HREOC Report No. 23

Report of an inquiry into a complaint by Mr Hassan Ghomwari concerning his immigration detention and the adequacy of the medical treatment he received while detained

HREOC Report No. 23


1. Introduction

2. The Inquiry Process

3. Findings and Reasons for Findings

4. Summary of Findings

5. Recommendations

6. Actions Taken by the Commonwealth as a Result of the Findings and Recommendations

APPENDIX A
Functions of the Human Rights and Equal Opportunity Commission in Relation to Human Rights


1. Introduction

This is a Report of the findings and reasons for findings made by the Human Rights and Equal Opportunity Commission (the Commission) following an inquiry conducted by the Commission [1]. The inquiry related to a complaint by Mrs Kylie Ghomwari on behalf of her husband, Mr Hassan Ghomwari, against the Commonwealth of Australia (the Commonwealth), Department of Immigration, Multicultural and Indigenous Affairs (the Department). The complaint was made pursuant to section 20(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act), which provides for a complaint to be made in writing to the Commission alleging that an act or practice is inconsistent with or contrary to any human right.

Mr Ghomwari is a citizen of Lebanon. He was taken into immigration detention pursuant to section 189 of the Migration Act 1958 (Cth) (the Migration Act) on 9 July 1998 when the Department discovered that he had overstayed his visitor visa. He was placed in the Villawood Immigration Detention Centre (VIDC). On 8 September 1998 a decision was made to transfer him to the Metropolitan Reception and Remand Centre (MRRC) at Silverwater. While at the MRRC, Mr Ghomwari contracted Hepatitis B. Mr Ghomwari remained at the MRRC (with two brief periods in the Parramatta Correctional Centre [2]) until 8 May 2000, when he was returned to the VIDC. Mr Ghomwari left Australia voluntarily on 21 October 2000.

In her complaint, Mrs Ghomwari asserted that the human rights of her husband had been breached in two ways:

(a) Mrs Ghomwari alleged that her husband did not receive appropriate medical assistance for his Hepatitis B after his return to the VIDC; and

(b) Mrs Ghomwari criticised the conditions of her husband's detention at the MRRC, and, in particular, the fact that he was held with, and received the same treatment as, convicted prisoners in the MRRC.

Mrs Ghomwari also challenged the basis for transferring her husband from the VIDC to the MRRC, the basis for his continued detention in the MRRC and the fact that her husband was held with convicted prisoners in that prison. However, those parts of her complaint were not substantiated.

2. The inquiry process

I have investigated this complaint pursuant to section 11(1)(f) of the HREOC Act and conciliation was attempted. However, agreement was not able to be reached and I have formed the view that this matter was not amenable to conciliation.

I have provided to the parties my Preliminary Report dated 31 May 2001, my Further Preliminary Report dated 9 November 2001 and my Additional Preliminary Report dated 25 February 2002. These reports outlined my preliminary findings of fact and law in relation to the complaint.

On 15 December 2001, I heard oral evidence from the parties on the issue of the medical assistance provided to Mr Ghomwari after he was returned to the VIDC on 8 May 2000. Mrs Ghomwari gave evidence and tendered a pamphlet on Hepatitis B. Dr Amin, Mr Peter Mitchell and Ms Kay Symons gave evidence on behalf of the Department.

The parties were given an opportunity to respond to these Preliminary Reports and to make written submissions on the oral evidence given at the hearing. The Department made three sets of written submissions dated 9 July 2001,

12 December 2001 and 15 March 2002 in response to the Preliminary Reports.

On 11 January 2002, the Department provided written submissions concerning the evidence given at the hearing.

On 17 July 2001, Mrs Ghomwari provided written submissions to the Commission. Mrs Ghomwari did not make any further written submissions to this inquiry but provided it with the following material:

  • Further Submission in Support of the Application of Hassan Ghomwari (Migration Review Tribunal Proceedings No. N99/06946);
  • Further Amended Application (Federal Court Proceedings No. NG 398/1999);
  • Statement of Facts and Issues (Federal Court Proceedings No. NG 398/1999);
  • Applicant's Submission in Support of Application for Order of Review (Federal Court Proceedings No. NG 398/1999);
  • Applicant's Further Outline of Contentions (Federal Court Proceedings No. NG 398/1999);
  • Applicant's Further List of Authorities (Federal Court Proceedings No. NG 398/1999);
  • Appellant's Submissions (Full Federal Court Proceedings No. N1233 of 1999); and
  • Index to Appeal Papers (Full Federal Court Proceedings No. N1233 of 1999).

On 23 September 2002, I provided to the parties my Notice of findings and reasons for findings pursuant to section 29(2) of the HREOC Act. The findings and reasons for findings made in that Notice appear below.

3. Findings and reasons for findings

3.1 Introduction

Where a complaint is received by the Commission, it has the function, pursuant to section 11(1)(f) of the HREOC Act, of inquiring into:

  • any act or practice
  • that may be inconsistent with or contrary to any human right.

3.2 Was there an act or practice?

Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth. These words have their ordinary meaning: that is, the noun "act" denotes a thing done and the noun "practice" denotes a course of repeated conduct.[3]

An "act" or "practice" only invokes the human rights complaints jurisdiction of the Commission where the relevant act or practice is within the discretion of the Commonwealth, its officer or agents. If the automatic operation of a law requires that the act or practice be done by or on behalf of the Commonwealth, its officers or its agents, and there is no discretion involved, these actions and practices will be outside the scope of the Commission's human rights complaints jurisdiction [4].

The Migration Act establishes a system of mandatory detention whereby all "unlawful non-citizens" [5] must be held in immigration detention [6] until they are granted a valid visa or leave the country [7]. The Commission in its Report, Those who've come across the seas: Detention of unauthorised arrivals [8], found that these provisions in the Migration Act contravene Australia's human rights obligations under article 9 of the International Covenant on Civil and Political Rights (ICCPR) and article 37 of the Convention on the Rights of the Child [9]. Consequently, the Commission recommended that these provisions be amended [10]. However, while this law remains in place a person's detention under the Migration Act occurs by reason of the automatic operation of the law and would not constitute an act or practice into which the Commission could inquire.

3.2.1 Conditions of detention

3.2.1.1 VIDC

Decision makers within the Department and Australasian Correctional Management Pty Ltd (ACM), as the agent of the Commonwealth under the Detention Services Contract dated 27 February 1998 [11], (hereafter collectively referred to as "the VIDC") are left with a wide discretion as to the conditions under which a person is held in immigration detention in an IDC. In the circumstances of this case, the VIDC exercised discretion as to the level and quality of the medical services provided to Mr Ghomwari. Decisions concerning these services are therefore "acts" done by the Commonwealth, as defined in section 3 of the HREOC Act, and within the Commission's complaints jurisdiction.

3.2.1.2 MRRC

Mr Ghomwari, as an immigration detainee, was held "on behalf of" the Department [12] in the MRRC. As such, the Department was responsible for the treatment he received in this correctional facility. This was acknowledged in the Department's written submissions of 15 March 2002, where it advised that negotiations are underway with a number of State correctional authorities in relation to, inter alia, the conditions under which detainees are held in these correctional facilities. Decisions concerning the treatment accorded to Mr Ghomwari in the MRRC are therefore also "acts" done by the Commonwealth, as defined in section 3 of the HREOC Act, and within the Commission's complaints jurisdiction.

3.3 Were the acts inconsistent with and/or contrary to any human right?

In her complaint, Mrs Ghomwari requested that I inquire into alleged breaches of human rights. As detailed above, pursuant to section 11(1)(f) of the HREOC Act, I have the function of inquiring into any act or practice which is inconsistent with or contrary to any human right. "Human rights" are defined in section 3 of this Act as "the rights and freedoms recognised in the [ICCPR], declared by the Declarations or recognised and declared by any relevant international instrument".

3.4 Were the acts inconsistent with and/or contrary to the human rights recognised in the ICCPR?

The ICCPR entered into force for Australia on 13 November 1980. The ICCPR applies to all persons within the territory of a State Party regardless of their nationality or status as a non-citizen [13]. Thus, the ICCPR applies to all asylum seekers, refugees and persons within Australia's jurisdiction whose applications for refugee protection have been rejected.

3.4.1 Article 10(1) of the ICCPR

Article 10(1) provides that:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

This article of the ICCPR is relevant to Mrs Ghomwari's allegation that her husband did not receive appropriate medical assistance for his Hepatitis B after his return to the VIDC.

In my Preliminary Report, I found that, upon his return to the VIDC, Mr Ghomwari was not provided with the level and quality of medical attention required to meet minimum standards of humane conditions of detention in breach of his human rights under article 10(1) of the ICCPR. In its written submissions of 9 July 2001, the Department disputed this finding.

3.4.1.1 Scope of article 10(1) of the ICCPR

Article 10(1) extends to all deprivations of liberty, including that which occurs when a person enters immigration detention [14], and requires that minimum standards of humane treatment be observed in the conditions of detention. The UNHRC has stated that:

3. Article 10, paragraph 1, imposes on State parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of their liberty, and complements the ban on torture or other cruel, inhuman or degrading treatment or punishment contained in article 7… Thus, not only may persons deprived of their liberty not be subjected to treatment which is contrary to article 7 … but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as that of free persons …

4. Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party. This rule must be applied without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The scope of article 10(1) was addressed in detail in the Report of the Human Rights Commissioner of May 2000 [15] concerning the conditions of detention of a Nigerian national at the Perth Immigration Detention Centre (the Perth IDC). The Commissioner found that the placement of the complainant in an observation room as a form of punishment, the continued use of restraints, the excessive and unnecessary holding of the complainant in the observation room and the holding of the complainant in a room without natural light or ventilation amounted to contravention of article 10(1).

It is clear from UNHRC jurisprudence that the threshold for establishing a breach of article 10(1) is lower than the threshold for establishing 'cruel, inhuman or degrading treatment' within the meaning of article 7 [16] . Professor Manfred Nowak summaries this jurisprudence as follows:

[w]hereas article 7 primarily is directed at specific, usually violent attacks on personal integrity, article 10 relates more to the general state of a detention facility or some other closed institution and to the specific conditions of detention. As a result, article 7 principally accords a claim that State organs refrain from certain action (prohibition of mistreatment), while article 10 also covers positive State duties to ensure certain conduct: Regardless of economic difficulties, the State must establish a minimum standard for humane conditions of detention (requirement of humane treatment). In other words, it must provide detainees and prisoners with a minimum of services to satisfy their basic needs (food, clothing, medical care, sanitary facilities, communication, light, opportunity to move about, privacy, etc). Finally, it is … stressed that the requirement of humane treatment pursuant to article 10 goes beyond the mere prohibition of inhuman treatment under article 7 with regard to the extent of the necessary 'respect for the inherent dignity of the human person'. [17]

3.4.1.2 Medical assistance provided to Mr Ghomwari after his return to the VIDC

(a) Written material provided by the complainant

In her initial undated letter of complaint, received by the Commission on 24 July 2000, Mrs Ghomwari alleged that:

[w]hilst in jail he [her husband] contracted "Hepatitis B". He lived in the same section as convicted criminals. He contracted Hepatitis B by an inmate using his shaver or toothbrush. He was then suddenly returned back to Villawood. He is not getting proper treatment for Hep B. He is constantly ill due to this sickness.

In a further undated letter, which was received by the Commission on 24 April 2001, Mrs Ghomwari stated that:

[a] few months before Hassan left I went and saw a lady by the name of Kay Simmons. I told her about Hassan's situation and she already knew. I told her that he was not feeling well, he was bleeding through his urine and generally unwell. I told her I was concerned about his health and she said she would look into it and get back to me. I never heard anything and neither did my husband. It is very hard to tell you dates and times so I apologise. On a lot of occasions I would visit him and the officers would say "Ghomwari's not feeling well today, Ghomwari's sick, look after him". He always complained about his sickness. I also went and saw a few officers and asked if I could get my own doctor and pay for it and they told me no!! as they have their own doctors and they don't like other doctors coming in for security reasons …

They [the Department] knew Hassan had Hepatitis B as they told him in jail they read all his files … In jail he found out he had it and all his tests would be in his file. They knew all along but did nothing about it. Only because I made the complaint they did something about it. If I had never made the complaint he would not have gotton [sic] any medical attention they would have let him go and not give a damn, but as soon as I made the complaint they started moving … They knew all along as we went to court and at court and also in the papers were about my husband's disease … They just wanted him to leave the country and that's all they were worried about … My husband on many occasions asked to be seen by a doctor and was refused …

His Hepatitis B will always be there and if they did not put him in jail he would not have the disease. They have no idea of what he has been through or about how he is feeling. As they have ruined a human being's life for treating him the way they have.

Ms Kay Symons (not Simmons) is an employee of the Department. Her place of work is the VIDC, where, at the relevant time, she was the Immigration Liaison Officer. On 22 May 2001, the Complaints Handling Section forwarded Mrs Ghomwari's letter to Ms Symons. Ms Symons was asked to "comment on this allegation and provide any filenotes or other relevant documentation regarding any conversation you may have had with Mrs Ghomwari concerning her husband's welfare." The Complaints Handling Section did not receive a response from Ms Symons.

