National Inquiry into Children in Immigration Detention
Transcript of Hearing - SYDNEYWednesday 4 December 2002
Please note: This is an edited transcript.
Commissioners:
- Dr S. OZDOWSKI, Commissioner
- Dr T. THOMAS, Assistant Commissioner
- Ms P. MOORE, Executive Officer
DR OZDOWSKI: I declare the Wednesday session of the public hearings for DIMIA and ACM being a part of the National Inquiry into Children in Immigration Detention open. Could I ask Counsel Assisting to finalise the issues which were not finished yesterday and attend to the issue of education.
MR WIGNEY: Yes, just to let everyone know where we're going today. We'll finish off dealing with the topic of unaccompanied minors and I just want to briefly recap one aspect of that and then move on to the other point that we wish to explore in relation to it and that relates largely to bridging visas. Then I'll move on to education and I think I should indicate that what is proposed at the moment is to call some - an ACM witness first and ask some questions in relation to education then and then we'll move on to the topic of disabilities later this afternoon. Now, just dealing, again, with the issue of unaccompanied minors, now I was directing questions to Ms Godwin yesterday afternoon who, understandably, is not here today. Should I direct the questions to Ms McPaul or ---
MS McPAUL: Well, in the first instance, if I can't answer it we'll work out ---
MR WIGNEY: We'll work it out, of course. If I could just perhaps recap, in a slightly summary form, what I rather bumbled through yesterday afternoon in relation to the role of the guardian, that is the Minister and his delegates, in both the screening process and the refugee status determination process. If I can perhaps just do it in this summary way and suggest what we understand to be the position as to what the guardian or his delegates do not do in that process in the ordinary course. Firstly, the guardian or his delegate - that is the Minister or his delegate, in the most cases, the DIMIA Manager or the Deputy Manager, do not, as we understand it, provide any advice or assistance during the period of separation detention or the screening process in relation to possible protection visa claims.
MR WALKER: Probably, the best way of describing it is as Ms Godwin mentioned yesterday. The interview when people first arrive is a basic information gathering process of name, place of origin, how they came to be in Australia, and any reasons why they are unable to return. It's fairly basic so it isn't actually a refugee claim process per se. That comes later, after the formal lodging of a protection visa application and, in that process, they are provided with - or invited to take up the offer of assistance from a - an advice provider in that context.
MR WIGNEY: I understand that but the point is that, during that screening process where, you would agree, one can either be screened in or screened out, that is raise, prima facie, a claim which may attract Australia's protection obligations, or screened out, that is not raise such a claim - during that screening process, there is no person in the position of the guardian, assisting or advising the accompanied minor. That's right, isn't it?
MR WALKER: No.
MR WIGNEY: Do you agree with that?
MR WALKER: That's correct.
MR WIGNEY: And I think also was the position agreed yesterday that, in the ordinary course, there's not even usually some neutral person or neutral adult to assist the minor in that process. There's no certainly no policy suggesting that that ought to be the position.
MS McPAUL: As I understand it, Ms Godwin indicated yesterday that, for some children - I think she used the words "of tender age" - there would be the possibility for another person to be present when that child was being interviewed by any of the officers at that early stage, as well as later on.
MR WIGNEY: Well, that may occur in some cases but there's no policy or directive or instruction to the effect that that ought occur in all cases.
MS McPAUL: I think that's correct.
DR OZDOWSKI: Counsel, could I ask just one question?
MR WIGNEY: Of course.
DR OZDOWSKI: What are the implications of being screened out? What is the difference between being screened in and being screened out?
MR WALKER: The difference is, basically, that the person is making no claims for protection in Australia. Therefore they can be returned.
DR OZDOWSKI: So if somebody in this first interview, if I understand correctly, doesn't make a claim for asylum in Australia the person can be returned straight away?
MR WALKER: If they don't say anything that appears to relate to difficulties of why they can't go back - for example, if you're asked, "Why have you come to Australia and are there any reasons why you cannot return from the country where you came," and the answer was a simple no, then, yes, they would be removed. If they give circumstances saying that they have difficulties with particular individuals or fear harm and so forth, then they would be screened in. There is no assessment actually made of the veracity of those claims, purely and simply that there is something there that needs to be examined further.
DR OZDOWSKI: If they were screened out and they are awaiting removal from Australia, would they be kept in separation detention for that time?
MS McPAUL: That's my understanding.
DR OZDOWSKI: Yes, they will? Now, okay. The people who use the right description of their situation and who are screened in, what happens to them next?
MR WALKER: The next step in the process is that they are offered advice from an IAAAS provider to prepare a protection visa application.
DR OZDOWSKI: So that advice is not available to people who were screened out?
MR WALKER: No, the offer isn't made to those people. However, there have been instances where those individuals have subsequently, through communications with staff in the Centre, elaborated on their earlier interviews and, in those circumstances, if they have raised something that expresses a concern, then they have been offered assistance of an IAAAS provider and subsequently made visa applications.
DR OZDOWSKI: So it appears to me quite a matter of flexibility in the process that, even if you are screened out and if you talk to a guard or talk to a DIMIA officer, you may be, again, given access to ---
MR WALKER: Generally, it's communication to the DIMIA Manager or DIMIA staff at the Centre but ---
DR OZDOWSKI: And you would be given a consultant's advice on how to make an application and so on?
MR WALKER: If there's something there that the person has subsequently said, that they have grave concerns for returning to their place of origin, the offer would be made ---
DR OZDOWSKI: From ---
MR WALKER: --- for assistance and it's then a matter between the individual and the assistance provider of how that application is framed.
DR OZDOWSKI: From my understanding, from talking to detainees, I was told that if somebody is screened out, there is no ability to access government support. However, the person may employ a private lawyer or voluntary lawyer.
MR WALKER: Any of the detainees can employ a private lawyer or obtain advice assistance elsewhere. They are not compelled to use the IAAAS provider. However, if they chose not to use an IAAAS provider, that's at their own expense or with their own arrangements.
DR OZDOWSKI: So you are saying that, even in some circumstances for people who are screened out, there could be an IAAAS provider provided at the government expense?
MR WALKER: If they were initially screened out but if it's subsequently brought to our notice that somebody who is initially screened out did have claims and concerns about their return to their country of origin, yes, they would effectively then be screened in.
DR OZDOWSKI: Would you be able to indicate the proportion of people who are screened out, or a number, and later provided that IAAAS adviser?
MR WALKER: I'd have to take that one on notice, Commissioner. I don't have that information with me.
DR OZDOWSKI: Okay. Thank you very much.
MR WIGNEY: Just summarising, if I can, the position in relation to the refugee status determination process, and you've just touched on that in discussion with the Commissioner, but the position really is, isn't it, that there is no one performing the active role as a guardian - that is, either the guardian or his delegate, the Deputy Manager, or Manager of the facility - there's no one performing roles as a guardian in that refugee status determination process. That is, guiding or assisting or even just supporting a minor through that process.
MR WALKER: There isn't - the centre Managers and Deputy Managers, to my understanding, don't participate in the determination process. The way that the guardianship responsibilities are discharged is through the provision of the independent advice provider. As I think I said yesterday, there is probably a limit on what a parent would be able to do for a child making refugee claims as well, given their limited knowledge, if any knowledge, of the protection visa process and our statutory framework and decision making processes.
MR WIGNEY: Well, just to pick up your point there, isn't it the situation, and I'm afraid we'll just have to talk in generalities, but in the case of a child with a parent, the parent, as the legal guardian, is able to give instructions and make decisions on behalf of the child; for example, give the IAAAS lawyer instructions. Now, that can't occur in the situation of an unaccompanied minor because they have no one to provide that function.
MR WALKER: That's true to an extent, but what instructions would they give? For example, in some cases a parent could give instructions to their child to rely on their claims, and the - a child of 15 or 16 may well have their individual claims that they could put forward. So in that sense it could disadvantage a person.
MR WIGNEY: You see, lawyers act on instructions. They don't make decisions for clients. They act on instructions. There is no one assisting a minor to give instructions to their lawyer during this process, is there?
MR WALKER: Well, I think I just really have to come back to the point that these issues have in fact been raised in the case before the Federal Court where the Federal Court judge did not find that there was any issue of failure to discharge the guardianship responsibilities by use of the IAAAS provider.
MR WIGNEY: Perhaps if we just extend beyond, I suppose, the primary decision point in the refugee status determination period, there then of course is the availability of review proceedings and indeed ultimately judicial review proceedings. The situation is, isn't it, that there is no one performing an effective role or exercising effective powers as a guardian in respect of unaccompanied minors during that process? That is, making decisions as to whether there ought be a review, making decisions as to whether there ought be judicial review or assisting a minor in that process.
MR WALKER: Well, as I come back to the Federal Court case, and I think there may well have been a couple of others if they haven't been heard or finally determined, that indicate that minors are being assisted and are being provided with advice.
MR WIGNEY: Ms Godwin referred to a Full Court decision yesterday. There's reference in I think the DIMIA submissions to a decision by French J in X v The Minister. Is that the decision you're referring to or are you referring to something else? Jaffari. I think it's also referred to as X. In any event, we --- ?
MR WALKER: Odhiambo. Full Federal Court decision, according to the note here, of 20 June 2002.
MR WIGNEY: Well, in any event we can examine that decision. There's little point in exploring that any further.
MS GREAVES: The IAAAS provider has provided for the merits review stage as well, so ---
MR WIGNEY: Yes, but again, the lawyer can't make decisions. It's not the lawyer who decides whether the child ought seek review or ---
MS GREAVES: But he can provide advice and does provide advice.
MR WIGNEY: He can provide advice, but he can't make a decision. There's no guardian or person in a position of a guardian to make decisions on behalf of a minor or to assist a minor to make such decisions.
MS GREAVES: Well, as the Court says, they think we - our guardianship responsibilities - the Minister's guardianship responsibilities are satisfactorily met.
MR WIGNEY: What about, without labouring the point, the position is the same in relation to making decisions in relation to bridging visa applications. That's right, isn't it? It's really the same point?
MR WALKER: I think there's still a threshold issue of whether or not they are in fact eligible to make the application. As I said I think a couple of times yesterday and possibly the day before, one of the threshold issues is that they have to be an eligible non-citizen, and there are a series of factors that have to be satisfied. That doesn't require the individual, be they an adult or a child, to pro-actively seek to meet those conditions. They are in fact matters that we operate in a pro-active sense in many respects to go through that process and reach levels of satisfaction.
