Commission Website: National Inquiry into Children in Immigration Detention
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Submission to the National
Inquiry into Children in Immigration Detention from
Federation of Parents and
Citizens' Associations of New South Wales
Preamble
The Federation of Parents and Citizens' Associations of New South Wales
is committed to a free public education system which is open to all people
irrespective of culture, gender, academic ability and socio-economic class
and empowers students to control their own lives and be contributing members
of society.
This commitment is based on the belief that:
- All students have
the capacity to learn;
- The Government
has prime responsibility to provide an education system open to all
which is free and secular;
- Schools should
be structured to meet the needs of individual students and should respect
the knowledge those students bring to school and build on that knowledge
to foster their understanding about the world.
Parents, as partners
in the education process, have a right and a responsibility to play an
active role in the education of their children. P&C Federation and
its representatives share a responsibility of ensuring representative
decision making for the benefit of all students. P&C Federation's
annual conference, attended by representatives of its 2100 affiliate associations,
develops policy which is energetically promoted by P&C Federation's
democratically elected Council.
Introduction
The P&C Federation
of NSW welcomes the opportunity to respond to the National Inquiry
into Children in Immigration Detention. As an organization that advocates
for the rights of children, we are concerned that the Australian Government's
policy on mandatory detention of children asylum seekers contravenes human
rights treaties and conventions that Australia is signatory to. The Federation
is particularly concerned that children's rights as espoused in the United
Nations Conventions on the Rights of the Child (1989) are not being
met when children are detained. It is an apparent contradiction to serve
the best interests of the child when detained in conditions not dissimilar
to a prison. The Federation sees this situation as urgent, requiring attention
at the national level as soon as possible. It is unacceptable for the
Australian government to detain children and deprive them of access to
normal living and education provisions. In this submission, Federation
argues that children and their families should not be held in detention
as they are protected under international law. Further, we argue for the
development of an education strategy that is ongoing from the time a child
arrives on Australia's shores. Most significantly we argue that child
asylum seekers should be able to access local schools.
P&C Federation Recommendations
The P&C Federation
Recommends:
1. That all children
be removed from detention and that their welfare is improved to more
adequately reflect the UNHCR Refugee Children: Guidelines on Protection
and Care.
2. That children are not detained while their claims are being processed
and that the Right to Family Life is respected by allowing children
to be released with their families into the Australian community.
If this is not feasible,
The P&C Federation
Recommends:
3. That children
be removed from detention and placed under foster care under the parental
responsibility of the Minister of Community Services.
4. That in the case that family placements are not possible, culturally
appropriate placements for children within their own religious, linguistic
and ethnic group should be sought.
Education Provision
The P&C Federation Recommends:
5. That a national
inquiry into Immigration Detention Standards be conducted to evaluate
education provision across the country.
6. That the Department of Immigration, Multicultural and Aboriginal
Affairs implement an educational strategy to determine children asylum
seeker's educational needs and establish clear objectives and priorities
in managing this as well as a plan monitoring the strategies success
.
7. That any education strategy utilise UNHCR Refugee Children: Guidelines
on Protection and Care.
8. That local schools be opened to children in immigration detention
and/or asylum seekers, and are resourced with extra teacher assistant
support in class rooms.
9. That asylum seeker children be provided with free full time primary
and secondary school provision with options to carry out further study.
10. That Preschool and day care arrangements be expanded in detention
centres.
11. That detention centres be provided with departmental education consultants
to assess the educational needs of children.
12. That the New South Wales Department of Education and Training re-establish
education initiatives similar to what was provided for Kosovo refugees.
13. That parent committees are set up at detention centres to establish
communication between the school and its community.
14. That curriculum and teaching is sensitive to the cultural, social
and developmental needs of this vulnerable group of children. This includes
teaching younger children in their first language and fostering a respect
for both "the national values of the country in which the child
is living and the country from which he or she may originate."(
Aims of Education Article 29 (1) UNCRC)
15. That the curriculum include components on conflict resolution, accounting
for the experiences of those children who are the victims of such conflict.
16. That children are able to have continued access to arts and recreation,
to allow the communication of cultural values and maintain social cohesion.
