Mental Health, Human Rights and Australia’s Immigration Detention Policy
Photo source: http://www.sbs.com.au/news/article/2015/04/07/transfield-immigration-staff-can-be-instantly-dismissed-affiliating-asylum
Mental health has increasingly been recognised as a human rights issue, in regards of which Australia has obligations at international law. After briefly outlining the international law framework pertaining to mental health, this article will point out how Australia’s immigration detention policy violates our international obligations in two key ways. Firstly, it has been well established that prolonged detention leads to a deterioration of mental health. Secondly, those exhibiting symptoms of mental health illness in immigration detention do not have access to adequate health care.
Australia’s International Obligations with regards to Mental Health
Australia has signed and ratified several key international human rights treaties, which acknowledge the right of every person to mental health care.
Treaties are a key source of international law. In the Vienna Convention on the Law of Treaties, a treaty is defined as ‘an international agreement concluded between States in written form and governed by international law,’ which can take various forms.
Constitutionally, the executive branch of government has the power to enter into treaties by signature. While signature does not of itself mean Australia is bound by the treaty, it imposes an obligation to refrain from acts that would ‘defeat the object and the purpose of the treaty.’ On the other hand, ratification is an ‘international act whereby a state establishes its consent to be bound by a treaty.’
However, ratification does not give a treaty legal effect domestically in Australia, which can only be achieved via implementing treaties into legislation as per the transformation approach. Nonetheless, ratifying a treaty renders it enforceable through international law and gives rise to international obligations, the breach of which has implications on Australia’s international standing and diplomatic relations with other nations.
Australia has ratified the International Covenant on Economic Social and Cultural Rights (‘ICESCR’), Article 12 of which states:
‘The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’
Furthermore, Australia has ratified the Convention on the Rights of the Child, Article 24 of which states:
‘States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.’
Therefore, Australia has recognised the right of all people, including asylum seekers and refugees, to the highest attainable standard of mental health. The World Health Organisation posits that the recognition of this right necessarily includes access to health care. In regards to children, Australia has explicitly recognised the right to access health care services for the treatment of illness, including mental illness. As Australia has ratified both treaties, they have indicated their consent to be bound to these obligations at international law.
Immigration Detention and Mental Health
Australia has international obligations to uphold the human rights of all asylum seekers and refugees in Australia, including the aforementioned rights pertaining to mental health. The UN Refugee Convention defines a refugee as a person outside their country of nationality and ‘unable or unwilling to return’ due to a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.’ An asylum seeker is a person having fled their country of nationality and applied for refugee status.
Presently, any person entering Australia without a valid visa is detained. Operation Sovereign Borders came into effect on 18 September 2013 with the stated objectives of combatting people smuggling and protecting Australia’s borders. This policy includes detaining asylum seekers in offshore detention centres, including at Manus Island and Nauru Regional Processing Centres.
While this article will specifically address the issue of Australia’s policy on asylum seekers and refugee as it breaches human rights surrounding mental health, it is important to note that this policy breaches a multitude of Australia’s international obligations under the Refugee Convention. While Australia has not ratified this treaty, it is nonetheless a signatory and as such bound to refrain from acts which defeat the object and purpose of the treaty.
It is well established that long-term detention has extremely deleterious consequences on mental health. The research has consistently indicated that the combination of immigration detention and uncertainty as to the resolution of refugee applications negatively impacts mental health. In 2004, the Human Rights and Equal Opportunity Commission released the report ‘A last resort? National Inquiry into Children in Immigration Detention’ which highlighted the negative impact of detention on the mental health of detainees of all ages. A 2009 review of studies looking at the impact of detention on mental health found that the amount of time in detention was positively correlated with the severity of distress experienced by asylum seekers. Earlier this year, the ABC reported that ‘the time asylum seekers spend in immigration detention has hit a record high at an average of almost 450 days.’ While asylum seekers generally have high levels of pre-existing trauma that necessarily impacts upon mental health, the research clearly indicates that ‘it is the experience of detention itself that is most significant’ in driving the high rates of mental health illness in those detained. Australian mental health professionals have repeatedly expressed consternation about the effect of long-term detention on mental health, and in particular its impact on child development. Given the extremely deleterious impact of subjecting asylum seekers and refugees to prolonged periods of detention on mental health, this amounts to a clear breach of the obligation arising under Art 12 ICESCR as it clearly prevents those detained from attaining “the highest possible standard of…mental health.”
