National Inquiry into Children in Immigration Detention

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Submission to National Inquiry into Children in Immigration Detention from

SA Coalition for Refugee Children

Prepared by:

Kristina Barnett - Diversity Directions Inc.

Diana Collett - Child & Youth Health and South Australians for Justice for Refugees

Tina Dolgopol - President of Action for Children Inc

Julie Redman - Chair of the Children and the Law Committee, Law Society of South Australia

Rosemary Steen - Chair of the Coalition, Children and the Law Committee, Law Society of South Australia

Carey Trundle - Children and the Law Committee, Law Society of South Australia

Part 2 of the Coalition Submission includes the research and writings of the following members of the Australian Early Childhood Association (AECA) SA Branch:

Kaye Colmer

Elspeth Harley

Andrea McGuffog

Italia Parletta

Part 3 of the Coalition Submission is based on the research and writings of the following students at The Flinders University of South Australia:

Bethany Lohmeyer

Zoe Lugg

Adut Ngor

Michael Paes

In addition part of the submission is based on the research and writings of Tania Steinmuller an SJD student at the Australian National University.

They were supervised by Tina Dolgopol, Senior Lecturer in Law, The Flinders University of South Australia.

Bibliography

Bibliography to material on UNHCR Guidelines

Part 1

About the South Australian Coalition for Refugee Children

The impetus for the Coalition grew out of a day seminar entitled "Children, asylum & detention Is this the Australian Way?" held in Adelaide on 30th June 2001, co-ordinated by The Law Society of South Australia Children and the Law Committee, Action for Children SA and the Australian Refugee Association Inc. and generously supported by the Law Foundation of South Australia. Individuals and organizations have joined together with the following shared goals: -

Aims of the South Australian Coalition for Refugee Children

1. We oppose the mandatory detention of asylum seekers.

2. We acknowledge the fundamental right and need for children to live with their families in a safe and supportive environment.

3. We deplore the physical, emotional and psychological harm and resultant developmental damage of children and their families caused by continued detention.

4. Release from detention is our primary aim. Until that is achieved, we seek to make life in detention more tolerable.

5. We call for all families and unaccompanied children held in mandatory detention to be released into the community with culturally appropriate support.

6. We condemn the formation of 'second class' refugee status by the Temporary Protection Visa system. We call for the abolition of this discriminatory practice. We seek to assist refugees released into the community on temporary Protection Visas, particularly children.

7. We commend accurate media coverage of asylum seekers. We seek to inform the community on these issues and advocate for child asylum seekers.

8. We are committed to upholding the United Nations Convention of the Rights of the Child (1990) and other international covenants that apply directly or indirectly to children and refugees.

9. Our motivation is humanitarian and non-political.

Composition of Submission

This submission is a composite. The contributions vary in scope and detail. The remoteness of the South Australian detention centre has posed a significant restriction to our gathering of material as has the cost of interpreters.

That some issues are dealt with more thoroughly than others does not detract from the importance of some matters we have been unable to fulsomely address.

Methods employed in the development of this submission include the interviewing of asylum seekers on Temporary Protection Visas and professionals working with them as well as the observations of those members who visited the Woomera Detention Centre.

We have tried to be as complete as possible, however we have been unable to address all matters raised in the Background Papers.

Summary of Recommendations

1. The abolition of mandatory detention of unaccompanied children and families in immigration detention centres in Australia or in any countries taking part in the Australian Pacific solution.

2. That in responding to a request for asylum the following principles be followed:

(a) That all isolated, remote detention centres in Australia be closed;

(b) That the preferred option should be community release with conditions attached, until such time as refugee status or otherwise is determined;

(c) That the Migration Act be amended to broaden the availability of a bridging visa under Section 417 of the Migration Act. To allow for community release and open detention in all cases where no national security risk is identified, no health risk is identified or where there is no other evidence to suggest that the applicant is likely to abscond;

(d) If mandatory detention centres continue to be operated that the Australian Government resume responsibility for the management of all Australian Immigration Detention Centres and that management complies with international obligations in relation to the standard of care of asylum seekers, particularly child asylum seekers;

(e) That any detentions centres, closed or open be operated in a manner that delivers all appropriate services to all detainees, particularly to children and their families;

(f) If asylum seekers are processed in a closed processing centre that this period not exceed 30 days and that a report be submitted on each asylum seeker as to the status of their processing and a recommendation of, if necessary, any continued detention and its options;

(g) Open detention. That the Migration Act be amended to allow for an open detention scheme. Where it is considered asylum seekers should not be released into the community on community release an open detention bridging visa be granted. That applicants stay in supervised accommodation provided by DIMA with some restrictions on freedom of movement in the community by curfew requirements only;

(h) That asylum seekers be advised at least once every 30 days of the progress of their application, in the case of children, particularly unaccompanied children that special provisions be made for consulting with children under the age of 18 years at an appropriate level with appropriate interpreters and with the child's advocate present;

(i) That the Australian Government appoint an independent monitoring body of child services providers to ensure that the treatment of children throughout the process of detention and during their time in the community on temporary protection visas or bridging visas upholds the standard of protection and care recommended by the UN and HCR and the UN Convention on the Rights of the Child. Such an independent body to include experts on child development, child health and their education. Monitoring to include unannounced visits of any detention centres;

(j) That Temporary Protection Visas be abolished. That all asylum seekers released into the community receive equal access to and delivery of all appropriate services;

(k) That procedures by which the Refugee Tribunal and Review Tribunal gain access to country of origin information, be improved and that training be conducted to facilitate this;

(l) That because detention of asylum seekers is arbitrary and amounts to cruel and unusual punishment that the privative clause limiting Judicial Review be removed;

(m) HREOC should consider recommending the appointment of guardians in a geographically proximate area for unaccompanied minors who can assist them with the exercise of their rights. This would include filing complaints with the Commonwealth Ombudsman and HREOC;

(n) HREOC should call on the Australian government to adhere to its international obligations including the Guarantees Concerning Persons held in Custody adopted by the UN Commission on Human Rights Working Group on Arbitrary Detention;

(o) In making its findings HREOC should emphasis the fact that the emotional and psychological well being of children and young people will not be significantly improved unless the status of their parents is improved;

(p) HREOC should recommend that asylum detention facilities be located in areas where it would be possible for asylum seekers to have a meaningful interaction with a cross section of the Australian community;

(q) There has not been a sufficient amount of time for researchers to begin studying the effects of asylum detention on the psychological well-being of detainees. It cannot be assumed that such research will take place, as funding must be sought and the government must give access to the detention facilities. HREOC should recommend that such research be undertaken as a matter of priority;

(r) HREOC should examine the effect of the detention regime in light of the prohibition against cruel and unusual punishment/treatment/treatment contained in international law. Particular attention should be given to the relationship between the harshness of the regime and the age and health of child asylum seekers.

Part 2

UNHCR - Refugee Children: Guidelines on Protection and Care

The purpose of the work in this section is to highlight the applicability of the UNHCR Guidelines. Extracts from interviews with detainees and families on TPVs have been used to illustrate the failure to reach to the standards set by the guidelines.

The Guidelines will also be referred to under the separate headings throughout this part of the submission.

Approximately half the world's refugees are children. UNHCR considers a child to be a person below the age of 18 years, unless, under the law applicable to the child, majority is attained earlier.

The UNHCR Guidelines have been adopted as a policy in order to improve and enhance the protection and care of refugee children. They provide goals and objectives, the principles and practical measures for the protection and assistance of these children. At the core of the guidelines is the realisation of the special care and attention that must be and needs to be afforded to this most vulnerable group. However, this special care and protection cannot be produced in isolation. It must also encompass the provision of support to the families and communities of this vulnerable group in order to adequately meet the children's physical and social needs.

It must be understood that guidelines do not merely offer suggestions but are tools for reaching goals. Therefore, they cannot be ignored when it is inconvenient not to follow them. The guiding principle of the UNHCR policy is that in all actions taken primary consideration should be given to the child's best interests. Ultimately, it is the translation of the guidelines from words into actions that will provide refugee children with definitive value.

Refugee Children

A refugee child is understood to mean any child of concern to the High Commissioner, including those children who are refugees, returnees, asylum-seekers and displaced persons of concern to the UNHCR. As a general principle asylum-seekers should not be detained. This is further reiterated in the Guidelines that minors who are asylum-seekers should not be detained. Children, including refugee children, are the future. They need special protection and care to realise their potential.

Three interrelated factors contribute to the special needs of refugee children: their dependence, their vulnerability and their developmental needs (ie their requirements for healthy growth and development at different ages). Children's vulnerability results in part from this dependence. They are physically and psychologically less able than adults to provide for their own needs or to protect themselves from harm.

