HREOC Website: National Inquiry into Children in Immigration Detention

Transcript of Hearing

- SYDNEY

Tuesday 3 DECEMBER 2002,

9.05 AM

Please note: This is

an edited transcript.

---

Commissioners:

• Dr S. OZDOWSKI,

  Commissioner

• Dr T. THOMAS,

  Assistant Commissioner

• Ms P. MOORE,

  Executive Officer

---

Continued

from 2.12.02

DR OZDOWSKI:

Welcome to everyone. I think there is no need again to administer

the oath or affirmation. As with yesterday, we will do it only in

the case of new witnesses coming, but please understand that the principles

associated with the oath or affirmation do stand up. Also, I would

like to ask witnesses in order to finish on time, that they will focus

on questions and try to answer, and to reply as directly as possible.

Okay, could I ask Mr Wigney to start asking questions, and my understanding

is that we are starting with the issue of family and family relations.

MR WIGNEY:

Yes, Mr Commissioner. We are dealing with the issue of families today.

Now, I'm not sure who the appropriate witnesses from the Department

are in relation to that, or to whom I should primarily direct my questions.

I don't know whether Mr Bromwich can assist in that regard or Mr Walker.

DR OZDOWSKI:

Mr Bromwich?

MR BROMWICH:

Sorry, Commissioner, I am just getting some instructions. Commissioner,

I have been asked if we could have - I regret any delay but I have

been asked if we could have 5 minutes. The only reason for that, Commissioner,

is that Ms Godwin not being well, it has only come to notice very

recently. We just need to sort out who is going to be best to put

forward on this issue because we had intended that it would be, of

course, Ms Godwin. If we could just have a few minutes.

DR OZDOWSKI:

Yes, fine, but 5 minutes only, please.

MR BROMWICH:

Yes, thank you.

MR WIGNEY:

Before we adjourn, could I just make one point? In due course this

morning after we deal with some of the more fundamental propositions,

we will be coming to some family case studies that I think we have

notified the Department of so they can prepare themselves for questioning

in relation to those particular case studies. I note that they largely

relate to families who have been detained in the Woomera facility,

and I note from the documentation that, at least for part of the time,

Mr Frencham - I trust I'm pronouncing that correctly - was the Department

Manager at that facility.

It may be, at

least for the case studies, he be an appropriate witness in relation

to those questions.

MR BROMWICH:

I appreciate that indication.

DR OZDOWSKI:

Okay, so we are adjourned for 5 minutes only.

SHORT BREAK [9.10am]

RESUMES [9.15am]

DR OZDOWSKI:

Mr Bromwich, are we ready?

MR BROMWICH:

I believe so, Commissioner. There's two things I would like to raise.

One is that I am now informed that while Ms Godwin may be able to

attend later in the day to assist, she is really not well enough to

be giving evidence today. That may change but, as presently advised,

I don't anticipate that to be the case. The second thing is that a

good deal of what we spent our time on yesterday was dealing with

was wide ranging and general propositions. There isn't really an officer

of the Department who is in a position to give evidence, if that is

the right word, on such wide ranging general propositions.

In any event,

they don't, with respect, seem to advance things very far. These witnesses

are better in a position to answer questions about what is and what

has taken place in relation to aspects of children in immigration

detention, so that those two cautionary notes are in a form of what

we are able to do from the Department's perspective today.

DR OZDOWSKI:

Thank you. Mr Wigney, can you adjust your questioning to focus, as

the counsel for DIMIA indicated, on more practical issues?

MR WIGNEY:

Well, I certainly intend, as I foreshadowed, to go specifically to

case studies in due course this morning.

DR OZDOWSKI:

Which the Department was provided with?

MR WIGNEY:

Yes.

DR OZDOWSKI:

Yes.

MR WIGNEY:

The difficulty is this, Mr Commissioner, that as you are aware, the

Department's submissions contain some fundamental proposition about

submissions in relation to families, and in particular to the proposition

that it is in the best interests of children to be with their families,

that families - that is, the parents - must be in detention and ergo,

children must be in detention. Now, that is a proposition that we

seek to challenge, and I seek to challenge it in questioning this

morning in general terms firstly, and then by way of example in the

case studies. Now, I don't - I mean, this is a public hearing.

Senior officers

of the Department are here. I cannot see why they cannot address those

fundamental propositions. They are, presumably, aware of the Department's

submissions and the Department's arguments in that regard.

DR OZDOWSKI:

Fine, so please continue your line of questioning, and if there are

any questions you can't answer, we will take it on notice and hopefully,

when Ms Godwin is back we will put the questions again to her. Mr

Wigney, please go on?

MR WIGNEY:

Should I direct questions to Ms McPaul or to Mr Walker?

MS McPAUL:

I guess it really depends a little on what particular area of

question you want to ask.

DR OZDOWSKI:

Could you speak to the microphone because otherwise, we are having

problems recording it please.

MR BROMWICH:

Commissioner, I've just received some instructions, and those instructions

are these. Given, in particular, what Mr Wigney has just said, I'm

instructed to seek an adjournment of the hearing until Ms Godwin is

well, given a determination in particular to press on with practical

considerations - with general propositions, and the Secretary of the

Department has indicated that he is prepared to speak to you if need

be by telephone about why it is that he seeks this adjournment. That

is what I'm instructed to seek.

DR OZDOWSKI:

Mr Wigney?

MR WIGNEY:

Ms McPaul, who presently sits at the witness table, is presently the

Assistant Secretary of the Unauthorised Arrivals and Detention Services

section of the Department. Now, to many of you, she is a Senior Officer

with responsibilities directly in this area. What is more, and I can

hand this correspondence up in due course if need be, she has been

- even putting aside the fact that the Department has now been put

on notice about the particular case studies that I intend to address

- it would appear from documents in our possession that Ms McPaul

has been and is fully briefed in relation to these issues.

In any event,

I cannot see any reason whatsoever why she is not an appropriate person

to whom I can direct questions about, firstly, the fundamental propositions

that are in the Department's submissions and, secondly, in relation

to the specific case studies that I will come to in due course.

MR BROMWICH:

The answer to that, Commissioner, is shortly this. My friend is taking

this as being a static situation, that is, the arrangements that are

in place now and the position held now applied back over time. Ms

Godwin is the person who has knowledge over time of what has happened.

If my friend wishes to ask questions about the here and now, then

what he is putting may well be correct. If, as I apprehend, he is

talking about questions ranging back over a number of years, then

that proposition starts to fall away.

DR OZDOWSKI:

Well, I'm not willing to postpone the hearing. The hearing has been

postponed a number of times. The Department of Immigration indicated

- chose its own witnesses and indicated by letter that the witnesses

are proper witnesses, so we will continue. If the Secretary of the

Department wishes to talk to me, I will be available during lunch

time to talk with him.

MR BROMWICH:

I just need to note on the record our concern that, in effect, this

has been forced on - not due to any prevarication on the part of the

Department but because a senior officer best able to handle the questions

is ill, and I am just noting that on the record.

DR OZDOWSKI:

Thank you.

MR WIGNEY:

There is another thing I want to take up in terms of Mr Bromwich's

submission about going back in time. I understand that Mr Greg Kelly

is also here and that Ms McPaul effectively, and I may be wrong about

this and the Department will, no doubt, correct me if I am but Mr

Kelly was previously in the position now occupied by Ms McPaul so

between the two of them, they would have the continuous high position

in this very area that we are exploring this morning. I don't know

whether Mr Kelly chooses to give evidence about these things.

MR KELLY:

Commissioner, I have not been in the position that Ms McPaul currently

is in at the moment.

DR OZDOWSKI:

But, I think, before you speak, if you could come forward so we can

administer the affirmation, please.

MR BROMWICH:

Mr Kelly is not - as Mr Kelly has just said, he was not in the

position previously that Ms McPaul is in so my friend's proposition

on that is incorrect. He is not a person who can be put forward in

substitution in the manner suggested.

DR OZDOWSKI:

Is Mr Kelly's name on the list of Departmental officers provided as

potential witnesses?

MR WIGNEY:

He is, yes.

DR OZDOWSKI:

I didn't hear it.

MR WIGNEY:

He was and is on that list, and what is more, it would appear from

the documentation in relation to these case studies and some other

documents that we have, that he also had some responsibilities in

these very areas at the relevant time.

DR OZDOWSKI:

Are you proposing that he enters the witness stand?

MR BROMWICH:

I suppose it is really a matter for the Department whether they choose

to want him to sit at the witness table and take the oath and answer

questions.

DR OZDOWSKI:

Well, Mr Bromwich, why cannot Mr Kelly come to the witness table?

MR BROMWICH:

As with most of this, Commissioner, we have only the most sketch plan

idea of what the questions are going to be about. We are not really

informed as to what the questions are going to be. I am not in a position

to say that a particular person necessarily will or won't be able

to answer a question because I don't know what they are. If you insist

on his presence obviously he can be there.

DR OZDOWSKI:

Yes, I ask him to join the witness table.

MR WIGNEY:

Well, perhaps we can do it this way ---

MR BROMWICH:

It is in the nature of an inquisition, Commissioner.

MR WIGNEY:

That is a ridiculous submission, with respect. Perhaps if we can do

it this way it will alleviate Mr Bromwich's heightened concerns. We

can deal specifically with the case studies. As I understand it both

Ms McPaul and others have been directly involved in the events as

they happen and as I have already indicated the Department has been

specifically put on notice that we intended to ask questions about

these case studies and there can't really be any ready excuse as to

why these officers or at least someone from the Department could not

address them this morning.

MR BROMWICH:

I have no further comment to make.

DR OZDOWSKI:

I ask Mr Kelly to join the table.

GREG KELLY,

[9.23am]

DIRECTOR,

DETENTION MANAGEMENT SECTION

DR OZDOWSKI:

Mr Wigney, if you would start your questioning.

MR WIGNEY:

Thank you, Mr Commissioner. I might just perhaps start by ensuring

that - to address these case studies we put together some folders

of documents and I will just ensure that copies of those folders are

provided to the Department officers if they have not already and to

Mr Bromwich. Mr Rushton, of course, as well. I am sorry.

Now, can I just

say this before we commence addressing the first of the case studies

in this folder that, of course, having regard to the general directions

as to confidentiality no names will be mentioned. In the event that

I unfortunately blurt out a name by accident can I just ask the Commissioner

to perhaps remind members of the public or the media that are here

that the names ought not be published beyond this room if, in fact,

I do let one of them slip.

DR OZDOWSKI:

Yes, the confidentiality orders stand as I announced them yesterday

and before.

MR WIGNEY:

I think as I take you through this folder and perhaps I will, for

relevant purposes, I will address my questions to Ms McPaul and if

she chooses to refer the questions on so be it but it is probably

better that I direct my questions to, at least, one person specifically

at the outset. Would you excuse me for a minute? Excuse me, sir, I

am sorry. Perhaps - Mr Hunyor suggested that Ms McPaul may be perhaps

more familiar with the second of the case studies so we perhaps might

start with that first. That is behind the tab halfway through the

folder.

DR OZDOWSKI:

It is case study B, yes.

MR WIGNEY:

Sorry, case study D.

DR OZDOWSKI:

D.

MR WIGNEY:

Yes, just to be clear the other case studies relate to children with

disabilities that we are dealing with separately. So this on the -

the list that has been provided it is case study D. I will just wait

until everyone has turned up the relevant documents. Now, if I can

just - now, this particular case study concerns a family of three

comprised of a father, a mother and a child, a boy, of the age of

12. Now, if I can just ask you, Ms McPaul, to accept from us for present

purposes that the basic chronology in relation to this family is that

they arrived at and were detained at the Woomera detention facility

in April 2001.

Just to put us

in the - and the other part of the basic chronology is that in late

August 2001 the mother and son were moved to the Woomera Residential

Housing Project Facility. So that is about - a few months - four months

or so after they first arrived at the detention facility. Then - and

I think we will come to some specific documents in due course that

demonstrate this but that in - on the - shortly after 25 May or towards

the end of May of this year the mother and son returned back to the

Woomera detention facility and I will come to the reasons for that

in due course as we go through the documents.

Now, you will

see that the - you have been provided with a bundle of documents and

I will take you through these documents one by one. Just to - so that

you know where I am going this bundle seems to have been numbered

by document rather than page number and the particular document references

are those that, at least on my copy, are in a large circle on the

top right-hand corner of the document. Now, you are aware, are you

not, that the Commission has - excuse me -

The Commission,

as we discussed yesterday, have served various notices on the Department

to produce documents in relation to various topics and you are aware,

are you not, that one of those notices required the Department to

produce all relevant documents in relation to this particular family?

MS McPAUL:

Yes, I'm aware of that.

MR WIGNEY:

Right. So in accordance with the evidence yesterday it would follow

from that that the Department has conducted all relevant inquiries

and produced all documents that it can in relation to this family

and its circumstances?

MR BROMWICH:

Well, can I just note in answering a question like that it needs to

be noted that such documents as meet that description and fell within

the notice would have been provided not - not something that fell

outside the notice. I'm not saying that the notice does not encompass

the full scope of what is being asked, but I just don't know.

DR OZDOWSKI:

But it is obvious, isn't it?

MR WIGNEY:

Perhaps if I just put that on the record. The notice required

all incident reports and medical reports and I won't mention the names,

regarding the family. All correspondence between the Department or

ACM, or Family and Youth Services, that is the State body, and reports

passing between those entities. All documents relating to the implementation

by the Department or ACM of any recommendations made by Family and

Youth Services. All documents relating to the progress of the family

at the residential housing project.

All documents

relating to the reasons for which the mother and son returned to the

Woomera Detention facility from the residential housing project. So

the notice was fairly broad in scope, you would agree, in relation

to documents relating to this family and their detention?

MS McPAUL:

It's my understanding that the Department did provide whatever documents

fell within the scope of the notice that we were able to identify

then.

MR WIGNEY:

Thank you. Now, as I said in the broad chronology it would appear

the mother and son returned to the detention facility in May of this

year. The first document I want to take you to which has been produced

by the Department, is a document which is document 1 in this bundle

and if you go to the 5th page of the document it is dated 10 May this

year. Do you see that?

MS McPAUL:

Yes, I can see the date.

MR WIGNEY:

And it would appear to be a document created by two officers of Family

and Youth Services from the Crisis Response and Child Abuse Service,

do you see that on the last page?

MS McPAUL:

Yes.

MR WIGNEY:

Addressed to the Acting Director, Country Region, of the Family and

Youth Services and it is directed specifically to this family. Do

you see that?

MS McPAUL:

Yes.

MR WIGNEY:

And in terms of its content one can see from it that the first

two paragraphs on the page deal with, it would appear, specific notifications

that the Family and Youth Services have received in relation to this

family. Do you see that?

MS McPAUL:

Yes.

MR WIGNEY:

The first one deals with a situation where the child learned about

his father's hanging attempt some time previously and the mother found

the son in the house threatening to kill himself. Do you see that,

and there's a further description of the son's activities?

MS McPAUL:

I - I have that on the document here.

MR WIGNEY:

I'm sorry?

MS McPAUL:

Yes, I have that on the document here.

MR WIGNEY:

Then the second incident again refers to the father being found hanging

from a tree by bed sheets, that is presumably in the Woomera facility

itself, okay? Do you see that? Do you see that?

MS McPAUL:

Yes, that's here on the ---

MR WIGNEY:

You are familiar with this ---

MS McPAUL:

Yes.

MR WIGNEY:

---particular case, aren't you?

MS McPAUL:

Yes.

MR WIGNEY:

Now, the balance of the document deals with the investigation

by the Family and Youth Services in relation to this family and you

will see at the top of page 2 that the authors of the document interviewed

a number of people including the psychologist [name removed], in fact,

I think she is a doctor and she's a psychiatrist who is an ACM staff

officer. Do you see that?

MS McPAUL:

Yes, I'm sure that we have the same document.

MR WIGNEY:

I'm sorry?

MS McPAUL:

Yes, I'm sure that we do have the same document.

MR WIGNEY:

Yes, good. I'm pleased about that. Now, what I want to take you to

firstly, is under the first - or the second subheading on page 2 and

you will see that [name removed], she is the ACM psychiatrist, describing

the family as disintegrating and the father as seriously depressed.

Do you see that?

MR BROMWICH:

Can I just correct that, it is first a psychologist, not psychiatrist,

there's a distinction.

MR WIGNEY:

Well, I think when we come to it in a moment we will see that she,

in fact, is a doctor and she is a psychiatrist but Mr Bromwich is

quite correct, it does say 'psychologist'.

MR BROMWICH:

Well, we are going off what the document said, that is what the

questions ---

MR WIGNEY:

You see that [name removed], the ACM officer, described here as a

psychologist, described to these officers the family as 'disintegrating'

and the father being 'seriously depressed'.

Do you see that?

MS McPAUL:

Yes, I can see that.

MR WIGNEY:

He is falling apart and indeed he has spent some time under observation

in a secure cell within the medical centre. Can you tell us what the

secure cell in the medical centre is please?

MS McPAUL:

I think what we have here is a term being used by someone from another

agency. That's not necessarily terminology or common usage that the

Department would apply to medical observation.

MR WIGNEY:

Well, are you able to assist us as to what this person, who is an

ACM psychologist, would be describing when she refers to the secure

cell?

MS McPAUL:

I think it just needs to be put in context that as part of our duty

of care to all detainees medical services are provided at detention

facilities including at Woomera and in the medical centre there are

different arrangements that might be available to assist various detainees

with health issues as they may arise and as you would expect there

may be individual rooms where people can be treated and observed,

if need be.

DR OZDOWSKI:

Could you speak to microphone closer, if I can't hear you here possible

other people can't hear you as well.

MR WIGNEY:

I take it you have been to the Woomera Medical Centre?

MS McPAUL:

I have.

MR WIGNEY:

Well, what do you think is being referred to here as the secure cell?

Can you describe to us exactly what it is?

MS McPAUL:

As a - sure, as I said, there's a number different parts to the medical

centre there and there are a number of individual rooms that can be

used to treat various detainees at different times and as part of

that there is a facility to be able to observe the detainee through

a window on the door.

MR WIGNEY:

Is the detainee restrained in there or is the room padded, or can

you give us some more detail please?

MS McPAUL:

Well, I can't comment on the specific circumstances of every case,

of course, but it wouldn't necessarily be assumed that a detainee

would be restrained, they're there for medical treatment. The rooms

are quite simple with a bed and I guess, as I've said a door with

a window where people can be observed if they need to be.

MR WIGNEY:

Now, if you could go over the page, I think on that balance of that

page is a reference to the officers' interview with the mother in

this family and reference to her being 'increasingly distressed and

tearful', but perhaps more relevantly if we go over to the next page,

it is page 3 of the document we have the officers' interview with

the child. Do you see that subheading there?

MS McPAUL:

Yes, I can see that.

MR WIGNEY:

And I don't want to obviously take you to all of it but amongst other

things it is recorded in the third paragraph that the son spoke of

having 'many worries' and 'he is worried about his father and upset

that he cannot talk to him anymore' - do you see that? The first line

of the third paragraph?

MS McPAUL:

Yes, I can see that.

MR WIGNEY:

Now, to put this in context at this stage we have the father at

the detention facility in Woomera and we have the son and the mother

at the residential housing project, right?

MS McPAUL:

I believe so.

MR WIGNEY:

And we will come to this in more detail in due course, but under

the present guidelines or conditions of accommodation at the Woomera

Residential Housing Project, fathers are not allowed, is that correct?

MS McPAUL:

There are a number of criteria for participation in the residential

housing projects and at the present time fathers would not be permitted,

it's for women and children and other special needs cases. One of

the reasons why fathers are not participating in the housing project,

of course, comes back to the issue of culturally appropriate accommodation

for the women and children who volunteer to be part of that and as

I understand it the ability for certain women and children to participate

is contingent on their other family members being satisfied that they

are in a suitable environment which would also include not being in

the presence of other older male children and men who are not part

of their family unit.

DR OZDOWSKI:

Are you saying that it is normal for the culture that people are coming

from that in normal circumstances older sons and fathers are living

separately from women and children?

MS McPAUL:

What I'm saying is that in order for women to volunteer to participate

in that project it was our understanding that - that voluntary participation

was more likely to be gained if they were certain that the environment

that they were going to be in was one that would be suitable from

their point of view.

DR OZDOWSKI:

But this possibly relates to the issue of available housing, that

they need to share to share houses, that they are not living in separate

accommodation, therefore possibly you can't keep family together,

am I correct about it?

MS McPAUL:

Look, I think that probably wasn't one of the original concerns, it

was before I joined this part of the Department but I think that the

infrastructure available is only one of a number of factors that we

would have been taking into account.

DR OZDOWSKI:

What other factors were taken into consideration when deciding

to split families and still allow women to stay in the housing project

and to keep men in the detention centre?

MS McPAUL:

Commissioner, there are a number of factors that are also taken

into account in the context of the housing project itself. As you

may know, it is a low security environment, you've been there yourself

and you've observed that. It is surrounded by just a normal colorbond

kind of fence. So in making the operational decisions about who might

participate in that project there are a number of different factors

that we would take into account. As I said, participation in the project

was voluntary so we needed to be able to encourage women and children

to come forward to participate. Secondly, I guess, we also needed

to have regard to the security aspects of all members of the family

and I think it would be - my understanding is that it is more likely

that women and children would be adequately accommodated in that less

secure environment than some other family members that they may also

have with them.

DR OZDOWSKI:

So when you talk about security aspects you are implying that there

is a risk of absconding of men?

MS McPAUL:

That is one of the considerations.

DR OZDOWSKI:

Thank you.

MR WIGNEY: Can

I just - I was going to come back and deal specifically with criteria

for the Woomera housing project in due course, but let us pick up

on a few of the points you have just raised. The first point that

you raised as being a reasonable rationale or principle behind not

having fathers at the Woomera housing project was that it was necessary

to provide culturally appropriate living arrangements, and I think

that is a phrase that is used in the DIMIA submissions as well. What

do you mean by 'culturally appropriate living arrangements'? Do you

suggest that in some cultures it is not normal for fathers to reside

with their families?

MS McPAUL:

I think what I was trying to refer to is the expectation that members

of one family would be able to live in a culturally appropriate environment

without any suggestion that there would be inappropriate interaction

with males who are not of that part of that family group. So I'm not

suggesting that it is inappropriate for family members to be together,

rather that families need to be certain that whatever living arrangements

are in place for them will be something that they are comfortable

with personally.

MR WIGNEY:

Sorry, you mean that there may be some concern about inappropriate

interaction with fathers of one family with the children in another,

is that what you are saying?

MR WALKER:

If I can just make a point here. The things that you need to put in

context with the Woomera Detention - alternative detention arrangements

in the trial is that there are also sensitivities within the local

Woomera community as well that have to be taken into account as well

as the safety and well-being of the participants. So that our responsibility,

our duty of care, covered situations of making alternative arrangements

that protected the individuals who participated, both from any animosity

within the local community as well. And we had to work with the local

community so there were certain parameters that were devised. The

important part of that was that the males were not included, so it

had to be a safe environment for the women and children.

MR WIGNEY:

Thank you, Mr Walker, I will come back to your separate point about

the concerns of the local community in a moment, but I was asking

Ms McPaul who used the phrase 'culturally appropriate living arrangements,'

what she meant by it and my question was: do you mean by it that there

was concern that there may be inappropriate interaction between the

father of one family with children in another family, is that what

the concern is?

MS McPAUL:

Look, I don't know that there is much more I can add to what I've

already said. You know, what we were looking for was an environment

in which the voluntary participants from the centre, the voluntary

women and children participants from the centre, would feel that they

could come forward to participate in a project where they knew that

their particular living arrangements would be adequate for the needs

of themselves and of their whole family.

MR WIGNEY:

Are you suggesting by that answer that some of the women and children

who participated in this project did not want fathers or males from

other families over 12 to be in the residential unit, is that what

you are saying?

MS McPAUL:

As I understand it, when we were originally working through the arrangements

that might be possible for the scheme this was one of the areas of

concern raised by the families in the centre before any suggestion

of participation was made.

MR WIGNEY:

I see. Did you record those concerns, that is the concerns raised

by the families, who were the first proposed participants in this

scheme, did you record their concerns in a document, or a minute,

or a report, or a recommendation, or anything?

MS McPAUL:

Look, I guess, Mr Wigney, some of the things that you are asking about

the specifics of that are prior to my joining this part of the Department

and might be best addressed to Ms Godwin, but I can say that in general,

it is my understanding, that there was consultation with the detainees

and others in the establishment of the project and you might also

be aware that we did seek and obtain an exemption from the Sex Discrimination

Commissioner for inclusion of boys older than 12 and males from exclusion

from participation in the project, and my understanding that that

was on the basis of these sorts of issues that we are discussing now,

about who would be able to participate and on what basis they would

feel that they could come forward to volunteer for the project.

MR WIGNEY:

Well, can you take it on notice, please, that the Commission would

like to see any document, be it a minute, report, a recommendation,

which records the concerns that you have just referred to, that is,

the concerns of the participants in this scheme, that they didn't

want the males, or the fathers to be there. Can you take it on notice

that we would like to see that document, if it exists, or any such

document.

MS McPAUL:

We can certainly take on notice to provide you with anything that

we may have that goes to that question.

DR OZDOWSKI:

Are you really saying that the families were saying they would

like to be split?

MS McPAUL:

Commissioner, what I'm saying is, it is my understanding that for

- as I have said previously - that for the women and children to feel

that they could volunteer to be in the project, that the parameters

that we have talked about were some of the ones that were discussed

at that time.

MR WIGNEY:

Ms McPaul, in the Woomera detention facility itself, there is - now

at least - and as I understand it at least from some time in late

2001, a separate family compound, is that right? That is, a compound

where families are detained?

MS McPAUL:

It is my understanding that that is not the case. We have a particular

family compound at the Baxter Immigration Detention facility.

MR WIGNEY:

Well, there are still some families that are residing at Woomera

now, this day, is that right?

MS McPAUL:

There are some families there, that is correct.

MR WIGNEY:

Well, can you tell us please the circumstances in which those families

are housed now please? Are they housed along with the general detainee

population, or are they in a separate compound, or how are they housed?

MR KELLY:

Mr Wigney, there are a number of families still remaining in the

Woomera IRPC. Some of those families are obviously in the residential

housing project, with their partners still in the centre itself. In

terms of those families that are still in the centre, they are accommodated

in quite large compounds. There are other single adult males within

those compounds. They have been offered the opportunity of transfer

from that centre to the new facility at Baxter. They have chosen not

to accept, or take up that opportunity of the move to a centre where

they would be in a family oriented compound.

MR WIGNEY:

Thank you. So putting aside for the moment those families - well,

I think you said that there were some families there where other members

of the family are in the residential housing project, that would mean

however that only the fathers and the boys over 12 are in the detention

centre, right?

MR KELLY:

That is correct.

MR WIGNEY:

In relation to the other families, they are in you say large compounds

and in those compounds there are also detained, or housed, single

male detainees, right?

MR KELLY:

Yes. I'm not confident of the exact breakdown at the moment, but I

could take that on notice and provide you with the information in

due course.

MR WIGNEY:

So some mothers and daughters are housed in circumstances where

they are also in a compound with a number of single males, is that

right?

MR KELLY:

Yes, they have their own accommodation, have their own accommodation

units and access to their own ablutions. As I said, they have been

offered the opportunity of transfer to another facility - those -

that offer has been documented as well as has been the refusal of

those families to take up those offers.

MR WIGNEY:

Yes, we will come back to that in a moment, but you referred to accommodation

units, I think in the documents they are generally referred to as

'dongas' is that correct?

MS McPAUL:

That is a colloquial term for them.

MR WIGNEY:

I'm sorry?

MS McPAUL:

That is a colloquial term for them.

MR WIGNEY:

Well, that is the term the Department uses to describe these units

as well, correct?

MS McPAUL:

Yes.

MR WIGNEY:

And for those like myself who haven't had the pleasure to see

a donga, that is a demountable unit, is it not?

MS McPAUL:

It is a demount - a large - yes, a demountable building with, as I

understand it, a living area and a bedroom compartment.

MR KELLY:

Could I just clarify that component, please. There are in the Woomera

centre - Ms Godwin mentioned yesterday that there were, effectively,

two elements to that centre, an older main compound which used demountable

accommodation, and two much newer compounds which have prefabricated

combination units. They are not in the style of demountables as are

in the older compound, or which would be predominantly used, say,

for, on mining sites.

MR WIGNEY:

There are still some families in the older main compound, right?

MR KELLY:

No.

MS McPAUL:

No.

MR WIGNEY:

They are all in the newer ---

MR KELLY:

That is correct ---

MR WIGNEY:

---compounds with the prefabricated housing, is that right?

MR KELLY:

That is correct. There haven't - the main compound has not been used

for quite some time.