MR WIGNEY: Well that really is the issue of substance that I want to come to in a moment in relation to who, if anyone, does take a pro-active stance in relation to bridging visas, so I'll just come back to that in a moment, but I think just to summarise the position that we arrived at yesterday afternoon, it was agreed by the Department, I think, that neither the Minister nor his delegates at this stage have qualifications or training in the care of children or the expertise in the guardianship of children as recommended in, amongst other places, the UNHCR guidelines. That's right, isn't it?
MS McPAUL: Sorry, we were slightly distracted, but ---
MR WALKER: I think we certainly stand by and don't contradict anything that Ms Godwin and our colleagues here said yesterday in relation to that, but, no, our staff aren't teachers, aren't doctors, aren't nurses, but they are experienced officers of the Department.
MR WIGNEY: Okay. Well, if I can just now pick up on Mr Walker's point about eligibility criteria for bridging visas, and we've touched on this in other contexts, but I think as Mr Walker pointed out yesterday, in terms of the eligibility criteria in sub-regulation 7 of Regulation 2.20, that is more specifically applicable to the case of unaccompanied minors because I think as Mr Walker pointed out yesterday, such eligibility criteria can't apply to the family or parents of a child because they're over 18. And so I want to focus now on that particular sub-regulation. But perhaps the most direct way to deal with it is to examine what I understand to be the position at least since September of this year when MSI, Migration Series Instruction 357 was issued. Have you got a copy of that before you?
MS GREAVES: No, I was just trying to get one, in fact.
MR WIGNEY: Perhaps I'll give you a moment to turn it up. Mr Walker has recharged his batteries, it seems.
MR WALKER: Recharged batteries. I can also confirm that MSI 234 is still current and I think it was paragraph 1.3 that you quoted yesterday is as you quoted it.
MR WIGNEY: Thank you. I think - I'm reminded that I think you were given hard copies of the MSI yesterday in ---
MS GREAVES: It's all right. I've got it with me.
MR WIGNEY: Yes. Now, as I understand the position now, the relevant paragraph - and this is an instruction that deals specifically to unaccompanied minors. That's right, isn't it? Procedures for unaccompanied wards in immigration detention facilities?
MS GREAVES: That's correct.
MR WIGNEY: And as I understand the position to be, there was no equivalent instruction prior to this instruction which was issued on 2 September this year; right?
MS GREAVES: That's correct.
MR WIGNEY: Now, I just wanted to take you to paragraph 13.4.3 and you'll see that the relevant subheading at 13.3 is Periodic Assessment of Unaccompanied Wards Eligibility for a Bridging Visa. 13.4.3 provides:
Where an unaccompanied ward satisfies regulation 2.20(7)(a) and (b) and has made an application for a protection visa, the DIMIA Manager or Deputy Manager must initiate contact with the relevant State/Territory child welfare authority to have the child assessed under regulation 2.20(7)(d).
Now, in general terms, the regulation 2.20.7(a) and (b), in general terms, apply where a person has applied for a protection visa, or is at a various stage in that process; is that right?
MR WALKER: That is correct.
MR WIGNEY: Right.
MR WALKER: It is rather convoluted, but it deals with dates and that is the general
MR WIGNEY: Yes. So if the effect of this instruction in the MSI 357 is that if an unaccompanied ward makes an application for a protection visa, that imposes, as we understand it, immediately an obligation on the DIMIA Manager or Deputy Manager to contact a relevant state or territory child welfare authority to have the child assessed as to whether he or she - well, as to whether release from detention is in the best interests of that minor; is that right?
MS GREAVES: That is correct.
MR WIGNEY: Now, that came into being in September this year, and what I want to explore with you is what the position was prior to the issue of that instruction in September this year; you understand?
MS GREAVES: Yes, I do understand.
MR WIGNEY: Now, I suppose to try and put it as directly as possible, I will put it in these terms; the Commission has neither seen nor heard any evidence or seen any documents that have been produced to it which suggests that DIMIA Managers or Deputy Managers acted in this way - that is, approaching state or welfare authorities to have a child assessed in relation to paragraph (d) of that sub-regulation - when they made protection visa applications in detention facilities?
MS GREAVES: Yes, that is probably correct.
MR WIGNEY: So in the past, if a child made a protection visa application, or raised protection obligations, nothing would be done directly to engage a state welfare authority to advise the Department as to whether it was in the best interests or otherwise that that child remain in detention.
MS GREAVES: As Ms Godwin said yesterday, in some states there was a practice of automatically providing information to state child welfare authorities of unaccompanied minors when the arrived.
DR OZDOWSKI: In which state?
MS GREAVES: It differed from place to place. I think it applied in Western Australia for - I don't know the exact periods - but we were trying to get to a position where it was applicable everywhere, but I haven't got the exact times when that might have occurred.
MR WIGNEY: I see. Now, that was a notification that there was a minor ---
MS GREAVES: An unaccompanied minor.
MR WIGNEY: An unaccompanied minor in the detention facility.
MS GREAVES: And ---
MR WIGNEY: But there was no provision of information or no request for the Department to consider the question of whether it remained or was in the interests of the child to be in detention.
MS GREAVES: I think that that would have been done on a case-by-case basis at that stage.
MR WIGNEY: Well, what do you mean by that?
MS GREAVES: Well, if the particular unaccompanied minor was one of - and there were particular circumstances relating to an unaccompanied - a particular unaccompanied minor whom we thought that that might be the case, then we would - we would have moved to raise that issue. But of course, the other thing is that at that time the state child welfare authorities also had a delegation, and they were able to raise with us at any stage whether they thought that there was a need to address the interests of the child in some way.
MR WIGNEY: But you would agree it is hardly likely that they are going to take it upon themselves to - particularly if they are not provided with any real information about the minor - to assess such a criteria unless they are specifically asked to.
MS GREAVES: I would accept that.
MR WIGNEY: And can I just perhaps ---
MS GREAVES: But as Ms Godwin also said yesterday, in a number of areas we are attempting to improve our procedures over time, and we have a process of continuous improvement and this reflects one of them.
MR WIGNEY: That is quite right, and to give credit where credit is due I think the Commission would accept the provision in this series instruction is an appropriate provision, but it would seem to be that - at least in the past, that is prior to September - there was simply no way - no practical way in which an unaccompanied minor could apply for a protection - I am sorry, for a bridging visa, because state authorities were simply not engaged by anyone to assess their best interests.
MS GREAVES: I don't think it follows that they couldn't apply for a bridging visa - they could apply.
MR WIGNEY: Well, they could, they could, but it is unlikely that they will meet the eligibility criteria, because the state authorities haven't been asked to assess their position and provide a certificate.
MS GREAVES: In order to make the application - Doug, you might come in on this - but in order to make the application they don't have to have got the certificate ahead of time.
MR WIGNEY: Well, can I suggest to you that if they hadn't addressed the eligibility criteria at the time they made the application the application would be ineligible; I think Mr Walker is nodding.
MR WALKER: That is correct. There is certainly nothing precluding them from expressing a desire to apply, but the actual formal application could not actually be made until the preconditions of being an eligible non-citizen have been satisfied.
MR WIGNEY: And there was no - there is now, but at the time, prior to September, there was no practical way that that could be engaged, that process could be engaged; that is right, isn't it?
MR WALKER: There may not have been a written instruction. I would dispute that there wasn't any practical way for that process to be engaged. I don't have the details in recent times of where people have or haven't expressed a wish and what has occurred; my colleagues probably do. But I am aware of aspects several years ago where in fact people have expressed a desire and examinations have taken place. Similarly, I am aware of some circumstances in the past where we have had concerns about the condition of people and actively taken steps for assessments to be undertaken.
MR WIGNEY: I will pick up on that last point in a moment - actually, I will pick up on it now. One example of the Department so acting was the - to put it broadly - the unaccompanied minors in the Woomera Detention Facility who were put into alternate detention facilities at the beginning of this year. And what occurred is that some - in some cases, after almost a year in detention, the Department of Immigration then specifically requested state authorities to address the issue of whether it was in the best interests of these minors to remain in the detention, immigration detention.
MS McPAUL: Well, my understanding is that those children remain in immigration detention, they are not granted a bridging visa.
MR WIGNEY: Well, that may be right, but what occurred - and I can take you to some documents, if you need to - but it wasn't until the Family and Youth Services raised specific and urgent concerns about these children that the Department raised the question and asked people to ask the state authorities to assess whether or not it was in the best interests of these children to remain in detention. Prior to that time, the state authorities had never been asked to assess the position.
MS McPAUL: That's not necessarily my understanding. I believe that FAYS had been consulted in the management of some of those children prior to that time and I ---
MR WIGNEY: I'm not asking about the management of the children. I'm asking them when they were asked to assess whether it was - in the terms of the regulation - whether or not it was in the best interests of the child to be in immigration detention, and my suggestion to you is that that didn't take place until the beginning of this year in most cases, if not all.
MS McPAUL: Look, I'd need to check the details of the individual children, but that's not necessarily my understanding.
MR WIGNEY: I'll come back to that because I think I can take you to some specific documents. But let me give you, perhaps, another example of how the system operated before September of this year. Can you just go to the first of the folders that you were given yesterday of documents.
MS McPAUL: Sorry, which ---
MR WIGNEY: I wanted to take you to page 172 of that bundle which I hope is an affidavit of - I won't name the deponent nor, of course, the name of the proceedings, but is that the first page of an affidavit?
MS McPAUL: It is.
MR WIGNEY: I want to take you to paragraph - it's an affidavit sworn by a person who then at that time, as of March of this year, occupied a position in the Port Hedland Immigration Reception and Processing Centre. Now, it deals with a particular applicant who was a child and - are you at all familiar with this case?
MS McPAUL: I'm just looking for the child's name.
MR WIGNEY: I think you'll - on the front page you'll see the name of the appellant.
MS McPAUL: I'm not personally aware of the specifics of the case.
MR WIGNEY: In any event, if you go over to paragraph 11, you'll see that it says:
The appellant applied for a protection visa and associated bridging visa E on 6 July 2000.
