National Inquiry into Children in Immigration Detention

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Submission to National Inquiry into Children in Immigration Detention from

Ethnic Communities Council of Western Australia

1 Introduction

The Ethnic Communities Council of Western Australia commends the Human Rights and Equal Opportunity Commission and Human Rights Commissioner Sev Ozdowski in particular, for instituting the Children in Immigration Detention Inquiry.

According to Dr Ozdowski, "a detention centre is no home for a child; action needs to be taken to ensure the removal of children from detention is of the highest priority." Our Council strongly endorses this view of the Commissioner.

Australia's international reputation as a compassionate society which accepts and values cultural and religious diversity has been seriously tarnished by its mandatory detention policy, particularly in relation to children and women and the inhumane operations of its detention centres.

Subjecting children who are already traumatised to indefinite periods of detention in Australia is unconscionable and flagrantly breaches our international obligations. By incarcerating them in isolated, harsh, inhumane conditions and in the case of children, exposing them on a continuous basis to the violence and self harm resorted to by adult detainees, Australia has prolonged their suffering instead of alleviating it.

Several hundred children are at risk as noted in the March 2001 report by the Commonwealth Ombudsman on Immigration Detention Centres (IDCs):

"….in June 2000 330 women and 469 children were living in close association with 2,700 men, most of whom were unaccompanied. Women who do not have a partner, family friend or male relative accompanying them and their children, or young unattached children are at greater risk than single men or family units..."

Evidence taken... together with the appraisal of incidence reports indicates there were a worrying number of indecent assaults and threats towards unattached women and children who represent the groups at highest risk…."

Australia can ill afford to ignore the warning of UN High Commissioner for Refugees, Ruud Lubbers that "Recent events in Australian immigration detention centres are a stark reminder of the concerns of the international community regarding the detention of asylum seekers".

Whilst the Prime Minister's Pacific solution may have temporarily halted the flow of asylum seekers to Australia, it remains an expensive burden on taxpayers and is clearly not a fair, humane or effectual longer term solution either.

Australia should instead seek to; provide a speedy, compassionate and fair process for their applications for asylum, to be determined in Australia; address the major factors that cause people to flee their countries in search of refuge from persecution; and work on co-ordinated regional and international efforts to address it.

2 Our responses to the questions relating to the Inquiry's terms of reference are as follows:

2.1 How does Australia meet its commitments to child detainees under the Convention and other relevant standards?

From the limited data that is publicly available Australia is clearly not meeting its commitments to child detainees under the Convention and other relevant standards. Australia has blatantly ignored Article 37 of the Convention on the Rights of the Child, which allows States to detain children, as a measure of last resort, and for the shortest period of time in accordance with the exceptions stated at Guideline 3.

Children have been reportedly detained for up to 2.5 years, which is anything but short, considering the isolated and harsh environments of our detention centres. More importantly this has occurred despite the availability of a number of cost effective humane alternatives. Australia has resettled a number of accompanied and unaccompanied minors who landed on our shores by boats or under the Orderly Departure program, from Indo China in the 70s and 80s. Competent State child care authorities and community organizations which facilitated their resettlement clearly have the expertise to address the current situation in a culturally appropriate and compassionate manner.

According to UNHCR'S Guidelines on Asylum Seekers relating to children in detention "Unaccompanied minors should not, as a general rule, be detained." From media reports it would appear that opportunities for detained children to be released into the care of family members, who already have residency within Australia, have not been exercised. Worse still DIMIA have ignored the recommendations made by competent child care authorities for the removal of children (in some cases with their families) from detention centres despite threats to their physical and emotional well being and in some instances their very lives being at stake.

2.2 How are the "best interests" of children in detention decided?

The United Nations Convention on the Rights of the Child (CROC) was adopted in 1989 and ratified by Australia in December 1990. It makes the best interests of the child at least 'a primary consideration', and sometimes paramount, in actions and decisions concerning children. The principle of the best interests of the child is one of the fundamental principles of the Convention underpinning the interpretation of all children's rights and freedoms.

Our domestic Immigration laws directly contravene this by mandating the arbitrary and indefinite detention of children. Legislation has empowered the ACM officers who staff IDCs authority to strip-search anyone over the age of 10.

With respect to CROC, the best interests of the child have been ignored in terms of the following articles:

Child protection and custody - article 9.1 (States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child)
Continuing contact with one or both parents - article 9.3 (States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.) Articles 9.1 and 9.3 have been infringed in many instances as children have been separated from their parents against their will and denied regular direct contact with both parents, despite it not being in the child's best interests, for such contact to be denied.
Parental decision-making - article 18.1 (States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern). This article has also been violated as parents have been denied responsibilities for the upbringing and development of the child. Worse still the legal guardian, in the case of unaccompanied minors, i.e. the Minister for Immigration who has the primary responsibility for the upbringing and development of the child has not sought to ensure that the best interests of the child will be his basic concern. Evidence of this is documented elsewhere in this submission.

