Human rights issues for young refugees and asylum seekers

Speech for the Diversity in Health Conference

Human rights issues for young refugees and asylum seekers

Graeme Innes AM, Human Rights Commissioner

11 March 2008

I begin by acknowledging the traditional owners of the land on which we meet.

I also thank the Diversity in Health Conference for inviting me to speak today.

The globalisation of the world economy, including much improved communication and transportation, has increased flows of people across borders.  This includes the movement of children, both with their family and unaccompanied.  Separated children crossing borders may be refugees, humanitarian asylum seekers, trafficked girls who will be forced to work as prostitutes, or simply children lost in the aftermath of war.  So today, children can literally travel across the world undetected and unprotected.  And Australia, as part of this global system, has its share of these children.

So what happens to these children and young people when they reach our shores, and what is the human rights impact of that treatment? It's this question which forms the basis of my speech today.

I've decided to focus on the human rights impact of mandatory detention on young asylum seekers and refugees.  This is for two important reasons.  Firstly, in 2005 the Human Rights and Equal Opportunity Commission completed an in-depth report on the human rights impact of Australia’s mandatory detention policy on children.  Since then, my staff and I have continued to inspect immigration detention facilities in Australia, and monitor their compliance with human rights.

Secondly, the findings and recommendations of the report, which I'll discuss in a moment, suggest an overwhelming connection between prolonged mandatory detention and serious mental harm.  So I thought it important to talk about the mental health impact of mandatory detention at this forum on health in diversity.

In 2004, HREOC produced a report called A last resort?"' which resulted from our National Inquiry into Children in Immigration Detention.  At the time the Inquiry commenced there were over 700 children in detention, some with their families, and some unaccompanied by close family members.  What the Inquiry found was disturbing and compelling, and confirmed the work of many others on the negative impacts of prolonged and automatic detention.

What were the main findings?

First, we found that the mandatory detention policy itself breaches international human rights law.  The Convention on the Rights of the Child says that children should only be detained as a measure of last resort, and for the shortest appropriate period of time.  The International Covenant on Civil and Political Rights also prohibits arbitrary detention--which means that people should not be detained unless detention is a proportionate response to a legitimate aim and that the detention is reviewable by an independent tribunal.

However, the Australian Migration Act 1958 (Cth) requires that every person in Australia without a visa must be detained.  There is no avenue to review the decision to hold a person in detention, or review the need for ongoing detention.  The only way to get out of immigration detention is to get a visa--be it a bridging visa, a protection visa, or any other type of visa, or to be removed from Australia.  And that process can take weeks, it can take months or it can take years.

Secondly, we found clear signs that mandatory detention can cause serious mental harm, and that a failure to take appropriate action can amount to cruel and inhumane treatment.  The Inquiry documented a long list of children who were diagnosed with clinical depression, post traumatic stress disorder and developmental delays.  Many children showed symptoms like repeated nightmares, bed-wetting, muteness, lost appetite and suicidal ideation and self-harm.

The third major finding was that the Department of Immigration failed to protect the rights of children while they were in detention.  In fact, they failed to meet pretty much every child rights standard that applied to a detention environment.

Specifically, we found that that the Department

• failed to provide sufficient protection from physical and mental violence;

• failed to provide the appropriate standard of physical and mental health;

• failed to provide adequate education until late 2002;

• failed to provide appropriate care for children with disabilities; and

• failed to give unaccompanied children the special protection that they needed.  This directly relates to a conflict between the role of Minister for Immigration as both the guardian and jailer of unaccompanied children.

These findings are strong.  But they do not graphically demonstrate what we found.  Let me just give one brief example, to show the seriousness of what we documented in our report.  Between April 2002 and July 2002--a period of four months--a fourteen year old boy detained at Woomera attempted to hang himself four times; climbed into the razor wire four times; slashed his arms twice; and went on hunger strike twice.  This boy’s mother was also hospitalised due to her own mental illness during this whole period.

In several cases like this, the Department of Immigration did not act on the repeated recommendations from psychiatrists that the only way to help these families was to remove them from the detention environment.  The inquiry found that the Department’s failure to act on these recommendations amounted to cruel and inhumane treatment.  This was one of the most serious findings made by the Inquiry.

Having found these breaches of human rights, we made five broad recommendations.  And as I have flagged, there has been progress in implementing some of those recommendations.

The Inquiry’s first recommendation was that all children should be released from immigration detention centres, and residential housing projects, within four weeks of the publication of the report--which created a deadline of 10 June 2004.  It took considerably longer than four weeks for this to occur, but there was a gradual pattern of release, and on 29 July 2005 the 53 children who were still in detention centres were placed under residence determinations in the community.

