“Long-term detention and mental health”: Dr Sev Ozdowski OAM (2003)

“Long-term
detention and mental health”

Speech given by Dr Sev Ozdowski
OAM, Human Rights Commissioner

ANZAPPL Annual Congress,
Fremantle, Western Australia,
26 September 2003

Conference Convenors
and Co-directors, distinguished guests from both Australia and overseas,
ladies and gentlemen, all.

I would like to
acknowledge the traditional custodians of the land on which we stand and
by so doing remind ourselves that Australia’s cultural traditions
stretch back many thousands of years.

The Human Rights Protection
System in Australia

The system of human
rights protection in Australia is rather complex and depends on interaction
of many different elements such as our Federal and State constitutions,
legislation and common law.

It is fair to say
that with the very notable exception of indigenous Australians, the system,
while not perfect, has still produced some reasonable outcomes. Notably
what I would call the “fair go” laws: that is disability,
race and sex in the anti-discrimination arena and economic justice from
the “Harvester” decision, through minimum wages to the centralised
wage fixing system.

What has not been
well maintained, has been the area of civil and political rights where
the absence of a constitutional Bill of Rights and reliance on the common
law creates an obvious lacuna in the human rights menu.

The Human Rights
and Equal Opportunity Commission is an important element of the human
rights protection system in Australia. It is a statutory authority which
is independent of the Government of the day. It was first established
by the Australian Parliament in 1981, and then re-established in 1986.
HREOC administers laws relating to human rights and discrimination.

It does this in
several ways, including:

• Investigation
  of complaints; with provision for court sanctioned outcomes in the anti-discrimination
  area contrasting with parliamentary reporting in the case of human rights
  breaches.
• Provision of
  public education about human rights; the HREOC website’s (www.humanrights.gov.au)
  popularity is testimony to this;
• Monitoring human
  rights compliance by Federal administration; of which “Bringing
  them Home” and Children in Immigration Detention are but two recent
  examples;
• Policy and legislative
  development; the suite of anti-terrorism bills is a good example

Some Basic Statistics on the
Immigration Detention Regime:

• When
  was the policy introduced? 1992 to deal with the perceived
  influx of Cambodians and Vietnamese. One of the primary purposes was
  to perform basic health, identity and security checks.
  
• Who
  is detained? All persons who either arrive without a visa
  or whose visa expires. If they are intercepted outside Australia’s
  territorial waters or arrive at Christmas/Ashmore, they go to Nauru/PNG;
  otherwise detained in Australian detention centres.
  
• How
  many boat arrivals? In
  practice, most people in long term detention are asylum seekers who
  arrive by boat. Since 1989, 13,475 have arrived by boat which
  would barely half-fill the WACA!!
  
  
• Where
  are they from?
  Over the past few years most boat arrivals have been from Iran, Iraq,
  Afghanistan; reasonable numbers have also come from Palestine, Sri Lanka
  and China.
  
• Children?
  Nearly 50% of the children who applied for asylum over past three years
  are from Iraq and 97% of those were successful. Approximately
  35% are from Afghanistan and 95% were successful. Just
  under 10% were from Iran and 66% were successful.
  
• Unaccompanied
  children UAMs? During 1999 alone, the last year UNHCR
  has figures, 20,000 UAMs applied for asylum in Western nations, 46 of
  those travelled to Australia.
  
• How
  many in detention (all categories)? In
  2001-2002 approximately 10,000 people in detention; 1,700 were children
  and 1,400 of those children were boat arrivals. As at 7 July 2003, there
  were just over 1,000 people in detention, 92 of whom are children.
  
• How
  long in detention?
  Boat arrivals must stay in detention until they get a refugee visa or
  are sent back home. Sometimes this can take years.

  1. The longest
  a child has been in detention with a family is 5.5 years.

  2. In January
  2003, the average length of detention for children was more than
  one year and three months.

  3. By April
  2003, 50 children had been in detention for more than 2 years. All
  of those children were in detention with one or more parents.

