National Inquiry into Children in Immigration Detention

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Submission to the National Inquiry into Children in Immigration Detention from

the National Legal Aid

Introduction

1. The provisions made by Australia to implement its international human rights obligations regarding child asylum seekers, including unaccompanied minors

2 The mandatory detention of child asylum seekers and other children arriving in Australia without visas, and alternatives to their detention.

Right to challenge the legality of detention - article 37(d) CRC

Access to prompt legal and other assistance - article 37(d) CRC

Alternatives to detention

3. The adequacy and effectiveness of the policies, agreements, laws, rules and practices governing children in immigration detention or child asylum seekers and refugees residing in the community after a period of detention

Case study

Discussion: conditions of detention

The effect of the temporary protection visa system

4. The impact of detention on the well-being and healthy development of children, including their long term development

5. The additional measures and safeguards which may be required in detention facilities to protect the human rights and best interests of all detained children.

6. The additional measures and safeguards which may be required to protect the human rights and best interests of child asylum seekers and refugees residing in the community after a period of detention

Conclusion

Introduction

National Legal Aid thanks the Human Rights and Equal Opportunity Commission for the opportunity to make the following submissions.

National Legal Aid is a coalition of 8 Legal Aid Commissions in Australia. Most State and Territory Commissions provide free advice and minor assistance to members of the community on all aspects of administrative law. Specialist advice and representation on rights and representation under the Social Security Act 1991, Migration Act 1958 and associated legislation is provided subject to a means and merit test. National Legal Aid solicitors from Northern Territory, Victoria, Western Australia and New South Wales have a long history of representation of asylum seekers both in the community and in detention.

National Legal Aid also has expertise in representing children and young people in a range of jurisdictions. The Family Court appoints legal aid solicitors as separate representatives for children involved in family law proceedings. National Legal Aid solicitors are also experienced in protecting the rights of children in international proceedings under the Hague Convention. Most of the Commissions around Australia have lawyers who specialise in representing children and young people in criminal proceedings and in juvenile detention.

National Legal Aid therefore is well placed to provide input into discussion on issues arising out of the Inquiry. This submission will focus only on parts with which we have particular expertise.

A summary of recommendations will precede the substantive part of this submission.

General comments

"Children, including refugee children, are the future. They need special protection and care to realize their potential." [1]

To comply with our international obligations Australia must provide a humane system whereby child asylum seekers can live in security while their applications for protection are being considered. It is not disputed that Australia must protect its borders, nor that it must check the health and character of people seeking to enter. However these obligations must not take precedence over the rights of children and asylum seekers. The Australian government must take into account that child asylum seekers may be fleeing from persecution, war or other traumatic experiences, they may be accompanied by parents who have suffered torture, trauma or serious discrimination or they may have travelled to Australia unaccompanied by a related adult. The system must be one which facilitates the child's growth and health, which enables them to recover in safety with their family or in a family environment, from past traumatic experiences. It must be one which provides them, once recognised as refugees, with the support to re-build their lives in Australia, to participate fully in the community and to be reunited with close family members. The system must not be one which further traumatises them.

Recommendations

In light of the information provided in the submission, National Legal Aid makes the following recommendations

Recommendation 1:

The Commonwealth Attorney-General's Department ensure that all management staff with responsibility for the care and protection of child asylum seekers (both in the Department of Immigration and Multicultural and Indigenous Affairs - DIMIA, and Australian Custodial Management ACM), are given training in international law obligations relating to children under their care.

Recommendation 2:

DIMIA consult with State authorities and key stakeholders in child protection to develop guidelines for determining whether it is in the "best interests" of the child to be released from immigration detention.

Recommendation 3:

DIMIA provide monthly statistics on the number of unaccompanied child detainees to State and Commonwealth child welfare authorities.

Recommendation 4:

That children on temporary release from immigration detention be automatically eligible for Medicare and financial assistance through the Asylum Seekers Assistance Scheme.

Recommendation 5:

Protocols be established with relevant Commonwealth and State authorities to facilitate the release of children from immigration detention centres either with their parents or if unaccompanied, into appropriate supervised care.

Recommendation 6:

In recognition of its responsibility for monitoring the Australian government's obligations under international law, the Commonwealth Attorney-General's Department provide funding to relevant agencies to provide legal advice and assistance to child detainees. Alternatively the Commonwealth Attorney-General could allow such work to be performed by the various legal aid commissions/offices under the agreements for the provision of legal assistance between the Commonwealth and each state/territory.

Recommendation 7:

Each child in detention, or each family grouping where there are children, be provided with an advocate to ensure that each child's rights to proper facilities for their health, education, recreation and rehabilitation are met.

Recommendation 8:

In recognition of the vulnerability of unaccompanied minors, legal assistance through the IAAAS scheme be provided by specialist legal contractors. These contractors be required to demonstrate their experience in assisting vulnerable children. Alternatively, given the expertise within National Legal Aid in relation to the representation of children, the agreements between the Commonwealth and each state/territory should permit the grant of legal aid in relation to the assistance of unaccompanied minors.

Recommendation 9:

The time limit for the lodgement of Protection Visa applications from unaccompanied minors be extended beyond the current limit of three days. The time limit be flexible to allow for the differing needs of unaccompanied children.

Recommendation 10:

In line with State juvenile justice policy, child detainees be provided with telephone access to interpreters and appropriate legal services without the need for these to be requested by the child.

Recommendation 11:

Along with state provisions for juveniles in detention, advice and information about a child's rights to complain to HREOC and Ombudsman should be provided at the point of detention.

Recommendation 12:

DIMIA should co-operate with relevant child welfare agencies to facilitate the provision of information about contacting HREOC and Ombudsman to children in immigration detention centres.

Recommendation 13:

That DIMIA in consultation with HREOC establish an official visitors program for children in immigration detention centres. Official visitors are to visit each detention centre at least every month

Recommendation 14:

No child asylum seekers should be detained in the remote centres at Port Hedland, Curtin or Woomera.

Recommendation 15:

Appropriate community-based accommodation should be established under the joint auspices of DIMIA and State child welfare agencies to provide stable housing for unaccompanied minors who are seeking asylum in Australia.

Recommendation 16:

Unaccompanied children should only be kept in detention for 48 hours to complete initial health and identity checks, including the "screening in" process. Any extension of this period should be obtained through a magistrate at a Children's Court.

Recommendation 17:

Thorough medical assessments of all detainees should be made on arrival including specialist psychological assessments.

Recommendation 18:

Detainees are to be informed of their rights to access appropriate health care, and not be prevented by staff or internal procedures from exercising these rights.

Recommendation 19:

Counsellors with special skills, such as those employed by the Service for the Treatment & Rehabilitation of Survivors of Torture & Trauma (STARTTS) should have regular access to immigration detention centres to assist with psychological assessments and treatment.

Recommendation 20:

DIMIA take a more active role in monitoring the provision of medical services for children by Australasian Custodial Management in immigration detention centres.

Recommendation 21:

DIMIA facilitate the involvement of relevant child welfare agencies in monitoring medical services to children in immigration detention.

Recommendation 22:

DIMIA in conjunction with relevant State agencies provide training for ACM management on recognised standards for physical and psychological care for children.

Recommendation 23:

DIMIA in conjunction with State educational authorities ensure that child asylum seekers are provided with educational opportunities comparable with other children through release from detention and access to community-based schooling.

Recommendation 24:

DIMIA establish and publish protocols to facilitate the entry of recognised NGOs to immigration detention centres

Recommendation 25 :

The regime which accords lesser rights to refugees who arrive unlawfully in Australia, should be abolished.

Recommendation 26:

That DIMIA recognise the need for a coherent, multidisciplinary approach to the management of refugee children, taking into account the particular needs of the child in relation to their stage of development, their mental and physical condition and their family situation.

Recommendation 27:

That where detention is absolutely necessary, asylum seekers and their children need to be able to carry on relatively normal lives. The detention environment could be modelled on community life which could be replicated through the economic activities of adults, workshops involving skills training and production and home gardening activities. Children should be provided with an opportunity for normal schooling so that they are exposed to the outside environment. Allowing access to the outside world is also a way of improving the situation for children.

Recommendation 28:

DIMIA and the Commonwealth Attorney-General's Department fund community education programs about refugees and asylum seekers, the conditions from which they flee, and Australia's humanitarian obligations under international law. Such programs should also address refugee children and Australia responsibilities.

1. The provisions made by Australia to implement its international human rights obligations regarding child asylum seekers, including unaccompanied minors

This submission will not separately address the specific provisions made by Australia to implement its international human rights obligations. This issue will no doubt be addressed by other submissions to the Enquiry.

The focus of the National Legal Aid submission will be to identify Australia's human rights obligations relevant to the Enquiry and focus on the ways in which Australia is in breach of these obligations. The specific legislative provisions concerning refugees and the protection visa determination process, and the legislation and policy in relation to detention will be detailed below, under other terms of reference.

AUSTRALIA'S INTERNATIONAL HUMAN RIGHTS OBLIGATIONS

The best interests of the child

Australia's overriding obligation to children is to act in their "best interests". This is set out in Article 3 of the Convention on the Rights of the Child which states

1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being…

The right to seek and enjoy asylum

All people including children have a universally recognised right to seek and enjoy asylum [2] and states are requested to cooperate with the United Nations High Commissioner for Refugees (UNHCR) in the performance of its function of providing protection to refugees. Australia, as a signatory to the 1951 Convention and 1967 Protocol relating to the Status of Refugees, has accepted its obligations in relation to the protection of refugees and asylum seekers.

The extent of Australia's international obligations in relation to child asylum seekers are found in various instruments including:

Convention on the Rights of the Child, 1989 (CRC);
Convention relating to the Status of Refugees, 1951
Protocol relating to the Status of Refugees, 1967

and other UN documents including:

Resolution of the General Assembly of the United Nations 428(V) adopting the Statute of the Office of the United Nations High Commission for Refugees 1950;
UNHCR Guidelines "Refugee Children-Guidelines on Protection and Care", 1994 (UNHCR Guidelines);
UNHCR Note on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, 1996 (UNHCR Note);
The U.N. Rules for Juveniles Deprived of their Liberty 1990 (UN Rules);
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) 1985;

Detention as a last resort

The starting point for the analysis of Australia's international obligations in relation to child asylum seekers is found in the UNHCR Note on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum in conjunction with the UNHCR Guidelines on Refugee Children. Both of these documents make recommendations about children asylum seekers. The UNHCR Guidelines state:

7.6 Children seeking asylum should not be kept in detention. This is particularly important in the case of unaccompanied children.

