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Submission to the National

Inquiry into Children in Immigration Detention from

the National Ethnic Disability

Alliance (NEDA)

INTRODUCTION

NEDA

The National Ethnic

Disability Alliance (NEDA) is the peak body in Australia for people from

a non-English speaking background (NESB) with disability, their families

and carers.

Role

The overarching aim

of NEDA is to advocate at a federal level, for the rights and interests

of people from a NESB with disability, their families and carers.

All activities undertaken

by NEDA include strong consumer involvement and are based on the following

Objectives:

1. Represent the

rights and interests of people from NESB with disability, their families

and carers.

2. Advocate on

issues impacting on people from NESB with disability, their families

and carers.

3. Work towards

securing equitable outcomes for people from NESB with disability, their

families and carers.

4. Co-ordinate

policy advice to the Federal government and relevant peak bodies on

the impact of policy and legislation on people from NESB with disability,

their families and carers.

NEDA, because of

its cross-sector role (disability and ethnicity), aims to collaborate

with and work across a broad range of organisations to represent the interests

of people from a NESB with disability. For more information about NEDA,

please visit www.neda.org.au

This Submission

Given the role of

NEDA (stated above), this submission will look at the issue of children

with disability living in detention from a national perspective, drawing

on NEDA's expertise about the intersection of ethnicity and disability

and the impact this has on children with disability currently living in

detention centres in Australia.

MDAA NSW

State-based NESB-disability

advocacy organisations such as the Multicultural Disability Advocacy Association

(MDAA) of NSW form the membership of NEDA. NEDA fully endorses the submission

lodged with HREOC by MDAA. State-based agencies that provide individual

advocacy services, such as MDAA NSW, have first hand experience about

the issues facing people from a NESB with disability, their families and

carers given their individual advocacy work.

As a peak body, one

of NEDA's primary roles is to compile NESB-disability issues from all

states and territories to develop a national perspective on issues of

importance.

Primary Position

NEDA believes

that no child with a disability or their family should be detained when

seeking on-shore asylum in Australia.

Not only does

this practice contravene international human rights obligations of which

Australia is a signatory, but NEDA does not believe that it is in the

best interest of any child with a disability to be detained in an environment

unequipped to deal with their support needs.

CHILDREN

IN DETENTION

DIMIA Statistics

On the 22nd January

2002, NEDA wrote to the Department of Immigration, Multicultural and Indigenous

Affairs (DIMIA) requesting information about the children with disability

living in detention.

On the 18th February

2002, DIMIA made the following information available to NEDA (see Appendix

1):

1. As of the 1st

February 2002 a total of 378 children were residing in detention centres

on the Australian mainland.

2. As of the 5th

February 2002 a total of 16 (or 4.2%) children with disability were

residing in detention centres. Children with disability are currently

located at Port Hedland, Curtin and Woomera detention centres.

3. The types of

disability affecting these children include cerebral palsy, hearing

impairment, vision impairment, acute dwarfism, trauma, Perthes disease

and cardiac, asthmatic and genetic (including Fragile X) disabilities.

This information

reveals that DIMIA has failed to identify children with cognitive and

other 'non- visible' disability. NEDA is extremely concerned about the

detection of disability amongst all children living in detention and we

believe that DIMIA may be underestimating the number of children with

disability, particularly those who have experienced torture and trauma

within their country of origin.

Apart from the primary

disability, these children are highly likely to gain a secondary psychiatric

disability due to their incarceration and to the torture and / or trauma

experienced in their country of origin. Therefore children with disability

living in detention should receive specialised child psychiatric counselling

in their own language, via cross-cultural counselors and psychiatrists.

NESB-Disability

People from a NESB

with disability experience multiple layers of discrimination - discrimination

on the basis of disability and ethnicity. This is no different for children

who are from a NESB with disability.

People from a NESB

with disability are one of the most disadvantaged and marginalised groups

in society. The issues and needs of people from NESB with disability and

their families and carers have not been understood or addressed by governments,

the community sector and the general population. In NSW alone, three out

of four people from a NESB with disability miss out on receiving non-

government disability services.