Now, just to clarify one point, is it now and was it the situation that when a child applied for a protection visa, that that automatically also was an application for a bridging visa?
MR WALKER: It normally is the case if they are an eligible non-citizen, but as I mentioned before, there's obviously that threshold issue to get through with unauthorised arrivals.
MR WIGNEY: Then the next sentence is:
His bridging visa E was determined on 7 July -
that is, the next day -
because he did not satisfy the requirements of schedule 1 of the Migration Regulations.
I'm sorry, my reading is getting progressively worse.
His bridging visa E was determined as invalid on 7 July 2000 because he did not satisfy the requirements of schedule 1 of the Migration Regulations.
Now, what it would appear occurred there was the bridging visa application was ineligible, or invalid, because there was no certificate from a state welfare body to the effect that this person ---
MR WALKER: Not only the state welfare body. There are other requirements there such as satisfaction of the Minister in relation to arrangements in the community for the care of the individual .....
MR WIGNEY: Well, it's hardly likely whether in the space of a day - because the bridging visa application was dealt with the next day - it's hardly likely that there would have been enough time for a state welfare authority to be contacted to be asked to certify whether or not the release from detention of that person was in the best interests of the non-citizen. That's right, isn't it?
MR WALKER: That might be the case, but the fact is that an application was attempted to be made that was invalid at that time.
MR WIGNEY: But it's invalid because there was no system in place whereby state authorities were contacted to even turn their mind to whether it was in the best interests of the child or not to remain in detention. So as a practical matter, bridging visas could never be granted in these circumstances.
MR WALKER: Well, they could never be granted until that certification was provided and also the Minister was satisfied in relation to arrangements had been made between the non citizen and an Australian citizen, Australian permanent resident, or eligible New Zealand citizen, for the care and welfare of the non citizen, and those arrangements were in the best interests of the non citizen.
MR WIGNEY: It could never be issued unless and until the department finally decided, for whatever reason, that they might approach the state welfare bodies to even raise the issue with them. That's the situation, isn't it?
MR WALKER: There's nothing stopping the state welfare authorities exercising their own responsibilities and powers under state legislation.
MR WIGNEY: Well, that might be right as a legal matter, but it's an absurdity to suggest that these state bodies are just, off their own bat, perhaps in the absence of any information whatsoever, they're going to start issuing certificates about the best interests or otherwise of children. That's just absurd to suggest it, isn't it?
MR BROMWICH: Well, I object to that form of questioning. My friend hasn't put all the circumstances and it's unfair to these witnesses to be trying to deal with what amounts to little more than conjecture and hypothesis.
DR OZDOWSKI: Well, I disagree with you. I found the suggestion that state authorities should act without any prior knowledge also a bit - in a way - out of the realm of reality.
MR BROMWICH: That's being assumed rather than known. It may or may not be right. But the fact is that the witnesses here don't know this particular case and ---
MR WIGNEY: Well, I'm asking generalities now as you're aware.
MR BROMWICH: Well, in generalities, I don't think I or my colleagues could speak to what is in the minds of state authorities and how they exercise their responsibilities under their own state legislation for child welfare. It's a matter for them.
DR OZDOWSKI: Can I ask you did you have another provision which would ensure that state authorities are automatically advised about arrival of every unaccompanied minor into the detention centre?
MS McPAUL: I thought I'd indicated earlier, Commissioner, that we were moving, over the course of last year, to try and put that in place. And I think in Western Australia it started early last year. But before that I don't think so.
DR OZDOWSKI: So before it, it didn't exist?
MS McPAUL: I can't say definitively that there wasn't some instruction before that. It wasn't a matter of practice.
DR OZDOWSKI: Thank you.
MR WIGNEY: Well, let's try and address it this way then. This morning we've been exploring what the guardian - that is, the Minister and/or his delegate or delegates - did in assisting or advising minors through these various processes. Would it not be the position that if a guardian - that is, the Minister or his delegates - was to act in the best interest of the child, they would automatically engage the state authorities to address this very issue - that is, whether it's in the interests or otherwise of the unaccompanied minor to remain in a detention facility?
MR WALKER: I think there's a range of factors that - and this is talking in a general sense, not to the specifics of a case - but there are a range of factors that need to be considered in relation to particular children and how they're treated in these circumstances. There may well be no need for an assessment to be made - that's on the basis of professional judgments that have, and advice that the department has received - to actually seek out the assistance of the child welfare authorities in every circumstance.
Now, there's the MSI obviously that says that if there's an indication that somebody wishes to apply for a bridging visa, then the manager is to bring that to attention and arrangements to be made for that assessment. But ---
MR WIGNEY: We know that and we accept that that is now an appropriate arrangement and an appropriate instruction. What I'm exploring is what happened before that and the point is, is it not, that the Minister is the guardian and his delegates, that is the DIMIA Manager and Deputy Manager did absolutely nothing to initiate contact on behalf of the guardian - I'm sorry, on behalf of the child that they are guardian of to contact the State or Territory Welfare Authorities to have the child assessed against Regulation 2.20(7)(d)_ as is now the case.
MR WALKER: I don't think that we'd accept that that was the case in every circumstance. By the same token it may not have occurred in every situation but then again there may have been situations and circumstances where State Authorities were approached.
MS GREAVES: And I can certainly point to - recollect one last year where we did do precisely that with an unaccompanied minor of tender years where the State Authorities were contacted and the child was eventually released on a bridging visa.
MR WIGNEY: I'm sorry, how long had the child been in detention before that was actioned?
MS GREAVES: Two to three months I think it was.
MS McPAUL: The total period of detention was in the order of two to three months so there was action being taken quite early on in that particular case.
MR WIGNEY: Well, some may debate whether two to three months of a child being in detention is an early intervention but in any ---
MS GREAVES: Could I just say that in that case the issue was trying to find an appropriate care placement for the individual child.
MR WIGNEY: Can I ask you to take this question on notice. Can you please seek to advise the Commission of any occasion prior to September of this year when this Migration Series Instruction came into being where either the Minister or a DIMIA Manager of a Deputy Manager or indeed anyone on their behalf contacted the relevant State Welfare bodies to assess the child against Regulation 2.20(7)(d) immediately or within a short space of time of the protection visa application being lodged? Can you take that question on notice, please?
MS McPAUL: We can take that question on notice.
MR WALKER: Can I just ask - and I have no difficulty with taking on notice but do you want us to go back to 1994?
MR WIGNEY: No, sorry, I should say ---
MR WALKER: Yes, it's ---
MR WIGNEY: Quite so, from 1999 onwards ---
MR WALKER: Thank you.
MR WIGNEY: --- I think is really the relevant period that we've largely been addressing in the course of the Inquiry.
MR BROMWICH: I just might indicate that ahead of anyone actually checking it may well be that that could be a protracted task because the need to go to perhaps individual records might involve quite an extensive exercise. I don't know but that's quite possible because this sort of information might well sit on the individual files, including individual files in different parts of the country.
MR WIGNEY: I suspect one may only need go to those cases where bridging visas were granted and I suspect ---
MS GREAVES: No, no, that's not what you've just asked. You would have to go to all ---
MR BROMWICH: You're going to have to go every file for every unaccompanied minor to find out whether there was a referral or not. That's the scope of the question on notice.
DR OZDOWSKI: Do you have any other way of answering that question with less work?
MR BROMWICH: Well, the answer to that is I don't think anyone knows without making enquiries but I'm just foreshadowing that in terms of the question, Commissioner, you asked on the first day that such questions be answered by tomorrow. I foreshadow that's quite impossible.
DR OZDOWSKI: I agree with it it's unrealistic and we will address this issue in the last session.
MR WIGNEY: I wasn't suggesting that it had to be done in some unreasonable period of time.
MR BROMWICH: It was only in terms of what was said on Monday.
MR WIGNEY: Let me ask you this. How many ---
MS McPAUL: Sorry, Mr Wigney, can I just check - you're just only asking as well in relation to unaccompanied wards of the Minister?
MR WIGNEY: Yes.
MS McPAUL: Yes.
MR WIGNEY: Where the Minister or one of the Deputy Managers or indeed any officer from the Department intervened at an early stage to engage the State Authorities in relation to that eligibility criteria.
MS McPAUL: In relation to - for a bridging visa.
MR WIGNEY: Yes. Can I ask you this? How many unaccompanied child minors do you think would know about the existence of sub-regulation 7 in Regulation 2.20 of the Migration Regulations?
MS McPAUL: It would be highly unlikely that any unauthorised arrival coming to Australia would be aware of the specific provisions of a Migration Regulation.
MR WIGNEY: So without anyone acting in the position of a guardian or anyone indeed to give them advice about that they are hardly likely to be themselves seeking to engage the state authorities, are they?
MS McPAUL: Except, of course, that at that point they would have an IAAAS adviser if they had made a protection claim or raised issues that we would consider - for a protection claim. They would have an IAAAS adviser who would be aware of the provisions of the Migration Act.
MR WIGNEY: Can I just deal with one more matter. I think I asked earlier whether there was any Migration Series Instruction specifically dealing with this matter prior to MSI 357 in September this year and I think Ms Greaves answered ---
MS GREAVES: Not dealing with unaccompanied minors in general. I'm just wondering whether there might not have been an MSI on bridging visas.
MR WIGNEY: There was.
MR WALKER: I think there are MSIs on bridging visas but nothing specifically on unaccompanied minors.
MR WIGNEY: No, but I was actually going to - I think it's in your bundle - take you to something which suggests that that very provision in - this perhaps demonstrates my - the fact that I don't know about every single MSI in existence but it does seem that there was a provision similar to 13.4.3 in MSI 357 in existence before September. It's in your bundle of documents at page 70, MSI 131. And that's the commencement of the MSI. And at page 80 of the bundle you will see paragraph 7.4.1, which seems to be in similar terms to 13.4.3.
So indeed this procedure should have been engaged before September of this year. In fact, it seems to be slightly more extensive in that it suggests - it's in slightly different terms. Well, perhaps I could read it onto the record.
Where an unaccompanied minor satisfies Regulation 2.27(a) and (b), officers must initiate contact with the relevant State/Territory Child Welfare Authority to have the child assessed.