7.7. "States which, regrettably and contrary to the preceding recommendation, may keep children seeking asylum in detention, should, in any event, observe Article 37 of the Convention of the Rights of the Child, according to which detention shall be used only as a measure of last resort and for the shortest appropriate period of time. … All efforts must be made to have them released from detention and placed in other appropriate accommodation…Facilities should not be located in isolated areas where culturally-appropriate community resources and legal access may be unavailable.

Under article 37 of the CRC, Australia also has an obligation to ensure that "no child is subjected to torture or other cruel inhuman or degrading treatment" .[3] It must also ensure that all children in detention are treated with humanity and respect and in a manner which takes into account their age [4], and that they have a right to prompt legal and other assistance and the right to challenge the legality of their detention. [5]

Conditions of detention: Facilities and services for health and human dignity

The CRC provides generally that children asylum seekers are to receive "appropriate protection and humanitarian assistance" in the enjoyment of their rights [6]. Where a child is unaccompanied by family members they are to be "accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason" .[7]

The CRC also provides obligations in relation to health care. Article 24 states:

1) States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2) States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures…(f) [t]o develop preventive health care, guidance for parents and family planning education and services.

The UN Rules for the Protection of Juveniles Deprived of their Liberty also state that children deprived of their liberty shall have the right to services and facilities that meet all their requirements of health and human dignity. The UN Rules contain detailed requirements about accommodation, education, training, religion, recreation and medical care and make provisions for discipline, complaints and return to the community.

Various UNHCR documents interpret and discuss the above requirements and provide guidelines in relation to the detention of children asylum seekers. The guidelines indicate that:

child asylum seekers should not be detained in prison-like conditions, [8]
there needs to be a guarantee of meaningful activity and programs thereby promoting the health and development of the young person. [9]
every effort needs to be undertaken so that children are released from detention. [10]
they have a right to education, medical treatment, exercise and recreational facilities. [11]
they are to be housed separately from unrelated adults [12]
they are to have a reasonable amount of personal privacy. [13]

The particular vulnerability of unaccompanied minors is recognised with the additional recommendation that regular assessments of such children be made by the appropriate social welfare authorities.

Measures to promote physical and psychological recovery

Finally article 39 of the CRC obliges States Parties to:

…take all appropriate measure to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation , or abuse; torture or any other from of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health , self-respect and dignity of the child.

Australia has acknowledged the above-mentioned obligations imposed by international law by signing and ratifying the Refugee Convention, the 1967 Protocol and the Convention on the Rights of the Child. These instruments and the documents which interpret them, establish minimum standards for the care and protection for child asylum seekers, however these standards are not being met in current legislation, policy and practice.

Recommendation 1:

The Commonwealth Attorney-General's Department ensure that all management staff with responsibility for the care and protection of child asylum seekers (both in the Department of Immigration and Multicultural and Indigenous Affairs and Australian Custodial Management), are given training in international law obligations relating to children under their care.

2. The mandatory detention of child asylum seekers and other children arriving in Australia without visas, and alternatives to their detention.

MANDATORY DETENTION

The Migration Act 1958 provides for mandatory detention of all people who do not have valid visas - "unlawful non citizens" [15]. There is no distinction in the law between adults and children.

Unlawful non-citizens are detained in the following circumstances:

at the time of an unlawful arrival by air or sea (i.e. when they do not have a passport and valid visa);
after an unlawful arrival and where they have been detected by immigration authorities in the community (eg ship jumpers)
after a lawful arrival (with proper documents) and their visa is cancelled or has expired.

People remain in detention until a visa is granted or until they leave Australia. They may leave voluntarily or they may be removed or deported.

There are a significant number of people who arrive unlawfully who are detained and who are not permitted to apply for protection. Additionally there are those who applied for protection and exhausted all their legal remedies. The Migration Act indicates that these people are to be removed from Australia as soon as practicable [16]. The practicalities of this procedure cause concern because people in this situation (including the children among them) are waiting in detention for DIMIA to arrange for their removal. In the case of people from Iraq and Afghanistan or others who may be stateless, this detention may be extremely lengthy. National Legal Aid does not have access to detailed information about such people. However there have been reports of persons who have been detained for over a year after their legal remedies have been exhausted, as a result of the difficulty of returning them to their home country.

The Migration Act provides for the release of people who meet the definition of an "eligible non citizen" [17]. People who arrived in Australia lawfully are "eligible non citizens" [18] and if detained may be released and granted Bridging Visas in a range of circumstances. Generally they are making "acceptable arrangements" to leave Australia or are waiting on the outcome of an application for another visa (eg protection visa, spouse visa etc) .[19]

For those who have arrived in Australia unlawfully it is much more difficult to be granted a Bridging Visa and released from detention. If they are asylum seekers (as are most of those who arrive unlawfully) they must meet additional criteria [20] before they can be released. For example, the Migration Regulations provide for the release from detention of asylum seekers under 18 where:

their protection visa application has not been finally determined ;
a child welfare authority certifies that release from detention is in the best interests of the child;
the Minister is satisfied that there is an arrangement between the child and an Australian citizen or permanent resident for the care and welfare of the child and those arrangements are in the best interest of the child, and the grant of a visa to the child would not prejudice the rights and interests of any person who has custody, guardianship of , or access to, the child .

The initiative for the release of a child under these provisions may come from the child, a representative or community group, or from the DIMIA. Departmental policy [23] states that where a child is detained with his/her parents it is assumed that it is in their best interests to remain with the parents [24]. The majority of children in detention are in the care of their parents and therefore according to this policy would be expected to remain with their parents in detention. This appears to be the practice of DIMIA.

The same policy document states that where there are unaccompanied minors in detention, departmental officers must contact the relevant State/Territory Child Welfare Authority and give it information about the child's background, situation in the detention centre (eg whether there are other family members or guardians with them) and how long the application is likely to take to process. It is not clear whether DIMIA does follow its policy and contact the state welfare authority.

In addition in the case of unaccompanied minors there appear to be significant practical impediments in making arrangements for the care of the child outside of detention. There may be jurisdictional questions between the state and the Commonwealth with the Minister for Immigration being the guardian of non-citizen children in Australia .[25] It is also not clear what procedures are in place in each of the States. National Legal Aid is not aware of whether any unaccompanied minors have been granted a Bridging Visa and released from detention under this provision.

Asylum seekers (including children) may also be granted Bridging Visas where they cannot properly be cared for in a detention environment [26] . For those who have been in detention for six months or more after making their protection visa application, and who have not received a primary decision on that application, the Minister may personally determine that it is in the public interest to release them [27] . National Legal Aid is not aware of whether Bridging Visas have been issued in these circumstances.

Even if a child were to be released under the above provisions, they would encounter a whole new series of hurdles. Significantly, children who are released from detention on Bridging Visas will not have access to Social Security payments [28] and Medicare [29] . Some may be eligible for limited funding under the Asylum Seekers Assistance Scheme. Those children seeking to attend school may be required to pay fees at overseas student rates.[30] The DIMIA policy document states:

It is important that all parties involved in the process are aware that [the Department] does not take any responsibility for costs incurred by the applicant after his/her release from immigration detention .[31]

What is certain is that vast majority of children including unaccompanied minors have remained in detention until their protection visa was granted and that the provisions available for the release of children asylum seekers are not routinely implemented.

National Legal Aid does not dispute that it is in the child's best interests to remain with their parents. However it would be our position that the child's best interests are better served by release with his or her parents into the community. Legal Aid does not support the recent measures whereby children and their mothers were released from Woomera given that this resulted in the separation of children from their fathers and may have increased the stress to both the child and his/her parents.

By having a regime which implements mandatory detention of child asylum seekers and which does not have effective methods for the release of child asylum seekers into the community, Australia is arguably in breach of article 37(b) of CRC which indicates that detention of children should be used as a measure of last resort and for the shortest possible time. Australia is not following the guidelines set down by the UNHCR recommending that child asylum seekers, particularly unaccompanied minors, should not be detained.

Recommendation 3:

The Department of Immigration and Multicultural and Indigenous Affairs provide monthly statistics on the number of unaccompanied child detainees to State and Commonwealth child welfare authorities.

Recommendation 4:

That children on temporary release from immigration detention be automatically eligible for Medicare and financial assistance through the Asylum Seekers Assistance Scheme.

Right to challenge the legality of detention - article 37(d) CRC

Under the October 2001 amendments to Part 8 of the Migration Act in relation to judicial review, the decisions to detain a person and the decision to refuse a visa, are "privative clause" decisions [32] and as such may not be open to any review by any court .[33]

Additionally where an asylum seeker applies for a Bridging Visa on the basis that they are an "eligible non citizen" and that application is refused it is arguable that there is no merits review of the decision to refuse the Bridging Visa. [34]

In considering whether the detention of a person is "arbitrary" (and therefore in breach of article 9 of the International Convention on Civil and Political Rights), the question is not solely whether that detention is contrary to law. Other elements such as whether the detention is "appropriate, proportionate and necessary" are relevant.

The Human Rights Committee has found that the Australian government's immigration detention of an adult asylum seeker (under different Migration Act provisions) was "arbitrary" [35] In making that decision the Committee stated:

9.4. The Committee observes however, that every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individual, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal.

In making the decision in A's case the Committee took into account the fact that there was judicial review available to A but found that that option was 'merely formal'. There was no real review of the decision to detain over and above whether that decision was in accordance with Australian law and no possibility for the court to order release.

In the current legislative regime under which children asylum seekers are detained, the decision to detain is clearly not reviewable by any court. It is therefore arguable that Australia is in breach of article 37(d) of the CRC as children are not able to challenge the legality of their immigration detention. Additionally there is no possibility for the review on the basis of whether the detention is appropriate or necessary. It is therefore arguable that children asylum seekers in Australia are detained "arbitrarily" as interpreted by the Human Rights Committee. This also constitutes a breach of article 37(b) of the CRC which provides that no child shall be arbitrarily deprived of his or her liberty.

