Legality of Immigration Detention
Legality of Detention under the Migration Act
The Migration Act requires all “unlawful non-citizens” to be held in immigration detention. It provides:
189 Detention of unlawful non‑citizens
(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.
(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a) is seeking to enter the migration zone (other than an excised offshore place); and
(b) would, if in the migration zone, be an unlawful non‑citizen;
the officer must detain the person.
(3) If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non‑citizen, the officer may detain the person.
(4) If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a) is seeking to enter an excised offshore place; and
(b) would, if in the migration zone, be an unlawful non‑citizen;
the officer may detain the person.
The Act defines “immigration detention”. Section 5 provides:
immigration detention means:
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; …..
Of course, just because a person is being held by an officer in a detention centre does not necessarily mean that he or she is in immigration detention. If, for example, an officer refused to allow a visiting priest to leave the detention centre at the end of a visit, the priest would not suddenly be in immigration detention. Nor – if he escaped from the detention centre – would he be guilty of escaping from immigration detention. To read the Act otherwise would be to give it an application that Parliament never intended.
Parliament also did not intend the Act to have any application beyond what it (Parliament) can validly authorise. Parliament gave the Act its own self-limiting mechanism, in the form of section 3A. That section reads:
3A Act not to apply so as to exceed Commonwealth power
(1) Unless the contrary intention appears, if a provision of this Act:
(a) would, apart from this section, have an invalid application; but
(b) also has at least one valid application;
it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application. …
In Lim’s case, the High Court identified limits to the nature of detention that Parliament can validly authorise for migration control purposes. Under the Constitution – so the Court held – detention is generally to be regarded as a punishment. There are established exceptions, that is to say, there are established forms of detention that are not punitive: remand in custody, for example. But beyond these, detention only exists under our system of government for the punishment of crimes. For that reason, it is generally to be characterised as punitive.
The punishment of crimes is a judicial function. The judicial functions of the Commonwealth can only be performed by Chapter III courts; that is to say, by courts – be they State or Federal – that answer to the requirements of Chapter III of the Constitution. This restriction is part and parcel of the separation of powers of the Commonwealth, for which the Constitution provides.
It follows – as the Court in Lim held – that if a Commonwealth Act, such as the Migration Act, were to provide for the imposition of punitive detention on any person, except for a crime of which he or she had been convicted by a Chapter III court, the Act would infringe upon the separation of the judicial power of the Commonwealth; and it would be unconstitutional, and invalid.
The Constitution provides for Parliament to make laws with respect to aliens. These may include laws regulating the admission and expulsion of aliens. Detention – when imposed within reason for the purposes of these laws – is not punitive. As the Court held in Lim, if imposed within reason, the detention will not trespass upon the separate and exclusive preserve of judicial power:
In the light of what has been said above, the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch.III’s insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates. (emphasis added)
The limiting mechanism provided by section 3A of the Migration Act means that the Act is not to be construed as having any invalid applications. So, having regard to Lim – and despite the apparent breadth of its terms – the Act is not to be construed as authorising any form of detention that is not beyond what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered
The defence to the charges
The defence to be mounted by each of the defendants will involve these three propositions. First, that detention in the Woomera Detention Centre (“Woomera”) goes beyond anything that could reasonably be regarded as necessary for the proper purposes of the Act. Secondly, that detention in Woomera is therefore not a form of detention authorised by the Migration Act. Thirdly, that accordingly a detainee who escapes from Woomera does not escape from immigration detention.
There are at least two important measures of whether a regime of detention goes beyond what is reasonably necessary. One is to be found in the conditions of the regime. The other is to be found in the impact that the regime has on those who live under it.
12. The conditions prevailing in Australia’s detention centres have been the subject of publicly expressed alarm, including from within the custodial services sector itself. In a recent speech, WA’s Inspector of Custodial Services, Professor Richard Harding, had this to say:
That brings me to the question of Immigration Detention Centres. In Australia these are an absolute disgrace in terms of the conditions and standards that are applied. Whilst there are several factors contributing to this, one of the most important is that there is a complete absence of proper accountability and transparency across the whole system. 