MR WIGNEY:

And when did these prefabricated units come into being at Woomera?

MR KELLY:

I would have to take that on notice, I don't know the specific date,

but they've certainly been there for probably well over 12 months

to my knowledge.

MR WIGNEY:

Well, in June of this year some representatives from the Commission

went to Woomera and observed that families were residing in the dongas

and that more than one family unit were residing in these dongas,

often just separated by a curtain. Now, that was a situation back

in June of this year, wasn't it?

MR KELLY:

That is correct.

MR WIGNEY:

Indeed, you were there present when the Commission officers attended

on that occasion, right?

MR KELLY:

That is correct.

MR WIGNEY:

And so we have more than one family unit in a donga - and that presumably

includes the father, right - fathers?

MR KELLY:

That is quite possible, yes.

MR WIGNEY:

And also quite possible that it includes sons over the age of 12,

they also not being eligible for the Woomera Residential Housing ---

MR KELLY:

That is possible, although when the Commission visited the Centre

at that particular time, because there were very few people in the

Centre, there were a number of families who, in fact, had a whole

accommodation unit to themselves with no other people there.

MR WIGNEY:

Tell me, in relation to these families that resided in the dongas,

particularly those where they were shared with another family, did

the females that were residing in these circumstances consider that

they were culturally appropriate living arrangements, to use your

words?

MR KELLY:

I can't answer that, I can't speak for those families. It's inappropriate

for me to speak for those families.

MR WIGNEY:

Well, you see, what has just been told to us is that some of the

participants in a Residential Housing Project were concerned that

males - that is fathers and children - male children over the age

of 12 and 13 - not be accommodated at the Residential Housing Project,

because of concerns perhaps of inappropriate interaction, or other

security matters, and yet at the detention facility itself, not only

did we have the fathers and sons residing with the families often

in shared accommodation, but we also had single males in the same

compound. Now, how do you explain that?

MR BROMWICH:

I don't actually understand - I object to that question - explain

what? The question does not make sense.

DR OZDOWSKI:

I understand the question very well. Please continue, it is about

the cultural sensitivities which were referred ---

MR BROMWICH:

Well, the question will get the quality of the answer it deserves,

it does not make any sense as a question.

DR OZDOWSKI:

Please, answer the question.

MS McPAUL:

Can you clarify it for me just a little so that I can be more specific

for you?

MR WIGNEY:

Yes. You have said that some of the participants in the Residential

Housing Scheme told the Department that they would perhaps prefer

to reside in this project, the Residential Housing, without males

over the age of 12 or 13. The words you used initially were 'culturally

appropriate living arrangements', right?

MS McPAUL:

I believe so, yes.

MR WIGNEY:

Well, there are women and girls residing in families back in the Woomera

detention facility in circumstances where they are living in very

close quarters with males over the age of 12, both sons in families,

fathers and single males, right?

MS McPAUL:

It is my understanding that there would be whole family groups

living in the Centre, that is correct.

MR WIGNEY:

At close quarters, right?

MS McPAUL:

Well, in some circumstances, possibly but as we have explained that

varies depending on the number of people in the Centre.

MR WIGNEY:

I see. I asked the question before whether the families were concerned

about whether that was a 'culturally appropriate living arrangement'

and Mr Kelly said he couldn't speak on behalf of the families. Let

me ask you this: does the Department regard the accommodation of the

families in the detention facility, that is, families living at close

quarters and often with single males in the same compound, as 'culturally

appropriate living arrangements'?

MS McPAUL:

I think there is a distinction to be made between a number of different

family groups and possibly single men living in a compound environment

to having a number of women and children living together in the same

house without the other male members of their family present.

MR WALKER:

I think it is also important to put some context, once again, to this

trial. It was looking at appropriate arrangements for women and children.

One of the Government's parameters was that men would not be included.

So in fact, it was voluntary participation by women and children in

an alternative detention arrangement if they felt that that was more

appropriate to their circumstances.

MR WIGNEY:

Yes, Mr Walker, but what we are seeking to do here is explore the

Government's parameter. That is, why it was decided that men ought

not participate in the scheme. That is what we are exploring. You

understand that.

MR WALKER:

Well, you will have to ask the Government. I am afraid I can't help

you. I was not involved in the framing of the guidelines. What I say

is they were the parameters within which the trial was proposed.

MR WIGNEY:

I see. So this isn't something that the Department had any particular

input in? That is, who was able to participate in the scheme? This

was something that was simply imposed on the Department by someone

in the Government, is that what you are saying?

MR WALKER:

What I am saying is the Department provides advice to the Government

but the Government makes decisions and we implement the decisions

within the statutory framework.

MR WIGNEY:

Well, who made this decision? That is, who made the decision that

men would not be able to participate in this scheme? The Department

or the Government?

MR WALKER:

It is the Government.

MR WIGNEY:

I see. Did the Government make this decision before the or after

the intended first participants in this scheme expressed their concerns

about 'culturally appropriate living arrangements'?

MS McPAUL:

Mr Wigney, that is a question that is difficult for those of us at

the table to answer I think.

MR WIGNEY:

Why?

MS McPAUL:

We weren't involved in that original - we weren't involved in the

Department in this area of work at the time that those original decisions

were made. Ms Godwin may be able to assist you with that.

MR WIGNEY:

Can I take up - before we get back to the documents - one of Mr

Walker's points that he raised. That is, concerns expressed in the

local community. Where those concerns ever reduced to writing in a

way that we, that is the Commission, can examine it?

MR WALKER:

I am afraid I wasn't involved in the actual establishment of the scheme

or advising of it so I am not aware of whether it was, once again

---

MR WIGNEY:

Well ---

MS McPAUL:

Again, it is something that was before my direct involvement in the

program. However, it is my understanding that there was some extensive

community consultation including some participation by the Minister

in that process.

MR WIGNEY:

Well, can you take that question on notice and you can take on notice

that the Commission would very much like to see all relevant documents

which record or report on how it came to be that males were to be

excluded from this project? That obviously must be all the documents

in the Department's possession including, for example, documents that

record any concerns expressed in the local community. Can you undertake,

please, to produce those documents to the Commission if they exist?

MR BROMWICH:

Can I note at that point that necessarily that request can't extend

to material that stands within the hands of Government as opposed

to the Department?

MR WIGNEY:

I thought I made it clear that it was only documents in the possession

of the Department.

MR BROMWICH:

Just making it clear on the record.

MR WIGNEY:

I thought I did. In any event, we will come back to other aspects

of the residential housing scheme in due course but we went off on

that tangent because in the first document I was taking you to the

son of this particular family in the case study had expressed his

concerns or 'worries' I think is the word, about the fact that he

had been - he is not able to talk with his father any more, right?

That is because his father was back in Woomera detention facility

and he is in the Residential Housing Project.

MS McPAUL:

I think it might be helpful to put in context some of the arrangements

that operate between the Residential Housing Project and the Centre.

I think, Commissioner, as you were aware when we were both at the

Housing Project a little while ago there were regular and spontaneous

requests from the detainees to travel back to the Centre for one reason

or another and that is facilitated and was being facilitated at that

time. So it is my understanding that it is certainly possible for

Housing Project participants to travel to the Centre whenever they

need to or would like to. So it is my understanding that all the participants

including the members of this family would have had that opportunity

available to them.

MR WIGNEY:

I see. I am sorry.

DR OZDOWSKI:

Can I ask you a question because from my visit over there I got a

slightly different understanding of the situation and I understand

that there is some mechanism in place which may discourage women,

wives, going to the compound to meet the husbands. One of them, as

I understand, was the issue of finances. Could I ask you how much

per day a person is getting for living expenses for food, all expenses,

if a person is living in the Housing Project?

MS McPAUL:

Just before I go on to answer that I am not quite sure how that

relates to the question of whether people could travel backwards and

forwards.

DR OZDOWSKI:

I will come to it in a moment if you could answer first that question.

MS McPAUL:

Commissioner, I can get someone to check and tell you the specific

amount. It is a small amount per person per day aggregated for a family

unit.

DR OZDOWSKI:

Yes, I was told that it was $6 per person per day for food.

MS McPAUL:

It is in that order but I will get someone to check for you.

DR OZDOWSKI:

Yes. Then I was also told that if a woman decides to go to the

detention centre and spend a night with her husband then the $6 will

be deducted from her allowance, is that correct?

MS McPAUL:

Again, I would need to check the specifics of that for you.

DR OZDOWSKI:

Could you please check it because my understanding was that it was

one of the key issues which were inhibiting women from going to meet

their husbands in the compound.

MS McPAUL:

What I can say is that if a woman or family members decided to join

the rest of the family in the compound that they would have meals

and other activities provided for them in the compound so there would

be no requirement for them to have a separate meal allowance allocated

to them which they would otherwise use in the housing project. So

it is not a question of having both entitlements. It would be one

or the other.

DR OZDOWSKI:

Yes, thank you.

MR WIGNEY:

Before I ask you some questions about the visiting arrangements that

you just referred to I think I had intended to ask you one more question.

I would ask you whether the Department was of the view that the conditions

in which families resided at the detention facility that we have discussed

in evidence was regarded by the Department as 'culturally appropriate'

and I think you in your answer referred to the fact that there's a

distinction between the facility and the residential housing project.

I wonder if you could tell us, please, what that distinction is and

what that means in relation to the question I asked you, that is whether

the Department has a view about the appropriateness of the living

arrangements at the facility.

MS McPAUL:

I think in my previous answer I alluded to the fact that in the

compound there were entire family groups whereas the living arrangements

in the housing project required a number of families to live in a

particular house but without the male members of their family present

so that my understanding was that that was the element that differentiated

those two living arrangements.

MR WIGNEY:

Yes, but what we are trying to explore here is why. Why is it the

situation that it is not considered 'culturally appropriate living

arrangements' to have fathers and sons at a residential housing project

yet it is back in the detention facility? That is the question.

MS McPAUL:

I think that is probably a question best directed to the detainees

themselves. As Mr Kelly said, I can't speak on their behalf, I guess

I'm ---

MR WIGNEY:

I'm asking you the Department's view, Ms McPaul. In the Department's

view why is it not 'culturally appropriate' to have fathers and sons

in the residential housing project yet it is back in the detention

facility? I'm not asking what the detainees think, I'm asking you

what is the Department's view?

MR BROMWICH:

Well, I object to the question to this extent, Commissioner. It has

already been made clear that the way in which the alternative housing

facility was set up was a matter of government direction and necessarily

the two arrangements are quite different, one which has been identified

which is family units together with other males perhaps being in proximity,

versus women and children together not wanting other males outside

of their family unit to be present and they are two quite different

situations, one of which is arrived at by government policy and it

is unfair of this witness to be asked to, in effect, back door justify

government policy.

DR OZDOWSKI:

The Department in its submission used the words 'it is culturally

inappropriate' so it was very much a departmental submission and therefore

I see the counsel assisting is asking about the document which was

provided by the Department and asking to explain to departmental officers

why they use that phrase in departmental documents provided to this

Inquiry.

MR BROMWICH:

Yes, Commissioner, but there's a difference between asking why that

phrase was used in relation to the Housing Project which has already

been dealt with and what is now being asked, which is a comparison

between that and the arrangements within - with families within the

detention facility when that very difference is one that is arrived

at by government policy and it is a back door way of trying to have

a departmental officer justify government policy and that is unfair.

It is not the role of a departmental officer.

DR OZDOWSKI:

Counsel assisting, yes, I think if we could move on, I think,

yes, we could focus on the departmental policies but possibly the

departmental officers cannot respond what was in the Government's

mind when they were given marching orders, so to say.

MR WIGNEY:

I see. So just before we leave that topic we now - the position now

is, is it, that it was a government decision that fathers and sons

not be permitted in this project, not a departmental decision, is

that what you are saying? That was the basis of your counsel's objection.

MS McPAUL:

I think I've already indicated that that question might be one that

is more appropriate for Ms Godwin given that I was not part of the

division at the time that that was actually being - that piece of

work was being undertaken. I've explained to the best of my abilities

my understanding of that circumstance already.

MR WIGNEY:

You have - getting back to - I think you referred to the fact that

the participants in the Residential Housing Project were able to go

back to the detention facility and visit the fathers and sons, as

it were, right?

MS McPAUL:

Yes, that's correct.

MR WIGNEY:

How often were they permitted to do that?

MS McPAUL:

It's my understanding that individuals may visit the centre at any

time providing they have made a request to the staff at the Housing

Project and providing that there is no operational reason at the centre

that would preclude that happening.

MR WIGNEY:

How long were they permitted to remain back in the detention facility?

MS McPAUL:

As long as they would like to.

MR WIGNEY:

Are they able to, for example, have a meal with the fathers and sons?

MS McPAUL:

Absolutely, yes.

MR WIGNEY:

The situation was and still is, is it not, that the male sons and

the fathers are not able to go to the Residential Housing Project

and visit their families?

MS McPAUL:

No, that's not correct.

MR WIGNEY:

Are you saying that that is allowed at this point in time?

MS McPAUL:

There have been a small number of occasions when there have been visits

by other family members to the Housing Project.

MR WIGNEY:

A small number of occasions. How many?

MS McPAUL:

Look, I would have to take that on notice to give you an exact number.

It's my understanding that they have visited on more than one occasion

during the day at the centre.

MR WIGNEY:

Can I ask that you be shown this document? Now, that is a document

that has been provided to the Commission by the Department and if

you turn to have a look at the front page I think there's some information

that has been provided by the Department and also provision of a document

which is headed Fact Sheet, 83, the Woomera Alternative Detention

Arrangements for Women and Children Project. Do you see that?

MS McPAUL:

Yes.

MR BROMWICH:

Sorry, I have just been provided it so I can see what is being referred

to. Would it be possible for me to have a copy? We did write and ask

to be advised which documents were going to be referred to and we

were told that copies would be - plenty of copies would be available.

MR WIGNEY:

Well, they are the Department's documents actually but we've got ---

MR BROMWICH:

Yes, but we've provided 50 volumes of documents, Mr Wigney.

MR WIGNEY:

In any event, we will arrange for copies in due course. On the

right-hand column of this page there's a sub-heading, Visits. In the

second paragraph it is recorded that detainees from the IRPC, that

is the Woomera detention facility, are not able to visit the Project.

Do you see that?

MS McPAUL:

Mr Wigney, you might be aware that this particular document is dated

3 August 2001 and there are later versions of this fact sheet and

- which will show what I just advised you is consistent with the current

fact sheet.

MR WIGNEY:

Well, this fact sheet was provided to the Commission by the Department

last week.

MS McPAUL:

This is an earlier version, that is correct. These fact sheets are

updated from time to time and I believe we also advised you that documents

that were already publicly available on our web site would not be

reproduced to you.

MR WIGNEY:

I'm just trying to understand why in answer to a notice that the Commission

has served on the Department you gave us a fact sheet that was on

your evidence out of date.

MS McPAUL:

I believe the reason this particular fact sheet was provided was that

it contained information regarding the criteria at the time for participation

in the Housing Project and it was current at the time that the Housing

Project was established last year and it was in response to the specifics

of that particular notice.

MR WIGNEY:

Do you know or are you speculating that there is a fact sheet in relation

to this project in existence now that records that detainees from

the facility are able to visit the Woomera housing project?

MS McPAUL:

There is a later version of the fact sheet. I would need to check

the exact wording of it.

MR WIGNEY:

Well, is it policy that at this stage that the detainees from

the detention facility are able to visit the project or is that just

dealt with on an ad hoc or case-by-case basis?

MS GREAVES:

I think, Mr Wigney, these sorts of issues have to be dealt with on

a case-by-case basis. We have to operate within the legislation which

is legislation which requires the Department to keep people in detention.

So questions of moving people from place to place and to a more -

an environment where there is less security always have to be taken

on a case-by-case basis. That is our responsibility as public servants

implementing the legislation.

MR WIGNEY:

All I'm asking is whether it is now part of the general policy that

detainees are able to visit the facility or not. I'm sorry, able to

attend the Residential Project or not.

MS McPAUL:

It is my understanding that it is possible for them to do that on

a case-by-case basis and that it has occurred on more than one occasion

in the past few months.

MR WIGNEY:

Okay. Now, sorry, we haven't got very far through this case study

yet, we are still on document 1. Let us just move on. As I said, we

went off on to that tangent because of the record in this document

of the son expressing his worries about - and upset about the fact

that he can't talk to his father. Can I just take you some other parts

of this document, please? You will see that still on page 3 of the

document we have the authors recording an interview with [name removed]

who is an ACM psychiatric nurse, do you see that?

MS McPAUL:

Yes, I can see that.

MR WIGNEY:

He refers at the bottom of the page to the fact that the father is

'deeply depressed' and if you go over to the next page, the third

paragraph on the page, [name removed], the psychiatric nurse makes

some reference to his observations about the son. Do you see that?

MS McPAUL:

Who is making the observation?

MR WIGNEY:

[Name removed] who is the ACM psychiatric nurse.

MS McPAUL:

This is on page 3? On page 4, yes.

MR WIGNEY:

Now, we will come back to [psychiatric nurse]'s assessment in due

course but you will see then there is a major sub-heading on the page,

Assessment of Allegations, and that records the assessment of these

officers from Family and Youth Services to the effect that the child

in this family is exhibiting clear signs of severe stress, sleep talking,

nightmares, sleep-walking, indicated deep-seated trauma. The current

stressors of detention and his parents' depression are clearly causing

the son extreme distress, making his attempts to self-harm more likely

to be emotionally-based, not behaviourally-based as purported by the

Psychiatric Nurse.

That is referring

to [the psychiatric nurse]'s assessment. Do you see that?

MS McPAUL:

Yes, that's here.

MR WIGNEY:

Then you will see at the bottom of the page a recommendation that

the Port Augusta CAMHS - I think that is the Child and Adolescent

Mental Health Service - that is, again a state service, South Australia,

'be contacted to ascertain if they can provide a consistent counsellor',

with consistent being emphasised, 'who can provide regular contact'

with the son 'in an attempt to establish some sense of trust before

proceeding to therapeutic counselling.' If you then go over to the

next page, again the authors of this document refer with some emphasis

to the fact that 'consistency is critical'. Now, one of the questions

I have for you is this: is it the situation that counsellors at the

Woomera centre who deal with these sorts of issues are on a six-week

rotation basis?

MS McPAUL:

Yes, look, I think the questions about specifics of employment are

a matter for ACM.

MR WIGNEY:

I'm sorry, I missed that.

MS McPAUL:

Sorry, I said I think the specifics of questions relating to employment

with ACM are a matter for ACM.

MR WIGNEY:

You are an Assistant Secretary in this area that deals with detention,

are you not?

MS McPAUL:

The staffing arrangements for the provision of the outsourced

detention services are a matter for the company.

MR WIGNEY:

Well, what about Mr Kelly who, as I understand it, had some role

in relation to Woomera? Does he know?

MR KELLY:

I think the question has been asked and answered, Mr Wigney.

MR WIGNEY:

Well, I don't know the answer. I'm asking a simple question. Are the

counsellors at Woomera detention facility now or in the past on a

six-week rotation basis? Do you know?

MR KELLY:

I don't know of every counsellor or the employment of every staff

member within Woomera. I know that ACM as a company have encouraged

many of their staff to take up lengthy contracts to live and work

in the Woomera facility but I couldn't honestly say to you that every

staff member is like that or whether some staff members are on short

duration contracts. I think the question that was asked was: do you

know? The question has been answered: no, we don't know and we think

the question should be posed to ACM.

MR WIGNEY:

You monitor ACM's provision of services, don't you, you being the

Department?

MR KELLY:

Yes, it's outcome-generated, as Ms Godwin mentioned yesterday, not

input.

MR WIGNEY:

Are you seriously suggesting that you as the monitors of the service

provided by ACM don't know a simple fact such as whether counsellors

employed at the facilities are or are not employed on a six-week rotation

basis?

MS McPAUL:

That is not what we're saying. What we're saying is that we have

some understanding but if you - you have access today to the specifics

from the company directly and that may be the best source of confirming

the particulars that you're asking.

MR WIGNEY:

Well, I don't know whether it is appropriate at this stage to ask

if Mr Rushton is able to assist in that regard or whether ---

MR RUSHTON:

I'm sure we can assist. I will just have to get some instructions

as to the precise ---

DR OZDOWSKI:

Possibly - can't we return to this question closer to the end of that

session. I will allocate some time for ACM to respond to this part

of your question.

MR WIGNEY:

Very well. The next document we have in this case study you will

see is a page or two further on. It is circled number 2 and you will

see that it is a document, minute or memorandum on ACM letterhead,

its author being [name removed], the registered psychiatric nurse,

do you see that?

MS McPAUL:

Yes, I have that document.

MR WIGNEY:

It is addressed to [name removed] who is in fact - and this becomes

apparent in due course - the Department Deputy Manager at the Woomera

facility at that time, right?

MS McPAUL:

That's correct.

MR WIGNEY:

Now, the subject of this particular memorandum is the father and

his family again, do you see that, the subject?

MS McPAUL:

Yes, I do.

MR WIGNEY:

Indeed, what the author of this document has done is to include some

information about each of the family members and in particular their

mental state. Do you see that?

MS McPAUL:

Yes, I believe that's here.

MR WIGNEY:

Just dealing firstly with the father who is dealt with firstly

in this document, you will see about seven lines down it is recorded

in a sentence by the author of this document that the mental state

of the father has deteriorated dramatically in the past month. He

was generally a happy man who is devoted to his family. His wife and

son have been living in community housing for some eight months now

and he misses them very much even though he feels that they are better

off there.

Do you see that?

MS McPAUL:

Yes, that's on the first page.

MR WIGNEY:

Recording, I think you would agree, that the father is exhibiting

some signs of distress about his separation from his family?

MR BROMWICH:

Well, that connection is not there in the document, with respect.

My friend is making that connection but that is not what is in the

document.

MR WIGNEY:

Over the page there's a title, Summary. Still dealing with the father,

there's a reference to 'abject depression with continual suicidal

ideation' and then this reference - I won't use the name, of course:

The father is

a proud man who finds it degrading that he has no control over his

family's future and he now views his existence as futile.

Right?

MS McPAUL:

I think it would be important to put in context the situation for

this particular family which, as I understand it, does have a degree

of agency that they could exercise in the circumstance.

MR WIGNEY:

I'm sorry?

MS McPAUL:

I said I think that we need to put in context the situation for this

family which is that they do have a degree of agency that they can

exercise in this context. As I understand it, this family has the

ability to make a choice to return to their country of origin and

that is certainly within the control of the family to make that decision.

MR WIGNEY:

We might come back to that in a moment because that raises a number

of issues but in any event at this stage they are in detention and

this document is dated May and at this stage, as I understand it,

there was still an outstanding appeal, so can we please deal with

the chronology as we go. You see there there's a reference to the

fact that the father has expressed and the assessment of this psychiatric

nurse is that he finds it degrading that he now has no control over

his family's future and he now views his existence as futile. It is

plain from this assessment, is it not, that the separation of this

father from his family is causing the father stress and mental problems?

MR BROMWICH:

Well, I object to that again. That is what my friend is reading

into the document but it is not taking into account the total situation

and in particular - and I don't know one way or the other -but it

is silent as to the visa processing status of this family. To isolate

it as being due to detention only may or may not be correct but the

document does not say that and you are suggesting it does.

MR WIGNEY:

We are talking here about children in immigration detention. I just

see it at this stage and I'm not suggesting that it is relevant in

any event but at this stage, that is at May, there was still an outstanding

appeal afoot.

MR BROMWICH:

In other words, he had failed in his determination and he had been

found not to be a refugee and that could equally account for the lack

of control over his family's future.

MR WIGNEY:

Well, Mr Bromwich can take an oath and give some evidence if he

really wishes to do so.

MR BROMWICH:

Well, you are putting a proposition from a document that does

not stand in the face of the document and it is unfair to put to a

witness that a document says something that it simply does not and

you know that from any ---

MR WIGNEY:

The document says this, does it not, Ms McPaul:

..... is a proud

man who finds it degrading that he has no control over his family's

future and he now views his existence as futile.

Right?

MS McPAUL:

That's what the document states.

MR WIGNEY:

The next assessment by this psychiatric nurse talks about the mother

and I want to take you to just simply one passage and it is the last

sentence of the psychiatric nurse's summary and it records this, does

it not:

It is obvious

that the continued separation from her husband and the behavioural

problems of her son is having an adverse effect on her.

Right?

MS McPAUL:

Again that's what the document states.

MR WIGNEY:

Recording that in this psychiatric nurse's view the separation

of this woman from her husband, being a separation as a result of

her being in the Residential Housing Project, is having an adverse

effect on her, right?

MS McPAUL:

I'm not sure that's what the document actually states.

MR WIGNEY:

I see. Next we have the psychiatric nurse dealing with the son and

I just want to take you to one passage there under the summary. Well,

I will read the whole summary:

The son often

presents as a very angry young man who is very worried about what

is happening to his parents. His behaviours are such that he is trying

to assert his inner strength but it is obvious that he is not coping

with the breakdown in the family life.

Then over the

page we have the psychiatric nurse's family summary:

The family is

a typical family, whose bonds are being broken by continued separation,

resulting in a disintegration of the functioning of the family unit.

Do you see that?

MS McPAUL:

That's what's written here, yes.

MR WIGNEY:

The recommendation of this psychiatric nurse recorded at least

in the last sentence:

It would be

reasonable to suggest that the answer to these problems is a positive

response to their bridging visa application.

See that?

MS McPAUL:

That's written here.

MR WIGNEY:

If it wasn't obvious before it is obvious now, is it not, that this

psychiatric nurse's assessment is that the separation of the father

from his wife and child is causing considerable distress and breakdown

in family relationship?

MS McPAUL:

Well, it appears that the nurse has indicated some views here,

yes.

MR WIGNEY:

Now, that is as at 20 May. We have a week later, the next document,

document number 3. I should indicate at this stage, regarding the

reference to a bridging visa, I will come back to bridging visas in

due course. The next document, document 3, is an Incident Report of

27 May and that has been created by an officer of ACM, right?

MS McPAUL:

Sorry, the date, 27 May?

MR WIGNEY:

Yes.

MS McPAUL:

Yes.

MR WIGNEY:

Now, at this stage it would appear, and just take a moment to look

at the document if you wish, that the father is still in the detention

facility at Woomera and the mother and son are still accommodated

in the Residential Housing Project. That appears in the second paragraph

under Background.

MS McPAUL:

Yes, that's what's stated here.

MR WIGNEY:

Just in general terms, what this document records is particular incidents

first involving the mother slashing herself with a razor blade and

also recording an incident where the father had attempted to hang

himself, do you see that?

MS McPAUL:

That's the subsequent two paragraphs you're referring to?

MR WIGNEY:

Yes. Take your time to read the document. You will see on the

second page of that document under Action/Recommendations, the last

- well there is a reference there to the entire family ought continue

to receive counselling and regular visits from the psychologist, but

the last dot point it that the psychologist has recommended that the

mother and son 'be returned from the Housing Project to be permanently

accommodated in the November compound' at the detention facility,

right?

MS McPAUL:

It does state that here, yes.

MR WIGNEY:

Can you just tell us what the November compound is?

MS McPAUL:

It's one of the accommodation compounds at the Woomera IRPC.

MR WIGNEY:

Is it one in the old part of the facility or the new part of the

facility?

MS McPAUL:

It's in the new part.

MR WIGNEY:

Thank you. Trying to move through these documents as quickly as possible,

the next document we have is another Incident Report the following

day, again created by an officer of ACM, and this one is reporting

an incident whereby the son now, and I remind you the son is aged

12, has been observed to have slashed his forearm with a razor.

MS McPAUL:

That's - where are we looking, page 2 of that document?

MR WIGNEY:

Yes.

MR BROMWICH:

Well, I object to the use of the word 'slashed'. That is not accurate.

When one goes back to the previous document that is not accurate either.

MS McPAUL:

I think it says 'allegedly cut himself'.

MR WIGNEY:

Let us just say 'cut' then.

MR BROMWICH:

Well, the word is 'superficial injury' in the previous document.

MR WIGNEY:

He has cut himself with a razor blade, has he not?

MS McPAUL:

Are we looking on the 28th or the 27th now, Mr Wigney?

MR WIGNEY:

Yes, document number 4, under the narrative:

The son was

brought up to the medical clinic with his mother by Detention Officers.

And just a ---

MS McPAUL:

Yes, it states here that he 'allegedly cut himself with a razor'.

MR WIGNEY:

It also records that the incident has now been reported to FAYS,

that is Family and Youth Services, right?

MS McPAUL:

That would be the normal practice.

MR WIGNEY:

Now, the next document is - that is document number 5 - a document

written by the Deputy Manager at the Woomera detention facility on

29 May, it is a facsimile message, to a doctor. Do you see that?

MS McPAUL:

Yes.

