Australia urged to pay compensation for unjustified use of force in immigration detention

A 19-year-old woman who was forced to dress in the presence of masked male guards, and a mother who was separated from her newborn daughter for 32 hours and denied access to a lawyer are among a number of human rights breaches in onshore detention.

A new report by the Australian Human Rights Commission, on the use of force in immigration detention, has called for a public inquiry, and recommended compensation be paid in multiple cases for unjustifiable use of force.

The commission investigated 14 separate complaints and found nine cases breached international human rights law.

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It examined complaints about the use of metal cuffs, including on someone with a “significant wrist wound” for more than eight hours; flexi cuffs, including on a 17-year-old boy; and dawn transfers of children, including a seven-year-old.

It also noted the handcuffing of a man for 12 hours of flying between detention centres, which the department’s response suggested was because – at least in part – he was Vietnamese and the department believed they were more likely to abscond. There was no history or assessment to suggest the man was high-risk.

The AHRC expressed serious concern over the use of restraints on a man with a mental illness and no history of aggressiveness, and on two people in wheelchairs.

The report also found cases of officers turning off their bodyworn cameras during incidents.

The AHRC president, Prof Rosalind Croucher, said any use of force in such a setting had to be appropriately justified.

“The particular environment of immigration detention means that the use of force may occasionally be necessary,” she wrote.

“However, the use of force on detainees directly engages their rights. In particular, people who are deprived of their liberty have the right to be treated with humanity and with respect for their inherent dignity.”

Several of the complaints related to an operation to move 19 families from Darwin’s Wickham Point detention centre to Melbourne in April 2015, the day after a detainee protest.

The transfers were without notice because, the department said, “operational security requirements … over[rode] detainee notification requirements”.

Among the cases, the AHRC found that Emergency Response Team (ERT) officers made a “significant breach” of the privacy rights of a 19-year-old woman, referred to as Ms KG.

“At least four masked ERT officers entered the bedroom of Ms KG, then aged 19, unannounced before dawn and refused her the opportunity to get dressed without them being present,” the report said.

The AHRC reviewed CCTV footage and confirmed at least four officers, wearing balaclavas, body armour and helmets, entered the woman’s room.

In its response to the AHRC the department said it was necessary to make Ms KG keep her door open while dressing so she didn’t lock herself in or commit self-harm. The woman had been assessed as low-risk, including a low risk of becoming aggressive or engaging in self-harm.

The AHRC said the Serco guards’ actions were neither reasonable nor proportionate to a legitimate purpose and there were alternatives available, noting a female officer who was accompanying Ms KG’s nine-year-old brother during the extraction could have gone in alone.

The report examined the extraction of the whole family, who now live in community detention, noting that several members had been treated for PTSD symptoms, including recurrent and distressing memories and nightmares.

During the same mass transfer of the Wickham Point families, guards also separated a young mother, referred to as Ms LC, from her newborn baby and husband, and handcuffed her for an hour and 40 minutes while she was taken to a police watchhouse.

“She was not charged with any offence. Detainees were merely held at the watchhouse pending transfer to Melbourne the following day,” the report said.

“Ms LC was separated from her husband and baby for 32 hours. Ms LC asked to speak with a lawyer and this request was denied.”

The report said Ms LC was suffering postnatal depression at the time.

The commissioner found the treatment breached her human right to be treated “with humanity and with respect for her human dignity”, and breached the right of her baby “not to be separated from her mother”.

The AHRC recommended compensation be paid to eight parties, including the two women and their families, and an apology from the commonwealth to reflect the loss and damage suffered.

The department said it did not accept that there was a meaningful prospect of legal liability in relation to the circumstances provided in the findings.

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The report made 24 recommendations, including changes to security risk assessments, the recording of use of force incidence, and reforms in the use of handcuffs and detainee transfers between centres.

While the department accepted many, including an independent review of security risk assessment procedures, it rejected calls for a public inquiry, and defended others – such as prior notice of transfer to detainees – as already being part of policy.

It accepted that families should not be separated during transfers, and agreed to have updated its policies by June of this year.

“There needs to be effective oversight of the use of force in immigration detention,” Croucher said.

“This requires robust authorisation procedures, filming of all pre-planned uses of force in their entirety, and appropriate record keeping so that incidents can be properly assessed.”

“Today’s landmark report shows the frightening abuses of men, women and children who have sought safety and been detained by the Government in its detention centres,” the Human Rights Law Centre’s legal director, David Burke, said.