers Beirne and Richard Quinney (eds), Marxism and Law (1982) 130,135.

[57] Daniel Cole, “‘An Unqualified Human Good”: EP Thompson and the Rule of Law’ accessed at <http://indylaw.indiana.edu/instructors/cole/THOMPSON.pdf> on 7 November 2005.

[58] Ibid.

[59] Senate Committee Report, above n 30 [11].

[60] Refugee Advocacy Service of South Australia Inc (RASSA), Submission to the Senate Legal and Constitutional References Committee Inquiry into the Administration and Operation of the Migration Act 1958 (27 July 2005) 2.

[61] Select Committee Report, above n 30, 11-12.

[62] RASSA, above n 59.

[63] The right to freedom from torture or cruel, inhumane, or degrading treatment or punishment is found in Article 7 of the ICCPR. The Convention on the Elimination of All Forms of Discrimination Against Women (1979) provides further support.

[64] Select Committee Report, above n 30, 14 and 20.

[65] Ibid 10 and 20.

[66] Ibid 10.

[67] Comrie Report, Recommendation 6, 47.

[68] Amanda Meade, ‘Brogden chase sparks ethics row’, The Australian, 1 September 2005, 13.

[69] Palmer Report, above n 29.

[70] ABC Television , ‘Cornelia Rau Chronology’, 4 Corners, 4 April 2005 accessed at <http://www.abc.net.au/4corners/content/2005/s1335386.htm> on 5 April 2005; and ABC Television, ‘Anna’s Story’, 4 Corners, 4 April 2005 accessed at <http://www.abc.net.au/4corners/content/2005/s1338239.htm> on 21 April 2005.

[71] The Mental Health Council of Australia and Mind Research Institute in association with the HREOC report ‘Not for Service: Experiences of Injustice and Despair in Mental Health Care in Australia’ (2005) Canberra has called for a complete overhaul of services in every state finding that millions of people in Australia were denied the mental health services they need.

[72] In the interest of clarity and readability, Cornelia Rau is generally referred to as ‘Anna’ throughout the chronology.

[73] S v Secretary, DIMIA [2005] FCA 549 [18]-[24].

[74] Various sources deprecate the inquiry based on concerns of a likely cover up: see for instance <http://www.safecom.org.au/2005/02finding-anna-when-immigration-gets-it.htm> accessed on 3 August 2005.

[75] ABC Television, Margot O’Neill, ‘Immigration official gives insight into department’ Lateline, 13 June 2005 accessed at http://www.abc.net.au/lateline/content/2005 /s1391140.htm on 14 June 2005.

[76] See for instance <http://www.safecom.org.au/royal-commission.htm> accessed on 16 September 2005.

[77] Senator Amanda Vanstone, ‘Changes to DIMIA Procedures Following Cornelia Rau Case’ (Media Release, 26 February 2005) accessed at <http://www.minister.immi.gov.au/media_releases/media05/v05036.htm> on 2 April 2005.

[78] Senator Amanda Vanstone, ‘Further Resources to Inquiry into Ms Cornelia Rau’ (Media Release 27 February 2005) accessed at <http://www.minister.immi.gov.au/media_releases/media05/v05037.htm> on 2 April 2005

[79] The Age (3 May 2005) cited in Freckleton, above n 48, 8.

[80] Senate Select Committee on Mental Health, ‘Appointment and Terms of Reference’ (2005) accessed at <http://www.aph.gov.au/Senate/committee/mental health_ctte/tor.htm> on 5 April 2005.

[81] Penelope Debelle and Andra Jackson, ‘Rau seeks payout for ‘gruelling’ treatment’, The Age (Melbourne), 24 May 2005, 1.

[82] ABC Television, Tony Jones, ‘Ruddock tight-lipped on Rau’s compensation bid’, Lateline, 23 May 2005 accessed at <http://www.abc.net.au/latline/content/2005/s1375259.htm> on 24 April 2005.

[83] Senate Committee Report, above n 30.