We understand that HREOC has the power to investigate complaints when CROC rights have been violated by or on behalf of the Commonwealth or a Commonwealth agency but only in the exercise of a discretion or in abuse of power, as CROC is scheduled to the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

We also understand that when Human rights complaints which cannot be resolved by conciliation do not proceed to a hearing and determination it may, after appropriate inquiry, be made the subject of a report to the Attorney-General for tabling in Parliament. HREOC however has no authority over the courts. Where legislation requires the right of the child to be set aside, HREOC can only advise the Parliament that the legislation should be amended and this situation needs to be reviewed.

The High Court's obligation to consider human rights in cases of discretionary administrative decision-making although CROC has not been implemented in Australian law, has been ignored by DIMIA as they have not exercised discretion in conformity with Australia's international treaty obligations.

2.3 Can children (including through their parents or guardians) participate in decision making concerning them?

This certainly does not appear to be the case in many instances.

2.4 How is the right to survival and development respected in detention facilities?

The right to survival and development is clearly not respected in detention centres as can be gauged by the medical and mental health community.

The Paediatrics & Child Health Division of the Royal Australasian College of Physicians (RACP), and the Faculty of Child and Adolescent Psychiatry of the Royal Australian and New Zealand College of Psychiatrists (RANZCP), are united in their call for appropriate assessment, intervention and support for children in Australian detention centres. They have called on the Government to undertake an independent, expert review of the situation at the earliest possible opportunity. They have expressed particular concern about these children, many of whom are born in detention, for their subsequent emotional development and for the effects of detention on the functioning of their families.

2.5 How is the child's right to family life ensured?

The child's right to family is certainly not ensured. There are reported cases of children being detained in detention centres with one parent whilst the other parent was resident in Australia under temporary protection visas.

In another instance a severely traumatized child was separated from his parents and family who were in detention, and placed with foster parents, in violation of Article 9 which grants children the right not to be separated from their parents against their will.

2.6 How are Convention rights reflected in the daily programs in place in detention facilities for children?

Conventions rights are being flagrantly violated given the following:

Children wear identity tags with a number and respond when addressed by that number;
Children live with their families in flat army-style barracks with little or no privacy;
Life is regimented for detained children. Random head counts occur at any time of the day or night, when the siren calls to muster.
Education focuses on English language classes, and English-speaking detainees often teach the material. Other subjects receive little attention. Attendance is not compulsory, and there is no formal curriculum with approval from the Education Department. This means that education is effectively interrupted for the duration of detention.
Media have reported a case of two children, aged six and eleven -who were locked in solitary confinement with their mother with no toilet facilities but a supermarket plastic bag.
A child with physical and intellectual disabilities who is detained in the Curtin Detention center has not been provided a wheel chair or assessed to determine what services should be provided for his well being. Reportedly he hs be provided a fortified stroller.

We are unable to provide more detailed comments given the paucity of information about daily programs. However it is clear from the limited information available that Convention rights are not being reflected in the daily programs in place in detention facilities for children. The evidence of ex teachers and nurses employed by ACM at the Hedland, Womera and Curtin Detention Centres, also confirm our views.

3 Recommendations:

To safeguard Australia's reputation and to fulfill its human rights obligations we recommend the urgent implementation of the following recommendations:

3.1 Abolish the policy of mandatory detention of asylum seekers particularly children in the interest of their mental and physical health and well-being.

3.2 If the policy of mandatory detention of asylum seekers is not abolished, unaccompanied children and families with children should not be detained for more than 6 weeks of their initial detention regardless of whether their health, security and identity checks have been completed. They should be released into the community using the "community services order" model that that is used in the correctional setting.

3.3 If children who are asylum-seekers are detained at airports, immigration holding-centres or prisons, they must not be held under prison-like conditions. All efforts must be made to have them released from detention and placed in other accommodation. If this proves impossible, special arrangements must be made for living quarters, which are suitable for children and their families.

