The Australian government is facing fresh demands for an inquiry into immigration detention after trying to block the release of a video that a human rights watchdog says shows “excessive” use of force against a detainee.
CCTV footage, released under freedom of information laws, shows a man in the Christmas Island detention centre – known as Mr FE to protect his identity – being subdued by five guards and appearing to be punched before being wrestled to the ground.
Mr FE’s head is then turned to the side while a male guard appears to push it down on to the concrete floor, an action the Australian Human Rights Commission would later conclude “knocked loose” one of Mr FE’s teeth.
“I am satisfied that Mr FE’s mouth was injured as a result of the use of force incident and that he was spitting out blood,” the commission concluded after investigating the incident.
The incident, which occurred in April 2015, was investigated by the AHRC last year. The footage has now been released by the commission after a freedom of information application by SBS News.
The Department of Home Affairs told the commission the footage should be kept under wraps as it would have a “substantial adverse impact” on the operations of Serco, the multinational company that provides security in Australia’s immigration detention network.
“The release of this information could result in operational and administrative inefficiencies for Serco, and, ultimately, expose the Commonwealth to additional contractual burdens,” the department said in a consultation letter to the commission seen by SBS News.
“Given the possible contractual impacts for the Commonwealth and the risks to the centres as a whole, this would be contrary to the public interest.”
The commission disagreed, saying the footage would inform the public about “the practices followed by the department and Serco, and its conduct of operations … in closed immigration settings”.
“Disclosure of this type of information … goes towards increasing scrutiny, discussion, comment and review of the government’s activities,” the commission wrote in a consultation letter.
Use of force ‘unnecessary’ and ‘excessive’
Serco’s internal investigation found “poor operational decisions” were made in the lead-up to the use of force against Mr FE. The investigation also noted that use of force guidelines requiring de-escalation did not appear to have been followed.
“It is the view of the investigator that there is no discernible attempt to de-escalate the situation,” a copy of the investigation provided to the AHRC noted.
But in contrast to Serco’s internal findings, the Department of Home Affairs argued the use of force against Mr FE was both necessary and in line with policy.
“The department does not agree that the use of force examined in the incident was disproportionate with or contrary to the complainant’s human rights,” the department told SBS News in a statement.
The AHRC had a starkly different assessment, finding it was “unnecessary”, “excessive” and in breach of both the department’s and Serco’s operational guidelines.
The commission said at least two parts of the use of force were excessive.
“The application of downward force to Mr FE’s head while it was in contact with the concrete floor [and] the forcing of Mr FE’s hands upwards with more force than necessary after he had been handcuffed behind his back,” the commission found.
The incident occurred as Mr FE was returning to his accommodation block after picking up medication from the detention centre’s dispensary. There was a disagreement as guards went to open the door to the block and there are differing accounts as to what happened in the lead-up to the use of force.
Serco guards said Mr FE was threatening them and was “belligerent and argumentative”, while Mr FE said a guard elbowed him in the chest while waiting for the door to open.
“[Footage] shows that when Mr FE enters the accommodation block, he is wearing slippers. He is moving slowly and does not appear agitated,” the AHRC found.
As the guards move in to grapple with Mr FE, one of them appears to swing a straight arm towards his ribs.
“The quality of the video is low, but it appears that the officer may have used a closed fist,” the AHRC noted.
A Serco investigation report said the movement was a “thrusting motion with his right arm” that had “the appearance of a punch”.
The Serco guard in question later said he was trying to perform a wrist-lock.
The AHRC could not be certain it was a punch, but said the action “appeared to be a striking action rather than a grappling action”.
At the request of Mr FE, the incident was referred to the Australian Federal Police. The AFP found there was not enough evidence to proceed to prosecution for either common assault or assault causing bodily harm.
Calls for an inquiry
The AHRC last year recommended the Department of Home Affairs conduct a public inquiry into the use of force inside immigration detention.
The department did not accept the recommendation, telling the commission immigration detention was already covered by departmental and parliamentary accountability measures.
David Burke, the legal director at the Human Rights Legal Centre, said the use of force against Mr FE was “shocking”.
He said the government had a long history of smothering transparency around immigration detention and the treatment of asylum seekers.
“The government has tried to ban mobile phones, they have detained thousands of people on remote islands offshore, they have tried to ban access by journalists,” he told SBS News.
Mr Burke said there needed to be a public inquiry.
“As a first step to improving this system, the government must comply with the Human Rights Commissioner’s recommendations for a public inquiry into the use of force in immigration detention, so that we can see what is happening behind closed doors.”
The use of force inside immigration detention again came under the spotlight in a recent report by the Commonwealth Ombudsman Michael Manthorpe.
In his report, released in August, Mr Manthorpe said the detention system continues to be plagued by shortfalls in its handling of detainees.
“There appears to be an increasing tendency across the immigration detention network for force to be used to resolve conflict or non-compliant behaviour as the first rather than last choice,” he wrote.
Public Interest Advocacy Centre senior lawyer Jane Leibowitz agreed there was a need for better oversight of the immigration detention system.
“It’s a very opaque system,” she told SBS News. “It’s hard to know who is doing what, and who is deciding on what. That is part of the difficulty and it causes a culture of fear.”
The Christmas Island immigration detention centre was closed in October 2018. It had been plagued by years of protests centred on the poor conditions inside the facility.
In August of this year, the government said it would reopen the facility – at a cost of $55 million over six months – to relieve pressure on mainland detention centres that were struggling for space during the COVID-19 crisis.
It was revealed in September that at least two refugees were among some 100 detainees transferred to Christmas Island.
The Department of Home Affairs said in the statement provided to SBS News the use of force Mr FE experienced was neither disproportionate nor contrary to his human rights.
The department said it has undertaken a comprehensive review of its operational policy instructions covering the use of force within immigration detention.
“Updated operational policy instructions, which came into effect in January 2019, already address those [Human Rights Commission] recommendations accepted by the department.”
The department did not address questions about why it did not agree with calls for a public inquiry.
Serco declined to comment on the matter.