In Australia, three

out of four people from a NESB with disability miss out on receiving Commonwealth

funded disability services. This is in addition to the current unmet need

for people with disability in general (see Appendix 2).

This figure stands

despite genuine efforts made by many to redress this appalling situation.

This figure points towards the need to seek systemic solutions to the

whole disability services system, involving all stakeholders.

Many services seem

unable to accommodate linguistic and cultural diversity because:

  • Ethnic communities

    tend to be overlooked when considering the 'target group'

  • Staff need continual

    accredited, quality training in cultural difference, diversity and disability,

    and in particular, the nature and reality of the person's experiences

  • The disability

    services system has not adopted even the most basic mechanisms for people

    from NESB such as the use of interpreters or the publication of material

    in languages other than English. Poor language skills prevent carers

    from accessing services so they have less opportunity to develop their

    personal, social or professional capabilities

  • There are insufficient

    strategies and practices to ensure that people from NESB with disability

    and their families and carers participate in decision-making

  • The myth of extended

    family support is still subscribed to by both service providers and

    funding bodies resulting in fewer services for NESB communities.

DIMIA's letter to

NEDA states that:

all necessary

steps are taken to ensure that the needs of these children are met.

At this point in

time, NEDA is not convinced that this is happening and we have not seen

any evidence to suggest that detention centres have the capacity and expertise

to service the needs of children from a NESB with disability.

The assessment process

used to determine the type and level of disability of a child living in

detention highlights this point. The assessment process (a crucial part

of determining the support needs of a child) involves a centre nurse and

may include a counselor or psychologist - it is unclear whether or not

the staff has received additional training in disability and ethnicity.

The assessment process fails to include any specialist disability clinical

staff such as occupational therapists, physiotherapists, speech pathologists

etc.

HUMAN RIGHTS

Convention on

the Rights of the Child

All children who

enter Australia need to be treated in accordance with the International

Convention on the Rights of the Child (1989), to which Australia

is signatory.

The current practice

of detaining children with disability is in complete contradiction to

this Convention.

Article 23 (1)

Article 23 (1) of

the above Convention clearly states that

Parties recognise

that a mentally or physically disabled child should enjoy a full and

decent life, in conditions which ensure dignity, promote self-reliance

and facilitate the child's active participation in the community.

Detaining any child

with a disability works directly against any notion of promoting self-reliance

and active participation.

Australian governments,

both at a state and Commonwealth level, now recognise on a domestic level

that incarcerating children with disability is a harmful practice and

there is a move away from large institutional settings to more community

based accommodation options. This should be no different for children

who are citizens, residents, off-shore refugees or on-shore asylum seekers.

Article 22 (1)

Further more, Article

22 (1) states that

Parties shall

take appropriate measures to ensure that a child who is seeking refugee

status or who is considered a refugee in accordance with applicable

international or domestic law and procedures shall, whether unaccompanied

or accompanied by his or her parents or by any other person, receive

appropriate protection and humanitarian assistance in the enjoyment

of applicable rights set forth in the present Convention and in other

international human rights or humanitarian instruments to which the

said States are Parties.

Australia's current

practice of detaining children with disability seeking on-shore asylum

is in direct contradiction to the very essence of receiving appropriate

protection and humanitarian assistance.

ENTERING AUSTRALIA

Current Refugee

Policy - Excluding Disability

The Australian off-shore

refugee program currently excludes people with disability entering this

country due to the requirements of the health assessment that is undertaken.

As a result, families that have a child with a disability are unable to

enter Australia through the conventional resettlement program and there

is also no 'queue' that these families can join.

The only option left

available to families with a child with disability is to try and enter

Australia as on-shore asylum seekers where they are then detained. It

also means that the vast majority of families arriving as on-shore asylum

seekers who have children with disability will only ever be eligible for

a temporary protection visa which does not allow them to access Commonwealth

benefits (i.e. Disability Support Pension, Carers Pension etc) and state-funded

services (i.e. advocacy etc).