Response to the
Terms of Reference:
The Commissioner
will inquire into the adequacy and appropriateness of Australia's treatment
of child asylum seekers and other children who are, or have been, held
in immigration detention:
1. The provisions made by Australia to implement its international human
rights obligations regarding child asylum seekers, including unaccompanied
minors.
It is well established amongst refugee advocacy bodies and human rights
groups that Australian domestic policy concerning asylum seekers fails
to uphold the principles of the United Nations Conventions (United
Nations Convention of the Rights of the Child 1989) that it is signatory
to. A language of xenophobia has entered the nation's policy responses
and those seeking asylum, who are rightfully protected under international
law have been labelled as "que jumpers" and "illegal immigrants."
Consequently the competing aims of winning last years Federal election
and meeting international obligations espoused in United Nations Conventions
have come at an impasse. The outcome of this is that human rights have
been left far behind in the list of government's priorities. Children
in detention are the hapless victims of these competing policy drives.
The current situation for children seeking asylum is less than optimal.
Those accompanied and unaccompanied are detained on entering the country
and while the application process has recently sped up, some children
still remain in detention for up to 3 years. It is a bitter irony, that
most of these children are eligible for permanent residence in Australia
as 80-90% of applications are granted protection . [1]
The conditions under which these children are detained is inadequate.
While in detention, children receive little education and are exposed
to a psychologically damaging environment witnessing acts of self harm
and protest. The Federation sees this as an unacceptable component of
the refugee determination process that compromises any serious commitment
to Australia's human rights obligations.
Australia's International Treaty Obligations
Australia is a signatory to the United Nations Conventions on the Rights
of the Child 1989.
The Federation is alarmed that the rights of the children are breached
under Australian policy and regulation concerning children.
The Federation takes the time to outline what we consider to be the major
breaches under the United Nations Convention of the Rights of the Child
1989.
Firstly, the Federation believes that mandatory detention for "unauthorised"
entries under the age of 18 is inappropriate. This practice breaks a fundamental
provision set out in UNCRC Article 37 (b) that provides:
"No child
shall be deprived of his or her liberty unlawfully or arbitrarily.
The arrest, detention or imprisonment of a child shall be in conformity
with the law and shall be used only as a measure of last resort and
for the shortest appropriate period of time."
The fact that detention
is currently the first option for children seeking asylum concerns Federation.
It is our belief that other options need to be canvassed to meet the needs
of children taking account of their rights to survival and development,
participation, best interest and non discrimination. As well as this,
it is also imperative that in canvassing alternative options that the
Right to Family Life is also respected.
The Four Governing Principles Enshrined in the UNCRC
A Child's Best Interest
The current situation does not uphold the best interests of the child,
that are according to UNCRC, be given primary consideration by social
welfare institutions, courts of law, administrative authorities or legislative
bodies. Accordingly, it is relevant to note that budget considerations
in meeting a child's welfare, reflected in health care, education or other
rights must be funded.
Non Discrimination
The Federation believes that children seeking asylum are overtly discriminated
against under the Australian government's policy of mandatory detention.
The UNCRC provides that all children are entitled to the same rights under
the Convention without discrimination. Yet, children seeking asylum are
subject to discrimination based on their parent's political opinions and/or
beliefs. During the duration of their application processing, these children
should be able to exercise their rights as children.
The Federation is also concerned about the legal inconsistency in detaining
those children that arrive without visas and not detaining those who arrive
on a tourist or temporary visa. Both are seeking asylum, yet the former
are victimised based on their mode of arrival. It is unreasonable to provide
permanent residency for those refugees that arrive with authorisation,
and only temporary protection for those that arrive without authorisation.
Participation
The right of the child to form his or her own views and the right to express
those views freely in all matters affecting them is severely constrained
while in detention. The ability of children to participate in their own
livelihoods is constricted by the fact that their options are severely
narrow. These children do not always have access to education and activities,
or other necessary provisions. Furthermore, the power of their parents
to advocate for their needs is also limited due to Australia's domestic
policies consideration of these persons as "illegal". This no
win situation needs to be remedied as soon as possible, as children are
vulnerable and need to be properly advocated for. They also deserve proper
humane treatment and respect, and it is Australia's responsibility to
make a genuine contribution to these children's lives.