3.4 Initiate action to ensure that children in detention enjoy the rights prescribed by the International Convention on the Rights of the Child, signed and ratified by Australia, particularly their right to:

family life, and to be with their parents unless separation is in their best interests.
the highest attainable standard of health.
protection from all forms of physical or mental violence, sexual abuse and exploitation. They also have the right to recover and be rehabilitated from neglect, exploitation, abuse, torture or ill-treatment, or armed conflicts.
to practise their culture, language and religion.
to rest and play.
to primary education, and different forms of secondary education should be available and accessible to every child.
appropriate protection and humanitarian assistance as an asylum seeker or refugee.
not be deprived of their liberty unlawfully or arbitrarily, with detention only in conformity with the law, as a measure of last resort and for the shortest appropriate period of time.
be treated with humanity and respect for their inherent dignity and in a manner which takes into account their age.
access to legal assistance and the right to challenge their detention.
not be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
privacy.
a standard of living adequate for physical, mental, spiritual, moral and social development.

3.5 Transfer the primary responsibility for the guardianship of children from the Minister for Immigration to the relevant state Minister where the detention centres are located. It is of great concern that Commonwealth state protocols to safeguard the rights and welfare of children in detention and unaccompanied minors are yet to be finalised except in the case of South Australia. These should be finalised as a matter of urgency.

3.6 The Immigration department should provide disaggregated data of children in detention by age, gender, disability, length of time that they have been held in each centre etc on a quarterly basis.

3.7 During detention children have the right to an education which should optimally take place outside the detention premises in order to facilitate the continuance of their education upon release. Distance education facilities should be used to ensure that appropriate syllabus based education is provided.

3.8 Provision should also be made for their recreation and play, which is essential to a child's mental development and to alleviate stress and trauma.

3.9 Children with disabilities should be assessed by the relevant statutory authority in the state and their needs met in accordance with Australian Disability Service Standards.

3.10 Managing detention centres on a 'commercial in confidence' arrangement is not appropriate and the running of these centres should be placed within the public domain to make their operations transparent and accountable.

3.11 Media and community organizations should be granted easy access to detention centres to ensure the transparency and accountability of their operations.

3.12 The appropriateness, and lawfulness of the use of force and restraint by Australasian Correctional Management (ACM) or Department of Immigration and Multicultural Affairs (DIMA) officers in immigration detention centres, are questionable. They should be investigated urgently to ensure that children in detention are not traumatised and to ensure that the policies, guidelines and practices meet with the requirements of Australia's international obligations.

3.13 HREOC should play a more prominent role in monitoring the operations of detention centres on a more regular basis.

4 Conclusion

Australia's treatment of asylum seekers violates international human rights standards and particularly those standards relating to children. Our Council does not condone the violence and destruction that eventuated in Detention Centres. But the mistreatment of asylum seekers, particularly children, as criminals without recourse to defend their human rights cannot be justified on any grounds. Worse still having spent millions of dollars to correct myths about refugees the government, can ill afford to erode the state of community relations in our community by reinforcing them, through its misleading and relentless campaign against asylum seekers.

Australia has not lost control of its immigration program nor is it under any serious threat of doing so. This is evident by Minister Ruddock's claim that, "Australia's ability to deliver the program on target and with the desired balance contrasts considerably with other migration countries such as Canada and New Zealand where the actual outcomes (visas granted) have varied from the announced programs by as much as 20 per cent under target in recent years." (Media Release 27/7/00)

The stigmatisation of asylum seekers and Refugees as "illegal immigrants", "queue jumpers, and "criminals", is xenophobic and dehumanising. Australia has provided refuge for hundreds of thousands of refugees after World War 2. The religion and colour of the people that are seeking asylum now are different to those whom we assisted earlier, but this does not make them any less worthy of our assistance.

Smaller and poorer countries are bearing a disproportionate burden of providing refuge to asylum seekers globally. Instead of seeking to avoid its global obligations by diminishing its human rights commitments, advanced civil democratic countries such as Australia should be leading the way in upholding & promoting human rights.

Australia's post War record of resettling displaced people and refugees earned it an enviable record as a nation which promoted and protected human rights of people who have suffered persecution and sought asylum in a third country. However its recent record in this regard has earned it the pariah status of being the only western nation that has a mandatory detention policy.

The detention of children is a serious concern and violates the Convention on the Rights of the Child, signed and ratified by Australia. Minister Ruddock's view that children in detention centres who self harm are indulging in attention seeking behaviour or "misbehaving" is most distressing.

The short and longer-term impact of detention to their psychological and social development and well being is well documented. It will undoubtedly compromise their ability to successfully resettle in an Australian community. This is of serious concern given that a substantial proportion of the asylum seekers eventually are granted temporary protection visas. With a view to salvaging its international reputation our Council strongly recommends that our recommendations be implemented as a matter of urgency.

Last Updated 9 January 2003.

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