Our second recommendation was that the mandatory detention laws must be repealed.  This has not occurred to date.  However, on 29 July 2005 legislation was passed amending the Migration Act to include the principle that children should only be detained in immigration detention facilities as a last resort.  As a result, children and their families are unlikely to be kept in these secure facilities for longer than a few weeks, if at all.  If they are not given bridging visas, then they are placed in what is called 'alternative detention' in motels for shorter periods of time, or in what is called 'community detention'- living in the community on special arrangements.

This means that, although mandatory detention has not been repealed, the situation has improved for children and families.  Children and their families are still legally in detention until they are given a visa, but they will be physically in the community--in most cases.  Community detention is a greatly improved situation, as they are able to live with their families in a house or apartment, go to the local school, and participate in community life, although there are a few restrictions placed on the families, and I have recommended some changes to these in my reports to the Department of Immigration.

The third of the Inquiry's recommendations was to amend the laws that currently nominate the Minister for Immigration as the legal guardian for unaccompanied non-citizen children.  While the Minister's guardianship responsibility is delegated to others in practice, there is a patently clear conflict of interest.  To have the Minister be the person responsible for ensuring an unaccompanied child's best interests, at the same time as he is the person making decisions about a child's detention and visa prospects, brings many difficulties.  I think they are obvious enough for me not to set them out.  To our knowledge, there has been no change in that law.

The fourth of the Inquiry's recommendations was that there should be a way for immigration detainees to enforce minimum standards of treatment while in immigration detention.  The way immigration detention works at the moment is that all the minimum standards are set out in the contract between the Department of Immigration and the detention services provider--GSL.  If a detainee complains of mistreatment, the Department may penalise GSL under the contract, but the detainee gets no remedy.  Neither is it a clear and transparent process.

A detainee can also complain to HREOC.  But if HREOC finds that the detainee has suffered a violation of his or her rights--and we have found violations on many occasions--there is no way to compel the government to give the detainee damages, nor can we force the government to release a detainee.  This is also the case for complaints made to the Commonwealth Ombudsman.  In the past, the Department has indicated to us that it is looking at codifying the standards in some way.

As you can see, there have been some significant improvements made with regards to children in detention since 2005.  In addition to the removal of children from mainstream detention, there are some changes to conditions in detention, which I am able to document through my annual inspections of the detention facilities.

During these inspections, my staff and I visit each of the facilities, speak to detainees and staff of the centres, including physical and mental health providers, and report back to the Department of Immigration and the private provider, GSL, with any recommendations for improvements.  These reports are on our website.

Our 2007 report includes an example of an improvement in conditions for children at the Northern Immigration Detention Centre in Darwin, all of them young people who were working on fishing boats from Indonesia.  When we visited in 2006, the child detainees slept at a Darwin motel at night time, but otherwise spent all their meals and waking hours inside the detention centre, without any special programs or services.  However, in 2007 the children were detained separately from the adult detention centre, and were provided with special activities on and off-site, including a games room with a TV, Xbox and games.  The NIDC had also made efforts to organise full activities and excursions for them.  NIDC had also provided appropriate supervision for the children, by hiring a Youth Officer with child welfare experience.  In our report, we commended the Department of Immigration for these improvements.

Despite positive changes, our reports also note some fundamental problems which continue to exist with immigration detention, in particular the mental health impacts of prolonged detention.  These inevitably occur under a mandatory detention regime.

For a start, it is worth pointing out that while children under 18 and families are detained in facilities only as a last resort, young people over 18 are still detained in immigration detention centres.  I have met young people in their early 20s who have found it difficult to cope in the indefinite detention environment.  And it is not possible to properly treat the mental health problems suffered by most immigration detainees.  This is because the main way to treat a mental health concern is to remove the primary cause of the problem--which is in this case, the uncertainty and confinement of detention.

Further, I am concerned about children and families who may arrive in what is called ‘excised territories’, for example the Ashmore Reef and other areas to the North of Australia.  The new government has signified its intention to continue to use Christmas Island as the main place to detain those people.  Not only do those who arrive in excised territories have limited access to legal assistance and review of their applications for asylum; Christmas Island itself is a small and isolated community.  I'm concerned that it will be difficult, and impractical, to place large numbers of families in 'community detention' on the island, if such a number were to arrive in the future.  I'm unsure how the 'principle' of a last resort, as opposed to a requirement under the law, would operate in these circumstances.

It's clear that the changes to immigration detention since 2005 create a much better system for protecting the human rights of children and families seeking asylum in Australia.  However, as these two examples show, the fundamental problems of mental health of all detainees will not be solved until the mandatory aspect of the immigration detention system is removed, and the human rights of those who arrive on our shores have an important priority over other considerations.

Thank you for the chance to speak with you today.