Furthermore, Australia has breached its international obligations in failing to provide access to adequate health care to those detained in immigration detention. Former Human Rights Commissioner and conductor of the Inquiry Dr Sev Ozdowski has asserted that the inquiry’s ‘most serious finding’ was the Australian government’s inaction in the face of numerous recommendations by mental health professionals that certain mental health issues could not be treated in detention and that the sufferers should be released for treatment.
The second Major Finding of the Inquiry was:
‘Children in immigration detention for long periods of time are at high risk of serious mental harm. The Commonwealth’s failure to implement the repeated recommendations by mental health professionals that certain children be removed from the detention environment with their parents, amounted to cruel, inhumane and degrading treatment of those children in detention.’
This is clearly inconsistent with the right of every human to enjoy the ‘highest attainable standard’ of mental health arising from Article 12 ICESCR. Additionally, in amounting to ‘cruel, inhuman and degrading treatment’, this breaches Australia’s international obligation arising from Article 37(a) of the Convention on the Rights of the Child.
The inadequacy of the response is exemplified in how governments and detention centres address self-harm, a recurring and prevalent issue for those in Australia’s immigration detention centres. In May 2016, two refugees detained on Nauru set themselves on fire, resulting in the death of Iranian Omid Masoumali and serious injuries sustained by the Somali woman Hadon Yasin. The Guardian reported that between Masoumali’s and Yasin’s self-immolation, there were ‘at least six suicide attempts reported on Nauru, ranging from people swallowing razor blades, ingesting washing powder or attempting to hang themselves using bed sheets.’ The recurrence of self-harm is a recurring theme across the literature, including in the National Inquiry into Children in Immigration Detention.
In response to Masoumali and Yasin, Immigration Minister Peter Dutton expressed anger at advocates and others “who are encouraging some of these people to behave in a certain way, believing that that pressure exerted on the Australian government will see a change in our policy in relation to our border protection measures.” Contrarily, Louise Newman from Monash University has argued that in the context of recognising the impact of prolonged detention on mental health, ‘self-harm is simultaneously a form of protest and an expression of frustration and sometimes of suicidal ideation.’ She further posits that governments and the detention system tend to dismiss self-harm as ‘manipulative’ or merely a form of protest, which ignores ‘the ambivalence and complex feelings involved.’ Therefore, Peter Dutton’s criticism of advocates overlooks the potential mental health issues involved. The right to access health care when needed is part and parcel of the right to the ‘highest attainable standard of health’ enshrined in Article 12 ICESCR. The failure to release those in immigration detention who are self-harming to receive any kind of mental health treatment is a human rights violation in clear breach of Australia’s international obligations.
Conclusion
In conclusion, it has been clearly established that prolonged immigration detention has a negative impact on mental health and is driving the relative prevalence of mental health illnesses amongst asylum seekers and refugees in Australia’s immigration detention centres. In light of this, subjecting asylum seekers and refugees to prolonged detention breaches several of Australia’s international obligations including those arising from the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, particularly the right to the highest attainable mental health. The failure to provide adequate health care to those exhibiting symptoms of mental health illness contrary to the advice of numerous mental health professionals further breaches our international obligations.
References
[1] Australian Human Rights Commission, Disability Rights: Human rights and mental illness (16 May 2012), Australian Human Rights Commission <https://www.humanrights.gov.au/our-work/disability-rights/inquiries/disability-rights-human-rights-and-mental-illness>.
[2] Dr Sev Ozdowski, ‘Mental Health is a Human Rights Issue’ (Speech delivered at National Conference on Human Rights and Mental Health, Canberra, 8 September 2015) <https://www.humanrights.gov.au/news/speeches/3rd-national-conference-human-rights-and-mental-health>.