Survival and Development
It is the opinion of Federation that the former three rights (child's
best interest, non-discrimination, participation) need to be met before
any satisfactory outcome can be gauged on the developmental needs of children.
At its current state, the refugee determination process appears to be
exposing children to severe psychological harm. In order to change this,
the Federal government needs to reconsider its policy of mandatory detention
and explore other avenues. If this is not considered a feasible option,
then detention centres need to improve their facilities and be at least
at the standards designated in the UNHCR Refugee Children: Guidelines
on Protection and Care.
The Right to Family Life
The Federation recognises the responsibilities, rights and duties of parents
or legal guardians in providing appropriate direction and guidance to
children. However recent cases [demonstrate] lack of sensitivity
that can occur in processing. The Federation does not see the separation
of children and their families as feasible and instead argues for alternative
options to detention.
The P&C Federation Recommends:
1. That children be removed from detention and their welfare is improved
to more adequately reflect the UNHCR Refugee Children: Guidelines on
Protection and Care.
The Commissioner
will inquire into the adequacy and appropriateness of Australia's treatment
of child asylum seekers and other children who are, or have been, held
in immigration detention:
2. The mandatory detention of child asylum seekers and other children
arriving in Australia without visas, and alternatives to their detention.
As stated in Term of Reference 1, the Federation does not support the
detention of children. The Federation views mandatory detention to be
an unethical infringement upon the UNCRC, as detention is only to be considered
as a last resort according to Article 37 (b):
"No child
shall be deprived of his or her liberty unlawfully or arbitrarily. The
arrest, detention or imprisonment of a child shall be in conformity
with the law and shall be used only as a measure of last resort and
for the shortest appropriate period of time."
Article 37 (a)
states:
States Parties shall ensure that:
(b) No child shall be subjected to torture or other cruel, inhuman or
degrading treatment or punishment. Neither capital punishment nor life
imprisonment without possibility of release shall be imposed for offences
committed by persons below eighteen years of age
(c)Every child deprived of liberty shall be treated with humanity and
respect for the inherent dignity of the human person, and in a manner
which takes into account the needs of persons of his or her age. In
particular, every child deprived of liberty shall be separated from
adults unless it is considered in the child's best interest not to do
so [61] and shall have the right to maintain contact with his or her
family through correspondence and visits, save in exceptional circumstances.
Furthermore, Article 22 provides that child asylum seekers should receive
protection and assistance in the enjoyment of their rights. Most importantly,
the UNCRC states that all actions concerning a child must be in their
best interest. These ratified legal instruments put into question
the Australian government's detention of children seeking asylum. Although
there is a provision in the Refugee Convention that allows states
to determine their means of refugee processing, it appears that the Australian
Government is clearly wrong in its interpretation of the United Nations
Convention of the Rights of the Child. The case for releasing children
into alternative arrangements is further strengthened by the UNHCR Guidelines
on Detention that "minors who are asylum seekers should not be
detained." [2] Detention should only be for
a short period allowing for the processing of health and security checks.
The Federation sees it as unreasonable to detain children, survivors of
trauma and torture, the elderly or people with disabilities unless found
guilty of a criminal offence or posing a threat to national security.
The Federation does not consider children as posing a serious threat to
national security, nor does it see it as fit to treat asylum seekers more
generally as criminals. International law, grants these people the rights
to flee their countries if circumstances make it necessary. The Convention
relating to the Status of Refugees makes it clear that child asylum
seekers, who meet the definition of refugee, are entitled to special legal
status and are protected under international law. The Australian Migration
Act (1958) definition of these people's as "unlawful citizens"
contravenes the former convention.
The fact is that Australia is the only country in the Western world that
detains asylum seekers who arrive without a visa. Alternate provisions
for children need to be investigated which include the option of releasing
families into the community while their claims are being processed, or
housing children with extended family living in Australia.
The P&C Federation Recommends:
2. That children are not detained while their claims are being processed
and that the Right to Family Life is respected by allowing children
to be released with their families into the Australian community.
If this is not feasible,
The P&C Federation
Recommends:
3. That children be removed from detention and placed under foster care
under the parental responsibility of the Minister of Community Services.
4. That in the case
that family placements are not possible, culturally appropriate placements
for children within their own religious, linguistic and ethnic group should
be sought.
