Private Prisons, Immigration Detention and COVID-19

Introduction

Under the United Nations Guiding Principles on Business and Human Rights, businesses have a responsibility to respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.

This brief outlines the exacerbated human rights impacts resulting from the coronavirus pandemic in private prisons and immigration detention, and describes the activities of Serco Group and GEO Group with regard to their provision of prison, immigration detention and security services on behalf of the Australian government.

People in correctional facilities and detention have been identified as one of four groups at highest risk from COVID-19, due to issues such as inability to practice social distancing, and poor access to hygiene and sanitation.

The UN High Commissioner has urged governments and relevant authorities to work quickly to reduce the number of people in prison, jails and immigration detention. Globally governments such as those in England, Wales, Scotland, Ireland, US, Canada, Indonesia and Germany, have released incarcerated people to control the spread. Thus far, the Australian government has not taken such steps to stem a potential escalation of this public health crisis. The absence of government action does not discharge companies of their human rights responsibilities.

This brief has been prepared by the Australasian Centre for Corporate Responsibility (ACCR), with advice from key experts in refugee and indigenous law, and doctors with experience in detention and prison environments.

Corporate provision of immigration detention and private prison services in Australia

Serco Group provides prison, immigration detention and security services on behalf of the Australian and UK government. GEO Group provides prison services on behalf of the Australian government. They provide prison and immigration detention services on behalf of the US government.

Serco Group

Serco Group has provided immigration services on behalf of the Australian immigration department since 2009. Their services include: the management of detention centres, transporting and escorting people locally, domestically and internationally, and the provision of support services. Serco Group currently manages all onshore immigration detention centres in Australia.

Serco has been associated with a number of human rights abuses in both their management of security and detention contracts, including but not limited to:

• A 2019 report by the Australian Human Rights Commission raised concerns about Serco’s use of restraints during the movement of asylum seekers, and noted particular cases in which the use of force during transfers and deportations were contrary to people’s rights under article 10 of the International Covenant for Civil and Political Rights (ICCPR).
• In March 2019, leaked footage showed excessive use of force against detainees by Serco guards. A subsequent investigation found abuse and mistreatment of detainees, allegations that complaints were covered up and that detainees were discouraged from pursuing complaints.

Serco Group operates private prisons in Western Australia, Queensland, New South Wales and Adelaide. Serco operated Australia’s largest, Acacia prison where overcrowding and severe understaffing (as few as 83 officers to 1400 prisoners) are significant issues. Serco has been implicated human rights abuses, including several Aboriginal and Torres Strait Islander deaths in custody, for example:

• A 2018 coronial inquest heard that an Aboriginal man who died after four hours in custody after prison staff failed to identified him as being at risk of suicide despite self-harming.
• In 2019 an Aboriginal man died in Acacia prison days after his mother called jail to warn that he was suicidal.A review was conducted by the Department of Justice regarding the circumstances surrounding the death.

GEO Group

The GEO Group operates 141 correctional, detention and community re-entry facilities around the world, with five in Australia and 71 in the United States.

GEO Group has been subject to a number of investigations that have exposed human rights abuses occurring at correctional centres across Australia, including but not limited to:

• A 2017 chief inspector's report on Authur Gorrie Correctional Centre in Queensland that revealed that a 500 per cent increase in serious assault and a 700 per cent surge in sexual assault between 2013 and 2016. The reasons for this were not clear, but overcrowding was a contributing factor, given the facility was operating at 155 per cent capacity. Furthermore, it found that attempted suicides jumped from 2 to 37 from 2012 to 2017.
• A 2018 Parliamentary Inquiry into the operation of Parklea Correctional Centre in NSW found that GEO Group Australia failed to address the significant and systemic problems that occurred there in a timely way.Issues included negligence (for example, guards failed to notice an 81 year old inmate had committed suicide), management and staffing, deaths in custody, and inadequate health care. The management of the prison was subsequently taken over by MTC-Broadspectrum.
• In 2012 Fulham Correctional Centre in Victoria was overrun by prisoners rioting over poor conditions.

In the United States, GEO Group has consistently faced allegations of human rights violations in both correctional and immigration detention facilities. The Department of Homeland Security’s Office of Inspector General in October 2018 reported “serious issues relating to safety, detainee rights, and medical care” at an immigration detention centre California. GEO Group faces lawsuits in California, Washington and Colorado that accuse it of forcing immigrant detainees to perform menial tasks for $1 per day. As a result of various allegations, a majority of GEO Group shareholders passed a resolution at the 2019 AGM requiring the company to issue its first report on the implementation of its human rights policy. GEO Group successfully challenged another shareholder resolution (filed ahead of the 2019 AGM) by filing an objection with the SEC, which would have prohibited the company from housing immigrant children separated from their parents or parents separated from their children.