Mrs Ghomwari refers, in the above extract, to going "to court". This is a reference to proceedings commenced by her husband in the Federal Court of Australia seeking a review [18] of the Department's decision to transfer him to the MRRC, and also of successive decisions not to return him to the VIDC. Emmett J heard this application and, on 22 October 1999, ordered that it be dismissed [19]. An appeal against this decision was made to the Full Court of the Federal Court. On 2 June 2000, this appeal was dismissed. [20]

In her written submissions in response to my Preliminary Report, received on 17 July 2001, Mrs Ghomwari provided some additional evidence. She stated that:

[o]ne day he had tribunal on and our solicitor saw him and told him he looked ill. Hassan told him he hadn't been feeling well. He had yellow eyes, had blood in his urine and was just off colour. The solicitor faxed through papers to the jail [the MRRC] and asked if Hassan could have a blood test. The results were positive for Hepatitis B …

I told the immigration of Hassan's disease. I tried everything possible but the doors were closed to me. I rang the health Minister, I spoke to my doctor about Hassan. I rang everyone I could think of. I tried to get me doctor to go in but IDC told me that we were not allowed. I was told NO!! I tried to get everything for my husband but there was no help. I have explained to a lady at Villawood about Hassan and the lady said she would look into it and get back to me, but yet again, no returned answer. My husband complained on numerous occasions but nobody helped. This is something that should not have happened. He is stuck with disease for the rest of his life, he should have been looked after but he was not!!

(b) Written material provided by the Department

In a letter dated 6 October 2000, the Department gave a chronology of the treatment received by Mr Ghomwari after his return to the VIDC:

[o]n 20 June 2000 Mr Ghomwari complained of abdominal discomfort. He also complained of general malaise and shivering, although he was afebrile at this time. Mr Ghomwari was examined by Dr Amin, the ACM centre doctor who was unable to elicit any overt symptoms. Dr Amin suggested to Mr Ghomwari that his blood be tested for Hepatitis and liver function. Mr Ghomwari refused to have any blood tests. It was Dr Amin's opinion that active treatment was not required at that stage …

On 19 September 2000 Mr Ghomwari consented to have blood samples taken for screening. This confirmed that he had at some time been infected with Hepatitis B.

Mr Ghomwari has received medical attention whenever it has been requested, and on the occasion mentioned above, refused medical attention when it was offered. Mr Ghomwari had up until very recently refused to have blood drawn to check his claim that he is Hepatitis B positive. He has, however, displayed no obvious symptoms of illness since his return to Villawood from Silverwater MRRC and on the one occasion when he had complained of feeling ill, refused further investigation.

The Department advised that a detainee may engage an external medical specialist in relation to a health complaint. It stated that:

[i]t is a private matter between the detainee and the medical services provider whether further medical opinions are required and how such services are accessed. ACM has a policy [and this policy was attached] of advising all new detainees, as part of their initial Health Assessment, that they are entitled to access private medical treatment and the process for doing so. At no time has Mr Ghomwari made such a request.

Policy No. 3.3 in the ACM Operating Manual entitled "Obtaining Health Services Outside of the Centre" provides:

4.1 When medical, paramedical and/or psychiatric examination of detainees by private medical officers is requested:

4.1.1 The request must be made in writing to the Detention Services Manager Health care (DSMHC), through the Centre Manager.

4.1.2 The DSMHC must approve the request in writing.

4.1.3 The detainee must pay all costs in advance, including the cost of transportation and security.

4.2 ACM staff may provide a summary of relevant information from detainee's medical records to private medical officers. The detainee shall give written permission in advance for the release of this information.

4.3 Private medical officers will be expected to provide copies of all reports to ACM.

4.4 The ACM Medical Officer is not obliged to follow any recommendations or instructions by any private medical officer, hospital, or other health provider. Any such recommendation will be considered at the discretion of the medical officer.

In a letter dated 29 March 2001, the Department further advised:

Mr Ghomwari advised Villawood IDC medical personnel on 8 May 2000, that he suspected he had contracted Hepatitis B while accommodated at Silverwater MRRC…

It is not the normal practice for immigration detainees to undergo medical screening when being transferred from a State correctional facility back to an Immigration detention facility. However, where there is a reason to suspect that a detainee may have been exposed to a health risk while accommodated in a State correctional facility, a medical screen will be performed. As Mr Ghomwari complained of a possible Hepatitis B infection, he underwent a medical screen upon his arrival at Villawood IDC.

The Department also provided Mr Ghomwari's medical records to this inquiry from the date of his return to the VIDC on 8 May 2000 to the date of his voluntary departure on 21 October 2000.

There are four entries in these records relating to Mr Ghomwari's Hepatitis B as follows:

17.6.00 Complained of abdominal pain similar to the pain he experienced what [sic] he has had Hepatitis and shivering and feeling unwell as it was described by the detainee.

20.6.00 Given H/O past exposure to Hep B, IV substance abuse history? No abnormal symptoms at present. Needs no active Rx [treatment]. Suggested blood test for Hep B serology and LFT. Pt refused same. [Signed] Dr Amin

21.6.00 Was called by officer to see Mr Ghomwari. Refused to have medication, refused blood to be taken.

19.9.00 Blood taken for Hep B and C VRRC and HIV.

These medical records also contained a Pathology Report from the Macquarie Pathology Services for Mr Ghomwari. This Report was printed on 21 September 2000 and stated that it related to blood that was taken on 19 September 2000. The results of the tests undertaken in respect of that blood were detailed as follows:

Hepatitis B Surface Antigen Detected
Hepatitis B Surface Antibody < 10 (>10)
Hepatitis B Core Antibody Detected
Hepatitis B e Antigen Not detected
Hepatitis B Antibody Not detected

Suggests chronic Hepatitis B virus (HBV) carrier. If this is the initial diagnosis please send a further sample to confirm. If confirmed positive, suggest monitor HBsAg, HAeAg, LFT's and alpha-fetoprotein every 6 - 12 months. Furthermore, it would be worthwhile investigating sexual and household contacts for HBV infection.

Hepatitis C virus antibodies may not be detected up to 6 months after infection. Suggest a repeat sample after an appropriate interval if clinically indicated.

(c) Issues in dispute

An examination of the written material provided by the parties revealed that the following issues were in dispute:

(i) whether Mr Ghomwari experienced symptoms relating to Hepatitis B after his return to the VIDC;

(ii) whether Mr Ghomwari required medical treatment for Hepatitis B after his return to the VIDC. If so, what was the nature of the treatment that he should have received?;

(iii) whether Mrs Ghomwari made any attempt to obtain medical treatment for her husband and, in particular:

  • did Mrs Ghomwari make a complaint to Ms Kay Symons of the Department about the level of medical treatment her husband received at the VIDC?; and
  • did Mrs Ghomwari approach ACM officers and request that she be permitted to bring her own doctor to the VIDC to treat her husband, at her own expense.

(d) Evidence at the hearing on 15 December 2001

As I was unable to determine the above issues on the written material provided, I considered it necessary to hear oral evidence from relevant persons. On 15 December 2001, I convened a hearing where oral evidence was given by the following persons:

  • Mrs Ghomwari;
  • Dr Amin;
  • Ms Kay Symons; and
  • Mr Peter Mitchell.

I summoned both Ms Symons and Mr Mitchell to appear and answer questions at this hearing.

Mrs Kylie Ghomwari

At the hearing on 15 December 2001, Mrs Ghomwari indicated that her complaint was about the level and quality of medical treatment received by her husband after his return to the VIDC.

Mrs Ghomwari asserted that her husband was a chronic Hepatitis B carrier and that she was aware of this because her husband had had a blood test at the MRRC and had showed her the results. Mrs Ghomwari was of the belief that her husband received specialist treatment for his condition in the MRRC, although he did not require any medication, and thought that he should also have been seen in the VIDC by a specialist with expertise in treating Hepatitis B.

While at the VIDC, Mrs Ghomwari gave evidence that her husband had the following symptoms:

  • blood in his urine;
  • general feeling of being unwell;
  • vomiting; and
  • wanting to sleep all the time.

Mrs Ghomwari stated that her husband had these symptoms over the entire time he was in the VIDC and that his symptoms did not really change over time. She stated that sometimes her husband's symptoms would go away for a couple of days but then they "would come back furious". She asserted that this was because he was a chronic Hepatitis B sufferer. Mrs Ghomwari stated that when she would go to visit her husband she would often have to wake him up because he slept all day. She asserted that the Detention Officers at the VIDC also noticed that her husband was unwell and would regularly comment to her when she arrived at the IDC, words to the effect of: "Look after him, Ghomwari is sick today" and "Ghomwari is not feeling well."

Mrs Ghomwari gave evidence that she was aware that her husband had seen a doctor on a couple of occasions at the VIDC but:

A: [o]nce - he felt it coming on. Like, he could feel it. He was more tired, more angry, more everything, and so I told him to go and he asked - I don't know how the rules work at Villawood, but I know that he asked could he go and see the doctor and he went there. I don't know whether it was to the nurse or to the doctor or whoever it was, and they said "No, you can't have it," and he said, "But I need one today," and they said, "No, I'm sorry, you can't".

Q: Sorry, you need a doctor today?

A: Well, he needed to have it, so that he himself knew, because that's what they told him at Silverwater [the MRRC]. When you felt that you've got to have it, so then you could tell, so I don't know. A lot of times I'd say, "What have they given you?" Panadol or something, brush him aside, I don't know. [21]

In cross-examination the Department put her husband's refusal to have a blood test to Mrs Ghomwari and asked for an explanation. Mrs Ghomwari asserted that, as far as she was aware, her husband refused this test because:

You know, when you go and you're nice and you ask if you can have a blood test and they're refused, it's at that time that he needed it done. So then they come two days later, or I don't know when it was, and then he said, "No, I don't want one now," because when you need something - it's like you go to the doctor and say, "I want to see," and he goes, "No. I'm not going to see you". You don't want to go back. You know we are not talking about somebody that's outside. We are talking about somebody that's inside. So it's completely different… [22]

Mrs Ghomwari contended that she did two things to try and obtain medical treatment for her husband in the VIDC. First, she tried to get an outside doctor to visit her husband in the VIDC. She stated that she asked Detention Officers at the reception of the VIDC and those assisting with security if this was possible but they told her that it was not as, for security reasons, the only doctor allowed into the VIDC was the IDC doctor. Mrs Ghomwari stated that neither she nor her husband were aware of the ACM Policy No. 3.3 on external medical treatment. Mrs Ghomwari asserted that if she had known that she could make a request in writing for her own doctor to visit her husband she would have done so and would have paid for all associated expenses.

Second, Ms Ghomwari asserted that she had spoken to Ms Kay Symons. She stated that approximately a week or two after her husband returned to the IDC:

A: I went and spoke to Kay Symons … We sat down and I told her of Hassan's Hepatitis B. She told me she already knew about it, and I told her that I was worried for him because he was bleeding in his urine. He was feeling unwell, he was vomiting he wanted to sleep all the time. She said that she would get back to me. [23]

A: She said that she would fix it … and I never heard anything.

Q: Did you ever try to follow that up with her when you saw her on other occasions?

A: Yes. She was busy once. I think I said to her, "Can I talk to you?" She said "Look, I think" - I think she said that she was busy and she had to go somewhere or something. [24]

Under cross-examination by the Department, it was suggested to Mrs Ghomwari that she could have raised this matter again with Ms Symons if she had wanted to. Mrs Ghomwari responded that she did not feel that she should badger Ms Symons.

During her evidence, Mrs Ghomwari tendered a pamphlet produced by the Gastroenterological Society of Australia. This pamphlet became Exhibit A. It states that the following medical supervision and monitoring is required by Hepatitis B carriers:

People who are carriers of Hepatitis B, but are thought to have very little damage to their liver (ie. Are HBe antigen and HBV-DNA negative), have normal physical examination and normal ALT level, should still see their doctor annually for a check-up. There is a small chance of ongoing liver damage in these people, more so if the Hepatitis B infection occurred at birth.

People who are thought to have liver damage from Hepatitis B should see their doctor regularly. Often the doctor will recommend a physical examination and ALT level every 6 to 12 months. People who are Hepatitis B e antigen positive are at risk of continued liver damage and should definitely see their doctor at least annually.

People who already have cirrhosis of the liver will generally be kept under close supervision by their doctors. Sometimes regular ultrasound examinations and alpha fetoprotein levels are recommended. People with very advanced liver disease may be referred to a liver transplant unit for a discussion about their transplantation.

Dr Amin

During his evidence at the hearing Dr Amin had access to, and was asked questions about, Mr Ghomwari's medical records which were produced by the Department and reproduced at Part 3.4.1.2(b) of this Report. Under cross-examination on behalf of the Department, Dr Amin asserted that these records were accurate, with every consultation recorded in accordance with the normal practice.