• Are they
  genuine refugees? Over 90% of boat arrivals in detention over the
  past three years have been found to be genuine refugees ie almost all
  found to have suffered persecution and released into Australian community.

  1. In the
  same period only about 20% of the asylum seekers who arrived with
  a visa (eg tourist visa) were found to be refugees; this refutes
  the argument that there is a correlation between being a “boat
  person” and a “fake refugee”; in fact boat people
  are much more likely to be refugees.

• What
  type of visa do they get?
  Since
  1999, those who do get a refugee visa only get a three year temporary
  protection visa. After three years is up they must start all over again.
  This compares with those who arrive (say) on a tourist visa and then
  apply for refugee status – they get permanent visas. Regulations
  proposed by the Government to bring these applicants into line with
  “boat arrivals” were disallowed by Parliament in September
  2003.

• What
  impact do the TPVs have on their recipients?
  There is evidence suggesting they suffer from a lack of
  stability, have difficulty settling and factually they cannot access
  some key services like the Integrated Humanitarian Settlement Strategy’s
  (IHSS) housing, education and language support package or effectively
  “social security”.

Responsibility for Human Rights
in Immigration Detention Centres.

As Human Rights Commissioner, I have the responsibility
to inspect and report on conditions in immigration detention centres on
an ongoing basis, from an HR compliance perspective. These visits raised
considerable concerns, and were personally traumatising, because I could
see the visible changes in individuals I had met previously.

I could also gauge the changes in mood in general as
various factors caused many adults and their children to remain in remote
centres for well over a year. They were deprived of community contacts
and cultural/religious support, and were increasingly devoid of hope.

Three stages of deterioration:

1) In general,
one could say, people can take up to 2-3 months of detention without
major visible impact on them. They are relieved to be in Australia and
believe that their new start in life is just around the corner.

2) After
this their behaviour changes. We witnessed trauma, self-harm and family
disintegration on our visits.

3) After
one year in detention, the number of people requiring psychological
and psychiatric help is staggering.

Above all, I was concerned at the many effects of detention
on children and young people, and this was the reason why I initiated
the National Inquiry into Children in Immigration Detention in November
2001.

My views on this subject were also informed by evidence
from the Stolen Generations Inquiry; from the Inquiry into Child Migrants
sent from the United Kingdom to Australia, and from other inquiries which
concluded, as a rule, that any institutionalisation is bad for children.

I am concerned also that the social, psychological and
economic cost of institutionalisation is enormous. In considering the
psychological or psychiatric effect, it is likely that some children will
require many years of subsequent professional support and care.

Remember immigration detention is a very particular,
even peculiar form of institutionalisation. It is not imprisonment in
the traditional sense that we know it; no sentence, no prison discipline,
no time out; but there is a total loss of freedom with a commensurate
absence of decision-making capacity and choice.

Freedom of choice is probably one of the most fundamental
bulwarks of a democracy and one taken most for granted – and yet
look at how Sydney’s water restrictions can irritate because they
remove this tiny bit of choice in how to wash you car, to get a taste
of what immigration detention means.

While I cannot yet talk about conclusions of the Inquiry,
I believe that public information from the process so far and the assessment
of my numerous visits to detention centres has led me to develop some
key observations.

Some of these I discussed at a conference in October
last year, noting especially:

• The continued
  adverse comment on people of ‘middle Eastern background’
  who are ‘queue jumpers’ with plenty of money. This does
  not help the Australian community understand the background and often
  traumatic experience of asylum seekers;
  
• The fact
  that the mental health state of those remaining in detention, especially
  children, is atrocious.
  
• I even
  used the phrase “de facto mental hospitals” without the
  resources;
  
• In spite
  of this and continual recommendations from experts, such children and
  their families are not allowed to live in the community because they
  must be ‘available for removal’. Some of them have been
  waiting for this removal for well over a year. During this time their
  health status has deteriorated rapidly.

I continue to be concerned at the level of mental health
problems. However, I note the recent answer provided by the Immigration
Minister in a Parliamentary response, that only some 2.9% of detainees
[1] were taking medication for a psychiatric illness.