Legal Status of Child Asylum Seekers

Refugee children share certain universal rights with all other people and as children and refugees have additional rights. CROC states a comprehensive framework for the responsibilities of State Parties toward all children. States are responsible for protecting the human rights of all persons within their territory, including refugee children, and for providing the adults accountable for these children with the support necessary to fulfill their own responsibilities.

Child asylum seekers are entitled to special legal status in recognition of their need for international protection.

The best interests of the child require that procedures be child friendly and take into account children's specific needs.

The coalition notes the guidelines on the protection and care laid down by UN and HCR where a child is accompanied by one or both parents the principal of family unity applies and the dependent child should be accorded the parent status.

However, children should be entitled to make individual claims and in the case of unaccompanied children must make individual claims. Children are entitled to individual legal representation. Children should be assisted to participate in the decision making process. All agencies involved with refugee children should be trained in child development and the needs of refugee children. Any professional conducting an interview of a child refugee should be skilled appropriately. Interviews should be kept to a minimum. Where more than one agency is involved with refugee children they should work collaboratively to maintain a child focus.

Unaccompanied Children

Unaccompanied refugee children are the most vulnerable of all refugee children. Therefore, unaccompanied children's cases should be given priority. The UNHCR Guidelines define unaccompanied children as those who are separated from both parents and are not being cared for by an adult who, by law or custom, is responsible to do so. Article 37 of the Convention on the Rights of the Child, reiterates that State Parties are required to ensure that the detention of minors be used only as a measure of last resort and for the shortest appropriate period of time. Further, alternative care arrangements should be made for unaccompanied minors and any form of detention should not resemble prison-like conditions.

Personal Liberty and Security - Chapter 7 of The Guidelines

UNHCR policy is that children should not be detained and if they are it should only be as a measure of last resort and for the shortest time possible. Alternative accommodation should be sought in all situations of child refugees/asylum seekers.

The Guidelines further state that detention must not be used as a punishment or deterrence to other asylum seekers.

Phillip Ruddock has consistently stated that a justification of the policy to imprison asylum seekers in detention centres is that of deterrence. The recent drop in numbers of refugees seeking asylum in Australia through the means termed 'illegal' has provided motive for this government to justify its continued use of the deterrence policy of mandatory detention.

When detention is resorted to the conditions in which the asylum seekers are detained must be humane. The UNHCR Guidelines detail these conditions throughout the chapters and they must include access to play and education.

As has been discussed above there is no or very inadequate access to play and education for children in detention centres. There is also none or very limited access to any other services in relation to physical and mental health.

Inhumane treatment by staff at detention centres expressed in the interviews included residents being informed that they had been granted a visa but upon arrival at the exit of the detention centre, being told that there had been a mistake in names.

One family interviewed stated that they were never informed as to whom they could complain about their situation or particular circumstances. Another family stated that their concerns and requests were completely ignored. Any communication with the centre authority was conducted by giving each resident a number. This number was referred to in all communication between staff and resident.

A father, [who had helped provide personal grooming services] was stopped with no discussion from providing this service. He stated that all self-dignity was removed by the detention centre through families not being allowed to groom themselves.

One family's children stated, looking at the barbed wire perimeter, that they had thought Australia represented freedom. Another family expressed that these places are not detention centres but prisons. Failure to inform families about their situation or basis of any possible release added to this sense.

Statelessness of children born to refugees in Australia

Children born to asylum seekers or temporary protection visa holders have no right to be registered immediately after birth and therefore do not acquire the nationality of Australia.

Guardianship of unaccompanied children

The Coalition endorses the UN and HCR recommendation that an independent and formally accredited organization appoint a guardian as soon as an unaccompanied child is identified. Children interviewed by members of the Coalition invariably reported being bewildered and confused as to their process of determination of their claims, their health, welfare and educational rights. They also reported a lack of understanding of who they could communicate with to seek advice in each of these areas.

MENTAL HEALTH AND DEVELOPMENT

The Coalition has read the submission of the Australian Association for Infant Mental Health prepared by Dr. Roslynd Powrie.

Members of the Coalition endorse that submission and report similar stories on the interviews of asylum seekers and temporary protection visa holders.

Psychosocial Well-being - Chapter 4 of the Guidelines

To understand how the children of an Afghani family were coping on TPVs, the father was asked about his children's life in their home country. He described the rockets, mass graves and finally the death of his brother. Of their emotional well being he said;

'My children are like a glass of water that is full, the slightest thing makes them overflow' - the family were detained in an Australian detention centre for [several] months.

Psychosocial well-being can be defined as reflecting the intimate relationship between psychological and social factors. Therefore, it is essential to ensure those factors that enhance a child's well-being are promoted. Special assistance must be provided to ensure full recovery for those children who have been traumatized, harmed or have special needs.

A mother interviewed whose daughter suffered intellectual disabilities had her request ignored for access to a special school for her daughter. Repeated requests for assessment of her daughter were also ignored, as were any other special services requested, including a specialist medical appointment.

Child protection workers found that young people within Woomera were suffering quite severe mental problems. Traumatic experiences prior to reaching Australia are compounded by the incidence of violence and self-harm to which young people are exposed in Woomera. This further trauma leads to symptoms in children of suicidal thoughts, depression, anxiety and disturbing behaviours.

A child's physical, intellectual, psychological, cultural and social development can be harmed during the time of uprooting, disruption and insecurity that is inherent in refugee situations. Unaccompanied children are particularly vulnerable to these factors. Children are greatly influenced by the protection and care afforded to them by their families. Therefore, as an adult suffers in a detention centre so will their child/children. Parental distress can result in family disintegration.

One mother interviewed expressed the depression she suffered in the detention centre and the inability she felt in being able to control her children's environment within the camp situation. She watched her children demonstrate signs of depression and become inactive and withdrawn.

Another family interviewed stated their belief that because of the shortness in time of any schooling offered, their children became depressed through boredom. Further, that requests to detention centre staff for activities and toys to occupy the children were either ignored or inadequately dealt with.

A family stated incidents where men who were worn-down, frustrated and depressed by the stress of the detention centre situation would overreact to a child's behaviour and hit other people's children as an act of discipline.

A childhood nurse interviewed stated that the stress and trauma evident in most parents and in children themselves is receiving inadequate support and is being exacerbated by detention.

During a child's detention they should be provided with adequate information concerning their situation, their rights and responsibilities and possible solutions to their situation. A child has a right to participate and anxiety will arise where a child does not understand what is happening to them. This anxiety can only be compounded when their adult parent/s are not fully aware themselves of their rights or what their current or future situation holds. The inherent uncertainty that characterizes existence on a TPV causes constant anxiety and its many negative effects.

Play is vital to a child's development. Not only is it essential for relaxation but it is also imperative to the development of coping and functioning mechanisms within the family and community situation. Playgrounds should be available to all children within the detention centre.

All families indicated a lack of provision of play equipment for all age groups. Equipment that was provided, such as balls, were inadequate in number which in turn lead to fighting. This type of equipment was only available to children once they had requested and signed for it, not as a freely available resource.

Due to the harsh location of some detention centres any play outside was often impossible due to an absence of shaded areas. This in turn was coupled with an absence of any facilities for children. In one instance it was reported that one swing and slide was available for children but located in broad sunlight and therefore unusable.

The lack of availability of toys, books, colour and other stimulating objects so vital for a young child was further reiterated by the childhood nurse interviewed.

Extended stays in detention centres adversely affect the emotional development of refugee children. This can result in serious adaptation problems when a child finally leaves the detention centre.

The interviews conducted were of families from Afghanistan and Iraq. All families had children [words deleted]. All had spent time in an Australian detention centre for periods ranging from six weeks to six months.

A nurse working with children released from Australian detention centres stated that she was meeting many children with untreated developmental delays and many suffering from emotional and behavioural problems and many demonstrating indicators of depression. This nurse estimated that of all the refugee children she has seen 20% of them have had undiagnosed and untreated mental health problems.

Activities for refugee children should be planned and coordinated by child welfare workers in collusion with refugee parents and the refugee community. The guidelines state the activities appropriate for the varying age groups and developmental stages of children.

As the interviews discussed above have indicated there are no activities for children or families, therefore, community co-ordination and age appropriateness have not even become an issue in the detention centres.

Due to the stress and trauma already experienced by a large percentage of refugee children prior to their arrival in Australia special services and treatments should be available to them in the detention centres. Provision of these services should be in a culturally and linguistically appropriate setting.

As indicated above, even where there are recognised and pre-diagnosed special needs, no resources or services are made available to families or children in Australian detention centres. Cultural and linguistic issues were not considered for the families detained and as one mother stated the only access to interpreters was for official DIMA interviews. Therefore, families and children were unable to express their opinions and felt that they were being held prisoner.