Dr Amin gave evidence that on 20 June 2000 he had a consultation with Mr Ghomwari. He did not have Mr Ghomwari's file from the MRRC at the time of this consultation. Mr Ghomwari gave a history to him of exposure to Hepatitis B on presentation but did not have any "abnormal symptoms" such as, gastritis, diarrhea, abdominal discomfort, yellow eyes or nausea. When asked about the symptoms of Hepatitis B, Dr Amin agreed that some people with Hepatitis B have symptoms and some people do not, and that those symptoms may fluctuate over time. If a person is a chronic Hepatitis B carrier, Dr Amin asserted that that person will have the normal Hepatitis B symptoms "but it can have more intensity about it".

At the consultation on 20 June 2000, Dr Amin formed the opinion that Mr Ghomwari did not require any treatment but suggested a blood test. Dr Amin stated that:

A: I think when somebody presents with a suspicion of Hepatitis B, the best thing to do is to ascertain with a blood test as to whether there is a truth to it, in way that, if the illness is there or not; and if it is there, at what stage is it, the illness. So that you can make the decision based on that information as to which way you want to go. [25]

And later in his evidence:

A: … if somebody says, "I have had Hepatitis B, " or, "I had Hepatitis B," I would like to know at what stage is it. Even if somebody has done a blood test, say six months or four months or five months ahead of you, I would still would like to know for my own surety as to how far is it and what is happening. [26]

Mr Ghomwari refused this test. Dr Amin stated that at the time he suggested the blood test, he "would have" counselled Mr Ghomwari about the consequences of refusing to have the test and explored all his reasons for doing so. It was not his normal practice to refer patients who refused blood tests in such circumstances for counselling by a social worker or psychologist about the consequences of this refusal. Dr Amin asserted that, after Mr Ghomwari's refusal to submit to a blood test, it was the responsibility of the nursing staff to ensure that he was placed on the clinical list in a couple of weeks and offered another test.

In relation to treatment for Hepatitis B, Dr Amin gave the following evidence:

Q: What's the normal treatment for Hepatitis B?

A: If somebody has Hepatitis B, there is no aggressive treatment about it in the form of any antibodies which are known to mankind, as such, yet; but there is a conservative treatment in the way of bed rest, fluids maintenance and dietary restrictions, like engaging not in heavy meals and small frequent meals is the way to go , so that abdominal pain doesn't become a bit of a problem. Gastric symptoms, if there are any, they can be aided by symptomatic relief, and basically you monitor the blood to see whether - and also abstinence from offending behaviour. If there is intravenous drug abused, that should be avoided because that can further augment the illness. So that's the general way of handling Hepatitis B, and that's the standard by which the community operates. [27]

Dr Amin stated that the long term effects of Hepatitis B may be liver damage and at the worst end of the spectrum liver cancer and cirrhosis (scarring of the liver). For this reason, Dr Amin stated that, with Hepatitis B:

A: … the liver is the offending organ, and one needs to do a liver function test … You want to keep monitoring on that.

Q: Regular monitoring?

A: Frequent, like six months to 12-month monitoring as to what the liver is doing. If the person continues a good lifestyle, it can improve.

Q: Do you think that it's important for someone who is a chronic Hepatitis B carrier to seek some specialist medical treatment from a liver specialist?

A: Not specialist medical treatment initially until you do liver function test and see what's that like, and also you do some other tumour markers on a blood test. So monitoring is more important than seeing a specialist. [28]

Dr Amin also gave evidence that a Hepatitis B carrier is able to infect other persons and therefore certain precautions should be taken. Dr Amin advised that Hepatitis B carriers should not be in food handling areas, razor shaving and the sharing of toothbrushes is to be avoided and if a Hepatitis B carrier has a bleeding wound s/he should not allow anybody else to come into contact with it and should seek medical assistance to close the wound. In re-examination, Dr Amin advised that, in his opinion, the biggest public health risk in relation to the spread of Hepatitis B is from unchecked blood transfusions.

During his evidence, Dr Amin was also shown Mr Ghomwari's Reception Medical Screen form, which was filled out by a nurse on 8 May 2000, the day Mr Ghowmari returned to the VIDC. As Mr Ghomwari had advised the VIDC on this day that he had Hepatitis B, Dr Amin was of the view that Mr Ghomwari should have been seen by a doctor at the VIDC clinic within a short space of time. After consulting the medical records, he confirmed that it did not appear that this had occurred.

Dr Amin was questioned by Counsel Assisting the Commission about an entry in the medical records on 17 June 2000 (a few days before Dr Amin examined Mr Ghomwari). This entry records that on this day Mr Ghomwari "complained of abdominal pain similar to the pain he experienced what (sic) he had had Hepatitis and shivering and feeling unwell". Dr Amin responded to those questions as follows:

Q. On 17 June, when Mr Ghomrawi was complaining of abdominal pain, shivering and generally feeling unwell, do you know who he saw on that occasion? Was it a nurse, or a -it's the first record.

A. It must have been a nurse. It must be some nurse who has seen him.

Q. That would be the usual procedure, would it?

A. Yes.

Q. So even if it was on a Saturday, it would have been a nurse you think that he would have seen...

A. Nurse, yes. It's definitely not any doctor's signature there.

Q. That was on the 17th, which was a Saturday, and then you examined him on the 20th ---

A. The 20th.

Q. --- which was a Tuesday ---

A. Right.

Q. --- a few days afterwards.

A. Mm'hm.

Q. What was the reason for the delay? Do you know why he wasn't seen on the Saturday?

A. Well, Saturday, usually there is no doctor in the centre.

Q. At all.

A. No.

Q. What about in an emergency situation?

A. They can contact a doctor on the phone, but usually there is no doctor in the centre.

Q. So in a circumstance like this, where someone who has Hepatitis B is complaining of those symptoms, would you have considered that to be an urgent situation requiring medical attention on that day?

A. I think they can contact a doctor and get a symptomatic relief ordered for the patient, because if it is Hepatitis B consideration, then the blood tests can be initiated at that point in time for early information; and usually, if there is a serious enough medical emergency, they transfer the person to the hospital and nurses have the right to do so.

Q. So you're saying in this situation he should have probably seen a doctor to get some kind of symptomatic relief.

A. Not necessarily seen a doctor. He can get a symptomatic relief on a phone order from a doctor and then get some sort of consent to carry out a blood test so that by Monday, more information is available.

Q. But it doesn't appear from those records that that occurred, does it?

A. No.

Q. Given that it was the weekend when he made the complaint, can you think of a reason why someone wouldn't have seen him on the Monday when a doctor would have been available?

A. I have no idea why. Probably there was no doctor at that time on Monday.

Q. Is it the case that on some days at Villawood there is no doctor available?

A. It can happen, because some day - you know, if the doctor is one who has planned to come hasn't been able to come on that day, that is one possibility. The second possibility is that, because of the arrangement being flexible, perhaps the doctor can't make it on that day.

Q. Are there any doctors who work full time at the ---

A. No, there is no full-time doctor.

Q. So doctors come in on arrangements like your arrangements, contractual arrangements for a few hours.

A. Yes. It is a contractual flexible arrangement.

Q. Do you get called in when there is a situation when someone needs to see a doctor, or do you just turn up for set hours?

A. We turn up at our set clinical hours, with some flexibility about it because you could be caught up with something that's totally not related to Villawood or any detention services and that may distract us from that. Apart from that, they can contact a doctor on the phone if need be. [29]

During his evidence, Counsel Assisting the Commission referred Dr Amin to the Pathology Report for Mr Ghomwari printed on 21 September 2000. As noted above, this Report contained the results of blood tests conducted following the taking of blood on 19 September 2000 and recommended that a further sample of blood be taken to confirm the result. If Mr Ghomwari was a chronic Hepatitis B carrier, the Report recommended that HBsAg, HAeAg, LFT's and alpha-fetoprotein be monitored every 6-12 months. After checking the medical records, Dr Amin confirmed that a further sample was not taken from Mr Ghomwari or sent for analysis, that there was no further monitoring of Mr Ghomwari's situation and that Mr Ghomwari was not advised of these test results. In re-examination, he was asked:

Q: Regarding the Pathology Report, where it says "suggests chronic Hepatitis B", you said that you might have expected a further test. When might have that been appropriate? Would it be immediately afterwards?

A: When I get a result like this, I normally tend not to asked for the entire battery of tests to be done, but what I suggest a lab to proceed and do is liver function test and alpha-beta proteins, which is a tumour marker for future, or just to know the base line liver function, where they are at and where the alpha-beta protein is not detected. Those are the two that I would like to recommend if I see a report like this, and that's what I usually do as a standard practice when I come across a result like that.

Q: How long would it normally take to organise that? On seeing this sort of test result, would you try to arrange further tests immediately?

A: As soon as I see it, I will organise - I'll run a request straight away. [30]

Dr Amin gave evidence that, given the seriousness of the test results, Mr Ghomwari should have had his results explained to him and further monitoring of his situation should have occurred. Dr Amin also accepted that the public health implications should have been explored.

Ms Kay Symons

At the hearing, Ms Symons gave evidence that she had been working at the VIDC since 1993. At the relevant time in 2000, her role was as an Immigration Liaison Officer which involved being a conduit for information between detainees and the Department and assisting detainees with any problems they may encounter in the IDC. She stated that:

we also monitor the contract, ACM's performance under the contract, and we were required to report on them. The Department does a quarterly report … So that in my role, if I found that ACM hadn't followed through on an issue, I would report that to the Business Manager who did the assessments. [31]

Ms Symons gave evidence that she remembered Mr Ghomwari and that she was aware he was a Hepatitis B carrier and became aware of this fact prior to his return to the VIDC. Ms Symons asserted that she remembered having a conversation with Mrs Ghomwari about her husband. She thought that this conversation had occurred in early September 2000. She stated that Mrs Ghomwari had advised her in this conversation that her husband had Hepatitis B and that he had blood in his urine. As a result, Ms Symons spoke to the ACM's Health Services Co-ordinator (because ACM are responsible for "guarding and caring for detainees in detention centres") and explained that Mrs Ghomwari had told her that her husband had blood in his urine. Ms Symons asserted that she told this Co-ordinator that "I need him checked out".

Ms Symons stated that she then had a conversation with Mr Ghomwari in which she told him that she was aware of his problem and that he would be "checked out". Ms Symons asserted that she then told him: "I want you to ask to see me … if they don't do any checks on you and you have any more problems with that" . [32]

Mr Ghomwari agreed and Ms Symons thought that he seemed happy with her efforts. Ms Symons stated that he did not approach her at any later stage about this problem, although she thought that he seemed more comfortable talking to her.

Ms Symons did not get back to Mrs Ghomwari about her husband as she assumed that Mr Ghomwari would inform her of developments.

Ms Symons stated that in the week following these discussions she attended, as the Departmental representative, at an ACM morning management meeting in the VIDC. Ms Symons asserted that she raised the issue of Mr Ghomwari at this meeting and was told that he was having blood tests done. Ms Symons took no further action in relation to this issue as, in the usual course, ACM got back to her with the results of the tests. Her evidence on this point was as follows:

Q: Did you follow up on that again to find out what the results were of the tests and what treatment …?

A: Not at that time, no. Because what I was waiting on -in normal circumstances then, and I hadn't supposed that was any different, was that usually they came back to me with the results of the tests and whether or not they were referring to a medical specialist.

Q: So they didn't come back to you?

A: They didn't come back, no.

Q: Would that have indicated to you that maybe the tests weren't done?

A: No, because the tests - Lyn [the Health Services Co-ordinator] said she was doing the tests.

Q: But the fact that they hadn't got back to you …

A: Yes.

Q: … that wouldn't prompt you to then go back to the and say, "What's happening with this? I'm concerned about this man."?

A: Yes. I don't know. I guess in that way I had an expectation that they would get back to me on that issue.

Q: But they didn't.

A: They didn't. [33]

Although she later had conversations with Mrs Ghomwari, Ms Symons asserted that Mrs Ghomwari never raised this issue with her again.

Ms Symons denied that the issue of obtaining private medical treatment or assistance for her husband was ever raised with her. She was not aware of ACM Policy No. 3.3.

Mr Peter Mitchell

At the hearing, Mr Mitchell gave evidence that he had worked on and off at the VIDC for six years and that between November 1999 and August 2000 he was the Departmental Business Manager at the VIDC. Mr Bill Dospott was the Departmental Business Manager at the VIDC between August 2000 and 31 October 2000. Mr Mitchell was aware of Mr Ghomwari's presence in the IDC through his meeting with case managers, although he did not believe that he had ever met him.

Mr Mitchell gave evidence that medical services at the VIDC are provided by ACM who have a contract with the Department. As noted by Ms Symons, the Department monitors the performance under the contract of ACM against the Immigration Detention Standards. Performance is monitored by way of daily meetings with senior levels of ACM. The Department investigates all issues that are raised by detainees, case managers or compliance teams. Mr Mitchell confirmed that, in a situation where a health complaint had been raised with her, it was Ms Symons role to "pursue … if she received information, to check with ACM and to satisfy herself about whether appropriate action and been taken". [34]

In relation to the availability of medical services in the VIDC, Mr Mitchell gave the following evidence in response to questions by Counsel Assisting the Commission:

Q. Just in terms of medical treatment for detainees, do you know if there are any doctors permanently stationed at Villawood?

