Up to 27 people have died in immigration custody since 2000 yet none of these deaths are recorded by the national deaths in custody monitoring program, despite clearly meeting the legal definition, according to a human rights advocate and paralegal with more than 10 years’ experience working on deaths in immigration detention.

“If you apply the law around what constitutes custody, which flows from the Royal Commission into Aboriginal Deaths in Custody and other legal test cases, then there is no dispute that these are deaths in custody. There are deaths in Commonwealth custody,” Charandev Singh said.

Singh said the inclusion of these deaths in the Australian Institute of Criminology’s National Deaths in Custody Program was about accuracy and integrity.

“It’s [about] telling the true story about the full extent of deaths in custody in our country … There’s a death in custody in this country every less than five days. There have been four deaths in custody in the last week alone, including this death in detention. It makes no sense whatsoever to exclude them or be secret about them,” Singh said.

“These are real deaths. They’re a consequence of our policies and the legal conditions operating in our detention centres … Until people know what’s happening, they just don’t believe it. They don’t have to deal with it.”

Singh has recorded 27 deaths in all forms of immigration detention, including Navy interceptions, since 2000. Between 1991 and 2000, there was only one death in custody, Singh said.

“There’s never been a national investigation or a national analysis of deaths in immigration detention, despite the extraordinary increase in the number of deaths in custody in the last 10 years,” he said.

“That really undermines any capacity to understand deaths in detention in the context of our mandatory detention policy.”

The Department of Immigration and Citizenship has refused to release its own figures on the number of deaths in immigration detention further back than the past five years, in which it says three people have died in detention centres, including the death on Monday of Fiji man Josefa Rauluni at Villawood.

Asked whether it believed immigration centre deaths should be included in the national count of deaths in custody, the department told Crikey: “The Australian Institute of Criminology performs a research function for government. It’s a matter for the AIC to determine what statistics are relevant to a particular piece of research.”

An AIC spokesperson confirmed to Crikey that deaths in immigration detention are not included in the national tally of deaths in custody. He said the question of whether or not deaths that occur in immigration detention should be included in the program was “a matter for government”.

Immigration Minister Chris Bowen was unavailable for comment.

Meanwhile, as government agency deflects to government agency, it seems the states and territories have been treating detention centre deaths as deaths in custody for years — in some jurisdictions, for more than a decade. The Coroners Act in every jurisdiction except Western Australia categorises immigration detention deaths as deaths in custody, which means they are reported, investigated and recorded as such. As with all deaths in custody, inquests into immigration centre deaths are mandatory in these jurisdictions.

It would seem, then, that the information is out there and being collected; it’s simply not being counted by the country’s peak monitoring body for deaths in custody.

“The terms of reference that came out of the Royal Commission into Aboriginal Deaths in Custody for us were such that we look at deaths in custody as a result of people incarcerated under the criminal law. No consideration was ever given to us looking at people detained under immigration law and our reporting on deaths in custody has been on that basis ever since,” an AIC spokesman told Crikey.

The commission delivered its final report in 1991. Mandatory immigration detention was introduced the following year.

A recognition of immigration detention deaths as deaths in custody may also have repercussions for the care and treatment of detainees, which was a primary focus of the Royal Commission. Its final report set out the legal duty of care owed to people in custody. It dedicated 46 of its 339 recommendations — the most recommendations for any single area — to the improvement of custodial health and safety.The Department of Immigration and Citizenship told Crikey that it had considered the Royal Commission recommendations when setting out the obligations and duty of care owed by private contractor Serco towards people in detention.

“Yes, the Department takes into account a broad range of information sources when considering detention health policy,” a department spokesman said.

“All people in immigration detention are provided with access to a range of healthcare services, including mental health support, commensurate to those available in the broader Australian community.”

However, clinical psychologist Jeanette Gibson — who has worked in prisons and immigration detention centres — said on Wednesday that she believes prisoners are treated more humanely than asylum seekers.

Refugee advocate Sara Nathan told Crikey the healthcare and mental health services at Villawood were “very minimal”. One man who had been in detention for a year had only had counselling once, she said, while another was filing a complaint with the Australian Human Rights Commission because he had yet to receive treatment for shrapnel lodged in his leg, despite repeated requests.

Executive director of the Refugee and Immigration Legal Centre David Manne said such breaches of duty of care may well expose the government and its private contractors to legal action.

“It’s crystal clear under Australian law that the government has a non-delegable duty of care towards people in detention, so while it can contract a private company to run the centre, it can’t contract out of its obligations to people it decides to detain,”  Manne said, adding that he was not making comment on any specific case.

The federal government has paid $5.4 million in compensation to asylum seekers for injuries suffered in detention. More than 50 payments were made in the past two years. The Department of Immigration refused to confirm how many cases, if any, have been to court, saying only that “the majority were settled out of court”.

In March 2006, the government paid $400,000 compensation to an 11-year-old Iranian refugee for trauma suffered at Woomera detention centre. In December 2005, The family of Tongan man Viliami Tanginoa lodged a damages claim against the Department of Immigration and private contractor Australasian Correctional Management, five years after Tanginoa died in Melbourne’s Maribyrnong detention centre.

Josefa Rauluni’s brother, Geviga, has already said he will pursue legal action against the immigration department and Villawood detention centre operator Serco Australia. The department’s five-year contract with Serco — which runs every detention centre in the country, and another on Christmas Island — was valued at $411,450,000 when signed in June 2009, a department spokesperson told Crikey. The value of that contract would now be greater, given detention centre expansions undertaken by the Labor government in the past year.

“It is the single most valuable detention centre contract in the world,” Singh said.

But while fear of litigation and increased scrutiny of detention centre deaths may provide some incentive for the government to improve conditions in immigration centres, the real issue is mandatory detention itself, he added.

It’s a policy that looks set to continue, with the government last week announcing a $50 million expansion of detention centres on the mainland.

“The whole policy militates against people surviving in detention. You have people sustaining long periods of detention … the mental health and the other health consequences of [which] are well known and devastating,”  Singh said.

“It’s the framework in which all these deaths are occurring.”