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National Inquiry into Children in Immigration Detention



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Submission to the National Inquiry into Children in Immigration Detention from

the Department of Justice, Victoria

10 May 2002

Dr Sev Ozdowski OAM

Human Rights Commissioner

Human Rights & Equal Opportunity Commission

GPO Box 5218

Sydney

New South Wales

1042

Dear Dr Ozdowski

RE: National Inquiry into Children in Immigration Detention.

Thank you for your recent correspondence and invitation to make a submission to the above inquiry.

As the Corrections system in Victoria does not provide services for children in immigration detention, it would appear that this Office has a limited to capacity to contribute. However, outside the boundaries of a formal submission I can provide you with information regarding recent developments in the management of immigration detainees within the prison system, and our approach to the management of children residing with a parent in custody.

Immigration Detainees in the Victorian Prison System

Whilst at various points in time, the Victorian prison system has accommodated immigration detainees at the request of the Commonwealth Government, a number of recent events over the last twelve months have served to question the basis on which such individuals are placed within the prison system and applied further restrictions to their entry into, and retention in, state prison facilities.

Whilst legislative provisions permit the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) to seek to transfer an immigration detainee from a Commonwealth Immigration Detention Centre to a state prison, on the general grounds of security and/or management concerns, the acceptance of such transfers is at the discretion of the State. Such discretion also includes considering requests from DIMIA for detainees who have been serving a criminal sentence to remain in prison custody, upon the expiry of their sentence, pending deportation.

As moved by the Victorian Minister for Corrections, members of the 2001 Corrective Services Ministers' Conference, which was representative of all states and territories, endorsed a resolution to the effect that immigration detainees will no longer be kept in the state prison system, where they are not serving a sentence or awaiting judgement on criminal charges, unless exceptional circumstances can be demonstrated.

It is certainly my view that detainees, who are not subject to sentence or remanded to face criminal proceedings, should not be accommodated within the state prison system without all other avenues having been exhausted. As such, the application of the 'exceptional circumstances' test is engaged by this Office in a most rigorous manner.

The narrowing of exceptional circumstances will also amount to a key provision within the Memorandum of Understanding that is currently being developed between my Office and DIMIA. However, at this point in time the provisions of the Memorandum of Understanding remain in a preliminary draft form, and are yet to be considered by the Minister for Corrections, or the Federal Minister for Immigration, Multicultural and Indigenous Affairs.

In relation to the services provided within the prison system for immigration detainees, upon entry into the prison system, detainees are managed in accordance with the operational policies and procedures engaged for all other prisoners within the system.

Children in Prison program

Within the Victorian Prison system, the Women's Prison region comprises of two facilities: the Dame Phyllis Frost Centre in Deer Park and HM Prison Tarrengower in Maldon. Both prisons operate a Children in Prison program, through which women prisoners can apply to have their children reside with them in custody. The program is only available for children up to school age and involves a thorough assessment process undertaken by both local Prison Management and my Office. The Children in Prison program operates with the aims of maintaining and encouraging parent-child relationships whilst a parent is in prison, particularly where infants and young children are involved. Since it conception in 1988, the Children in Prison program has resulted in over 150 children residing in custody, although there are limits as to how many children can remain within the system at any one time.

The program is partly governed by legislation, in the form of the Corrections Act 1986 and the Corrections Regulations 1998, but also through operational policy and procedures, including a Working Agreement with the Department of Human Services. The DHS Working Agreement is currently in the process of being updated with a number of new inclusions.

Whilst there are no restrictions on which prisoners can apply to have their children accommodate with them, the assessment process is extremely rigorous. Applications can only be approved by the Commissioner, following a recommendation from prison management and consultation with the Department of Human Services. The guiding principle in assessing applications is determining whether participation in the program would be serving the best interest of the child, which is then balanced with the need to ensure the security and good order of prison operations. Essentially, advice as to what constitutes the best interest of a particular child is required from the Department of Human Services. The Commissioner is then also required to consider factors, such as the applicant's recent behaviour in prison, reason for the request, program participation, nature of offending and whether the prison can provide suitable accommodation. All applicants are required to authorise the exchange of information between prison services and the Department of Human Services to ensure the merits of application can be appropriately considered and to allow for the ongoing communication of issues associated with the best interest of the child.