The child protection visit to Woomera detention centre concluded that the continued detention of young people has the potential to have a profound detrimental effect on their future. Of particular concern is the effect that this continued detention has in regards to their future in Australian life. The psychological trauma suffered prior to arrival in Australia and the continued suffering in the dehumanising conditions of detention in Australia set the stage for a future compounded with severe psychological problems.

HEALTH AND NUTRITION

The interviews with families on Temporary Protection Visas and of professionals working with these families revealed numerous instances where children were not recognized as having special health needs. They described a complete failure of the authorities to fully assess the medical needs of their children some of whom have visibly demonstrable needs.

Our [words deleted] son couldn't stand and had to be carried everywhere. In [the IDC] they said they had no specialist doctors and nothing was done about it. We were in [that IDC] for 3 months. Only when we came to [this city] did they diagnose that he had polio [in his home country]. Now he has special physio lessons and splints and can walk and run.

The right of parents to make choices regarding medical treatment for their children was blatantly rejected by authorities.

Our middle child is [age deleted]. You can see she has not grown properly. Intellectually she is about the age of a 3 year old. Before we came to Australia we bought enough medicine the specialist in Iraq prescribed to last 6 months. When we arrived in Australia they took all the medicine they never gave it back. We were in [the IDC] 6 months and our daughter was never properly examined and assessed. We have been out for 3 months and now she will see a doctor at the [words deleted] Hospital in a few weeks time.

Importantly, when a report was eventually made, its use and purpose were never made clear and there was no follow up with the family. They felt and were completely unable to assist in the care of their child's complex medical and allied health needs. In each case, the anxiety felt by the parents impacts on all of the children.

A community nurse who has seen about 300 children on TPVs in the last 20 months observes:

There is a marked difference between the level of nutrition, development and immunization from the Kosovar refugees and these refugees from Afghanistan, Iraq and Iran. There are a lot of congenital problems not diagnosed in detention centres and those extra months of lack of detection are delaying children's development. In the last 12 months:-

two children with polio;[in country of origin]
several children with rickets;
many children with developmental delays;
many children with nutrition problems;
many children with height and weight not appropriate for their age;
many children with emotional problems, behaviour problems, bed wetting and indicators of depression;
there have also been blood conditions.

All of these children had come from detention centres and were not receiving treatment until their release. In detention the nutritional needs of children are not being met adequately because of the strict meal time regime with healthy snacks not provided. Also whilst in detention, breast feeding is not supported properly, nor are the significant nutritional needs of lactating mothers.[the IDC] is hot, harsh and colourless. The parents report there are no special, stimulating toys for babies and children.

In short, the nurturing of babies and young children goes unrecognized and unsupported. Instead, parents are left confused, angry and depressed, their resources to care for their youngest children depleted.

It is well documented that stress can have a negative impact on how babies develop. There is no doubt that the trauma and stress evident in most parents and in children themselves is receiving inadequate support and is being exacerbated by detention. The witnessing of violence and anger and in some cases self mutilation is dramatically affecting, not only the parents ability to nurture but also the child's development. Parents cannot carry out adequately their parenting role and children are being presented with severe sleep problems, aggressive and eating disorders. The community nurse estimated that about 20% of the children she saw had significant mental health problems.

Anti-natal and post-natal care

There have been consistent complaints from detainees about the lack of medical attention. The difficulty of relying on the guards to permit entry into the medical compound, the lack of interest and concern when help was sought for their health and medical problems. The ubiquitous Panadol and water became a meaningless response to their very real health issues. This becomes particularly serious when the detainee is pregnant.

I was pregnant in [the IDC]. I told the nurse. She took a urine sample but I was not medically examined. When I was about 3 - 4 months, there was bleeding. I knew there was a problem ( I have 3 other children). The nurse didn't want to hear, she said take a Panadol and water. I miscarried and lost the baby.

I was four months pregnant in [the IDC] when I went to see a nurse for a regular check up one day. I was feeling well before I went to see her. [words deleted] I returned to my room and began bleeding. I immediately went back to the nurse and she told me that no doctor was available and that I should go back to my room until 4.00pm. At 4.00pm I went back to the nurse who told me again that a doctor was not available. So I spent the night in my room bleeding and in pain.

The very next morning my husband and I were told that we had been granted temporary protection visas. They put us on a bus to Adelaide still without letting me see a doctor. I was still bleeding and in pain. I miscarried in the toilets of a hotel once we arrived in Adelaide. It was several days before I could find someone to assist me to get to hospital."

Women who gave birth whilst in detention had similar accounts of procedures which failed to recognise the benefit of a support person of choice during birthing. They reported that about two weeks prior to their due date they were taken to [the nearest] hospital by an ACM guard. They were not allowed to take their husbands or any of their children with them. They had limited ability to communicate with hospital staff due to lack of interpreters and in many cases cesarean operations were undertaken without the understanding of the detainee that this was to happen. Mothers were returned to [the IDC] after two days with very little post natal care. They had to take their meals in the dining room during allocated meal times. The lack of recognition for these women's needs which are inextricably linked to the well being of their children goes to the core of their self esteem making them even more vulnerable to depression. Consistent with this, the community nurse reports many women on TPVs with babies born in detention present with depression.

EDUCATION

Education - Chapter 9 of the Guidelines

The right to education is a universal right. The absence of this right creates a lifelong handicap for a child. Education must be considered a priority for refugee children as it contributes to their sense of well-being and provides continuity for them in their lives.

In a recent visit to Woomera by child protection workers it was found that children do not have access to a proper education and that while there is a school in the Centre, the curriculum and school hours are limited. Further, there is little room for children to play and the provision of bedding and living conditions is inadequate.

The trauma of displacement will only be multiplied if an educational opportunity is also withdrawn. Education should be available to refugee children immediately upon the onset of their arrival here.

In an interview with an Afghani family it was stated that their two children were provided with schooling once a week. This was later increased to 2 hours twice per week. It was reiterated by the family interviewed that if there were something they would improve about the detention centre it was that the level of school was improved as it provided stability for their children.

The education provided should be appropriate in its accessibility, quality, relevance and language. The refugee community should be involved in the planning of education and teachers among the community identified to assist in children's education.

No family interviewed stated that they had had any input in to the education that their children were receiving.

The quality of education provided to refugee children should be the same standard as that provided to nationals of the same age. Early primary education should be in the mother tongue to enable better and quicker learning for children. Each child's education should be recorded and monitored.

All families interviewed stated the same concerns re the education level at the detention centres. The education is in English and is not culturally appropriate. Further, it is only of a short duration in time, the longest time frame being 2 hours per day 5 days per week.

The education should bear relevance to the country in which these children are refugees in order to provide them with the best possible chance of integration into the same community upon release.

While all education discussed in the interviews was based on basic English skills only one family interviewed reiterated that their children had leant anything in regards to Australia the country, and this was through videos. They never learnt anything about their own country.

A focus group of four 10 and 11 year old Iranian boys interviewed in November 2001 at [an IDC] were unanimous in their statement:

There were extremely limited educational opportunities in [the IDC] at the time which consisted mainly in a teacher, who spoke only English, helping them for approximately one hour per day to learn English. There was no interpreter available and they found it extremely difficult to understand what the teacher was conveying. All of them reported apathy and lack of motivation to even take up this educational opportunity. They reported spending most of their days lying on their beds, bored with nothing to do.

Their eyes lit up when they reported that on one occasion per week they had access to some computers on which they could play games.

Parents interviewed in March 2002 released from [two IDCs] reported similarly the lack of any substantive educational opportunities.

There was a complete lack of understanding that the girls had received no education in Afghanistan and needed very basic education, different from boys".

The lack of continuity of teachers who are appointed on short six week contracts is a serious concern for the implementation of any quality educational programme. This illustrates again, that the children bear the cost of the remote and isolated location of the detention centres.

The Woomera educational programme has now moved to the former Catholic parish school of St. Michaels. There is no attempt to integrate these children into a normal State education system. They do, however, have some activities in common with the State system.

A new education block has now been erected at Woomera but is not yet in use. Presumably the intention is to resume the education of children within the detention centre and deny them the opportunity to spend some hours a day outside of the centre in a more natural environment. The coalition opposes this move.

The coalition commends educational programmes that develop cultural exchange and facilitate relationship building between child asylum seekers and local school children.

The educational needs of children released on TPVs are considerable. The assistance they require to reach their academic and co-curricular potential are significant. Child asylum seekers released into the community are entitled to effective support to fulfill their educational potential.