13. Professor Harding then recounted his own observations as to conditions in the Curtin Detention Centre: desert isolation, gross overcrowding, broken toilets, inadequate medical services; and so on:
I visited Curtin Detention Centre for a nine-hour visit on 25th June 2001. It is a five-hectare site, with just over 100 temporary accommodation and service buildings scattered amongst the red dirt that is characteristic of the area. The nearest town is Derby, some 40 kilometres away, but the Centre itself gives the impression of being, “in the middle of nowhere”, as it is about 6 kilometres away from the main road .The day I visited there were 849 people living there, mostly Iraqis, Iranians and Afghanis 
ACS/DIMA had been very anxious that one should arrive before 9.00am so as to be able to see the Centre’s education classes in progress. They were evidently very proud of this initiative. A glossy brochure indicated that children were receiving five hours’ daily education in four different groups. In reality, they were receiving one hour’s education. Teaching took place between 9.00am and 10.00am; thereafter, the children stayed in the teaching area until 11.00am, during which time some contact with teachers might occur; then there was a lunch break until 1.00pm; and after that so called ‘homework’, if the children felt like doing it, occurred in the classroom area until about 2.00pm. The so called ‘education program’ was largely a charade – though doubtless five hours’ full education was being paid for and signed off by the Canberra-based ‘monitors’.
14. That insight really set the tone for the whole place. The huts in which people lived were grossly overcrowded; many of the toilets were broken; some of the washing machines were also broken; the so-called ‘shop’ was abominably stocked and rather inaccessible; the system for sending mail breached all standards of privacy and confidentiality; and above all the medical and dental facilities were inadequate. 
At length, Professor Harding concluded:
Thus, in summary, the conditions that exist at the Curtin Centre are almost intolerable. Such evidence as exists indicates things are little better at the other Centres. Yet these things are also largely invisible, except when riots occur.
16. The impact that the detention regime has had on detainees has raised similar public alarm. In an award-winning ABC broadcast this year, psychiatrist Professor Patrick McGorry spoke to reporter Toni Hassan about one of his detainee patients, and his experiences with detainees generally:
Toni Hassan: Concerned about [detainee] Sivam’s mental health, his lawyer contacted Melbourne University Professor Patrick McGorry, an internationally recognised psychiatrist who’s worked with asylum seekers since the 1980s.
Professor McGorry saw Mr Sivam 2-1/2 years into his stay at Victoria’s Maribyrnong Detention Centre.
Patrick McGorry: He was one of the most severely ill people I’ve actually seen in the Maribyrnong Detention Centre, and I’ve been seeing people there for at least a five to ten year period now.
Toni Hassan: So would you say he arrived mentally ill?
Patrick McGorry: No, he arrived very well. The way he sounds now is absolutely, he still sounds very unwell doesn’t he, and indeed he is. But I’ve seen pictures of him when he arrived and indeed the first year or so that he was in the detention centre, showing a very vibrant youthful man who, as he said, was a teacher in Sri Lanka, a very respected man. He became severely ill with a serious depressive illness which is still with him, and I think he has just become totally demoralised as a result of this experience of indefinite detention. And medical care provided to him in the detention centre was basically general practiced level, and no specialist care is offered to people unless there is a serious crisis, or a serious threat to life. Even then that’s not always available. This man spent 38 months, as he described in detention; his case was eventually upheld, even though it was rejected at every turn, but was put through the wringer absolutely, and he has had his health destroyed in the process.
Toni Hassan: Patrick McGorry says Mr Sivam’s story is not uncommon.
17. In the same broadcast, psychologist Zachary Steele alluded to the rapid deterioration of inmates subjected to the detention centre regime, and the ultimate symptoms of their deterioration:
Zachary Steel: There is no doubt that because we don’t know who these people are when they arrive, there needs to be some kind of short-term detention to determine that these people don’t pose any threat to Australian society and to check on identity. But the process that’s been established has no mechanism for the release of the people, regardless of their mental state, and we just see people deteriorate quite rapidly in that environment. At the most extreme end of the spectrum, you get a presentation of extreme disability, characterised by severe depression, chronic rage, persecutory delusions and even the emergence of psychotic symptoms. And even when a number of these people are released from detention, we don’t see amelioration of these symptoms. So it looks like profound disability maybe being created.
The one thing that is clear from all of the research that’s been carried out internationally amongst traumatised populations, is that the post-recovery environment is the most crucial environment to determine the ultimate recovery of an individual. If the post-recovery environment is characterised by a supportive environment that’s safe, then people can begin to rebuild their lives, but if it’s characterised by ongoing threat and constant reminders of the trauma of experience, the disability is compounded substantially, and that’s what I believe that we’re seeing as a consequence of the policy of detention.
