Fact check: Triggs correct on the length of time children spent in detention

Updated

The Human Rights Commission's controversial report into children in immigration detention was tabled in the Federal Parliament in the first sitting week of 2015.

It found that the human rights of some children had been breached, and that many had experienced assaults and were suffering from mental health disorders.

Prime Minister Tony Abbott attacked the commission over the timing of the inquiry.

The claim: Australian Human Rights Commission president Gillian Triggs says in the first months of the Coalition Government the time children spent in immigration detention "was reaching quite exceptional levels".

Australian Human Rights Commission president Gillian Triggs says in the first months of the Coalition Government the time children spent in immigration detention "was reaching quite exceptional levels". The verdict: Data provided to the commission by the immigration department shows the number of children in detention for over three months more than doubled in the first months after the Coalition took office. In January 2014 it was the highest it had been in five years. Immigration department data shows that the overall number of people in long-term detention, which can be extrapolated to children, continued to increase during 2014, and only declined in late 2014. Professor Triggs is correct.

"Where was the Human Rights Commission when there were almost 2,000 children in detention?" he asked Neil Mitchell on Melbourne radio. "Frankly, Neil, this is a blatantly partisan, politicised exercise and the Human Rights Commission ought to be ashamed of itself."

Attorney-General George Brandis was also critical of the report's timing.

"The Government is disappointed and surprised that the Australian Human Rights Commission did not start this inquiry until 2014, considering the problem was at its most acute prior to the 2013 election, when the number of children in detention peaked at 1,992 under the former Labor Government in July 2013," he said in a statement accompanying the tabling of the report in the Senate.

Sorry, this video has expired Video: Watch John Barron present the facts (ABC News)

But the commission's president Gillian Triggs defended the timing, telling a press conference that when the number of children in detention reached its peak in July 2013, children were being held only for a short period of time and were being released in their hundreds.

"However, it became very sadly clear that in the months following the election of a new government, very few children were being released and the length of time for which they were being held was reaching quite exceptional levels," she said.

Did the time children were held in detention increase after the Coalition government took office? ABC Fact Check investigates.

The inquiry

The commission formally told the Government it would conduct the inquiry on January 22, 2014. The inquiry was launched the following month and ran until October 2014.

Professor Triggs told a Senate committee in November 2014 that the number of children in detention was escalating in 2013 but the commission did not want to launch an inquiry because an election would be called.

"So I decided that we would give a few months to see how the government would change the policies of the former government, and they were not being changed, and that is when we felt that we would call the inquiry," she told the committee.

Committee records show that Professor Triggs told the then immigration minister Scott Morrison on November 19, 2013, that the commission intended to review children in detention.

How long are people spending in detention?

The Department of Immigration and Border Protection produces monthly statistics on people held in detention.

These include the numbers of men, women and children in detention and, since October 2013, the data also shows whether people are held in Australian or offshore detention centres.

The monthly statistics also detail the duration of detention by days and months, but the statistics on duration apply only to onshore detainees and only to all detainees.

The data is not broken down into the length of time spent in detention by men, women and children.

This raises the question of how much the commission knew about the duration of detention of children before it launched its inquiry.

The Senate committee records show the commission asked the immigration department for statistics on the length of time children were being held in immigration detention facilities on November 4, 2013 and the department supplied them on December 9, 2013.

The department would not provide a similar breakdown to Fact Check when requested.

Crunching the numbers

The department's publicly available statistics, which began in their current form in January 2013, show that the time in detention for all detainees reached its lowest point in July 2013, five weeks before the federal election.

Since then the average time in detention has steadily increased.

The average time spent in detention is affected by the numbers of people flowing into and out of the system. A large influx of newly arrived people who have only been in detention for a short period of time will drag down the average time that everyone has been in detention, unless matched by departures.

A spokeswoman for Immigration Minister Peter Dutton told Fact Check that the arrival of boats in 2013 affected the average time in detention.

"The boats were coming at a rate of one every 18 hours in July 2013," she said, adding 4,000 people to the facilities.

"This inundation of the detention network with new arrivals will have the effect of reducing the average number of days in detention."

She said that since the Coalition Government came to office the boats have stopped so no-one was being added to the detention network.

"It is an inevitable consequence that the average number of days in detention increases."

The average also increases as time goes on without people being released.

A spokeswoman for the immigration department said people remain in detention for a range of reasons, including the time it takes for mandatory checks on identity, security, character and health, or adverse security assessments.

In certain cases, people are required to remain in detention while third-country resettlement or removal options are facilitated.

Delays in the Parliament

When Mr Morrison appeared at the first public hearing for the inquiry on August 22, 2014, he was asked why the average time people were spending in detention had tripled from September 2013 to July 2014.

The question related to the department's statistics, which cover only onshore duration.

Mr Morrison said the Senate did not support the Government's attempts to legislate its Temporary Protection Visa policy that was promised at the election.

"Had the Senate and Labor and the Greens co-operated with that policy many of those people would be out of detention today, their claims would have been assessed, they'd be in the community on temporary visas, they'd have work rights and parity of benefits," he said.

The policy was eventually legislated on December 5, 2014.

When asked specifically why children were being detained for long periods of time, Mr Morrison said the Government's aim was to put children under 10 into community detention facilities where there was satisfactory support for them.

People released into community detention receive support from non-government organisations such as the Red Cross.