MR WIGNEY:

This document - and take your time to read it if needs be - is a request

by that Deputy Manager for the doctor to provide some information

so that an assessment can be made as to a bridging visa for the detainees,

that is, the family that we are talking about, right?

MS McPAUL:

That is correct.

MR WIGNEY:

You will see that the document indicates that a report from ACM has

been annexed and that ACM have indicated that:

this family

may have conditions that cannot be cared for within a detention environment.

Right?

MS McPAUL:

Yes, that is what is written here.

MR WIGNEY:

And it has asked this doctor to provide an assessment for the purpose

of seeing whether a bridging visa may be appropriate to be issued

in relation to this family, right?

MS McPAUL:

That is what is written here, yes.

MR WIGNEY:

Well, it would appear, Ms McPaul, that we haven't received - that

is the Commission - has not received any documents indicating any

response to this facsimile message by the relevant doctor. Are you

able to offer an explanation for that? Are you aware of whether there

ever was a response?

MS McPAUL:

I'm not personally aware, no.

MR WIGNEY:

If there was a response, might we expect that the Commission would

have received it in answer to the notice?

MS McPAUL:

If the Department had that document and it fell within the scope of

the notice, we have certainly done our best to provide everything

that we had available.

MR WIGNEY:

So you are not able to offer any indication, one way or another, about

whether a response ever was received by the Department from this doctor

in relation to this assessment, relating to a bridging visa, is that

right? You don't know one way or another?

MS McPAUL:

I would need to check for you, but it is my understanding that the

Department has done a thorough search and provided you with all documents

relevant to the notice.

MR WIGNEY:

Well, you might just take that question on notice as well and

attempt to ascertain for us, please, whether there ever has been a

response to that ---

MS McPAUL:

To this particular Inquiry on 29 May?

MR WIGNEY:

Yes, whether the doctor referred to in that facsimile message ever

responded to this request. Now, the next document, document number

6, is a report from the Family and Youth Services - take your time

to look at it if you wish - but it would appear to be - you recall

from the earlier incident report we referred to relating to the son

cutting himself with a razor blade, that the Family and Youth Services

were contacted, this would appear to be a Family and Youth Services

report in relation to that incident and its investigations.

MS McPAUL:

Which other document are you relating that to?

MR WIGNEY:

Well, if you go back to document number ---

MS McPAUL:

The one dated - number 3.

MR WIGNEY:

Number 4, it is the incident report, referring to the son cutting

himself with a razor. The incident being reported to FAYS, that is

Family and Youth Services, and you will see in the first paragraph

of document number 6, which is a report by FAYS, referring to that

incident on 27 May. Do you see that?

MS McPAUL:

Yes, I guess, I'm a little confused because the dates in the second

document, the 6th, relate to the 27th. Whereas, the document number

4, relates to issues that happened on the 28th, as I understand it.

MR WIGNEY:

Well, it may in fact relate to the notification that was received

in relation to the incident report which is document number 3, but

in any event it does refer to an incident - whether the date is a

day out or not does not really matter, it seems - but an incident

where the son appears to have cut himself with a razor and it also

refers in the same paragraph to the fact that the mother also cut

her arm on 26 May, and the father made another suicide hanging attempt

on 27 May as well. Do you see that?

MS McPAUL:

Yes, that is here.

MR WIGNEY:

Then, indeed, there is also a report of another incident here,

where the son is reported to have - and this time the word 'slashed'

is used:

slashed his

forearm in several places.

MS McPAUL:

Yes, that is in inverted commas.

MR WIGNEY:

Yes. Now, it would appear that he officers from the Family and

Youth Services who authored - or the officer who authored this document

- interviewed certain persons and formed an assessment, that assessment

being set out on page 2 of the document, do you see that?

MS McPAUL:

Are we referring to the paragraph at the bottom of the page?

MR WIGNEY:

At the bottom of the page.

MS McPAUL:

Yes.

MR WIGNEY:

It refers to the fact that:

The son is the

only child in a family where both parents are severely depressed and

unable to parent him. Consequently, he has taken on the role of the

'man of the family' and mother's 'protector'. He displays this by

being (often) rude, arrogant and 'bossy' with adults.

It refers to

the fact that:

This generally

means that he is not well liked by staff

Do you see that?

MS McPAUL:

Yes, that is written here.

MR WIGNEY:

Then, over the page there is a further assessment of the child, and

it has referred to the fact that, in this officer's assessment:

He is at ongoing

risk of self-harm and his parents are unable to support and help him.

And a recommendation:

that there be

an urgent and comprehensive assessment by a Child Psychiatrist.

Do you see that?

MS McPAUL:

Yes, that is here.

MR WIGNEY:

Right, that is 6 June. Yes. I'm sorry, I had meant also to refer you

in this document to the second paragraph in the recommendation by

the officer from Family and Youth Services:

it is recommended

that this child and at least one parent be released from detention

- on a bridging visa - in order to facilitate this child's ability

to be engaged by a counsellor or therapist. Whilst in the detention

environment this child has lost all trust in the adults associated

with the Woomera Centre.

MS McPAUL:

You were referring to the last paragraph, I think, Mr Wigney?

MR WIGNEY:

Yes.

MS McPAUL:

Yes, that is here.

MR WIGNEY:

Now, the next document we have in this bundle ---

DR OZDOWSKI:

We will have a break at 11 o'clock, but continue until 11 o'clock.

MR WIGNEY:

The next document we have is a minute from the Department authored

by the DIMIA - the Department Deputy Manager at the Woomera detention

centre and it is dated 7 June on the second page, do you see that?

MS McPAUL:

Yes, that is [name removed].

MR WIGNEY:

It is again referring specifically to the medical and psychiatric

assessments of the members of the family that we have been discussing,

do you see that?

MS McPAUL:

Well, it also refers to some other detainees as well.

MR WIGNEY:

Yes, it does. It then records the Department Deputy Manager as saying

this that:

In all cases

-

I'm sorry, it

is addressed to the ACM Health Services Manager, and refers to the

fact that:

In all cases,

your staff's -

that is ACM staff's

-

reports on the

abovenamed have indicated that the detainee (or a detainee/number

of detainees in the family) have medical and/or psychiatric conditions

which cannot be adequately cared for within the detention environment.

Do you see that?

MS McPAUL:

Yes, that is the paragraph under the list of names.

MR WIGNEY:

That is right, and it is requesting to assist in the Department's

assessment of management options of those - or these detainees - including

the family that we have been discussing, requesting the ACM Health

Services Manager to:

provide some

reports detailing the precise medical and/or psychological conditions

and the treatment needed, treatment currently being provided and the

like.

Do you see that?

MS McPAUL:

Yes, that is here.

MR WIGNEY:

Again, along a similar vein we have the next document, document number

8 of the same date. We have another minute again from the Department

Deputy Business Manager at Woomera detention facility, addressed to

various officers from ACM, requesting a priority referral to the child

and adolescent mental health service for psychiatric assessment of

the son. Do you see that?

MS McPAUL:

Yes.

MR WIGNEY:

Next, we have a document, being a letter, or a minute, from the

registered psychologist employed by ACM, it would appear at the Woomera

detention facility and it is dated 18 June 2002. Do you see that?

MS McPAUL:

Yes.

MR WIGNEY:

The subject being again the family that is the subject of this case

study that we are going through, right? You will see that this particular

officer has reviewed the reports and in terms of updated information

she refers to the fact that:

the family has

further deteriorated as a unit and individual self-harming behaviour

has increased.

If one goes over

to the second page, we now have this psychologist's assessment. It

records, amongst other things does it not that:

The father is

showing acute symptoms of Chronic Stress Disorder with Major Depressive

Disorder.

Do you see that?

MS McPAUL:

The father, are we speaking about?

MR WIGNEY:

Yes.

MS McPAUL:

I'm sorry, just what were you asking me to refer to?

MR WIGNEY:

The ACM registered psychologist has recorded his condition as at this

date, that is 18 June 2002, as:

Showing acute

symptoms of Chronic Stress Disorder and Major Depressive Disorder.

Do you see that?

MS McPAUL:

Yes, I can see that.

MR WIGNEY:

The mother is reported as having:

Major Depressive

Disorder.

Do you see that?

And then the son is reported as being:

completely dysfunctional

for his age and experiences bouts of depression and uncontrollable

rage. Although he believes that he is fulfilling the correct role

in the family, the stresses for a young boy to represent the family

under these circumstances is pushing him into extreme and dangerous

behaviours.

Then there is

a reference to the fact that:

Previous intervention

has been on-going counselling, psychological intervention, medication

and time out of hospital -

I'm sorry -

time out in

hospital.

And then there

is this reference:

The severe family

breakdown parallelling the psychological breakdown of the father,

plus the growing concerns regarding the son's role, needs to be addressed

in an environment in which stronger psychological and community interventions

can occur. The son in particular, requires input which is more appropriate

to a child his age, which is outside of the role which he has acquired

at the detention centre.

Do you see that?

MS McPAUL:

Yes, that is here.

MR WIGNEY:

Can I suggest this to you, that what the registered psychologist is

effectively reporting here, is that she is unable to address the problems

of this family in the detention facility because the detention facility

itself is the very cause of these psychological problems? What do

you say about that?

MR BROMWICH:

Well, I object to the question, it is not a fair question available

on the documents, it just isn't. The connection is not anywhere in

the documents, it is not to be found in the documents. The fact that

these things are occurring does not justify the cause and effect or

conclusion that stands within that question.

MR WIGNEY:

I don't think it much matters.

DR OZDOWSKI:

Yes. I disagree with your statement to me, the statement is clearly

saying that the family needs to be out of detention in order that

the psychological and psychiatric problems could be addressed.

MR BROMWICH:

That is within the document, Commissioner. With respect, what

my friend asked was not within the document. There is a difference

between the document indicating that there may be a need to be outside

of the detention centre for treatment and saying the detention centre

is the cause of the problem, and that is what my friend has put and

that is not what is within the document.

MR WIGNEY:

I'm not - I am asking the officer what her views are about being someone

that is familiar with this case ---

MR BROMWICH:

Close.

MR WIGNEY:

---at the time and as a result of having been put on notice that

we were going to deal with this case study. Whether that is her opinion,

having read this document, that that is what the officer is in effect

saying, now, that is a permissible question.

MR BROMWICH:

The question that is being put is that this document indicates that

the detention is the cause of the illness. The document does no such

thing. It is an unfair question. It is not fairly available from the

document and it should not be asked.

MR WIGNEY:

I think the document speaks for itself, in any event, I will move

on because there are others that make it even more plain. The next

document is document number 10. We have now an involvement of a doctor

at the Royal Adelaide Hospital, that is a - well, I won't name the

doctor - it is a letter dated 27 June 2002, do you see that?

MS McPAUL:

27 June, yes, that is the date on this document.

MR WIGNEY:

I won't take you to too much detail in this document but it seems

to deal specifically with the father in this family, right?

MS McPAUL:

Broadly I think, yes.

MR WIGNEY:

It is suggesting, or rather referring him to Brentwood in order

to have a psychiatric assessment. Are you able to assist us as to

what 'Brentwood' is?

MS McPAUL:

Look, we would need to confirm for you, but we understand that may

be part of the Glenside Medical Facility.

MR WIGNEY:

The letter also records the fact that ---

MR BROMWICH:

If I could assist. The heading of the letter would indicate what

it is. It is addressed to The Assessing Doctor, Brentwood Intensive

Care, Glenside Campus.

MR WIGNEY:

It would seem to be some sort of psychiatric unit in the hospital?

MR BROMWICH:

Well, it is a mental health service, if you look at the heading of

the document.

MR WIGNEY:

In any event, I just want to take you to one passage in this letter,

if I may. It is in the second paragraph, and if you just read that

to yourself for the moment, please. I will use the precise words in

the document, or Mr Bromwich will object:

She -that is

the mother - and staff are also very concerned about the 12-year-old

son who has become increasingly disturbed as he sees his father become

more withdrawn and bizarre.

MS McPAUL:

That is the wording of the document.

DR OZDOWSKI:

Could you speak up. It is so difficult ---

MS McPAUL:

That is the wording of the document.

MR WIGNEY:

Now, the next document I want to take you to is document 11 in this

bundle of documents.

DR OZDOWSKI:

I think, counsel, it is the last document before we will break for

coffee.

MR WIGNEY:

Yes, and I will see if I can speed up a little bit going through these

documents, but it is a memorandum from ACM, the Acting Health Services

Manager, and it is attaching medical treatment plans. It is addressed

to the Centre Manager and the DIMIA Manager at the Woomera detention

facility, right?

MS McPAUL:

It is addressed to the ACM Manager with a drop copy to our manager,

that is correct.

MR WIGNEY:

If you go over the page we have attached to it the treatment plan

that is referred to and it is apparent that it is a treatment plan

in respect of the family that we have been dealing with this morning,

right?

MS McPAUL:

Yes, it relates to that family.

MR WIGNEY:

And the first box of this plan refers to: identified areas of concern,

and amongst other things it refers to 'decreased ability to function

as a family unit', right?

MS McPAUL:

That is listed here, yes.

MR WIGNEY:

And, without going through the whole document, we have got down at

the bottom of the page:

Recommendations

for Ongoing Management: Nil improvement likely in current detention

setting; Removal of child from negative environment; Alternative housing

would assist in family bonding and reduce damage caused by exposure

to self-destructive behaviour and increase residents' ability to cope

and care for child.

Right? Do you

see that?

MS McPAUL:

That is here on this page, yes.

MR WIGNEY:

Now, we are now in July of 2002 and it is apparent, is it not, that

what has occurred as a result of a recommendation is that the son

and the mother have come back to the detention facility from the Woomera

Housing Project, right?

MS McPAUL:

I understand they came back some time earlier, yes.

MR WIGNEY:

Yes. And what this ACM officer is recommending is alternative housing,

that is, removal from the detention facility at Woomera, do you see

that?

MS McPAUL:

Alternative housing would assist, they said here, yes.

MR WIGNEY:

Well, that might be an appropriate time…

MR BROMWICH:

Commissioner, there is just one brief matter I just want to raise,

and it is a more generalised concern. The level of detail which this

has gone into I am advised may well have led to already an inevitable

identification of the people to whom it refers because there's been

other reporting, I gather, elsewhere where names have been used. I

just wish to register a concern in this regard, it is something we

indicated by letter last week that, depending on where the questioning

went, the concerns about confidentiality might well be breached. All

I can do is register that concern, I can't know whether that is the

case but it would seem that that is at least a distinct risk.

DR OZDOWSKI:

Yes, thank you for registering your concern. Can I assure you that

we selected these particular four cases only and we obtained all necessary

agreements from people who were concerned. So that has been taken

care of.

MR BROMWICH:

That is a matter for the Commission; I'm just simply registering

our concern.

DR OZDOWSKI:

Thank you. Could I also, that is after we break for coffee, ask counsel

assisting and counsel for ACM to approach the table, I would like

to discuss with you some arrangements, thank you.

SHORT BREAK

[11.05am]

RESUMES [11.20am]

DR OZDOWSKI:

I think

we are ready to recommence. So counsel assisting, if you could start

asking questions please.

MR KELLY:

Commissioner, may I just clarify one element and correct one element

from earlier this morning, please?

DR OZDOWSKI:

Yes, please, please do it.

MR KELLY:

The issue about the food allowance at the residential housing project,

I've now received advice that it is actually $7 per day per person,

irrespective of the age of the individual, should they return to the

centre to have a meal with other family members. There is no deduction,

repeat, no deduction, to that allowance that has been paid. Information

on this was actually provided to Pru Goward during her visit to the

centre on 30 August this year.

DR OZDOWSKI:

Thank you for this clarification. Anything else you would like

to add?

MR KELLY:

No, thank you, Commissioner.

MR WIGNEY:

Ms McPaul, I want to keep going through these documents and I

will try and speed things up so we can get to the other case study

in due course. I want to keep going through these documents but I

want try and speed things up but you will appreciate that these documents

are dealing with fairly significant and important matters are they

not?

MS McPAUL:

Well, we consider that detainees in our care are owed a duty of care

by the Department, yes.

MR WIGNEY:

So as to avoid being accused of being unfair, I'm not going to

take you to all of these documents so we can speed up but of course

you should ought feel free to point out anything in any of the other

documents that I don't specifically take you to that you consider

it to be of significance, do you understand?

MS McPAUL:

I'm happy to proceed on that basis.

MR WIGNEY:

And likewise, if you think I'm going too fast then tell me and I'll

slow down again?

MS McPAUL:

Okay.

MR WIGNEY:

We are up to document number 12, I think?

MS McPAUL:

Yes.

MR WIGNEY:

It is a letter of 23 July and it is authored by a doctor who was a

Fellow in Child Psychiatry at the Women's and Children's Hospital

in Adelaide and also a Senior Clinical Psychologist and it is addressed

to the Manager of ACM at Woomera and you will see that its topic is

the family that we have been discussing in evidence this morning.

Do you see that?

MS McPAUL:

Yes, I do.

MR WIGNEY:

In an effort to speed things up I'm just going to take you straight

to the recommendations but again feel free to refer to any other parts

of the document if you wish. The first of the paragraph under the

heading, Recommendations on page 5 of the document says:

Given the significant

disintegration of this family and the breakdown of all normal roles

and relationships, it is imperative to do what we can to provide this

family with structure and mechanisms to reconcile itself as soon as

possible. Anything that can be done to re-establish normal relationships

for this family is highly recommended.

And you will

see then some following paragraphs referring, amongst other things,

to the detention environment and then there are a number of numbered

recommendations, the first of which is:

We recommend

that the son and his family be removed from the detention centre as

a matter of urgency. The son's emotional deprivation and PTSD -which

is Post-Traumatic Stress Disorder -

cannot be treated

in the detention context, because that environment is contributing

to it. Continuing detention increases the risk of self harming behaviour

and increased traumatisation.

Do you see that

recommendation?

MS McPAUL:

Yes, that recommendation is here.

MR WIGNEY:

The next - the third recommendation is:

We do not believe

that separating the family at this stage would be in their best interests.

However, we do feel strongly that further detention in the centre

would be detrimental to their mental health and may pose significant

risk as it could result in serious self harm attempts.

Do you see that?

MS McPAUL:

That's paragraph 3?

MR WIGNEY:

Yes. Now, just to put this in a little bit of context, Ms McPaul,

this is dated 23 July and you will agree, and you can go back to the

documents in due course if you need to, but the first - the Department

first received a suggestion that the - a resolution to the problems

that this family was having might be a bridging visa, was raised with

the Department way back on 20 May and that is in document two if you

want to go back to it, right?

MS McPAUL:

I'm not sure whether that's the first time or whether there were other

occasions on which it might have been raised, but in these documents

there is a reference to them.

MR WIGNEY:

It may have been even earlier than May that this was first raised

as a serious issue and that a bridging visa might be a resolution,

at least in May, and it may have been earlier, right?

MS McPAUL:

According to the papers that we have looked at this morning there

are some references to bridging visas there, yes.

MR WIGNEY:

And in document number five which was a document I took you to earlier

today. That was the Department itself writing to a doctor asking for

an assessment for the purposes of considering a bridging visa, that

is on 29 May. So we have got that almost two months ago previous to

this letter, right?

MS McPAUL:

The other document?

MR WIGNEY:

Yes.

MS McPAUL:

That is dated, I think, as you said, 29 May.

MR WIGNEY:

And for those two months we have got the family continuing to reside

in the Woomera detention facility, that is, no longer in the Residential

Housing Project?

MS McPAUL:

I understand that they are currently in the IRPC.

DR OZDOWSKI:

I can't hear it?

MS McPAUL:

I believe that they are currently in the Woomera IRPC.

MR WIGNEY:

Yes, we will come to that in a moment, but this letter makes it as

plain as day, does it not, that a senior psychiatrist has said that

continued detention increases the risk of self-harming behaviour,

that the son and his family be removed from that environment because,

amongst other things, that very environment is contributing to those

mental problems. It is clear as day from this document, isn't it?

MS McPAUL:

It might be - sorry, yes. There are some views expressed in these

documents, I don't know that I would necessarily concur with all of

them.

MR WIGNEY:

You wouldn't concur with them?

MS McPAUL:

Well, you have made some - some very broad assessments there as

to - to what you consider to be represented in these documents.

MR WIGNEY:

I see, I have made some broad - have I?

MS McPAUL:

Yes, I believe so.

MR WIGNEY:

I see:

The son's emotional

deprivation and post traumatic stress disorder cannot be treated in

the detention context, because that environment is contributing to

it.

Can it be any

clearer than that?

MS McPAUL:

I think - I think the important word there is 'contributing'.

There may be any number of other factors aside from that which are

also at play here.

MR WIGNEY:

Well, assume for present purposes that there are other factors, it

is still a serious suggestion, isn't it, that the very environment

in which this young boy is detained is contributing to his health

problems?

MS McPAUL:

It is a view being expressed by a particular psychologist, I understand

that.

MR WIGNEY:

Let me, in the interests of speeding things up a bit, jump through

a few documents and take you to document number 16 and you will see

that that is a letter addressed to the Manager of ACM at Woomera dated

19 August 2002 and it's authored by a doctor, in fact, the Head, it

would appear of the relevant unit of the Women's and Children's Hospital

in Adelaide, do you see that? Head of the Department of Psychological

Medicine?

MS McPAUL:

At the Women's and Children's Hospital, yes.

MR WIGNEY:

And this letter, it would appear from page 1, deals specifically with

the son, right?

MS McPAUL:

I guess it does.

MR WIGNEY:

Again, in the interests of speeding things up I want to take you -

or I will have to take you to some of this in - I will take you to

a couple of passages in this document please on page 2.

MS McPAUL:

Page 2?

MR WIGNEY:

You will see the paragraph commencing with the words, 'I explored

in detail'?

MS McPAUL:

Yes.

MR WIGNEY:

Do you see that paragraph?

MS McPAUL:

Yes, I do.

MR WIGNEY:

Then five lines down:

However, my

assessment of the son is that he would not benefit from the removal

from the centre if it meant being separated from his parents.

So that effectively

excludes the Woomera Housing Project scheme, right?

MS McPAUL:

Well, he could in theory, be with one of his parents in the housing

project.

MR WIGNEY:

Well, it's said 'parents', plural here, hasn't it?

MS McPAUL:

Yes, it has.

MR WIGNEY:

And that would be the effect if they were moved back to the Housing

Project where they had been for some period of time in any event,

right?

MS McPAUL:

He would be able to be with his mother in the Housing Project.

MR WIGNEY:

But not his father?

MS McPAUL:

That's correct.

MR WIGNEY:

Next paragraph:

On the other

hand, it is frankly dangerous for the son to remain in the detention

environment, for many reasons, including...

And then the

doctor sets out a number of reasons why it would be dangerous for

him to remain in the detention environment, that is, Woomera detention

facility, right? Do you see that?

MS McPAUL:

Well, I don't think it makes specific reference to the Woomera

Centre but it does refer to the detention environment, yes.

MR WIGNEY:

Well, that is where they are, isn't it? In the detention centre at

Woomera, right?

MR BROMWICH:

It is a fair response, with respect, Commissioner. The references

are to the behaviour of this individual. Not Woomera but in any detention

environment.

MR WIGNEY:

Okay, well, any detention environment - dangerous for him to be in

any detention environment, right?

MS McPAUL:

It says:

...to remain

in the detention environment.

MR WIGNEY:

Well, it says:

...the detention

environment.

So contrary to

what your counsel has just suggested that would suggest it is a specific

reference to the Woomera detention environment, right, because that

is where they are housed?

MS McPAUL:

It may or may not but it does say:

...remain in

the detention environment.

MR WIGNEY:

Paragraph number 2:

I know of no

intervention that could be carried out in the Detention Centre that

would benefit the son.

Do you see that?

MS McPAUL:

Yes, that is written here.

MR WIGNEY:

Paragraph 3:

I concur with

the previous recommendation that an all-of-family approach is required

for this family.

So that makes

it abundantly clear that the Housing Project is no longer a viable

option because we are talking about all of the family which obviously

must include the father, right?

MS McPAUL:

I guess if they are referring to all of the family it would include

all family members.

MR WIGNEY:

Next paragraph:

I therefore

unreservedly concur with...

And there is

a reference there to the previous report by the doctors from that

hospital:

....recommendation

of removal of the whole family from the detention centre.

Right?

MS McPAUL:

Yes, there is a reference to that.

MR WIGNEY:

So now, we have jumped through to 19 August.

MS McPAUL:

Yes.

MR WIGNEY:

So it would appear that nothing has occurred in terms of removing

them from the detention environment since the letter of 23 July by

the doctors from the Women's and Children's Hospital and 19 August

when this doctor confers.

MS McPAUL:

I guess, Mr Wigney, if you are implying that the Department was not

paying any attention to the needs of this family throughout that period,

I don't think that the document suggests that at all.

MR WIGNEY:

Okay, well, let us ---

MS McPAUL:

On the contrary I think the documents are showing that we have

been maintaining our duty of care quite consistently and constantly

in relation to the issues facing this particular family as evidenced

by our ongoing interaction with the Family and Youth Services and

the other service providers in the state departments in South Australia.

MR WIGNEY:

But those service providers are all telling you that as a matter

of urgency this entire family should be removed from the detention

environment at Woomera, aren't they?

MR WALKER:

Can I just intervene to say we have to operate within the statutory

provisions. One of the important things is that unauthorised arrivals

are not per se eligible non-citizens for the grant of - to be able

to apply for a bridging visa. There are ways through that and, in

fact, regulation 2.20 deals with ways in which unauthorised arrivals

can become eligible non-citizens for the purposes of applying for

a bridging visa.

Some of these

are quite important in the sense of assessments of special needs by

medical practitioners or medical specialists appointed by Immigration.

Now, some of my colleagues can probably go on and explain who we appointed

and what we did in these circumstances but I just make the point that

it is within the statutory framework that we have to operate.

DR OZDOWSKI:

Do I understand you correctly that under the current legislation when

you see a family disintegrating as this one in the detention condition

where everyone is getting psychologically and psychiatrically ill,

you can't do anything?

MR WALKER:

I am not saying that, Commissioner. What I am saying is that we have

to work within the statutory framework. There are provisions but you

can't just automatically, on the basis of a specific assessment from

somebody who has not been appointed by Immigration, release that person.

DR OZDOWSKI:

Thank you.

MR WALKER:

Now, my colleagues may be able to explain what action was taken in

this context within the statutory framework.

MR WIGNEY:

Thank you, Mr Walker. I might just come back to the statutory framework

in due course if you wouldn't mind. The next document I want to take

you to, Ms McPaul - and again, I invite you to take - refer to any

other passages of any of the other documents that I am not specifically

referring to if you wish. I want to take you to document number 17

if you could find that please. It is a document prepared by Family

and Youth Services. That is the state department. The title page says:

Social Work

Assessment Report on the Circumstances of Children in the Woomera

Immigration and Processing Centre, dated 21 August 2002.

Have you got

that?

MS McPAUL:

Yes, I do.

MR WIGNEY:

I think we have only got - excuse me for a moment. I think to be fair

in this bundle of documents all we have is an extract of this report

that deals specifically with the family that we are dealing with in

the evidence this morning.

MS McPAUL:

Yes, it seems that number of pages are actually omitted from the

report. My version starts on page 18.

MR WIGNEY:

The family that we have been dealing with this morning is specifically

discussed, as you indicated, on page 18 and under the subheading:

Services provided

by the Centre.

That is the Woomera

Immigration Reception and Processing Centre. Concern was expressed

in section D of this report about delays in processing referrals to

the Child and Adolescent Mental Health Service and to other psychiatric

services, do you see that?

MS McPAUL:

Yes, that is written here.

MR WIGNEY:

There is specific reference to the son having been interviewed by

Family and Youth Services in March 2002, that being some six months

or more prior to the preparation of this report. Then if you go over

the page and you can refer to it in detail if you wish but there are

references to the continuation of the son's threats of self-harm and

further actions by the relevant state authorities. I want to specifically

direct your attention to the last two paragraphs:

The delay in

responding to these recommendations -

that is the recommendations

of Family and Youth Services -

which are not

made lightly, is an ongoing issue with the provision of safety and

required mental health services to the children in the centre. Such

delays mean that the Department's -

that is DIMIA's

-

duty of care

is inadequately implemented.

Do you see that?

MS McPAUL:

Yes, I do.

MR WIGNEY:

Now, I think in an answer you gave some moments ago you said, well,

the Department, in essence, is fulfilling its duty of care because

it is liaising with these departments. But this document makes it

abundantly clear that you are ignoring their recommendations, right?

MS McPAUL:

I don't think ---

MR BROMWICH:

I object to that. That is not what the document says.

MS McPAUL:

Yes.

DR OZDOWSKI:

Well, it is what ---

MR BROMWICH:

Not moving quickly enough is not the same as ignoring and ---

MR WIGNEY:

Okay, I withdraw the question and I will ask another.