[84] Kate Geraghty, ‘The lies that kept Vivian Alvarez hidden for years’, The Sydney Morning Herald, 20 August 2005 accessed at <http://www.smh.com.au/news/national/the-lies-that-kept-vivian-alvarez-hidden-for-years/2005/08/19/1124435144969.html> on 21 August 2005; Simon Kearney, ‘Deportee’s joy as sister ends her lost years’, The Australian, 13 May 2005, 1 and 2; also ABC Television, Tom Iggulden, ‘New Information on woman’s wrongful deportation’, Lateline, 6 May 2005 accessed at <http://www.abc.net.au/lateline/content/2005/s1362107.htm> on 8 May 2005.

[85] ABC Television, Tom Iggulden, ‘Solon Deported Despite Serious Injuries’, Lateline, 27 June 2005 accessed at <http://www.abc.net.au/lateline/content/2005/s1401725.htm> on 29 June 2005.

[86] A medical report signed by a social worker reportedly quoting a doctor from Liverpool Hospital describes Vivian as a ‘partial quadriplegic’ due to suspected spinal damage. Ibid.

[87] ABC Television, Tony Jones, ‘Vanstone speaks over wrongful detention’, Lateline, 9 May 2005 accessed at <http://www.abc.net.au/lateline/content/2005/s1363623.htm> on 11 May 2005.

[88] Elizabeth Colman and Sean Parnell, ‘Revealed: Aussie wrongly deported’, The Australian, 6 may 2005, 1; Andra Jackson, ‘Wrongly deported Australian woman found’, The Age (Melbourne), 12 May 2005, 1; Michael McKenna, ‘Deported mum found in convent’, The Courier-Mail, (Brisbane) 12 May 2005, 1.

[89] Jackson, Ibid.

[90] ABC Television, Margot O’Neill, ‘Government accused of racism over deportation’, Lateline, 10 May 2005 accessed at <http://www.abc.net.au/lateline/content/2005/s1364577.htm> on 11 May 2005; Jones, above n 85; Cath Hart and Sean Parnell, ‘Family of deportee wants answers’, The Australian, 11 May 2005, 1.

[91] Channel 9, Leila McKinnon, ‘News’ on the Today Show, 23 June 2005. News.com.au, ‘Alvarez may have spinal injury’, 28 June 2005 accessed at <http://www.news.com.au/story/0,10117,15753504-1702,00.html> on 3 July 2005.

[92] Select Committee Report, above n 30, 10.

[93] Senator Amanda Vanstone, ‘Palmer Implementation Plan and Comrie Report’ (Media Release, 6 October 2005) accessed at <http://www.minister.immi.gov.au/media_releases/media05/v05119.htm> on 2 November 2005.

[94] Ibid.

[95] Senator Amanda Vanstone, ‘Ministerial Statement to Senate Estimates Committee’ (Media Release, 25 May 2005) <http://www.minister.immi.gov.au/media_releases/media05/v05064.htm> at 2 August 2005.

[96] Human Rights and Equal Opportunity Commission, A last resort? A National Inquiry into Children in Immigration Detention (2004) Canberra.

[97] Vanstone, above n 94.

[98] Ibid.

[99] LookSmart, ‘Howard apologizes for deportation of Australian amnesia victim’, Kyodo News International Inc., 14 July 2005 accessed at <http://www.findarticles.com/p/articles/mi_m0WDQ/is_2005_July_18/ai_n14797862> on 20 August 2005.

[100] Unauthored, ‘Libs reach detention agreement’, Townsville Bulletin, 18 June 2005, 22.

[101] Lacklan Heywood and Matthew Franklin, ‘Detention kids freed’, The Courier Mail (Brisbane), 18 June 2005) <http://www.couriermail.news.com.au> at 19 June 2005.

[102] HREOC, above n 93, Recommendation 4; HREOC submission (8 August 2005) D.

[103] Michael Head, ‘Australia’s radical legal shift’ (15 March 2005) UWS Law School Symposium accessed at <http://www.whitlam.org/its_time/24/seekers.html> on 15 November 2005.

[104] Mr Mahamdou Sacko, a Frenchman, was held at the Villawood Detention Centre in 2003 and a Korean woman was detained at the Baxter Detention Centre in 2004. See Freckelton, above n 48, 10.

[105] See for instance, Heywood and Franklin, above n 97 and unauthored, ‘Immigration policy racist: Rau’s lawyer’ The Age (Melbourne), 26 September 2005 accessed at <http://theage.com.au/articles/2005/09/26/1127586792035.html> on 27 September 2005.


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