Now, it doesn't there specifically refer to assessed against the criteria in paragraph (d) as the case now in 13.4.3. It refers then to:
At this time health and public interest checks should also be initiated. The Child Welfare Authority should be briefed on the child's present circumstances. Where possible information should be made available to the Child Welfare Authority concerning: the child's background;
the child's present circumstances, including various details;
the presence and details of any offers to provide care in the community.So whilst it doesn't specifically ask - require the Child Welfare Authority to address the criteria in sub-paragraph (d) it does specifically require prompt contact with the Child Welfare Authorities. I think, however, if you go to paragraph 7.4 sub-regulation 2.2(7), a
Child under 18 in a child welfare authority has certified that release from detention is in the best interests of the non-citizen.
That - the existence of that would tend to suggest that that is what is supposed to be addressed in 7.4.1. Would you agree with that?
MS GREAVES: Yes. And we've taken on notice the question - to response of a question of about how that has been complied with in the past.
MR WIGNEY: So if that practice wasn't followed prior to September of this year, then this particular instruction wasn't being complied with?
MS McPAUL: I think it also needs to be put in the context, as I think Ms Godwin illustrated yesterday, that the primary - or the obligation for the Department in relation to unauthorised arrivals is to place them in detention in the first instance, and a bridging visa is an option, but we still have the overarching obligation to make the individuals available for processing and removal, should that be the case.
MR WIGNEY: You accept that the - the Department accepts that there really is an obligation upon the Department to ensure that the child - child detainees are in detention for the shortest possible time. Do you accept that as a general proposition?
MR WALKER: Yes. That would be a general proposition.
MR WIGNEY: Now, is it the situation that - well, let me ask it this way. Did the Department, before and after September when this MSI was issued, continually - sorry, let me start again. Did the Department, before or after September of this year when MSI 357 was issued, continue to monitor the best interests of the child so as to, at an appropriate stage, engage the child welfare authorities to assess whether it was in the best interests of the child to remain in immigration detention?
MS McPAUL: Are you asking us whether we believe that we've maintained a duty of care to those children? I think the answer is yes.
MR WIGNEY: Well, I asked you a more specific question about duty of care.
MS McPAUL: Whether we had to take an action to ---
MR WIGNEY: Whether you continually monitored the situation as to the best interests of the child and engaged welfare authorities in the context of a bridging visa to assess
MS GREAVES: We've already taken on notice the question about engaging state authorities. What we - as we said yesterday, with unaccompanied minors, our primary aim in those early stages is to get their applications for protection processed as quickly as possible to ensure that they are released from detention on a visa - a protection visa, or removed.
MR WIGNEY: One would expect - I'm sorry.
MR WALKER: If I could just clarify it. Certainly, just going back to the point of - our desire is, in particular with children, that they be in detention for the shortest possible time. That's also our goal in relation to any person who is in immigration detention, but we are working within the framework of, as Ms Greaves said, processing visa applications and, where people meet visa criteria, and in particular protection visa criteria, that they are released as soon as possible. However, that doesn't get round the situation that, essentially, where they don't have an entitlement to remain in Australia, there are difficulties with grants of bridging visas.
One of the important criteria to be satisfied for a bridging visa is that the person gives an undertaking in terms satisfactory to the Minister that, at the conclusion of any outstanding application, be it visa application or judicial review application, that they will - they give an undertaking that they will leave the country within 28 days. So there are those important factors that have to be taken into account as well.
MR WIGNEY: Are you aware of any case, any single case, where all other eligibility criteria for a bridging visa have been met, other than the satisfaction of the Minister in terms of that undertaking?
MR WALKER: Personally, I don't. I can't comment. It's not within my - the area of my personal knowledge.
MR WIGNEY: Well, I mean, it's hardly likely, is it, that an applicant who meets all the other criteria and is sitting in immigration detention seeking a bridging visa is not going to give such an undertaking. Is that a realistic situation?
MR WALKER: Well, it gets back to the point, again, that, with the - the purpose of immigration detention, as Ms Godwin mentioned, that the people are available for processing and, should they be unsuccessful, they are available for removal. The difficulties that often arise is that people, having invested a great deal of effort to come to Australia, may not accept the end result that they have no entitlement to remain. But the law requires those people to be removed as soon as practicable. One of those important factors is that they are available for removal.
MR WIGNEY: Of course, one of the things that a guardian may be expected to do on behalf of a child is to give undertakings such as that that you've referred to. Would you agree with that?
MR WALKER: Yes. A guardian could give those undertakings.
MR WIGNEY: Well, the Minister can hardly give an undertaking as the guardian when he's the person that has to be satisfied. The position just doesn't work, does it?
MR WALKER: The thing is that I think it's an issue of - as we mentioned yesterday, the delegations are quite separate and the decision making processes are quite separate.
MR WIGNEY: I mean, isn't this one of the reasons why the recommendations made by the UNHCR in relation to guardianship of unaccompanied minors is a sensible recommendation, that is, that a guardian who is entirely independent of, in this case, the Minister or the Department, ought be appointed to represent children in these circumstances?
MR WALKER: I'm afraid I don't know why the UNHCR made those recommendations. It's a matter for the UNHCR.
MR WIGNEY: Do you think that it's a sensible recommendation, as a senior officer of the Department?
MR WALKER: I don't think it's appropriate for me to say whatever my personal view of these things are.
MR WIGNEY: Well, just wrapping up on this topic, without going around and around in circles, I mean, the point is this, isn't it, that one would expect that, as a delegate, the Minister or his - I'm sorry - one would expect that, as a guardian, the Minister or his delegates, if a child is in detention for a long period, or his or her mental health is deteriorating, if they were to look after the child's best interests, they would take a most pro-active approach in relation to contacting state authorities to assess the best interests of the child for the purposes of a bridging visa. Would you agree with that?
MS GREAVES: Well, that's what the current MSI reflects.
MR WIGNEY: Can I suggest to you that from what the Commission has seen and heard, at best the position taken by the Department has been a re-active rather than a pro-active stance in that context. What do you say to that?
MS McPAUL: I'm not sure that we do accept that, Mr Wigney. I think we've agreed to take on notice to provide you with some information which will clarify the Department's position in relation to that.
DR OZDOWSKI: Did you finish with this subject?
MR WIGNEY: Yes.
DR OZDOWSKI: Yes. I've got one more question in a way here, if you've finished with it.
MR WIGNEY: Yes, please. It's appropriate. I'm just ---
DR OZDOWSKI: Just checking the papers. Yes. I would like to return to the statement by the Department. You basically agreed that immigration officers working in detention centres do not have particular experience of education, health and so on, but you asserted that they are experienced officers of the Department and, consequently, they can meet the responsibilities of working in detention centres. I don't see that connection, because for me it's difficult to understand how work in Sydney, Canberra or any other offices of DIMIA equips a person to work in Woomera, Curtin, or somewhere else. Could you perhaps elaborate a bit more what skills people do acquire in the offices which are relevant to running, basically, a prison type of arrangement.
MR BROMWICH: Commissioner, before we go to that, even the UNHCR document doesn't contemplate that the guardian will have those skills.
DR OZDOWSKI: It has got nothing to do with guardians, I am going to the experience people have got going to the centre which is of relevance to function properly in the centre.
MR WALKER: I think it is important to focus, Commissioner, on the fact that DIMIA does have officers in the Department who liaise with others who do have experience. Our service provider does have experienced people running the operations of those centres, and my colleagues can probably elaborate further, but it is not wholly and solely DIMIA officers who are administering everything that happens within the detention centre. Also, I think that we would not say that detention centres are prisons. The - certainly, there are constraints on the individuals going outside the perimeters of the centres, and there are other elements within the centre, but the objective is, and I think our administration is that we make it as normal a community environment as we possibly can within the constraints within which we work. My colleagues probably could say more on that.
MS McPAUL: Yes, I mean, I think the important thing here is to recognise that immigration detention is administrative in nature and quite separate from anything that would be found in a correctional environment.
MS GREAVES: And that is why we have families together, we don't - there are a number of ways in which this is different from a correctional setting.
DR OZDOWSKI: But still, I can't work it out how, say, an officer coming from an office in Canberra or from overseas posting being put into, say, one of the detention centres, Woomera or Port Hedland, is able to monitor supply of services. How that office experience adds to the officer being able to monitor health, supply of schooling, supply of care and so on.
MS McPAUL: I think these are points that we touched, perhaps, on the first day, Commissioner, where we explored the framework in which the monitoring of the detention services contract occurred. And I think that we pointed out on that day that while our staff at the centres were engaged in on-site monitoring, day to day, that that was only one component of a much more comprehensive contract monitoring program that the Department conducts.
DR OZDOWSKI: Perhaps I could ask it in a different way. Do you have any former or current DIMIA officers who worked in migration centre suffering of mental stress or being on mental stress leave as a result of the work in detention centres?
MS McPAUL: Look, I would need to check the specifics of every officer, but there may be some in that circumstance.
DR OZDOWSKI: There may be some proportion, would you know?
MS McPAUL: Look, I would really need to check; I am not aware of the personal circumstances of every present or former employee that has worked in a detention centre environment.
DR OZDOWSKI: Thank you.
MR WIGNEY: There is just one further thing that I was going to deal with very briefly, in relation to UAMs and then we will move onto education, and I am afraid it is to put you on notice of another question at the risk of imposing intolerable burdens on the Department, but it really goes hand-in-glove with the other question that you have taken on notice. As Mr Walker has pointed out, the criteria in sub-regulation 7 of regulation 2.20 - well, the criteria (e) or paragraph (e) composes a further criteria; that is that the Minister must be satisfied in general terms that certain arrangements are in the best interests of the non-citizen. So that is after a receiving a certificate from the state authority that detention is not in the best interests of the child, the Minister then must be satisfied that alternate arrangements that are put in place are in the best interests of the non-citizen, in general terms. I wanted to ask you to take this question on notice; whether there are any cases that you are aware of where a state authority has certified that it is in the best interests of the child to be released, but the Minister has not been satisfied of the arrangements in accordance with paragraph (e).
MS McPAUL: Okay. So with the same parameters of the earlier question being since 1999 ---
MR WIGNEY: 1999, yes.
MS McPAUL: ---wards in relation to IGOC specifically?
MR WIGNEY: Yes.
MS McPAUL: Again, that may take some time to compile.