3. The adequacy
& effectiveness of the policies, agreements, laws, rules and practices
governing children in immigration detention or child asylum seekers and
refugees residing in the community after a period of detention, with particular
reference to:
- The conditions
under which children are detained;
- Health, including
mental health, development and disability;
- Education;
- Culture;
- Guardianship
issues; and
- Security practices
in detention.
Education
The Parents and Citizens' Federation of New South Wales, as an advocate
of the rights of children, takes the opportunity to comment upon education
provision in detention centres across the country. Commenting upon this
issue is a difficult task without access to detailed information regarding
educational programs in detention centres. Furthermore, the private contracting
of these centres to Australian Correctional Management impacts upon the
continuity of programs across the country. Federation takes the time to
comment upon the Australian Immigration policy and its inconsistencies
with regard to the United Nations conventions. We also make recommendations
to improve the education provisions of children in detention, which are
currently substandard. At a fundamental level, Federation opposes to the
detention of children who, under international law have every right to
seek asylum. Federation also opposes to child detainment on the basis
that it contravenes the UNCRC. Children are a vulnerable, dependent and
developing group of people that require universal provision regardless
of there ethnic origin, nationality or refugee status. It is Australia's
ethical obligation to recognise this.
The Federation is concerned about Australian domestic policies, agreements,
laws, rules and practices governing children in immigration detention
and child asylum seekers. Most fundamentally, the P&C Federation is
concerned about the welfare of children in detention and the breach of
human rights that is being carried out with the support of the Federal
government. The United Nations Conventions on the Rights of the Child
is held with high esteem in the organisation. The current detention of
children indicates that changes need to be made in Australia's policy
and regulations governing asylum seekers.
The inconsistent education provision for children in detention contravenes
the UNCRC that the Australian government is a signatory to. The convention
states that is a child's inalienable right to receive a proper education
and that this should be achieved on the basis of equal opportunity
(Article 28). Under Article 28, the Australian government is obliged to
provide education at all levels from Primary through to Tertiary education.
Clearly stated in the convention are the obligations to provide free and
compulsory primary education and accessible education at the secondary,
high school and tertiary levels. What is also evident is the importance
of providing educational and vocational guidance and promoting school
attendance.
Despite being a signatory to the UNCRC, the Australian government does
not appear to be upholding its treaty obligations. It is difficult for
the Federation to know the exact nature of educational programs inside
detention centres, as entry to the sites is restricted. However A Summary
of Facilities, Services and Activities Available to Detainees [3]
discloses the patchwork of provision across the country. It is apparent
that there is a lack of continuity in children's education programs with
some children receiving education in local schools and others enrolled
in classes carried out in detention centres. Recent information reveals
that students at Woomera are enrolled in a local school for a mere 2 hours
per day. Education programs of this kind are limited in scope and do not
serve to meet the requirements of the UNCRC. From this it appears that
more effort needs to be diverted to improving the quality of program provision
for children in detention to serve their best interests and developmental
needs.
The P&C Federation
makes the following recommendations in assisting to meet this goal.
The P&C Federation Recommends:
5. That a national inquiry into Immigration Detention Standards be conducted
to evaluate education provision across the country.
8. That local schools be opened to children in immigration detention and/or
asylum seekers, and are resourced with extra teacher assistant support
in class rooms.
9. That children in detention be provided with free full time primary
and secondary school provision with options to carry out further study.
10. That Preschool and day care arrangements be expanded in detention
centres.
11. That detention centres be provided with departmental education consultants
to assess the educational needs of children.
12. That the New South Wales Department of Education and Training re-establish
education initiatives similar to what was provided for Kosovo refugees.
Education Standards
The UNHCR, Refugee Children: Guidelines on Protection and Care
as a tool for reaching policy objectives reflected in the United Nations
Conventions on the Rights of the Child, makes some statements in regard
to the standards of education provision required for refugees. The Convention
relating to the status of refugees states that : 'The UNHCR has made
it clear that "asylum seekers" benefit from the same protections
as "refugees" pending the determination of their claims for
refugee status. ' [4] In this case, it is the belief
of Federation that children seeking asylum should be privy to the same
standards. In a country like Australia, where we have the economic resources
to provide such a service, it seems inexplicable not to.