Access to prompt legal and other assistance - article 37(d) CRC

Those detained because they have arrived unlawfully in Australia are subject to strict limitations on the ability to access immigration advice and assistance - either from the Department of Immigration or an independent source. Section 256 of the Migration Act provides that only where a detained person requests such information or assistance they shall be given the following - visa application forms, reasonable facilities for making statutory declarations and reasonable facilities for obtaining legal advice or taking legal proceedings .[36]

There is no requirement under the Migration Act other than that above, to give a person an application form for a visa, to give advice about whether a person may apply for a visa, to give a person an opportunity to apply for a visa, to allow a person access to advice in connection with application for a visa. [37]

The operation of these provisions is particularly relevant in relation to asylum seekers arriving unlawfully. Boat arrivals and others arriving unlawfully are interviewed about the methods of arrival and about reasons for coming to Australia. It is at this interview where a decision is made whether the person is "screened in" and therefore allowed to apply for asylum - or "screened out" where they are kept in detention until they can be removed from Australia.

National Legal Aid is unable to comment on the access of those who are "screened out" to legal advice and information. It appears that in many instances those people who are screened out have no access to independent legal advice and it is not clear whether s256 applies or is applied to such people.

Those who are "screened in" are provided with a government funded migration agent to assist them with their Protection Visa application. The scheme under with this assistance is provided, the Immigration Advice and Assistance Scheme (IAAAS), is funded directly by DIMIA. IAAAS funding commenced in 1995.

Funding for Commonwealth law matters is provided to each of the legal aid commissions/offices under agreements for the provision of legal assistance between the Commonwealth and each state/territory. Those agreements provide strict guidelines for the kinds of matters for which legal aid may be granted. Since 1 July 1998, legal aid for migration applications at the primary (DIMIA) and review (RRT) stages is no longer available under these Commonwealth/State agreements. The IAAAS therefore now represents the only publicly funded access to legal representation to people in detention. [38]

Under the IAAAS, DIMIA enters into contracts for the provision of application assistance to asylum seekers in detention with successful tenderers, usually for two years. There are serious limitations on the efficacy of the IAAAS scheme in relation to the visa applicants. These include:

The level of funding per case indirectly encourages advisers to provide a minimum service. Rushed or limited time affects the quality of the preparation of the application and may cause apparent credibility problems. Many contractors are now private agencies who must make a profit from the service provided. This further limits the services provided to applicants.
No funding is provided to follow up such matters as applications for Bridging Visas, translations of relevant documents, obtaining medical reports, investigation into and complaints about conditions of detention (eg mistreatment of detainees, inadequate health care) or delays in granting a visa once a favourable decision is made.
The contracts set unreasonable time limits for the provision of services to detainees. For example IAAAS contractors at detention centres such as Woomera and Port Hedland have to prepare three protection visa applications per day. This is of particular concern when acting for children who may have little understanding of the legal system and who need time to build up a trusting relationship with their representative.
There is no payment under the IAAAS for attendance at Refugee Review Tribunal hearings. While the RRT hearings are meant to be informal in many cases it is only by way of hearing that adverse information is provided for comment. A child attending hearing without representation cannot be expected to understand the legal implications of adverse material. The fact that RRT hearings for detainees at remote detention centres are often conducted by video conferencing, would further disadvantage children.
There is an inherent conflict of interest in the decision maker -DIMIA- also choosing and funding the agents who provide the protection visa application assistance. The perception of conflict should be avoided by handing over all aspects of the administration of the IAAAS contract to another department or agency.

There are additional practical problems of providing adequate legal assistance to applicants in detention centres, which are often in isolated areas and where communication with detainees is restricted. Where a lawyer cannot visit a client personally they must communicate by phone or facsimile. At all the centres, detainees frequently experience problems obtaining access to telephones and facsimile machines. This is compounded by the need for the ready availability of competent interpreters to assist the communications. Many detainees are forced to rely on other detainees whose grasp of English is far from adequate to communicate with lawyers on their behalf. The importance of detainees being able to communicate with their legal representatives in confidentiality and in an unconstrained manner is often not acknowledged by staff at the isolated centres.

Finally, there does not appear to be any consideration given by DIMIA to ensuring that IAAAS providers having expertise in dealing with children. Children who are accompanied by family members may have claims of their own to protection. Unaccompanied minors by virtue of their age may have difficulty in expressing any claims to protection and providing relevant information to those claims. Those who represent child asylum seekers need particular expertise in interviewing children, and understanding and providing submission on their particular protection needs.

Recommendation 10:

Child detainees be provided with telephone access to interpreters and appropriate legal services without the need for these to be requested by the child.

The Human Rights and Equal Opportunity Commission and Commonwealth Ombudsman

The Human Rights and Equal Opportunity Commission (HREOC) has been given the responsibility for the protection of children under the Convention on the Rights of the Child (1989). However the provisions of the Migration Act limit the HREOC's access to asylum seekers in detention prohibiting the Commission from initiating contact with a detainee unless that person has already made a written complaint to HREOC [39]. Similar provisions apply to the Commonwealth Ombudsman .[40] This is quite clearly absurd when considering the ability of child asylum seekers to make written complaints in English, to authorities which they may not know exist, about rights they may not know exist.

ALTERNATIVES TO DETENTION

National Legal Aid is aware of a number of alternative models to mandatory detention of asylum seekers. These include forms of open detention, community release with various conditions, and home detention. The Refugee Council of Australia has prepared a detailed paper on this issue [41]. A paper prepared by the Edmund Rice Centre for Justice and Community Education also discusses various alternatives to detention. [42] National Legal Aid would endorse any of the alternatives suggested by the above organisations, as long as that model includes procedures and facilities which comply with Australia's international human rights obligations.

The detention of children in New South Wales-A Comparison

There is a stark contrast between the rights of children in detention for criminal offences in Australia and those in immigration detention. It is sadly ironic that children who have committed no crimes and who have come to Australia to seek protection from persecution have fewer rights than those who have committed crimes.

The following is an outline of the legislative and monitoring framework for detention of children in New South Wales. This outline is useful to contrast with the situation of children in immigration detention and to demonstrate possible provisions which may be implemented within the migration jurisdiction, to ensure a higher level of compliance with Australia's human rights obligations.

The legislative framework

Under NSW law, only those young people who offend, or who are apprehended for allegedly doing so, run the risk of being placed into a detention centre.

The detention of children in NSW is governed by legislation, including the Children (Criminal Proceedings) Act 1987, the Children (Community Service Orders) Act 1987, the Children (Detention Centres) Act 1987 and the Children's Court Act 1987, various regulations, departmental policies, internal guidelines in detention centre procedures manuals, and working instructions for detention centre staff. Together these provide the framework and underlying principles under which NSW juvenile detention centres operate.

Underpinning this framework is the understanding that detention is the most extreme form of intervention for children who offend. [43] Whilst this may not always be applied in practice, in theory at least it is recognised that:

'The particular characteristics of children, for example, their heightened vulnerability to physical and emotional harm and different perceptions of time, make detention a more confronting and difficult experience for them than for adults. Institutional environments, such as juvenile detention centres, can harm some children, with serious social and developmental consequences'.

Increasingly, efforts are being made in NSW to ensure that detention is used as a sanction of last resort for children who offend, and for those who are incarcerated, that detention centres operate in accordance with Australia's international obligations under the Convention on the Rights of the Child (CRC), the Beijing Rules and the UN Rules for the Protection of Juveniles Deprived of Their Liberty. These are discussed in more detail below.

Legislative principles underpinning the NSW juvenile detention centre system

The CRC articulates universal values and principles in relation to how children should be perceived and treated and establishes specific rights for children who are alleged to have infringed penal law.

As a signatory to the CRC, the Australian Government is obliged to ensure that every child within its jurisdiction is able to exercise these rights fully, regardless of the child's national or ethnic origin (Article 2).

In New South Wales, principles concerning the treatment of children who are alleged to have infringed NSW criminal laws are contained in the Children (Criminal Proceedings) Act 1987, which outlines the processes for dealing with child offenders and the penalties that may be imposed, and the Young Offenders Act 1997, which establishes a range of alternative interventions for young people who offend. Sections 3 and 7 of the Young Offenders Act were drafted with specific reference to the CRC.

Both pieces of legislation contain guiding principles which are consistent with the provisions of the CRC, for example:

Section 6: Children (Criminal Proceedings) Act 1987: Principles relating to the exercise of criminal jurisdiction:

A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.

Section 7 of the Young Offenders Act 1997, which includes its guiding principles:

(a) The principle that the least restrictive form of sanction is to be applied against a child who is alleged to have committed an offence, having regard to matters required to be considered under this Act.

(b) The principle that children who are alleged to have committed an offence are entitled to be informed about their right to obtain legal advice and to have an opportunity to obtain that advice.

(c) The principle that criminal proceedings are not to be instituted against a child if there is an alternative and appropriate means of dealing with the matter.

(d) The principle that criminal proceedings are not to be instituted against a child solely in order to provide any assistance or services needed to advance the welfare of the child or his or her family or family group.

(e) The principle that, if it is appropriate in the circumstances, children who are alleged to have committed an offence should be dealt with in their communities in order to assist their reintegration and to sustain family and community ties.

(f) The principle that parents are to be recognised and included in justice processes involving children and that parents are to be recognised as being primarily responsible for the development of children.

Such statements of principle are absent from the legislation or policy documents governing the detention of children in immigration detention.

The right to be heard: Article 12

With respect to children who are involved in the legal process, Article 12 of the CRC is of particular significance. It requires State Parties to:

' … assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child are given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or appropriate body, in a manner consistent with the procedural rules of national law.

This principle has been incorporated into NSW juvenile justice legislation through sections 6(a) of the Children (Criminal Proceedings) Act and 7(b) of the Young Offenders Act 1997.

In recent years, several inquiries have examined various forms of children's advocacy and identified a number of features for effective children's advocacy.[45]

Consistent with the recommendations from these inquiries, in NSW, legal advocacy for children is increasingly being provided by specialist children's lawyers. Practitioners are guided by the Law Society's 'Representation Principles for Children's Lawyers' (October 2000).

Prompt access to legal advice: Article 37(d)

Additional rights are conferred by the CRC on children who are deprived of their liberty. Article 37(d) provides that:

Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

This article must be read in conjunction with Article 12 as well as the primary principle that all administrative actions must be in the best interests of the child (Article 3(1)).

This right is recognised in the NSW juvenile justice centre policy and procedures manuals.

In NSW, children on remand or serving a sentence have access to legal advice through the visiting legal service of the Legal Aid Commission of NSW (the Commission). The NSW Department of Juvenile Justice provides funds to visit each juvenile justice centre on a weekly or fortnightly basis. This means that children are able to apply for prompt review of decisions affecting them and their families.

