A recent Australian Human Rights Commission (‘the Commission’) report highlights ongoing concerns about the use of hotels as Alternative Places of Detention (‘APODs’) within Australia’s immigration detention system.
The Public Interest Advocacy Centre (‘PIAC’) welcomes the report, which aligns with recommendations we have made since launching our Asylum Seeker Health Rights Project in 2016.
The Commission’s report makes several recommendations to the Department of Home Affairs (‘Department’) that PIAC has long argued for, including: that APODs should only be used in exceptional circumstances; that there should be greater checks against the misuse of mechanical restraints; and that conditions for detainees transferred to hotel APODs for medical treatment be improved.
The report is informed by inspections, interviews and consultations carried out in mid-2022 to assess detention conditions and ensure Australia’s immigration detention system complies with international human rights law obligations.
In its response to the Commission, the Department agreed with only two of the 24 recommendations, disagreed with five, and noted the remaining 17.
Serious negative health impacts from APOD detention
The Commission’s report found serious negative health impacts (both physical and mental) for people detained in hotel APODs and emphasised the outcomes are worse the longer a person is detained.
People in hotel APODs have limited freedom of movement, insufficient access to fresh air and outdoor spaces, restricted ability to exercise, lack of privacy and experience a strong sense of social isolation and loneliness.
Community service organisations inspecting hotel APODs on behalf of the Commission reported that people detained for long periods showed ‘complex and concerning medical issues’ including significant deteriorations in mental health.
The Commission’s first recommendation urges that hotels are only used as APODs in exceptional circumstances and for the shortest possible time. This aligns with serious concerns raised by PIAC and a coalition of human rights advocacy organisations in a letter to the UN Subcommittee on the Prevention of Torture sent in late 2022.
In its response to the Commission, the Department merely ‘noted’ this recommendation.
Misuse of mechanical restraints
The Commission’s report also raises concerns about the use of mechanical restraints (such as handcuffs) when people are transferred between immigration detention facilities (including hotel APODs) or taken to external medical appointments.
These concerns echo the serious concerns raised by PIAC over several years, including in the Federal Court, where we have represented Yasir* to bring a landmark test case against the Commonwealth Government.
The Commission’s report notes that instructions on use of force in Australian immigration detention say restraints should only be used as a measure of last resort, and for the shortest amount of time that is reasonably necessary. And that use of restraints should be subject to approval and individualised risk assessment.
However, the Commission found the current risk analysis does not consider the health impacts for detainees who have been victims of torture and are severely triggered by the use of restraints. Some affected detainees refuse to attend medical appointments because of a fear of being handcuffed.
As our client Yasir explained, ‘restraints bring back brutal, retraumatising memories from my past which I already live with every day. I cannot attend medical appointments handcuffed because of the further damage it does to me.’
Recommendation 11 of the Commission’s report urges that the impact of refusal of treatment by detainees because of the requirement to be handcuffed be considered when preparing a risk analysis or seeking approval for the use of restraints.
The Department disagreed with this recommendation.
Hotel APODs in the Medevac program
The Commission’s report also raises concerns about the use of hotel APODs for people transferred to Australia from offshore immigration detention centres for assessment and treatment of known medical conditions.
The Commission noted people confined to hotel APODs ‘reported complex, and often worsening, physical and mental health issues and described significant delays in receiving treatment’.
PIAC drew attention to these types of experiences in our 2021 report. We noted delayed treatment and long-term confinement to a hotel room exacerbated existing medical conditions and caused immense harm to the mental health of detainees.
We support the Commission’s recommendations to ensure immediate access to treatment for people who remain languishing in APOD detention, including access to the private healthcare system where the public system cannot provide appropriate, timely care.
In its response, the Department merely noted these recommendations.
Legal, but inhumane
Since the release of the AHRC report, the Federal Court of Australia has found that the use of hotels as APODs for extended periods of time is legal but raises serious concerns about the humanity of the practice, as reported in The Guardian.
In a federal judgment, Justice Murphy found that the Commonwealth Government did have the power to detain people in hotels for extended periods of time but wondered at ‘the lack of thought, indeed lack of care and humanity, in detaining a person with serious psychiatric and psychological problems in the Hotels for 14-months, primarily in a hotel room with a window that would only open 10cm, and for most of the time without access to an outdoor area to breathe fresh air or feel the sun on his face.’
’As a matter of ordinary human decency the applicant should not have been detained for such a period in those conditions,’ Justice Murphy said.
It is not yet clear whether the decision will be appealed.
*Name has been changed to protect privacy.