The good stories that came through the interviews related to the children's enjoyment of school once released into the community. But even amongst the positive accounts of schooling the deleterious effects of the TPV came through.

We spent five months in [an IDC] and have been out for 15 months. We have [most of our children] with us and one is left in [our country, he was with [a relative]we have not been able to contact him. Uncertainty surrounds us. The children are old enough to understand. They are in fear. We have lived with this fear such a long time, in [our country] and now here, fear of being sent back again. We don't know what will happen. They lose the will to study. Their motivation is undermined. What is the point they think. What will happen to us.

Without detracting from the special needs of older children, we are able to submit a report focusing on the needs and standards that should be adopted for child asylum seekers from 0 - 8 years of age. The Australian Early Childhood Association (AECA) SA Branch has prepared the report. The coalition endorses the report and observes that all learners in South Australia aged birth to seventeen years, except for those who seek asylum, have access to quality programs and curriculum that are based on the South Australian Curriculum standards and Accountability (SACSA) Framework.

Australian Early Childhood Association (AECA) SA Branch

Focusing on care and education for children 0-8 years of age

1. Introduction

Children in detention have witnessed horrific conditions which have left them traumatised prior to arrival in Australia. On arrival they are placed in detention centres where they are subjected to humiliation and a culture of distrust. The detention centre environment has been referred to as a "personification of child abuse" with women and children living in an environment where "they are not trusted, not believed and not wanted"… (interview with Jeremy Moore - Lawyers for Woomera Refugees ABC Radio 5AN 16.4.02)

While in detention, children and their families are not in a secure environment and live in fear of being deported. Families with children in detention at Woomera IRPC were interviewed in January and February 2002 by a legal team. Behaviours such as bed wetting, night terrors and crying continue to be reported by parents of younger children. A sense of loss, despondency and depression seemed to be prevalent among older children.

"Children's developmental needs are a fundamental reality often not considered in relief efforts. In order to grow and develop normally, a child has certain age-specific requirements which must be satisfied. Basic health care, nutrition and education are generally recognised as necessary for the physical and intellectual development of children. Beyond these, however, healthy psychosocial development depends in large measure on the nurturing and stimulation that children receive as they grow, and on the opportunities that they have to learn and master new skills. For refugee children, healthy psychosocial development also requires coping effectively with the multiple trauma of loss, uprooting and often more damaging experiences. In short, tragic long term consequences may result where children's developmental needs are not adequately met."

AECA Position Paper On Children Of Asylum Seekers And Children Of Refugees And Children In Detention in draft 2002

The United Nations High Commission for Refugees (UNHCR) states that children should not be detained and should not be separated from their parents. There is much evidence to support that prolonged detention of children affects children's physical and mental health. This will have a significant impact on the child's social and emotional wellbeing and the ability to function in a learning environment.

Research on the brain and learning shows that learning is inhibited by high levels of stress or perceived threat by the child leading to life long mental health issues.

Reference - cited in Rushton S and Larkin (2001) Shaping the learning environment: Connecting developmentally Appropriate Practices to brain research Early Childhood Education Journal, Vol.29, no.1

Educational programs that develop a sense of identity and trust are therefore essential for these children's current wellbeing and ability to lead successful lives in the future.

Internationally the power and potential of education opportunities has been acknowledged, as has the right of all children to a quality primary education.

The 1996 UNESCO Report 'Learning: The treasure within' (commonly known as the Delors Report) calls for the creation of an international educational community working together to foster in children and students powerful thinking and acting on a global scale.

"… while education is an ongoing process of improving knowledge and skills, it is also - perhaps primarily - an exceptional means of bringing about personal development and building relationships among individuals, groups and nations."

'Learning: The treasure within' Delors UNESCO 1996

'Education For All (EFA) by the Year 2000' was a campaign of consensus-building and partnerships led by UNESCO, UNICEF, the World Bank, UNDP and UNFPA, and supported by many bilateral agencies and civil society organisations. At its heart was a confirmation of the right of all children to gain access to the opportunities and environments required to meet their basic learning needs. One of the goals reconfirmed in 2000 at the World Education Forum in Dakar, Senegal, was to:

"Ensure that, by 2015, all children - particularly girls, children in difficult circumstances and those belonging to ethnic minorities - have access to and can complete a quality primary education that is free and compulsory."

Children in detention centres are indeed children in difficult circumstances.

The Convention on the Rights of the Child provides that all asylum seeker children, including those that have had their applications for refugee status rejected, are entitled to similar education as other children in Australia. The dynamic nature of Australian society presents a challenge, and offers the opportunity for innovative, inclusive and rigorous curriculum, and pedagogical development that supports equitable learning opportunities for all children and students. In Australia, the commonwealth government along with all State and Territory governments have agreed that

Australia's future depends upon each citizen having the necessary knowledge, understanding, skills and values for a productive and rewarding life in an educated, just and open society. …Schooling provides a foundation for young Australians' intellectual, physical, social, moral, spiritual and aesthetic development. By providing a supportive and nurturing environment, schooling contributes to the development of students' sense of self-worth, enthusiasm for learning and optimism for the future."

The Adelaide Declaration on National Goals for Schooling in the Twenty-First Century, Ministerial Council on Education, Employment, Training and Youth Affairs 1999

2. Services and programs available to children in the South Australian community

Early childhood education and care has been a priority for successive state governments in South Australia over a number of years. The range of community and local, state and commonwealth government programs is extensive and offers families and children aged birth to 8 years of age a broad range of education, care, leisure and specialist services. These services and programs are offered in:

"safe environments in which children can grow and learn…. (where)

- respectful and friendly relationships…give a sense of belonging and self worth…

- learning experiences…extend children's development and build their confidence to try new things…

- children as individuals and as part of their family (are recognised and valued)."

Your Guide to Children's Services in South Australia, Department of Education, Training and Employment, 2001

Families can also be assured that the quality of the services they choose for their children are assessed against legislative standards and accredited against a system of quality indicators.

Commonwealth and state supported children's services for children under 6 years of age include:

- long day child care

- occasional care

- emergency care

- family day care

- respite care

- out of school hours and vacation care

- in home care

- preschool

- play centre

- playgroup

- Eclipse and First Start literacy programs

Children can commence school in the term after they turn 5 years of age and the vast majority of 4 year old children attend state funded preschools. Teachers employed in all South Australian schools and preschools are required to be registered by an independent registration board which provides quality control on professional qualifications and assesses teachers for their suitability to be registered, including police checks.

Care, teaching and learning, is enhanced by learners and families access to highly trained, committed and innovative educators who implement a curriculum that builds on the skills and abilities of learners.

In South Australia all learners aged birth to seventeen years have access to quality programs and curriculum that are based on the South Australian Curriculum Standards and Accountability (SACSA) Framework. The SACSA framework encourages a culture of lifelong learning and reaffirms a long held belief that education is central to the making of a fairer society. The SACSA framework represents high expectations for all learners.

Within the SACSA framework five Essential Learnings have been identified. They are: Futures, Identity, Interdependence, Thinking and Communication. Specifically the Essential Learnings foster learners capabilities to:

Develop the flexibility to respond to change, recognise connections with the past and conceive solutions for preferred futures (Futures)
Develop a positive sense of self and group, accept individual and group responsibilities and respect individual and group differences (Identity)
Work in harmony with others and for common purposes, within and across cultures (Interdependence)
Be independent and critical thinkers, with the ability to appraise information, make decisions, be innovative and devise creative solutions (Thinking)
Communicate powerfully (Communication)

Engaging with these concepts is crucial to enhancing the learning culture within and beyond school / sites.

Specifically we know that learning in the early years is critical to present and future success and that children aged birth to 8 are entitled to have their particular learning needs met by high quality staff and in appropriate environments:

The early years are a critical period when learning can be maximised. If this early advantage is missed, learning may be much slower, more difficult, and more expensive, in social and economic terms to revisit in later life.
Current brain research is contributing to understandings of the ways children learn and develop. The first five years of life are marked by critical periods during which the brain is most ready for appropriate stimulation and nurturing from social environments.
The brain research has implications for educators in that, while it highlights the importance of stimulation, it identifies the potential harm that stressful and inappropriate stimulation and intervention can do to the child's learning and dispositions to learn.
Families are central to a child's early learning. Educators actively promote meaningful partnerships with families and communities and support each child's learning and sense of belonging.
Young children need a safe (physically and psychologically) secure and aesthetically pleasing learning environment. The environment must support children to investigate and explore their surrounding through a range of play, sensory and artistic experiences, including music, art, dance and drama. They need opportunities to be imaginative and creative, use a range of thinking modes and utilise their developing literacy and numeracy to shape the world around them. Children need personal space, time and resources to explore, experiment, discover and manipulate.
A quality early childhood curriculum engages the hearts, minds, bodies and spirits of children and all who work with them.
Early childhood can be a time of delight, discovery and wonder. Central to the early years band of SACSA (birth to eight years) is an uncompromising view of the child as capable of co-constructing knowledge and understanding.