A. Permanently stationed?

Q. As in work there every day, full-time.

A. Yes, there are two.

Q. They're there Monday to Friday?

A. No, I think they work 20 hours each under contract, but I wouldn't say exactly what day each one of them comes in. I just don't know. But they're available, certainly, any time, but I'm just not sure what their roster requirement to appear is.

Q. So you're saying that, at any given time, between Monday to Friday, there is a doctor present at Villawood

A. Yes. Well, not for the 24 hours covering Monday to- Friday, but I think there's a doctor there every day for some part of the day, but I just couldn't tell you how many hours on Monday (indistinct) but I think they're allocated 20 hours under contract, each.

Q. So it's not the case that there's someone there, say, between 9.00 and 5.00.

A. I wouldn't think so. No, I think that depends on the numbers of patients to actually see them, too. On a Tuesday, there might only be enough of them to be there for two hours, for example.

Q. What about if there's an out-of-hours emergency situation?

A. They're available 24 hours.

Q. So there are people on call who can come there 24 hours, seven days a week.

A. Yes, that's right. That's true. [35]

Initially, in his evidence, Mr Mitchell advised that there was no specific policy on how to handle a situation where a detainee wanted to access private medical treatment but he would imagine that ACM would be able to facilitate that. He later stated that he could not say categorically whether ACM did or did not have a policy covering external medical treatment. Mr Mitchell was of the view that, from the Department's perspective, there was no problem with a detainee obtaining private medical treatment. He stated that he would be concerned and surprised if there was a flat refusal to permit a detainee to obtain private medical treatment as it wouldn't "sit with the broader approach that I would encourage." If there was such a refusal, Mr Mitchell did not consider this to be a problem with training of ACM staff, rather a lack of familiarity by those staff members with the ACM Operating Manual.

(e) Findings of Fact

After considering all of the evidence before this inquiry detailed above, I make the following findings of fact:

  • It is not disputed and I find that, at the time Mr Ghomwari was returned to the VIDC on 8 May 2000, he had Hepatitis B and was a chronic Hepatitis B carrier. It is also not disputed and I find that, from this time until his voluntary departure from Australia on 21 October 2000, Mr Ghomwari experienced symptoms which included all of those detailed by his wife in her evidence including blood in his urine, vomiting, lethargy and a general feeling of being unwell. I accept that these symptoms would, on occasions, abate but then come back with a greater intensity. I accept that ACM officers commented to Mrs Ghomwari about her husband's poor state of health.
  • I accept that there is no active treatment for chronic Hepatitis B carriers, although symptomatic relief is available. I also accept that although many carriers remain in good health, in the longer term there is an increased chance that chronic carriers will develop liver cancer and cirrhosis. I find that, because of the serious potential consequences of this disease, it is imperative that there is regular monitoring of chronic Hepatitis B carriers by medical health professionals. As the Department concedes in their submissions of 11 January 2002, "[b]lood tests are necessary in the first instance … to ascertain whether there is any liver damage" .[36] The need for such tests was confirmed by both the evidence of Dr Amin, who recommended that two tests be conducted - a liver function test and a test for alpha-beta proteins - and the Pathology Report which suggested the monitoring of HBsAg, HBeAg, LFT's and alpha-fetoproteins. Once these tests have been conducted, the extent of liver damage will determine the nature and frequency of the medical supervision and monitoring required by a Hepatitis B carrier (see Exhibit A, as detailed in Part 3.4.1.2(d) of this Report).
  • I find that Mr Ghomwari advised the VIDC during his Reception Medical Screen on 8 May 2000 that he had contracted "Hepatitis B while in prison" . [37] Despite this advice, I find that the VIDC took no action at that time to ascertain the extent of the medical attention required by him by undertaking the testing referred to above or by obtaining his medical file from the MRRC.
  • After consulting the medical records, which Dr Amin asserted were an accurate reflection of the medical attention received by Mr Ghomwari in the VIDC, I find that Mr Ghomwari received medical attention in relation to his Hepatitis B on four occasions after his return to the VIDC, namely, on 17, 20 and 21 June 2000 and 19 September 2000. On Saturday, 17 June 2000, Mr Ghomwari "complained of abdominal pain similar to the pain he experienced what [sic] he had Hepatitis and shivering and feeling unwell …". I accept Dr Amin's evidence that it is probable that Mr Ghomwari saw a nurse on this occasion, as there are no doctors in the VIDC on Saturdays, but that although he probably required it, he was not provided with symptomatic relief or any other kind of treatment. I find that this was the occasion referred to by Mrs Ghomwari in her oral evidence, when her husband requested medical assistance from the VIDC but was refused.
  • I find that Mr Ghomwari was not permitted to see a doctor until Tuesday, 20 June 2000. I find this was because, at the time, there were no full-time doctors in the VIDC and the attendance of medical practitioners at the centre was based on demand. I find that this situation continues to the present day. To the extent that Dr Amin's evidence conflicts with that of Mr Mitchell, who asserted that medical care by a doctor was available twenty four hours a day, seven days a week, I prefer that of Dr Amin. Dr Amin has worked at the VIDC for eighteen months and seemed more familiar with the arrangements at the centre for medical practitioners than Mr Mitchell.
  • I find that when Mr Ghomwari was examined by Dr Amin on 20 June 2000, he was not given any treatment, as he was not suffering any symptoms at that time. I accept that Mr Ghomwari was offered a blood test on this day but that he refused such a test. As Mr Ghomwari has not given evidence to this inquiry, it is not clear why Mr Ghomwari refused such a test. I note Mrs Ghomwari's evidence that she believed her husband had refused this test because he had requested a test on a prior occasion and had been refused.
  • I find that, despite the potential seriousness of this refusal to have a blood test, only one attempt was made by a medical health professional to offer Mr Ghomwari a blood test at a later time. This occurred on the following day, 21 June 2000. Otherwise, from this time onwards, no attempt was made by any medical health professional in the VIDC, whether it was the responsibility of Dr Amin or any other person, to monitor Mr Ghomwari's medical condition.
  • I accept that Mrs Ghomwari had a conversation with Ms Symons concerning her husband's health in early September 2000, and not a week or two after Mr Ghomwari was returned to the IDC as suggested by Mrs Ghomwari. Given that Mr Ghomwari was complaining to Ms Symons about her husband's medical condition and what she perceived to be a lack of medical attention in the IDC, I have formed the view that it is more likely that she made this complaint after he had spent a period of time in the IDC, rather than soon after his transfer there. This conclusion is supported by the letter sent by Mrs Ghomwari to the Commission which was received on 24 April 2001. This letter was written much closer in time to the events in question and, in this letter, Mrs Ghomwari refers to this conversation occurring "a few months before Hassan left".
  • I accept that as a result of this conversation, Ms Symons took the steps outlined by her in her evidence to bring Mr Ghomwari's medical condition to the notice of ACM. The medical records indicate that Mr Ghomwari had a blood test on 19 September 2000. Although Dr Amin gave evidence that he thought that this may have been a routine blood test taken for immigration purposes, I find that this blood test occurred as a result of Ms Symons efforts.
  • I find that the results of this blood test were set out in the Pathology Report printed on 21 September 2000. This Report confirmed that Mr Ghomwari was indeed a chronic Hepatitis B carrier and recommended that a further sample of blood be taken and, if the result was confirmed, that other testing take place.
  • I find that after the taking of Mr Ghomwari's blood, and despite the results of this Pathology Report, no further action was taken by anyone in the VIDC in relation to Mr Ghomwari's medical condition prior to his voluntary deportation. In particular, I find that the recommendations in the Pathology Report were not followed. No attempt was made at this stage to obtain Mr Ghomwari's file from the MRRC. Most importantly, no attempt was made to advise Mr Ghomwari of these results, despite the fact that he was seen by medical staff in the VIDC in relation to other matters on sixteen occasions after 21 September 2000.
  • I find that these failures on the part of the VIDC occurred despite the fact that Ms Symons had been specifically requested by Mrs Ghomwari to investigate her husband's medical condition with a view to providing him with the medical assistance he required. I find that after providing the catalyst for the taking of Mr Ghomwari's blood, Ms Symons did not follow this matter up with ACM despite it being her role, as Immigration Liaison Officer, to do so.
  • While it may not have been necessary in the circumstances for Mr Ghomwari to have seen a specialist about his illness, I find that, while at the VIDC, Mr Ghomwari did not have any option of doing so. I accept Mrs Ghomwari's evidence that if she had known that she could make a request in writing for her own doctor to visit her husband she would have done so, and that she was prepared to pay for any associated expenses. I accept the evidence of Mrs Ghomwari that she made enquiries of both Detention Officers at the reception area of the VIDC, and those performing security duties, about the possibility of bringing a private doctor into the VIDC to examine her husband. I also accept that Mrs Ghomwari was told by these Detention Officers that it was not possible for her to arrange for her own doctor to visit her husband. In my view, it is likely that these Officers were in fact unaware of ACM Policy No. 3.3. Evidence given at the oral hearing indicated that some of the highest ranking officers in the VIDC at the time, Ms Symons and the Departmental Business Manager, Mr Mitchell, were totally unaware of this Policy.

The fact that Mrs Ghomwari is unable to recall the names, if she ever knew them, of the Detention Officers she spoke to does not, in my view, diminish her evidence on this point. Nor does the evidence of Mrs Ghomwari become less credible because she did not make this request of Ms Symons or any other Departmental officer. I find that it was reasonable for her to assume that the Officers she spoke to were familiar with ACM Policy and Procedures.

(f) Was there a breach of article 10(1) of the ICCPR?

Article 10(1) requires that minimum standards of humane treatment be observed in the conditions of detention. The Standard Minimum Rules for the Treatment of Prisoners [38] (Standard Minimum Rules) and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment [39] (Body of Principles) are United Nations instruments which articulate minimum international standards of treatment for persons deprived of their liberty, including immigration detainees. Although the Standard Minimum Rules and Body of Principles are not binding on Australia [40] , they provide valuable guidance in interpreting and applying article 10 of the ICCPR [41]. In Mukong v Cameroon [42], the UNHRC stated that:

[c]ertain minimum standards regarding the conditions of detention must be observed regardless of a State party's level of development. These include, in accordance with Rules 10, 12, 17, 19 and 20 of the U.N. Standard Minimum Rules for the Treatment of Prisoners, minimum floor space and cubic content of air for each prisoner, adequate sanitary facilities, clothing which shall be in no manner degrading or humiliating, provision of a separate bed, and provision of food of nutritional value adequate for health and strength. It should be noted that these are minimum requirements which the Committee considers should always be observed, even if economic or budgetary considerations may make compliance with these obligations difficult.

The UNHRC has affirmed in numerous cases that the obligation imposed by article 10(1) of the ICCPR to treat individuals with respect for the inherent dignity of the human person encompasses the provision of adequate medical care during any period of detention [43]. The Standard Minimum Rules and the Body of Principles provide guidance as to the medical services that should be provided to all administrative detainees held in detention.

Rules 22, 24 and 25 of Part 1 [44] of the Standard Minimum Rules provides that:

Medical services
22. (1) At every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry. The medical services should be organized in close relationship to the general health administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.

(2) Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.

(3) The services of a qualified dental officer shall be available to every prisoner.

…
24. The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary, with a view particularly to the discovery of physical or mental illness and the taking of all necessary measures; the segregation of prisoners suspected of infectious or contagious conditions; the noting of physical or mental defects which might hamper rehabilitation, and the determination of the physical capacity of every prisoner for work.

25. (1) The medical officer shall have the care of the physical and mental health of the prisoners and should daily see all sick prisoners, all who complain of illness, and any prisoner to whom his attention is specially directed.

(2) The medical officer shall report to the director whenever he considers that a prisoner's physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment.

Rule 95 of the Standard Minimum Rules provides that persons arrested or imprisoned without charge shall be given the same protection as that given to arrested or remanded prisoners under Part II, section C. Part II, section C of the Standard Minimum Rules provides that:

91. An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.

The Body of Principles relevantly provide that:

Principle 24
A proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and treatment shall be provided whenever necessary. This care and treatment shall be provided free of charge. Principle 25
A detained or imprisoned person or his counsel shall, subject only to reasonable conditions to ensure security and good order in the place of detention or imprisonment, have the right to request or petition a judicial or other authority for a second medical examination or opinion.
Principle 26
The fact that a detained or imprisoned person underwent a medical examination, the name of the physician and the results of such an examination shall be duly recorded. Access to such records shall be ensured. Modalities therefore shall be in accordance with relevant rules of domestic law.

The minimum standards set by these international instruments in relation to the provision of medical services to administrative detainees held in detention can be summarised as follows:

  • a thorough medical examination of the detainee should be undertaken upon arrival in the institution, and thereafter as necessary, "with a view particularly to the discovery of physical … illness";
  • all necessary measures should be taken to combat and treat any illness detected by any such medical examination;
  • places of detention, such as the VIDC, should have medical staff available on a daily basis to see all persons who complain of illness; and
  • detainees, like Mr Ghomwari, are entitled to be examined and treated by his/her own doctor, provided s/he meets all associated expenses.