MR BROMWICH:

The speed with which things are being moved has to be taken in

the context of what was happening at that time.

DR OZDOWSKI:

Well, if you look at page 111 in summary, I can read a sentence here:

Recommendations

and expert clinical advice has been provided but to date substantially

ignored.

MR BROMWICH:

Sorry, I am not seeing where you are referring to, Commissioner.

MS McPAUL:

Sorry, which page?

MR BROMWICH:

I can't see where you are referring to.

DR OZDOWSKI:

It is page 111.

MR BROMWICH:

111, which tab?

DR OZDOWSKI:

In summary of document ---

MS McPAUL:

I don't know if that is in our folders, Commissioner.

MR BROMWICH:

I think, Commissioner, you may have some material we don't. I don't

have the document you are referring to.

MR WIGNEY:

Commissioner, I was going to come to that document. I think it appears

later.

DR OZDOWSKI:

Okay, so I am moving a bit too fast. We will come to it.

MR BROMWICH:

Thank you, Commissioner.

MR WIGNEY:

I think your learned counsel objected to my question, and properly

so, I will put it again in different terms. You indicated in your

answer some moments ago that in your view, the Department was acquitting

its duty of care towards this family because, amongst other things,

it was liaising with the relevant bodies in the state, that is, South

Australia? This document makes it abundantly clear that, whilst you

were liaising with those authorities, you were delaying implementing

any of their recommendations, right?

MS McPAUL:

Again, I'm not sure that the document suggests that, Mr Wigney.

MR WIGNEY:

It says:

Such delays

mean that DIMIA's duty of care is inadequately implemented.

MS McPAUL:

That is a view held by a particular officer of the Department of Human

Services, I don't know that that is necessarily a view that I would

share.

MR WIGNEY:

I see. You disagree with that, do you?

MS McPAUL:

I think the Department has been active in managing this case with

the assistance of the services provider for the better part of this

year.

MR WIGNEY:

Do you think that it had moved, that is the Department had moved,

swiftly and with urgency since it first received communications at

least in May of this year about this family and the circumstances?

MS McPAUL:

I believe that we have been actively managing this case. I think you

can see from the documents that you have drawn the Commissioner's

attention to that both our Deputy Manager at DIMIA and the staff of

ACM have been working closely with the relevant authorities to find

appropriate solutions for this family.

MR WIGNEY:

But these authorities had been telling you that they can't do anything

with this family while they remain in detention. That is what they

were telling you, weren't they?

MS McPAUL:

They had been making a number of views known to the Department.

MR WIGNEY:

What is the point of liaising if you are going to delay or ignore

the recommendations?

MS McPAUL:

Well, I don't agree that we have been delaying or ignoring the recommendations,

that is a particular spin that you have put on that. I'm saying to

you that we have been actively managing these cases, taking into account

all of the relevant factors for the management of the circumstances

of this particular family.

MR WIGNEY:

Okay, you tell us, apart from the liaising that we have already heard

about in evidence, what did you do to actively manage the health and

the provision of health services to this family?

MS McPAUL:

sI think you can see from the documents already that we've been working

closely with those authorities, we've tried also different arrangements

for the family. You yourself pointed to the option that we took up

to place the child and the mother in the alternative - the Residential

Housing Project for a period to see if that is an option that would

better suit the needs of that family.

MR WIGNEY:

Is that it?

MS McPAUL:

Well, I'm sure that there are other things I could point to but

I think what I'm saying here is that I reject the assertion that the

Department has done nothing at all in regard to the concerns of this

particular group of people.

MR WIGNEY:

I see. Let me take you to another document. I take you to the next

document which is a document dated 29 August 2002.

MS McPAUL:

Which number in the folder, Mr Wigney?

MR WIGNEY:

Number 18, I'm sorry.

MS McPAUL:

Thank you.

MR WIGNEY:

It is from - it is a letter dated 29 August 2002 from the Department

of Human Services' Social Justice and Country Division. Indeed, it

is from the Executive Director of that particular division of that

department in South Australia, do you see that?

MS McPAUL:

Yes, it is a letter dated the 29th, which the Department received

- 29 August, which the Department received on 2 September, as I understand

it.

MR WIGNEY:

It is addressed to a very senior officer of the Department, that is

the then acting First Assistant Secretary, right?

MS McPAUL:

That is correct.

MR WIGNEY:

It refers to a report from a doctor, and it is the report that I took

you to earlier, and you will see that I'm avoiding naming even doctors

in relation to this context, referring the First Assistant Secretary

of the Department to the fact that that doctor had recommended that

the child be removed from the detention centre and that the Executor

Director of this department in South Australia was recommending to

the Department that - or to this officer that she should seriously

consider the recommendation of that doctor, right?

MS McPAUL:

That is correct.

MR WIGNEY:

And then I want to take you to the next document, which is document

number 19, and we are now at the end of August, 30 August 2002. It

is a fax to the same officer, that is, the acting First Assistant

Secretary, from the executive director of the Social Justice and Country

Division of the Department of Human Services. It attaches an Internal

Memorandum of that department which, and you will see and I will try

and move through it quickly, deals with a number of case summaries

of detainees, including the family that we've been discussing in evidence

this morning, right, so you see that?

MS McPAUL:

On the third page of the document, most of the way down the page there

is a reference to that particular child and family, yes.

MR WIGNEY:

And amongst other things there's a reference to the fact that the

family are 'deteriorating' and that the son is 'at extreme risk of

self harm', right?

MS McPAUL:

That is the view expressed here, yes.

MR WIGNEY:

And again, repeating one of the doctors' recommendations of 'immediate

removal of family from Woomera'?

MS McPAUL:

That is correct.

MR WIGNEY:

And then there's a copy of another document annexed, which has been

sent down to the senior officer of the Department, being a summary

of children and families in the Woomera detention facility, and I

just want to take you to page 3 of that document, where there's a

summary of recommendations, and then there's two numbered paragraphs.

The first numbered paragraph, the first sentence reads:

All reports

have included urgent recommendations that the children need to be

out of the detention environment with their caregivers.

Right, do you

see that?

MS McPAUL:

Yes, I do.

MR WIGNEY:

And then over the page there's a summary at the end:

In summary,

assessment and in some cases follow up services are currently being

provided…

That is being

provided by the state body that is the author of this letter ---

MS McPAUL:

Mr Wigney, before we go on, I think also in that particular paragraph

number 1, where the summary of recommendations is, you will notice

that, towards the end of that paragraph, it indicates some information

there about the families and their mothers having been moved into

the community housing in Woomera, and stating as well that this 'represents

a small step towards implementation of necessary changes' and so on,

so I think, if we are referring to the same family, there is also

some acknowledgment of some progress from their point of view as well.

Which other paragraph were you referring to?

MR WIGNEY:

The next page is the summary, referring to the fact that the state

service has been providing services to the nine families, comprising

14 children in the Woomera Detention Centre:

Despite some

attempts at intervention in the detention context little has improved,

and some of the children show a deterioration in their functioning.

And the paragraph

continues, but I wanted to direct your attention to the last sentence:

DIMIA ultimately

has discretion about acting on recommendations from either Health

-

that is the South

Australian Department of Health -

or Family and

Youth Services reports.

Right?

MS McPAUL:

I apologise, sorry, but you are asking me to refer to the last part

of that paragraph?

MR WIGNEY:

Yes, which is referring to the fact that the Department ultimately

has a discretion as to whether it acts on the recommendations that

have been made by the state bodies or not.

MS McPAUL:

I think that was the point I was trying to make to you earlier

in relation to all the relevant factors needing to be considered for

the cases.

MR WIGNEY:

And, I'm sorry, I had neglected to take you to two sentences back:

Recommendations

and expert clinical advice has been provided but to date substantially

ignored.

MS McPAUL:

That is the view expressed here.

MR WIGNEY:

I see. So we've got another person expressing this view?

MR BROMWICH:

Well, Commissioner, to be fair on this point, it needs to be noted

what was earlier said by Mr Walker about the legal requirements, if

to the extent that this report is suggesting that the law should be

ignored then it needs to qualified accordingly.

MR WIGNEY:

We dealt yesterday with the broad definition of 'immigration detention',

and the flexibility that that intended and I intend to come back to

Mr Walker's comments about that in due course.

MR BROMWICH:

Regulation 2.20 has limitations which don't enable - as I understood

Mr Walker's comments before - enable you simply to act upon a recommendation

of an outside provider. That is not the way the law operates.

MR WIGNEY:

Well, that is an interesting perspective on the law and we will come

back to it. The next document I want to take you to is document number

24. It is the minutes of a case conference by telephone held on 11

October 2002, so we are getting fairly close to present day, right,

and it is specifically called in relation to this family that we have

been discussing. Do you see that?

MS McPAUL:

Yes, that is - I have minutes here of a case conference held on

11 October 2002 by telephone.

MR WIGNEY:

Its participants include a doctor who was, as we have indicated, the

author of a report very early on in this series of documents that

I have taken you to, who was employed at the hospital at the Woomera

Detention Centre, that is doctor - the first doctor there named, right?

MS McPAUL:

This is somebody who - yes, it is not the same doctor that was

referred to in earlier documents that we have looked at today, I don't

believe.

MR WIGNEY:

In any event, there is a doctor. There is the Department Manager,

there is a psychiatric nurse employed by ACM. There is a Children's

Officer employed by ACM and there are two senior officers from the

Family and Youth Services, right?

MS McPAUL:

That is correct.

MR WIGNEY:

I only want to take you to a couple of aspects of this, but it is

a conference that was held specifically to discuss the circumstances

of this family that we have been talking about, right?

MS McPAUL:

As I understand it, yes.

MR WIGNEY:

You will see that, the second-last paragraph on the page we have the

doctor reporting now ---

MS McPAUL:

Yes ---

MR WIGNEY:

---that the father is having psychotic episodes and that he was

admitted to Brentwood, that is Glenside Hospital, some time ago 'due

to his depression, paranoia and psychosis', so he is now having psychotic

episodes, right?

MS McPAUL:

Well, according to the notes here that is apparently the circumstances

and that was some time ago.

MR WIGNEY:

Go over to the last page of the document. At the very top of the page

it is recorded as being discussed at the meeting - that is doctor

- you will have to go to the bottom of page 2 to find out - I'm sorry,

the doctor that is saying this - that:

if the family

remains in the Woomera centre their dysfunction will worsen.

Right, do you

see that?

MS McPAUL:

Are we are looking on page 3?

MR WIGNEY:

The top - very top of the last page of the document.

if the family

remains in the Woomera Centre their dysfunction will worsen.

MS McPAUL:

Yes, that is listed here.

MR WIGNEY:

The third dot point:

actual improvement

in the mental health of the family will only occur outside of detention.

Right?

MS McPAUL:

Yes, that is stated here and I think it is important to put in

context that at the time that this particular case conference was

occurring this family was in a position that, as I understand it,

they had no further business directly before the Department and could

be able to make a decision themselves to end their period of detention

and return to their home country.

MR WIGNEY:

I see, so they could have made a rational decision and just hopped

on a Qantas jet, could they, and zip back to their country of origin,

is that what you are suggesting?

MR BROMWICH:

I object to the sarcasm involved. What is being said there, Commissioner,

is that all rights of appeal by then had been completely exhausted

and they were no longer - they had never been found to be refugees

and that position had been upheld.

MS McPAUL:

It is a statement of fact regarding the case.

DR OZDOWSKI:

I would ask the counsel to mitigate his language.

MR WIGNEY:

Do you accept that you, that is, the Department, still has a duty

of care towards all persons in immigration detention, irrespective

of their immigration status?

MS McPAUL:

The Department has a duty of care for all individuals in immigration

detention.

MR WIGNEY:

Thank you.

MS McPAUL:

And we also have a responsibility under the Act, as I think you know,

to ensure that we effect the removal of unlawful non-citizens as soon

as reasonably practicable and in the case of this particular family,

as we have just stated, since some time earlier I think you may find

towards the end of August, this family was in fact one that was available

for removal. So at any point the family does have the option of choosing

to voluntarily return to their home country and that is a matter that

the Department is actively discussing with the family as well.

DR OZDOWSKI:

With all due respect, how they can choose when the man is having

serious psychiatric illness as shown in this document, how the issue

of choice is coming into it?

MR BROMWICH:

Well, Commissioner, with respect the fact that someone has an illness

may or may not determine their capacity to make such a decision, that

would require perhaps a medical opinion.

MR WIGNEY:

Well, the medical opinion is that he is suffering psychosis and paranoia

at this stage.

MS McPAUL:

I think - I mean, I don't think either you, Mr Wigney, or myself are

in a position to determine fully whether the man is capable of making

a decision about his removal. I was explaining to you the particular

circumstances that the Department finds itself in, which is that we

have a legal obligation to effect the removal of this family as soon

as we are able to do so and that is a matter that the Department is

discussing with the family.

MR WIGNEY:

Okay.

MS McPAUL:

It is our obligation to do so and we are fulfilling that obligation.

MR WIGNEY:

Let's just take up this position. Go, not to the next document, but

to document number 26. It is a facsimile message, a facsimile transmission

from the then Manager - Department Manager - at the Woomera detention

centre, 14 October 2002, and again it is referring specifically to

this family that we have been discussing this morning, right?

MS McPAUL:

Yes, it relates to this family.

MR WIGNEY:

This is the Department Manager at Woomera, right?

MS McPAUL:

It appears to be from the current Woomera Manager, yes.

MR WIGNEY:

Second-last paragraph:

I am inclined

to think that this family is effectively "unfit to travel"

and that removal from Australia, even with their cooperation, would

be very difficult to effect.

Now, this is

from the Department Manager herself, right?

MS McPAUL:

That is what is stated here, yes.

MR WIGNEY:

So it is really not an option, is it?

MS McPAUL:

No, I disagree. I think, notwithstanding the fact that it may be difficult

to effect, it is still our obligation under the Act, as I have mentioned,

to take whatever steps is possible to make that be an outcome.

DR OZDOWSKI:

But you were saying that the decision is involved with whether they

can depart, or not. Can you explain what you mean?

MS McPAUL:

Well, any family who has come - or any person who has come to Australia

as an unlawful non-citizen - may choose at any time to make arrangements

to depart Australia. The Department has an obligation to detain individuals

who have no lawful basis for being here.

DR OZDOWSKI:

Sure. So what you are suggesting, that this family can stay in

Australia as long as they choose, unless they make a decision to depart

Australia?

MS McPAUL:

No, no.

MR WALKER:

If I can clarify, Commissioner. The officers under the Migration

Act have an obligation to remove any person who has no entitlement

to remain in Australia as soon as reasonably practicable. In a practical

sense we would desire that people would cooperate with their removal

and, in many cases they do. Where they indicate that they wish to

depart Australia, we have an obligation to facilitate that departure,

quite separately from our obligation to remove. If people do not cooperate

in the arrangements for their removal, then, those removals can take

a further period of time as we make arrangements for travel documents

and so forth with relevant countries and gain the acceptance of countries

for their entry to those places.

DR OZDOWSKI:

What does 'do not cooperate' mean, in this particular instance?

MS McPAUL:

In these circumstances, we would normally ask the unlawful non-citizen

to complete travel documents to assist in making those arrangements

to their home country.

DR OZDOWSKI:

Just so as I understand, they are refusing to complete travel documents

and it is obstructing their removal?

MS McPAUL:

I believe that that is the case, yes.

DR OZDOWSKI:

But then we are coming again, I think, to the ability to complete

such documents. Reading the evidence and having met the family I'm

not confident that in the present circumstances, the man is able to

write anything.

MS McPAUL:

Well, I can't comment on that specifically myself.

DR OZDOWSKI:

Thank you.

MS McPAUL:

Yes, I mean ---

MR WIGNEY:

Might ---

MS McPAUL:

Sorry, there are other family members, yes. The mother in the family

could also assist in that process.

MR WIGNEY:

Sorry, just before we move on from this document, I want to just take

you back one page, the first page of that fax and you will see that

there are two - well, they are dot points, or dash points and indeed

the Department Manager at that stage referred to the fact that the

family's appeal to the Federal Court had been unsuccessful but she

was uncertain at this stage if they had sought to appeal to the Full

Court of the Federal Court. So at this stage, it is unclear still

whether, in fact, they were in a position to be removed.

MR BROMWICH:

Can I assist? They didn't end up filing an appeal to the Full

Federal Court, as I understand.

MR WIGNEY:

There are only a few more documents that I want to take you to

in relation to this family. The next document, document number 27,

is a document authored by the Mental Health Team employed by ACM at

the Woomera detention centre, right?

MS McPAUL:

Yes, it appears to be.

MR WIGNEY:

It is addressed to the Department Manager and the ACM Centre Manager

and various other officers. I just want to direct your attention to

the last paragraph. Now, these are the ACM officers and the Mental

Health Team who are on the ground at Woomera with this family. Do

you agree with that?

MS McPAUL:

It appears to be so, yes.

MR WIGNEY:

The Mental Health

Team are gravely concerned for the welfare of this family. It is particularly

concerning that we are not able to assess them on a regular basis

as they are currently refusing contact with the Mental Health Team.

It is alarming that they are now isolating themselves further and

resisting contact with the detention officers. Considering the son's

history of self-harm, the aggressive behaviour displayed by the family

and the recent involvement of Family and Youth Services, we are of

the opinion that the current placement of this family in the November

compound is inappropriate.

Right?

MS McPAUL:

That's what it states, yes.

MR WIGNEY:

Where are they now?

MS McPAUL:

Today?

MR WIGNEY:

Yes?

MS McPAUL:

I would need to check, but my understanding is that they are probably

in the same compound. Certainly at the Woomera centre.

MR WIGNEY:

I want to take you through to document number 30, it is a memorandum

on the letterhead of ACM and it's authored by, it would appear, a

psychologist employed by ACM. It is dated 21 October. It is again

addressed to the Department Manager and other officers at Woomera

and its subject is the family that we have been discussing this morning,

and by way of background it points out that there has been an emotional

breakdown in the family unit, still based in the November Compound.

The family have

dissociated themselves from all contact with staff and have withdrawn

into their flat. All efforts and avenues to make contact with them

have been exhausted.

Then I want to

take you over to this officer, this psychologist's opinion on the

next page:

Long term detention

has had a devastating effect on this family. Not only have the mother

and father experienced an emotional breakdown, their son's mental

state has been significantly affected. The son is currently in an

extremely fragile emotional state. This is likely to continue to influence

many areas of his life including his ability to form relationships,

his future risk of psychiatric morbidity and suicide.

Detention of

this family at the Woomera Detention Centre is no longer an option.

I strongly recommend that the family be given alternative accommodation,

preferably community based and provided with ongoing psychiatric and

psychological treatment and support. Anything less would be a failure

in our duty of care.

MS McPAUL:

That - that's a view expressed by a particular psychologist that

was employed, as I understand it, at Woomera IRPC for a short period

of time.

MR WIGNEY:

Well, these opinions are starting to mount up a bit, aren't they?

MS McPAUL:

I don't think the Department is disagreeing that there is a particular

set of circumstances that requires management for this family. I think

I've already alluded to the fact that the Department has been actively

working on this set of circumstances and this particular family's

set of issues for some time.

MR WIGNEY:

I have two more documents I want to take you to. The next document

is a document numbered 32, it is dated 5 November 2002, just on -

just less than a month ago.

MS McPAUL:

I'm sorry, is this - which document are we talking about?

MR WIGNEY:

Document number 32.

MS McPAUL:

Number 32, yes, that's correct.

MR WIGNEY:

It is a letter on a letterhead of ACM?

MS McPAUL:

Mm.

MR WIGNEY:

Authored by the Acting General Manager of Detention Services,

that is a central office person at ACM, is it?

MS McPAUL:

Yes, it is.

MR WIGNEY:

And as we have said it is addressed to you, as the Assistant Secretary,

Unauthorised Arrivals and Detention Services, right?

MS McPAUL:

That's correct.

MR WIGNEY:

I want to take you to a couple of paragraphs but no doubt you are

well familiar with this letter so please ---

MS McPAUL:

Yes, I am.

MR WIGNEY:

---take us to any additional paragraphs you want to refer the

Commission to. The third paragraph:

ACM has also

sought external assistance in the management of the family. Numerous

reports have been written by the Family and Youth Services and Consultant

Health Professionals regarding this family and their ongoing care

and management requirements. All external agency reports recommend

that the family remain together and receive ongoing treatment at least

in another Detention Centre to Woomera, but preferably in an alternative

place to detention.

Concerns in

respect of this family have been raised previously. My professional

experience in dealing with risk factors for self harm by incarcerated

individuals, suggests that the son presents as an extremely high risk.

Health services staff are of the opinion that the deterioration of

this family has reached the level where the options and management

strategies available to ACM are insufficient to give a reasonable

level of comfort that the risks can be adequately managed. The company

does not have the capacity to influence many of the factors contributing

to their declining mental and emotional state. Increasingly intrusive

control and monitoring strategies which may be able to be implemented

have the potential to further exacerbate their condition.

I understand

ACM's contractual requirements for the management of the care and

well being of detainees and raising the concerns is not intended to

mitigate these responsibilities. In contrast, I believe ACM also has

a responsibility to raise issues where we believe serious concerns

are held for the safety and welfare of detainees and where the solutions

available to us as the contracted service provider are unable to provide

an effective response.

Now, this is

a senior officer of the Department's service provider telling you,

I suggest, in effect, that ACM are no longer able to deal with this

individual in Woomera, that is what they are saying, aren't they?

MS McPAUL:

I think the letter makes reference to a number of things that

have happened in relation to this particular family including, as

it notes there, the ongoing relationship with FAYS and the other mental

health services teams that have been assisting the family throughout

the year.

MR WIGNEY:

I'm sorry, could you just repeat that answer?

MS McPAUL:

Yes, I said that the letter makes reference to a number of factors,

including the ongoing work that's been undertaken with Family and

Youth Services and other health team members throughout the better

part of the year.

MR WIGNEY:

It is saying they can't do anything else, isn't it?

MS McPAUL:

It's saying a number of things and the Department, as I've already

said, is - has been actively managing this case and considering what

options might be available to the family. One of the options, of course,

as we have already alluded to, is for the family to return home, and

there have been successful returns of other families to the country

where this family comes from. So the Department is looking at a range

of things that might be appropriate in handling this family.

MR WIGNEY:

Well, accepting for present purposes, that this document is referring

to a range of things as you say, one of the range of things that it

is referring to is to the fact that ACM, the people that are running

this facility at Woomera, are no longer able to care for this family

in that facility. That is what it is saying to you, isn't it, it is

addressed to you?

MS McPAUL:

Yes, it is addressed to me.

MR WIGNEY:

It is saying amongst other things that, isn't it?

MR KELLY:

Mr Wigney, could I just ---

MR WIGNEY:

No, I would rather like Ms McPaul to answer the question, please.

MR KELLY:

Well, I was going to assist the Commissioner in being able to

respond to your request but if that is your preference I will leave

it to Ms McPaul.

MR WIGNEY:

Well, I might ask Ms McPaul to answer it and then you can provide

whichever assistance you - whatever assistance you think you can provide.

MS McPAUL:

The Department has a duty of care to all detainees including to

the particular ones mentioned in this family and as you know that

duty of care is also exercised with the assistance of the outsourced

services provider. I think it is appropriate in cases where the services

provider feels that they would like to draw to our attention certain

aspects of the case management for that particular group of people

that they do so and this letter does that.

MR WIGNEY:

I see and that is your answer to my question, is it?

MS McPAUL:

For the time being, yes.

MR WIGNEY:

We might just see what Mr Kelly wants to add then.

MR KELLY:

I just wanted to add a couple of things. One of the questions

you asked earlier about is where is the family currently housed. Yes,

they are still currently housed or accommodated in the November compound

at Woomera but the Department and ACM have also attempted to do is

to offer them the change from the Woomera environment to Baxter. They

have declined to take up that offer.

I mentioned that

earlier but it has also been a recent offer yet again. We have also

offered the mother and child respite care in the Housing Project should

they wish to take that up as well and they have chosen to decline

that as well. So there are other elements that the Department and

the service provider are looking at in relation to this particular

family as well.

DR OZDOWSKI:

Would you know why they declined going to Baxter, because I had

a lengthy conversation with them about this. Would you know what the

reason was?

MR KELLY:

I don't have that information, Commissioner, but I would be able to

obtain that information for you during the course of today.

DR OZDOWSKI:

Thank you.

MR WIGNEY:

If I can take you back to some reports we have largely already

visited in any event but the Department had been receiving advice,

in particular, advice from doctors retained by or attached to the

state authorities to the effect that removal to another detention

environment is not going to have any positive effect on the treatment

of this family. That is right, isn't it?

MS McPAUL:

Well, I think there is various advice in the information that

we have looked at today including some options suggested by the health

workers for alternative detention, variously the child being placed

outside or placed with the family somewhere. I think there are a range

of views being expressed to the Department.

MR KELLY:

I think also in clarification we don't have any other alternatives

than accommodating them in a detention environment. The issue was

how - what that detention environment looks like but it is still a

detention environment because that is the legislative framework that

we operate within.

MR WIGNEY:

I don't know whether you were present yesterday but we went through

the definition of immigration and detention in the Migration Act and

it provides, as I am sure you are well aware, a very broad definition

of immigration detention which includes being held by or on behalf

of an officer in another place approved by the Minister in writing.

That is, effectively, it can be anywhere approved by the Minister

in writing.

MR KELLY:

That is correct. I didn't disagree with that. All I said was it

is still a detention environment.

MR WIGNEY:

Yes, but it does not have razor wire and guards in uniforms and

those sorts of things, does it?

MR BROMWICH:

Well, notwithstanding the rhetoric that is being presented now,

Commissioner, the fact is the definition refers to being held. That

is a form of detention and it is not the case that you can have someone

particularly in these circumstances being held just anywhere and that

seems to be the suggestion being made by counsel assisting. It is

plainly wrong.

DR OZDOWSKI:

Personally, I beg to disagree with you. I have visited a number

of people who are in so-called detention, in which they are quite

free to move and so on.

MR BROMWICH:

Yes, but we are not talking about any person, we are talking about

people with particular problems. They are not going to be held just

anywhere.

MR WIGNEY:

I am not suggesting they just be held anywhere, put out on the street.

I am suggesting that alternative arrangements can be made within the

definition, the present definition, of immigration detention that

would be significantly different to the environment that exists to

this day in the Woomera detention facility.

MS McPAUL:

I think it would be useful perhaps just to also say to you that -

and reiterate the point that I made earlier - that the Department

has been actively managing this case and looking at a range of options

for the family over the course of the year. As I have said, the mother

and child have for periods been in the Residential Housing Project.

We also offered the family the opportunity on more than one occasion

to move to the Baxter immigration detention facility where as you

know there are particular arrangements in place for families there.

The Department

is also at the present time considering other options in consultation

with [the Department's Woomera Manager] and other departmental officers

that might be suitable for the family but whatever option we put in

place must also operate within that statutory framework and in the

meantime the Department is still also obliged to work with this family

to effect its - the family's removal from Australia. So there are

a number of different things that are happening and I think the suggestion

that the Department is either negligent in its duty of care or failing

to take appropriate action to resolve the circumstances for this family

is one that does not stand up under the basis of the information provided

here today.

MR WIGNEY:

I see. Well, do you want to share with us all here today what

other information, you know, you want to tell us about in relation

to this family and ---

MS McPAUL:

I am referring to the documents that we have looked at.

MR WIGNEY:

This letter is addressed to you, 5 November 2002.

MS McPAUL:

Yes.

MR WIGNEY:

That is almost a month ago. Did you reply to it?

MS McPAUL:

I have a number of - I have had some conversations with [the ACM Acting

General Manager of Detention Services] in relation to this family

and as I said we are actively looking at other options for the family

which I have just mentioned to you.

MR WIGNEY:

Did you reply to this lestter in another letter?

MS McPAUL:

I have not yet signed a letter to [the ACM Acting General Manager

of Detention Services] directly in response to this although as I

have said we have had some discussions and the Department is actively

looking at other options for the management of this family which I

have already referred to.

MR WIGNEY:

You didn't happen to set out in a letter to this person the other

options that were being explored by the Department?

MS McPAUL:

As I said I haven't signed any letter at this point.

MR WIGNEY:

This has all just occurred on the telephone, has it? Is that right?

MS McPAUL:

I have had a conversation with [the ACM Acting General Manager

of Detention Services], as I said, yes.

MR WIGNEY:

Have you been up to Woomera since 5 November?

MS McPAUL:

No, Mr Wigney, I have not.

MR WIGNEY:

There is one more document I want to show you please. Now, I should

just explain, lest it be suggested otherwise, that the only reason

that this document is not in the bundle that we have been going through

today is that it has only been received in recent days by the Commission

and its use has only been cleared. The ability to use it in this Inquiry

has only been cleared in recent days. So in the event that there is

any suggestion that there is any subterfuge, I put that on the record.