Commonwealth Disability

Discrimination Act

Legislative action

in a number of countries aimed at safeguarding the rights and dignity

of people with disability was given impetus by the:

  • growth in disability

    activism towards the end of the century

  • increase of global

    awareness of human rights

  • pressure from

    international human rights organisations,

  • introduction

    of the International Year of Disabled Persons (IYDP)

  • adoption of the

    United Nations General Assembly of the Standard Rules on the Equalization

    of Opportunities for Persons with Disabilities in 1994 - a strong moral

    and political commitment of Governments to take action to attain equalization

    of opportunities for persons with disabilities.

A United Nations

survey of 88 national governments in the 1990's revealed that 80 per cent

of states had reformulated their thinking on disability issues and have

introduced anti-discriminatory legislation (Priestley 2001).

Australia was one

such country that responded to the challenge of promoting and protecting

the rights of people with disability through the development of a Commonwealth

Disability Discrimination Act (DDA) 1992.

Whilst the DDA covers

all Commonwealth, State and Territory agencies, it does not

  • affect discriminatory

    provisions in the Migration Act 1968 or any regulation made under

    that Act

  • render unlawful

    anything done by a person in relation to the administration of that

    Act or those regulations.

This effectively

means that DIMIA funded and administered agencies, such as the Australasian

Correctional Management Pty Ltd (ACM), and activities undertaken relating

to the administration of the Migration Act are exempt from the

DDA.

The exemption of

the Migration Act from the DDA epitomises the two-tiered value

system afforded to people with disability living in Australia on the one

hand, and potential migrants with disability on the other. This process

also flies in the face of the Federal Government's publicly stated commitment

about valuing people with disability.

This exemption actually

allows the Australian government to legally discriminate against people

with disability in the context of migration and NEDA believes this is

extremely problematic in terms of trying to ensure that the needs of children

with disability living in detention are met.

NEDA calls on the

Federal government to remove the exemption of the Migration Act

from the DDA and to put a stop to the current inequitable and discriminatory

system.

ALTERNATIVES

TO DETENTION

MDAA's submission

to this inquiry outlines a range of options as an alternative to detention.

NEDA endorses the recommendations put forward from MDAA and does not see

merit in covering the same ground. NEDA would like to refer HREOC to the

MDAA submission where considerable work was done by a range of organisations

and individuals to develop viable, less expensive and more humane alternatives

to the current detention regime.

Like MDAA, NEDA also

supports proposals, such as those put forward by the Refugee Council of

Australia, which include a short period of closed detention and then open

detention and / or community release.

SUPPORT

NEEDS & DETENTION

It has already been

established that there are a number of children with disability living

in detention in this country. These children have general and specific

support needs that must be met in order to maintain their well-being and

ensure that they are able to participate meaningfully in all areas of

life.

Support Needs

(General)

Children with disability

have additional support needs, depending on their disability and the level

of impairment caused by their disability. Children with disability also

experiencing some sort of torture of trauma in their country of origin

coupled with the strains caused by the migration process can also develop

additional disability (i.e. psychiatric disability).

NEDA is not convinced,

despite assurances by DIMIA (see Appendix 2), that Australian detention

centres are capable of adequately meeting the needs of these children.

The assessment process of the disability alone (outside any cultural needs)

is completely inadequate and additional issues raised below highlight

the unmet need of children with disability living in detention. The lack

of expertise and support only serve to compound the existing level of

disability and in the long term, mean higher costs due to higher support

needs.

What is desperately

needed for children with disability living in detention is individually

tailored and support as opposed to stop-gap crisis management which can

not produce sustainable outcomes. The best outcome for children with disability

will be achieved through addressing their individual needs via specific

intervention programs that are incorporated into their daily routine which

include the education of their care-givers.

Support Needs

(Specific)

Children with disability

have the same needs as all children but their disability means that they

have additional needs such as:

  • Accessible

    facilities - in its letter to NEDA, DIMIA stated that most detention

    centres contain non-medical facilities and services such as sports programs

    and activities, education, play equipment for children etc. Whatever

    facilities and services that are made available to detained children,

    children with disability are most unlikely to access many of them as

    they have not been made accessible. Therefore, children with disability

    living in detention do not have the same opportunities as children without

    disability to interact and participate meaningfully - an important part

    of their social and physical development.