All applicants, including those which are successful are required to nominate alternative care givers to ensure that the child can be accommodated outside of the prison should consent be withdrawn or circumstances necessitate. Once approved, the Commissioner maintains the discretion to withdraw the child from the program at any time.

Local Prison Management determines the best accommodation for the prisoner and child to reside within the prison environment. Local prison guidelines have been developed which stipulate that the prisoner parent and child should not be placed in an area where the child is considered at be at risk with other prisoners, or in an area where the child is in danger of hurting itself or being hurt by equipment or the malfunctioning of equipment. Further, the prisoner parent and child should be placed in accommodation which would provide some separation from other prisoners. Where the accommodation unit is shared with other prisoners, the other prisoner residents should be notified of the pending placement of the child and agree to it.

Prisoners maintain responsibility to feed, cloth and care for the child, with baby formula and other nutritional requirements being able to be purchased through prisoner stores. Whist the prison provides some property such a cots, prams, high chairs, the prisoner parent may seek permission to purchase items such as furniture, linen, clothes and toys or have them sent to the prison. All property must adhere to Australian standards and it is the mother's responsibility to ensure compliance with accepted conditions of use.

With regard to medical and health care matters, as soon as possible after arrival at the prison, the child is seen and assessed by a General Practitioner to compile a complete medical history of the child and conduct a medical examination. The child's ongoing medical needs will then be attended to by external maternal and child health sisters and the prison based General Practitioner. The maternal and child health nurse is responsible for ensuring that the nutritional and development needs of the child are being met. Subsequent to the child's arrival at the prison, the nurse will also establish a list of basic foods and hygiene requirements and determine the frequency of consultations according to the child's age.

To promote the health and development of the child, provisions will be made to enable the child to move between the prison and outside environment to maintain other family relationships, and to participate in relevant and appropriate programs. The alternative caregiver, as nominated by the prisoner parent, often plays an important role in facilitating these arrangements. It is an expectation that all efforts are to be made to ensure that the child is not denied access to community programs and contacts that are consistent with the child's age and development. Where appropriate, the prisoner parent may accompany the child to activities outside of the prison where it would normally be expected that a parent attend.

Whilst in residing in custody, the parent maintains full responsibility for the care and management of the child. In turn, the prison service must maintain a duty of care in respect to the health and safety of any child, which may ultimate resort to the removal of a child if there are concerns regarding their health and safety. The decision to remove a child is made on the basis of the best interests of the child, but will generally only occur if the prisoner, for whatever reason, is not able to care for the child. The following situations could warrant the removal of a child from custody -

  • The child is being neglected to the extent that it has been deemed by a DHS child protective services worker to be in "need of care and protection.";
  • The prisoner's behaviour necessitates placement in security or observation cells;
  • The family court or Children's Court has ruled that alternative custody arrangements be made; or
  • The child becomes chronically ill, and on advice from medical practitioner appropriate medical treatment could not be maintained in prison.

As Commissioner, last month I endorsed a proposal to conduct an internal review of the current operations of the Children in Prison program. The review will seek to examine national and international trends in practice and guide future policy development in relation to the management of women and children residing in custody. The Review will also contain an examination of independent 'mother and child units', such as those currently in operation in the United Kingdom and New South Wales Correctional systems. Similarly, the concept of expanded consultation, such as the New South Wales system of engaging a "Mothers and Children Program Committee" to make decisions regarding children residing in custody on a full time basis will also be considered.

Whilst the time-lines for commencement and completion of the internal review are yet to be established, this office is currently in the process of developing a broader overarching framework for working with women in prison. The 'Women's Framework' will examine the specific profile and needs of the women's population and from this develop the key principles and operational impacts that should guide a correctional services response which acknowledges and addresses the specific needs of women prisoners.

I hope that this information has been of assistance.

Yours sincerely

Dennis Roach

Acting Commissioner

Last Updated 9 January 2003.