MR WIGNEY: Obviously, if you ascertain in due course that it imposes intolerable burdens on the Department, you obviously need do no more than notify the Commission of that.
MS McPAUL: Yes.
MS GREAVES: Could I just add that in normal circumstances, because the state authorities would have the delegation in relation to those children once they were released from detention, the state authorities would have a role in providing, helping to provide, arrangements for the care of those children.
MR WALKER: I think that the practical measure is that generally, in relation to the state authority's certification, normally that the processes of the two criteria would come together in a sense of something that the state authorities were comfortable with being appropriate for the child would satisfy the Minister. That is the way it works, but certainly ---
MR WIGNEY: I suppose the point is that it is hardly likely that there are going to be many cases where the state authority certifies it is in the best interests of a child to be released from detention, but then doesn't put into place some form of arrangement.
MR WALKER: That is right.
MS GREAVES: But they could have difficulty finding those arrangements, and it may delay the ---
MR WALKER: And some time - the reason - this is just going behind the reason for the regulation being structured in the way that it is - is that in the past, and this is pre-1999, the circumstances we are talking of, but there were circumstances where individuals in the community would come forward and offer to care for children. Obviously some of the factors there are that we would work closely with state authorities of whether they believed that the individual offering that assistance was appropriate, so that is just a bit of the background of why it is separated in the way that it is.
MR WIGNEY: Well, that is all that I had in relation to UAMs.
DR OZDOWSKI: Okay.
MR WIGNEY: I don't know whether ACM have much to say about that, I expect not.
DR OZDOWSKI: Yes. Just I would like to return to my question before, just to, you know, where - say if you are taking too many questions on notice - is there any other officer here who is not at the witness stand who could answer to that question about mental stress of the officers or former officers of DIMIA. I thought maybe Mr Frencham could answer that question?
MS GREAVES: Mr Frencham, of course, wouldn't know across the board for all of the detention centres; I thought your question was a general one, whether there was any officers ---
DR OZDOWSKI: It was a general one, yes.
MS GREAVES: Yes.
DR OZDOWSKI: So if you would know possibly for Woomera only.
MS GREAVES: He might not necessarily know that either.
DR OZDOWSKI: Not necessarily, okay.
MS GREAVES: I think we should take that one on notice.
MR WALKER: I think, Commissioner, that it is something that is certainly - our personnel people would know the circumstances, the rest of us would not know circumstances related to why people have - are ill or so forth.
DR OZDOWSKI: Okay, thank you. Now, counsellor ---
MR BROMWICH: There was just one matter I wanted to raise that flowed out of some of that questioning, Commissioner. If I could just take you to page 174 in this volume. Earlier, you were taken to an affidavit and asked some questions in relation to the position of a guardianship and related matters in relation to the minor referred to in that affidavit.
MS McPAUL: Yes, we were.
MR BROMWICH: Look at paragraphs 14 and 15 on page 174. I will just read into the record what is stated there:
Since his arrival in the Centre the appellant has preferred to reside in the single men's blocks with other African detainees. He has stressed to ACM and DIMIA staff that he considers himself a man, not a boy, and does not want to reside in the family blocks with women and children.
The appellant has also advised ACM and DIMIA staff that he does not wish to be appointed a specific mentor, but rather be guided and protected by the entire African resident community. This group mentoring has been observed by ACM and DIMIA staff to be active on a daily basis.
So that is part of the context of the questions you were being asked earlier.
DR OZDOWSKI: Yes, I know of this particular case, indeed. Thank you.
MR BROMWICH: Well, it's just to put the other questions in context, Commissioner.
DR OZDOWSKI: Thank you. Mr Rushton?
MR RUSHTON: No. No questions.
DR OZDOWSKI: Yes, I think we can start questioning before the break or ---
MR WIGNEY: I'm happy to continue.
DR OZDOWSKI: Yes. So let's continue.
MR WIGNEY: Sorry, as a practical matter, as I indicated, the suggestion that we have is that the ACM witness who, I understand, can give some relevant evidence in relation to education is here and perhaps it might be more appropriate if we start, on this occasion, with the ACM witness rather than with the Department witness.
DR OZDOWSKI: Yes.
MR WIGNEY: Now, as a practical matter, that's Ms Lumley.
DR OZDOWSKI: So you will excuse DIMIA from the witness stand at the moment and will ask the ACM witness to come forward.
MR RUSHTON: I can indicate, Commissioner, that Ms Lumley was employed as an education officer at Woomera in April of 2001 and, in January 2002, she was promoted to the position of Education Co-ordinator at Woomera where she remained until, I think, the end of June 2002. So she can at least cover that period of time.
DR OZDOWSKI: Thank you. Could I ask that oath or affirmation ---
SARAH LUMLEY, sworn [10.18am]
DR OZDOWSKI: Mr Rushton, anything you would like to add to - the information you provided as to background of the witness?
MR RUSHTON: Not at this point, no.
MR WIGNEY: I suppose, for the record, Ms Lumley, you should give your name and present occupation, please?
MS LUMLEY: Sarah Lumley, and my present occupation - I'm a contractor with ACM and I'm currently working as an executive assistant in head office.
MR WIGNEY: And how long have you been employed with ACM?
MS LUMLEY: Since April 2001.
MR WIGNEY: Now, I think Mr Rushton just indicated your particular involvement with Woomera and, in particular, education at Woomera. Could you just perhaps repeat that for the record, please? When were you employed at Woomera and what were your duties and responsibilities when there?
MS LUMLEY: I was employed as a teacher at the end of April 2001 at Woomera and in January of this year I was appointed as the Education Co-ordinator and I finished that contract at the end of June this year, so a total of 14 months.
MR WIGNEY: Now, I suppose just as a formal matter, what were your qualifications relevant to teaching when you took up employment as a teacher at Woomera?
MS LUMLEY: I've got a BA degree from the University of Southampton and then I've got a post graduate certificate in education from Cambridge University and I'm also currently studying a masters in education with Charles Sturt University. I'm registered in New South Wales. I'm registered in South Australia and I'm a qualified teacher in Britain.
MR WIGNEY: And before taking up your position at Woomera, what was your broad experience in terms of teaching?
MS LUMLEY: I taught for three and half years in England in a primary school - I'm a primary school teacher - and I spent a year working in Mozambique as a teacher at an international school.
MR WIGNEY: Sorry, just exploring that, in Mozambique, at the international school, were your pupils largely expatriates or were they ---
MS LUMLEY: They were largely expatriates. There was - in a class of 22, I had 19 different nationalities.
MR WIGNEY: I suppose the point being - and please understand I'm not being at all critical in this respect ---
MS LUMLEY: No, that's fine.
MR WIGNEY: --- but when you took up teaching at Woomera, you would agree, I suppose, that it was a rather different teaching experience than anything you had had prior to that?
MS LUMLEY: It was but I guess there's a similarity in that I was teaching children from overseas that either had no English or had English as second language and that was very similar to my experience in Mozambique.
MR WIGNEY: Right. Now, I want to come, in slightly more concrete details, relevantly to you with what was taking place at Woomera but, in general terms, were you aware of what were the - what was the situation in relation to education at any of the other detention facilities that ACM operated during that time?
MS LUMLEY: No. No.
MR WIGNEY: I'll come back to that in due course. Can I just - perhaps again being somewhat mundane, just go through a few of the ACM documents relevant to education that I expect you would be familiar with and I suppose the starting point, really, is the immigration detention standards. Were you aware of those standards when you commenced?
MS LUMLEY: Yes. Yes.
MR WIGNEY: And the situation is, I think - and please correct me if I'm wrong - but there are two - well, there are two places where there are specific provisions in relation to education. Do you have a copy of those with you, the immigration detention standards?
MS LUMLEY: Do I - I'm not personally carrying them right now.
MR WIGNEY: Sorry, I'll just have a copy given to you. Now, the first specific provision that deals with education, I think, is paragraph 4.4 which is under the subheading, Social Interaction and it provides:
All detainees have access to education, recreation and leisure programs and facilities which provide them the opportunity to utilise their time in detention in a constructive and beneficial manner.
MR RUSHTON: I don't think the witness has got them in front of her.
MR WIGNEY: Oh, I'm sorry.
Sorry, I was just taking you - I think it's to page 3 of that document, paragraph 4.4.
MS LUMLEY: Oh, yes.
MR WIGNEY: Now that particular paragraph of the standards deals with access to education generally. It's not specifically referable to children. Is that right?
MS LUMLEY: That's right.
MR WIGNEY: Now, in terms of your experiences at Woomera, did you mainly focus on children or did you also provide education services to adults?
MS LUMLEY: I guess my primary focus was children but I also provided English for adults.
MR WIGNEY: Well, for our purposes in this Inquiry, our primary focus is on children as well and that's a general provision and I think, also, to be fair, 4.5 and 4.6 provide relevantly that: Detainees are encouraged to participate in the programs and that the programs are to be regularly evaluated.
MS LUMLEY: That's right.
MR WIGNEY: And then, nextly, if one goes over to paragraph 9.4, there are some specific paragraphs with - in relation to children and specifically, paragraph 9.4.1 provides that "social and educational programs appropriate to the child's age and abilities are available to all children in detention". Now, that's a provision that deals specifically with children. Is that right?
MS LUMLEY: That's right.
MR WIGNEY: And I think I said education is referred to in two places in this document. In fact it's in three places. If one then goes over to paragraph 14, there's a definitional provision and there the term, education programs, is defined and it's defined as meaning:
pre-school and school curriculum-based programs, focusing on English as a second language and taking into account variable lengths of stay in detention of students, in line as far as possible, with local education authority standards, provided by qualified teachers either within the detention facility, or with local schools if appropriate and within requirements for continued detention.
Now, just in general terms, is that what you understood to be the standards that ACM had to comply with?
MS LUMLEY: Yes, and we had our own educational policy as well.
MR WIGNEY: Right.
MS LUMLEY: So I also had to comply with that.
MR WIGNEY: Now, I suppose it would be fair to say, wouldn't it, that the standards in this - the immigration detention standards were fairly broad in general; they didn't provide specifically, for example, how many hours of education ought be provided, how many as a minimum of those sorts of things.
MS LUMLEY: That's right. Very general.