In the greater metropolitan area of Sydney, the visiting legal service is provided by solicitors who work in the Children's Legal Service (CLS) of the Commission. The establishment of CLS was supported by Recommendation 270 of the HREOC and ALRC Report No 84: Seen and heard: priority for children in the legal process (1997). The CLS is a specialist section of the criminal law branch, which specialises in representing children in the criminal jurisdiction.

Detainees can ask the case manager at the juvenile justice centre to register their request for legal advice or ask to see the solicitor on the day that they are at the centre. The advice is given in private and is subject to legal professional privilege.

Solicitors provide advice on a broad range of criminal law matters and referrals to appropriate services for non-criminal matters. Any urgent requests for advice are telephoned to the solicitor responsible for visiting the particular juvenile justice centre. Detainees can also contact the Legal Aid Youth Hotline (1800 10 18 10) for urgent advice.

As well as court-related matters, solicitors can assist young people with complaints about procedures or discipline at the juvenile justice centre, and advocate during administrative procedures, such as transfers between centres.

The need to expedite matters where a child is in custody is enshrined in s.9 of the Children (Criminal Proceedings) Act 1987.

(1) If criminal proceedings are to be commenced against a child otherwise than by way of summons or attendance notice, and the child is not released on bail under the Bail Act 1978, the child shall be brought before the Children's

Court as soon as practicable.

(2) Without limiting the generality of subsection (1), a child who is not released on bail under the Bail Act 1978 shall, for the purpose of making a further determination of bail, be brought before an authorised justice:

(a) no later than the next day, or

(b) if the next day is a Saturday, Sunday or public holiday no later than the next day that is not a Saturday, Sunday or public holiday, if, within that time, the child has not been brought before the Children's Court.

In reality this may mean a delay of three days as there is no provision for children arrested immediately before or after the weekend.

The Migration Act, on the other hand, does not contain a similar requirement. Whilst the Act contains procedures for the temporary release of children from detention pending final determination of their application, this does not apply to their parents. As a result, most children remain in immigration detention with their parents for substantial periods of time.

Detention as a measure of last resort: Article 37(b)

Both the CRC and the Beijing Rules provide that the detention of young offenders pending trial should be a measure of last resort and for the shortest appropriate period of time.

While there is no doubt that NSW has adopted more punitive approach to young offenders in recent years, fortunately mandatory detention does not as yet exist in this State.

In NSW the principle of detention as a matter of last resort is at the foundation of its juvenile justice legislation. At the heart of this is the recognition of the detrimental effects of detention on young people.

The desirability of non-custodial options for young offenders is also firmly stated in section 6 of the Children (Criminal Proceedings) Act and section 4 of the Children (Detention Centres ) Act 1987, an object of which is the need to ensure that 'persons on remand or subject to control take their places in the community as soon as possible as persons who will observe the law'.

Indeed, as a result of concerted efforts by the Commission and the NSW department of Juvenile Justice, the numbers of young people in detention in NSW has been reduced over the last five years by 40%.

As outlined earlier in this submission, detention of undocumented child asylum seekers is a measure of first resort and it is extremely difficult for children to gain release from detention.

Treatment of children in detention: Articles 37 and 40

Articles 37 and 40 of CRC set out a number of protections for every child deprived of their liberty. In particular, the CRC states:

'every child deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons of his or her age.'

State Parties must also take into account 'the desirability of promoting the child's reintegration and the child's assuming a constructive role in society'.

In order to comply with the requirements of the CRC and the UN Rules with regard to the provisions of service and facilities for juveniles in detention, National Quality of Care Standards (QOC standards) and Design Guidelines were developed for the juvenile detention system under the auspices of the Australasian Juvenile Justice Administrators forum. These standards and guidelines were endorsed by all Australian States and Territories in 1996. They apply exclusively to juvenile detention centres and provide guidelines for programs, services and legal processes provided in detention. These standards cover issues relating to alcohol and other drug services, recreation, education, employment and training programs, health services and other issues.

In NSW, there exists a set of guidelines for complaints by children in juvenile detention centres. They provide for comprehensive recording, review and appeal mechanisms. [46]

Young people in detention have access to several external complaint handling agencies including Official Visitors, the Ombudsman, the Anti-Discrimination Board, the Independent Commission Against Corruption, the Judicial Commission, the Privacy Committee and the Legal Services Commissioner.

Official visitors

Each juvenile justice centre has an official visitor program that provides for random visits by a nominated community member. Official Visitors are appointed by the Minister. The Visitors provide independent monitoring and evaluation of residential conditions and services and are expected to visit each centre at least every two weeks. They also facilitate the protection of the human rights of detainees and register and assist in the resolution of grievances. Official Visitors have relatively free access to the records and personnel of the departments for the purpose of undertaking inquiries. Official Visitors prepare written reports to the Minister every six months.

The NSW Ombudsman

The NSW Ombudsman also has responsibility for monitoring juvenile justice centres. Detainees are able to make complaints directly to the Ombudsman

The NSW Ombudsman oversees the operation of Official Visitors indirectly in that complaints not resolved via the Official Visitor are often directed to the Ombudsman's Office, both by complainants and the Official Visitor themselves. The Ombudsman's Office also takes part in training activities for the Official Visitors. The Ombudsman's Office provides a limited outreach service to adult correctional centres and Juvenile Justice Centres. These centres are usually visited at least twice a year.

Section 12(3) of the Ombudsman Act 1974 places a legal obligation on public authorities or other people supervising inmates to take all necessary steps to facilitate the making of complaints and the forwarding of unopened written matters to the Ombudsman whenever a person in custody informs such a person that he or she wishes to make a complaint to the Ombudsman.

It is the practice of the Department of Juvenile Justice to allow detainees to telephone the Ombudsman's Office. In the 1997-98 financial year the Ombudsman received 2683 complaints relating to prisons and Juvenile Justice Centres.

Detainees are able to complain about detrimental treatment received as a result of an earlier complaint to the Ombudsman.

The Ombudsman is required to advise the complainant of the reasons for any determination made in relation to a written complaint. The majority of complaints from inmates are dealt with informally. Where a formal investigation is initiated and "wrong conduct" found, a report is made to the head of the public authority, the relevant Minister and, except in unusual cases, the complainant. Complainants are always informed of the Ombudsman's determination and the reasons for the decision.

NSW Anti-Discrimination Board

Juvenile detainees can complain directly to the President of the Anti-Discrimination Board about any allegation of harassment, discrimination or vilification. All complainants have access to a toll free telephone number to contact the Board. Officers will also visit a detainee to discuss a complaint if necessary.

Children in immigration detention

The comprehensive system put in place in New South Wales for access to legal assistance and investigation of complaints is in marked contrast to the lack of assistance for children in immigration detention. Children are often held incommunicado for months without access to legal advice. When legal advice is provided, it covers only "application assistance" and there is no specific provision for advice and assistance about being released from detention or the conditions within the detention centre. DIMIA does not provide information or facilitate access by detainees to rights monitoring bodies and it has developed no principles for the protection of the legal rights of child detainees.

3. The adequacy and effectiveness of the policies, agreements, laws, rules and practices governing children in immigration detention or child asylum seekers and refugees residing in the community after a period of detention, with particular reference to:

the conditions under which children are detained;
health, including mental health, development and disability;
education;
culture;
guardianship issues; and
security practices in detention.

CASE STUDY

This case study, prepared by one of the Legal Aid Commission of NSW's Social Workers, highlights the negative impact of detention on a family with a disabled child, as well as problems the family encountered once released into the community with a Temporary Protection Visa.

Introduction

The family concerned comprises the father and mother, their primary school age daughter and a son and another daughter who are both toddlers. The family, who are from a religious minority, fled from a Middle Eastern country early in 2001, having experienced torture, persecution and marginalisation over a prolonged period. They travelled by boat from Indonesia to Australia and on arrival were sent to Woomera Immigration Detention Centre (IDC). After several weeks the family was transferred to the Villawood IDC. DIMIA eventually accepted their claims to refugee status and the family was granted a Temporary Protection Visa later in 2001.

Whilst the family was detained at Villawood IDC, a legal officer from the Legal Aid Commission of NSW assisted the family with their application for a Protection Visa. The legal officer had grave concerns about the health and welfare of this family, in particular the younger daughter who had serious and undiagnosed disabilities. The social worker accompanied the legal officer on a visit to the Villawood IDC in mid 2001, and interviewed the father via an interpreter. The social worker subsequently had extensive telephone contact with the family, linking them to a range of support services after their release to the community. A follow up interview with the father, mother and older daughter was conducted via an interpreter at the family's home some months after their release.

During the interview at the Villawood IDC, the father spoke at length about the family's ordeal in transit to Australia and whilst in detention. He presented as suffering from a high level of trauma and emotional stress. His distress about his own experiences was compounded by his fears and sense of powerlessness concerning the health and welfare of his children, especially his younger daughter. During the follow-up interview, it was apparent that the family members were still suffering the after effects of their experience in detention and at times found it very difficult to talk about particular aspects of it.

Health & nutrition / prevention, treatment & accommodation of disabilities

The religious minority to which this family belongs is not recognised by the regime in their home country. Members of this minority group are not entitled to a medical book, which allows "official citizens" access to medical services. The younger daughter was born with a medical condition that was not diagnosed in the home country, and even in Australia a definitive diagnosis has been difficult to make. The child had a breathing disorder and an organic brain abnormality, which impacted on her growth, physical mobility, co-ordination and sensory development.

The father explained that during the six-day sea voyage from Indonesia to Australia, the family was confined in a small area in the boat's hold, adjacent to the engine room. Thick diesel fumes affected all the passengers and exacerbated the younger daughter's breathing disorder, which did not improve after they landed in Australia. For many months her parents had to take it in turns to stay awake at night to check on her breathing and reposition her when it slowed significantly or almost stopped. Many times her lips turned blue and they feared she would die in her sleep. Consequently, both parents suffered from sleep deprivation over a prolonged period.

Conditions at the Woomera IDC

The parents described their accommodation at Woomera. The five family members were allocated a small cubicle about the size of a railway compartment, with bunk beds. Instead of a door there was a curtain that did not reach the ground and would cover an adult of average height from about the neck to the knees. There was therefore very little privacy or soundproofing. There were six such compartments in a small, enclosed area. Being winter, it was very cold. The building was poorly insulated and there was only one small heater between the six families. There were constant fights over who would have the heater near their compartment. To keep warm, families huddled together on their beds wrapped in blankets.