In its written submissions dated 11 January 2002, the Department submitted that the treatment provided to Mr Ghomwari within the VIDC was both adequate and appropriate having regard to the nature of Hepatitis B and Mr Ghomwari's refusal to submit to a blood test. It asserted that there was no violation of article 10(1) as:

[t]he available evidence indicates that there is no generally accepted treatment for Hepatitis B. For chronic Hepatitis B carriers, apart from dietary and lifestyle measures to improve the liver, all that can be done is to monitor them at intervals of either 6 to 12 months, in the case of those thought to have some liver damage, or 1 to 2 years in the case of those thought to have very little or no damage to their liver.

Meaningful monitoring of chronic Hepatitis B carriers can only begin once the person concerned has had an appropriate blood test. In Mr Ghomrawi's case, his refusal (on two occasions) to submit to a blood test delayed the monitoring process and when he did allow a blood sample to be taken, it was barely one month before his departure from Australia.

With respect to the alleged failure to provide Mr Ghomrawi with the opportunity to access external medical treatment, the Department believes that the evidence is at best equivocal. But in any event, the Department does not accept that such a failure could constitute a breach of Article 10(1) of the ICCPR unless it could clearly be established that the Department had failed to provide adequate medical treatment within the VIDC (necessitating recourse to external sources).

After considering all of the evidence and the submissions of the Department, I have formed the view that the VIDC failed to provide Mr Ghomwari with the level and quality of medical services required to meet minimum standards of detention in violation of article 10(1) of the ICCPR. Using the Standard Minimum Rules and Body of Principles as a guide, I find that this article has been breached because of the combined effect of:

· the failure to conduct a proper medical assessment of Mr Ghomwari's medical condition upon his return to the VIDC and after his consultation with Dr Amin on 20 June 2000;

On the day of his return to the VIDC, Mr Ghomwari advised that he was a Hepatitis B sufferer. At this time, I am of the view that the VIDC was obliged to conduct a thorough medical assessment, which should have included the taking of blood and the testing of that blood as detailed above in my findings of fact. Such an assessment should have occurred whether or not Mr Ghomwari advised of any symptoms on medical examination. In addition, his medical file should have been immediately obtained from the MRRC as this would have contained vital information on the history of his illness and other tests and treatment undertaken.

The fact that Mr Ghomwari refused a blood test on 20 June 2000 did not affect this obligation to fully assess Mr Ghomwari's medical condition. Indeed, one wonders whether Mr Ghomwari would have refused such a test had he been provided with appropriate medical treatment from the beginning of his time in detention at the VIDC.

Further, the obligation to conduct a thorough medical assessment of Mr Ghomwari, including the wide variety of liver function tests outlined above in my findings of fact, arose again upon Mr Ghomwari's consultation with Dr Amin on 20 June 2000. Following this consultation, where Dr Amin was advised by Mr Ghomwari that he had Hepatitis B, I find that the VIDC was obliged to take reasonable steps to monitor Mr Ghowmari's medical condition, to counsel him about the consequences of his failure to have a blood test and, given his failure to submit to one, to offer him the opportunity to have a blood test at regular intervals.

The jurisprudence of the UNHRC is consistent with my findings on this point. For example, in Simpson v Jamaica [45], the UNHRC held that there had been a violation of article 10(1) of the ICCPR where the author's medical condition remained undiagnosed and untreated and he was refused specialist treatment.

  • the failure to provide Mr Ghomwari with adequate medical treatment when he required it on 17 June 2000;

I have found that Mr Ghomwari sought medical assistance on 17 June 2000 because he was suffering the symptoms of his Hepatitis B including abdominal pain and shivering. I find it unacceptable that he was not offered any symptomatic relief for his conditions on this occasion, when this could have been easily obtained by a telephone order from a doctor. Instead, Mr Ghomwari had to wait four days to be seen a doctor, by which time his symptoms had abated.

It could not be said that, at this time or at any time during Mr Ghomwari's detention in the IDC, there was a medical officer at the VIDC who was able to see him and other detainees who complained of illness on a daily basis, as contemplated by Rule 25 of the Standard Minimum Rules. This is clear from Dr Amin's evidence and seems to be a situation which continues to the present day.

In my view, this case is broadly analogous to that considered by the UNHRC in Leehong v Jamaica [46]. In that case, the UNHRC found a breach of article 10(1) where the author, a convicted prisoner detained in a State prison, made requests for medical assistance which were denied. So too in Brown v Jamaica [47], the UNHRC found that the author's rights under article 10(1) had been violated. The author, also a convicted prisoner detained in a State prison, had suffered numerous asthma attacks but the prison warders were slow in responding to his requests for assistance, refused to take him to hospital and on some occasions denied him medication.

  • the failure to take reasonable steps to provide Mr Ghomwari with medical care once the VIDC became aware of the results of the Pathology Report dated 21 September 2000; and

The Department, in its submissions of 11 January 2002, seemed to suggest that the fact that these results were received "barely one month before his departure from Australia" was a justification for the failure by the VIDC to follow the Pathology Report's recommendations. If this is the suggestion, I do not accept it. First, there is no evidence that the VIDC was aware of Mr Ghomwari's departure date at the time these results were received. Second, and in any event, Mr Ghomwari was entitled to a certain standard of medical care on each day he was in the VIDC. At a minimum, he was entitled to be advised of the results of his blood test on 19 September 2000 and asked how he wished to proceed. If he had wanted the further test recommended to confirm the initial result, he should have been given it. As Mr Ghomwari had been in the VIDC for approximately three months at this point, and the VIDC had no idea of the testing and monitoring of his condition that had occurred in the MRRC, it was imperative that some sort of testing occur at this point with Mr Ghomwari's consent.

  • the failure to permit Mr Ghomwari to be treated by his own doctor while in the VIDC.

As ACM Policy No. 3.3 allowed for examination and treatment of detainees by external medical practitioners (in accordance with Rule 91 of the Standard Minimum Rules) and Mrs Ghomwari was prepared to arrange and pay for such a consultation for her husband, it is unacceptable that this did not occur. This failure is particularly serious when one considers that the medical care received by Mr Ghomwari in the VIDC was inadequate to meet minimum standards.

(g) General comments

The failure to deliver basic medical services to Mr Ghomwari during his time in immigration detention has highlighted some of the inadequacies of the system in the VIDC for providing such services. These deficiencies existed during the period of Mr Ghomwari's detention and, after hearing the evidence of Dr Amin and Mr Mitchell, it would appear that these deficiencies continue to the present day. In my view, there are two main inadequacies with this system. First, it is unacceptable that doctors are not stationed permanently at the VIDC and, at a minimum, available to attend to the health needs of detainees within normal office hours on Monday to Friday of each week. This failure on the part of the Commonwealth would appear to have the effect that a "Band-Aid" approach to medical care is adopted whereby the medical health professionals who attend at the IDC from time to time, such as doctors and nurses, deal only with the medical problem which immediately presents itself, and are unable to offer any ongoing structured medical assistance or continuity of care. It would also appear to have the effect that medical services become essentially "rationed", with only those persons presenting with obvious and urgent symptoms receiving those services in a timely fashion.

Second, in this case at least, there was a failure by the Department to monitor the performance of ACM under, and thereby ensure ACM's compliance with, the Detention Services Contract. Under this contract, ACM has responsibility for the "care, supervision, control and welfare of detainees" [48] and for providing "health services"[49] . In his evidence to this inquiry, Mr Mitchell advised that the Department measures the performance of ACM under this contract against the Immigration Detention Standards (IDS). The IDS are informed by "Australia's international obligations" and include "Dignity criterion" [50]. However, one wonders how effectively the Department is able to monitor and ensure that detainees in general receive the level of medical care they are entitled to, when a detainee, such as Mr Ghomwari, with a serious medical condition, fails to receive such care even after his medical condition and the inadequacies of the medical care provided to him are specifically brought to the attention of the Department. In my view, there is clearly a need within the Department to develop and implement more effective monitoring and accountability measures for any organisation or person contracted to provide medical services to an IDC.

The comments of the UNHRC in relation to the effect of the United Kingdom's policy of contracting out the detention of persons to privately-run institutions are apposite:

The Committee is concerned that the practice of the State party in contracting out to the private commercial sector core State activities which involve the use of force and the detention of persons weakens the protection of rights under the Covenant [ICCPR]. The Committee stresses that the State party remains responsible in all circumstances for adherence to all articles of the Covenant [ICCPR]…

The State party should ensure that all those who are involved in the detention of prisoners be made fully aware of the international obligations on the State party concerning the treatment of detainees, including the United Nations Standard Minimum Rules for the Treatment of Prisoners. [51]

3.4.2 Article 10(2)(a) of the ICCPR

Article 10(2)(a) of the ICCPR provides that:

Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons …

Article 10(2)(a) imposes two requirements on a State Party. The first is that, save in exceptional circumstances, an accused person shall be segregated from convicted persons. The second is that the accused person shall be subject to separate treatment appropriate to their status as unconvicted persons.

This article of the ICCPR is relevant to Mrs Ghomwari's criticism of her husband's detention in the MRRC, and, in particular, to her complaint that he received the same treatment as convicted prisoners in that prison.

3.4.2.1 Application of article 10(2)(a) to persons in administrative detention

In its written submissions of 15 March 2002, the Department raised, as a preliminary point, the applicability of article 10(2)(a) to administrative detainees. It submitted that:

there is no direct authority on whether Article 10(2)(a) applies to administrative detainees held in a state correctional facility. The distinction between convicted and unconvicted persons in Article 10 arises from the right of such persons to the enjoyment of the presumption of innocence in criminal proceedings (Article 14(2)). Consequently, the language of Article 10(2)(a) is directed to 'accused' persons.

Article 10(1) of the ICCPR refers to "all persons deprived of their liberty" and does not restrict the application of article 10 to people deprived of their liberty as a result of criminal charges [52]. By comparison, article 10(2)(a) specifically refers to "accused persons". As is correctly noted by the Department, there is no UNHRC jurisprudence on the meaning of "accused persons" in this context. However, in my view, it is plain that the intention of article 10(2)(a) was to draw a distinction between those persons who have been found guilty and convicted of a criminal offence and those who have not [53]. There is no reason why an administrative detainee should not be entitled to all of the benefits that flow, by virtue of the presumption of innocence, to persons in custody who have not been convicted of any criminal offence. Interpreting article 10(2)(a) consistently with this intention, I therefore find that administrative detainees are entitled, as persons who have not been convicted of any crime, to the protection afforded by article 10(2)(a) of the ICCPR.

I note that in its second periodic report to the UN Human Rights Committee in February 1987 [54], within the discussion of article 10 and under the heading "segregation", the Australian Government made submissions concerning the detention of illegal immigrants in police lock-ups, remand centres and prison facilities when immigration detention centres are not available [55]. It therefore seems that even at this early stage, the Australian government acknowledged that its obligations under article 10(2)(a) relate not only to accused people within the criminal justice system, but also to administrative detainees.

3.4.2.2 Separate treatment

(a) The reservation to article 10(2)(a) of the ICCPR

As set out above, article 10(2)(a) of the ICCPR obliges Australia to provide a person in detention with separate treatment appropriate to his or her status as an unconvicted person. At the time of ratification of the ICCPR in 1980, Australia entered a number of reservations and declarations. One such reservation was made in relation to article 10(2)(a). That reservation remains in force and states as follows: [56]

In relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively.

However, the right to separate treatment guaranteed by article 10(2)(a) of the ICCPR is not affected by this reservation as the reservation is limited in its terms to the principle of segregation. The effect of the reservation to article 10(2)(a) is provided for in article 22 of the Vienna Convention, which provides that a reservation:

…modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation (emphasis added).

As is the case in domestic law, reservations to the ICCPR (being derogations from fundamental human rights) are construed narrowly. [57]

(b) Did Mr Ghomwari receive separate treatment in the MRRC?

In her undated first letter, Mrs Ghomwari complained about the treatment of her husband in the MRRC. Her complaint centred around the fact that her husband had been treated in exactly the same manner as convicted prisoners during his time in this correctional facility. Mrs Ghomwari asserted that her husband had been required to wear the same clothes as convicted prisoners, namely white overalls. She also complained that her husband had had the same restrictions placed on his contact with his family as convicted prisoners and that, in particular, phone calls were limited to six minutes. In her oral evidence at the hearing on 15 December 2001, Mrs Ghomwari advised that her visits at the MRRC were limited to two hours.

In my Additional Preliminary Report, I was of the preliminary view that article 10(2)(a) had been breached on the basis that Mr Ghomwari did not receive any separate treatment in the MRRC.

In its written submissions of 15 March 2002 the Department disputed that there had been a breach of this article. It stated that:

[The Additional Preliminary Report] appear[s] to suggest that the Department is in breach of Article 10(2)(a) on the basis that Mr Ghomrawi's treatment did not comply with Part II Section C of the UN Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules).

The Department submits that although the Standard Minimum Rules may be taken into account in determining the standards for humane conditions of detention, the Standard Minimum Rules do not form a code, nor are States Parties required to adhere to the Standard Minimum Rules in order to comply with the ICCPR.