MR WIGNEY: And you've referred to ACM's own policies and I just want to explore that with you to make sure that we have all of those that are relevant. The one that we have - I think you've now been given an entire folder. I think if you go to page 1 of that folder, there's an extract and I can provide you the front pages of the document if needs be, of policy number 1.1 in the ACM manual, and I think - all that simply does is set out the definition of education programs that appears in the immigration detention standards.
MS LUMLEY: Pretty much, yes.
MR WIGNEY: Now, the other policy that I've been able to locate, I must say, is a policy, 13.1, which is at page 167 of the bundle. Now that is procedure number 13.01. Now it, on its face, I think, deals specifically with Port Hedland - the Port Hedland facility and it, I think, is the procedure that puts in place policy 13.1, a copy of which I have here and I'll show you in a moment, which is the broader policy that applies to each of the facilities; is that ---
MS LUMLEY: There's a broad policy that would apply to each - to, like, the general one for all of the centres, and then each centre might possibly make that more centre-specific.
MR WIGNEY: Yes.
MS LUMLEY: So I would be more familiar with the Woomera one although I don't think it was too different to their general one, than I would be with the Port Hedland one.
MR WIGNEY: Can I just show you a document - I'm afraid I've dug it out of my own material so I don't have copies, but - is that the - that's policy 13.1, I think.
MS LUMLEY: Yes.
MR WIGNEY: That's the general policy that applies to all of the facilities.
MS LUMLEY: Yes.
MR WIGNEY: And was the Woomera policy broadly in line with that policy?
MS LUMLEY: Broadly in line, yes, I'd say it probably was.
MR WIGNEY: And I think you'll agree that it's pretty much along the same lines as the policy or the procedure that we have in this bundle that specifically relates to Port Hedland; it doesn't seem to ---
MS LUMLEY: Yes.
MR WIGNEY: --- differ in any particular respects.
MS LUMLEY: Yes, it is.
MR WIGNEY: Can I just ask you just a few general questions about that, if you wouldn't mind. On page 3 of the document, there's some more detailed provisions in relation to the education programs and provides that the Programs Manager - this is at page 169 of the bundle, "The Programs Manager shall develop and present or facilitate education programs for interested detainees in the following programs". Can I just ask you this question: was the Programs Manager in charge of, not just education, but also other social and recreation programs; is that right?
MS LUMLEY: In Woomera, the Programs Manager was in charge of education, recreation, social welfare and interpreting services.
MR WIGNEY: Right. And you were in due course ---
MS LUMLEY: In due course.
MR WIGNEY: --- the Programs Manager.
MS LUMLEY: I was the education supervisor, I guess.
MR WIGNEY: Now, there is then set out a series of dot points which set out or put some flesh on the bones of the types of programs to be offered. I just wanted to direct your attention to the last dot point which provides general pre-school and primary school classes and to just ask you this question: there doesn't appear to be any specific reference to the provision of secondary school classes; are you able to assist as to why that is so?
MS LUMLEY: In the policy, it says, "External post-secondary education". In my experience, we weren't able to access external - not - sorry, that's post-secondary. No, it doesn't mention it but we did do secondary education, so it certainly wasn't that we left it out.
MR WIGNEY: Right. Are you aware of any reason why it wasn't in the policy or is that ---
MS LUMLEY: No.
MR WIGNEY: --- beyond your purview ?
MS LUMLEY: No. No, I knew not why it was not in there.
MR WIGNEY: Now, the only other particular provision in this paragraph in this procedure that I wanted to direct your attention to was really the second last paragraph on the page which provides, in general terms, for the provision of some formal recognition or certificate or letter of participation to be provided in relation to those detainees that participate in these programs. The Commission hasn't seen any evidence, or heard any evidence of such certificates or letter of recognition being issued; is that your experience or can you assist us in that regard?
MS LUMLEY: If you don't know when the detainees are going to be released, you're not able to provide a certificate of completion, because you don't know that they're about to be completing their education at the centre.
MR WIGNEY: But did DIMIA provide you with any information about those matters?
MS LUMLEY: They're not able to provide us with the information prior to the release of detainees, so we didn't know that they'd be going. So we didn't know they'd be finishing.
MR WIGNEY: But what about children or detainees, but we'll focus on children for the moment, who remained in detention for some time who completed, for example, a particular program or a particular element of the course over time; were they issued as an interim matter with certificates or letters or ---
MS LUMLEY: They're not issued with certificates. We don't run certified courses because we're not able to run a certified course. So in terms of a public school has their Department of Education set of exams, we're actually not able to run those types of qualifications. What we do do, which I think is more valuable, is we provide a report to parents on the child's progress and I actually would deem that far more valuable in terms of the individual's progress than a certificate.
MR WIGNEY: But in terms of a detainee for example being able to in due course show someone any evidence of the fact that they've participated in programs or achieved any particular level, there was nothing of that sort issued?
MS LUMLEY: In terms of assessment, no, because we don't have access to those types of testing arrangements.
MR WIGNEY: But what about just completing even, for example, the basic level of an English course, or something like that.
MS LUMLEY: They're - it's difficult to actually - we don't have - you can't buy, off the shelf, an - you can buy English course books where we could say, "This child has finished this type of book", but that would not be of value to anybody. When they go out in the community that would be of no value to a teacher on the ground really. Of better value would be our report that we'd actually detail their educational progress. You can't buy off the shelf exams and certified courses and run them anywhere, because you have to be certified as an organisation to do some kind of course or exams.
MR WIGNEY: What about, just to use one example, the sorts of courses that were offered by relevantly the South Australian government, English as a Second Language courses to, for example, asylum seekers who have been granted protection visas and have then ---
MS LUMLEY: Yes, like the AMES courses, yes, IELTS, yes.
MR WIGNEY: Well, weren't there fairly structured courses ---
MS LUMLEY: We're not allowed to have access to those; you have be a registered IELTS trainer, a registered IELTS organisation or AMES or anything else, so we don't have access to those programs, and we certainly explored all of those avenues because, you know, we were as keen to get them running on a certified recognised course as anyone else, but liaison with those organisations drew a blank, quite frankly.
MR WIGNEY: You referred to some acronyms which you might need to assist us with.
MS LUMLEY: IELTS is an International English Language - I'm not sure what the "T", Testing System or whatever and that's a very structured International English Language System that a lot of organisations use. So that would be a well known one. There might be a couple of other ones as well. ISTLPR is another one and that's another English International Second Language.
MR WIGNEY: Right.
MS LUMLEY: Or something or other.
MR WIGNEY: Now, I think you said you needed to be, what, registered with them to get access to the courses.
MS LUMLEY: You need to be - you need to be registered by them as a registered trainer and you need to be a registered - like an organisation for them, so we would have had to have gained registration as an IELTS facility or whatever and that's actually quite a lengthy process and not something you can do overnight. So it was certainly something we looked at but it wasn't really something that was going to be particularly easy to do.
MR WIGNEY: All right. Are you aware of - and please tell us if you're not in a position to answer this, but are you aware of whether ACM Central Office had attempted to gain registration or certification with that body?
MS LUMLEY: I wasn't aware, no.
MR WIGNEY: Are you aware of whether the Department of Immigration ever did anything to liaise with those organisations or attempt to obtain that registration?
MS LUMLEY: No, I'm not aware of that.
MR WIGNEY: Can I just take you to a couple of other pages in the bundle. Again, I appreciate that you're specifically linked with Woomera and you may not be able to answer some of these questions so please just tell us if that's the situation. But if you go to page 3 of the bundle there is a document that is headed ACM Quality Improvement Plan and can I ask you firstly whether this is a document that you're familiar with or whether you had ever seen it before?
MS LUMLEY: Yes, I have.
MR WIGNEY: Can you tell us what it is?
MS LUMLEY: It's an action plan for improvement.
MR WIGNEY: Right.
MS LUMLEY: So we'd identify areas that required improvement and put it into an action plan with dates, target dates, with people responsible to action those things and - and, yes, it's a quality system.
MR WIGNEY: And how often were these improvement plans produced?
MS LUMLEY: I'm not sure as to the date of this one. What's that, July? I - this one was done by me and I'd certainly done - I think I'd done one before that, not on a regular basis but it could be an ongoing thing. It depends how long the dates are on them but, no, not on a - not on a regular basis unless required specifically or unless on this occasion we felt that there were some areas that really needed improvement, so we - we put this into place.
MR WIGNEY: I just wanted to direct your attention to one passage in that. Did you say you recognise this is a document you've created?
MS LUMLEY: Yes.
MR WIGNEY: Good. If you could go to page 4 of the bundle there's a passage that I wanted to ask you about. It's item number 4 under the box Required Improvement. And the date is 5 November 2001. And you've got:
Outline curriculum for school-aged children to be set out based on ESL ---
That's English as a second language.
--- guidelines.
MS LUMLEY: Yes.
MR WIGNEY:
This to cover the following groupings.
And then you've got some age groupings. Now, firstly may we take it from this that prior to 5 November there had been no outcome - outline of curriculum based on the ESL guidelines, at least at Woomera?
MS LUMLEY: I guess I need to make this clear. In South Australia there's a new curriculum, the new SACSA Framework, and at that time there was no ESL section on it and there is now. The Victorian curriculum has comprehensive ESL guidelines but we were in South Australia. Given the fact that they are ESL students you can't just follow an ordinary curriculum because you can't ask a child to do the life cycle of a frog if they can't read English, for instance.
MR WIGNEY: Yes.
MS LUMLEY: So you need a specialist type of curriculum. There is no ESL curriculum, it doesn't exist. What there are are curriculum documents that have ESL provisions. At that time the South Australian curriculum did not have that and it wasn't developed. The Victorian one was quite comprehensive and we were looking to maybe implement some of the guidelines, I guess. There's no set curriculum but guidelines from the Victorian curriculum in the fact that there wasn't really anything else to use.
MR WIGNEY: I just want to explore a couple of things about that. Can I just firstly make it abundantly clear that in asking these questions I'm not intending in any way to be critical of you certainly personally but we're just trying to explore what may or may not have been deficiencies in the - the education system in these facilities at the relevant time. But it would seem from the documents that are being produced to the Commission that from those documents we've not really seen any evidence of any curriculum for school-aged children based on ESL guidelines or any other guidelines. Are you able to comment on ---
MS LUMLEY: Yes, I am. When - when the children come in - I guess in 2001 it was a very different picture to what it is today. When the - when I started there was a huge transitory population so the children are often in and out within - between six weeks and three months. In that time your focus is teaching them English and teaching them, I guess, socialisation in terms of knowing how to come to the classroom, how to behave in a classroom setting. Now, it just doesn't exist that there's some kind of curriculum for that kind of thing but there are lots of ESL programs and that's what we used.