In addition to the care and education programs available to young children a wide range of support services are available to children and families in South Australia some of which are listed below:

Women's and Children's Hospital

- Child protection services

- Health information

- Children's consulting clinics

- Podiatry

- Orthopaedic clinic

- Occupational therapy

- Speech therapy

- Nutrition services
Health

- Access to GP when required
Department of Education Training and Employment

- Social worker

- Psychologist

- Speech therapist

- Special Educators

- ESL and bilingual assistants

- Aboriginal resource personnel
Child and Youth Health

- Child health nurses and clinics

- Child health services

- Youth health services

- Hearing assessment unit

- Social workers
Child Adolescent Mental Health Service (CAMHS)

- Psychiatric services
Community Health Services

- Nutrition services

- Counselling

- Immunisation
Dental services

- School dental clinics

- Adelaide dental hospital

- Private dental practices

- Hygienists
Specialist agencies

- Crippled Children's Association

- Hearing impaired programs (Townsend House)

- Vision impairment programs

- Speech and Language
Recreational services

- Sport and recreational services

- Parks and Gardens

- Beaches

- Playgroups

- Toy libraries

- Libraries
Non government agencies

- Church agencies - Anglicare, Central Mission, Centacare

- Relationships Australia

- COPE

- Counselling
Community

- Counselling

- Sports clubs

- Recreational events

- Family events

- Cultural events

Quality education and centres of care and learning, remain the most effective and successful way to construct the knowledge, skills, values and attitudes that are needed for full human development and participation in society.

No child in detention in South Australia or Australia should be denied access to a full and effective education. Young children who are exceptionally vulnerable must have access to programs that support their ongoing social, emotional, physical, linguistic and intellectual development.

All these care, education and support services and programs enrich the lives of children and families, minimise the obstacles to learning and maximise the potential of each child. For those children living in detention centres, who are already suffering from their life experiences, such services would support them to live far more enriched lives with both a sense and real optimism for their future.

3. Services and Programs available for young children in Woomera Detention Centre

"Play lacks the colour, clutter, and spontaneity one expects whenever children are carefree. Only occasionally are they reprimanded for making a noise. Detained children learn to play quietly on the barren ground at the Woomera centre."

Australia's Little Prisoners Barbara Gagalla, Australian Children's Rights News, Number 28, March 2001

The care and educational programs for children in the Woomera Detention Centre aged birth to 8 are extremely limited and in no way compare with those available for all other South Australian children.

Schooling for children aged 5 to 8

In 2001 the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) reported that children aged between 5 and 12 were attending school in the Woomera township for three hours per day four days per week. Prior to this schooling was far more limited and children did not go off site. Three or four age specific classes are run each half day. As at 11 February 2002 91 children in this age group were attending school.

The facility used by these children is a disused Catholic school and not the local SA government school and therefore the children are not being educated with the other Woomera children. Discussions have commenced with the local school regarding the attendance of the children from the detention centre at the school.

Programs are delivered by qualified teachers, employed by ACM, with the assistance of detainee teachers, who receive some training. None of these teachers are registered with the SA Teachers Registration Board.

Programs focus on English as a Second Language, with some mathematics, Australian studies, art and craft and organised indoor and outdoor play. The SACSA framework is not being utilised and the facility does not have equipment appropriate for this age group.

There are also fortnightly visits to the swimming pool (on Friday's) and on alternate fortnights, another activity is arranged.

Programs for children aged birth to 5

In 2001 DIMIA reported that:

a Family Centre for children and parents was available
Kindergym and Playgroup was operating for 1 to 4 year olds
"Kindy" was operating for 2 hours per week day

Within the main compound there is an allocated space for free play for restricted hours.

Religion

Many of the children are Sabian Mundaian and they have reported ongoing discrimination in the centre from non Sabian children. The continued exposure of children to the religious tensions that prompted their families to flee their home countries is an issue that has significant impact on these children and will impact on their short and long term educational opportunities and outcomes.

4 Mental Health

Children have not only been potentially traumatised by their experiences in their home country, on their journey to Australia, by the conditions with the detention centre but also by witnessing their parents and families distress and powerlessness to improve their conditions.

Parents of young children consistently report behaviour such as bed wetting, night terrors, crying, anxiety, confusion and withdrawn behaviour.

4. Recommendations

All policies and practices regarding children of asylum seekers should be based on the UNHCR principles

1. Best interests

In all actions concerning children, the human rights of the child, in particular his or her best interests are to be given primary consideration

2. Non-discrimination

Refugee children and children of asylum seekers are entitled to the same treatment and rights as other Australian children.

3. Family unity

Preserving and restoring family unity are of fundamental concern.

4. Family support

Actions to benefit refugee children and children of asylum seekers should be directed primarily at enabling their primary care-givers to fulfil their principal responsibility to meet their children's needs.

5. Family participation

Where the special needs of refugee children and children of asylum seekers can only be met effectively through child-focussed activities, these should be carried out with the full participation of their families and communities.

6. Separated children

Unaccompanied refugee children must be the particular focus of protection and care.

7. Cultural support

The provision of childcare, healthcare and education for refugee children and children of asylum seekers should reflect their linguistic and cultural needs.

8. Interpretation

Families should be provided with suitable interpreters who speak their preferred language whenever they are interviewed or require access to services.

9. Confidentiality

Care must be taken to maintain the confidentiality of information provided by children. There should be no disclosure of information that could endanger or compromise the child's family in Australia or their home country. Information must not be used inappropriately for purposes other than for that for which it is sought.

10. Staff training

Those working with refugee children should receive appropriate training on the needs of refugee children.

The perception of being imprisoned is an overriding factor in the minds of children interviewed within the Woomera facility. Whilst significantly greater access to relevant and varied education, activities, social opportunities, and the opportunity to engage in normal family life and activities are desperately needed, the perception of imprisonment and the yearning for freedom is a key issue for every child.

Since late 2001 alternative arrangements have been made available for some women and children that allows them to live in accommodation outside of the detention facility. An evaluation on this program is yet to be released.

"Children's needs must not be addressed in isolation. They are normally met most effectively within the context of family and community. Moreover a child's welfare is closely linked to the health and security of the primary caregiver, who is usually the mother. It is therefore necessary to strengthen the capacities of refugee families to meet their own needs and improve the participation and situation of refugee women, thereby contributing significantly to the welfare of their children……

AECA recommends that

Children are not kept in detention as a result of immigration policies.
Families with young children are housed in community settings……

If detention centres continue to be used as a strategy for managing asylum seekers while their claims for refugee status are assessed then these centres need to be located in major population centres. This will ensure access to the range of services that are needed by children and their families."

AECA Position Paper On Children Of Asylum Seekers And Children Of Refugees And Children In Detention in draft 2002

Children of asylum seekers should have access to the full range of services and programs provided by experts as do all other children. The International law expectation is for schooling to be of the same standard as is available in the host country, and that is clearly not occurring.

These children must have:

support services and provision to be made for social inclusion in the community. This process to include consultation with children and families in detention and the local community.
teachers who provide a learning climate/ environment where trust and respect is fostered. This would encompass respect for diversity in family, cultural and religious practices.
access to multi disciplinary teams (who have experience and training in working with traumatised people) to work with early childhood professionals.
programs delivered by staff with experience in teaching ESL and who are linguistically and culturally sensitive.
programs delivered by staff with relevant language, cultural and religious understanding . ie people on Temporary Protection Visas, refugees living in the community etc.
adequate physical resources and space for children to play.
the support and encouragement to maintain their home language.

AECA believes that these recommendations will go some way to enable all children and their families to have their safety and well being assured.

"By mixing freely with their peers in schools and receiving the expert assistance they require through counselling as well as intensive language and literacy courses, their chances of recovery and integration into Australian society are maximised. By attending public schools which have generations of experience in integrating new arrivals, they have the best chance of redressing the hostility they have faced."

For Their Sake, and Ours, Let Them Go Rob Durbridge Australian Educator Autumn 2002 No 33

CULTURE AND IDENTITY

The Coalition expresses grave concern at the devastating affects of detention on the cultural life of child asylum seekers. There have been few examples of cultural life surviving during detention beyond the most basic maintenance of language and some limited forms of religious observance.

The resultant loss of self esteem and confusion regarding cultural heritage deeply effects the child's emotional well being.

The Coalition has read and endorses the submission by Diversity Directions Inc in its entirety and on this topic in particular.