18. The extreme symptoms alluded to by Dr Steele seem to be commonplace. Dr Aamer Sultan, an Iranian doctor detained at Sydney’s Villawood detention Centre, told Toni Hassan:
Aamer Sultan: This environment is a jailed environment. Not even one week will pass without problems, like someone tries to suicide, some are trying to harm themselves. The removal procedures when they come by force to remove someone are needing to inject him with sedation and handcuff him and wrap him with wires to get him away from the country.
19. This year, Dr Sultan was honoured in HREOC’s Human Rights Awards for his volunteer work supporting the well-being of other immigration detainees. His observations are echoed by Professor Harding’s assessment of the chronic problem of rioting in the detention centres:
This audience will be aware that protests about conditions, sometimes culminating in riots, are a frequent, even endemic, aspect of the running of Detention Centres, particularly the worst ones at Curtin, Port Hedland, Woomera and Villawood. 
Let me emphasise: it is no coincidence that riots do occur in a system that lacks accountability. Riots occur for a reason; they are seldom “mindless” or the work of “rabble rousers”. Anyone who knows the simplest thing about prison riots knows also that unacceptable conditions against which there is no recourse, and thus in relation to which there is a profound sense of inequitable treatment, are the precursor to riots. We do not have riots in our detention centres because we have a riotous group of refugees; we have them because we run appalling systems. 
The website of the Department of Immigration and Multicultural Affairs includes a summary of the Immigration Detention Standards to be met by the contractors that administer detention centres. The definitions appended to the Standards identify those “incidents” or “disturbances” that are reportable under or covered by “Operating Orders”. The relevant definitions read:
“incident” (reportable through Incident Reporting Procedures detailed in Operational Orders) means a variation from the ordinary day to day routine of a facility which threatens, or has the potential to threaten, the good order of the facility, or, which threatens the success of escort/transfer/removal activities, or may impact on immigration processing, including but not limited by:
· escape from lawful detention or attempted escape
· attempted self harm
· hunger strike in excess of 12 hours
· solitary confinement of detainee
· transfer of detainee/s to another facility, state institution
· indications of rising tension within a facility, eg prior/post major removal activity, prior/post visa decision advice
· approaches to staff by, or presence at the facility of, media representatives
· industrial action by staff
· approaches to staff by, or presence at the facility of, media representatives
“major incident/disturbance” (major incidents/disturbance would usually be covered by Emergency Procedures in Operational Orders) means an incident or event which seriously affects the good order and security of the facility or which threatens the success of escort/transfer/removal activities, including but not limited by:
· medical emergency eg serious accident, serious self inflicted injury, infection contamination of facility
· serious assault eg sexual assault, assault causing serious bodily harm
· hostage situation
· hunger strike (of over 24 hours)
· sit-in, barricade (if not dealt with within 4 hours)
· rooftop demonstration
· food poisoning/epidemic
· bomb threat
· failure of mains system/power failure; electronic security system
· hazardous materials contamination
· fire, storm and tempest
· damage caused to facility
Virtually without exception, all of the occurrences enumerated in these definitions are events which are frequently (if not typically) indicative of sub-standard conditions, or symptomatic of their impact. In this category are escape, self-harm, hunger strike, solitary confinement, rising tension, all of the listed forms of demonstration, riot, damage, food poisoning, epidemic, contamination and so on. So too events such as media interest in the facility (which seems to warrant a double mention) and industrial action by staff.
Under the heading “Dignity”, DIMA’s summary of Immigration Detention Standards emphasises the significance of individualised management. It provides:
Services, facilities, activities and programs are based on the concept of individual management and designed to meet the individual needs of detainees and have regard to cultural differences.
The existence or non-existence of those services, facilities, activities and programs is patently a matter of real significance to character of the detention regime at Woomera.
The question whether the detention regime at Woomera sinks below that which is constitutionally permissible must be tested by its impact on detainees generally, not just the particular detainees who are before the court. That necessarily involves looking at the effect on young and old, strong and weak, adults and children. That is why the defendants are entitled to mount their defence not only on the basis of what the regime has done to them, but also by reference to what it has done to others. The true question is: what are the conditions at Woomera: do those conditions fall within the proper meaning of the words Immigration Detention?