This is a letter, you will see, from the registered psychologist at

- employed by ACM at the Woomera detention facility, do you see that?

MS McPAUL:

It appears to be from a registered psychologist to the Director of

Family and Youth Services, yes.

MR WIGNEY:

Is she still employed as the registered psychologist at Woomera, to

your knowledge?

MS McPAUL:

I would need to confer with my ACM colleagues as to whether she is

still there.

MR WIGNEY:

In any event, this letter is addressed to the Director of Family and

Youth Services and as we have heard, that is part of the Department

of Health Services in South Australia.

MS McPAUL:

That is right.

MR WIGNEY:

That being the department that has responsibility ---

MS McPAUL:

Department of Human Services.

MR WIGNEY:

---for amongst other things, the protection of children.

MS McPAUL:

That is correct, yes.

MR WIGNEY:

I am writing

to you to express my concern at the level of distress amongst the

children at the Woomera Detention Centre.

Then the author

sets out the Children's Protection Policy and then states as follows:

I accuse DIMIA

-

that is the Department

-

and the Federal

Government of emotional abuse of children at the Woomera Detention

-

or

WIRPC

which is the

Woomera Immigration Reception and Processing Centre:

and RHP.

That is the Residential

Housing Project, right?

MS McPAUL:

That is the way it is constructed here, yes.

MR WIGNEY:

So, I accuse DIMIA and the Federal Government of emotional abuse of

children at the detention centre at Woomera and the Residential Housing

Project.

DIMIA and the

Federal Government continue to ignore reports and recommendations

by health professionals stating clearly that continued detention of

children is placing them at risk of further self harm and emotional

pain to the extent that their psychological development is in jeopardy.

Right? Do you

see that?

MS McPAUL:

That is what is written here, yes.

MR WIGNEY:

By the psychologist who at least as at 8 November 2002, when this

document was authored, was at the facility in Woomera, right?

MS McPAUL:

I believe this psychologist was working for a short period of time

at the centre and had not done so previously.

MR WIGNEY:

There is then a reference to a number of children in this document.

MS McPAUL:

Mm.

MR WIGNEY:

Including, relevantly, you will see at the bottom of page 2, the

child of this family that we have been discussing in detail this morning.

MS McPAUL:

Yes, it makes reference to that child.

MR WIGNEY:

It refers to the fact that he

is completely

dysfunctional for his age and experiences bouts of depression and

uncontrollable rage. He is in the process of developing borderline

conduct traits. High risk of suicide.

Over on the last

page of the document:

These children

cannot be treated in the detention environment. Helping the children

is inseparable from the safety and well being of the parents who equally

require appropriate mental health interactions and appropriate psychiatric

care.

These children

continue to suffer severe mental health problems.

This is a medical

and psychiatric emergency.

Have you seen

this letter before?

MS McPAUL:

I'm aware of the letter, yes.

MR WIGNEY:

I suppose you would say this is just another opinion?

MR BROMWICH:

Sorry, is that a question?

MR WIGNEY:

Yes, I suppose you would say, would you, that this is just another

opinion, or have you got another piece of information or a comment

or an opinion you want to share with us in relation to the contents

of this document?

MR BROMWICH:

I object to this, there's no reason to treat any witness before this

Commission in this fashion. She has been asked to comment on someone

else's letter, all she can do is agree that the document says that.

DR OZDOWSKI:

Please, could you rephrase your question?

MR WIGNEY:

Do you have any comment you wish to make to this Commission about

the contents of this letter and the present circumstances that this

family is in, including the child, in the Woomera detention facility

today?

MS McPAUL:

I am aware of this particular letter. As I understand it, the issues

being raised in this letter are a matter that are being currently

investigated by the Commonwealth Ombudsman, and we are co-operating

with that Inquiry.

MR WIGNEY:

What are you going to do?

MS McPAUL:

In relation to what thing?

MR WIGNEY:

In relation to what this psychologist says is 'a medical and psychiatric

emergency'. What are you going to do?

MS McPAUL:

I think the views expressed here are no different to some of the other

matters that have already been drawn to our attention in the earlier

documents. I mean, I think if you are suggesting that this is in some

ways unusual information or advice that we would not be aware of,

seems to overlook the fact that I've already pointed to, that the

Department has been working actively to manage all of the circumstances

that need to be considered in relation to the case management of this

family throughout the year.

DR OZDOWSKI:

I think possibly we would be coming close to a lunch adjournment so

if you could conclude, counsel assisting?

MR WIGNEY:

I have no further questions in relation to this particular case study,

and I should indicate that I will move on to, hopefully with some

more brevity, the second case study that we want to address this afternoon.

DR OZDOWSKI:

That we will do it, yes, after lunch. Now, are there any other issues?

MR BROMWICH:

Commissioner, in relation to this particular matter there is some

additional material that I think needs to be before the Commission.

In part, that will depend on Ms McPaul but also Mr Illingworth may

able to assist in relation to some further information which is relevant

to this case.

DR OZDOWSKI:

So you are calling Mr Illingworth to take the stand?

MR BROMWICH:

Yes, please.

DR OZDOWSKI:

Yes. Would you please take also an affirmation?

MS MOORE:

I think he has already been ---

DR OZDOWSKI:

He has been, okay.

MR BROMWICH:

Mr Illingworth, what is your position within the Department?

MR ILLINGWORTH:

I'm the Assistant Secretary, Onshore Protection Branch.

MR BROMWICH:

And you have made sure you have got some information as to the case

processing history of this particular family that has been discussed

this morning?

MR ILLINGWORTH:

I have, yes.

MR BROMWICH:

I think it is the case that the family first arrived in Australia

in April of 2001?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

They lodged a protection application in July of 2001?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

A delegate of the Minister found that they were not refugees some

five weeks later in early September 2001?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

Subsequently, an application for review was made to the Refugee

Review Tribunal?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

In mid February 2002 that Tribunal, which is an independent Tribunal

from the Department, affirmed the delegate's decision and also found

that this family were not refugees?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

In that short time, was a determination reached on the basis of lack

of credibility in the claims made?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

In short form, the Tribunal found that the mother had fabricated her

claim to create a case for refugee status?

MR ILLINGWORTH:

There had been embellishment and new claims emerging throughout the

process, I think that was the - the finding of the Tribunal.

MR BROMWICH:

And the husband had not been frank or truthful in his claims and was

lacking in credibility?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

Subsequently, an appeal was lodged to the Federal Court?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

That appeal failed in August of 2002?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

There has been no appeal lodged to the Full Federal Court?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

And the position now reached is that this family has no other avenues

for appeal, is that correct?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

And under the legislation the family is required to be removed from

Australia?

MR ILLINGWORTH:

That's correct. Required to be detained and removed as soon as reasonably

practicable.

MR BROMWICH:

And that, I think as you already said, the primary determination has

been in place since September of 2001?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

Sorry, Commissioner, I'm just finding this one here. If I might just

go back to Ms McPaul, in relation to the documents, if you could look

at tab 1?

MS McPAUL:

Yes.

MR BROMWICH:

That was the first document you were taken to by Mr Wigney this morning?

MS McPAUL:

As I understand it, yes.

MR BROMWICH:

One of the points that was omitted by Mr Wigney was on the fourth

page of that document in the third paragraph.

MR WIGNEY:

The 4th ---

MR BROMWICH:

You see, in particular there's a sentence there where the psychiatric

nurse stated that

this child has

had contact with other youths who have spoken about the 'value' of

self-harm behaviour/threats and the possibility that these might assist

in processing visa applications.

MS McPAUL:

Yes, that is written here.

MR BROMWICH:

Yes, thank you, Commissioner.

DR OZDOWSKI:

Is that all?

MR BROMWICH:

Yes, for the moment, yes.

DR OZDOWSKI:

For the moment?

MR BROMWICH:

We've only had notice of these particular cases, that is since late

last week, we may or may not have further information we may need

to place before the Commission, but at that stage that is all I have.

DR OZDOWSKI:

So this is an offer to provide to us, in a reasonable timeframe, further

information after the hearings are finished?

MR BROMWICH:

Yes.

DR OZDOWSKI:

If there are any additional documents.

MR BROMWICH:

Yes, thank you, Commissioner.

DR OZDOWSKI:

Now, could I ask counsel for ACM, any submissions at this stage?

MR RUSHTON:

No, not at this stage, Commissioner.

DR OZDOWSKI:

In this case, it is time for a lunch break. We will adjourn and we

will meet again 1.30 in this room, thank you.

LUNCHEON BREAK

[12.30pm]

RESUMES [1.35pm]

DR OZDOWSKI:

Yes, 1.30. So I think we are ready to go. So I think everyone is ready,

we can start afternoon session. I know Ms Godwin is back with us,

welcome, and I will ask Mr Michael Wigney to start with a statement.

MR WIGNEY:

Thank you, Commissioner.

MR BROMWICH:

Commissioner, just before you do, just one thing, in relation to Ms

Godwin's presence, she is here. She really is quite unwell and if

health was her primary consideration she wouldn't be here at all.

So she is here to assist but she really, in one sense, shouldn't be,

but she is concerned to assist the Commission.

DR OZDOWSKI:

Yes, I do appreciate it. Mr Wigney.

MR WIGNEY:

Ms McPaul, if I can just continue to direct questions to you but,

of course, as we have indicated, feel free please to refer a question

on to one of your other colleagues or to Ms Godwin if you think it

more appropriate.

MS McPAUL:

Yes.

MR WIGNEY:

Before we come to the second case study which I hope I will deal with

with some considerable more brevity than the first. It may perhaps

be useful, at this stage, to deal with some general principles, really

by way of explanation for why we have selected these case studies

in the first place. Now, broadly speaking, of course, the children

who find themselves in immigration detention find themselves to fall

within broadly two categories. One is unaccompanied minors, that is,

children under the age of 18 who arrive in Australia without a parent

or an effective guardian and also the other category being children

that arrive with their parents. Right?

MS McPAUL:

That's correct.

MR WIGNEY:

And what we have been dealing with, at least this morning, and what

we will continue on this afternoon with is the situation of those

children who arrive with their parents and hopefully later this afternoon

we may get on to some of the issues that arise in relation to the

unaccompanied minors. Now, one of the reasons - really the main reason

that we have raised these case studies and asked the Department about

them is really to explore some of the submissions that are made in

the Department's submission to this Inquiry and I think yesterday

when you were present we considered Article 3 of the Convention for

the refugee - could I withdraw that - Convention on the Rights of

the Child and concerning 'the best interests of the child' being a

principal consideration in relation to administrative action which

may impact upon a child, right?

Now, as I understand

it, from the Department's submissions, one of the submissions - and

I invite you to correct me if I'm incorrect about this - one of the

Department's submissions as to why children are detained, or must

be detained is the following effect that:

In almost all

cases it will be in the child's best interests to remain with their

parents.

Is Step One of

the argument, right?

MS McPAUL:

That's one of the considerations, yes.

MR WIGNEY:

Because the current regime - and that is the Act and the Regulations

- requires the parents, as unlawful non-citizens, to be detained,

and it follows that it is in the best interests of children to be

detained with their parents in the detention facilities. Now, does

that do justice to your submissions?

MS McPAUL:

Yes, I think it - just to be clear, yes, I think it's our understanding

that it would be preferable for the children to be located with their

parents, yes.

MR WIGNEY:

And indeed as you correctly point out in your submissions, the Convention

on the Rights of the Child also contains a number of articles that

also suggest that it is in - the primary care giver ought be the parents

and the like, and I don't need to take you to those specific items?

MS McPAUL:

No, that's - that's right, yes.

MR WIGNEY:

Now, is this - that is, that it is in the child's best interests to

remain in a detention environment with the parents - something that

the Department assumes in relation to each non?citizen child that

comes into Australia, or is it something that is assessed by the Department

on a case-by-case basis?

MS McPAUL:

As I understand it, the law requires us to detain all unlawful

non-citizens which would include children and their families, but

we would and do make assessments on a case-by-case basis where it

may be appropriate in some circumstances to review that.

MR WIGNEY:

And do you assess on a case-by-case basis whether it would be in the

best interests of the child to remain with the parents when the parents

are required to be in a detention environment such as Woomera?

MS McPAUL:

Well, that's one - one of the factors that we would be looking

at, yes.

MR WIGNEY:

And is that situation, that is, the best interests of the child, continually

monitored by the Department?

MS McPAUL:

Are you asking us whether we have a case management approach to

- to looking at the welfare of children in detention? If you are,

then I think that the Department does take an active role in ensuring

the welfare of all children is monitored and appropriately addressed.

MR WIGNEY:

Whether - let me just put some general propositions to you. The proposition

that it is or remains in the child's best interests to remain with

their parents in a detention environment depends to a certain extent,

does it not, on the family in detention being able to continue to

function as a family unit?

MS McPAUL:

If the child is with the parents in detention, I think we've already

indicated that we would expect the parents to have a role in parenting

the child. Where the child remains - and the circumstances relating

to the needs of the child - is, I think as Ms Godwin said yesterday,

one of a number of matters that we would take into account.

MR WIGNEY:

But I suppose the point is this, in general terms, that if the family

unit breaks down in the detention facility or as a result of the environment

in the detention facility and the child's parents are no longer able

to or capable of looking after their child, it may no longer be in

the child's best interests to remain in the detention environment

with the parents?

MS McPAUL:

If the Department has a concern about the parenting capacity of any

individual set of parents for their child then that's a matter that

we may seek to discuss, in the case of Woomera, with our colleagues

in the South Australian Department of Human Services and FAYS and

seek advice.

MR WIGNEY:

Well, you are aware of course, are you not, and please tell us if

you are not - I'm sorry, was there something else you wanted to add?

You are aware, of course, and please tell us if you are not that this

Inquiry has heard public evidence to the effect that from a large

number of experts to the effect that the environment in the detention

facilities including Woomera, Port Hedland and Curtin relevantly does

have a destructive effect on the family structure and the ability

of families or parents to continue to parent. You are aware of that,

are you?

MS McPAUL:

We're aware that there has been a number of public submissions making

those remarks, yes.

MR WIGNEY:

And if I can just - to assist you, the Department, I withdraw that.

The Commission heard evidence, for example, from a Dr Ros Powrie,

from the Australian Association for Infant Mental Health and she said,

amongst other things, and this was at the Adelaide hearings of the

Commission on 1 July this year, and I will just quote to you part

of her evidence:

But overridingly

it seems that detention has a pathogenic effect on parenting. The

institutional experience of parents, as has already been mentioned

here, very much undermines their ability to care for their children.

They cannot provide for children's emotional needs while they are

in a situation of deprivation themselves. So that kind of problem

is passed on to children.

That is one piece

of evidence and I'm obviously not going to stand here and read all

of the evidence to you, but there is one other passage that I would

like to take you to.

Now, this evidence

again was taken - again it was public evidence taken again at Adelaide

on 2 July this year from Dr Jon Jureidini, who was the Head of the

Department of Psychological Medicine at the Women's and Children's

Hospital and indeed I think it was the situation that Dr Jureidini

provided one or more of the reports that we examined in the course

of the case study this morning. Dr Jureidini said, amongst other things,

that one of the systematic effects of detention in such a hostile

environment is that ordinary people break down in their functioning:

People who are

competent to function as parents in a reasonably sympathetic or even

an ordinarily hostile environment, in that very hostile environment

lose the capacity to exercise their normal parental responsibilities.

So effectively they are failing as parents. It is kind of a secondary

failing in that they are not - it is not something about them that

is making them fail but their failure as, you know, their breakdown

as adults. The most significant portion of that from our point of

view as child psychiatrists is that they then fail as parents.

Now, we have

been at length this morning through one case study. Do you accept

as a fact that the environment in these detention facilities such

as Woomera, Port Hedland, and Curtin when it was commissioned, had

a detrimental effect on the family unit and the ability of parents

to parent?

MR WALKER:

If I could just say something here, Mr Wigney? I think that both

our Minister and the Prime Minister have made statements that detention

isn't the most desirable circumstance for families but we have a statutory

framework that we operate within. It is not their preferred option

but the law requires unlawful non citizens to be detained unless they

are granted a visa and there are quite specific statutory criteria

that must be satisfied. In administering detention we do it to the

best of our ability, and I think that we believe we do quite satisfactorily

overall, take care of people within a detention environment, but we

are working within a statutory framework. Asking us what is or what

is not desirable I don't think is appropriate for a public servant.

DR OZDOWSKI:

Well, I disagree with you. We are not asking you to comment on government

policy. What we are asking you to comment on is your experience as

a person responsible for running these particular institutions and

being there on a daily basis, what your experience - what your assessment

is in terms of what is happening to families over there. So it is

nothing to do with government policy.

MR BROMWICH:

Well, Commissioner, the question was, Do you accept that there is

a detrimental effect? Whether any departmental officer does or does

not accept that there's a detrimental effect is in one sense quite

beside the point. They have, as Mr Walker has indicated, a legal framework

within which they have to operate.

DR OZDOWSKI:

I accept the legal framework which exists but what I'm trying to do

is to establish fact, what impact on families this framework is having

and people who are responsible for operations should be able to provide

me with the information.

MR BROMWICH:

Except that question wasn't directed to a fact, that question was

directed to an opinion as to whether or not something was or wasn't

detrimental. Now, whether it is or isn't detrimental is something

that the Commission will doubtless make some finding about but the

opinion of this officer as to whether or not that is the case, in

my submission, is neither here nor there.

DR OZDOWSKI:

Counsel, could you ask about the fact?

MR WIGNEY:

Well, I suppose if the Department does not wish to respond to that

or comment on it then so be it. Can I ask Mr Walker who responded

to this question, that, accepting for present purposes the existing

statutory and regulatory framework, do you accept that detention,

immigration detention, in Australia ought be humane?

MR WALKER:

Yes, and we believe that we do operate within those parameters. We

do attempt to make it overall humane. I should also clarify before,

what the Minister and what the Prime Minister both said is that they

don't like detention but it is required by the law. It is not something

that they prefer to see people in but it comes back to overall management,

a statutory framework for the orderly entry of non-citizens into Australia.

MR WIGNEY:

Does the Department accept that immigration detention in Australia

ought be managed flexibly by the Department?

MR WALKER:

It is. We would argue that it is. We do make individual assessments.

There are circumstances where people are held in a variety of different

detention arrangements depending on their needs.

MR WIGNEY:

You see, you wouldn't disagree with this proposition, would you, that

based on the definition of immigration detention, the Department has

considerable flexibility as to the conditions of immigration detention,

be it alternative detention or be it the conditions in these specific

detention facilities?

MR WALKER:

There is flexibility within the statutory framework but there are

factors that go to the individual needs and circumstances of particular

detainees and also in the orderly management of detention services.

MR WIGNEY:

I have just read some passages from at least two - the evidence of

at least two experts in child psychology and psychiatry to the effect

that the detention environment may be deleterious to parents and as

a result the children that they parent. Does the Department have any

expert advice to the contrary?

MS McPAUL:

I think it's very important not to make a generalisation about the

factors that might contribute to a person's mental health. The documents

that you are referring to point to one factor that might go to the

state of a person's mental health at a given time but there are any

number of factors that might also be at play some of which have no

bearing - some of which occurred well before the individuals might

even have come to Australia.

MR WIGNEY:

I will ask the question again. Does the Department have any expert

evidence to the contrary?

MR WALKER:

I think it is important to bear in mind, as I said before, that we

are working within a particular statutory framework.

DR OZDOWSKI:

Could you directly answer the question. The question is very simple.

MR WALKER:

I'm not aware that we have ---

DR OZDOWSKI:

Thank you.

MR WALKER:

---but once again, it goes to the point, we are working within

a statutory framework. We are charged by the Government to administer

detention. That is not necessarily something that would necessarily

arise in a broad sense within our administration. We may have advice

in particular circumstances dealing with particular cases and we make

arrangements accordingly.

MR WIGNEY:

Can I put a factual proposition to you and ask you whether you do

or do not agree with it. Of course it is a matter for you. If you

don't choose to comment, so be it, but the factual proposition I put

to you is that, in many cases, the Department's experience is that

in many cases, over the past few years, the detention environment

has had a deleterious effect on the mental health of parents, effectively

making them unable to parent and care for their children. Now, do

you choose to comment or not in relation to that proposition?

MS McPAUL:

I don't think there is anything further I can add on that. It is a

view that you are expressing.

MR WIGNEY:

I'm asking you. We are a Commission, we are an Inquiry and we are

interested in your views about these matters. Do you care to comment

on it or not?

MS McPAUL:

I think, as I've said before, there are many factors that go to the

mental health of individuals and, while there may be some families

that appear not to cope as well as others, there are many families

who are in detention who do not fit the description of the documents

that you have just read to us.

MR WIGNEY:

Just excuse me. I think we've already really explored to the extent

necessary, the availability to the Department and the Minister of

alternative forms of detention, that is alternative to the particular

facilities, such as Woomera, Port Hedland and Curtin and in particular

the fact that detention can take place in any place that the Minister

so directs. Can I just deal with one of the other alternatives to

detention? I suppose - well, I was going to actually deal with the

availability of bridging visas but I may just come back to that in

the context of unaccompanied minors. I think we might just try and

go through the other case study now as quickly as we can.

We want to address

now the case study that is referred to as Case Study C on our list

of case studies and hopefully, it is the case study that appears in

the beginning of the folder that you were given this morning.

MS McPAUL:

It is somewhere in the middle of mine.

MR WIGNEY:

I'm sorry. I must have a different folder, the middle of the folder,

I'm sorry.

MS McPAUL:

There is only one set of documents, no tabs.

MR WIGNEY:

Yes, sorry, I have a different folder. It is the middle of the

folder, Case Study C. Now, unlike the case study we considered this

morning I think this bundle of documents relevant to this case study

is numbered by page in the bottom right-hand corner of the document

and I will make reference to those pages. Somewhat confusingly there

are other numbers so ---

MS McPAUL:

Okay, we will see how we go.

MR WIGNEY:

Try and just deal with that number. I have misled you.

MR BROMWICH:

We seem to be looking at a document that has got a textaed number

on the top right-hand corner - number 1 to 45 after the first page.

MS McPAUL:

Is that the one you are talking about?

MR WIGNEY:

Mr Bromwich has once again been both astute and accurate and I have

been inaccurate. Apparently, the version you have is numbered in the

top right-hand corner in large texta, is that right?

MS McPAUL:

Yes.

MR WIGNEY:

Let us try again. In any event, this particular case study concerns

- have you had the opportunity to look through those documents or

are you familiar with the family in this case study?

MS McPAUL:

I am familiar with the family.

MR WIGNEY:

I am sorry?

MS McPAUL:

I am familiar with the family.

MR WIGNEY:

Now, again, in the interest of brevity, I am not going to go to every

document in this folder and I invite you of course again to refer

not only to any documents that I don't expressly refer to, but any

passages that I don't refer you to as we go through them. This family

in this case study comprises a father and a mother, an elder daughter

who I will try and refer to as daughter 1, she is currently, I think,

about 18, a second daughter, who I will refer to as daughter 2, who

is currently 15, and a son who is currently 4, right?

MS McPAUL:

That is my understanding, yes.

MR WIGNEY:

The situation is that this family has been in detention at Woomera

since 1 January 2001 subject to - I think the mother and the children

spent some period of time at the Housing Project in Woomera.

MS McPAUL:

Yes, that is correct. I am not sure what date you said they were detained

on but in any event, they have spent some time at the Housing Project.

MR WIGNEY:

Essentially, they have been ---

MS McPAUL:

Since July of this year.

MR WIGNEY:

They have been in immigration detention, in any event, since 5 January

2001, it appears.

MS McPAUL:

That seems to be our information as well, yes.

MR WIGNEY: Now,

if we can just go through some of the documents and as I said I will

try and do so as quickly as possible although as fairly as I can. The

first document I think in the bundle is a report authored by a particular

doctor who is a - referred to as a Consultant Child and Family Psychiatrist

and it is dated 12 February 2002, do you see that?

MS McPAUL:

Yes, I can see that.

MR WIGNEY:

It is apparent from the first page of that report or document that

it concerns this family the subject of the case study and involves

a psychiatric report as to their mental health at the time of the

report.

MS McPAUL:

At the time of the report, yes.

MR WIGNEY:

Now, you will see as you go through the document, and I don't propose

to take you to all of the assessments, but each of the members of

the family are assessed and really it is sufficient unless you wish

to refer to anything more specific that on the fourth page of the

document there is an overall assessment of the family just above the

sub-heading, Recommendations, and it is to this effect that:

Our assessment

is the whole family are suffering varying degrees of post traumatic

stress, depression and suicidality, which are directly attributable

to their prolonged time in Woomera IRP.

Do you see that?

MS McPAUL:

Yes, that is here.

MR WIGNEY:

Now, I think as we have indicated they were - they commenced being

in immigration detention on 5 January 2001 and it would appear that

at least up until the time of this report they had remained the entire

time in the detention facility at Woomera rather than the alternative

housing scheme.

MS McPAUL:

I think - yes, it is also important to realise that this family had

a primary decision taken on their case in the middle of March 2001

so at any time from that period onwards they could have chosen to

bring their detention to an end and return to their home country.

MR WIGNEY:

Yes, but ---

MS McPAUL:

So the reason for their prolonged detention was action that they had

chosen to take.

MR WIGNEY:

Our concern, at least for present purposes, is the immigration detention

and their detention in immigration. I think you agreed before the

luncheon ---

MS McPAUL:

That is the point that I am making. The reason why they remained in

immigration detention is because they chose to pursue some options

through review and court processes in Australia.

MR WIGNEY:

You accept, do you not, that - as I think you did before the luncheon

adjournment - that irrespective of the immigration status of an individual,

the Department owes a duty of care to anyone that is in immigration

detention?

MS McPAUL:

That is true. The duty of care remains but I think it is important

to recognise that again, this case as with the others - it is certainly

within the scope of the family's decision-making to make a choice

to go home.

MR WIGNEY:

It is also within their legal rights to challenge the decision, the

primary decision, is it not, in the Courts?

MS McPAUL:

That is right. It is a choice.

MR WALKER:

It certainly is but it is within the context of being well aware that

they are required to be detained.

MR WIGNEY:

Sometimes applicants are even successful in challenges of primary

decisions, aren't they?

MS McPAUL:

They are.

MR WALKER:

Of primary decisions, yes.

MR WIGNEY:

Now, just returning to the report I just wanted to direct your attention

to one other passage. You will see under the recommendations, recommendation

number 1, and I suppose this picks up with a point that you have just

raised that ---

MS McPAUL:

We are on page 4, are we? Sorry.

MR WIGNEY:

Yes. Page 4. The first recommendation is that:

within the current

context of mandatory detention of asylum seekers in Australia that

clarification of this family's immigration status occur as soon as

possible to remove uncertainty about their future and clarify their

options.

Right? Now, at

this stage, at least, the primary decision had not been made.

MS McPAUL:

Sorry, which page are we looking at?

MR WIGNEY:

Page 4 of the bundle. I am sorry, you are quite right. You said March

2001. The primary decision had been made by this stage.

MS McPAUL:

Had been made well and truly.

MR BROMWICH:

11 months earlier.

MS McPAUL:

Yes.

MR WIGNEY:

Now, the second numbered paragraph:

While this is

occurring, the family be released from detention to live in the community

with culturally appropriate supports. This should occur immediately.

The severity of depression, despair and suicidality in the father

and both girls must be considered a psychiatric emergency. The youngest

child is also traumatised by ongoing exposure to violence in the centre

and affected by his parents' depression. This should not be further

prolonged.

Then it is recommended

that:

If this cannot

occur immediately the family should be moved to a less harsh and isolated

centre where they can receive visits and have adequate medical and

psychiatric treatment and follow up.

Now, that is

a report that is dated 12 February 2002. I think to be fair it is

unclear when that report was provided to the Department but it seems

to have been provided at least by July of 2002.

MR BROMWICH:

I should point out, Commissioner, for completeness that by July

2002, not only had the primary decision been adverse, the Refugee

Review Tribunal had been adverse and the Federal Court decision I

think had been adverse.

MR WIGNEY:

Now, the next document I want to refer you to commences at page six

of the bundle and it would appear to be a letter from a doctor employed

at the Woomera Hospital, and it is addressed to the then DIMIA Manager

at the Woomera Detention Centre, do you see that?

MS McPAUL:

Yes, that is correct, I have that here.

MR WIGNEY:

He commences the letter by stating that he is writing to inform

the Department Manager of his concern at the level of mental illness

and depression amongst the members of the family that is the subject

of this case study. Do you see that?

MS McPAUL:

Yes, that is written here.

MR WIGNEY:

Then, on the second page he indicates that in his opinion:

Each family

member is exhibiting some form of mental illness

and that the

level of illness is particularly severe in relation to the two daughters.

