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The Commonwealth ombudsman has warned of excessive and even illegal force used in detention centres, as figures disclosed under FOI reveal assault numbers. By Karen Middleton.

Exclusive: 4115 assaults in immigration detention

Home Affairs Minister Peter Dutton.
Credit: AAP Image / Lukas Coch

The federal government has been warned excessive and possibly illegal force is being used to resolve conflict inside Australia’s immigration detention centres, with more than 4000 assaults recorded in the past five years.

In a review of detention centres published late last week, Commonwealth ombudsman Michael Manthorpe said that while force was sometimes “necessary and appropriate” for safety, it was being used too readily, too often and not always proportionately.

“We are concerned that there appears to be an increasing tendency across the immigration detention network for force to be used to resolve conflict or non-compliant behaviour as the first rather than last choice and can be exercised in a manner both inconsistent with the department’s procedures and possibly without legal basis,” Manthorpe told parliament in his report.

Department of Home Affairs figures obtained under freedom of information confirm that detention centres have become violent places, recording 4115 assaults between January 1, 2015, and March 31 this year.

Of these, 184 were reported to police.

Home Affairs says that while 82.6 per cent of the reported assaults – equal to 152 – involved detainees as the alleged perpetrators, the remainder – 32 – involved other perpetrators, who could be “visitors, staff (including contractors) or other stakeholders”.

Asked how many alleged perpetrators of the reported assaults were contractors or Australian Border Force officers, the ABF was unable to provide a response before deadline, despite 10 days’ notice.

The assault figures do not cover most of the Covid-19 lockdown period, during which tensions are understood to have worsened. The government banned all visitors to prisons and detention centres from March.

In his report, Ombudsman Manthorpe noted that while the government had accepted almost all the recommendations from his previous six-monthly report, many still had not been actioned.

Four of the ombudsman’s 12 new recommendations related to the use of force. He said staff should be reminded of procedures and the consequences of breaching them.

His report raised the 2018 case of a detainee who had been injured while restrained when Serco employees used excessive force.

Manthorpe said the detainee had been “obstructive” but not physically aggressive, did not otherwise resist and neither posed nor made a threat.

He concluded the use of force appeared to have no lawful basis and that Serco’s investigations were “inadequate” and too slow. Neither Serco nor Home Affairs shared investigation outcomes with the complainant.

The department had since advised it was obtaining legal advice on the limitations of the protected use of force.

Manthorpe said force-related complaint reviews should be completed within six months and Serco should be chastised. Guidelines should be updated, and complainants informed of investigation results.

The ombudsman also recommended the detainee receive an apology.

Home Affairs agreed to remind staff – and Serco – and expedite investigations.

It did not agree to share investigation results, nor to apologise. It said it was examining the incident within a review of the use of force, which began in March and “remains under way”.

The Border Force spokesperson said all complaints are “appropriately reviewed”.

“The ABF is committed to the good order of the detention network and will continue to ensure that Australia’s immigration detention facilities are safe and secure,” the spokesperson said.

In recent years, foreign nationals charged with or convicted of criminal offences or deemed to be of bad character have come to outnumber refugees and asylum seekers in Australia’s detention centres. Those refused on conduct or character grounds under section 501 of the Migration Act are awaiting deportation.

Other detainees are awaiting refugee status determinations. Some confirmed refugees are still rejected and because their original countries won’t take them back, they remain detained indefinitely. The system largely does not differentiate.

As of June 22, according to other Home Affairs figures released under FOI, asylum seekers awaiting a decision were detained for two years and eight months, on average. Of the approximately 1550 people in detention, 106 were protection visa applicants held for more than five years. Another 22 applicants had been held for more than eight years.

Lawyer Alison Battisson, director of Human Rights for All, alleges some of her detainee clients have been assaulted by other detainees and by security officers.

“It’s incredibly prison-like,” Battisson says of the environment inside Australia’s detention centres. “If you treat somebody like they’re in a prison, they’re going to behave like they’re in a prison.”

Battisson and other advocates say the duration and uncertainty of detention contribute to a violent culture.

“Why would you bother to comply with whatever ridiculous standards there are in a detention centre if you know you’re never going to leave?” Battisson says.

This week, lawyers for a 68-year-old Pakistani man failed to force the government to release him from the high-security Melbourne International Transit Accommodation (MITA) centre on the grounds that he was at high risk of contracting Covid-19.

The Federal Court had accepted the health risk and ruled he could no longer be held at MITA, in the Covid-19 hotspot suburb of Broadmeadows.

The Home Affairs Department said it would transfer him to the Yongah Hill detention centre in Western Australia.

On Wednesday, the man’s lawyers argued that transporting him also posed a significant risk. They wanted him moved to community detention to live with his son in Melbourne instead.

But the court accepted government assurances about personal protection and distancing during transfer. The man was due to be moved within the week. His lawyers launched proceedings in the WA Supreme Court to challenge the state government’s exemption of their client from border restrictions.

The government is currently moving some detainees from centres in the eastern states to Yongah Hill ahead of their transfer to Christmas Island detention centre, reopened this month until at least February 2021 at a cost of $55.6 million. Up to 250 detainees will be moved there from mainland centres with 31 transferred in the past fortnight.

Asylum Seeker Resource Centre lawyer Carolyn Graydon suggested the move was intended to restrict detainees’ private contact with lawyers and supporters because Christmas Island has poor wi-fi and mobile phone service.

She believes the shift is linked to the government’s efforts to ban mobile phones from detention centres. There is legislation before parliament to expand Home Affairs Minister Peter Dutton’s powers to declare certain items prohibited and more easily search for and seize them.

“I don’t think it’s a coincidence that all this is happening at the same time,” she said.

Acting Immigration minister Alan Tudge rejects those assertions.

“Claims we’re moving criminal detainees to Christmas Island to silence them are nonsense and part of an ongoing misinformation campaign by refugee activists,” Tudge told The Saturday Paper, saying deportations had slowed due to Covid-19 and it was a “commonsense decision” to free up space and keep numbers at safe levels.

Tudge said detainees transferred to Christmas Island were being given Telstra SIM cards and the government was paying for their phone credit. He said 32 internet workstations and 52 landline phones were available, plus another 26 internet workstations for use during programs and activities.

Minister Dutton’s legislation would allow security officers to conduct searches without requiring a “reasonable suspicion” that someone has a banned item or has done or is planning something unlawful. Existing powers allow strip-searches of people aged over 10 and for dogs to be used.

The move seeks to address a 2017 Federal Court ruling that rejected a blanket ban on mobile phones in detention centres. The government is particularly concerned that detainees can use phones to film and photograph security officers and post images online. Alison Battisson says her clients have used their phones to film officers behaving violently.

Peak legal bodies, human rights organisations and refugee advocacy groups say the bill unacceptably breaches detainees’ rights. Labor and the Greens have promised to block it, as they did with a version that was proposed after the 2017 court decision.

Alan Tudge said the legislation was essential to protect the community, detainees and security officers, whose seizure powers were limited and “it takes time to call the police”.

This article was first published in the print edition of The Saturday Paper on Aug 22, 2020 as "Exclusive: 4115 assaults in immigration detention".

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Karen Middleton is The Saturday Paper’s chief political correspondent.