The father told the social worker that a member of staff at the IDC had told detainees that if they needed medical assistance, they should come and ask for it at the medical office. At about 2am one very cold, wet night, the younger daughter's breathing became almost imperceptible. Her lips turned blue and she became limp and cold. Her father said he wrapped her in some bedding and carried her across an open area to the building where the medical office was located. Despite the father's protestations, the guard on duty at the building's reception area refused the father entry for half an hour. The father stood outside, trying to shield his daughter from the rain. He commented that this was one of the most cruel and demeaning experiences of his life. "My child and I were treated like stray dogs, left out in the cold. Can you imagine how hopeless I felt for my family, standing there shivering and wondering if my daughter would die in my arms?"

Whilst at Woomera, the daughter's condition became serious enough to warrant hospitalisation three times. Her mother, who was still breastfeeding her, was allowed to accompany her to the hospital where they stayed for several days. The mother said there was a guard on duty outside their hospital room 24 hours a day, and the door was left open at all times. She had no privacy. The mother commented "do these people think I am a criminal, that I would run away with a sick child and leave the rest of my family behind in detention?" She and her daughter returned to the IDC in Woomera and the medical officers there gave the child medication for asthma. This apparently provided relief for a few minutes at a time but did very little to improve her condition.

The parents described the toilet facilities at the Woomera IDC as putrid. For more than two hundred people, there were five toilets for the males and five for the females. The ground outside was muddy, and with people of many cultures using the western style toilets, the toilets were never clean. They said facilities for washing were too awful to describe.

The parents said the diet was monotonous, with the same type of food served up day after day. It consisted of rice, some sort of meat, lettuce, tomato and bread. Most days they could not tell what meat was being served up and they avoided eating it as they do not eat red meat, so they had no regular source of protein. They lost interest in their food and lost weight. In other circumstances, a meal might be something to look forward to, but they just went through the motions of eating before returning to their compartment.

Conditions at the Villawood IDC

When the family was transferred to Villawood IDC, their accommodation was larger, more private and food was better. However, the younger daughter's health still did not improve and she was admitted to the local hospital, accompanied by her mother, with security guards on a 24 hour roster outside the hospital room door. At the IDC, the family said they had problems finding food suitable for the younger daughter to eat. She had reflux and needed pureed food. The parents said that for some time they were not aware that they could ask for tins or jars of baby food. When it was available, the jars were large and as there were no facilities in their room to keep food cold, they ended up wasting part of each jar. They were worried that they would be punished for this.

The social worker phoned the health worker at the IDC and asked for information about the younger daughter's diagnosis, whether the family could be provided with more support in managing their daughter's health, and if baby food could be made available. The health worker indicated that there were too many detainees for the health staff to go around asking if they needed help. She said the family just had to come to the medical centre and ask for assistance. When the social worker relayed this to the father, he said that when he had asked at Woomera IDC for assistance, he had been ignored and humiliated, and he was afraid to keep asking for help at this IDC. His family's lack of English language skills and lack of entitlement to any medical services in their home country added to their reticence to "just go and ask".

Whilst in detention, the father said he was suffering from a degree of memory impairment. He explained that he had been a craftsman in his home country, carrying out delicate work with jewellery that required steady hands. The social worker observed during both visits that the father's hands had a constant tremor.

Since their release into the community

On their release, the family initially stayed with relatives of the mother, who had only recently been granted a TPV themselves and were renting a two-bedroom flat. This arrangement was supposed to be very short term. Unfortunately, it took several weeks for the newly released family to find a rental flat, so for about a month nine people were sharing a small two-bedroom flat. Some bedding was provided by a charity. The parents felt torn between finding alternative accommodation and looking after their younger daughter's immediate health needs, which took precedence. Three days after leaving the detention centre, the younger daughter was again hospitalised for several days. The family returned to the overcrowded conditions at their relatives' flat and the whole family caught a viral illness. The relatives came under pressure from their landlord to move the visiting family on. Meanwhile, the father applied for leases on several flats but was rejected, as he had no references and no track record as a tenant. Eventually they were approved as tenants and signed a six-month lease on a flat. The flat was gloomy and more expensive than they had hoped, but they agreed to take it out of desperation.

During this initial period the social worker gave the family intensive assistance with navigating the system. Had the family been granted permanent residence they could have accessed a range of additional settlement services that are not available to TPV holders. Several community agencies were alerted to the family's situation. Some could not assist, as the family did not have permanent residence status. There was a reliance on volunteers and on luck in meeting people who were helpful. Had there been a "Welcome House" or some other co-ordinated form of settlement service in the community, the family's level of stress could have been dramatically reduced.

The family said that at the time of their release, DIMIA staff gave them $800 and some basic information in their mother tongue about Centrelink, Medicare, the Department of Housing and crisis accommodation. The older daughter was unable to enrol in school until the family had their own address. The Legal Aid social worker referred the family to DOCS for assistance with material goods (a fridge and a baby buggy) and for an assessment by the Disability Team, which now provides ongoing support. The Department of Housing paid for their bond; a charity donated essential household items, and a volunteer who spoke their language helped obtain some additional items of furniture. The parents and older daughter were referred to STARTTS for counselling. The family was finally free to worship with others from their own religion.

To the enormous relief of the family, recent surgery has been successful in alleviating the younger daughter's breathing problems. However, the child has significant developmental problems and at the age of two cannot yet weight bear and can only roll on the ground. She has not yet developed any speech and there is a chance she may never do so. There are question marks over her entitlement to ongoing assistance for hearing surgical aids, orthopaedic shoes, mobility aids, etc whilst the family holds a TPV. Managing this child's disabilities would be difficult enough in a stable environment, but with limited access to services and equipment, dealing with her as she grows up is likely to be very challenging indeed.

Education

The older daughter outlined the activities at Woomera IDC. There was a small room for about 30 children to play in. There were some pencils and paper, and on three days a week between 10 and 11.30am a female teacher would come and provide some supervised play activities. It was not really school, but it gave them something to do, even though many of the children could not understand what the woman said. Adults in detention had one hour of English language tuition a week.

According to the older daughter, there was a bit more for children to do at the Villawood IDC. Each weekday morning and afternoon, two hours of a form of schooling was provided, but again, many children did not know enough English to understand the teacher and there was insufficient individual attention. The older daughter said the classes were boring and not very useful as it was hard for the teacher to pitch at the right level for everyone. The older daughter befriended two other girls who spoke her own language. The play area was poorly equipped - there was a net and some sort of racket and ball, but the equipment was often broken. The person supervising was rarely available so the children could not use the area very often.

Now the older daughter is at primary school, she is learning English quickly. She loves school and just "doing normal stuff" like playing with friends, reading books, and seeing children from many different countries learning together. She told the social worker "I wish I could have started proper school when we first got to Australia, then I would speak good English now and I would not have been so bored and depressed in detention".

It should be noted that members of the minority group to which this family belongs are not entitled to attend university in their home country. Both parents would have attended university if they could have. It is a sad irony that their children may be prevented from attending university in Australia due to having ongoing Temporary Protection Visa status.

As TPV holders, the parents are not entitled to attend AMES or TAFE English classes. They recently commenced a few hours per week of English lessons run by volunteers at the local library. Both parents commented that while they appreciate this opportunity to learn some English, it would be far more cost effective for the Government and taxpayers if they could attend intensive English classes, such as AMES, that would enable them to learn English more quickly and hence become employable and independent of welfare payments in a much shorter time.

Psychological and social wellbeing

The older daughter described how frightened she was whilst at the Woomera IDC. There were many single men there, and frequently there were raised voices and fights. She was afraid to go anywhere unaccompanied by one of her parents and there was little opportunity to play with other children. She said "it was so cold. Most of the time I stayed on the bed with a blanket over me, crying and talking to God".

The mother said that for more than 40 days at Woomera they had no contact with the outside world and had no opportunity to phone anyone in Australia or their home country to inform them that they were still alive. They were separated from the people they had travelled with on the boat. There was no TV, radio, printed material, or telephone in the family accommodation section. Everyone was suspicious of everyone else and kept to themselves. This added to their sense of alienation.

The father said that to take his mind off his fears, he asked time and again at the Woomera IDC if he could do some voluntary chores, but his requests were ignored. He said that worse than the physical conditions in detention were the boredom, the depression and the inability to relax. "Every waking minute you are anxious, you fear that you will be rejected, that you and your family will be deported, that you have been through all of this hell for nothing. How can you be a good, responsive parent when you are in such a state? You want your children to have a good future, but how can you reassure them that it will be all right, when you do not believe it yourself? And you have no idea how long you must suffer in this state. The authorities make you feel you are a terrible criminal and trouble-maker, that you must be isolated from Australians so you don't taint anyone. You feel so small and powerless".

It transpired that the family's refugee application was processed reasonably quickly. The father said "we did not know at any stage how long it would take. We'd hear of some families being released and that gave us a glimmer of hope, but mostly we heard bad stories about deportations and it filled us with dread. We met some Australian staff who seemed humane but some others were very cruel. We did not understand what sort of country we had come to and why we were so hated."

The mother told the social worker "If we were not in fear for our lives we would not have risked all this. On the one hand if we stayed in our home country we faced the certainty of more persecution, torture and possibly even death. On the other hand there was perhaps a 50% chance that if we took this path we would survive and our children would have a future, so we took that risk. "

The older daughter said that while she was in detention she could not understand why no-one came to visit, and said this was very demoralising. Every weekend she felt more depressed thinking about other children outside the IDC playing and going about their normal life. It was as if they were in a bubble and no-one wanted to come near them. She explained that now she is in the community she "cannot bear to go back to that place (the IDC), to see those big wire fences and to go through all that security. I'm too scared to visit my friends who are still there and I feel really bad about that as I miss them. They have been there for such a long time, they must be so lonely. I wish they would be released".

The parents and older daughter stated that they are far more relaxed living in the community than when they were in detention, but their experience there will always be on their minds. "We are scarred by that experience. Even now, we cannot really relax and throw our energy into building our future. We have temporary status. We want to settle down here and make a contribution, to learn English and to work hard. We want our children to feel safe and happy and have a good education. But we are still worrying about the possibility that we will be sent back. This is another form of cruelty".

The father said "I can't understand why your government allows people to suffer in detention for so long. By the time they are released into the community they are often so damaged, so emotionally and mentally sick, that they will be a huge burden to your community. Why does your government want this. This is so unnecessary, why not let the people live in the community while they are waiting?"

