The revelations about the ill treatment of Iraqi prisoners by US soldiers has again raised questions about conditions of asylum seekers held in detention by the Australian Government. Reports by the United Nations High Commissioner for Human Rights in June 2002 and by the Australian Human Rights and Equal Opportunity Commission in May 2004 have been very critical of the treatment of such people who may be imprisoned indefinitely in this country, even though they have not been convicted of any offence.
A recent decision of the Full Federal Court has again highlighted the lack of regulations governing the proper treatment of men, women and children held under Australia’s draconian immigration regime.
The case concerned Mohammed Amin Mastipour, who fled Iran in late 2000 for political reasons, with his young daughter of 5 years of age. Since early 2001 they were imprisoned in immigration detention centres in Australia, firstly at Curtin in Western Australia and later at Baxter Detention Centre at Port Augusta, South Australia. On the morning of 14 July 2003 Mr Mastipour was separated from his daughter by guards employed by Australasian Correctional Management Pty Ltd (“ACM”) which is a subsidiary of an American owned company, and was contracted at the time to run the detention centre. He was taken by the guards and placed in what is euphemistically called by the Department of Immigration a “Management Unit”. Lawyers for refugees have described these Management Units as isolation cells for solitary confinement. Whilst Amin was being held in solitary confinement, his daughter was, without his knowledge or authority, flown back to Iran by the Australian Government. Amin remained in isolation for about another two months.
On 18 August 2003 proceedings were taken on behalf of Mr Mastipour by the Refugee Advocacy Service of South Australia (“RASSA”) in the Federal Court. The application sought orders including:
- A declaration that the Minister for Immigration and ACM were acting beyond the powers conferred under the Migration Act in holding Mr Mastipour in solitary confinement.
- An injunction restraining the respondents from holding Mr Mastipour in solitary confinement, and
- An award of damages including exemplary damages for personal injuries suffered by Mr Mastipour.
The statement of claim filed in the Court asserts that on 14 July 2003 guards entered Mr Mastipour’s living area, beat him on his head, right knee and chest, ordered him to take off his clothes in front of his young daughter and handcuffed him. The statement says that when Amin refused to take off his clothes he was placed in solitary confinement in the Management Unit. It is claimed that the conditions in which he was held amount to “torture” as defined by Article 1(1) of the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment and constituted punishment of Mr Mastipour which was not authorised by the Act.
The Management Unit cell is described as being approximately 3 metres square, containing a mattress and no other furniture. Fixed upon the wall is a closed-circuit TV camera which observes and records the inmate’s movements at all times. The cell is always lit. The statement says that Amin had no view of anything outside the room. It is further claimed that he was confined to his cell for more than 23 hours in each day, he did not have anyone else to talk to and he was not permitted television, radio or any other entertainment or diversion.
Mr Mastipour asserts that at the time he was placed in solitary confinement, the Minister and ACM owed him a duty to take care to avoid exposing him to circumstances which were likely to cause him emotional shock and psychiatric injury. He states that, as a result of the matters alleged, he in fact suffered severe emotional shock and psychiatric injury.
Julian Burnside QC, on instructions from RASSA and later from Johnston Withers Lawyers, sought interlocutory orders that, pending the hearing of the application, Mr Mastipour be taken out of solitary confinement and transferred from Baxter to Maribyrnong Detention Centre in Melbourne or Villawood Detention Centre in Sydney. However, Counsel for the Government opposed any such interlocutory orders, submitting that the Department of Immigration was prepared to let Amin out of the Management Unit back into the general compound at Baxter, but was not prepared to move him elsewhere.
Counsel for Mr Mastipour argued that the continued detention in the Management Unit was for punitive purposes. Evidence was submitted that the conditions under which Amin had been placed in detention had had a severe and detrimental impact on his mental state. Furthermore, evidence indicated that the forced removal of his daughter from Australia had been “a major life catastrophe for him”. A psychiatrist retained by the Department even stated in a report that the Department had told him not to tell Mr Mastipour that his daughter had been sent back to Iran when he examined Amin in the Management Unit shortly after that event.
Justice Mansfield, who heard the initial argument for the interlocutory orders, considered that there was at the least a clearly arguable case that the Department owed Mr Mastipour a duty to take reasonable care for his safety whilst he was in immigration detention. Furthermore the Judge considered there was a serious question to be tried, that the form of detention of the applicant could involve a breach of the duty to take reasonable care for Mr Mastipour’s safety.
His Honour noted that all the medical evidence “points generally in the same way”, which was to the effect that Mr Mastipour should be taken out of the Management Unit and transferred to a detention centre close to a capital city to better provide for his need for ongoing medical treatment. The Court therefore ordered that Amin be transferred from Baxter to either Villawood or Maribyrnong.