Private prisons in Australia

Approximately 43,000 adults prisoners and 950 young people are held in prisons, with over 18% of inmates in privately-run facilities. Due to the ongoing impacts and history of colonisation, land dispossession, and racism, Aboriginal and Torres Strait Islander people are the most incarcerated population globally. They make up about 28% of the imprisoned adult population even though they constitute around 2% of the overall population. Research shows Aboriginal and Torres Strait Islanders are more likely to be imprisoned for less serious offences than non-Indigenous people, such as a failure to pay fines, traffic violations, or public order offences.

A lack of comprehensive mental health and social services has created a pathway to prison for many people with disabilities. Approximately 50% of the population having a physical, cognitive, or a mental health condition, compared to 18% of Australia’s general population.

Human rights abuses associated with private prisons have been extensively documented, including incidents of physical and sexual abuse, assault, lack of access to appropriate health and social services, unwarranted solitary confinement, and low waged prison labour. Overcrowding and insufficient staffing exacerbate these issues. The high number of Indigenous deaths in custody have been monitored closely since the 1991 Royal Commission. The situation has become increasingly worse since, with 424 Aboriginal and Torres Strait Islander deaths since the national report was tabled. Research shows that a majority of recent deaths are linked to failures to provide appropriate medical care.

Risks associated with COVID-19 in private prisons

Prison populations are vulnerable to a COVID-19 outbreak because of underlying health conditions and environmental factors. First Nations people in particular are more likely to have chronic health conditions and be living with a disability. In the prison environment it is not possible to practice measures to stop the spread of COVID-19, such as social distancing and frequent hand washing. Prisons are crowded places with infrequent cleaning. Prison workers are not screened for symptoms, and are not required to wear personal protective equipment (PPE) when in contact with imprisoned people.

Most prisons in Australia are forcing mandatory lockdown, meaning that people are not free to move about, socialise, work, or study while imprisoned. In some other cases, people are being put in solitary confinement as a preventative measure. Prisons have stopped family visits, and services allowed inside prisons are limited. Not all prisons are providing free phone calls and access to family and support services. Two staff have already tested positive at Wolston Correctional Centre (operated by GEO Group).

More than 400 criminal justice experts and organisations are calling on the government to take action to immediately release prisoners where it is safe to do so to avoid deaths from coronavirus in custody.

New South Wales and Australian Capital Territory have passed legislation that would allow the release of vulnerable prisoners, although so far neither jurisdiction has granted early release. The ACT has announced similar measures for young inmates and the Northern Territory has drawn up a list of 50 to 60 inmates who can be considered for early release, but no other state has announced plans to release inmates.

Immigration detention in Australia

Australia is the only country with a policy of mandatory and indefinite immigration detention as a first action for asylum seekers who have sought to reach Australia by boat. Furthermore, any non-citizen who is in Australia without a valid visa must be detained according to the Migration Act 1958 (Cth) (Migration Act). These people may only be released from immigration detention if they are granted a visa, or removed from Australia. In Australia, an estimated 1440 people are currently held in immigration detention. Some have been held for upwards of 7 years.

Numerous international authorities have found that Australia’s refugee law system contravenes international human rights law in a number of respects. The UN Special Rapporteur on Torture and the Australian Human Rights Commission (AHRC) concluded that the treatment of the asylum seekers and refugees within detention centres amounts to “gross human rights violations”, given that detention is arbitrary and prolonged, and that this cruel, inhumane and degrading treatment is taking place on a large scale (more than 2000 people).

The legal and business risks associated with complicity in the Australian government’s immigration and border management have been demonstrated:

• In the case of Kamasee v. Commonwealth of Australia and Ors, a class action, over 1600 detainees who had been held at the Manus Island detention centre at some point between 2012 and 2014 made a claim for negligence and false imprisonment against Commonwealth of Australia and its contracted service providers, G4S and Broadspectrum. The plaintiffs were awarded $70 million plus costs in a negotiated settlement.
• Between 2015 - 2018, the No Business in Abuse campaign targeted companies and their investors involved in immigration detention. This resulted in a number of key investors divesting from Transfield Services.

Risks associated with COVID-19 in immigration detention facilities

Refugees and asylum seekers also have high disease comorbidity. Existing health conditions are not adequately managed in detention, further increasing the risk of infection. Immigration detention facilities are crowded, have shared bathrooms, are poorly cleaned, with limited access to sanitizer. Therefore COVID-19 measures such as social distancing and hand washing are not possible.