[3] Ibid.
[4] Statute of the International Court of Justice (entered into force 18 April 1946) Art 38(1)(a).
[5] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969 (entered into force 27 January 1980) 1155 UNTS 331, art 2(1)(a).
[6] Parliament of Australia, The Executive Power of the Commonwealth: Its Scope and Limits (19 July 2004) Parliament of Australia, <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9596/96rp28>.
[7] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969 (entered into force 27 January 1980) 1155 UNTS 331, arts 10 and 18.
[8] Ibid arts 2(1)(b) and 11.
[9] Mabo v Queensland (1992) 175 CLR 1, 42 (Brennan J).
[10] International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1996, 993 UNTS 3 (entered into force 3 January 1976), art 12.
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), art 24.
[11] World Health Organisation, Health and human rights (December 2015), World Health Organisation <http://www.who.int/mediacentre/factsheets/fs323/en/>.
[13] Vienna Convention on the Law of Treaties arts 2(1)(b) and 11.
[14] Australian Human Rights Commission, Asylum Seekers and Refugees Guide, (14 August 2015), Australian Human Rights Commission, < https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/asylum-seekers-and-refugees-guide>.
[15] The United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951 (entered into force 22 April 1954), 189 UNTS 137, art 1.
[16] Australian Human Rights Commission, above n13.
[17] Thao-Mi Bui, "Asylum Seeker Policy: Why Australia Must End Operation Sovereign Borders And Build Towards A Durable Regional Cooperation Framework" (2015) 23(4) Ethos 18, 18.
[18] Ibid.
[19] Ibid.
[20] UN Refugee Convention.
[21] Australian Human Rights Commission, above n13.
[22] Louise Newman, "Seeking Asylum—Trauma, Mental Health, And Human Rights: An Australian Perspective" (2013) 14(2) Journal of Trauma & Dissociation, 213, 216.
[23] Human Rights and Equal Opportunity Commission, A last resort? National Inquiry into Children in Immigration Detention (2004) 429.
[24] Newman, above n22, 216.
[25] Stephanie Anderson, ‘Immigration detention times on Nauru and Manus Island blows out to 450-day average under Liberals’, ABC News (online), 13 January 2016, <http://www.abc.net.au/news/2016-01-13/immigration-detention-times-blow-out-to-almost-450-days/7085264>
[26] Stephanie Anderson, ‘Immigration detention times on Nauru and Manus Island blows out to 450-day average under Liberals’, ABC News (online), 13 January 2016, http://www.abc.net.au/news/2016-01-13/immigration-detention-times-blow-out-to-almost-450-days/7085264 220.
[27] Newman, above n22, 216.
[28] International Covenant on Political, Economic, Social and Cultural Rights, art 12.
[29] Ozdowski, above n2.
[30] Human Rights and Equal Opportunity Commission, above n25, 6.
[31] Convention on the Rights of the Child, art 37(a).
[32] Newman, above n22, 216.
[33] Nicole Hasham, ‘Second refugee sets herself on fire’, The Sydney Morning Herald (online), 3 May 2016, <http://www.smh.com.au/federal-politics/political-news/reports-of-second-refugee-setting-themselves-on-fire-at-nauru-20160502-gokg9y.html>
[34] Ben Doherty, ‘Self-immolation: desperate protests against Australia’s detention regime’, The Guardian (online), 3 May 2016, <http://www.theguardian.com/australia-news/2016/may/03/asylum-seekers-set-themselves-alight-nauru>.
[35] Human Rights and Equal Opportunity Commission, above n25; Newman, above n22, 218.
[36] Ibid.
[37] Newman, above n22, 218.
[38] Ibid.
[39] World Health Organisation, Health and human rights (December 2015), World Health Organisation <http://www.who.int/mediacentre/factsheets/fs323/en/>.
[40] Newman, above n22, 218.
[41] Ibid 216.
[42] International Covenant on Economic Social and Cultural Rights, art 12.
[43] Human Rights and Equal Opportunity Commission, above n25.
