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.
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 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).
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 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.
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.
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).
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.
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.
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.
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.
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:
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.
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.