MS McPAUL:

The first paragraph on that page makes reference to that matter,

yes.

MR WIGNEY:

Yes. Sorry, I should - can I just take you back to one passage

which is perhaps also relevant back on page 1 and, that is, that the

family at least ---

MS McPAUL:

Page 1 of the whole ---

MR WIGNEY:

I'm sorry, page 6.

MS McPAUL:

Page 6, yes.

MR WIGNEY:

The doctor recounts the fact that the family told him that before

they arrived in Woomera they were psychologically well and that they

had behaved throughout their time in detention and had not taken part

in any riots, or disturbances. Do you see that?

MS McPAUL:

That is written here and that may be the view of the family. I

can't comment on their view.

MR WIGNEY:

Well, we will come to another passage to similar effect later on in

any event, but the ultimate recommendation of this particular doctor

is that:

this family

would be a good candidate for moving to community housing from the

viewpoint of treatment of their mental illnesses, though they do not

meet the current criteria.

Is it the situation

that they did not meet the current criteria at that stage because,

at least at that stage, one of the criteria for admission to the Residential

Housing Project was that the primary application had not been determined?

MS McPAUL:

That was one of the original criteria for the Housing Project,

yes.

MR WIGNEY:

And amongst the things that Ms Godwin referred to yesterday in the

opening address was that the Minister has since changed that criteria,

such that persons who have Refugee Review Tribunal applications on

foot, or indeed Court proceedings on foot, are now eligible for the

Woomera Housing Project?

MS McPAUL:

That is correct.

MR WIGNEY:

Now, the next document is a document that commences at page 8 of the

bundle.

DR OZDOWSKI:

Perhaps, if I interrupt for a moment. Ms Godwin, I know you don't

feel well. If you would like to contribute, simply stay on. However,

if you don't have anything you would like to contribute, you are free

to go, your presence is not required.

MS GODWIN:

Thanks, Commissioner, but I would like to provide whatever support

I can for the officers at this time.

DR OZDOWSKI:

Thank you.

MR WIGNEY:

Now, the next document which commences at page 8 of this bundle is

a memorandum from a registered psychologist and it is dated 16 May

2002 and it is on the letterhead of ACM, so we may assume it is a

psychologist employed, at least at that stage, by ACM. It commences

by referring to a request, presumably, made by that person, [name

removed], who was the DIMIA Manager at that time, is that correct?

MS McPAUL:

Yes, that is correct, I have that document.

MR WIGNEY:

He had presumably asked this psychologist to review the records that

relate to the psychological needs of this family that we are considering,

and without taking you through it word for word it is clear, is it

not, that on a review of the records they disclosed as the author

recorded, that the records consistently refer to:

The family members'

ongoing psychological distress that is becoming increasingly more

difficult to manage within the Centre.

And amongst other

things it refers to the father showing symptoms of Post Traumatic

Stress Disorder, do you see that?

MS McPAUL:

I do. I think the document also goes on to point out that this family

has been receiving some mental health support from the Child and Adolescent

Medical Health Service as well on a subsequent page.

MR WIGNEY:

One other passage that I wanted to point you to is that it would appear

that one of the concerns that the mother expressed was that she was

no longer able to control her daughters, and there is also a reference

to the psychological state of the young son, who at this time, was

four years old:

exhibiting aggressive

and anti-social behaviour towards his peers.

Ultimately, the

professional opinion expressed by this doctor was that:

the psychological

needs of the family cannot be adequately managed within a detention

environment.

Do you see that

on the last page of the document?

MS McPAUL:

I believe it is a registered psychologist and there is a view

expressed there, yes.

MR WIGNEY:

Yes, well, she signs it. Next, we have a document that commences

at page 10 of the bundle and, again, this would appear to be a communication

directed to the DIMIA Manager of the Woomera detention facility. It

is dated 22 May and, again, concerns recommendations relating to the

particular family that is the subject of this case study, right?

MS McPAUL:

Yes, it does.

MR WIGNEY:

In the background the author of this document who is a Senior

Clinician with the Women's and Children's Hospital in Adelaide, traces

the background and expresses various opinions in relation to each

of the family members and, in general terms, it is that each of them

is showing signs of mental illness at this stage. Now, I can be more

specific if needs be.

MS McPAUL:

In broad terms, I think that is correct.

MR WIGNEY:

I just want to take you to some passages further on through this document.

You will find that page 14 of the bundle still within the same document,

having dealt individually with each of the members of the family,

there is then a paragraph, rather a sub-heading:

Child protection

issues which place the children -

You will see

referred to there the names of the two daughters and the son -

at further risk of harm.

And there is

this passage:

The above named

children need protection from all forms of physical and mental violence.

Clearly, parents who are depressed and disempowered are less able

to protect their children. In addition, violent attacks in detention

centres are without...

In addition violent

events - what did I say - sorry:

in addition,

violent events in detention centres are without doubt placing the

children at risk of further harm and can be a dangerous environment

for children to exist.

MS McPAUL:

I think it is important to note that where parents accompany their

children in a detention facility, as we have already stated earlier,

parents have a responsibility for guardianship roles for their children,

including in any circumstances where there might be a violent incident

of some kind and we would expect the parents in those circumstances

to also take a role in ensuring that the children are protected from

becoming involved in any circumstance that would be inappropriate.

MR WIGNEY:

Well, if I may say so with respect, I don't think anyone would quarrel

with that proposition, but the point that is being made by this person

is that what happens in the detention environment is that, to use

the author's words:

Parents who

are depressed and disempowered are less able to protect their children.

That is one of

the incidents of being in this detention environment, right?

MS McPAUL:

It is a view expressed here.

MR WIGNEY:

Yes. One of the other things that is addressed in that passage that

I took you to is that - and this was certainly the case, I think you

would agree at the Woomera Facility at the time we are talking about,

that is, towards the beginning and middle of 2002 - that there were

often incidents of violence and self-harm amongst detainees, right?

MS McPAUL:

I don't think you could say there are often these circumstances. There

are occasions in which that does occur.

MR WIGNEY:

Would you accept that one of the aspects of the Department's duty

of care was to endeavour to protect children from witnessing such

events?

MS McPAUL:

I think that is the point I was just making, that where parents

are in the Centre, it is also the parents' responsibilities to protect

their children and to take what reasonable steps they can to ensure

that their children don't witness things that they would consider

unsuitable.

MR WIGNEY:

But as the ---

MS McPAUL:

As does the Department have a duty of care broadly in those circumstances.

MR WIGNEY:

But the point is, is it not, that as the mental state of the parents

deteriorates, as they become depressed and disempowered, to use this

author's words, they are less able to fulfil that function that you

have just referred to, that is, the function of protecting their children?

Do you agree with that proposition?

MS McPAUL:

Well, I'm not qualified to comment on the relationship between the

parents' mental state and their capacity to parent. I think there

is a view being expressed here by a particular clinician and there

may be any number of factors that might go to a parent's capacity

to parent.

MR WIGNEY:

Can I take you to page 16 of the bundle, which is still in this current

document, and there are a number of dot points there, which contain

the author's recommendations in relation to this particular family.

The second dot point is to the effect that the Child and Adolescent

Mental Health Services are of the opinion that:

it is not possible

to treat post-traumatic stress, suicidality and depression within

a detention centre environment.

MS McPAUL:

Yes, that is stated here.

MR WIGNEY:

The second dot point:

It is also important

to advocate for the release of the children with their parents, as

separation would potentially add further trauma, anxiety and development

of attachment issues.

MS McPAUL:

Yes, that is written here as well.

MR WIGNEY:

Now, then turning to a specific assessment in relation to this family,

the third dot points refers to the high degree of stress within the

family, the fact that both parents suffer from symptoms of depression,

anxiety and suicidal ideations. And reference to the fact that:

These issues

place the parents at risk of further harm and jeopardise their ability

to parent.

Then, the author

says that:

The Child and

Adolescent Mental Health Service is of opinion that helping the children

is inseparable from the safety and well being of the parents, who

equally require appropriate mental health intervention and appropriate

psychiatric follow up.

Do you see that?

MS McPAUL:

Yes, that is also written here.

MR WIGNEY:

Then, finally, the author refers to the fact that it is her opinion

that:

to delay action

on this matter will only result in further harm to the family. I recommend

that the whole family be urgently released from the detention centre

environment on medical, psychological and compassionate grounds.

Right?

MS McPAUL:

I think the important thing to remember when we are reading this is

that the Department was working actively with Family And Youth Services

and with CAMHS in the management of this case, and I think as with

the case that we discussed this morning, it would be wrong to construe

that the Department was not providing support to that family. Clearly

it was, as was our services provider.

MR WIGNEY:

Well, you referred to the fact that the Department was working

actively with, in this case the Child and Adolescent Mental Health

Service. Did working actively with that service include acting in

accordance with their expert recommendations and advice?

MS McPAUL:

I think as we also referred to in the case this morning, we need to

consider a range of options that might be available to any given family

group within the context of our statutory regulatory environment and

the information provided as in this report is one of a number of things

that we take into account.

MR WIGNEY:

The range of options including, for example, release of the entire

family into some form of alternative detention, that is, detention

not in one of the facilities, such as the Woomera detention facility,

that was an option available to the Department, was it not?

MS McPAUL:

I think you will find that one of the recommendations made to the

Department by FAYS was that consideration be given to placing some

of the family in an alternative detention arrangement, and we did

act on that and that was why the family - in part why the family moved

to the Residential Housing Project in July.

MR WIGNEY:

But you will see that in this particular recommendation there

is a reference to the fact - and this is in the third dot point on

the page - that the children ought be released with their parents,

plural, and then if you look at the last dot point on the second line,

the recommendation is that the whole of the family be released into

some alternative detention. Now, that is not possible still at the

Residential Housing Project in Woomera, is it?

MS McPAUL:

Well, we have already explained this morning the parameters for

operation of that Housing Project.

MR WIGNEY:

Another option available is this, is it not, that the family be granted

a bridging visa?

MR WALKER:

I think as I mentioned before, Mr Wigney, there is a statutory framework.

Unauthorised arrivals are not eligible non-citizens, unless they meet

particular requirements that are set out in regulation 2.20, and that

is to make the threshold issue of being eligible to apply. They then

have to meet the specific criteria. Each individual has to meet the

criteria in respect of a bridging visa.

MR WIGNEY:

Well, let's deal for present purposes with the entire family, because

that was the question I asked.

MR WALKER:

No, I think that it is important to deal with the statutory framework,

where there are individual applications made.

MR WIGNEY:

Now, even in relation to - well, one of the criteria for eligibility

in regulation 2.20, that you have referred to in sub-regulation (9),

is that:

The person has

a special need based on health, or previous experience of torture

or trauma, in respect of which a medical specialist appointed by Immigration

has certified that the non-citizen cannot properly be cared for in

a detention environment.

That is one of

the criteria, right?

MR WALKER:

Yes.

MR WIGNEY:

That could apply to all members of a family, could it not?

MR WALKER:

There would be individual assessments made, yes, but you could have

that.

MR WIGNEY:

Yes.

MR WALKER:

But the important thing is, it is 'a medical specialist appointed

by Immigration'.

MR WIGNEY:

But to respond to your point, it was possible within the existing

regulatory framework for the family to be considered - well, each

individual member of the family to receive a bridging visa, right,

if they complied with that eligible ---

MR WALKER:

No, that is only one criterion. It is also in respect of whom the

Minister is satisfied that adequate arrangements have been made for

his or her support in the community.

MR WIGNEY:

I see. We will come back to this in due course, but one of the other

eligibility criteria for a bridging visa, specifically referable to

children, is that in sub-regulation (7), at paragraph (d), refers

to the fact that one of the criteria being:

A child welfare

authority of a State or Territory has certified that release from

detention is in the best interests of the non-citizen.

Right, so that

specifically addresses children?

MR WALKER:

That is right.

MR BROMWICH:

Mr Wigney, just in terms of this line of questioning, there is a fundamental

misconception in what you are dealing with here. A bridging visa is

a bridge to something. By the time we had got to May of 2002, there

had been a failure at primary level, at failure at the Tribunal level,

a failure at the Federal Court level, one rhetorically asks, a bridge

to what?

DR OZDOWSKI:

What about help ---

MR BROMWICH:

A bridging visa is a bridge to obtaining a substantive visa, but

this family had lost their prospect of being able to obtain a visa.

DR OZDOWSKI:

What about ability of help to departure?

MR WALKER:

I think, Commissioner, there is also an important element in terms

of the criteria for a bridging visa, one of which here is that in

fact they have to have either a visa application that has not been

finally determined, or a judicial review application on foot. If there

isn't any application on foot, either for judicial review, or a substantive

visa, then, they don't meet the criteria for the bridging visa and

they are required to be detained and removed as soon as practicable.

MR WIGNEY:

Go to page 19 of the document, please. A minute to Ms Godwin as First

Assistant Secretary and one will see about two-thirds of the way down

the page:

Status: Full

Federal Court.

So indeed this

family was still at a stage where they were able to apply for a bridging

visa, were they not?

MR WALKER:

I wouldn't necessarily say that, Mr Wigney. There is also a requirement

that they give an undertaking in terms satisfactory to the Minister

that they will make arrangements and depart 28 days after the expiry

of their judicial review application in the Federal Court.

MR WIGNEY:

Well, Mr Walker, go back to page 17 then. Here we have a fax from

the Deputy Manager of the Woomera Facility at this stage, to a doctor,

asking for an assessment required concerning bridging visa applications.

So it was an option, even the Deputy Manager of the Centre at this

time was referring the matter off to assessment for that very reason,

right?

MR WALKER:

Well, that may well have been the belief of the Deputy Manager at

the time. I'm not saying that that is necessarily the case that a

bridging visa could have been granted. It is certainly, in a sense,

seeking an assessment in relation to the eligibility to apply for

a bridging visa, it is not necessarily conclusive of the fact that

the person would be eligible to be granted the visa.

MR WIGNEY:

That document that I have just referred you to is a document addressed

to a doctor, and I think we observed in the case study this morning

a similar fax in relation to that case study, asking for - as part

of the process involving processing a request for a bridging visa

- an assessment as to whether the needs of the family can be cared

for within the detention environment. Now, again, we have not seen

any response to that request. Are you aware of whether that request

was replied to?

MS McPAUL:

Look, we are not aware. As I said this morning, we did make attempts

to locate all of the documents required under the notice and I believe

that we have provided everything that we have in this matter.

MR WIGNEY:

I see. Now, I took you before to page 19 of the bundle. I just want

to refer you to some other passages in it. It is the minute to Ms

Godwin through the Assistant Secretary and it is from someone by the

name of [name removed]. Who was that, just as a matter of interest?

Or, at the time, what was her position in the Department?

MS McPAUL:

I believe [name removed] was Assistant Director of case management

in the Detention Operations Section in central office.

MR WIGNEY:

In any event, in the background section of this minute, there is a

reference to the fact that:

The family has

been in detention for over 18 months

and that

they have been

well behaved throughout this time and have not participated in riots

or disturbances. However, each family member is now exhibiting symptoms

of mental illness such as major depression and anxiety disorder.

It goes on to

recommend that:

the Minister's

office be approached to seek approval to place the mother and her

children at the Housing Project.

Do you see that?

MS McPAUL:

Yes, that is written here in the document.

MR WIGNEY:

Now, just dealing with these documents as quickly as we can, doing

them justice, page 21 we have another letter from a doctor attached

to the Women's and Children's Hospital in Adelaide. It is marked 'Urgent'

relating to this family, and you will see at the bottom of the page

21:

This family

cannot be treated in the detention environment. They are at very high

risk of suicide, particularly the father and his daughters.

Do you see that?

MS McPAUL:

Yes, it is on folio 21.

MR WIGNEY:

Yes. Now, I think the next document really is an attachment to

that letter by that doctor and it is a detailed report marked 'Urgent'

in relation to a psychological assessment of the family that is the

subject of this case study, and without taking you through all of

it, it refers to concerns that this doctor and diagnoses that this

doctor came to in relation to the mental state of those family members.

At page 28 there is an overall assessment, and the doctor records

that:

My assessment

of this family on the 3rd of July 2002, confirmed an exacerbation

of post traumatic stress disorder and major depression in both parents

and the two adolescents. Their psychological condition has deteriorated

since last seen in January and the adolescents in particular currently

see the hunger strike as a way of acting on their suicidal ideation.

A number of things

seem to emerge from that. We have seen before in the earlier documents

that at least prior to this time, none of the family members had participated

in any form of protest. It seems now that the adolescents are on hunger

strikes.

MR BROMWICH:

With respect, that is not correct.

MR WIGNEY:

Well, that ---

MR BROMWICH:

Being a form of protest that is ---

MR WIGNEY:

Well: they see the hunger strike as a way of acting on their suicidal

ideation, I think are the precise words of this doctor.

MS McPAUL:

That does not mean that they are on a hunger strike. I think that

is a view expressed here that they may see that as an avenue to express

themselves.

MR WIGNEY:

You will see then through on page 29, under the heading, Urgent Recommendations,

the first recommendation being:

The situation

of this family represents a medical and psychiatric emergency.

And then slightly

further down the page in about the middle of the page:

It is extremely

important for this family to remain together. There is a high risk

that if the children were separated from their parents, or the mother

and children separated from the father, that this would increase the

risk of suicide of one of the family members.

Do you see that?

MS McPAUL:

I think it's also going on to say that the family could be moved to

live in the Woomera Housing Project which is one of the recommendations.

MR WIGNEY:

Well, the first recommendation is that:

This family should

be immediately removed from the detention context

and then the

second recommendation, as you point out, is that:

Until this is

possible, they should be moved to live in the Woomera housing project.

So it is really

a secondary recommendation, is it not?

MS McPAUL:

Well, it's a number of recommendations here, yes.

MR WIGNEY:

Now, subject to anything Mr Hunyor says, I will move through the next

few documents really to a document that commences at page 34 of the

bundle, that being a letter from a named paediatrician dated 2 August

2002, and as I understand the situation and no doubt you will have

the details ready at hand but, in fact, the mother and the children

were moved to the Residential Housing Project on 30 July, that is

some days before the date of this letter, at least?

MS McPAUL:

Yes, the letter's dated 2 August.

MR WIGNEY:

Now, again, subject to any particular passage you want to take us

to, I want to really just take you to one passage on page 33 of the

- I'm sorry, 36 of the bundle and it really is to demonstrate one

of the general points that I think I made before we embarked on this

case study again. There's a paragraph there commencing - well, I will

read it:

A further issue

is that I think that because of his mother's health problems -

and I think the

doctor here is referring to the youngest of the children who is not

yet four years old -

because of his

mother's health problems and also because of the difficult situation

in Woomera, and as I have observed with a number of children in recent

times, prolonged detention has resulted in an inability of parents

to actually parent. They have very little control over food, lighting,

housing or discipline for their children. They also have very little

control over contact with other people.

So again this

is a doctor referring to the fact, I suggest, that the conditions

in Woomera were making it - presenting an inability of parents to

actually parent and protect their children. Would you agree with that?

MS McPAUL:

And I think the point to make here is that as we have said before,

this family could have made a choice some time earlier to remove their

children from the particular circumstances that they find themselves

in here, and that option was for them to return to their home country.

MR WIGNEY:

But again ---

MS McPAUL:

And I think the other - I think the other point to make as well is

that, as you have mentioned, the family was - the mother and the children

were, in fact, moved to the Residential Housing Project at the - towards

the end of July which provides them with that opportunity, as you

know, to take greater control over the day to day circumstances of

their life and I think the evaluation report for the Housing Project

certainly indicated that there was a widespread view shared by the

detainees, the health professionals and some others that that environment

provided positive impact on the parenting capabilities of the people

located in the housing project.

MR WIGNEY:

Well, I will pick up - well, perhaps the best way to respond to that

point without going over ground that we have well travelled this morning.

If you could go to page 41 of the bundle that is a letter on a letterhead

of ACM Detention Services again by the doctor retained at the Woomera

hospital. Have you got that?

MS McPAUL:

Folio 41, 42, 43, yes.

MR WIGNEY:

Dated 13 October 2002?

MS McPAUL:

Mm.

MR WIGNEY:

And the doctor is specifically referring in this communication to,

I think, the mother of the children, right? You will see the ---

MS McPAUL:

It's dealing the issues relating to the mother, yes, I think so.

MR WIGNEY:

And you will see towards the foot of the page, the last sentence of

the second substantive paragraph:

It is obvious

to me that her -

that is the mother

-

her level of

functioning is extremely poor and that she is unable to care for -

the young boy

who at this stage is about four years old.

Do you see that?

MS McPAUL:

That's stated here, yes.

MR WIGNEY:

And then if you go over specifically in relation to the point that

you have just made about the Woomera Housing Project, can I take you

to, firstly, the second paragraph on the page and please feel free

to refer to any other passage you wish to but you will see about five

lines up the sentence commencing, However, the husband - it is referring

to the movement to the Residential Housing Project.

MS McPAUL:

Mm.

MR WIGNEY:

The husband was forced to remain behind in the detention centre, the

family have still not been assessed for a bridging visa and at this

point if granted one would not remain in the community for long as

a bridging visa is only a bridge, as Mr Bromwich points out, until

the appeal process has taken its course. The point being that there

is a reference there to the fact that the husband is not able to go

to the Residential Housing Project and if one goes to the next - and

Mr Hunyor reminds that at this stage it is five months since that

letter directed to the doctor directing attention to an assessment

for a bridging visa had been communicated.

But specifically

in the third paragraph on the page commencing about four lines down,

a reference to the fact that 'the family found it difficult to cope'

without the father. Right, now we explored this issue this morning

the difficulty in relation to some families when they are separated

from the father, right?

MS McPAUL:

I think that - that particular paragraph also goes on to say that

the family was offered a move to Baxter and as we discussed this morning

as well there is a capacity in the Baxter immigration detention facility

for families to be co-located together with additional support services

that are available through the Port Augusta region and that offer

was made to the family and, as I understand it, they declined.

MR WIGNEY:

Well, we will come to that in due course, but if we come to the third

paragraph on this page, the doctor refers to the fact that the week

prior to this letter being penned the mother, the circumstances had

got to be the case where the mother had stated that she was no longer

able to look after the youngest child, that is the boy about four

years old, right?

MS McPAUL:

I think that paragraph also refers in the opening lines to the initial

improvement in the mother's mental health and the family's mental

health ---

MR WIGNEY:

Yes.

MS McPAUL:

---having moved to the Residential Housing Project.

MR WIGNEY:

But ultimately, the separation from the father caused additional stresses,

did it not?

MS McPAUL:

I'm not sure that that's my understanding of this.

MR WIGNEY:

Well, let us just go to the next paragraph:

In summary it

has been observed by various clinicians that the members of the family

are suffering from severe mental illness. It has been recommended

to the Department of Immigration by the Child and Adolescent Mental

Health Service that the family be removed from the detention environment.

The move to the Woomera Housing Project has been unsuccessful at preventing

further deterioration of this family and in particular the mother.

Do you see that?

MS McPAUL:

Yes, that's written here.

MR WIGNEY:

And it goes on:

Prescription

of medication and provision of supportive psychotherapy have also

failed to prevent deterioration. I personally feel that removal of

the family from the detention centre to a place of alternate detention

as a family unit with proximity to mental health services offers the

only alternative for this family.

Right?

MS McPAUL:

But it ---

MR BROMWICH:

I ask my friend to read the next sentence.

MR WIGNEY:

Absolutely:

I would be concerned

that a bridging visa would expire if and when the family were to lose

their appeals and they would be returned to the detention environment,

this could be potentially more harmful.

That is the return

to the detention environment. Now, that again emphasises, does it

not, the importance of the whole of the family to stay together and

the deleterious effect that separation from the father figure may

have on the family unit, would you agree with that general proposition?

MS McPAUL:

The statements made here are a view of a particular doctor about

the arrangements that he thinks may be suitable for the family. I

think it's important to remember, as Mr Walker has said this morning,

that we must operate within the regulatory environment and while it

may be the view of some individuals that it would be possible to provide

a bridging visa for this particular family group, that may not necessarily

have been possible.

MR WIGNEY:

Where is this family now?

MS McPAUL:

As I understand it, the father is in the Woomera IRPC and the remainder

of the family are still in the Residential Housing Project.

MR WALKER:

I think there is one important point to just highlight what Ms McPaul

said, is that in relation to keeping the family together that the

offer had been made for them to move to Baxter where they could be

kept as a family. Now, they have declined that offer.

MS McPAUL:

We're just checking exactly where they are today for you, we will

clarify that.

MR WIGNEY:

I think and I seek your assistance in this regard that it, I think,

was understood by at least some officers of the Commission that in

fairly recent times the mother, at least, has returned to the detention

facility.

MS McPAUL:

We're, as I said, we're just checking the exact location on whereabouts

today.

MR WIGNEY:

Well, perhaps I just again return to the general point that I made

before embarking on the second case study that experience has shown,

has it not, and I suggest to you that the detention environment, at

least, in the detention centre such as Woomera has a deleterious effect

and a break down effect on the family unit that really robs the parents

of the ability to parent children. Would you agree with that or not?

MS McPAUL:

I think what this shows is that managing individual circumstances

in a detention environment is an inherently complex and dynamic process

that requires input from - active input from the Department and a

number of other support agencies which, I think, in looking through

the documentation of both the case this morning and for this one,

shows that the Department has been working actively and closely with

these other agencies and with our services provider to provide the

kind of support needed to the families that we have been discussing.

MR WIGNEY:

Well, you say working actively, I suppose, we return to the same point

and there's no little point in continuing to labour it, but these

other bodies that you say the Department is working with are continually

recommending that the only alternative for this family is a whole

family approach and all of them to be removed from the detention environment

at Woomera. That is what they are saying and the Department is not

acting on their recommendations, is it?

MS McPAUL:

Well, with respect, I think that we have looked at documents in relation

to this particular family that also recommended that location of the

family members in the Residential Housing Project was an appropriate

alternative and I believe that the Department has, in fact, acted

on that advice which was the reason, in part, that the family moved

to the Residential Housing Project at the end of July.

MR WIGNEY:

Would you excuse me for one minute. I took you shortly before

the luncheon adjournment to a letter of 8 November 2002 directed to

the Director of Family and Youth Services in South Australia, the

author of which being a registered psychologist employed by ACM, at

least, as at that date. I don't want to take you to the same passages

that I took you to this morning other than to point out that in that

same letter where certain accusations are made about DIMIA and the

Federal Government and emotional abuse of children, there is reference

to the children of this family in this case study that we have considered

after lunch.

MS McPAUL:

As I understand it, yes.

MR WIGNEY:

So it appears, at least, in the opinion of that registered psychologist

that the continuing detention in the Woomera detention centre of these

children amounts to emotional abuse of children and is a medical and

psychiatric emergency.

MS McPAUL:

I think the point you were trying to make earlier was that there was

a blanket view that they needed to be removed from a detention environment

and I think the point that I was clarifying was that not all of the

recommendations in fact point to that and secondly, in relation to

that point I think just for clarity the children remain in the Residential

Housing Project and are not actually in the centre as indicated by

the notes, as I understand it, made in this other document that you

are referring to.

MR WIGNEY:

I'm sorry, are you saying that you know for a fact now that these

children are in the Residential Housing Project?

MS McPAUL:

I've indicated earlier that they were and I've just been advised that

the mother and the children do remain in the Residential Housing Project.

The father, as I understand it, has his own accommodation unit in

one of the compounds at the Woomera centre and the mother and the

children visit the father on a regular basis. I also understand that

the father has been making fortnightly visits to the Housing Project

to see the family.

MR WIGNEY:

The point still being, I suppose, that at least in the opinion

of the author of this letter, the registered psychologist, even in

the Residential Housing Project the detention of these children amounts

to emotional abuse of children?

MS McPAUL:

Well, I'm not sure that she makes references to the housing project.

MR WIGNEY:

I accuse DIMIA

and the Federal Government of emotional abuse of children at Woomera

Immigration Reception and Processing Centre and RHP.

the Residential

Housing Project. So she does refer specifically to it.

MS McPAUL:

Well, I guess that's a view that she has expressed.

MR WIGNEY:

She being an employee - registered psychologist - employed at

least as at 8 November by ACM, your service provider?

MS McPAUL:

She was employed at that time, I understand, yes. I think the

other point that I would like to make just in relation to that, and

I think we've seen that through a number of documents that you have

drawn our attention to today is that people from other agencies quite

often make recommendations which go beyond the powers that are available

to us as immigration officers under our Act and I think the point

that Mr Walker has made on a number of occasions earlier today is

that notwithstanding the views of certain individuals about what might

be possible under the Act the officers of the Department are still

required to work within the framework that's possible under our own

Commonwealth laws.