Of course, this may mean that some detainees have a
psychiatric disorder but refuse medication. But in addition, the Minister
also excluded depression from the definition of psychiatric illness!!
Even though it is one of the most common disorders in immigration detention
centres.

At least the recently published research by Dr Zachary
Steel and others has addressed the incidence of mental illness in detention
centres in more detail, thereby providing some objective clinical analysis.

ACM/DIMIA Public Hearing,
Sydney 2-5 December 2002

What I would like to concentrate on today is some of
the material which was discussed during public hearings with DIMIA and
ACM in Sydney in December 2002 as part of the Inquiry.

My purpose here is not to demonise individuals within
DIMIA and ACM, but rather to demonstrate the cultural attitude that the
policy has engendered in the department and the company.

Many issues were of particular concern to me during
those hearings, especially:

1. The bureaucratic
rigidity of senior DIMIA officials and their seeming lack of interest
in exploring the use of existing options to improve the situation of
detainees.

2. The insistence
of DIMIA that detainees caused their own problems; and

3. DIMIA’s
belief that a wealthy 1st world country such as Australia meets its
international obligations even if it only provides the minimum requirements.

I believe that all of these factors have led to the
provision of services, or lack of them, which have had a serious and unnecessary
effect on the health of detainees throughout the period from 1999 to the
present. This includes the health of those unlikely to obtain a visa,
in that they have been found as not engaging Australia’s “protection
obligations”.

1st point – DIMIA Officials
and available alternatives to institutional detention

One of the points that must always be considered is
whether a department is responsible for an action or direction, or whether
it is just implementing legislation and policy directions.

Even if a Department is implementing what government
wants, there are often different ways in which such outcomes can be achieved.
The legislation itself will often provide these.

Today I will mention a few areas where legislation allows
such flexibility.

Alternative accommodation

For example, there is scope within the Migration Act
to detain people almost anywhere. And yet:

• Individuals
  with serious illness were transferred to metropolitan hospitals for
  treatment, and then generally returned to detention centres;
  
• A child
  who developed a mental illness within a detention centre because of
  the violence he had witnessed was first transferred to another detention
  centre, then sent to foster care in the community. Eventually one of
  his parents was allowed to live with him; (Shayan Badraie); 2001. The
  whole family was finally granted a visa.
  
• On a few
  occasions, a family was transferred from a remote detention centre to
  a metropolitan detention centre because of better access to medical
  and other services.
  
  It is not mandated that they can only be detained in a prison-like detention
  centre. Yet alternatives were only really explored, albeit in minimal
  ways, subsequent to the problems that occurred with the UAMs in Woomera
  in January 2002 when serious riots occurred.

This group of unaccompanied minors was removed from
Woomera as a result of the concern expressed by the South Australian Department
of Human Services for their well-being. Some were subsequently granted
visas and placed directly under state protection; others have not been
granted visas, and when they turn 18 can in theory be returned to a detention
centre.

However, since those Woomera disturbances there has
been little change in the options available to others. In fact, there
are probably fewer options. From the health point of view, detainees are
harder to treat and place, because they have been in detention so long.

From the security point of view, they must be available
for removal even if there are no certain plans for removal.

This is the real difficulty with the system that we
have at present: the conflicting principles of best interests of the patient
and best security practice. In all the different arrangements that have
been made since early 2000, these conflicting principles have been evident.

For example:

• A woman
  was eventually admitted to psychiatric care on medical intervention,
  but DIMIA was unwilling to allow the next stage of treatment in a community
  setting. Intervention was required by state agency. [Sydney –
  NSW Public Guardian]. Family eventually received visa in late 2002.
  
• A similar
  situation occurred in another state [South Australia, early 2003, man
  now living in care of family in community. Intervention of Public Advocate]

Possibly other factors are involved in these
decisions, such as:

• Was DIMIA
  willing to pay the costs of such care? Evidence suggests that when some
  ‘unexpected’ situation arose, it is more likely to be DIMIA
  who pays the costs of care than ACM.
  
• Has ACM
  been reluctant to make guards available – it is expensive to provide
  24 hour shifts to guard one individual.
  