So there's a number of different primary, secondary school programs you can buy and we use those. In that transitory population it is not appropriate to be trying to use, for instance, the South Australian curriculum. It's just impossible to use that kind of document with children that have no English at all. So we were doing ESL for a good number of months while I was there. And then later on in the year it became quite clear for the first time that some of the children were actually going to be there a lot longer than three months.
And because it was then clear that these children were going to be staying longer, they've obviously developed some English skills by then, that we really needed to look at setting up the curriculum and ESL type curriculum and doing conceptual development for these children. And that wasn't such a priority before and it changed, the priorities changed. So when this document came into being it was evident that children were there for a longer period of time and it was evident that then our education focus actually had to change from an ESL like focus to something more conceptual and that's what we were - that's where this came from.
MR WIGNEY: Accepting, of course, the difficulties and complexities in providing an appropriate curriculum to this population in the detention centres and accepting, of course, the inappropriateness of simply adopting holus-bolus some curriculum, what I suppose I'm exploring is whether ACM or indeed even ACM at Woomera ever reduced into writing a specific set of guidelines for the curricula at that
MS LUMLEY: No, they didn't.
MR WIGNEY: --- at any of the facilities.
MS LUMLEY: No.
MR WIGNEY: Was it the situation that in terms of the teaching staff, there was a fairly high turnover?
MS LUMLEY: There was initially when I was there and then - I guess initially - some people go to a detention environment to teach and they find possibly that that's not the environment for them and they are not necessarily suited to that environment, as with anywhere. So when I was first there there was a bit of a turnover but from about September last year people - we got people that wanted to work and stay there. I was there for 14 months and the current - the teachers that are currently there most of them have done at least a year now.
So I think it's fair to say that, yes, at the time there was a fairly high turnover but now there's much more stability in Woomera with those teachers and that's a very good thing.
MR WIGNEY: Of course, that being obviously a very important factor to ensure the provision of adequate educational services, it is a very different ---
MS LUMLEY: Well, to ensure continuity, it certainly helps, yes.
MR WIGNEY: And hard to build up a relationship with children if there is constant high turnover, and again, I am not being critical.
MS LUMLEY: Hard to build up a relationship with children when you don't know how many you are getting in and how many are going out in one week.
MR WIGNEY: Yes.
MS LUMLEY: Very difficult to build up a relationship then. But much easier now; you know, ironically, when they are there for much longer, yes, there are some very strong relationships now between the teachers and the children.
MR WIGNEY: The reason I asked you about staffing issues at this stage is this; that if the facility, the education - I withdraw that. If there are no documents setting out any form of curriculum that ought be the basis for education services in any one facility, it makes it particularly hard for - if there is a transitory teaching population, to
MS LUMLEY: It does, but when people - when people left, they often left fairly comprehensive notes. As a professional teacher you are not going to leave knowing that someone else is coming in, and you are just going to leave them in the lurch. You know, generally, professionals don't do that. And the teachers would leave some fairly comprehensive notes and guidelines and then one of us would be able to pass it on to anybody new. So we did do that and we did run people through what we were doing. Although there wasn't a formal guideline, informally we certainly tried to help each other as much as we - as much as we could.
MR WIGNEY: And is it the situation that still, to this day, no document setting out the guidelines ---
MS LUMLEY: There isn't.
MR WIGNEY: Or any rough sort of curricula that ought be provided in the ---
MS LUMLEY: If we had set out guidelines this time last year, they would be completely irrelevant now. So it would be something - it is a dynamic process; these children are there a lot longer now, they have got different needs now, and now it is actually much easier - and they are doing this now - to use the South Australian curriculum because there is a level of English now that enables us to be able to use curriculum documents. What we are not able to do, even if we use curriculum documents - we are not able to do exams because we don't have access to exams.
MR WIGNEY: I was going to take you to some documents in relation to Port Hedland, but that would be a fairly futile exercise, I take it?
MS LUMLEY: It would, because I haven't got a clue what they do at Port Hedland.
MR WIGNEY: Well, I won't do it. Can I approach it perhaps in this way; is this a fair summary of the position, at least in the years 19 - or at least in the years that you were specifically at Woomera - that it was largely left up to the ACM managers or the education managers in each of the facilities to formulate some sort of a curriculum or deal with the education programs at that particular facility?
MS LUMLEY: I think that is a fair comment, and I think, you know, in fairness, ACM have got professional teachers on board to do that, and that is why they get professionals.
MR WIGNEY: But there is no central co-ordination from ACM head office as to a central curricula, or a central set of guidelines ---
MS LUMLEY: Not that I am aware of, no.
MR WIGNEY: Can I just ask you some questions in relation to hours; I don't know if that - what time were you ---
DR OZDOWSKI: Perhaps I have got two more questions - I don't know if you would like to change topic - maybe to ---
MR WIGNEY: I was moving onto a slightly different topic in the context of education.
DR OZDOWSKI: So maybe let's do it after a break. Now, two questions; I am not fully convinced that it was impossible to give certificates because I saw people who left detention centres, for example, with their medical records. And you are also saying that there were quite detailed notes prepared on different students. Wasn't it possible, in a way, to give them on the day of their departure, and I know it would be at short notice, or at least to follow it up with a letter so they could have some assessment?
MS LUMLEY: Medical got 24 hours notice of people's departure, only medical. So medical were able to get their records together. From the time when I was Education Coordinator, we did do progress reports on the children, and we put a copy in their file and we gave a copy to the parents, and our idea with that, to the parents, that if we gave a copy to the parents that maybe the parents would take that to the school that their child is going to, and maybe that would be some help to the parents. We have no idea where these people go when they leave; I don't know if they end up - where they end up, so it is we are not able to follow through or send anything through because we don't know where they are. ACM are not privy to that information.
DR OZDOWSKI: Did you provide the Department of Immigration with individual records?
MS LUMLEY: Yes, the file - their file with their, you know, if they had a, you know, case management, or the file - like, with the education report on it because it would be all in there, all of that goes straight to the Department of Immigration.
DR OZDOWSKI: The Department. Do you know whether the Department was forwarding further to the children's ---
MS LUMLEY: I am not aware, I really don't know what they did. But what - we did try to give something to the parents for them to use.
DR OZDOWSKI: Now, going to these schools, how do they function? I visited all the detention centres a number of times, and I rarely saw a school functioning at the level which would be comparable to normal school in the community. Perhaps one could say that at the early stages when you had this transitory, population there, there were relatively short three/four hours, and they had classes dealing with English language, and I saw much participation. However, coming later, especially during the third year, I saw only one school which was functioning and that was on my last visit to Woomera, and that school was operating only for two days before I arrived.
MS LUMLEY: Yes, the new ---
DR OZDOWSKI: So it is very difficult to form a judgment on the basis of it.
MS LUMLEY: Yes.
DR OZDOWSKI: But a more basic question to you; is it really possible to deliver education in the detention environment to long-term detainees?
MS LUMLEY: It is possible to deliver education in the detention centre. It is possible to deliver quite a lot of academics, I suppose. Education isn't just about academics, it is also about socialisation and learning to socialise with other children. And I think, yes, you can - yes, they do socialise amongst themselves within the centre, but my personal opinion, and I will stress that it is my personal opinion, they are not socialising as well in a detention centre as they may do in an ordinary school.
DR OZDOWSKI: So your personal view would be that a preference, especially for long-term detainees would be that they do attend local schools.
MS LUMLEY: And I would make the distinction between long-term, as well. For short-term stays, I don't really think it would be appropriate because the schools would never - the outside schools would never be able to cope with the constant change, so it wouldn't be appropriate.
DR OZDOWSKI: Yes.
MS LUMLEY: For long-term detainees, it would - yes, I think it would be appropriate for them to be externally schooled.
DR OZDOWSKI: Thank you. Mr Rushton, would you like to ask anything or ask any questions?
MR RUSHTON: Perhaps if I could leave it until the end, the Commissioner.
DR OZDOWSKI: Okay. And Mr Bromwich?
MR BROMWICH: No, I don't have anything at this stage, although, Commissioner, I have been asked if we could very briefly, and for a very short practical purpose, revisit part of the unaccompanied minors. Ms Greaves wishes to place before the Commission the new MSI which was tabled in Parliament yesterday, and we didn't want more time to elapse. We have got the document and we wish to provide it.
DR OZDOWSKI: Yes. We will do it when DIMIA resumes the witness-stand.
MR BROMWICH: Well, I am in your hands in that regard, but they would like to do it sooner rather than later.
DR OZDOWSKI: That is fine.
MR BROMWICH: The only advantage I thought in perhaps doing it before morning-tea is that counsel assisting might have a chance to look at the document.
MR WIGNEY: Is that the one that was only media speculation on Monday? Sorry, I withdraw that.
DR OZDOWSKI: So DIMIA would like to table that document?
MR BROMWICH: They would like to provide the document to the Commission.
DR OZDOWSKI: Well, if it is only this, we can do it now. Yes, I think we have finished with the witness, so thank you very much, and could we ask DIMIA to approach the bench?
MS GREAVES: Commissioner, as you may be aware, the Minister made a statement in the House yesterday, and at that time tabled a new MSI on unaccompanied minors and another MSI on alternate places of detention, and because they are both relevant to this Inquiry - the content of this Inquiry - I thought that it would be useful for the Commission to have them. The one on unaccompanied minors is basically a revision of the September version, and it just makes the - well, I guess the best way to describe it is that, except in exceptional circumstances, unaccompanied minors will be moved to either an alternate place of detention, or if appropriate, to be released on a bridging visa. So I thought that that would be of use to the Commission.DR OZDOWSKI: So yes, please table this, Ms Greaves.
MS GREAVES: Sorry?
DR OZDOWSKI: Please table it.
MS GREAVES: Thank you.
DR OZDOWSKI: Thank you very much. We will arrange for copies of these documents to be available to the parties. Now, we will adjourn and we will meet quarter past 11, thank you.