Australia is not bound under international law to comply with the Standard Minimum Rules, a fact that you acknowledge on page 2 of your additional preliminary report. As such, the Department submits that it is not reasonable to find a breach of Article 10(2)(a) on the basis of perceived non-compliance with a non-binding instrument.

Findings

You suggest that the Department appears to concede that Mr Ghomrawi was not subject to separate treatment while held in the MRRC.

While the Department concedes that Mr Ghomrawi was not always segregated from unconvicted and convicted inmates, it does not accept that this necessarily leads to a conclusion that Mr Ghomrawi was treated in exactly the same manner as convicted prisoners.

Mr Ghomrawi was detained as a "deportee" for the entire time he was detained in NSW Correctional facilities as an immigration detainee. Immigration detainees are held as "deportees" in NSW correctional facilities, as a sub-group of civil inmates. A civil inmate is defined as "an inmate who is being held in custody otherwise than because of a criminal offence".

Civil inmates have some additional privileges to those of a convicted inmate. Civil inmates cannot be forced to work except to keep any area they inhabit clean and tidy. Any work they perform is at their own request.

Civil inmates are permitted to receive daily visits, as opposed to twice weekly visits for unconvicted inmates and weekly visits for convicted inmates.

In relation to clothing, the Regulations in place in relation to NSW correctional facilities prior to September 2001 provided for unconvicted or civil inmates to wear their own clothing if permitted by the Governor of the correctional centre. However, Governors generally did not allow this to happen for security reasons. This provision was removed on the commencement of the Crimes (Administration of Sentences) Regulation 2001 on 1 September 2001. There is now no difference between the clothing issued to any category of inmate.

The Department submits that while Mr Ghomrawi was required to wear the same coloured overalls as unconvicted and convicted inmates, this requirement applied to all persons in the NSW correctional system. Further, while this did not comply with Rule 88 of the Standard Minimum Rules, the Department submits that this is hardly grounds for a finding that his detention breached Article 10(2)(a) of the ICCPR. As has been stated, Australia is not bound under international law to comply with the Standard Minimum Rules.

In relation to telephone calls, the Regulations provide for the Commissioner to determine the number of telephone calls for a class of inmates. Unsentenced inmates are permitted to make up to three local or fringe area telephone calls per week at departmental expense. Their legal telephone calls are also made at the expense of the NSW Department of Corrective Services. Sentenced inmates are permitted to make one local or fringe area call per week at departmental expense.

In general, telephone calls for humanitarian purposes such as illness, death in the family or birth of a child are provided without delay and in addition to the inmate's normal entitlements.

As a "civil inmate", Mr Ghomrawi clearly had access to more frequent visits and telephone calls than that which applied to unconvicted or convicted inmates. On this basis, the Department submits that Mr Ghomrawi was subject to separate treatment while detained in NSW correctional facilities and, as such, his detention was not in breach of Article 10(2)(a) of the ICCPR.

The Standard Minimum Rules are United Nations standards applicable to the treatment of all persons (whether administrative detainees, accused persons or sentenced prisoners) held in correctional facilities. The Standard Minimum Rules provide for different treatment of convicted prisoners and those who have not been convicted of any criminal offence. As set out in Part 3.4.2.3(f) of this Report, although these Rules are not binding on Australia [58] , they provide valuable guidance as to the nature of the separate treatment Australia is obliged to accord unconvicted persons under article 10(2)(a).

Rule 95 of the Standard Minimum Rules provides that persons arrested or imprisoned without charge shall be given the same protection as that given to arrested or remanded prisoners under Part II, section C. Part II, section C of the Standard Minimum Rules provides:

C. Prisoners under arrest or awaiting trial

84. (1) Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as "untried prisoners,' hereinafter in these rules.

(2) Unconvicted prisoners are presumed to be innocent and shall be treated as such.

(3) Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners shall benefit by a special regime which is described in the following rules in its essential requirements only.

85. (1) Untried prisoners shall be kept separate from convicted prisoners.

(2) Young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions.

86. Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.

87. Within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or through their family or friends. Otherwise, the administration shall provide their food.

88. (1) An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.

(2) If he wears prison dress, it shall be different from that supplied to convicted prisoners.

89. An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.

90. An untried prisoner shall be allowed to procure at his own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution.

91. An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.

92. An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.

93. For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.

The evidence of Mrs Ghomwari does not contradict the Department's submission that, as a "deportee", Mr Ghomwari received separate treatment in relation to telephone calls and visiting rights. However, Mrs Ghomwari contradicted the Department's assertion that daily visits were permitted in the MRRC.

Mrs Ghowmari gave the following evidence before the President on 15 December 2001:

Q: In the SMRRC, you were able to visit him [your husband], how often?

A: Three times a week. Villawood, I could visit him every day, but Silverwater, just three times a week.

I accept the Department's evidence as to the nature of the separate treatment Mr Ghomwari received in relation to telephone calls and visits, but prefer Mrs Ghomwari's evidence on the number of visiting days permitted per week.

I am pleased that "deportees" in the MRRC have more liberal contact with family and friends, by way of visits and telephone calls, than convicted prisoners. However, while liberal contact rights with family and friends are an important part of the separate treatment which is appropriate to the status of unconvicted persons like Mr Ghowmari, these rights alone do not equate with the regime of separate treatment contemplated by article 10(2)(a). A good example of the comprehensive regime of separate treatment envisaged by article 10(2)(a) is that detailed above in Part II, section C of the Standard Minimum Rules.

"Deportees" in the MRRC do not have many of the entitlements set out in Part II, section C of the Standard Minimum Rules. Most notably, deportees are treated in exactly the same manner as convicted prisoners in respect of their living quarters and in their prison dress. While the Department cites "security reasons" as providing a basis for denying deportees the right to wear their own clothes, the exact nature of these "reasons" is not detailed. Nor is an explanation provided as to why, in these circumstances, different prison dress as suggested by rule 88(2) of the Standard Minimum Rules is not permitted. In addition to the issues of living quarters and dress, deportees do not have access to their own doctor or dentist and are not permitted to have food procured at their own expense from the outside, either through the administration or through their family or friends.

As the treatment accorded to Mr Ghomwari in the MRRC was substantially the same as that received by convicted prisoners, I have formed the view that article 10(2)(a) of the ICCPR has been breached. I confirm that it is the failure of the Commonwealth to provide Mr Ghomwari with separate treatment appropriate to his status as an unconvicted person that has lead to this breach and not its failure to comply with many aspects of the Standard Minimum Rules.

4. Summary of findings

For the reasons set out above, I find that:

(a) the level and quality of the medical services provided by the Commonwealth to Mr Ghomwari after his return to the VIDC on 8 May 2000 did not meet minimum international standards and was inconsistent and contrary to his human rights recognised in article 10(1) of the ICCPR; and

(b) the failure by the Commonwealth to provide Mr Ghomwari with a regime of separate treatment while he was held in immigration detention in the MRRC was inconsistent with and contrary to his human rights recognised in article 10(2)(a) of the ICCPR.

5. Recommendations

5.1 Introduction

Section 29(2)(d) of the HREOC Act provides that I must include in any Report relating to the results of an inquiry particulars of any recommendations that I have made pursuant to s 29(2)(b) or (c) of the HREOC Act. Section 29(2)(b) of the HREOC Act provides that, where I conclude that an act or practice is inconsistent with or contrary to any human right, I may make recommendations for preventing a repetition of the act or a continuation of the practice. Section 29(2)(c) of the HREOC Act provides that those recommendations may be for either or both of the following:

(a) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice; and

(b) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice.

In the process of finalising this inquiry, it came to my attention that the parties had not made submissions concerning the recommendations I should make in the event that I found, as I have done, that the acts of the Commonwealth in question were contrary to or inconsistent with human rights and, to the extent that any such recommendations included a recommendation for the payment of compensation, how such compensation should be quantified.

On 4 June 2002, the Commission wrote to the parties seeking submissions on this issue, and enclosed a copy of the findings of human rights violations and my reasons for those findings. On 11 July 2002, written submissions were provided on behalf of Mrs Ghomwari.

The Department's submissions were originally due on 24 July 2002. On 30 July 2002, the Department asked for and was granted an extension until 9 August 2002. On 13 August 2002, the Department asked for and was granted a further extension until 30 August 2002. The submissions were not received on or by 30 August 2002. On 10 September 2002, the Department was advised by letter that the Commission intended to finalise this inquiry, regardless of whether those submissions were provided. On 18 September 2002, the Commission received some written submissions from the Department.

In my Notice provided to the parties on 23 September 2002 in accordance with s 29(2) of the HREOC Act, I made a number of recommendations. Those recommendations appear below.

5.2 Recommendations for the payment of compensation

5.2.1 Submissions concerning the payment of compensation

In the written submissions provided on behalf of Mrs Ghomwari, compensation was sought in the sum of $450,000 for the loss and damage suffered by her husband as follows:

(a) $150,000 in respect of the acts of the Commonwealth which were inconsistent with and contrary to article 10(1) of the ICCPR. It was asserted that Mr Ghomrawi suffered injury as a result of:

i. the contraction by Mr Ghomrawi of Hepatitis B, for which there is no known cure and which is a lifelong disabling disease characterized by frequent bouts of abdominal pain, fever and extreme lethargy;

ii. the failure to provide symptomatic relief for Mr Ghomrawi's Hepatitis B;

iii. the failure to provide counselling and/or further blood test opportunities which could have resulted in more pro-active treatment of Hepatitis B; and

iv. the effect of Hepatitis B on the employment prospects and the future earning capacity of Mr Ghomrawi.

This injury was particularised as an "untreated Major Depressive Episode" and "diminished life expectancy". A medical report by Dr Julian Parmegiani dated 18 August 1999 was provided to support these assertions.

(b) $300,000 in respect of the acts of the Commonwealth which were inconsistent with and contrary to article 10(2)(a) of the ICCPR. $150,000 for the denial of visiting rights on four days every week for the period that Mr Ghomwari was detained in the MRRC, and $150,000 for the breach of the requirement to provide a regime of separate treatment from convicted prisoners which resulted in the requirement to wear prison dress, the inability to have his own food brought in from the outside and the refusal to allow Mr Ghomrawi to access his own medical treatment providers.

In addition, Mrs Ghomwari sought compensation for herself and her son, Noah, in such amount as the "Commission or Minister deems just and equitable".

In the only part of the Department's written submissions relevant to the issue of the recommendations for the payment of compensation I should make (in light of my findings that acts of the Commonwealth were contrary to and inconsistent with human rights), the Department asserted that:

… [it] has taken into account the submission [on behalf of Mrs Ghomwari], dated 11 July 2002. I note that [this submission] calls for compensation on matters where the Commission has not found the Department to be in breach of relevant international obligations. The Department cannot be liable for matters where it has been accepted that no breach has occurred.

5.2.2 Relevant legal principles

So far as it is possible, the object of recommendations for the payment of compensation under the HREOC Act should be to place the injured party in the same position as if the wrong had not occurred . Compensation for human rights violations will usually be assessed in the same way as damages for torts, although this approach may not be appropriate in all cases [60]. A torts based approach involves comparing the position in which the complainant might have been expected to be if the human rights violation had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent. [61]

5.2.3 Quantum

5.2.3.1 Breach of article 10(1) of the ICCPR

The submissions made on behalf of Mrs Ghomwari assert that her husband suffered an untreated major depressive illness as a result of the Commonwealth's breach of this article and also a diminished life expectancy. The only evidence provided to support this submission was the medical report of Dr Parmegiani dated 18 August 1999. I note that Dr Parmegiani assessed Mr Ghomwari on 16 August 1999 for the purpose of preparing a report concerning his psychological state in the MRRC, and not for the purpose of this inquiry. As such, the report does not assist me in assessing the loss or damage suffered by Mr Ghomwari as a result of the breach by the Commonwealth of article 10(1) of the ICCPR after his return to the VIDC. Dr Parmegiani does not make any assessment of Mr Ghomwari's life expectancy.

However, some evidence was provided to this inquiry concerning the past loss and damage suffered by Mr Ghomwari as a result of the Commonwealth's breach of article 10(1). I am satisfied that the oral evidence given at the hearing on 15 December 2001, as set out in Part 3.4.1.2(d) of this Report, established that Mr Ghomwari experienced symptoms associated with his Hepatitis B, from the time of his return to the VIDC until the time of his departure from Australia, and that treatment was available for those symptoms. In her evidence at this hearing, Mrs Ghomwari asserted, and I have accepted, that, after his return to the VIDC, her husband suffered from blood in his urine, vomiting, lethargy and a general feeling of being unwell. These symptoms were present over the entire time he was in the VIDC and did not change over time. As Mrs Ghomwari stated in her evidence, her husband's symptoms would go away for a couple of days but then they "would come back furious". Although not a medical expert, the evidence given by Mrs Ghomwari on this issue was consistent with that given by Dr Amin. In his oral evidence at the hearing, Dr Amin affirmed that the symptoms described by Mrs Ghomwari were indeed consistent with those experienced by Hepatitis B carriers, and that those symptoms may fluctuate over time. He stated that a chronic Hepatitis B carrier will experience all of the normal symptoms of Hepatitis B but that those symptoms can have "more intensity" about them. Dr Amin asserted that while there was no antidote yet available for Hepatitis B, treatment was available for all of the symptoms.