All interviews conducted by in preparation for this submission confirm there are no daily programmes in place in detention facilities to ensure the maintenance of language, literature, religion, arts and cultural traditions.

Due to the extremely limited opportunities, cultural, educational or otherwise, for children in Woomera the family unit is the sole provider for the maintenance of their cultural heritage.

This is of particular concern where the children are unaccompanied and there is no family to try and maintain the cultural traditions.

The ability to retain cultural identity once released into the community is severely challenged by the exigencies of life on a TPV. These are families under great stress. Many are depressed and anxious and are depleted emotionally and financially. There needs to be a cohesive, multisectorial approach to delivering support programmes to families and communities on TPVs. Support services must be visible and accessible to both children and their families. Delivery of services should not discriminate on the basis of TPV status.

The material in this part of the submission demonstrates in relation to each area of discussion that the UNHCR Guidelines on Protection and Care of Refugee Children are not complied with. Further and consistent with the UNHCR Guidelines the submission demonstrates that the best interests of child asylum seekers can not be met in detention. In addition to being deprived of their liberty children and their families are suffering grave deprivations. The best interests of children are nowhere in sight.

Part 3 - VIOLATIONS OF THE INTERNATION LAW FOR THE PROTECTION OF HUMAN RIGHTS

Introduction

The background papers issued by the Human Rights and Equal Opportunity Commission (HREOC) focus understandably on the relevant provisions of the UN Convention on the Rights of the Child. As the Commission notes other human rights standards also apply to children who are asylum seekers. The SA Coalition has decided to raise some of the other human rights concerns that arise out of the treatment of asylum seekers in Australia.

The basis of the modern law of Human Rights is the protection of and respect for the dignity of the human person. It is our view that the policies now in place for the detention and treatment of asylum seekers breach some of the fundamental tenets of human rights law and therefore undermine significantly the human dignity of asylum seekers. In particular we believe that the treatment of child asylum seekers violates norms prohibiting arbitrary detention and cruel and unusual punishment/treatment/ treatment.

Both arbitrary detention and cruel and unusual punishment/treatment/treatment are prohibited by the Universal Declaration on Human Rights as well as various human rights treaties ratified by Australia such as the Covenant on Civil and Political Rights, the Convention Against Torture and the Convention on the Rights of the Child. These rights have been reiterated in a series of instruments because they are intimately connected to the right to life and security of the human person. The right not to be subjected to cruel and unusual punishment/treatment/treatment may not be derogated from even in times of public emergency (Article 4, ICCPR).

Both of these rights have been given a wide interpretation by the human rights bodies of the United Nations as well as the European Court of Human Rights. Australia as an active participant in the development of the international law of human rights must be assumed to have knowledge of the interpretation given to these rights by expert bodies such as the Human Rights Committee, the Committee Against Torture and the Working Group on Arbitrary Detention. Australia has also been one of the countries that has made frequent reference to international human rights norms in its submissions to the UN Commission on Human Rights. As part of its foreign policy it has consistently supported and promoted the concept of the universality of human rights. It must therefore accept that it is bound to apply the relevant norms to its domestic policies.

As will be demonstrated below there has been a consistent pattern of violations of the rights of children in asylum detention. The existence of wide scale and systematic violations of the rights of children in asylum detention makes the conduct of the government even more egregious. Policies that are so antithetical to the preservation of human dignity cannot be justified on any basis.

Arbitrary Detention

The right to liberty and security of the human person is a fundamental human right. Its corollary is the protection against arbitrary detention. This protection applies to all persons, whether held in connection with criminal charges or detained for purposes of immigration control. [1] As noted by the Commission in its background papers, international treaties such as the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights make a distinction between adults and juveniles. The detention of juveniles is only to be used as a measure of last resort and is to be for the shortest appropriate time. [2] The relevant international treaties in this area reflect what is for the most part national practice. The majority of countries recognise that detention has a potentially negative impact on those who experience it and that this can offset the potential for rehabilitation. Because of their age and level of maturity greater emphasis is to be given to the long-term welfare of the juvenile than to retribution or deterrence. Later in this submission we discuss further the harshness of the detention regime and comment on the issue of proportionality.

The Concept of Arbitrariness

Detention may be arbitrary even if it is sanctioned by the laws pertaining in a particular country. Various international bodies have endeavoured to define the limits beyond which a detention, whether administrative or judicial, would become arbitrary. The Human Rights Committee has observed that the term 'arbitrary' in Article 9(1) of the ICCPR is not only to be equated with detention which is 'against the law,' but is to be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. [3] In A (name deleted) v Australia [4] the Committee used these criteria to reach its determination that Australia's policy of mandatory detention as it applied to A was in breach of its obligations under paragraphs 1 and 4 of Article 9 of the ICCPR. [5] The Committee observed that a court should be able to order the release of an asylum seeker if that persons detention was incompatible with the provisions of the ICCPR, including Article 9(1). [6] Further it would not be sufficient for the court to review only the domestic lawfulness of the detention. It would have to utilise the jurisprudence developed by the Human Rights Committee in making its determination.

Further the Committee noted that Article 9 required the reviewing body to individually assess the case of each asylum seeker. A state seeking to detain someone had to provide appropriate justification for the continuing detention. A detention which was initially lawful because of the circumstances of the asylum seeker's arrival would not continue to be lawful if the detention exceeded the period necessary to check the identity and security status of the particular individual.

Many of the delays experienced by asylum seekers in the processing of their visa applications are not due to their individual circumstances. Rather they are the result of policy decisions to go slow on the processing of claims for asylum by Afghani refugees or the refusal to allocate sufficient resources to process other claims expeditiously. Some of the unaccompanied minors have waited for unduly long periods of time to have their claims heard. One brother and sister in South Australia have not had an assessment made of their status despite their arrival in Australia more than 8 months ago. They were detained in Woomera for over 6 months. Although they are now in the community they remain under detention and can be returned to Woomera at any time. The Refugee Tribunal has not acknowledged their claim for refugee status.

Refugee Law and Detention

The Executive Committee of the Programme of the United Nations High Commissioner for Refugees on the detention of asylum seekers has stated that the detention of asylum seekers may be considered necessary if it is to either verify the identity of the asylum seeker or to determine the elements on which the claim to asylum is based. [7] "This exception to the general principle [that asylum seekers should not be detained] cannot be used to justify detention for the entire status determination procedure, or for an unlimited period of time." [8]

Detention of asylum seekers is allowable when "refugees or asylum seekers have destroyed their travel and/or identification documents … in order to mislead the authorities [emphasis added] of the State in which they intend to claim asylum." [9] This exception to the presumption against detention does not extend to situations where the asylum seeker has been unable to obtain documentation. [10] The protection of national security or public order may also be used by a country to justify a limited period of detention. [11]

The Australian government has repeatedly made claims that some of the asylum seekers may pose a threat to national security. However these claims have not been tested as the basis for the government's assertions have not been made public to any substantial degree. The information that has been placed in the public arena suggests that the assertion of national security interests is based on the characterisation of an entire group as posing a security threat. This indicates that there is a form of discrimination at work, based on either or both the ethnicity of the asylum seekers or their religion. Of questionable validity is the underlying assumption that those who arrive by boat are more of a national security threat than those who arrive by plane on other visa categories and then claim asylum.

In its review of Australia's mandatory detention policy HREOC took note of the UNHCR advice that "the detention of asylum seekers should not be automatic or unduly prolonged. … The detention of a person for the entire duration of a prolonged asylum procedure is not justified." [12] This principle applies to this inquiry as well. The UNHCR has reiterated its view that the routine and prolonged detention of asylum seekers is not justified under refugee law. At is forty-ninth session in 1998 the Executive Committee issued a document entitled Conclusion on International Protection [13] in which it deplored the fact that many countries continued "routinely to detain asylum-seekers (including minors) on an arbitrary basis, for unduly prolonged periods, … [and denied] fair procedures for timely review of their detention status." The Executive Committee also stated "that such detention practices are inconsistent with established human rights standards and urge[d] States to explore more actively all feasible alternatives to detention; … ." [14]

Deterrence as an Impermissible Objective

The policy of mandatory detention is also unjust as it is being used to deter other asylum seekers rather than being a direct response to the behaviour of the individual asylum seeker. There is an element of group punishment in the use of a mandatory detention regime that makes no distinction in treatment in accordance with the level of threat an individual poses or the probability of an individual absconding. The views of the UNHCR on this issue are instructive: "Detention of asylum-seekers which is applied for purposes other than [security, health or identity checks], for example, as part of a policy to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law." [15]

The use of deterrence as a significant objective in asylum seeker policy also contravenes Australia's domestic law. In Veen v The Queen (No. 2) [16], the High Court held that the sentencing objective of deterring recidivism does not justify a sentence disproportionate to the offence. Although the case dealt with someone who was charged with a criminal offence the principles utilised by the Court would apply even more strongly in the case of asylum seekers. It would seem to be an essential requirement of natural justice that those the government accuses of being 'illegal' entrants despite their claims for asylum should not be treated less favourably under the law than those accused of having committed serious breaches of our criminal law.