MR WIGNEY:

Mr Commissioner, that is the end of the case study, can I be so bold

as to suggest an adjournment for two purposes? One, I want to return

after the break and simply address a few general issues that have

arisen on this particular topic that is, families, and then move on

to a different topic, being the unaccompanied minors, and I might

need just some little bit of time to gather my thoughts in that respect

and it is probably an appropriate time to take a break in any event.

But perhaps the Commission may ask ACM whether they have any comment

or whether Mr Bromwich has anything in reply.

MR OZDOWSKI:

Mr Bromwich, what is your view?

MR BROMWICH:

Commissioner, as with the last case study there are some additional

facts I seek to place before the Commission, first of all from Mr

Illingworth.

MR OZDOWSKI:

Yes, please do.

MR BROMWICH:

Thank you. Mr Illingworth, the family we have been considering the

second case study, I understand you have checked the circumstances

of their case processing history?

MR ILLINGWORTH:

Yes, I have.

MR BROMWICH:

The position is they arrived on a particular boat at the end of 2000?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

And they were detained, as previously indicated, at the Woomera immigration

centre on 5 January 2001?

MR ILLINGWORTH:

That's correct.

MR BROMWICH:

The Department screened them for refugee assessment on 12 January

2001?

MR ILLINGWORTH:

They lodged their protection visa application on that date.

MR BROMWICH:

The application was refused on 13 March 2001?

MR ILLINGWORTH:

That is correct, just on a month later.

MR BROMWICH:

And so a month after formal application - well, I think there

was a screening in January but a formal application for a temporary

protection visa on 13 February?

MR ILLINGWORTH:

I'm sorry, that is right, sorry.

MR BROMWICH:

And then one month later, on 13 March the temporary protection

visa was refused?

MR ILLINGWORTH:

Yes, 2 months after - 2 months later.

MR BROMWICH:

So the determination period was - sorry?

MR ILLINGWORTH:

Two months. Sorry, the PV was lodged on 12 January ---

MR BROMWICH:

I see.

MR ILLINGWORTH:

---and the decision was 2 months later.

MR BROMWICH:

Sorry, I had different dates.

MR ILLINGWORTH:

13 March.

MR BROMWICH:

Two months later it had been determined?

MR ILLINGWORTH:

That is right.

MR BROMWICH:

The Refugee Review Tribunal affirmed the decision of the delegate

on 26 November 2001?

MR ILLINGWORTH:

That is correct.

MR BROMWICH:

And both the primary decision and the Refugee Review Tribunal decision

were to the effect that this family were not refugees?

MR ILLINGWORTH:

That is correct.

MR BROMWICH:

An appeal to the Federal Court was unsuccessful?

MR ILLINGWORTH:

That is correct.

MR BROMWICH:

There is a Full Court appeal to be heard later this month?

MR ILLINGWORTH:

That is right.

MR BROMWICH:

In relation to the Refugee Review Tribunal's determination, the claims

for refugee status turned in substance upon the claims made by the

husband?

MR ILLINGWORTH:

Yes.

MR BROMWICH:

The Tribunal found that it could not be satisfied that at any of the

events claimed to have taken place after 1985 were credible?

MR ILLINGWORTH:

That is correct. So essentially from 13 March 2001, the Department

had satisfied itself that if necessary the removal of this person

would not be in breach of our obligations under the Refugee Convention.

The person was obviously free to depart at any time.

MR BROMWICH:

Yes, thank you for that. If I could turn now to Ms McPaul. Do

you have the bundle of documents in front of you?

MR WIGNEY:

Sorry, can I just - before Mr Illingworth departs, can I ask him this?

Whether his wealth of information about the immigration status of

these people extends to what happened to the bridging visa application,

or at least an application for an assessment that was made in May

of this year?

MR ILLINGWORTH:

No, it does not. My focus is on the assessment of any protection obligations

under the Refugees Convention in relation to these individuals.

MR WIGNEY:

So you are not able to assist us whatsoever in relation to this bridging

visa assessment?

MR ILLINGWORTH:

That is correct.

MR WIGNEY:

Very well.

MR BROMWICH:

Ms McPaul, page 3 of the bundle, you were asked a number of questions

which went to the issue of manifestations of distress and other matters

arising, it was said from detention, do you recall that?

MS McPAUL:

Yes, I do.

MR BROMWICH:

And if you look under the heading where the father's name is referred

to at about a third of the way down on page 3?

MS McPAUL:

Yes.

MR BROMWICH:

You see that? It is there stated:

Both parents

also felt hopeless. They felt sure each 'visa day' their names would

come up. The day their names were called he -

this is the father

-

assumed they

would be given visas and the girls were very happy, but when they

were rejected, he came pulling his hair and hitting his head and the

daughters wanted to cut themselves with wire.

Do you see that?

MS McPAUL:

Yes, I do.

MR BROMWICH:

And by reference to what has just been said, that adverse decision

was on 13 March 2001?

MS McPAUL:

As I understand it.

MR BROMWICH:

So it would appear from this report by the psychologist, the first

event giving rise to distress and concern was an adverse decision

on the visa, rather than the fact of detention?

MR WIGNEY:

I object to that.

MR BROMWICH:

That is the first point in time I have referred to ---

MR WIGNEY:

Mr Bromwich has been picking ---

MR BROMWICH:

---in any of these documents.

MR WIGNEY:

Mr Bromwich has been picking me up on summarising documents all morning,

perhaps I might pick him up on the same point.

MR BROMWICH:

Well, if my friend can point to a point earlier in time where

this was disclosed? That is the earliest point in time I can find

in this bundle. I could be wrong and I stand corrected if I am.

MR WIGNEY:

Yes, but you went beyond that point.

MR BROMWICH:

Well, the point I am making is that the earliest point in time at

which a distress was exhibited was at the point of rejection of a

protection visa, not at the point - some point in time merely of a

detention.

MR WIGNEY:

Sorry ---

DR OZDOWSKI:

Thank you for the statement.

MR WIGNEY:

No, I have nothing further.

MR BROMWICH:

The point is made, Commissioner, I don't need to have a further

answer.

DR OZDOWSKI:

Thank you. Is there anything else you would like to ask before we

break?

MR BROMWICH:

Not at this stage, no, thank you.

DR OZDOWSKI:

And Mr Rushton?

MR RUSHTON:

No, Commissioner.

DR OZDOWSKI:

I should find in this case we break for half an hour and we will meet

and half past three.

SHORT BREAK

[2.55pm]

RESUMES [3.35pm]

MR BROMWICH:

Commissioner, I understand there is to be some - a few general questions.

Ms Godwin felt that she was best placed to deal with those, although

she is still not at all well, so hopefully they will be in a relatively

short compass and we might be able to manage with those?

DR OZDOWSKI:

Thank you, thank you, very much, Ms Godwin, for doing it and whenever

the transcript is ready of the proceedings, you will receive a copy

of the transcript and if there are any comments or general points

you would like to make, you are welcome to make them and they were

will be certainly considered in the context of the Inquiry and the

record writing.

MS GODWIN:

Thank you, Commissioner, that is helpful.

DR OZDOWSKI:

So possibly, we are ready to start, Mr Wigney?

MR WIGNEY:

Just - I will just - I really just wanted to ask a couple of final

questions to finish off on the topic of families and the questions

I wanted to ask really concerned something that we have addressed

to an extent already and that is the alternatives to detention in

the facilities such as Woomera, Port Hedland and Curtin when it existed.

Now, you accept, do you not, as a result of the broad definition of

'immigration detention' in the Act that it is possible to transfer

an entire family to an alternative place of detention, being a place

authorised or approved in writing by the Minister, do you agree with

that?

MS GODWIN:

Mr Wigney, yes, excuse me. Yes, that flexibility exists within

the statutory framework of the Act but I need to reiterate the point

that I made yesterday I think, in response either to a question or

as a part of a general statement and that is, alternative places of

detention have to be capable of meeting the purpose for which we have

detention and we talked about those purposes yesterday. The purpose

for detention is the people are available for processing and available

for removal and it has been our experience that in numbers of situations

where we have been exploring individual alternative places of detention

for particular circumstances, that it is that requirement that is

often the most difficult to meet.

We cannot transfer

someone to an alternative place of detention unless we have a degree

of confidence that the - that those purposes will be met. So that

is a fundamental consideration. Secondly, I think Mr Walker made the

point at some stage, it is not just the place of detention, there

has to be someone who is prepared to in effect, hold and supervise

and if that person isn't prepared to cooperate with the overall purpose

of the - of the detention framework, then again, that presents real

difficulties. So yes, I agree with the general proposition you are

putting that there is that flexibility in the Act, but the flexibility

is clearly constrained by a number of factors.

The most important

of which is, as I say, that as an alternative place of detention,

it still operates within the framework of the Act and must be capable

of meeting the objectives and purposes for which we have detention.

MR WIGNEY:

Can I just pick up on a couple of points there, I think some of the

considerations - well, one of the considerations you referred to was

that the - the persons in the alternative place of detention would

have to be available for processing, that is processing their various

visa applications?

MS GODWIN:

Yes.

MR WIGNEY:

That, you would agree, is a consideration that could be addressed

by ensuring that the alternative place of detention is close to your

departmental officers, would you agree with that?

MS GODWIN:

Well, again, as a general proposition, yes, there are a number of

ways of addressing that requirement.

MR WIGNEY:

So for example, in the case of the Woomera Residential Housing Project

for example, that is obviously relatively proximate to the Woomera

detention centre.

MS GODWIN:

Yes.

MR WIGNEY:

Therefore has the facility for the officers at the Woomera centre

to also process people at that Housing Project?

MS GODWIN:

It is, okay, your general point is, whether the processing is being

done at the Residential Housing Project or at the centre? It is reasonably

proximate?

MR WIGNEY:

Yes.

MS GODWIN:

So, yes.

MR WIGNEY:

So again, putting aside the Residential Housing Project, the first

of the considerations, that is, that the persons be available for

processing, could be satisfied if the alternative place of detention

was proximate to departmental officers, for example. The other considerations

- one of the other considerations you referred to was that the persons

in the alternative detention be available for removal and I think

- I don't want to go over old ground, we explored that to an extent

yesterday - one of the concerns there being whether the persons are

a flight risk, for example?

MS GODWIN:

Well, that is obviously a consideration, yes.

MR WIGNEY:

And I think we considered yesterday and the Commissioner asked questions

about whether the Department had ever considered any studies or statistics

in relation to the propensity of families as opposed to individual

men being a flight risk?

MS GODWIN:

You did and we took that on notice and I think I commented at

the time, while we had statistics on - that go to this question, I'm

not sure that they can be broken down into family groups because of

the ways the statistical databases work. Having said that though,

given that from time to time we locate in the community families who

have previously had unsuccessful asylum claims, I would expect that

even if it is not demonstrable by the individual statistics, that

the phenomenon of absconding is not limited to single individuals.

MR WIGNEY:

Would you agree as a general proposition that it would be less likely

for a family group, particularly one including young children, to

be a flight risk or a risk of ---

MS GODWIN:

I don't have any basis on which I can agree with that general proposition.

MR WIGNEY:

You are aware, I suppose, that, you know, in an entirely different

context, say the criminal law context, in the context of bail, that

there are other ways and means available to ensure that people don't

abscond when on bail, including for example, daily reporting, sureties?

Have any of those alternatives to detention as a means of avoiding

the risk of flight been explored by the Department?

MS GODWIN:

As a general question, yes they have, and I think it is important

to note in this context, that the direct comparison in this situation

with the criminal justice sort of environment, is really not valid,

because in that context the incentives to abscond are reduced as a

person moves their way through their sentence. The closer they come

to the end of their sentence, the greater is the incentive to simply

comply with whatever regime they are in, in order to achieve their

release.

In a detention

environment, where the greatest propensity for release is at the beginning

of the process when people have not yet received their primary decision,

the incentives tend to work in the opposite direction and certainly

it has been the experience overseas that people will, up to a point,

make themselves available for processing, but as soon as they know

that processing isn't headed in the direction they want it to go,

that is when locating them becomes more difficult. And so in this

situation, the sorts of things, like day reporting - I mean day reporting

works where people have got a strong incentive to do it, but if the

incentive is becoming weaker and weaker because they know that they

are coming closer and closer to a point where they will be available

for removal, then the incentives weaken in this situation.

MR WIGNEY:

Sorry.

MS GODWIN:

No, no, I was just going to say, and we have looked at a number of

things like that have been put up from time to time, such as electronic

means of identifying where people are. But the technology is such

that they tell you where people are while they have got the - they

have got whatever the device is, on them or near them. The advice

we had was that none of these systems are foolproof; they are all

capable of being tampered with or removed. You would know that that

was happening according to the information that we have because they

let off an alarm if they are being tampered with. But by the time

you could then get to the place where the person was when the tampering

started, they may well be not in that area and become extremely hard

to locate.

So we have had

a look at some of these sorts of things and they don't appear to apply

directly to the circumstances within which we are operating.

MR WIGNEY:

If I can just pick you up on one of the points that you have just

raised, that is that as the - assuming of course, that the visa applications

are unsuccessful and the incentive to flight increases as the process

goes through - and I don't - would that not suggest at least as one

possibility that when the prospects of flight are low, that is towards

the beginning of the period at the very least, alternative forms of

detention ought be considered, that is when the prospects of flight

are less?

MS GODWIN:

Well, I guess as a theoretical point it suggests that, but there are

two points that I alluded - sort of alluded to here, one is a point

I made yesterday that when people are either arriving or being located

in numbers as they are - or arriving as they were over a couple of

years' period here in Australia and continue to be located in relatively

large numbers in the community, that if your objective is to have

people available for processing and available as quickly as possible

for processing, then there is a sort of an infrastructure, logistical

sort of consideration to be applied at that early stage.

The other point

I wanted to make is a number of countries overseas have operated that

sort of an arrangement but the difficulty with it is they find it's

very hard to locate people once they know that their application has

been refused and that they are going to be likely to be detained for

the purpose of removal. Now, I know in one instance the United States

has just in effect reimposed a mandatory detention regime for unauthorised

arrivals, unauthorised boat arrivals, because of that particular concern,

that people were allowed to remain in the community for processing.

Then they were having difficulty locating them and they have decided

now for unauthorised boat arrivals to move back to mandatory detention

and that was announced, I think, just a couple of weeks ago in the

US.

MR WIGNEY:

I think those that instruct me indicate that their understanding is

that there is a bill currently before the US Senate to exclude children

from that mandatory detention regime. Are you able to comment on that?

MS GODWIN:

I'm not specifically aware of that but the current arrangements are

capable of operating in their current legislative framework.

MR WIGNEY:

In any event, rather than take up time with it now, I think perhaps

if you can take another point on notice, the Commission of course

would be interested to receive any documentation or studies that the

Department has analysed in relation to alternate ways in which flight

risks can be attended to that the Department may have considered and

if those studies or documents could be produced.

MS GODWIN:

Well, I think I already took on notice yesterday two things. One

was the statistical issue and the other was what other considerations

had we looked at. They may not be in the forms of formal studies or

whatever but we've certainly considered these issues.

MR WIGNEY:

Now, I think the third consideration, or point, that you picked up

on before was, I think, Mr Walker's point that one also requires a

person willing to hold and supervise someone in alternative detention.

Can I just address that issue in this way, that I think it's common

ground, is it not, that in relation to the unaccompanied minors who

were released into forms of alternative detention from the Woomera

centre in the beginning of this year, a number of them were released

into what could broadly be called foster care arrangements. Is that

right?

MS GODWIN:

That's right. The foster carers have been designated under that

circumstance, I think.

MR WIGNEY:

Relevantly the foster carer was a person willing to hold and supervise

in that context of alternative detention. I suppose the point I wanted

to pick up - and that occurred in the context where the Department

was receiving advice from the Family and Youth Services that those

unaccompanied minors were at risk and then moved to put them in those

alternative forms of detention.

MS GODWIN:

Yes.

MR WIGNEY:

The question I have for you is this. Is the Department aware, or has

there been any case, where an entire family has been put in a similar

sort of foster arrangement, I suppose, when the Department has received

advice from a state authority to the effect that (a) it's in the interests

of the family to be released from detention, and (b) it's in their

interests for the family as a whole to be released? Has there been

any case where an entire family has been put into a similar sort of

foster care arrangement?

MS GODWIN:

I think from my memory there is a family in an alternative place

of detention, not strictly speaking a foster placement as such, but

where an organisation has agreed to take responsibility for their

ongoing care and also to make sure that they're available for immigration

processes, whether that's application or removal. But I return to

the point that I made before. I'm also aware of another situation

where we were attempting to establish that and there were considerable

difficulties identifying a place that was both able to provide - or

an organisation able to accept responsibility for the provision of

care and support and willing to take responsibility for having them

available for immigration processing.

Now, it's certainly

been the case that over the years numbers of community organisations

have come forward saying, you know, that they're prepared to provide

support in these situations but it has most often been the case that

when what they're actually committing to is explored, they regard

it as outside their ambit of responsibility to agree to co-operate

in having people available for removal and I understand their point

here. They say that's not their responsibility, but if they are not

prepared to take that responsibility, then it falls to the Government

to find ways of meeting that obligation in the most appropriate way

that it could be done.

DR OZDOWSKI:

Could I ask you, is it the [names organisation] in Melbourne which

is looking after some families?

MS GODWIN:

It's looking after one family.

DR OZDOWSKI:

One family.

MS GODWIN:

And one individual.

DR OZDOWSKI:

Only one family, one individual and the family is regarded to

be in a place of detention?

MS GODWIN:

Yes.

DR OZDOWSKI:

Thank you.

MR WIGNEY:

Can I just clarify one thing if I might? I have a reference in

my notes - and unfortunately I don't have the entire instruction,

Migration Service Instruction 234 - can I ask firstly whether that

instruction is still in force and what its general topic is?

MS GODWIN:

There I need to rely on my colleagues. What is MSI 234?

MR WALKER:

I'm afraid I can't help you at the moment. The battery has died in

this, otherwise we would certainly - I will take it on notice while

I just recharge it.

MS GREAVES:

Which MSI?

MS GODWIN:

234.

MR WIGNEY:

My battery is starting to run down as well but perhaps if I just read

out what is in my notes. The note that I have in the context of alternative

places is really in the context of alternative places of detention

and it's paragraph 1.3 of MSI 234 and as I understand it - and perhaps

you may need to take this on notice, but it provides as follows, that:

The approval

of places of immigration detention in writing should be limited to

where it is absolutely necessary because of the condition or special

needs of the detainee, the unsuitability of locally available places

of detention or the unavailability locally of places of detention.

The mere presence of a person in such a place does not constitute

immigration detention. The person must be held by an officer, or on

behalf of an officer, in that place.

Now, does that

reflect - and you can take it on notice - the Department's current

position in relation to alternative places of detention?

MS GODWIN:

I think that's broadly consistent with what we've been saying.

MR WIGNEY:

I suppose the only point I wanted to pick up on is the fact that

it's referred to as being only in circumstances where it's 'absolutely

necessary'. Is there any reason why the Department has imposed that

criteria or condition?

MS GODWIN:

Well, without being able to refer to the specific MSI or the sort

of date at which it was generated, no, I'm not able to comment except

it doesn't seem to me to be inconsistent with the point that we were

making that we use alternative places of detention in a wide variety

of circumstances because we regard them as necessary and they range

across a whole range of things - motels, hospitals, schools, all sorts

of things. We regard that as necessary in the circumstances and that

doesn't seem to me to be inconsistent.

MR WIGNEY:

Just finally on alternative places of detention. I think yesterday

in your opening statement you referred, amongst other things, to the

broadening of eligibility criteria for women and children in relation

to the Woomera Residential Housing Project and that largely dealt

with eligibility now, or people being eligible now, after an adverse

primary decision but whilst the matter's still before the Tribunal

or the Courts.

MS GODWIN:

I think I referred to that as an example. I don't think that was the

only way in which they were broadened but I don't know. I think we've

given you the various documents on how it broadened. So as I say,

in my opening statement I drew attention to a couple of particular

examples but I don't think that's the totality. Sorry, I interrupted.

MR WIGNEY:

The other reference - I'm just looking at the typed version of your

address - it was referred to as establishing the possibility of establishing

a similar alternative detention arrangement in Port Augusta, or in

the region.

MS GODWIN:

Yes.

MR WIGNEY:

Without treading on bureaucratic toes, as it were, how far advanced

is that exploration of that option?

MS GODWIN:

Well, it's an active exploration, but I think I made the point

that it requires the co-operation of a range of agencies, not just

our own, and so there's a process of trying to work through the various

issues.

MR WIGNEY:

Again, tell me if you're not in a position to answer this, but are

there any other proposals that you're aware of for the broadening

of the eligibility criteria of the Woomera Housing Project or any

similar projects at this stage?

MS GODWIN:

Well, I'm not aware that we've sort of focused on other similar projects.

I mean, one of the issues for us is that these sorts of projects are

sort of time-consuming to establish because they do require a whole

range of things and so we've, consistent with the Minister's announcement

about Baxter, focused our efforts there.

MR WIGNEY:

Now, just very finally on this topic in terms of alternatives

to detention in the facilities such as Woomera, we've addressed to

an extent the other option, that is, bridging visas, and engaged in

some discussion with Mr Walker shortly before or shortly after lunch.

One of the eligibility criteria set out in Regulation 2.2 that may

apply to families being, in situations where each member of the family

is assessed as having a special need, based on health or previous

experience of torture or trauma, in respect of which a medical specialist

appointed by Immigration has certified that the non-citizen cannot

properly be cared for in a detention environment.

My only follow

up question in relation to that is whether anyone in the Department

is aware of any situation where a bridging visa has been granted to

a family in those circumstances?

MS GODWIN:

I would need to take it specifically on detail, but my recollection

is that there has been a family in that situation but could I make

a couple of general points round that? There is a view amongst some

people that - and I think this was alluded to in one of the documents

that you referred to before the break - that in some circumstances

a bridging visa may not necessarily be the best option, notwithstanding

that there are particular issues, management issues, in relation to

a particular family.

For a start it

requires that once all dealings with the Department or the Courts

are ceased, that the person would then be required either to depart

or to be taken back into detention and there's a view amongst some

community groups that we've spoken to that that of itself presents

real difficulties. Secondly, one of the associated criteria is that

the Minister has to be satisfied that there are appropriate care arrangements

in place and it has sometimes been difficult to find people prepared

to take on that responsibility because it can be a significant one.

So the issue of bridging visas remains a real one but they are not

necessarily in any given circumstances best suited to the particular

needs of the individual or family that we have under consideration.

Finally, we would

have to take into account the particular circumstances of the individual

and if there are real credibility concerns and other things about

a particular individual or family and therefore concerns that any

undertakings they themselves give may have limited effect. That is

also something that needs to be considered.

MR WIGNEY:

Mr Commissioner, that's all I really had in relation to families.

I don't know whether it's perhaps, unless the Department has any further

comment they wish to make or ACM, then we might just move on to a

different ---

DR OZDOWSKI:

So you are finished with your general policy questions for today?

MR WIGNEY:

In relation to families. I'm going to move now on to some topics relating

to unaccompanied minors, if that's suitable?

DR OZDOWSKI:

Would you start again with broader policy questions?

MR WIGNEY:

Yes.

DR OZDOWSKI:

Yes, okay. So would you be able to stay a bit longer?

MS GODWIN:

Yes, that's fine. Before you finish though with the subject of families,

I thought it might just be useful to - I was listening with interest

after I came into the room and apologise again. I'm having difficulty,

but I just wanted to try to bring together a couple of the points

that were made by officers and that I think are relevant to reiterate

and, as I say, just sort of draw together. I think the first point

to make is that in taking officers through individual documents and

referring to recommendations, we are obliged as officers of the Department

to look at those recommendations within the ambit of our statutory

obligations.

Mr Walker, I

think, at one point sort of drew attention to that general point.

The fact is many of the recommendations that we get go beyond any

statutory power to address the recommendation in the way it's made

and our objective in those sorts of situations has been to try then

to work with the relevant child welfare authorities or whoever else

to arrive at a management plan which takes account of the recommendation

but doesn't necessarily implement it because we are prevented by it,

from implementing it by the Migration Act, in the way that the recommendation

has been made.

We have already

talked about the bridging visa issue. I think the other point to make

about bridging visas is that there is special provision in the bridging

visa regime for children under the age of 18 and generally speaking,

I can only think personally of one or two possibly exceptions to this.

Generally speaking, the relevant state welfare authorities, who are

able to make a declaration under that particular bridging visa provision,

don't normally do so because it applies to the children and not to

the family as a whole and they have to weigh up whether in that situation

it's in the interests of the child, as opposed to the ongoing interests

of the child to remain with the family, and that clearly is a compelling

consideration for them and for us.

I think Ms McPaul

made the point that nonetheless, we then do try to work with people

like FAYS and others about okay, is there a way of establishing an

appropriate management regime which is broadly consistent with the

issues raised without necessarily going to the specifics? We have

talked about alternative places of detention and the fact that they

need to meet our overall purpose.

The final point

I would like to make again draws on points that officers made but

I just think it's worth reiterating. The individual cases you have

raised, and understandably, are examples of some of the most complex

cases that we've had to manage in detention and that complexity obviously

is not something we have sought to neglect but it equally means that

finding an appropriate management strategy can itself be challenging.

In that context I think we need to return to a point that Mr Bromwich

made just before the break and that is that we need to recognise that

in many instances, and we certainly have had some considerable experience

of this, people's distress in detention is very often occasioned by

the fact that they - that the decision they are looking for is not

forthcoming, when in certain circumstances, we can locate people's

demonstrations of distress, if you like, to a point in the decision-making

process. It goes to that point.

I made the point

in my opening statement that that is not - I mean, we understand the

frustration and anxiety that detainees feel in that sort of situation

because they have set out to achieve an objective and that objective

is not forthcoming. We are nonetheless obliged to continue to detain

them and to manage them while we process them for removal.

That brings -

sorry, I said that was my final point but this actually brings me

to my final point. I know at various points officers have commented,

a number of the families we now have in detention, it has been becoming

increasingly clear over a lengthy period of time that they are not

going to be granted visas and for the vast majority of them, they

could co-operate in bringing their own detention to an end by working

with us to arrange their removal from Australia. I know there is a

lot of discussion about the particular circumstances of families and

the management challenges that they present and I am not in any way,

shape or form wanting to underestimate those management challenges.

The assumption

is often made that there is often only one way to bring their detention

to an end and that is to look for either a visa or some other community

option and in this situation there is another alternative and that

is removal from Australia. That just summarises the points I wanted

to make.

MR WIGNEY:

Nothing in relation to that topic.

DR OZDOWSKI:

Okay, so could you start with your new topic which is ---

MR WIGNEY:

Yes, now Ms Godwin, I know your unfortunate position ---

MS GODWIN:

It is okay, it hasn't affected my ---

MR WIGNEY:

---in terms of directing my questions, they are fairly broad

and general principles in relation to the topic of unaccompanied minors

and just to let you know where I am - the particular area of interest

for the Commission is the particular - relate really to the Minister's

position of guardian in relation to unaccompanied minors, and what

he and or his delegates do or don't do in relation to the process.

So that is just to let you know where we are going.

MS GODWIN:

Yes, sure.

MR WIGNEY:

If I can just start in fairly general terms and would I continue to

direct questions to you or?

MS GODWIN:

Yes, no, just ask away, if I can't or flag, I will get someone else

to help.

MR WIGNEY:

Now, I think we have already generally established that in terms

of unaccompanied minors, what I am referring to generally are non-citizens

under the age of 18 who come to Australia without a parent or relative

over the age of 21 years old to care for or protect them. I think,

as Mr Walker pointed out yesterday, there is the additional requirement

under the relevant Act I will come to in a moment, that the minor

has to intend to become a permanent resident, accepting for the moment

the regime of temporary protection visas, accepting that the asylum

seekers themselves often intend to be permanent residents.

That will largely

cover or catch all asylum seekers under the age of 18 that don't come

here with their parents or relatives. Now, the effect of the Immigration

(Guardianship of Children) Act in general terms is that the Minister

is the guardian of all such unaccompanied minors. Is that right?

MS GODWIN:

Yes.

MR WIGNEY:

I think we also established yesterday that the Minister and the Department

accept that the Commonwealth owes a special or additional duty of

care to these unaccompanied minors when in immigration detention,

and that is in part because of their obvious increased vulnerability

of their position. Do you agree with that?

MS GODWIN:

Well, in part, but it is clearly because there is a specific obligation

to be discharged in the law.

MR WALKER:

I think there are two, there is certainly the obligation under the

Immigration (Guardianship of Children) Act and overlapping that is

obviously holding or ensuring that unaccompanied minors are in safe

conditions within the detention environment as a responsibility in

relation to detainees as well, but certainly, bearing in mind that

they are minors and they may have ---

MR WIGNEY:

Also arising from the Minister's position as their guardian.

MS GODWIN:

Yes.

MR WALKER:

Yes, that is right.