The guidelines recommend that appropriate standards are maintained, giving
attention to gender, access, quality, curriculum, relevance and language.
It is important that any schooling is sensitive to these needs. Schools
should be fully accessible for all children, both boys and girls. In such
a situation as the Australian instance where there are a total of 365
child asylum seekers [5], it is legitimate to argue for
children to be integrated into local schools.
The UNHCR guidelines make particular reference to the importance of education
being relevant to the particular needs and situation of the children in
question. In accordance with the aims of education set out in the UNCRC
it should foster personal and cultural identity as well as promote psychological
well being. The language of instruction should be of primary consideration
and should be spoken particularly into the grades. Learning English should
be part of the educational programs, but not at the cost of children being
unable to communicate in their primary language with their parents.
The UNHCR guidelines make clear the provisions required in terms of educational
planning. It is important for the host state to:
'Support educational
planning for refugee children by qualified professionals in collaboration
with refugee educators, parents and host government representatives.
Educational planning should begin during the initial stage of a refugee
influx and be an ongoing process.' [6]
Key components of
successful educational planning include a plan of action, expertise, refugee
teachers and parent committees. Educational planning must include determining
children's educational needs, identifying resources from within the refugee
population and from local and national authorities, establishing clear
objectives and priorities and a plan for monitoring. Parents of children
seeking asylum should be closely involved in the process to ensure that
children have access to their culture and language of origin.
The P&C Federation
Recommends:
6. That the Department of Immigration, Multicultural and Aboriginal Affairs
implement an educational strategy to determine children asylum seeker's
educational needs and establish clear objectives and priorities in managing
this as well as a plan to monitoring the strategies success .
7. That any education strategy utilise UNHCR Refugee Children: Guidelines
on Protection and Care.
13. That parent committees are set up at detention centres to establish
communication between the school and its community.
14. That curriculum and teaching is sensitive to the cultural, social
and developmental needs of this vulnerable group of children. This includes
teaching younger children in their first language and fostering a respect
for both "the national values of the country in which the child is
living and the country from which he or she may originate."( Aims
of Education as set out in the UNCRC)
15. That the curriculum include components on conflict resolution, accounting
for the experiences of those children who are the victims of such conflict.
16. That children are able to have continued access to arts and recreation,
to allow the communication of cultural values and maintain social cohesion.
Child Protection
Issues
Child Protection
issues in terms of the Children & Young Persons Care and Protection
Act (NSW) 1998.
Children are removed
from their parents in NSW and placed in the care of the Minister for Community
Services for three main reasons.
1. Children who
are the victims of child abuse, sexual or otherwise.
2. Children who
are being bought up in a home characterised by frequent domestic violence.
3. Children whose
parents, through drug related, psychiatric or being otherwise unable
to care for their children, eg in hospital or in custody.
It is evident from
the published material on children in refugee camps that they are subjected
to child abuse which is defined as being either of a physical or a psychological
nature. This abuse comes about from the very nature of their circumstances
being held in custody for an indefinite period.
The abuse occurs
firstly directly because of the child's own perceptions on what is being
do to them and secondly indirectly because of the effect that imprisonment
has upon their parent(s) and sibling(s). This factor is enough on the
normal standards applied by the Children's Courts in NSW to have the children
removed from the care of the Federal Minister of Immigration and placed
in the parental responsibility of the NSW Minister of Community Services.
There are also reported
instances of children, without parents, who have been without an effective
carer for some years. Quite clearly these children ought to be removed
from the centres and placed in foster care under the parental responsibility
of the Minister of Community Services. This move would not necessarily
effect their immigration status as unaccompanied children arriving at
Australian airports, are usually placed in state foster care until such
time as they can be returned to a suitable relative.
In the daily practice
of the Children's Courts in NSW no distinction is made between sexual
abuse of children and exposing children to domestic violence within the
home. Both circumstances are equally damaging to children. More children
are removed from their parents in circumstances where domestic violence
is a factor that for any other set of circumstances.
There is no doubt
that the atmosphere of the detention centres equates with a domestically
violent home and on this basis those children in detention centres within
NSW ought to be removed from the care of the Minster for Immigration and
place in foster care under the parental responsibility of the NSW Minister
for Community Services.