• Does the
  state have a suitable hospital bed available, especially when ACM guards
  are forever present? – this may be upsetting to other patients
  in the ward.

Overall, it is still security or costs which dominate
in these arrangements, not the health of the patient or the professional
skills of the doctors.

Bridging visas

There is also an option to allow people to live in the
community through the provision of bridging visas.

Bridging visas are routinely granted to all people who
arrive with a visa and then apply for a Protection Visa. The reason for
this, according to DIMIA, is that DIMIA already knows who these individuals
are: they have a name, they provided the required information to get a
visa therefore it is appropriate to let them live in the community.

Yet it seems from recent public information, that it
is possible for a child sex- trafficker to get a visa to bring a twelve
year old girl to this country and keep her a prisoner for 15 years to
work in the sex industry.

Even though the legislation does make it difficult for
some people in detention to obtain a bridging visa because of the no “final
determination” clause, many others could potentially access its
provisions. For instance:

• A child
  could apply for a Bridging Visa if a state welfare authority has certified
  that release is in the best interests of the child; and
• A child
  or adult could apply if a Department-appointed doctor certifies that
  the person has a health need or torture/trauma experience; [2]

However, in discussing bridging visas with DIMIA officers
at the December 2002 hearing, it became clear that this option was rarely
considered for people in detention. To HREOC this appeared strange because:

• It was
  aware of many cases of children with disabilities who had been in detention
  for a long time;
  
• Many adults
  and children had other health problems; and
  
• It was more
  than likely that many people had experienced torture and trauma prior
  to arrival in Australia.

So, even if we put aside the fact that many people were
arguably mentally unwell, only as a result of their prolonged detention,
it was obvious that bridging visas were not even being considered, for
many other detainees, in the limited circumstances originally envisaged
by Parliament.

This system was put in place by Parliament through legislation
and through regulations which have to be agreed by Parliament. Yet, there
seems to be a great reluctance to follow Parliament’s line.

DIMIA’s role:

On questioning DIMIA officials, HREOC counsel found
there was no evidence of any bridging-visa action being initiated by DIMIA
officials even though it is within the capacity of a detention centre
manager to do so. In discussing Bridging Visas for unaccompanied minors
with DIMIA, HREOC found that DIMIA had not been much involved in initiating
better outcomes for UAMs.

As far as children were concerned,
DIMIA thought that State welfare officials should make such assessments.

However, there was a Catch 22 –
sometimes State welfare departments were unaware of the existence of children,
much less their mental health status or any disabilities they might have.
In any event, state legislation in itself did not allow them access to
children in detention centres, unless DIMIA agreed.

And, on the many occasions when state welfare agencies
have become more involved – and this has
increased since January 2002 ---DIMIA will not accept the word of recognised
experts. The State reports, at best, will trigger a request
for a DIMIA-appointed doctor to make an assessment.

2nd Point –DIMIA’s
insistence that detainees caused their own problems;

It is in the area of mental health especially that DIMIA’s
attitude to at least the current detainee population is most obviously
negative. There is an automatic distrust of people who do not arrive in
an orderly fashion; from this follows that any mental “condition”
they subsequently manifest must be false. But “orderliness”
has never been a characteristic of refugees!!

For example

Witness Jews escaping the Nazi Holocaust, the many millions
seeking to escape Stalin’s oppression and the thousands fleeing
Vietnam after the fall of Saigon in 1975; these are some representative
samples of the manifest absurdity of this proposition.

Assuming that there is a sound Refugee Convention basis
for the acceptance by either DIMIA or the RRT of applications for a visa,
there was a sound reason for people to leave promptly.

There is often no alternative except to turn to a people
smuggler. From the statements of some asylum seekers, they have no idea
where they are going, only that the money they have will take them to
one place rather than another. Had a better option been available or feasible,
or been known to be available, would people not save their money and go
to it?