There is a high volume of staff movement across various facilities, which may further aid the spread of disease. Guards and detainees are both placed at risk due to the lack of enforcement of social distancing; rather than staying 1.5 meters away, guards make physical contact with detainees to move them around facilities.

Risks of disease outbreak are worsened by contextual factors such as critical information being provided in English, lack of sentinel testing of staff or detainees, and the disincentive to report symptoms due to the resulting 14 days in behavioural management units (solitary confinement). All visitation has been paused therefore detainees have no access to friends, family or faith-based visitors.

On 18 March 2020, there were reports that an officer employed by Serco, who are contracted by the Department of Home Affairs to provide garrison and welfare service in immigration detention settings, was confirmed to have contracted COVID-19. The officer had been working at the Kangaroo Point Central Hotel and Apartments, which is currently designated as an Alternative Place of Detention and houses a large number of people who have been transferred to Australia from offshore detention for the purpose of receiving medical care. Concerningly, detainees who had been in contact with that guard had not been tested for the virus, and social-isolation measures and increased hygiene measures had not been put in place. In response, detainees wrote to the Australian government, expressing their grave concerns re virus transmission in detention.

Ongoing litigation by a number of organisations on behalf of clients currently held in immigration detention is taking place, seeking their release on health grounds. Lawyers have informed ACCR that should COVID-19 enter the immigration detention system, it is likely that this litigation will be expanded to include a claim for negligence.

On 22 April 2020, a legal challenge was commenced on behalf of a man held in Melbourne Immigration Transit Accommodation. Lawyers for the man argue that the Commonwealth and detention service providers are in breach of their duty of care to the plaintiff by failing to implement basic ‘social distancing’ measures in the centre.

On 7 May 2020, the Public Interest Advocacy Centre filed a group complaint with the Commonwealth Ombudsman for 13 men in Australian immigration facilities who fear that an outbreak of COVID-19 could prove catastrophic for detainees, staff and the broader community. The complaint calls for an urgent inspection of facilities, to examine the adequacy of conditions and measures being taken to mitigate and manage the dangers posed by COVID-19 to detainees and staff.

In other jurisdictions – particularly Great Britain, Belgium, and Spain – governments have responded to similar litigation by preemptively releasing people from held detention into the community, in order to lessen the detention population. Australia has not taken the same steps.

Occupational health and safety provisions for workers

The union representing Serco staff note that the company has failed to provide a safe working environment for staff, putting staff, detainees and the broader community at heightened health risk. Issues include:

• Insufficient, inconsistent and/or low quality PPE, with inadequate training in safe donning protocols, which puts staff and detainees at risk.
• Health professionals are not on site at all times. If there is a situation of suspected COVID-19 infection, there is no ability to have prisoners or detainees tested promptly.
• Failure to provide staff with paid pandemic leave. This is an impediment to staff self-reporting symptoms and self-isolating as required to stop the virus spread.

Recommendations for companies and investors

Investors should use their ownership rights to engage companies on the following issues:

• Work with the Australian government to facilitate the release of people from prisons and immigration detention, in line with expert advice.
• Provide immediate and appropriate medical treatment, including testing and hospitalisation, for all incarcerated people who develop COVID-19 symptoms.
• For populations that cannot be released, ensure adequate hygiene and sanitation measures are put in place, in line with expert advice.
• Involve workers in the development, implementation and monitoring of a pandemic plan. This should include pandemic leave provisions, adequate provision of PPE, and development of and training in safe donning protocols.

About ACCR

The Australasian Centre for Corporate Responsibility (ACCR) is a not-for-profit, philanthropically-funded research organisation, based in Australia. ACCR monitors the environmental, social and governance (ESG) practices and performance of Australian-listed companies, including climate change, human rights, and labour rights. We undertake research and highlight emerging areas of business risk through private and public engagement.

Over the last 24 months, ACCR has engaged with companies, investors, legal experts, and human rights groups on the topic of immigration and border management by companies on behalf of the Australian government.

This briefing note draws upon information shared by the following experts during a recent ACCR investor webinar:

• Roxanne Moore, Noongar woman, Executive Officer, National Aboriginal and Torres Strait Islander Legal Services.
• Makayla Reynolds, Gamilaraay woman, sister of Nathan Reynolds.
• Sanmati Verma, Accredited Specialist in Immigration Law, Clothier Anderson Immigration Lawyers.
• Sarah Dale, Centre Director & Principal Solicitor, Refugee Advice & Casework Service.
• Michael Hoey, Registered nurse and representative of the Independent Doctors Network.

For further information contact: Dhakshayini Sooriyakumaran | dhakshayini@accr.org.au