On the issue of allowing women and children out of detention whilst the men remain in detention, both parents were of the view that "this is absolute cruelty. It is not a concession. We know one family where the mother and children are out and the father is detained. They are all ill with worry; they cannot function as a family. It is terrible for the mother and children trying to cope without the father and worrying about what is happening to him in detention. He is so lonely and hopeless and feels he has even less power to be a good parent than when they were all together. Families should be released together, not locked up like criminals. If you push people hard enough of course they snap. It is so distressing to hear of people harming themselves. When you are at the IDC, you try to shut out all the talk and rumours and hang onto hope and faith, but it is so hard. They don't treat you as human, it gets hard to remember that you still are human in spite of that."

DISCUSSION: CONDITIONS OF DETENTION

The CRC requires that all children deprived of their liberty are to be treated with humanity and respect for the inherent dignity of the person, that they are to be housed separately from unrelated adults, and are to be afforded a reasonable amount of personal privacy. [47] The UNHCR recommends that children should not be detained in prison like conditions. [48]

Child asylum seekers who arrived unlawfully are detained in high security centres surrounded by razor wire. Guards are uniformed and movement within the centres is strictly regulated. Throughout the day detainees are called over loudspeakers to "muster" and are given meals at times and intervals according to the convenience of the detention centre administration. These are clearly "prison like conditions.

National Legal Aid does not have specific information about the conditions for unaccompanied minors in the detention facilities. However, our case study demonstrates that in the Woomera detention centre, children are housed in uninsulated buildings, with spaces shared by a number of family groups. The shelters are not adequately heated (or cooled). Children are housed with unrelated adults and are not always segregated from the other adult detainees. The eldest daughter stated that she was afraid of the single men and felt she could not go about unaccompanied by her parents.

Additionally the toilet facilities at Woomera (with a total of 10 toilets for over 200 detainees) are insufficient and unhygienic and the meals are poor in variety and there does not appear to be provision for individual dietary needs.

The remote locations of the larger detention centres in Port Hedland, Woomera and Curtin exacerbate the poor conditions. The desert like environment, together with the harsh climate, the lack of outside social contact, restricted access to expert medical assistance and independent monitoring of the conditions within the centres, further isolates the detainees and contributes to the adverse effects of detention.

We refer to the comments of the Inspector of Custodial Services in Western Australia, Richard Harding made in late October 2001. Mr Harding said the immigration detention centres were unacceptably overcrowded, posed hygiene and health risks, and had "disgracefully" inadequate medical and dental services. In discussing riots at the centres he said that it was no coincidence that riots occurred in a system that lacked accountability, he added:

We do not have riots in our detention centres because we have a riotous group of refugees; we have them because we run appalling systems. [49]

By detaining children in such conditions Australia is in breach of the spirit of the Convention on the Rights of the Child and acting outside the recommendations of the UNHCR

Recommendation 14:

No child asylum seekers should be detained in the remote centres at Port Hedland, Curtin or Woomera.

Health, Education and Recreation

The UN Rules for Juveniles Deprived of their Liberty provide that, where it is necessary to detain children, there should be a guarantee of meaningful activity and programs thereby promoting the health and development of the young person. [50] Children have a right to education, medical treatment, exercise and recreational facilities. [51]

The case study highlights the difficulties of obtaining even basic medical assistance. It is shocking that a child's illness/disability would not be picked up at an initial screening check and a treatment or monitoring schedule be instituted; that after numerous hospitalisations such a child with serious breathing difficulties would be returned to a detention centre where her condition is monitored by her parents; and that when the parent demands medical attention he is required to wait with his baby daughter barely breathing, outside in the rain and cold, in the middle of the night, for around half an hour, before seeing a medical officer.

Where people of non - English speaking backgrounds, who may not be aware of their rights to seek medical assistance or being aware of their rights, are not confident enough to exercise them, it is not sufficient to provide medical services behind gates on demand. This is especially so in relation to health services for children. Having a system of mandatory detention, it is not acceptable for the Australian government to pass on to the detainees the responsibility for their own health.

In Woomera, Curtin and Port Hedland the access to appropriate medical care to detainees is impeded by the remote locations of these centres. The difficulty of attracting medical personnel to treat local inhabitants in country areas in Australia is well recognised. It is therefore unlikely that the detention centres will be adequately staffed by appropriately trained medical personnel.

Asylum seekers who have been living in unsettled circumstances and who may have escaped war or other traumatic experiences, have increased medical and psychological needs. Detainees with severe psychiatric conditions such as schizophrenia and other psychoses may not be treated if nurses and non-specialist doctors are forced to make their own diagnoses of detainees' behaviour. This will no doubt have potentially serious consequences for the sufferers as well as other detainees and staff.

An additional problem is that the unavailability of qualified on-site interpreters may result in inaccurate diagnoses being made in relation to physical and mental conditions with potentially grave consequences. Commission staff are aware of a significant number of detainees in the isolated centres whose mental problems have apparently not been diagnosed and treated appropriately and who have emerged from the centres in a severely impaired state.

The facilities for health care of children in the detention centres are clearly substandard. Australia is not fully implementing measures to ensure that children in detention can "enjoy the highest attainable standard of health" and access to "facilities for the treatment of illness and rehabilitation of health". [52]

The case study demonstrates the lack of formal education and "meaningful activity" at Woomera and Villawood Detention Centres. At Woomera the children were provided with a room and one and a half hours of supervised play three times a week. There does not seem to have been any appropriate substantial primary and secondary schooling at either centre. Any school or supervised activity appears to have been in English.

It is of great concern that children in immigration detention centres do not receive age appropriate education. Even if formal English classes do take place at the centres it is not clear whether they are tailored towards children. Vocational training is non-existent in most centres and there are only the most rudimentary facilities for any self-directed learning. Books and other education materials including toys and play equipment are in very short supply in all centres.

Australia is clearly not providing facilities whereby children are guaranteed "meaningful activities and programs thereby promoting their health and development". Children in detention are not being accorded their rights to primary education.

Recommendation 17:

Thorough medical assessments of all detainees should be made on arrival including specialist psychological assessments.

Recommendation 18:

Detainees need to be informed of their rights to access appropriate health care, and not be prevented by staff or internal procedures from exercising these rights.

Recommendation 20:

DIMIA take a more active role in monitoring the provision of medical services for children by Australasian Custodial Management in immigration detention centres.

Recommendation 21:

DIMIA facilitate the involvement of relevant child welfare and health agencies in monitoring medical services to children in immigration detention.

Recommendation 22:

DIMIA in conjunction with relevant State agencies provide training for ACM management on recognised standards for physical and psychological care for children.

Contact with people from the community

The case study demonstrates the demoralising effects that isolation from the outside world has on child detainees. The eldest daughter wondered why there were no visitors and felt worried that people did not want to visit them.

National Legal Aid firmly believes that it is in the interests of child detainees to have access to visits from independent community organisations. Visitors from such organisations provide invaluable emotional, psychological and practical support to all detainees - from stemming the tide of boredom and depression to assistance with explaining letters, communicating with officers and detention centre management and referring to outside services including arranging for clothing, toys and other equipment for children. The role played by church groups and ethnic organisations in assisting those detained in the cities, cannot be overstated. Visits will serve to maintain a child detainee's self esteem.

However in the remote centres detainees have little contact with the community outside. Voluntary groups are unlikely to have the resources to travel large distances interstate and small towns such as Woomera and Curtin do not necessarily have a sufficient level of population to provide support, even if they were inclined to do so. Detainees are not allowed any contact with friends and relatives in Australia until their protection application has been lodged (sometimes months after arrival) and even then the high cost of travelling severely limits access. Additionally, inadequate access to telephones and the cost of telephoning from the centres is a substantial impediment to the detainees being able simply to speak to their friends and relatives.

Independent scrutiny of conditions in the centres

Independent monitoring of the conditions in the remote detention centres as well as investigation of disturbances and hunger strikes is severely restricted. DIMIA strictly controls visits from independent organisations and the media. Whilst it is true that DIMIA must do its best to ensure that the identity of the detainees is kept confidential and their privacy is protected, this should not be used as an excuse to prevent independent monitoring of the conditions of the detention centres. For example, the US Committee for Refugees was refused access on this basis.[53] There is no logical reason for refusing to permit well-recognised NGOs to inspect the centres and speak to the detainees. It would seem that DIMIA should welcome such visits if it is confident that the conditions in the centres are acceptable because favourable reports would be written.

There are also practical impediments to access to the most populated centres in Woomera, Curtin and Port Hedland. According to the USCR:

Some of the organizations with official access to the detention centres told USCR that in practice their access was quite limited, particularly to the remote centres, given the high travel costs. One NGO with a major focus on detention said its staff had never been to Woomera or Curtin because "it's just too expensive." In addition, they said, the procedures and logistics mean that rarely, if ever, could an unannounced visit occur.

Another NGO representative said the detention centres "have been assessed by a lot of groups, but never properly. The assessments are only done at a particular point of time, not over the long term. [54]

Another factor is the reluctance to those who do have access (eg legal representatives, health and other workers ) to speak publicly about their observations of the detention centres. Confidentiality agreements are included in the contracts with Australasian Centre Management and migration agents providing application assistance. The threat of losing a job or a lucrative contract effectively silences people.

Recommendation 24:

DIMIA establish and publish protocols to facilitate the entry of recognised NGOs to immigration detention centres

THE EFFECT OF THE TEMPORARY PROTECTION VISA SYSTEM

It is National Legal Aid's view that many child asylum seekers are disadvantaged following their release into the community as the Temporary Protection Visa (TPV) regime prevents many children and young adults from accessing their human rights as guaranteed by international law.

The majority of children in immigration detention centres have arrived in Australia without valid passports and visas. They have not been "immigration cleared" and therefore, cannot meet the criteria in the Migration Regulations [55] to lodge a valid application for a permanent protection visa. When recognised as refugees, the child asylum seekers are granted a TPV [56] , permitting residence for 36 months. If they wish to remain in Australia for a longer period of time, they must lodge another application for a protection visa before their TPV expires.

As a result of changes to migration legislation in September 2001 [57] , many child asylum seekers may never be granted permanent residence in Australia as they cannot meet the third country transit requirement. The Migration Regulations now provide that an asylum seeker should not have resided for more than seven days in a third country without seeking protection either from the authorities in that country or from the UNHCR [58]. As most child asylum seekers, whether unaccompanied or travelling with their families, were under the guidance of people smugglers during their transit period, they would not have been informed of UNHCR or been able to access other international assistance. UNHCR offices are frequently located in major urban areas, far from transit areas for asylum seekers.