  • Aids and Equipment

    - without suitably modified aids and equipment (i.e. mobility aids),

    children with physical disability will be prevented from developing

    independent living skills and in the long-term, will require greater

    levels of support. Modified equipment is an essential component of developing

    the skills and independence of children with disability. Without this

    equipment, additional resources, support and assistance will be required

    in the future as these children will miss out on early learning experiences

    and may remain dependent on adult care-givers to undertake basic tasks

    (i.e. toileting, feeding etc). Appropriately equipping children not

    only enhances functioning but also reduces the risk of future physical

    complications.

  • Detention Centre

    Staff - according to DIMIA, a range of medical personal are employed

    at the some detention centres. NEDA has seen no evidence to suggest

    that these staff receive accredited and up-to-date specialised disability

    and cultural diversity training which is essential to ensure that staff

    are equipped to meet the needs of children with disability living in

    detention. NEDA urges the Commonwealth to involve people with expertise

    in these areas in the management of children with disability.

  • Early intervention

    - there is ample evidence available documenting the benefits of early

    intervention and evidence has shown that early intervention can reduce

    the chance of and, in some cases, prevent developmental problems. Early

    intervention can also result in more children having a chance to experience

    a 'meaningful' life, can reduce costs and improve the quality of parent,

    child, and family relationships. The Commonwealth government itself

    recognizes the importance and benefits of this service (please visit

    www.facs.gov.au).

  • Education

    - NEDA is extremely concerned about the level of education that children

    with disability are receiving. NEDA has received numerous e-mails stating

    that on average, a child is receiving only 2 hours of education per

    day. This is completely inadequate in terms of meeting the learning

    needs of children with disability. Children with disability, particularly

    those with cognitive disability, require a program for that is designed

    to meet their specific needs to ensure that they are equipped with basic

    life skills and enough independence during their transition into the

    community. Without this, children with disability will require additional

    support and assistance which means additional costs.

POST DETENTION

NESB Families

/ Carers

The prejudicial attitudes

and misconceptions regarding disability present in Anglo- Australian communities

are equally evident in NESB communities. Whilst there are differences

in the perception of disability amongst different ethnic groups, the relative

degree of stigma attached to disability appears similar across NESB and

Anglo-Australian communities.

By and large, NESB

communities have missed out on education campaigns about disability because

those conducting the campaigns have failed to target and reach NESB communities.

At the same time, there have been consultations with people from NESB

with disability, but unfortunately the consultations have not resulted

in the development of concrete strategies.

Isolation

People from NESB

with disability and their carers are often stigmatised and isolated because

of attitudes and misconceptions prevalent in their own communities and

in the Anglo-Australian community. Many migrant families with a member

with a disability tend to socialise less, and have fewer contacts with

other people, often only with people who accept disability.

Beneath this isolation

lies a migration process which is a traumatic and isolating experience.

Relatives, friends, social and support networks are no longer available

and are difficult to establish in a new country.

There is also a high

level of mistrust towards governments amongst many migrant communities,

often based on negative experiences with governments in their country

of birth and particularly if they have been detained for a period of time

in this country.

The lack of support

networks has a particularly adverse impact on women carers, especially

those in communities where there is an enormous stigma attached to disability.

Crisis Point

Excessive responsibilities

are carried by families and carers from NESB with multiple layers of disadvantage

- disability, poverty, disruption to the family as a result of migration,

diminished support networks and lack of sufficient and appropriate services.

In general, NESB

families carers only seek help when they are at crisis point and not before.

As there are often no services involved in the carers lives, the earlier

warning signs of 'burn out' remain undetected and many GPs are not well

informed about programs and support available for carers. Thus doctors

cannot act as a go-between for services and carers.

NEDA is aware of

several instances where the lack of support and services has led to carers

suffering extreme burn out and being admitted to hospital, whilst the

person they care for, ended up in residential care or in a nursing home.