In her initial letter of complaint, Mrs Ghomwari set out some of the effects on her family of the situation Mr Ghomwari found himself in. She stated that "we all suffered emotional stress" [62] and that "we have all gone through a lot of heartache and pain" and "suffering" [63]. In her second letter of complaint, Mrs Ghomwari articulated her husband's feelings about this lack of medical treatment: "All he wanted was to feel like a human being, just to be seen and looked after as he was sick" .

Mr Ghomwari's past pain and suffering and attendant loss of enjoyment (or amenities) of life would, in tort law, be characterised as heads of "non-economic loss". Although, of their nature, such heads have no obvious monetary equivalent and courts therefore strive to achieve fair rather than full or perfect compensation in respect of such losses [65]. Courts also tend to assess such damages as a global sum, rather than separately .[66]

On the material before me, I find that the acts or practices of the Commonwealth that were contrary to or inconsistent with Mr Ghomwari's human rights under article 10(1) of the ICCPR did cause past loss in the nature of non-economic loss to Mr Ghomwari. I accept that, from the time of his return to the VIDC on 8 May 2000 to the time of his voluntary departure on 21 October 2000, Mr Ghomwari experienced pain and suffering and a loss of enjoyment of life as a result of not receiving treatment, which was available, for his Hepatitis B symptoms. I also accept that Mr Ghomwari experienced distress and anxiety at the failure of the VIDC to properly assess and monitor his condition and, in these circumstances, its refusal to permit him to access his own doctor. I assess that loss in the amount of $15,000.

In the written submissions provided on behalf of Mrs Ghomwari, it was also suggested that I make a recommendation for compensation for:

  • the contraction by Mr Ghomwari of Hepatitis B while in the MRRC; and
  • the effect of the contraction of this illness on his employment prospects and future earning capacity.

However, I accept the submission of the Department that, as this Report does not make any findings in relation to responsibility for the contraction of Hepatitis B by Mr Ghomwari, I am unable to make any recommendations for compensation on that basis.

5.2.3.2 Breach of article 10(2)(a) of the ICCPR

In the submissions provided on behalf of Mrs Ghomwari, compensation was sought for her husband's pain and suffering and for his loss of enjoyment of life during the period of his detention in the MRRC as a result of the Commonwealth's failure to provide a regime of separate treatment for him in that prison. In particular, compensation was sought for:

  • the denial of visiting rights on four days every week. At Part 3.4.2.2(b) of this Report, I found that although the Department advised that civil inmates were permitted to have daily visits, Mr Ghomwari was in fact only permitted visitors on three days per week. I accept that Mrs Ghomwari visited her husband her husband every day at the VIDC and would have visited her husband on each day of the week at the MRRC, had she been permitted to do so;
  • the requirement that he wear prison dress;
  • the inability to have his own food brought from the outside; and
  • the denial of access to his own medical treatment providers.

A range of material has been provided to this inquiry concerning the impact on Mr Ghomwari's mental state of this failure by the Commonwealth to provide a regime of separate treatment for him in the MRRC. In her initial letters of complaint, Mrs Ghomwari made numerous references to the affect on her husband of being "treated like a criminal" .[67] In the submissions on compensation, I was referred to the "continuing indignity and humiliation" caused to Mr Ghomwari by this breach of article 10(2)(a). I was also referred to Dr Parmegiani's report concerning Mr Ghomwari's mental state after fourteen months of incarceration in the MRRC. In that report, Dr Parmegiani described Mr Ghomwari's mental state after three months in the MRRC:

Began to feel hopeless, depressed and pessimistic. His appetite deteriorated and he lost a significant amount of weight. He slept poorly, between 5 am and 12 midday. He had frequent nightmares… Mr Ghomwari lacked energy, motivation and concentration. He was tearful, crying everyday. He avoided social contact and did not play sport. He frequently lost his temper, with minimal provocation. … Mr Ghomwari longed to be with his wife and son ...

Dr Parmegiani' summary and conclusion was that:

Mr Hassan Ghomwari is a 26 year old man who has become severely depressed over the past 14 months. His symptoms fulfill criteria for the diagnosis of Major Depressive Illness.

I note that Dr Parmegiani's report was tendered in evidence in Ghomwari v Minister for Immigration and Multicultural Affairs [68]. After hearing cross-examination of Dr Parmegiani on this report and expert testimony from a Dr Gordon Davies in that case, Emmett J was not satisfied that Mr Ghomwari was suffering, at that time, from a Major Depressive Illness [69]. He did, however, acknowledge that Mr Ghomwari was "severely depressed by his circumstances". [70]

On the material before me, I find that the acts or practices of the Commonwealth that were contrary to or inconsistent with Mr Ghomwari's human rights under article 10(2)(a) of the ICCPR did cause past loss in the nature of non-economic loss. I accept that after a few months in the MRRC, Mr Ghomwari did become "severely depressed by his circumstances" as found by Emmett J. This depression was caused, in part, by the Department's failure to provide him with a separate regime of treatment appropriate to his status as an unconvicted person. This was acknowledged by Dr Parmegiani who stated in his report that:

[Mr Ghomwari] resented being treated like a criminal, and being detained with inmates whose moral values he did not share. He feared mixing with drug addicts, and contracting diseases. He missed his wife and son, longing to be reunited with them.

On this basis, I assess that loss in the amount of $7,500. In arriving at that figure, I have had regard to the fact that Mr Ghomwari's depression was also caused, in a large part, by his detention as an unlawful non-citizen and his detention in a prison and not an IDC. These factors have not been found to constitute a breach of his human rights and my recommendation for compensation has therefore been reduced by 80% to take account of the contribution made by these factors to Mr Ghomwari's mental state.

5.2.4 Recommendations concerning compensation for Mrs Ghomwari and Noah Ghomwari

In the written submissions provided on behalf of Mrs Ghomwari, compensation was sought for herself and her son, Noah, who was between a few months and two years old during the period of his father's detention in the MRRC. Section 29(2)(c) of the HREOC Act provides that I may make a recommendation for the payment of compensation "to, or in respect of, a person who has suffered loss or damage as a result of the act or practice". Therefore, if I find that Mrs Ghomwari and/or Noah suffered loss or damage as a result of the acts of the Commonwealth which breached of articles 10(1) or 10(2a) of the ICCPR, I may make a recommendation for the payment of compensation to her and/or her child.

In all of her letters of complaint, Mrs Ghomwari detailed the pain and suffering and loss of enjoyment of life experienced by her and her son as a result of her husband's detention in the MRRC. For example, in her initial letter of complaint, she explained that:

I don't know how many sleepless nights I have had crying myself to sleep but I have lost count. During the two years in maximum security it was very hard not knowing wether one morning someone is going to ring me and tell me something had happened to him. Not knowing whether his cell mate would be accused of murder, break and enter or what knowing the only reason for being there is that he does not have a visa. This disgusts me. Hassan had to wear white overalls. Noah it was like he knew because he was distint (sic). … I have gone through a lot of heartache and pain and crying and feeling like life is not worth it not worth living … [71]

In her second letter of complaint, Mrs Ghomwari noted:

Our son has suffered tremendesly (sic) as he is growing up and is learning new things everyday. He knows that his father is not with us because he always says, "Go to see Daddy". [72]

I accept that Mrs Ghomwari experienced pain and suffering and a loss of enjoyment of life as a result of the failure by the Commonwealth to provide her husband with a separate regime of treatment appropriate to his status as an unconvicted person. Mrs Ghomwari witnessed her husband being treated in the same manner, particularly in relation to prison dress, as convicted prisoners in the MRRC, including those convicted of serious offences. She was also denied visits to her husband on four days of each week during the 20 month period of his detention.

I also accept that Mrs Ghomwari experienced pain and suffering and a loss of enjoyment of life on account of the Commonwealth's failure to provide her husband with medical treatment for his Hepatitis B after his return to the VIDC. That was evident during Mrs Ghomwari's oral evidence to this inquiry and was, after all, her reason for bringing her complaint to the Commission. Mrs Ghomwari visited her husband each day in the VIDC and witnessed this pain and suffering. She was also told about his suffering from Detention Officers. In addition, I accept that Mrs Ghomwari experienced distress and anxiety at being unable to obtain medical treatment for her husband both within and outside of the IDC.

On this basis, I assess Mrs Ghomwari's loss in the amount of $4,000. In arriving at this figure, I have had regard to the fact that the pain and suffering and loss of enjoyment of life which Mrs Ghomwari experienced was also in large part due to her husband's detention as an unlawful non-citizen and his detention in a prison and not an IDC. These factors have not been found to constitute a breach of his human rights and my recommendation for compensation has therefore been reduced by 80% to take account of the contribution these factors made to Mrs Ghomwari's loss and damage.

I do not propose make any recommendations for compensation in respect of Noah. In my view, he was too young to have suffered any but nominal loss and damage as a result of the breach by the Commonwealth of his father's human rights.

5.3 Recommendations

I recommend that:

(a) The Commonwealth pay compensation in the amount of $22,500 for the loss and damage Mr Ghomwari suffered as a result of the human rights violations to which he was subjected. This compensation is to be paid to Mrs Ghomwari on her husband's behalf.

(b) The Commonwealth pay compensation in the amount of $4,000 for the loss and damage Mrs Ghomwari suffered as a result of the violations of her husband's human rights.

(c) The Commonwealth take immediate steps to comply with its obligations under article 10(1) of the ICCPR in respect of the medical services provided to persons in immigration detention in all IDCs in Australia. In particular, the Commonwealth:

(i) to the extent that this is not already the position, ensure that there are medical practitioners available on-site at each IDC in Australia to provide medical assistance to all persons detained in those IDCs who complain of illness between office hours on Monday to Friday of each week (the number of hours those practitioners need be present at an IDC on those days will be governed by the population of the particular IDC and the medical health needs of that population);

(ii) ensure that there are medical practitioners at each IDC in Australia available to attend at an IDC in a timely fashion to provide medical assistance to persons who complain of illness at any other time;

(iii) ensure that a thorough medical examination of all persons commencing a period of detention in an IDC is undertaken by a medical practitioner upon the arrival of those persons at the IDC;

(iv) ensure that there is one medical health professional within each IDC with responsibility for overseeing and co-ordinating the medical care received by persons who complain of illness in the IDC. It is the role of this person to ensure that each person who complains of illness has a structured medical treatment plan and is able to receive continuity of care;

(v) if a person is transferred from a prison to an IDC, or from one IDC to another, ensure that that person's medical file is obtained from the prison or other IDC in a timely fashion, or within 14 days, whichever is the latest; and

(vi) in training of Departmental and ACM officers, ensure that all officers are aware of the existence and operation of ACM Policy 3.3 "Obtaining Health Services Outside of the Centre".

(d) the Commonwealth take immediate steps to comply with its obligations under article 10(2)(a) of the ICCPR in respect of immigration detainees in correctional facilities in New South Wales. The Department should ensure that immigration detainees held in State prisons are subject to separate treatment appropriate to their status as unconvicted persons. At a minimum the detainee should be entitled, in accordance with Part II, Section C of the UN Standard Minimum Rules, to:

(i) sleep singly in separate sleeping quarters;

(ii) within the limits compatible with the good order of the State prison and if the detainee wishes, have his/her food procured at his/her own expense from the outside, either through the administration or through their family or friends;

(iii) wear his/her own clothing if it is clean and suitable;

(iv) if the detainee wears prison dress, it shall be different from that supplied to convicted prisoners;

(v) work, but shall not be required to work. If the detainee chooses to work, s/he shall be paid for it;

(vi) procure at his/her own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution;

(vii) be visited and treated by his/her own doctor or dentist if there is reasonable ground for his application and s/he is able to pay any expenses incurred;

(viii) all reasonable facilities for communicating with his/her family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution; and

(ix) receive visits from his/her legal adviser with a view to his/her defence and to prepare and hand to him/her confidential instructions. For these purposes, s/he shall if s/he so desires be supplied with writing material. Interviews between the prisoner and his/her legal adviser may be within sight but not within the hearing of a police or institution official.

Mrs Ghomwari also sought a recommendation to the effect that the Commonwealth waive or extinguish any debts or charges owed by Mr Ghomwari for the costs of his detention. While such recommendations may fall within the category of "other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice", I do not consider that it is appropriate to make recommendations of that nature in this case.

6. Actions taken by the Commonwealth as a result of the findings and recommendations

Under section 29(2)(e) of the HREOC Act the Commission is required to state in its report to the Attorney-General whether, to the knowledge of the Commission, the Commonwealth has taken or is taking any action as a result of its findings and recommendations.

On 23 September 2002, the Commission wrote to the Commonwealth to seek its advice as to what action it had taken or proposed to take as a result of the findings and recommendations. In a letter to the Commission dated 8 October 2002, Mr E V Killesteyn, on behalf of the Commonwealth, provided the Commonwealth's comments in relation to those findings and recommendations. I have extracted those parts of Mr Killesteyn's letter that state what action the Commonwealth has taken, or proposes to take:

Recommendation C - The Commonwealth take immediate steps to comply with its obligations under article 10(1) of the ICCPR in respect of the medical services provided to persons in immigration detention in all lDCs in Australia.