Equally with respect
to the third cause of placing children in care all the available evidence
indicates that psychiatric problems, especially those associated with
post traumatic stress syndrome and depression are rife within detention
centres. Parents of children thus affected are less effective in caring
for their children. Equally the children themselves could well be affected.
Removal of the children
from the detention situation and placing them in foster placement with
appropriate supports such as those offered by Redbank House, Burnside
or the Benevolent Society would not only be in the best interests of the
children, but would also be very cost effective in that the social problems
that will flow on from the trauma of a childhood spent in part in detention
will cost Australia more in the long term that the immediate costs of
foster care and treatment.
Within a multicultural
society like Australia, even if family placements are not available, culturally
appropriate placements for children within their own religious, linguistic
and ethnic group ought to be possible. Equally contact can be maintained
with their parent(s) much in the same way as contact between children
in foster care and their parents in custody can be maintained.
Out of home care
is a response of last resort. There is no doubt that out of home care
has a lifelong impact upon those children thus placed. However the evidence
from the last fifty years is that detention in a concentration camp has
an even greater effect. Out of home care is not cheap. It is however a
lot cheaper than supporting a mentally ill person over several decades
or locking a person up in long term imprisonment.
The P&C Federation Recommends:
3. That children
be removed from detention and placed under foster care under the parental
responsibility of the Minister of Community Services.
4. That in the case
that family placements are not possible, culturally appropriate placements
for children within their own religious, linguistic and ethnic group should
be sought.
APPENDIX A
1. Terms of reference
The Human Rights
Commissioner, Dr Sev Ozdowski, will conduct an Inquiry into children in
immigration detention on behalf of the Commission. He will be assisted
by an inquiry team that will be announced at a later date.
The Commissioner will inquire into the adequacy and appropriateness of
Australia's treatment of child asylum seekers and other children who are,
or have been, held in immigration detention, including:
1. The provisions made by Australia to implement its international human
rights obligations regarding child asylum seekers, including unaccompanied
minors.
2. The mandatory detention of child asylum seekers and other children
arriving in Australia without visas, and alternatives to their detention.
3. The adequacy and effectiveness of the policies, agreements, laws, rules
and practices governing children in immigration detention or child asylum
seekers and refugees residing in the community after a period of detention,
with particular reference to:
o the conditions
under which children are detained;
o health, including mental health, development and disability;
o education;
o culture;
o guardianship issues; and
o security practices in detention.
4. The impact of
detention on the well-being and healthy development of children, including
their long-term development.
5. The additional measures and safeguards which may be required in detention
facilities to protect the human rights and best interests of all detained
children.
6. The additional measures and safeguards which may be required to protect
the human rights and best interests of child asylum seekers and refugees
residing in the community after a period of detention.
"Child" includes any person under the age of 18.
APPENDIX B
Article 28 of the United Nations Conventions on the Rights of the Child
states,
States Parties recognize the right of the child to education and with
a view to achieving this right progressively and on the basis
of equal opportunity, they shall, in particular:
(a) Make primary education compulsorily and available free to
all;
(b) Encourage the development of different forms of secondary education,
including general and vocational education, make them available
and accessible to every child and take appropriate measures such as the
introduction of free education and offering financial assistance in case
of need;
(c) Make higher education accessible to all on the basis of capacity
by every appropriate means;
(d) Make educational and vocational information and guidance available
and accessible to all children;
(e) Take measures to encourage regular attendance at schools and
the reduction of drop-out rates.
Article 28(1), Convention on the Rights of the Child
Article 29 (1) Aims
of Education
States Parties agree that the education of the child shall be directed
to:
(a) The development of the child's personality, talents and mental and
physical abilities to their fullest potential;
(b) The development of respect for human rights and fundamental freedoms,
and for the principles enshrined in the Charter of the United Nations;
(c) The development of respect for the child's parents, his or her own
cultural identity, language and values, for the national values of the
country in which the child is living, the country from which he or she
may originate, and for civilizations different from his or her own;
(d) The preparation of the child for responsible life in free society,
in the spirit of understanding, peace, tolerance, equality of sexes, and
friendship among all peoples, ethnic, national and religious groups and
persons of indigenous origin;
(e) The development of respect for the natural environment.
Last
Updated 9 January 2003.