Carers from NESB

usually end up incurring a disability themselves - commonly physical and

mental health problems - as a result of the pressures involved with caring

for a person with disability whilst juggling a range of other responsibilities.

Educating NESB

Families and Carers

NEDA recommends that

families and carers of children with disability living in detention receive

education and training about disability and the disability service system

to ensure that they are equipped with an adequate level of knowledge about

disability when they leave the detention centre and have to care for their

children alone. Without this, families are left to negotiate the maze

of bureaucracy and services alone, without the aid of interpreters.

TPV's

The majority of the

people who apply for refugee status when placed in detention centres are

currently granted refugee status and given Temporary Protection Visas

(TPV). TPV's exclude people from accessing a range of services and entitlements

available to those granted Permanent Protection Visas.

No Entitlements

TPV holders are not

entitled to access the full range of social security benefits such as

the Disabiliy Support Pension and the Carer's Pension and the 'Special

Benefit' amount granted to TPV holders is actually less than the Newstart

Allowance. TPV holders are also not eligible for employment assistance

or English language programs.

For children with

disability, this means that they cannot access specialist training and

employment programs. Without these skills, children with a disability

who are TPV holders are almost certain of facing a future of unemployment.

This situation highlights the ineffectiveness of the TPV as it ensures

the cost of unemployment and under utilization of skills will be transferred

to the broader community. It makes no sense to deprive TPV holders, many

of whom will receive refugee status, access to basic training and services.

As TPV holders have

no right to family reunion, this combined with the ineligibility for a

range of services, means that any care which might need to be undertaken

for the child with the disability is largely being provided by one person

(usually the mother).

TPV holders are also

unable to access case management offered to other refugees by settlement

services is that other services, often small, under-funded ethno-specific

community based services, have to spend huge amounts of time trying to

procure specialist and affordable services to assist children with a disability.

Lack of Clarity

Overall there is

a lack of clarity about what TPV holders are and are not eligible for

in each of the states and territories. NEDA was unable to find any information

from DIMIA documenting the service entitlements for TPV holders in each

state and territory.

If children with

disability are unable to access basic and essential disability services

and support there is not only a high cost to them in terms of their opportunities

and options but also a greater cost to the broader community - in most

cases this will be absorbed by the States and Territories, not the Commonwealth.

RECOMMENDATIONS

Primary Recommendations

1. That all children

with disability and their families be removed from Detention facilities

immediately and placed in more appropriate community-based accommodation.

2. That the Federal

government to remove the exemption of the Migration Act from

the Disability Discrimination Act.

3. That the recommendations

for alternatives to detention put forward by the Multicultural Disability

Advocacy Association of NSW and the Refugee Council of Australia be

adopted.

Secondary Recommendations

The recommendations

below are not valued less by NEDA than those above. Our primary position

is that all children with disability and their families be removed from

detention centres. However, should the practice of detaining on-shore

asylum seekers continue, NEDA then makes the following recommendations

in an attempt to ensure that children with disability arriving in this

country have their needs met.

4. That children

with disability living in detention receive specialised child psychiatric

counselling in their own language, via cross-cultural counselors and

psychiatrists.

5. That all facilities

and programs within detention centres be made accessible to all children

with disability.

6. That appropriate

aids and equipment be given to children with disability living in detention.

7. That all detention

centre staff undergo accredited and up-to-date specialised disability

and cultural diversity training.

8. That the assessment

process of children with disability be completely revised and that early

intervention be made available to all children with disability.

9. That all children

living in detention receive basic and essential levels of education

and that children with disability, particularly those with cognitive

disability, require a program for that is designed to meet their specific

needs.

10. That families

and carers of children with disability living in detention receive education

and training about disability and the disability service system before

being released into the community.

11. That the Federal

government reconsider and revise the entire system of Temporary Protection

Visa's particularly the lack of entitlements and the inability to reunite

with family.

12. That the Federal

government produce information clearly documenting the service entitlements

for TPV holders in each state and territory.