MR WIGNEY:

Now just in general terms, the Minister - I appreciate that -

I withdraw that. The Department understands that the Minister's responsibilities

as a guardian include his responsibilities to ensure the rights of

the child under international instruments such as the CRC, the Convention

on the Rights of the Child. Is that - do you agree with that as a

general proposition?

MR WALKER:

I think the proposition is basically that the Minister has the same

responsibilities as any parent or guardian under the various international

instruments.

MR WIGNEY:

Right and that would be to attempt to uphold the various rights that

a child has under those international conventions?

MR WALKER:

With the obligations of a parent or guardian under those instruments.

MR WIGNEY:

Just on that topic, there are, are there not, some specific provisions

in the CRC that apply specifically to unaccompanied minors? I was

going to refer you, in particular to Article 20 firstly:

A child temporarily

or permanently deprived of his or her family environment, or in whose

own best interests cannot be allowed to remain in that environment,

shall be entitled to special protection and assistance provided by

the State.

Is that right?

MR WALKER:

Yes.

MR WIGNEY:

Of course, the Department, mindful of this Convention, attempts to

satisfy that right?

MR WALKER:

Yes.

MR WIGNEY:

I think the other article that specifically deals with the question

of unaccompanied minors is Article 22:

States 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.

They are particular

provisions that apply to unaccompanied minors.

MR WALKER:

Yes.

MR WIGNEY:

Now I think one of the differences in principle between children who

arrive with parents or family that we have dealt with this morning

and unaccompanied minors, is really the Minister is not in a position

to say, as he does, and the Department says that the best interests

of the child are to be with parents. Parents are in - parents have

to be in detention, therefore the child has to be in detention.

MS GODWIN:

Well, that takes us back to the more fundamental set of requirements

which is that as a matter of Australian law and consistent with Australia's

sovereign right to determine who enters and upon what conditions,

all unlawful non-citizens are required to be detained and that applies

equally to unaccompanied minors. So they are required to be detained

and once in detention we then have set up a set of arrangements to

try to focus on their particular circumstances.

MR WIGNEY:

I don't want to go over the territory we went over yesterday. You

accept Article 3 of the CRC provides as a principal consideration

the best interests of the child. Is that an interest that the Department

regards as a particular interest in relation to unaccompanied minors

when the decision is made to detain them?

MS GODWIN:

Well, it is a primary consideration as a sort of general requirement.

MR WALKER:

Also I should just point out that you said the decision to detain.

That is not our decision, it is an obligation to detain an unlawful

non-citizen but certainly in the context of carrying out that obligation,

it is a primary consideration.

MR WIGNEY:

Can I just move now onto, I suppose, the topic of guardianship and

just really, I suppose, to attempt to clarify hopefully the position

in relation to delegations of the Minister's powers as a guardian.

I think the situation is that in 1999 the Minister delegated his powers

as guardian to various officers of state departments of community

service - various state officers?

MS GODWIN:

Was it 1999? I thought it pre-dated that. I would need to check, there

may well have been an amendment to the delegation in 1999. I thought

that the delegation actually pre-dated that.

MR WALKER:

I think that the context is that there have been a series of delegations

made over the years, now whether they were specifically related to

unaccompanied minors who entered without visas is a different issue,

but certainly delegations have been in place with many of the state

child welfare agencies for many years because, bear in mind, this

Act also covers other individuals such as those who come for adoption

in Australia. So I am not deflecting it, I am just putting it in that

context. So Ms Godwin is right in the sense that historically there

have been delegations. They may well have been updated or modified

in 1999.

MR WIGNEY:

Well it has, and I was going to take you to the more recent ones,

but as far as we are aware, at least, the first that we are aware

of is one that occurred in 1999 to various state officers and I suppose

my question is, are you aware of any earlier than 1999 or what was

the position in relation to delegations prior to that time?

MS GREAVES:

The delegation in 1999 actually revoked an earlier instrument

of delegation under the IGOC Act. So I can only assume from that that

there were earlier delegations to the states but I don't actually

have the evidence of that in front of me.

MR WIGNEY:

As far as you are aware, are they delegations to state officers or

---

MS GREAVES:

To state officers.

MR WIGNEY:

Again largely to the community welfare groups?

MS GREAVES:

Child welfare.

MR WIGNEY:

Yes. Now can I just - is it the situation that the various state officers

as we understand it, and the Commission has received some evidence

or submissions to this effect, effectively understood that their roles

under the 1999 delegations really only kicked in, as it were, if and

when the child was released from detention? Does that accord with

your understanding?

MS GREAVES:

In practice that was the case.

MR WALKER:

Although there is no fetter on the power once delegated. No attempt

is made to fetter the delegation.

MR WIGNEY:

That may be - that is certainly accepted but as a practical matter

I think the state authorities tended to regard their role as really

limited to one that kicked in when the children were released from

immigration detention. Is that accurate?

MS GODWIN:

I think as a matter of practice, yes.

MR WIGNEY:

I think we have effectively just received some submissions from South

Australia, Western Australia and Victoria to that effect and that

accords with your understanding?

MS GODWIN:

Well, as I say, we would need to check the exact sort of arrangements

at any given point in time but as a general proposition and as a matter

of practice, yes, I think that is the view that was taken.

MR WIGNEY:

Now can I ask you this, back in 1999 and at least up until recent

times, was there a situation whereby state authorities received any

notification about the existence of unaccompanied minors in immigration

detention, that is, before release? Was there any process of notifying

the state authorities?

MS GODWIN:

That there were unaccompanied minors in detention?

MR WIGNEY:

Yes.

MS GODWIN:

That practice has varied between centres but certainly was practice

applied in some centres over a period and I think it is something

we now talk to individual states about, whether they want a similar

practice to apply to them.

MR WIGNEY:

Now, just going through the series of delegations, I apologise if

this is a bit mundane, but in January 2002 I think the situation was

that there was a further delegation by the Minister of his powers

as a guardian this time to the, in general terms, the Department Managers

and Deputy Managers of the various detention facilities. Is that right?

MS GODWIN:

That is correct, yes.

MR WIGNEY:

It did not - that particular delegation in January 2002, did not revoke

the delegations to the state officers as you understood it?

MS GREAVES:

I think that is right, the one in January didn't. It was subsequent,

it was a delegation that changed the timing in which the delegation

to the states - to some of the states - commenced.

MR WIGNEY:

Yes, well that - sorry, prior to the most recent delegation I will

come to in a moment which was in September of this year, that further

delegation in January 2002 didn't really clarify the position of the

state bodies, that is, it is your understanding that they still really

regarded their responsibilities as only arising if children were released

from immigration detention?

MS GODWIN:

That is correct, in a practical way.

MR WIGNEY:

I think the position really now has been clarified by the delegations

in September which revoked those past delegations and really made

it clear that the state officers to whom the powers as guardian were

delegated really only apply where either the unaccompanied minors

are not in detention or they are in alternative detention. Is that

accurate?

MS GREAVES:

That is correct for some states but not for all states because there

was an exchange of communication with the various states to determine

how they wish to proceed and some of the states have responded and

some haven't.

MR WIGNEY:

I see. Now what I suppose I want to explore now really is as a practical

matter. What assistance, if any, is provided by the Minister or any

of his delegates as guardians or as persons with the power of guardians

in the context of the refugee status determination period?

MS GODWIN:

I am sorry, could you - are you asking what other people who are now

delegated under that 2000 - January 2002 delegation are also involved

in?

MR WIGNEY:

Yes, what I want to try and explore now is what role, if any, does

either the Minister himself or his delegates play in the refugee status

determination period when children are in immigration detention as

unaccompanied minors.

MS GODWIN:

Well, a number of officers in the Department hold a number of

delegations but the officers who specifically hold the delegation

from the Minister under the IGOC Act do not play any role at all in

the determination of refugee status and that is deliberate. That is

to ensure that that process happens separate from their sort of on-going

management in detention.

MR WIGNEY:

Sorry, can I just take one step backward for a moment. Just before

I explore that topic a little bit more, I wanted to ask you something

about the United Nations High Commissioner for Refugees. You are aware,

are you not, that the High Commissioner has issued guidelines on policies

and procedures in dealing with unaccompanied children seeking asylum?

MS GODWIN:

I'm aware of the guidelines, yes.

MR WIGNEY:

I think they were issued, if my notes are accurate, in February of

1997?

MS GODWIN:

I would have to check that but that sounds right. I should make a

general point, of course, that they are not binding. They are not

a binding instrument.

MR WIGNEY:

Well, what is the Department's position in relation to them? Is it

something that the Department works towards, that is, to meet the

guidelines that are in that document?

MS GODWIN:

Well, as a general matter, we have regard to them and would look to

them as a form of guide, but I make the point that they are not binding

instruments on member States, and to the extent that there's anything

in there which is inconsistent with our statutory obligations, we

would regard them as no more than just a guide.

MR WIGNEY:

Well, perhaps if I can just take you to paragraph 5.7 of those guidelines.

Do you have copies of them?

MS GODWIN:

I don't. We don't have a copy of the guidelines handy. There may

be some around.

MR WIGNEY:

I think you well find that the first document in that bundle of documents

you have just been provided with. Hopefully, it is like my bundle.

There's the Office of the United Nations High Commission for Refugees,

Geneva, and the guidelines issued in February 1997. I was going to

take you to page 7, and there's a provision there that deals with

the appointment of a guardian or adviser:

It is suggested

that an independent and formally accredited organisation be identified/established

in each country, which will appoint a guardian or adviser as soon

as the unaccompanied child is identified. The guardian or adviser

should have the necessary expertise in the field of childcaring, so

as to ensure the interests of the child are safeguarded, and the child's

legal, social, medical and psychological needs are appropriately covered

during the refugee status determination procedures and until a durable

solution for the child has been identified and implemented. To this

end, the guardian or adviser would act as a link between the child

and existing specialist agencies/individuals who provide the continuum

of care required by the child.

Now, at least

in relation to those states where the delegation presently is in relation

to children who are in immigration detention only to the Department

Managers and Deputy Managers, it would appear that that guideline

has not been followed or adopted by Australia.

MS GODWIN:

Well, I wouldn't necessarily accept that proposition. I would argue

that it requires a broad range of factors to be taken into account,

and I think we have said a number of times that we would regard it

as appropriate and, indeed, this is the case that the people who have

that delegated guardianship within the centres would consult with

appropriate experts and authorities such as the local child welfare

authorities. As a matter of practice, I think for some time, the care

plans that we have developed for unaccompanied minors have been the

subject of consultation with those authorities. So I would regard

that guideline as, broadly speaking, being met but in a variety of

ways.

MR WIGNEY:

Well, the Minister is not someone who has expertise in the field

of child caring. He is the actual guardian. You would agree with that?

MS GODWIN:

Yes, but it goes on to say that so as to ensure that the interests

of the child are safeguarded, and the child's legal, social, medical

and psychological needs are appropriately covered. That is what the

delegated guardian in the centre is focused on and consults with appropriate

experts just as a parent would.

MR WIGNEY:

I think we established yesterday that the Department Managers and

Deputy Managers at these detention facilities, again, they also don't

have relevant expertise in child caring, do they?

MS GODWIN:

We established yesterday that they aren't trained teachers, doctors

or nurses, or a variety of other things but we also established, I

think, that they are experienced Departmental officers with a degree

of expertise across a range of areas which would enable them to take

an appropriate degree of responsibility in this situation.

MR WIGNEY:

Well, whilst I've got you on these guidelines, even though it is a

slightly different point, can I ask you to go to page 10. You will

see there that there are some paragraphs in the guidelines concerning

detention, the first of which is paragraph 7.6:

Children seeking

asylum should not be kept in detention. This is particularly important

in the case of unaccompanied children.

Now, I don't

think you would quibble with me that that is not a recommendation

that Australia has taken up.

MS GODWIN:

Well, it is a well known point of view from the UNHCR but as I've

pointed out, these guidelines are not binding on States.

MR WIGNEY:

Paragraph 7.7:

States which,

regrettably and contrary to the preceding recommendation -

and I interpolate

including Australia in that sense -

may keep children

seeking asylum in detention should, in any event, observe Article

37 of the Convention of the Rights of the Child

which I think

we addressed yesterday -

according to

which detention shall be used only as a measure of last resort and

for the shortest appropriate period of time. If children who are asylum

seekers are detained in airports, immigration-holding centres or prisons,

they must not be held under prison?like conditions. All efforts must

be made to have them released from detention and placed in other appropriate

accommodation. If this proves impossible, special arrangements must

be made for living quarters which are suitable for children and their

families.

And I suppose

I ought to emphasise the final sentence:

The underlying

approach to such a programme should be 'care' and not 'detention'.

Facilities should not be located in isolated areas where culturally-appropriate

community resources and legal access may be unavailable.

Now, without

wanting to spend too much time on this, would you accept that, for

the most part, at least in the case of Woomera, Curtin when it was

open, and Port Hedland, that they are all located in isolated areas

where culturally appropriate community resources and legal access

may be unavailable?

MS GODWIN:

Well, I reiterate the point I made. These guidelines are not binding

on States. They represent exhortations, if you like, to best efforts

and so forth. We already explained yesterday, I think I made mention

in my opening statement, as to why Curtin and Woomera were located

where they were. Given their location then, we worked to provide an

appropriate range of services and facilities within those Centres

to enable the needs of the detainees to be met.

MR WIGNEY:

Okay. Well look, Mr Hunyor is giving me the hurry up, so perhaps I

ought to move on. Now, as I said before, I want to deal with some

of the more practical aspects of guardianship and, in particular,

the role of the Minister and the DIMIA Managers and Deputy Managers.

Can I ask you firstly some questions in that context about the period

of separation detention? The present situation, as we understand it,

is that for detainees generally, they are kept in a period of separation

detention for a period of time when they first arrive in a detention

facility. Is that right?

MS GODWIN:

That is standard practice, yes.

MR WIGNEY:

I think, and I will take you to it if need be, the ACM Operations

Manual which deals with separation detention does not delineate or

distinguish between other detainees and unaccompanied minors in relation

to their treatment during the period of separation detention. Is that

right?

MS GODWIN:

Well, you are referring to the document. I accept the reference that

you are making.

MR WIGNEY:

Well, there's no separate provisions in the ACM Operations Manual,

and I will take you to it in this bundle if need be. I think you are

being given two folders. I shouldn't ask you questions about these

things without taking you to the documents. The first document in

the second folder is, in fact, the ACM policy in relation to separation

detention. Just to be clear, if one goes on to the second page, it

sets out the purpose of the separation detention:

To ensure that

newly arrived detainees are kept separate, unable to communicate with

or be seen by other detainees or persons not permitted by DIMIA, at

the facility.

Accepting for

the present purposes that unaccompanied minors may be in a vulnerable

position, there's no separate provision for how unaccompanied minors

are to be dealt with during this period of separation detention, is

there?

MS GODWIN:

Well, I mean, without reading the whole document, I accept the

proposition you are putting, but that does not mean that as a matter

of practice, that isn't something that is looked at and considered

while people are in separation detention.

MR WIGNEY:

Now, can I ask you this general question, is there any separate

accommodation for unaccompanied minors during this period of separation

detention, or are they put in with the other detainees generally?

MS GODWIN:

It would depend very much on the circumstances. I mean, a number

of the centres have more than one area for use in separation detention.

They have the capacity, if not within a separate building then within

a separate area within a building, to provide accommodation for particular

groups. It would just really depend on the circumstances at the time

and the numbers, and the other point that I think I made yesterday

was that at that point of arrival and induction into separation, we

may not be aware yet of all of the details and all of the circumstances

of people in the group.

Particularly

where young men, 16 or 17, have travelled with other family groups

and are, in a sense, linked to them, it may well be in those circumstances

appropriate as an initial thing, or maybe even as an ongoing thing,

for them to remain with that group. So, as I say, this would really

very much depend on the nature of the group and the circumstances

of the people within it.

MR WIGNEY:

In the interests of brevity, can I just put this general proposition

to you and ask you for your comment. During this process which, I

think, is sometimes referred to as the reception or screening process

- that is when the person is first arriving in immigration detention

- the situation is this, is it not, that the Minister as guardian

and, indeed, his delegate for the relevant purposes, the DIMIA Manager

or Deputy Manager, they play no effective part as guardian or as a

person who has the powers of guardian in relation to advising or guiding

the minor through this reception or screening process?

MS GODWIN:

Well, they don't but I need to make a point about the reception or

screening process. There's nothing complex about this process. It

is simply a matter of sitting down with individuals with an interpreter

and working through what was their purpose for coming to Australia,

and is there any reason not to leave. So this is simply a process

whereby people need to tell their story, you know, in a frank and

- it does not have to be a complex sort of thing. They just need to

tell us what their story is and what their circumstances are.

DR OZDOWSKI:

How long, if I could ask, does the separation detention take?

MS GODWIN:

Well, it can vary but in the vast majority of circumstances, it

would be for a relatively short period of time.

DR OZDOWSKI:

A month, two months, three months?

MS GODWIN:

No, I mean, days in the majority of instances.

DR OZDOWSKI:

Thank you.

MR WIGNEY:

Just taking the point raised by the Commissioner up, I think the situation

is that MSI 357, which is a new or relatively new instruction issued

on 2 September of this year, includes paragraph 5.1.3 which specifies

that in relation to time of unaccompanied minors in separation detention

that the process should be approached as a matter of priority and

separate detention should be for the shortest possible time. Was there

any equivalent provision or instruction, policy instruction, prior

to the coming into being of the MSI 357?

MS GODWIN:

Well, I'm not necessarily aware of any written instruction but I think

we've made the general point a number of times that the formalisation

into instructions of this sort over the last, sort of 12 months or

more at different points in that process for different elements was

essentially a process of putting into those procedures established

practice, so this is something to which we have been or of which we

have been conscious for a period of time. The fact that there's not

a written policy instruction prior to this is not, of itself, reflective

of practice.

MR WIGNEY:

But would you accept, as a general proposition, that during this period

of separation detention and during this interview process that you

have just referred, the unaccompanied minors have no effective guardian

looking after their interests, that is, someone that is with them

advising or guiding them through this process?

MS GODWIN:

Well, the process is explained to them as part of the interview

with an interpreter. The overall nature of the process is explained.

The circumstances of their detention are supervised by staff in the

centre so I don't necessarily accept the general proposition that

you are putting.

MR WIGNEY:

But those people are not guardians or people with powers of guardians

who are specifically charged with looking after the rights of the

child at this stage, are they?

MS GODWIN:

Well, I mean, there's a point at which, and I described this process

yesterday, the fact is, at this early stage, we may not be aware that

they are an unaccompanied minor. We may not be aware that they are

a ward. That is a process which, in a sense is established through

this initial entry process where we try to establish as clearly as

we can at that initial stage just who all of the people in the group

are, what their circumstances are. It is not uncommon for people to

present themselves as being part of a group and trying to tease out

then what the relationships are within the group.

I also mentioned

the issue of age where it is often indeterminate at a point in the

process, and we have certainly had cases where the assessment of someone's

age has shifted both ways, so as I say, at this particular point,

as I say, they may not at that point have been identified as someone

to whom the Minister has formal guardianship responsibilities. Nonetheless,

the way in which the overall process is managed is designed to ensure

that people have information about the process, understand how it

sits in to the broader application process, and it is not an adversarial

situation.

It is one where,

as I say, people are invited to simply tell their story. That can

often be a time consuming interview, sometimes several hours, so it

is not one where we are attempting to limit people's opportunity,

quite the reverse - give them as much opportunity as possible to explain

what their circumstances are. In that context, it may well be that

as a result of that interview that the question of whether or not

they are an unaccompanied minor is established. I mean, the other

point to make and it is a difficult one in some respects, but it is

not unknown from our perspective within detention for people to not

mention family relationships because they think that that will somehow

have some benefit to their processing or, indeed, to claim to be part

of a family group.

It is only subsequently

that we establish, in any substantive way, that they are not, so this

is a process of working through with individuals who they are and

why they are here and what is it that we can do to expedite their

situation as much as we can. As I've said, that entry process, the

period in which they are in separation detention, for very, very many

people who enter detention over the last couple of years, was as short

as three or four days because I described yesterday, I think, the

process whereby we virtually had staff on the ground within 24 hours

of the group arriving, and they would work through - we would send

teams of staff so that there were enough staff to work through the

entry process within just a matter of days.

MR WIGNEY:

Just wrapping up in relation at least to the period of separation

detention or the screening process, the likelihood is that the interview

conducted with a minor for the purpose of the screening process will

occur with the minor by himself or herself, the immigration officer

and perhaps an interpreter if the child is not an English speaker.

Is that the ordinary situation?

MS GODWIN:

Yes. It is probably - you used the word, is that the ordinary situation,

it probably is the ordinary situation but it is not necessarily always

that situation. If a child is reasonably young or there are other

circumstances, it may well be that someone else would attend the interview

with them.

MR WIGNEY:

But certainly as far as you are aware, there's no policy or instruction

providing that as a rule there ought be some form of neutral adult

with the child during this period - by 'neutral' I mean a non-Departmental

officer - is that right?

MS GODWIN:

Well, there's not such a requirement as that. As I say, the fact is

that that part of the process and the rest of the primary process

is not adversarial, it is simply a process of teasing out what the

person has to say. Case officers are trained to do that and take account

of particular circumstances of individual interviewees.

MR WIGNEY:

Can I just move now to I suppose the next phase and that is that if

claims are made which would perhaps raise Australia's protection obligations,

we move then to what I suppose is called the refugee status determination

phase. Is that right?

MS GODWIN:

Yes.

MR WIGNEY:

During that phase, the Minister remains as guardian, is that right?

MS GODWIN:

Yes.

MR WIGNEY:

I think without getting bogged down in the legalities of it, there's

certainly been a Federal Court case to the effect that the Minister,

notwithstanding the fact that he is the ultimate decision?maker for

the visa, is in no conflict of interest position because he is not

the guardian for the purpose of advancing protection visa applications.

Is that your understanding?

MS GODWIN:

That is as I understand the outcome of that particular court case,

yes.

MR WIGNEY:

So at least in those states where the delegation of - Minister's delegation

of his powers as a guardian where the child is in immigration detention

is only to the DIMIA Manager or Deputy Manager, that Manager or Deputy

Manager is effectively the only person in the role of performing any

role of guardian during the refugee status determination phase. Is

that right?

MS GODWIN:

Well, they're performing the formal role of guardian but I'm sure

you are aware that in every one of those situations where someone

moves to make a formal application for refugee status through a TPV

application, they are appointed - sorry, they are offered - an adviser

paid for by the Government but who operates independent of DIMIA and

I'm certainly not aware of instances where certainly in relation to

unaccompanied minors that that offer of advice and support through

the process has not been taken up.

MR WIGNEY:

Well, I will come back to that adviser role in a moment but would

you accept as a general proposition that the DIMIA Manager or Deputy

Manager as the delegate of the Minister's powers as guardian plays

no effective role in the refugee status determination? That is, does

not personally assist or guide the minor through that process, that

is, the refugee status determination process?

MS GODWIN:

Well, I mean, they may provide assistance in the form of information.

I mean, our staff in the centres, that is one of their functions but

they are not part of the decision-making process because that is focussed

on deciding the circumstances and facts of the actual application

in a way that isn't, in a sense, related to actions or issues that

arose in a detention centre. The fact is as well that, as I've said,

we regard that advice and support specifically in relation to the

application as being provided by the IAAAS provider which all of them

have and who is competent and capable of providing information and

advice about the process and taking them through it, in fact works

with them through that process.

MR WIGNEY:

The IAAAS lawyer is a person's lawyer, he is not a replacement for

a guardian, is he or she?

MR WALKER:

Well, I think you need to also put it in the context of the accompanied

minors and other persons and adults within that protection visa application

process. They are provided with a similar adviser and also older children

may make their own individual claims. Now, their parent or guardian

who is with them does not necessarily or isn't able to assist them

terribly much with going through the protection visa application process

and the claims. That is why the IAAAS provider is offered.

MS GODWIN:

Sorry, could I just add one other thing to what Mr Walker has

been saying and that is that there is a Full Federal Court case which

deals broadly with this issue and that case found that the Minister

is not required to appoint an individual guardian to an unaccompanied

minor and that the provision of IAAAS's assistance in this context

is sufficient.

MR WIGNEY:

Well, I suppose the difficulty we have with that proposition is that

the Commission has heard some evidence from legal advisers and in

fact I will read a passage from the evidence which I understand was

public evidence over a minor about the fact that, look, the fact that

the unaccompanied minor has no effective guardian causes them difficulties,

for example in taking instructions or effectively advising the minor.

Children are processed - can you just bear with me for a moment? I

will read the passage. It is some evidence that was given by a Mr

David Manne who was from the Refugee and Immigration Legal Centre.

He said this - this occurred during the proceedings of the Commission

in Melbourne on 30 May:

In not having

that independent person -

meaning effectively

someone performing the role of a guardian -

it is not possible

to fully get instructions and fully provide advice, particularly if

the unaccompanied minor who is someone which is a child who doesn't

fully comprehend the consequences of what is happening, or what they

are actually saying. I should also note in this area it is particularly

important - it is important in all areas of law for independent guardians

to be appointed in our view. Particularly important in this case where

you are talking about a lot of other issues being in play at the same

time. Different cultural issues. Different issues that might impact

on the child, given torture and trauma experiences

And then Mr Manne

then goes on to refer to the fact that it takes a long time to build

up trust with a client, whether adult or child.

You would agree

that the lawyer in general terms is really no replacement for someone

performing an active role as guardian during this process, would you

agree with that?

MS GODWIN:

I regard it as our responsibility to ensure that people get proper

advice and assistance in order to make their applications and that

proper advice and assistance is provided.

MR WIGNEY:

Can I then ask you again in fairly general terms, about the interview

process that takes place as part of the refugee status determination

phase, paragraph 8.4 of the UNHCR Guidelines states that

the interviews

that is, interviews

during the refugee status determination period for unaccompanied children,

should be conducted

by specially qualified and trained representatives of the refugee

determination authority who will take into account the special situation

of unaccompanied children, in order to carry out the refugee status

assessment.

Just in the interests

of brevity, we - that is, the Commission has seen no indication in

any of the documents, or evidence that it has received, that DIMIA

case officers who deal with unaccompanied minors are specially trained

in relation to, to take into account the special situation of unaccompanied

children. Are you able to comment on that please?

MR ILLINGWORTH:

Yes, you have documentation which shows that the topic of unaccompanied

minors was included in our training, both induction training and top-up

training which was conducted last year, using an external consultant.

You also have documentation which shows that one of the core resource

documents we use for our training is in fact this document which is

the UNHCR Handbook on Procedures and Criteria for Determining Refugee

Status which itself includes a number of paragraphs which itemise

the sorts of considerations to take into account when dealing with

unaccompanied minors.

That having been

said of course, this is a non-binding document which is really just

setting out what the UNHCR suggests the State should perhaps aspire

to, so it is a guidance in terms of indicating what the UNHCR's aspirations

and their objectives are. The long and short of it is, that through

our processes of training, and through our processes of monitoring,

and I believe you also have documentation which shows that one of

the issues that is specifically monitored and reported on by the team

leaders that are deployed to do this work in the IRPCs, is unaccompanied

minors. You will see that there is plenty of evidence to indicate

that it is a continuing concern of ours.

MR WIGNEY:

Sorry, it was a long answer. Can I just take up one or two of the

points?

MR ILLINGWORTH:

Sure.

MR WIGNEY:

Firstly, you refer to some training that commenced or began ---

MR ILLINGWORTH:

Induction training.

MR WIGNEY:

---late last year, is that right?

MR ILLINGWORTH:

There was specific training last year which used an external consultant

but our long-standing induction training has as one element, the use

of the refugee handbook produced by the UNHCR as a source work. All

case officers who are being inducted into its line of work, and it

is a specialised line of work, are provided with a copy of the Convention

and the UNHCR handbook and you will see at paragraphs 213-219, that

there's extensive coverage of the principles that the UNHCR thinks

are important in dealing with these issues.

I believe you

also have copies of the instructions which are used by team leaders,

which are leading teams of interviewing officers to the IDCs and amongst

those instructions there are specific references I believe, to unaccompanied

minors.

MR WIGNEY:

That may be an appropriate time ---

DR OZDOWSKI:

This will be concluding ---

MR WIGNEY:

Yes.

DR OZDOWSKI:

Please continue but we said ---

MR WIGNEY:

I was going to move onto a different topic so perhaps that might be

an appropriate time.

DR OZDOWSKI:

That is fine. Thank you. Mr Bromwich, anything to add?

MR BROMWICH:

Not at this time, Commissioner, thank you.

DR OZDOWSKI:

Nothing from ACM? So thank you very much and we will meet tomorrow,

9 o'clock.

ADJOURNED

UNTIL WEDNESDAY, 4 DECEMBER 2002 [5.05pm]