People who cannot be placed in community detention could also be put on bridging visas that enable them to live in the community while their claims are being processed.

But Mr Morrison said people on bridging visas weren't entitled to the same support as those in community detention.

He told the inquiry that the Government was very concerned about putting children under 10 on bridging visas in the community with no support, where they were vulnerable to exploitation and abuse.

On August 19, 2014, a change to the bridging visa was announced that enabled families with children on the visas to access the same support as those in community-based detention, specifically case manager support and financial support the first six months.

Mr Morrison said that change overcame his concern about support for children on bridging visas.

Ministerial discretion

Ben Saul, a professor of international law at the University of Sydney, said that legally there was no impediment to placing children in community detention.

"That's absolutely a discretion and a policy choice of the prevailing government of the day and sometimes ministers exercise that more liberally, sometimes more restrictively," he told Fact Check.

David Manne, executive director of the Refugee and Immigration Legal Centre, agreed.

"At the end of the day, for those children and families who have arrived by boat without a visa, release from closed detention into the community either on bridging visas or into what's called 'community detention' under a 'Residence Determination', remains a matter of a minister's personal discretion – a personal and unfettered power to be exercised only by the minister of the day."

Children in long-term detention

Under the Australian Human Rights Act, the commission has the power to issue notices to the department to produce documents and information.

During the inquiry, the commission requested information on the average time children had been detained, issuing a notice to the department on March 31, 2014.

The commission's report says that the information supplied by the department showed that children in Australian detention centres in March 2014 had been there for an average of 231 days.

This data did not include the duration of detention of children in offshore facilities on Manus Island and Nauru.

Average time in detention is not the most reliable measure. A better way is to look at the number of people being detained for longer periods.

The Human Rights Commission also requested information on the number of children detained more than three months, more than six months and more than 12 months, and its report shows this data for the period from July 2008 until January 2014.

The report shows that the number of children spending three to six months in detention started to rise in July 2012 and those spending six to 12 months started to rise in 2013.

Both increased rapidly in the second half of 2013.

The graph shows that the time children were being detained was higher in January 2014 than any time in the preceeding five years.

The commission wouldn't provide Fact Check with the raw data behind its chart. But the chart appears to show that by January 2014, when the inquiry began, around 1,200 children had been in detention for more than three months.

It also appears to show that in July 2013, when Mr Abbott and Senator Brandis say the commission should have been scrutinising the issue, the number was around 400.

The commission's chart only shows six-monthly intervals and stops in January 2014.

Without access to a breakdown of adults and children in detention over time, Fact Check was unable to examine the data on the duration of children in detention as represented by the commission's report.

What does the publicly available data say?

When looked at in more detail, the department's publicly available statistics for 2013 and 2014 are more revealing than at first glance.

The data shows that, as Mr Abbott and Senator Brandis said, the number of people held in detention reached its peak in July 2013.

This was also the case for the number of children in detention.

The numbers then fell substantially. In September 2013 alone, the month the election was held, 2,329 people were released from detention, 665 of them children.

Nearly all can be accounted for by looking at the number of people recorded as being transferred to community detention (502) or placed on bridging visas (1,623).

What happened after the 2013 election?

The number of people leaving immigration detention slowed to a trickle from October 2013 until January 2014. The number remaining in detention began to fall later in 2014. In the case of children, there was a sharp drop after the reintroduction of Temporary Protection Visas in December 2014.

While the number of people held for less than three months increased dramatically in July 2013, as would be expected with a lot of boats arriving, in the later months of 2013, the number of people detained for less than three months declined and then remained very low during 2014.

This was in line with a fall in the number of boat arrivals.

The picture is different for people held for more than three months. This number started rising in October 2013, coinciding with far fewer people being released.

The rise then continued until January 2014, when the commission began its inquiry.

This is the period for which Professor Triggs says her concern over the time children were spending in detention prompted the inquiry.

What do the experts say?

Without access to the breakdown of how long adults and children were spending in detention, Fact Check sought expert advice on whether the times the whole population had been detained could be applied to children.

Angela Higginson and Suzanna Fay-Ramirez, experts in social science statistics from the University of Queensland, said the data indicated that children made up about one fifth of all detainees.

In July 2013 and February 2014, the proportion of children to all detainees was about 19 per cent. The total number of children in detention declined between July 2013 and February 2014, in line with the total detainee population.

Using the data on how long people had been detained over time, Dr Higginson said "the chances that someone who was in for a longer period was a child has risen dramatically", in line with the total detainee population.

She said that as time went on, and with few people being released from detention, children gradually moved into longer duration categories.

The following chart provided by Dr Higginson and Dr Fay-Ramirez shows the time spent in detention for the overall population, and estimates the same for children.

The movement of children between categories assumes a best case scenario, where all of the children recorded as being detained in July 2013 were in detention, at that stage, for less than one month.

The verdict

The immigration department's data shows that the number of all detainees held for more than three months started increasing in the first months of the Coalition Government. Experts say these figures also apply to children held in detention. The overall numbers of people in long-term detention - more than three months - continued to increase during 2014, and only declined in late 2014.

Data from the commission's report, supplied by the department, shows the number of children detained for more than three months in January 2014 was the highest it had been in five years.

Professor Triggs is correct.

Sources

Topics: immigration, government-and-politics, australia

First posted