Peter Dutton’s home affairs department was warned that immigration detention was “failing” by an independent review but options to reduce reliance on detention were “not progressed”.
The report by the former secretary of the attorney general’s department, Robert Cornall, found that visa cancellations sent “prison hardened detainees” into immigration detention and warned this may breach the Australian government’s duty of care to other detainees including asylum seekers.
The report was completed in March 2020, while Dutton was still minister, and sent to the home affairs secretary, Michael Pezzullo, and Australian Border Force commissioner, Michael Outram, who both still serve in those roles.
Refugee and asylum seeker advocates have seized on the report – obtained by Guardian Australia under freedom of information – as independent confirmation the government was aware of the harms of immigration detention.
The report found that “the immigration detention system as a whole is failing” to meet two “key principles”: to resolve people’s immigration status as quickly as possible and manage them in the community unless they pose a risk to others.
Cornall said the “generally accepted view is that long term immigration detention is damaging to the detainees’ mental health”, meaning that health services provided in detention “may be treating the symptom and not the cause”.
When Labor came to government in May 2022, there were 1,414 people in immigration detention, with 80% assessed as “high to extreme risk” and 89% with a criminal history. The average time spent in detention was 726 days.
The review said the department identified four reasons the number of people in detention was increasing: more visa cancellations on character grounds, a fact which Dutton boasted about when in government; increased community protection settings; cutting the numbers of people released while their status was resolved; and “complex and lengthy” reviews and appeals.
In February 2019 the department wrote an options paper to reduce the numbers of people in detention, but the “long and interesting list of options [were] not progressed”, the review said.
Cornall said that “prison hardened detainees engage in sophisticated criminal enterprises; stand over and threaten other detainees; import and deal in drugs; and harass [International Health and Medical Services] and other staff”. Criminal activity is “enabled by their access to smartphones and sim cards”, it said.
Dutton’s attempt to remove mobiles from detainees was overturned by the federal court in 2018. Legislation to enact a ban was blocked by the Senate in October 2020 due to concerns it would prevent detainees speaking to lawyers.
Cornall noted the department had “hardened the infrastructure at some detention centres” in response to the “prison culture”.
But he questioned “does the presence of a prison hardened cohort pose health and safety risks contrary to the government’s duty of care for other detainees who have no criminal background or prison experience”.
The review found that “some long term detainees have no pathway to a visa and there is no effective strategy to move them out of detention”. “It follows that they will remain in detention indefinitely unless there is a change in government policy.”
Cornall noted that “given the frustration and anger which can result from indefinite and often long term detention, it is not surprising that some detainees act badly and on occasions violently”.
“That behaviour does not necessarily indicate they would be a risk to the community if they were granted a visa, because their circumstances would then be quite different.”
The review noted the annual cost of managing a person in the community is less than $11,000, compared with an average of $389,382 in detention.
The review recommended seeking to put “high risk offenders” back into correctional facilities, and developing a dynamic risk assessment tool so “low or medium risk” detainees could be released into the community on a bridging visa.
The Refugee Council of Australia said: “the Morrison government not only ignored recommendations from experts in the sector but also an independent report commissioned by the department.”
“The Morrison government failed to adequately respond to Cornall’s recommendations to reduce the time in detention by developing a comprehensive risk assessment tool to reconsider the need for detention, especially for those who are unable to return to their home country due to fear of persecution,” it said.
The Refugee Council said it is “welcome to see the Albanese government working towards some of these recommendations” including considering alternatives to detention such as bridging visas and community detention”.
Sanmati Verma, the acting legal director at the Human Rights Law Centre, said “it is difficult to know what steps, if any, the Morrison government took to implement the report’s recommendations” because it “continued to channel people into detention through visa cancellation and immigration raids” after the report.
“Successive Australian governments have become comfortable with detaining people indefinitely – potentially for the rest of their lives.”
The Refugee Council and HRLC both criticised Labor’s decision to legislate to re-detain people who were convicted of offences involving aggregate sentences.
“Most disturbingly, this government continues to rely on a Kafkaesque, automated form of ‘risk assessment’ to determine who stays locked up and who gets released,” Verma said. “The detainers get to decide who stays detained.”
The immigration minister, Andrew Giles, said: “This government is clear – if there are no security or safety concerns, individuals should be living in the community until a durable solution is finalised.
“We are committed to humane and risk-based immigration detention policies, and are exploring a range of measures aimed at addressing barriers to status resolution and associated risks of long-term detention.
“We continue to work with the relevant oversight bodies to ensure our immigration detention network reflects best practice and complies with Australia’s international obligations.”
Guardian Australia contacted Dutton and the home affairs department for comment.
