By The Office of the Commonwealth Ombudsman

This report is part of the Ombudsman's ongoing own motion investigation into instances where the Department of Home Affairs (the Department) has detained people it suspects to be unlawful non-citizens, but later identifies they were not unlawful and releases them from detention. It covers 11 cases of wrongful detention the Department identified between 1 July 2023 and 30 June 2024, including the wrongful detention of an Australian citizen. In one case, the person was wrongfully detained for one year and six months. Under section 189 of the Migration Act 1958 (the Act) an officer must detain a person they 'know or reasonably suspect' to be an unlawful non-citizen. While a decision to detain a person may have been lawful because an officer held the required reasonable suspicion at the time, in each of the cases considered in this report, their detention was wrong because that suspicion was later found to be incorrect. Wrongfully depriving a person of their liberty is serious. We commend the Department’s commitment to continually improving its policies and procedures to mitigate the risk of wrongful detention. However, since we began monitoring the issue in 2005, we have observed the same types of errors are causing people to be wrongfully detained. In addition, the Department has not improved the way it addresses its mistakes with the individuals it has wrongfully detained. The Department does not offer people it has wrongfully detained any form of redress, formal apology, or financial compensation. Although the Department may identify and acknowledge the mistake to the individual, the onus is on the individual to navigate the complex and often costly process of lodging a civil claim to seek damages for unlawful detention through the judicial system. Furthermore, because affected individuals are only informed verbally (rather than in writing) that an error has occurred on their release, they may not be aware of their ability to make such a claim or have access to the information required to support it. Of the 11 individuals who were wrongfully detained in this reporting period, only one has made a civil claim for unlawful detention.  

 Canberra:  The Office of the Commonwealth Ombudsman, 2024. 35p.

By: Heather Schoenfeld , Kimberly Rhoten and Michael C. Campbell

In recent years US prisons have failed to meet legally required minimum standards of care and protection of incarcerated people. Explanations for the failure to protect prisoners in the United States focus on the effects of the Prison Litigation Reform Act (PLRA) and lack of adequate external oversight. However, very little scholarship empirically examines how different systems of accountability for prisoners’ rights work (or do not work) together. In this article, we introduce an accountability framework that helps us examine the prisoners’ rights “accountability environment” in the United States. We then compare two post-PLRA case studies of failure to protect incarcerated women from sexual assault in two different states. We find that the prisoners’ rights accountability environment is a patchwork of legal, bureaucratic, professional, and political systems. The patchwork accountability environment consists of a web of hierarchical and interdependent relationships that constrain or enable accountability. We argue that ultimately the effectiveness of prisoners’ rights accountability environments depends on whether protecting prisoners’ rights aligns with the priorities of dominant political officials. Our argument has implications for efforts to improve prison conditions and incarcerated people’s well-being.

Law & Social Inquiry Volume 00, Issue 00, 1–30, 2024

By The John Howard Association of Illinois (JHA, founded in 1901), The Pennsylvania Prison Society (The Society, founded in 1787) and The Correctional Association of New York (CANY

This report documents the impact of the COVID-19 pandemic and the response in prisons in Illinois, New York, and Pennsylvania – the only three states in the country with non-governmental oversight bodies. It is based on publicly available information as well as information collected directly by these oversight agencies: The John Howard Association of Illinois (JHA, founded in 1901), The Pennsylvania Prison Society (The Society, founded in 1787), and The Correctional Association of New York (CANY, founded in 1844). It provides data unavailable in states lacking similar independent oversight, and it tells a story of very different responses to comparable challenges and a lack of transparency on the details of the crisis and policies developed in response. This report was made possible through the support of Arnold Ventures. The views and opinions expressed in this article are those of the authors. (Published December 2021)

The Authors: 2021. 79p.