Lack of Predictability

Asylum seekers are told that there are administrative mechanisms for the review of their situation, but are given little information about the operation of that system. Further they are not routinely informed of the progress of their cases. The lack of transparency in the purpose of detention and the criteria on which individuals will be granted protection visas makes asylum detention both unjust and unpredictable.

Views of the Working Group on Arbitrary Detention

In 1997 the Working Group on Arbitrary Detention of the UN Commission on Human Rights was asked by the Commission to consider the practice of administrative custody of immigrant and asylum-seekers. During the course of its work it adopted a set of "guarantees concerning persons held in custody" to enable it to assess the alleged arbitrariness of the various forms of administrative detention that exist in different parts of the world. Those guarantees include the following:

"Principle 3: Any asylum-seeker or immigrant placed in custody must be brought promptly before a judicial or other authority.

Principle 7: A maximum period should be set by law and the custody may in no case be unlimited or of excessive length.

Principle 8: Notification of the custodial measure must be given in writing, in a language understood by the asylum-seeker or immigrant, stating the grounds for the measure; it shall set out the conditions under which the asylum-seeker or immigrant must be able to apply for a remedy to a judicial authority, which shall decide promptly on the lawfulness of the measure and, where appropriate, order the release of the person concerned."

Australia's policy of mandatory detention does not comply with these principles. There is no review by a truly independent authority and asylum seekers are not given any meaningful information about the status of their claims and the grounds on which their detention may be challenged. Asylum detention is not of fixed length and the evidence before HREOC clearly indicates it is excessive in length. Further there have been persistent complaints that asylum seekers are not informed of their rights under Australian law.

Connected to this is the difficulty asylum seekers have in obtaining legal advice because of the remote location of the majority of detention centres. It is important to recall that children and juveniles may not be in a position to exercise their rights except through their parents or guardians. Further unaccompanied minors may be in a particularly disadvantageous position with respect to the exercise of their rights. The Commission should consider recommending the appointment of guardians in a geographically proximate area for unaccompanied minors who can assist them with the exercise of their legal and human rights.

Detention as a Measure of Last Resort

The concluding observations of the Human Rights Committee adopted in July 2000 after its consideration of Australia's third and fourth periodic reports is relevant to this inquiry. The Committee stated:

"[It] considers that the mandatory detention under the migration Act of 'unlawful non-citizens', including asylum seekers, raises questions of compliance with article 9, paragraph 1, of the Covenant, which provides that no persons shall be subjected to arbitrary detention. The committee is concerned at the State party's policy, in this context of mandatory detention of not informing the detainees of their right to seek legal advice and of not allowing access of non-government human rights organisations to the detainees in order to inform them of this right.

The Committee urges the State party to reconsider its policy of mandatory detention of 'unlawful non-citizens' with a view to instituting alternative mechanisms of maintaining an orderly immigration process. The committee recommends that the State party inform all detainees of their legal rights, including their right to seek legal counsel." [18]

With respect to the principle that children and juveniles be detained only as a measure of last resort, regard should be had to whether or not there is a viable alternative method of detention. There are a range of facilities around Australia located in or near metropolitan areas no longer used by the Australian Defence forces. For example, in Adelaide there is an area known as the Hampstead barracks. This was used to house the Kosovar refugees. This allowed the refugees to mingle in the general community and also made the detention facility accessible to the general public. Many South Australians donated generously of their time with respect to the provision of English language classes and arranging leisure and sporting activities. At the moment we house asylum seekers in remote locations away from the general population. As the majority of these asylum seekers will be found to be genuine refugees it is important that they begin to have contact with the Australian community as early as possible.

By moving the asylum seekers to these facilities it would be possible to allow them the ability to come and go during the day time. A number of countries, including New Zealand, adopt this policy of having designated facilities but allow freedom of movement until a fixed curfew, usually 10 pm. The UNHCR does not consider restrictions on domicile and residency as a form of detention. [19]

The UNHCR has indicated that where there are "monitoring mechanisms which can be employed as viable alternative to detention … these should be applied first unless there is evidence to suggest that such an alternative will not be effective in the individual case." [20] Those children and young people who arrive in Australia seeking the protection of the refugee Convention have been traumatised by both events in their countries of origin and well as the voyage to Australia. Detaining traumatised children for an indefinite period of time is 'inappropriate' in the sense that the Human Rights Committee uses that term.

Proportionality

Detention is inappropriate when its duration is unconnected to the seriousness of the behaviour that led to an order of incarceration. The mandatory detention of asylum seekers for prolonged periods is also disproportionate to the behaviour that is alleged to make them 'illegal entrants.' "The principle of proportionality is now firmly established in [Australia]. It was the unanimous view of the Court in Veen [No 1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender…." [21] The detention of children and their families for unduly long periods of time must be viewed as disproportionate to the act of coming ashore in Australia for the purpose of escaping persecution and discrimination in the their countries of origin.

Implementation of the principles of proportionality is also an international obligation freely undertaken by Australia. As noted by HREOC "The jurisprudence of the Human Rights Committee indicates that, to avoid the taint of arbitrariness, detention must be a proportionate means to achieve a legitimate aim, having regard to whether there are alternative means available which are less restrictive of rights." [22] The evidence before HREOC with respect to practices in other countries such as New Zealand indicates that there are less restrictive alternatives available to the Australian government that would be less restrictive of rights.

Although beyond the scope of this submission it is also probable that the Migration Review Act which limits the ability of Australian courts to scrutinise the detention of asylum seekers in line with fundamental principles of natural justice such as the inappropriate use of deterrence and lack of proportionality in sentencing breaches the provisions of the ICCPR that require countries to create and support an independent and impartial judiciary.

Harshness of Detention Regime

As demonstrated in Part I of this Submission, asylum detention has serious consequences for the mental health, emotional and intellectual development of children and young people. When reviewing the policy of mandatory detention HREOC should as a matter of priority focus on the long-term effect of this policy on children and young people. The harshness of the mandatory detention regime should be contrasted to the normal routine available to juveniles who have been found guilty of serious offences and placed in detention facilities. Below is the usual schedule for those detained at Cavan, one of South Australia's secure facilities for juveniles:

Cavan routine

Weekday

7.30am - Wake up call by intercom, door unlocked, shower.

8.00am - Seated for breakfast

8.30am - Unit chores

8.45am - Line up for school. Various classes. With Centre approval outside work, TAFE and outside programs are available.

10.30am - Back to unit for break - tea/coffee.

11.00am - Back to school.

12.30pm - Unit for lunch, then lunch chores.

1.15pm - Back to school.

3.15pm - School finishes, back to unit (for downtime).

Downtime

Unit activities - TV, music, computer, table tennis, gym, pool, oval, tennis.

Tea followed by phone calls and visits (general, visits outside of hours can be organised with the Centre).

Weekend

Big unit clean-up and chores.

Videos, sport, pool, visits, BBQ for tea on Saturday night.

The schedule of activities at facilities such as Cavan is more conducive to the long-term development of the child. It takes account of the child's need for education as well as rest, leisure and recreational activities. It also allows young people to have ongoing connections to the community. The location of facilities in areas where it would be possible for asylum seekers to have a meaningful interaction with a cross section of the Australian community should be a priority for the Commission when making its final recommendations. Also the connection between the child's mental health and that of the child's parents should not be overlooked. It will be impossible to ameliorate significantly the detrimental impact of detention on children unless the emotional and psychological status of their parents is improved.

Detention as a Form of Cruel and unusual punishment/treatment/Treatment

A serious question for the Commission is whether or not the maintenance of facilities such as Woomera is a form of cruel and unusual punishment/treatment. Although there have been recent efforts to improve the physical layout of Woomera, the Commission should take account of the effect sensory deprivation would have had and may have in future on detainees. The physical environment at Woomera until February 2002 was unacceptable by modern standards of decency. Everywhere one looked there was a lack of visual stimulation. The only colours one could see when standing in the compound were white, silver and beige (dust).