As a result Mr Mastipour was taken out of solitary confinement and flown to Maribyrnong Detention Centre in Melbourne. The Federal Government then appealed the orders of Justice Mansfield to the Full Federal Court.
The Government argued before the Full Court that the effect of Justice Mansfield’s decision was that the Court had intervened, not in relation to the lawfulness of the immigration detention as such, but for the purpose of determining what precise place or circumstances of detention are lawful and what are unlawful. Although counsel conceded that a duty of care was owed to Mr Mastipour whilst he was being detained, it was submitted that the evidence did not demonstrate any breach of that duty. It was further argued that there was no evidence that the Government had breached any relevant legal obligation.
The Full Federal Court, in a decision handed down on 29 April 2004, found in favour of Mr Mastipour. In doing so, Justice Selway noted that there was no detailed regulatory regime in place in immigration detention centres. He considered that the failure to make such regulations necessarily resulted in uncertainty as to what powers and obligations applied in these detention centres. It was the Judge’s view that, in fact, an asylum seeker who was detained retained all of his or her civil rights other than those that are only available to a citizen of Australia, and other than those which are specifically taken away by the law.
Justice Lander, in the lead judgment noted that the detention centre’s manager Greg Wallis, an employee of the Department, did not give any reasons in the evidence submitted as to why it would not be viable to transfer Amin to a detention centre in Melbourne or Sydney. He noted: “One gets the impression from Mr Wallis’ affidavit that there is a resistance to moving Mr Mastipour because it is his wish to be moved”. Justice Lander further noted that none of the affidavits which were tendered from officers of the Department made any reference at all to the various expert psychiatric reports which had been obtained and their conclusions that it would be in Mr Mastipour’s best interest to be accommodated at another detention centre.
The Full Court considered that Justice Mansfield properly recognised that the application for an injunction was dependent upon Mr Mastipour establishing that there was a duty of care. Such a duty was conceded by the Government. Justice Lander then considered that the question for the trial judge was whether there was a serious question to be tried in relation to the breach of that duty. He held that on the evidence there was clearly a serious question to be tried and that the balance of convenience favoured Mr Mastipour being moved to another detention centre.
All three judges found that the primary judge was correct in his findings. The final orders of the trial judge, however, were amended such that an injunction was granted restraining the Secretary of the Department from detaining Mr Mastipour at the Baxter centre or from removing him to the Port Hedland centre.
It appears that this is the first case in which the Federal Court has been asked to examine the conditions within detention centres and to consider whether they are lawful or unlawful. In particular, it is the first time in which a Court has reviewed the practice of placing detainees into solitary confinement and has provided interlocutory relief to remove a detainee from such a situation. In the meantime the case is continuing to proceed before the Justice Mansfield with the applicant seeking final orders, including exemplary damages from the Government and ACM for the alleged mental harm caused to him.
It is of great concern to advocates for refugees and asylum seekers that there appear to be no properly regulated standards of treatment governing immigration detention centres in Australia, and indeed in places established by the Australian Government in countries such as Nauru. At present the Government appears to consider that it has the power to place detainees into solitary confinement without having to justify the reasons for doing so or be accountable for its actions.
It is encouraging that, despite the Government’s repeated attempts to remove the Courts’ jurisdiction to review refugee applications, the Courts have in certain cases intervened to ensure that justice is upheld, unless specifically prohibited from doing so by the legislature. It is also heartening that the Courts may now intervene to scrutinise the actual conditions of detention, despite the fact that our laws continue to permit the detention of asylum seekers for lengthy periods of time.
It is little wonder that the Australian Government voted against the Optional Protocol to the UN Convention against Torture, in the UN Economic and Social Council, on 24 July 2002. The Optional Protocol provides that, amongst other matters, detention centres such as that established by the Government to imprison asylum seekers in Australia will be subject to inspection by an independent body. The Federal Government is clearly fearful of what might be uncovered if it were to sign the Protocol and permit such inspections.
In Iraq, the US Government has been shamed by the treatment of prisoners by US soldiers and employees of private security companies engaged by the US Government. Similarly, it is likely that more stories will be revealed in the future of the plight of asylum seekers locked up in Australia’s detention centres, to the shame of the Australian Government and our once proud record of human rights.
Graham Harbord, of Johnston Withers, acted as Junior Counsel to Julian Burnside QC in the case referred to in this article. At the time of publication he was member of the Law Society’s Human Rights Committee.
This article was published in the Law Society Bulletin in May 2004.
 Mastipour v Secretary of DIMIA and anor (2003) FCA 952
 Secretary of DIMIA v Mastipour (2004) FCAFC 93
 See for example S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24