APPENDIX 1:

DIMIA LETTER

(Removed due to confidentiality issues)

APPENDIX

2: UNMET NEED

There is very limited

data available about people from NESB with disability. When attempting

to analyse what available data there is, the different definitions used

when referring to 'NESB' create many problems.

Below are NEDA's

calculations of the number of people from NESB with disability living

in Australia and the rate at which we miss out on receiving services in

Australia.

LOTE

LOTE stands for Language

Other Than English spoken in the home.

A Partial Definition

The Australian Bureau

of Statistics (ABS) and most government departments, including the NSW

Ageing and Disability Department (ADD), define NESB as a person who is

either:

  • born overseas

    in a non-English speaking country

  • speaks a language

    other than English (LOTE) in the home.

NB: This does not

include 2nd and 3rd generation NESB.

How Many?

The 1996 ABS statistics

show that:

  • 15.5% of the Australian

    population are people who speak a LOTE (language other than English)

    at home [ABS, 1996 Census].

From these figures,

NEDA estimates that 15.5% of all people with a disability living in Australia

speak a LOTE at home.

The 1998 statistics

show that:

  • 19% of the population

    in Australia has a disability [ABS, 1998 Disability, Ageing and Carers:

    Summary of Findings].

Using this information,

NEDA estimates that 2.9% of the population or 568,385 people in

Australia have a disability and speak a LOTE [1]

Access to Services

The Department of

Family and Community Services latest data suggests that:

  • 6.2% of consumers

    of Commonwealth funded disability employment services speak a LOTE at

    home. [Dept of Family and Community Services, Disability Services

    Census, 1998].

Thus,

from the information provided above it can be concluded that:

2

out of 3 people who speak a LOTE at home with disability miss out on receiving

Commonwealth funded disability employment services.

NESB

NESB stands for Non-English

Speaking Background.

A Complete Definition

NEDA follows the

Department of Immigration and Multicultural Affairs (DIMA) in its definition

of NESB. That is, NESB refers to a person who is either:

  • born overseas

    and whose language or culture is not English or Anglo-Celtic / Saxon

  • born here in

    Australia and the first language or culture of at least one parent is

    not English or Anglo-Celtic / Saxon

  • born in Australia

    with linguistic or cultural background other than English or Anglo-Celtic

    / Saxon who wish to be identified as such.

NB: This includes

2nd, and possibly 3rd generation NESB.

The ABS statistics

show that:

  • 41% of the population

    were either born overseas (English speaking + non-English speaking countries)

    or have one or both parents born overseas (English speaking + non-English

    speaking countries)

  • 60% of those

    born overseas or with one or both parents born overseas come from a

    non-English speaking background [ABS, 1996 Census].

Using this information,

NEDA estimates that 24.6% of the population of Australia are people from

a NESB . [2] Thus, 24.6% of all people with a disability

living in Australia are from a NESB.

As mentioned previously,

19% of the Australian population has a disability. Thus, NEDA estimates

that 4.6% of the population or 902,082 people in Australia are from a

NESB with a disability. [3]

Access to Services

The Department of

Family and Community Services latest data suggests that:

  • 6.2% of consumers

    of Commonwealth funded disability employment services speak a LOTE at

    home. [Dept of Family and Community Services, Disability Services Census,

    1998].

Utilising

the limited definition of LOTE (16.8% of population) and adding 7% to

account for 2nd and 3rd generation NESB it can be concluded that:

3

out of 4 people from a NESB with disability miss out on receiving Commonwealth

1.

19% x 19.3 million (2001 projected pop'n of Australia) = 3,667,000 people.

15.5% x 3,667,000 (people with disability in NSW) = 568,385 which = 2.9%

x pop'n of Australia.

2.

41% x 19.3 million (2001 projected pop'n of Australia) = 7,913,00. 60%

x 7,913,000 = 4,747,800 which = 24.6% x pop'n of Australia.

3.

24.6% x 3,667,000 (people with disability in Australia) = 902,082 which

= 4.6% x pop'n of Australia

Last

Updated 9 January 2003.