Therefore, many child asylum seekers will face an ongoing cycle of applications for temporary protection visas. Each three years a new application is likely to require resubmission of claims to be in need of protection and supporting updated country information. There is no government funding for application assistance for TPV holders.

Child asylum seekers will face difficulties in overcoming the psychological affect of detention once they are released; in addition, the TPV regime creates uncertainty about their residence in Australia and will mitigate the enjoyment of their human rights. Key restrictions on young refugees, following release from detention on TPVs include:

Education

TPV holders are entitled to attend State primary and secondary schools in New South Wales, however, they face major financial obstacles in accessing tertiary or trade education.

TPV holders are not entitled to financial assistance through the Higher Education Contribution Scheme (HECS) and can only attend tertiary education on the payment of full university fees. Both the University of Sydney and the University of Western Sydney have advised that there are no fee waiver or fee reduction schemes for refugees who hold TPVs. They must apply for entry and indicate that they have sufficient funds to meet tuition fees and be self-supporting.

A number of universities in Sydney have quoted the international student fee of $13,000 per year for a Bachelor Degree in Science, Arts and Information Technology. With ancillary costs a young TPV holder may be required to indicate that she has access to $20,000 a year. This is an impossibility for a young person who has been released from immigration detention, is ill equipped to work in Australia and may be unable to access overseas financial assistance.

Similarly the Course Information Centre of New South Wales Technical and Further Education (TAFE) has indicated that TVP holders are required to pay a minimum of $8 an hour for TAFE technical courses. A certificate course, such as Introduction to Computing, requires three subjects of 54 hours each to be completed as part-time over one semester. The approximate cost is $1,700. Again, this creates a serious financial hurdle for any young refugee who wishes to follow a trade or learn computing and office skills.

In imposing these education reduction on young asylum seekers the Australian government therefore is in breach of the Refugee Convention Article 22, Chapter IV, on Public Education which requires:

2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships."

TPV holders are certainly in a less favourable position than "aliens" who are in Australia on student, visitor or business visas.

These educational limitations are also in breach of Article 26(1) of the Universal Declaration of Human Rights which provides:

"Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit".

Clearly, the current HECS and system in Australia favours citizens and permanent residents. Meritorious young TPV holders are unable to access tertiary education because of the severe financial constraints.

Accommodation

The New South Wales Department of Housing has advised that applicants for public housing must be Australian citizens or permanent residents.

Temporary residents are only entitled to short term crisis accommodation. If they are assessed as being in special circumstances, temporary residents may be eligible for three months assistance. Therefore, young unaccompanied TPV holders will be entitled to three months crisis accommodation following their release from detention. Any long-term assistance would have to be found through church or charity organisations or through limited rent assistance from the Department of Housing.

These limits on access to public housing contravene the Refugee Convention Article 23 which states:

"The contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals".

Certainly, TPV holders are not in the same position as nationals accessing public accommodation relief in Australia.

Disability Services

Many disability and aged services are linked to permanent residence status in Australia. The New South Wales Department of Aged Care and Disability has informed National Legal Aid that access to many disability services and aids is restricted to permanent residents. This includes hearing aids, wheelchairs and occupational therapy.

Consequently, the refugee child referred to in the Social Work case study above will face severe limitations in accessing appropriate disability aids in Australia. She has been diagnosed as having significant hearing loss, requiring a hearing aid. Unfortunately her migration status as a TPV holder bars her from receiving a hearing aid through a Commonwealth government scheme.

Freedom of Movement

TPV holders are not permitted to leave Australia with any certainty of re-entry rights. Migration Regulation 866.212(2)( c ) states that a TPV holder cannot leave Australia if they wish to be granted permanent residence under a Protection Visa.

As mentioned above, it is possible that many young people will be limited to a cycle of ongoing temporary protection visas for many years following their acceptance as refugees in Australia. This means that they will not be able to depart Australia to meet any family or work commitments.

Persons recognised as refugees are eligible for a refugee travel document issued under Article 28 of the Refugee Convention. However, the travel document does not of itself provide the refugee with the right to re-enter Australia.

Further Applications

Article 16(1) of the Universal Declaration of Human Rights states that all men and women have a right to "marry and found a family". The Declaration reinforces that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the state".

The current TPV regime in Australia means that there is uncertainty for many young refugees about their right to found a family and build a life for that family in Australia. Certainly, the Australian government does not "protect" their families as TPV holders do not have a right to lodge an application to remain in Australia as the partner of an Australian citizen or permanent resident.

A typical example could be a young refugee who is released from detention on a TPV and because of the transit provisions, is unable to access a Permanent Residence Class 866 Visa. After 6-9 years on TPV's, he/she may well have met an Australian citizen or permanent resident and formed a close marriage like relationship. Unlike other temporary residents in Australia, he/she is not able to apply on the basis of the relationship and be granted permanent residence. Migration Regulation 785.611 prescribes that a TPV holder "cannot be granted a substantive visa other than a Protection Visa".

This is a severe emotional and practical barrier for young people who are already burdened with facing the long-term psychological effects of escaping from persecution in their home country and detention in Australia. It creates a bar to meaningful relationships in Australia and a certainty of establishing a family unit.

Conclusion

National Legal Aid considers that the grant of temporary protection visas to children who have been found to be refugees is creating a scheme of second class young people in Australia. These young refugees have limited rights in relation to further education, employment, public assistance and family relationships. It is hard enough for such young people to overcome the effects of detention and they should be granted permanent residence to provide them with a sense of security and hope for their future in Australia.

The TPV regime acts in contravention of Article 7 of the Universal Declaration of Human Rights which states: "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against discrimination in violation of this declaration …".

As highlighted above, refugee children are discriminated against and are unable to fully exercise their human rights. The basis of such discrimination is purely their method of travel to and arrival in Australia.

Recommendation 25 :

The regime which accords lesser rights to refugees who arrive unlawfully in Australia should be abolished.

4. The impact of detention on the well-being and healthy development of children, including their long term development.

Child asylum seekers are unique in terms of mental health and developmental needs and requirements. The child asylum seeker is likely to have had experiences outside of the realm of other children. On top of the attendant fears and insecurities stemming from displacement and flight, a great many will have had experiences of war, persecution of family and friends, death, violence, and sexual assault. Unaccompanied children are particularly vulnerable having also experienced separation from close family members. Recent research indicates that up to 40-50% of refugee children have a psychiatric disorder. [59]

Post-traumatic stress disorder (PTSD) is a term that has arisen out of terms such as "concentration camp syndrome," "survivor syndrome" and "war neurosis". [60] Although limited, research that has been undertaken with refugee children demonstrates that Post Traumatic Stress Disorder is a significant problem for them. One study found that in Palestinian children exposed to war traumas nearly all had PTSD of mild or moderate/severe intensity. [61] Another follow up study of children exposed to war trauma, indicated that four years after leaving Cambodia, 50% had developed PTSD as well as a mild but longstanding depression. [62]

Evidence is growing that PTSD due to past trauma is more likely to be triggered in vulnerable persons who are further exposed to stress or conditions detrimental to their health. [63] On the other hand the setting up of an environment that is safe, predictable and supportive for persons who have already suffered significant trauma is more conducive to their recovery and ultimately makes good humanitarian, as well as economic sense. [64]

Further, certain contemporary research indicates that it is the secondary consequences of war relating to family, social and economic life which have more predictive validity in terms of psychological outcomes.[65] In one study done with Iraqi asylum seekers in London, a history of torture had a less significant long-term effect than did depression and poor social support in the country of asylum . [66]

Similar results are reported in children. One study found that although being exposed to organized violence presents a risk factor for children's psychological health and development, it is current life circumstances in the host or receiving countries that "are of equal or greater importance than previous exposure to organized violence". [67] Other studies indicate refugee children exposed to war may demonstrate both psychological as well as behavioural sequelae at acute and chronic levels lasting for many years after exposure and the subsequent migration experience. Further, that these effects of war continue to have a negative effect on the child's social functions and school performance. [68]

It is clear therefore that policy development and planning, addressing the particular needs of asylum seeker children, is necessary to ensure that Australia does not add to the damage that child asylum seekers have already suffered. These studies also indicate that psychological and welfare support may continue to be needed for many years after the detention experience.

The situation in Australia is far from ideal. Upon arrival in Australia child asylum seekers are thrust into a culture and environment that is very different from their own. Those arriving unlawfully are placed in detention centres, often in isolated areas and segregated from the rest of the community. This experience undoubtedly exacerbates the problems those children already face and, according to the research, is likely to have a major impact on their mental health and development in the future.

It is well recognised that the artificial environment created by refugee and detention centres or camps adversely affects children's emotional development. Detainees are unable to carry on with normal community living, their freedom of movement is restricted and the detention environment encourages dependence rather than autonomy. [69] This is the case in Australia where in addition, the living conditions in detention are quite poor and there are usually few quality activities available to children.

Many of the children in immigration detention are adolescents. Their needs are different to those of infants and older children. At 15 to 17 years of age they are undergoing significant emotional, physiological and cognitive changes and are faced with issues as reproductive health, the acquisition of life skills, earning a living and vocational training being key areas of focus. [70]

Unaccompanied children are the most vulnerable children in detention as they do not have an adult present who is directly responsible for their care. In a situation where these children do not have a special advocate their needs will more often than not go unmet and their rights will frequently be violated. Although the legal responsibility rests with the Minister for Immigration this is a formality rather than of any practical assistance to the day to day experiences of the child.

When outlining standards recommended to ensure a sensitive and attentive approach in the care and rehabilitation of children in detention, the UN documents and guidelines take into account the needs of children in various stages of their development, and the particular needs of unaccompanied minors.

One of the most insidious problems arising out the detention centre environment is the effect it may have on parents, primary care givers and other family members. Many detainees are already suffering lowered self-esteem, and this may be exacerbated by the stress and confinement of the detention facilities. They are rendered dependent on those operating the detention centres, for the fulfilment of most basic needs. They are unable to enter into normal productive work and see the efforts of their labours come to fruition. As a result depression, along with other mental health or stress related problems, can set in. A loss of control of their lives and a sense of hopelessness, which are often at the heart of mental health problems, can prevail.

As most of the asylum seekers arriving in Australia are recognised as refugees, it is fair to say that they have already been through trauma of one kind or another. Parents' and carer's own emotional problems which may arise or at the very least be exacerbated by detention will ultimately affect the quality of the care they are able to provide for their children. In addition to experiencing their own reactions to flight and detention, children are affected by the parents' or carer's loss of functioning. A vicious cycle is set up whereby the mental health of the adult family members may contribute to the children's emotional health problems.