Article 10(1) of the ICCPR provides that 'All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person'.

The Department submits that it already complies with its obligations under Article 10(1) of the ICCPR in respect of the medical services provided to persons in detention. All immigration detention facilities have a medical centre, providing 24 hours access, seven days a week, to triage, nursing and first aid. Detainees who cannot be treated within the detention facility are referred off-site to specialists, hospitals or other institutions for ongoing care. There are doctors at each facility. The numbers of doctor and their hours of attendance fluctuate depending on detainees numbers at each centre. Currently at Villawood IDC there are 3 general practitioners attending the centre for 76 hours per week in total. Outside these times a general practitioner is on call. There are also 2 nurses in attendance, 7 days a week for 8 hours per day.

The level of primary health care provided to immigration detainees is broadly equivalent to the standard available to the Australian community, while also taking into account the special needs of the detainee population. The delivery of health services by the Detention Services Provider is guided by its operational guidelines, consistent with Immigration Detention Standards.

Each detainee who enters a detention facility undergoes an initial health assessment, including triage as necessary. Interpreters are used as required. The health assessment consists of a full set of observations: pulse, blood pressure, height and weight and an interview with a doctor or nurse to obtain a full medical history. The history includes any past health problems, treatment, surgery, hospitalisation, and mental health issues as well as any current problems. This early assessment and detection of medical conditions enable health services staff to ensure conditions are treated before they develop further.

For unauthorised arrivals, additional care is taken in the health screening process. On arrival at a facility, the Detention Services Provider medical centre staff undertake an initial health assessment of all unauthorised arrivals. Requirements for health assessments are set out in an interim protocol for public health management in immigration detention. The interim protocol was developed in close consultation between the Department, the Commonwealth Department of Health and Aged Care, and relevant State health representatives and peak bodies. The interim protocol is endorsed by the Chief Commonwealth Medical Officer. Within the first two weeks of unauthorised arrivals entering detention, a further medical assessment for visa assessment processes is conducted by Health Services Australia (HSA) which comprises a physical examination and a questionnaire. This assessment also takes into consideration any relevant tests already undertaken by the Detention Services Provider.

In relation to the transfer of detainees medical files from a correctional to a detention facility, the privacy requirement in some States mean that the full medical file may only be transferred if the detainee provides informed consent. In the absence of such consent however recent practice for example in New South Wales has been for a medical summary or alert to be provided to the detention facility usually at the time of transfer. The timely transfer of medical files or summaries is being addressed in the negotiations on Memoranda of Understanding with state correctional facilities and in the review of Migration Series Instruction 244 Immigration Detainees transferred to and held in Correctional Facilities.

In relation to the transfer of medical files with detainees between detention centres the Immigration Detention Standards (IDS) have been revised and enhanced in the context of the tender for the new contract for the provision of detention services. Under the revised IDS there is a more detailed requirement on the Service Provider to ensure that when a detainee is transferred between centres the detainees medical records are transferred with the detainee.

A comprehensive training program for Departmental and Detention Services Provider ensures that officers are made aware that detainees can access health services outside the detention facility as detailed in the Detention Services Provider Health Policy & Procedures Manual.

As the Commonwealth does not accept the findings made in my Notice provided to the parties on 23 September 2002, Mr Killesteyn did not state what action the Commonwealth has taken, or proposes to take, in relation to any of the other recommendations.

APPENDIX A

Functions of the Human Rights and Equal Opportunity Commission in relation to human rights

The Commission has specific legislative functions and responsibilities for the protection and promotion of human rights under the HREOC Act. Part II Divisions 2 and 3 of the HREOC Act confer functions on the Commission in relation to human rights. In particular, s.11(1)(f) of the HREOC Act empowers the Commission to inquire into acts or practices of the Commonwealth that may be inconsistent with or contrary to the rights set out in the human rights instruments scheduled to or declared under the HREOC Act.

Section 11(1)(f) of the HREOC Act states:

(1) The functions of the Commission are:

(f) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:

(i) where the Commission considers it appropriate to do so to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and

(ii) where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement to report to the Minister in relation to the inquiry.

Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth.

The Commission performs the functions referred to in s.11(1)(f) of the HREOC Act upon the Attorney-General's request, when a complaint is made in writing or when the Commission regards it desirable to do so (s.20(1) of the HREOC Act).

In addition, the Commission is obliged to perform all of its functions in accordance with the principles set out in s.l0A of the HREOC Act, namely with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights.

The Commission attempts to resolve complaints under the provisions of the HREOC Act through the process of conciliation. Where conciliation is not successful or not appropriate and the Commission is of the opinion that an act or practice constitutes a breach of human rights, the Commission must give the respondent to the complaint an opportunity to make written and/or oral submissions in relation to the complaint (s.27 of the HREOC Act). If, after the inquiry, the Commission finds a breach of human rights, it must serve a notice on the person doing the act or engaging in the practice setting out the findings and the reasons for those findings (s.29(2)(a) of the HREOC Act). The Commission may make recommendations for preventing a repetition of the act or a continuation of the practice, the payment of compensation or any other action to remedy or reduce the loss or damage suffered as a result of the breach of a person's human rights (s. 29(2)(b) and (c) of the HREOC Act).

If the Commission finds a breach of human rights and it furnishes a report on the matter to the Attorney-General, the Commission is to include in the report particulars of any recommendations made in the notice (s.29(2)(d) of the HREOC Act) and details of whether, to the knowledge of the Commission, that person has or is taking any actions as a result of the findings and recommendations of the Commission (s.29(2)(d) and (e) of the HREOC Act). The Attorney-General must table the report in both Houses of Federal Parliament within 15 sitting days in accordance with s.46 of the HREOC Act.

It should be noted that the Commission has a discretion to cease inquiry into an act or practice in certain circumstances (s.20(2) of the HREOC Act), including where the subject matter of the complaint has already been adequately dealt with by the Commission (s.20(2)(c)(v) of the HREOC Act).


1. The Commission's functions in relation to the investigation and conciliation of complaints of human rights breaches against the Commonwealth of Australia and its functions in relation to reporting on complaints with substance that have not been resolved through the process of conciliation are outlined in Appendix A.

2. After an assessment by the classification committee determined that Mr Ghomwari was suitable to be housed at a lower classified security facility, Mr Ghomwari was transferred on 14 September 1999 to the Parramatta Correctional Centre (PCC). Mr Ghomwari remained at the PCC until 17 September 1999 when he was returned to the MRRC following his involvement in the assault of an inmate at the PCC. He was again transferred to the PCC on 21 October 1999 and remained there until 12 November 1999, when he was returned to the MRRC following the lighting of a fire in his cell.

3. Secretary, Department of Defence v HREOC, Burgess & Ors (1997) 78 FCR 208.

4. Ibid

5. Section 14 of the Migration Act defines an "unlawful non-citizen" as "a non-citizen in the migration zone who is not a lawful non-citizen." A "lawful non-citizen" is a non-citizen who is in the migration zone and holds a valid visa: section 13 of the Migration Act.

6. "Immigration detention" is defined in section 5 of the Migration Act.

7. Sections 189 and 196 of the Migration Act.

8. Human Rights and Equal Opportunity Commission, Those who've come across the seas: Detention of unauthorised arrivals, JS McMillan Pty Ltd, Sydney, 1998.

9. Ibid, at Part 2.

10. Ibid, at pages 56 - 57.

11. See http://www.immi.gov.au/illegals/acs.htm.

12. Sections 5 and 189 of the Migration Act.

13. Article 2(1) of the ICCPR.

14. United Nations Human Rights Committee, General Comment No. 8, (1982), UN/HRI/GEN/Rev.4, at paragraph 2.

15. HRC Report No 10, Report of an Inquiry into a Complaint of Acts or Practices Inconsistent With or Contrary to Human Rights in an Immigration Detention Centre (available at www.humanrights.gov.au/human_rights/index.html)

16. Nowak M, UN Covenant on Civil and Political Rights CCPR Commentary, MP Engel, Germany, 1993, at page 186.

17. Ibid, at page 188.

18. This review was sought under section 39B of the Judiciary Act 1903 (Cth).

19. Ghomwari v Minister for Immigration and Multicultural Affairs [1999] FCA 1454 (22 October 1999).

20. Ghomwari v Minister for Immigration and Multicultural Affairs [2000] FCA 724.

21. Transcript of hearing before President Tay on 15 December 2001, at pages 7.46 - 8.7.

22. Ibid, at page 11.15.

23. Ibid, at page 2.35.

24. Ibid, at page 9.20.

25. Ibid, at page 20.9.

26. Ibid, at page 22.2.

27. Ibid, at pages 15.48 - 16.7.

28. Ibid, at page 22.29.

29. Ibid, at pages 17.33 - 19.11.

30. Ibid, at pages 28.33 - 29.5.

31. Ibid, at page 34.6.

32. Ibid, at page 32.32.

33. Ibid, at page 34.27.

34. Ibid, at page 43.19.

35. Ibid, at page 41.24.

36. Letter to the Commission from Christine Sykes, Acting First Assistant Secretary of the Unauthorised Arrivals and Detention Division of the Department, dated 11 January 2002, at page 2.

37. Villawood Immigration Detention Centre, Reception Medical Screen, 8 May 2000.

38. The Standard Minimum Rules were approved by the UN Economic and Social Council in 1957. They were subsequently adopted by the UN General Assembly in resolutions 2858 of 1971 and 3144 of 1983: UN Doc.A/COMF/611, Annex 1.

39. The Body of Principles were adopted by the UN General Assembly in 1988: GA Res 43/173. Annex: UN Doc/A/43/49 (1988).

40. Collins v State of South Australia [1999] SASC 257 (25 June 1999).

41. United Nations Human Rights Committee, General Comment 21 (1992), UN/HRI/GEN/Rev.4, paragraph 5; Report of the 3rd Committee of the General Assembly (1958), A/4045; Potter v New Zealand, Communication No. 632/1995, CCPR/C/60/D/632/1995; Mukong v Cameroon, Communication No. 458/1991, CCPR/C/51/D/458/91. See also, for example, the Concluding Comments on the United States of America (1995) UN Doc. CCPR/C/79/Add. 50, at paragraph 34.

42. Mukong v Cameroon, above n 41, at paragraph 9.3.

43. Luyeye Magana ex-Philibert, Communication No. 90/1981, CCPR/C/19/D/90/1981; Kelly v Jamaica, Communication No. 253/1987, CCPR/C/41/D/253/1987; Leehong v Jamaica, Communication No. 613/1995, CCPR/C/66/D/613/1995; Smith and Stewart v Jamaica, Communication No. 688/1995, CCPR/C/65/D/668/1995; Brown v Jamaica, Communication No. 775/1997, CCPR/C/65/D/775/1997; Simpson v Jamaica, Communication No. 695/1996, CCPR/C/73/D/695/1996.

44. Part 1 covers the general management of institutions, and is applicable to all categories of prisoner, criminal or civil, untried or convicted: Rule 4 of the Standard Minimum Rules.

45. Simpson, above n 43.

46. Leehong, above n 43.

47. Brown, above n 43.

48. Paragraph 3.2.1 of the Detention Services Contract dated 27 February 1998.

49. Paragraph 3.1.1 of the Detention Services Contract dated 27 February 1998.

50. Immigration Detention Standards, Principles Underlying Care and Security, at http://www.immi.gov.au/illegals/det_standards.htm.

51. Quoted in Joseph, S and Others, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, Oxford University Press, London, 2000 at page 185.

52. Nowak above n 16, at page 190.

53. See also the comment by Nowak (above n 16, at page 190) that, in his view, it is possible to apply the protective provision of article 10(2) to persons in custody, not just to accused persons in pre-trial detention.

54. For the second periodic report submitted by the Government of Australia see UN document CCPR/C/42/Add.2. For its consideration by the Committee see CCPR/C/SR.806-809 and Official Records of the General Assembly, Forty-third Session, Supplement No.40 (A/43/40), paragraphs 413-460.

55. Ibid, at para 297.

56. Nowak, above n 16, at pages 748 and 749.

57. Maleki v Italy, Communication No. 699/1996, CCPR/C/66/D/699/1996.

58. See above n 41.

59. Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, per Lockhart J at 239; Commonwealth of Australia v Human Rights and Equal Opportunity Commission [2000] FCA 1150 (17 August 2000), per Wilcox J at [55].

60. Sheiban, above n 59, per Lockhart J at 239.

61. Ibid.

62. Undated initial letter of complaint, received by the Commission on 24 July 2000.

63. Ibid.

64. Undated letter of complaint, received by the Commission on 24 April 2001.

65. Sharman v Evans (1977) 138 CLR 563 at 589.

66. Ibid, at 584-5.

67. Undated initial letter of complaint, received by the Commission on 24 July 2000.

68. Ghomwari, above n 19.

69. Ibid, at [88].

70. Ibid, at [89].

71. Undated initial letter of complaint, received by the Commission on 24 July 2000.

72. Ibid.

73. Louis and Ors v The Commonwealth and Qantas Airways [1987]

 

Last updated 12 December 2002.