Sensory Deprivation or Reduced Environmental Stimulation (RES) Syndrome occurs when " … human beings are subjected to social isolation and reduced environmental stimulation. [Those suffering from the syndrome] may deteriorate mentally and in some cases develop psychiatric disturbances." [23] RES can begin to appear within a number of days or even hours. [24] Some of the symptoms manifested by people suffering from RES are:

Perception distortions;

Derealization experiences;

Hyper-responsitivity to external stimuli;

Cognitive impairment;

Massive free floating anxiety;

Emotional disturbances;

Disturbances in comprehension and ability to think;

Infantile regressive changes in the mode of life;

Difficulty in making social contacts. [25]

One observer of prisoners subjected to sensory deprivation stated that they 'had become lethargic, hopeless and depressed due to the conditions of their confinement." [26] This statement is eerily similar to the description that many psychologists and lawyers give of the Woomera detainees. This also correlates with the findings of the previous HREOC inquiry in which it found evidence of mental distress including symptoms of depression, boredom, sleeplessness, psychotic episodes, self harm and suicide attempts. [27] The Commission then observed that there was also an increase in the incidence of violence within families and between detainees and guards. There is little doubt that many of these symptoms are related to the lack of sensory stimulation experienced by the asylum seekers.

Also relevant to this issue is the psychological make-up of the individual. Those who are already traumatised are more susceptible to RES syndrome. [28] Children and young people detained in facilities such as Woomera are a particularly vulnerable group. They may have witnessed the torture or death of a parent, been forced to leave their country of origin with few possessions, endured a hazardous voyage, been subjected to extremely unsanitary conditions on their voyage and witnessed their parents being humiliated by guards in the detention facility. Some children may not themselves experience RES syndrome, but may have to watch the effects of this syndrome on other members of their family.

It should be noted that most of the studies done on RES syndrome have concerned prisoners in solitary confinement, but the literature suggest that it also occurs in those who have been confined in groups. [29] It appears to be the case that the symptoms are to be expected in those who are confined for significant lengths of time. One of the difficulties in this area is the lack of research on the peculiar effects of this type of administrative detention. As noted above the conditions being experienced by children and juveniles is harsher than that for juveniles who have infringed the penal law. It would also be the case that the conditions of detention are worse than those in adult detention facilities, where again there is access to a significant number of training and educational programs as well as a greater range of sporting and leisure activities. There has not been a sufficient amount of time for researchers to begin studying the effects of this form of incarceration. It cannot be assumed that such research will take place, as funding must be sought and the government must give access to the detention facilities. The Commission may want to recommend that such research be undertaken as a matter of priority.

The indeterminacy of the detention regime would exacerbate the symptoms being experienced by asylum seekers. The lack of fixed time limits, the failure to be informed of the progress of their cases and the uncertainty as to outcomes for family members who may have lodged separate claims (such as adult brothers and sisters) all add to the levels of stress being experienced by asylum seekers and these factors would aggravate symptoms of RES syndrome.

A detention regime that brings about RES syndrome or similar psychological disturbances violates Australia's obligation not to subject people to cruel and unusual punishment/treatment. Such punishment is prohibited by the Universal Declaration on Human Rights (Article 5), the Covenant on Civil and Political Rights (Articles 7 and 10), the Convention Against Torture and the Convention on the Rights of the Child. Treatment of this type also violates Australia's obligation to observe the UN Standard Minimum Rules for the Treatment of Prisoners, the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

Principle 6 of the Body of Principles for the Protection of All Persons Under Any Form of Detention includes a statement to the effect that the prohibition against cruel and unusual punishment/treatment should be interpreted so as to give the widest possible protection against abuse and that conditions of detention should not deprive a prisoner of his or her natural senses such as sight.

Even if the Commission were to find that the conditions of detention at facilities such as Woomera did not cause RES syndrome it is still the case that bringing about the severe mental suffering of a detainee is a form of cruel and unusual punishment/treatment or treatment. In Soering v United Kingdom [30] the European Commission on Human Rights stated that inhumane treatment encompasses deliberately causing severe suffering whether mental or physical. Treatment will be considered to be degrading if it grossly humiliates a prisoner before others or drives the prisoner to act against his or her own will or conscience. Given the length of time the conditions of detention in Woomera have been known to cause great psychological suffering among the detainees it could be argued that the continued confinement of asylum seekers in such conditions is a deliberate infliction of mental suffering.

In determining whether or not a particular form of treatment will be found to be cruel and unusual the Commission noted that a number of factors had to be taken into account. They included: "the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical and mental effects and, in some instances, the sex, the age and the state of health of the victim." HREOC should examine the effect of the detention regime in light of these criteria, particularly the relationship between the harshness of the regime and the age and health of child asylum seekers.

There is no need to establish intent when determining whether or not a particular form of treatment is cruel and unusual. In Soering the Commission determined that with respect to the particular facts of that case the extradition of Mr Soering would expose him to cruel and unusual treatment but there was no suggestion that it was the intent of the United Kingdom government to expose him to such treatment. The Court emphasised that each case had to be judged by the totality of conditions test and that even if a specific treatment was not itself a per se violation of the prohibition against cruel and unusual punishment/treatment or treatment, the underlying adverse psychological effect could, in itself, be a violation.

Given the evidence available to HREOC in this Submission as well as others it has received there can be little doubt that the detention environment at Woomera is causing severe and potentially permanent psychological harm to children and their families. This must lead HREOC to conclude that the prolonged detention of asylum seekers, particularly children and young people, should cease.

BIBLIOGRAPHY

Interviews with families from Afghanistan and Iraq.

Interview with community nurse.

UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (Feb/1999).

Media Release - The Hon Stephanie Key.

UNHCR Policy on Refugee Children - Executive Committee Report.

UN Resolution 56/136 - Assistance to unaccompanied refugee minors.

Report of the UN HC for Refugees, questions relating to refugees, returnees and displaced persons and humanitarian questions. Report of the 3rd Committee (Dec/2001).

Trends in Unaccompanied and Separated Children Seeking Asylum in Europe, 2000.

UNHCR Refugee Children: Guidelines on Protection and Care.

1. Human Rights Committee General Comment 8, para 1.

2. Article 37 (b) of the Convention on the Rights of the Child; Rule 1 of the UN Rules of the Protection of Juveniles Deprived of their Liberty; Rule 19 of the Beijing Rules and Article 46 of the Riyadh Guidelines.

3. Albert Womah Mukong v. Cameroon (458/1991), 21 July 1994, UN Doc. CCPR/C/51/D/458/1991, p/12.

4. Communication No. 560/1993, Human Rights Committee, 59th session, 24 March -- 11 April 1997, UN Doc CCPR/C/59/D/560/1993 dated 30 April 1997

5. Nick Poynder, A (name deleted) v Australia: A milestone for asylum seekers, in the Australian Journal of Human Rights.

6. A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997).

7. Executive Committee of the United Nations High Commissioner for Refugees, Conclusion No. 44 (1986), paragraph (b).

8. United Nations High Commissioner for Refugees, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, Guideline 3, February 1999.

9. Conclusion No 44, (1986), above n 7.

10. Guideline 3, above n 8.

11. Conclusion No. 44, above n 7.

12. Human Rights and Equal Opportunity Commission, Those who've come across the seas: Detention of unauthorised arrivals, 1998, p 47.

13. A/AC/96/911m)

14. Id. at para. 21.

15. Guideline 3, above n 8. This issue was also discussed by HREOC in its inquiry into Australia's mandatory detention policy. Human Rights and Equal Opportunity Commission, Those who've come across the seas: Detention of unauthorised arrivals, 1998, p 46.

16. (1988) 164 CLR 465.

17. This term is defined by the Working Group as follows: "The term 'a judicial or other authority' means a judicial or other authority which is duly empowered by law and has a status and length of mandate affording sufficient guarantees of competence, impartiality and independence." Report of the Working Group on Arbitrary Detention - E/CN.4/2000/4, Annex II: Deliberation No. 5.

18. CCPR/CO/69/AUS, para 19.

19. See commentary to Guideline 1, above n 8.

20. Guideline 3, above n 8.

21. Veen v The Queen [No 2] above note 16, at 472 per Mason CJ, Brennan, Dawson and Toohey JJ.

22. Human Rights and Equal Opportunity Commission, above note 15, p 47.

23. Miller, N.D. 1995, p.162.

24. Romano, S.M. 1996, p.1115.

25. See Romano id at 1110 and Miller, above note 23 at p. 165.

26. Miller, id.

27. Human Rights and Equal Opportunity Commission, 1998, at www.hreoc.gove.au/human_rights/aslyum/inex.html and HREOC, 1999, at www.hreoc.gov.au/human_rights/asylum/inex.html.

28. Romano, above n 24 at 1115.

29. Miller above n 23 at 165.

30. 11 Eur H.R. Rep

31. Newman, F., and Weissbrot, D., 1996, p.161.

Last Updated 9 January 2003.

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