Recommendation 27:

That where detention is absolutely necessary asylum seekers and their children need to be able to carry on relatively normal lives. The detention environment could be modelled on community life which could be replicated through the economic activities of adults, workshops involving skills training and production and home gardening activities. Children should be provided with an opportunity for normal schooling so that they are exposed to the outside environment. Allowing access to the outside world is also a way of improving the situation for children. [71]

5. The additional measures and safeguards which may be required in detention facilities to protect the human rights and best interests of all detained children.

Recommendations covering this issue have been made under previous terms of reference.

6. The additional measures and safeguards which may be required to protect the human rights and best interests of child asylum seekers and refugees residing in the community after a period of detention

Once released from the protected confines of a detention centre, children may experience difficulties with re-adjustment and adaptation.[72] Any measures taken by governments concerning child refugees and asylum seekers in the community should take into account the findings of research about the psychological needs of children for their long term development, rehabilitation and reintegration. (see discussion above)

An important factor influencing the integration of asylum seekers and refugees into the Australian community is the provision of a community capable of providing a supportive environment which encourage and supports them in the struggle to build a new life. It is the Australian government's responsibility to foster community support for refugees and asylum seekers and the children among them and understanding of their rights and needs.

Recommendation 28:

That DIMIA and the Commonwealth Attorney-General's Department fund community education programs about refugees and asylum seekers, the conditions from which they flee, and Australia's humanitarian obligations under international law. Such programs should also address refugee children and Australia's responsibilities.

All other recommendations covering this issue have been made under previous terms of reference.

Conclusion

Australia remains in splendid isolation from the remainder of the western world in relation to the policies it has adopted on mandatory detention for asylum seekers arriving without proper documentation. [73] National Legal Aid submits that the regime of mandatory detention for all asylum seekers including children is in breach of Australia's international obligations.

However recognising that there is at present no political intention to end this regime National Legal Aid has focused on recommendations to improve the current provisions to bring them into line with international human rights standards for the protection of children. We would urge the government to implement these immediately.

Asylum seeker children recognised as refugees will, upon release into the Australian community, adapt into this society according to the experiences they have had upon reception into this country. To continue to detain child asylum seekers in a hostile and unsupportive environment, where their basic rights are at best compromised, or at worst denied, will have an adverse impact on the children themselves and indirectly the future of Australia. Such negative treatment will be reflected in the child's attitudes, values and beliefs about Australia and may well lead to an angry, negative or potentially disturbed adult, unable to fully integrate into Australian life. If we want healthy, well-adjusted young people who can make a real contribution to Australian society, it is necessary to provide them with a welcome and humane environment which respects their human rights.

1. UNHCR Refugee Children, Guidelines on Protection and Care

2. Universal Declaration of Human Rights article 14(1)

3. article 37(a) CRC

4. article 37(c) CRC

5. article 37(d) CRC

6. article 22(1) CRC

7. article 22(2) CRC

8. Note 7.8

9. Rules II.12

10. Guidelines 5

11. C.R.C., Notes, Guidelines, Rules, infra

12. Guidelines 6, see also article 37(c) CRC

13. Rules 4.D.31

14. UNHCR Policies and Procedures paragraph 7.4.

15. s 189(1) of the Migration Act states: " If an officer knows or reasonably suspects that a person in the migration zone,,, is an unlawful non-citizen, the officer must detain the person."

16. s198

17. see s72

18. see s72(1)(a)

19. see Schedule 2 Bridging Visa E subclass 050

20. The definition of "eligible non-citizen" in s 72(1)(b) is in a prescribed class of persons and regulation 2.20 describes a range of people who may come within that class.

21. in these circumstances this means that they have not completed merits or judicial review

22. regulation 2.20(7)

23. Migration Series Instruction 131

24. unless there is a suspicion that the child is at risk of neglect or abuse.

25. Under s 6 Immigration (Guardianship of Children) Act 1946 that the Minister is the guardian of all non citizen children "to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently …"

26. This can only be certified by a medical specialist appointed by the Department of Immigration.

27. If the Minister makes such a determination he must cause the reasons to be laid before Parliament

28. as they are not permanent residents (see s 7 (2) Social Security Act)

29. Section 3 of the Health Insurance Act 1973 defines an "Australian resident" for the purposes of eligibility for Medicare. Protection visa applicants come within that definition only if they also have permission to work.

30. Each state will have its own policy about school fees for children who are not permanent residents. In NSW for example asylum seekers may apply for an annual exemption of state school fees. There is no entitlement for child asylum seekers to attend intensive English courses.

31. Migration Series Instruction 131 paragraph 7.5.2

32. as defined in s474(2)

33. Section 474(1) states that a "privative clause decision" is "(a)is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."

34. s 338(4)(a) provides that the refusal to grant a Bridging visa is an MRT reviewable decision only where the non- citizen is "in detention because of that refusal". Arguably unlawful arrivals are in detention because they do not fall within the definition of eligible non- citizen, and they are detained without reference to any formal decision about refusal of a Bridging visa.

35. A v Australia (Communication No 560/1993: Australia. 30/04/97. CCPR/C/59/D/560/1993

36. s256 Migration Act

37. s193(2)

38. Prior to 1 July 1998, the state legal aid commissions were funded through the Attorney General's Department to provide advice and representation in migration and refugee applications. The Legal Aid Commission of NSW ran a weekly advice session at Villawood Immigration Detention Centre. There is no publicly funded advice service for people in immigration detention.

39. s 193(3) Migration Act

40. s193(4) Migration Act

41. paper entitlde "Alternative Detention Model" available on www.refugeecouncil.org.au/

42. "End Mandatory Detention" report commissioned by the Independent Education Union 26 February 2002 see pages 10 - 12

43. See Children (Criminal Proceedings) Act 1987 (NSW) s 33(2).

44. Australian Law Reform Commission, Report No 84, Seen and heard: priority for children in the legal process, Human Rights and Equal Opportunity Commission 1997 (Cth) at p. 575.

45. Standing Committee on Social Issues, Report Number 10, Inquiry into Children's Advocacy (September 1996), NSW and Australian Law Reform Commission, Report No 84, Seen and heard: priority for children in the legal process, Human Rights and Equal Opportunity Commission 1997 (Cth).

46. Juvenile Justice Centre Operational Procedures Manual, NSW Department of Juvenile Justice, Sydney 1997.

47. Rules 4.D.31

48. UNHCR Note , 7.8

49. As reported in US Committee for Refugees Issues Paper "Sea Change; Australia's New Approach to Asylum Seekers" 85 "Immigration detention centres a disgrace, says watchdog," Australian Associated Press, 10-30-01.

50. Rules II.12

51. C.R.C., Notes, Guidelines, Rules, infra

52. CRC Article 24

53. See USCR report supra

54. p 20

55. 866.212

56. Subclass 785

57. Migration Amendment Act No. 6 (2001)

58. One of the criteria for the grant of a permanent protection visa, 866.215, provides that a person who spent more than 7 days in a country where they could have sought and obtained 'effective protection' of that country or of the UNHCR will not be able to be granted permanent residence in Australia unless the Minister for Immigration is satisfied that it is in the public interest to waive this requirement.

59. Research from the United States on refugee children from South East Asia and recent studies from the former Yugoslavia support this. See Sack WH, Clarke G, Seeley J. Post-traumatic stress disorder across two generations of Cambodian refugees. J Am Acad Child Adolesc Psychiatry 1995;34:1160-6; Weine S, Becker D, McGlashan T, Vojvoda D, Hartman S, Robins J. Adolescent survivors of "ethnic cleansing: observations on the first year in America. J Am Acad Child Adolesc Psychiatry 1995;34:1153-9; Savin MD, Sack WH, Clarke GN, Meas N, Richart IM. The Khmer adolescent project: m. A study of trauma from Thailand's siteII refugee camp. J Am Acad Child Adolesc Psychiatry 1995;35:384-91 all cited in Hodes, Refugee children may need a lot of psychiatric help. (Editorial) M. British Medical Journal, March 14, 1998

60. Summerfield, Derek, War and mental health: a brief overview, British Medical Journal, July 22, 2000

61. Abdel Aziz Mousa Thabet & Panos Vostanis, Post-traumatic stress reactions in children of war, found at http://www.gcmhp.net/research/Post_traumatic.html site visited 18.2.02

62. Kinzie, J.D., Sack, W.H., Angell, R.H., Manson, S. & Rath, B. (1986). The psychiatric effects of massive trauma on Cambodian children: I. The children. Journal of the American Academy of Child and Adolescent Psychiatry, 36, 349-356.

63. Steel Z, Silove D, Bird K, et al. Pathways from war trauma to posttraumatic stress symptoms amongst Tamil asylum seekers, refugees and immigrants. J Trauma Stress 1999; 187 200-207

64. Silove D, The psychosocial effects of torture, mass human rights violations and refugee trauma: Towards an integrated conceptual framework. J Nerv Ment Disorder 1999; 187:200-207

65. Basoglu M, Paker M, Ozmen E, Tasdemir O, Sahin D. Factors related to long-term traumatic stress in survivors of torture in Turkey. JAMA 1994;272:357-63

66. Gorst-Unsworth C, Goldenberg E. Psychological sequelae of torture and organised violence suffered by refugees from Iraq. Trauma-related factors compared to social factors in exile. Br. J Psychiatry 1098; 172:90-4

67. Kjerstin Almqvist, Mental health and social adjustment in young refugee children 31/2 years after their arrival in Sweden, J. of the American Academy of Child and Adolescent Psychiatry, June, 1999.

68. Cited in Geltman, P.L. War Trauma Experience and behavioural Screening of Bosnian Refugee Children Resettled in Massachusetts. J. of Developmental & Behavioural Pediatrics, Issue: August 2000

69. UNHCR Refugee Children Guidelines on Protection and Care 1994

70. Standing Committee, Progress Report on Refugee Children and Adolescents, including UNHCR's Strategy for Follow-Up to the Report on the Impact of Armed Conflict on Children (EC/47/SC/CRP.19) 7th Meeting http://www.unhcr.ch/cgi-bin/texis/vtx/home/

71. Id UNHCR

72. Id UNHCR

73. Zachary Steel and Derrick M… The mental health implications of detaining asylum seekers,

Last Updated 9 January 2003.

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