But the understanding demonstrated by DIMIA of asylum
seekers especially those who fail in their applications is minimal. During
the public hearing in December, DIMIA said:

the choice to bring the detention period to an end
lay within the capacity of the family and… they could choose at
any point from then on to return to their home country and so far that
has not been the case. [3]

This is a strange statement, given that:

• Some of
  the detainees are mentally ill and cannot come to a well informed judgement
  of what they should do;
  
• In many
  instances, it has been impossible for people to return to their home
  country, even with DIMIA’s help.

It is not logical to support a war against Iraq, but
for a government department to think it possible at the same time to return
to Iraq the very people who were forced to leave.

There is such a degree of contradiction and perversity
in what DIMIA says and does that the effect can be quite surreal. Speaking
of refugees, and the effect on them of detention itself, the DIMIA officer
stated on one hand:

Of course, some of these people have had a very
difficult and often perilous voyage to get to Australia and they may well
have other predispositions or issues in their life well before any thought
of coming to Australia which might also be impacting on their personal
circumstances whilst here.

Firstly, this statement says to me
that DIMIA believes:

• mental
  health problems are probably not caused by detention – people
  carry them with them.

Secondly, DIMIA also seems to be saying:

• ‘at
  most these people had an unpleasant voyage to Australia; this has contributed
  to their mental health problems’ and also:
  
• ‘they
  may have been losers in their own country. It has really got nothing
  to do with Australia.’

Yet DIMIA knows that it expends significant funding
on torture and trauma services under its settlement services for people
who arrived as recognised refugees under the “off-shore humanitarian
program”.

What is the difference? The fact that we carefully chose
one group and didn’t choose the other group?

I believe we all have a responsibility to point out
the lack of logic and the discriminatory attitudes that are being perpetuated
by these statements.

3rd Point - Provision of Bare
minimum of services

I don’t believe that detention centres have ever
been very generous in their provision of services to detainees. From the
detailed evidence provided to the Commission, this certainly appears to
be the case over the past few years.

Maybe this wouldn’t matter much if there was a
short maximum period of detention. It is when detention is for many months
and even years, that the greatest damage is done.

International conventions are rarely specific about the standard of services
that should be provided or the time by which this standard must be reached.
But in terms of children, the CRC states that detention must be the last
resort and must be for the shortest possible period.

As far as health and related services are concerned,
a country such as Australia should seek to provide the highest standard
that it can. The CRC speaks of taking positive action to restore and rehabilitate,
not just to hand out Panadol.

In its evidence to the Inquiry in December last year,
DIMIA’s position appeared to be that due to the large number of
detainees, services could only be basic:

“The provision of immigration detention services
is a complex and dynamic area of public administration. It is not possible
to predict the number of unauthorised arrivals that may come to Australia.
After all people simply do not book in. Nor is it possible to predict
the means of their arrival, the characteristics of the population that
arrives nor the validity of any claims they may make to remain in Australia”.
[4]

If numbers were relevant, many disadvantaged countries
would have a good excuse to provide the bare minimum. Yet, the Inquiry
heard evidence that even countries dealing with massive numbers of traumatised
people – such as in central Africa - were assessing the nutritional
intake of children.

I agree that the provision of services to a refugee
or asylum seeker population is complex. The way the system is structured
means that one is essentially running small separate towns in isolated
parts of the country.

But the services’ provider ACM was paid handsomely
to cope with this complexity. And DIMIA also, as a long-established department,
was paid by us taxpayers, to be efficient. I think Australia could easily
have provided a much better level of service to asylum seekers which would
have had a beneficial effect on their health.

Conclusion

There is much else to consider with the situation of
children in immigration detention. I believe that the problems of mental
health in particular affect both adults and children and that there must
be a solution.

After all, if detainees who have experienced both jail
and immigration detention, would rather be in a penal institution than
a detention centre, I think we need to be seriously concerned about this
policy’s implications.

1. March 24th, 2003, Hansard, Senate,
pp. 9705-9706

2. Migration Act S72; Migration Regulations 2.20(7) and
2.20(9)

3. Transcript of evidence, DIMIA, Sydney 5 December 2002,
p. 37

4. Transcript of evidence, DIMIA, December 2002, p.

Last
updated 7 October 2003