SHORT ADJOURNMENT [10.55am]
RESUMED [11.24am]DR OZDOWSKI: Well, I think we are ready to start. So if we could return to the issue of schooling. Mr Wigney, if you could start?
MR WIGNEY: Can I just - sorry, just briefly return back to the issue of curriculum, and I just wanted to ask you this. Was one of the constraints in relation to formulating, or operating in accordance with a curriculum that there were largely, at least for most of the time at Woomera, inadequate resources to really allow proper curriculum to be formulated and acted upon?
MS LUMLEY: For doing ESL work there was adequate resources. For running a full curriculum; we hadn't been required that we - well, it wouldn't have been appropriate to have been running a full curriculum, as I said, when it was a transitory population. So it wasn't resourced for running a full curriculum, because it had never been the case that we'd have been able to run that. Now that it is the case that we need to run a curriculum, it is better resourced. But I guess back in 2001 we just - the infrastructure wouldn't have necessarily been there to be running in terms of buildings to be running a full curriculum.
MR WIGNEY: Well, I just wanted to take you to one document. I think you, perhaps more so than just about any other education officer, seemed to produce monthly reports in relation to circumstances at Woomera. I wanted to take you to page 241 of that bundle of documents. Now, sorry, I should take you to the first page of that. That is 240 of the documents.
MS LUMLEY: Yes.
MR WIGNEY: It is a report, or memorandum, penned by you 25 February 2002, being the monthly report for February 2002, and if you go over the page at 241 you have got the - you have recorded this:
The curriculum taught is based on a modified South Australian curriculum for, ESL learners.
And then you go on.
If we are to work towards teaching a more comprehensive curriculum, then the issue of resources will have to be addressed immediately.
I just wonder if you could expand on what you meant there if you can recall as to the issue of resources? Were you talking about facilities, teaching resources?
MS LUMLEY: Both, really. There was a - in terms of curriculum resources, as in books, yes, we would need to have resourced that more comprehensively to run a more comprehensive curriculum for the reasons I just stated. And also in terms of facility as well, we were - at that time, we were out at St Michaels, and I think the numbers really at that time had reduced enough for us to be able to get all of the children in the classes.
DR OZDOWSKI: Can I maybe ask a question about St Michaels, because I visited it. I visited it about five months ago. When I was there, it was during the time of an escape from Woomera. When I was at school there were no children there. I was told that the children were participating, or sympathising with parents in context of their hunger strike, but there were also no children there from the housing project. So basically the school was empty. Nobody could explain why nobody was there. I looked at the class-rooms which were quite reasonable, normal class-rooms. Then I asked about, for example, dictionaries and I was shown Arabic dictionaries, which were in the class-rooms. Then I asked about the composition of students, and I was told that basically all students are Farsi speakers. I asked for a Farsi dictionary. There wasn't even one in the whole school. So then I asked other questions, and basically the impression I got from that school, from that particular visit, that there was a bit of a theatre arranged for me there. Could you perhaps comment on it?
MS LUMLEY: A theatre. I actually find that quite - we work very, very hard at St Michaels. I actually find that quite upsetting that you would call it a theatre. We can give - we can provide statistics of how many children generally attended, and when there was an impending visit, such as your visit, children would not attend school, or any other, you know, dignitary visiting, they would not attend school.
DR OZDOWSKI: Why?
MS LUMLEY: Because they deliberately didn't want to be seen to be normal, I guess. Normal, enjoying themselves. It was - and it was deliberate. And they would say, you know, "We know there is a visit coming up, and we are sorry, Miss Sarah, but we won't be coming to school tomorrow."
DR OZDOWSKI: So it was form of a protest?
MS LUMLEY: Yes, it was a form of protest. In terms of dictionaries: you have got to, I guess, put that into context. There are Farsi English dictionaries available. They are adult dictionaries only that are available in Australia, and most of the children don't actually have literacy in their first language in order to be even able to use a Farsi dictionary. So to be able to use a Farsi dictionary you need to know Farsi, and the majority of those children would not have known Farsi in their own language enough to use a dictionary. So there would be a percentage of children that would have known enough, but the majority haven't - a lot of those Farsi speakers hadn't even had previous schooling. So the only language they would know is English in terms of writing and reading.
DR OZDOWSKI: So you were not using, on purpose, any materials which were in the languages of origin?
MS LUMLEY: No, we did have some bilingual story books, and we would get native speakers of Farsi to read stories in Farsi to the children, because they are only listening to that. Some of the older children, sometimes when we did stuff, we would get the interpreters to - we would have the poster, or the material in English, and we would get an interpreter to also write it in Farsi. Just so that there is some, I guess, some maintenance in mother tongue maybe for some of the older children. But in terms of materials in Farsi: very, very difficult to get hold of in Australia. If it is Arabic, there is a lot around. But Farsi, just not available.
DR OZDOWSKI: Did you have a budget for the purchase of materials for school?
MS LUMLEY: Yes. We did.
DR OZDOWSKI: How much was that budget?
MS LUMLEY: I don't really know, to be honest, because the Manager oversaw the budget.
DR OZDOWSKI: But you also had, in a way, principal of the education system.
MS LUMLEY: No. Not ---
DR OZDOWSKI: But did you have your own - whatever, yes. Maybe? But did you have access to moneys so if you ---
MS LUMLEY: Yes. Yes. And I'd put in orders and I'd order so many resources and, you know, if I was going to go over budget, I'd be told I'd be going over budget. But there are a huge amount of reading books and reading schemes available for the children, so we put a lot of money into that, and we put money into constructive play things for the younger children. Yes, and just - yes, and we're generally building on our resources all the time. The budget is monthly, so you could buy things all the times.
DR OZDOWSKI: So you think the resources adequate - allocated for educational purposes were adequate?
MS LUMLEY: I guess it's difficult to allocate a budget when you don't know, in advance - like, for ordinary schools we'd know in advance that next year, they'll have 100 children. So there's their budget for 100 children for the year 2002. Off you go and spend your money and plan for curriculum for 100 children. In a detention centre you're just not able to do that. So currently there are 14 children, but a year and a half ago, there were 400. So we couldn't possibly plan our resources to meet the needs at the time, because you don't know how many people you're going to have. We can do that better now that, you know, that there is a more stable population. But certainly in 2001 it would just have been impossible to plan for that, especially with the influx that we had in July/August 2001.
DR OZDOWSKI: Thank you.
MR WIGNEY: Just picking up on the point about budgets, the ACM manager oversaw the budget for the facility - for the detention facility generally?
MS LUMLEY: Yes.
MR WIGNEY: And were you allocated a specific amount on a monthly basis, or any other ---
MS LUMLEY: There is a budget for education.
MR WIGNEY: And was that operated or dealt with in a flexible way, that is, if, for example, there was an influx of children, were you able to respond quickly and increase the budget, if needs be?
MS LUMLEY: I don't - I'm not really too sure, to be honest, because when there was - when there were influxes of children, I wasn't in a position to be knowing about the budget. I hadn't been there long enough to have much to do with that. The difficulty was when there was an influx of children, we would order a lot of material, but it would take some time, obviously, to reach us.
MR WIGNEY: Just in general terms, picking up on the point of books, and I was going to - well, we'll deal with it now, but the Commission certainly heard evidence, at least in relation to some of the other facilities, that there really was a perennial shortage of those sorts of resources, books and even pencils and items like that. Do you say that that was or wasn't the situation at Woomera?
MS LUMLEY: There were shortages of books and pencils when an order was in and we were just waiting for things to come in. Yes, certainly, when there's an influx of people and you put a huge order in for exercise books and pencils and rubbers and whatever, it doesn't arrive on your doorstep immediately. It, you know, it is generally, you know, four to six weeks, often, before the order arrives.
DR OZDOWSKI: Four to six weeks to get pencils in?
MS LUMLEY: Yes. See, if you're ordering them from the - from Adelaide, it seems to take a long time to get to us often. We're ordering very large quantities, it has to be remembered, so often, you know, I don't know, they weren't in stock. I don't know. I don't know. I just know that we ordered and we waited, and that's - that from my perspective that's what was happening at Woomera.
MR WIGNEY: Did you ever find, as education officer, that there were pressures upon you to minimise the amount of money that was spent in relation to your programs?
MS LUMLEY: Not really. I guess - no, not really. No.
MR WIGNEY: Just moving on to the slightly different topic, but accepting for present purposes the particular difficulties and complexities that may apply in a detention facility in relation to the provision of education, did you, at least at Woomera, attempt to make the education commensurate with the standard or level of education in outside schools?
MS LUMLEY: I attempted to make it appropriate for the detainees there, and what is appropriate for a 12 year old in the community may not be appropriate for a 12 year old child that's got no previous schooling.
MR WIGNEY: But just in terms of concrete matters such as, for example, the hours of tuition, did you attempt, at least attempt, to make that commensurate with outside schools?
MS LUMLEY: We attempted to give them as much education as we were able to.
MR WIGNEY: Now, you're obviously aware from your teaching experience generally that the ordinary hours of ---
MS LUMLEY: Yes. I know - I know what the ordinary hours are.
MR WIGNEY: --- school tends to be 9 till 3, or at least five, six hours of tuition a day.
MS LUMLEY: Mm.
MR WIGNEY: It was the situation at Woomera, was it not, really during the period 1999, or 2002, at least the times that you were there, that, on the whole, whilst it fluctuated, the hours of tuition that were provided to the children were somewhere in the vicinity of one hour and, on occasion, three hours.
MS LUMLEY: That's right.
MR WIGNEY: And why were the hours so limited?
MS LUMLEY: Because when you've got - when you've got 400 children and four classrooms, it's actually not possible to get them in there for five hours a day and teach them all for five hours a day. So you have to do something similar to what I did in Africa, which is you have to teach them on a shift type basis as far as practicable.
MR WIGNEY: So it was really - and, again, I'm not being critical - it was a resource issue as much as anything else.
MS LUMLEY: In terms of buildings, yes.
MR WIGNEY: Yes. And, indeed, at Woomera, for example, on occasions classes were held in the mess or under shade cloths in the compounds; is that right?
MS LUMLEY: Yes. That's correct. Yes. But I think - we maybe need to put that in context to some extent, that there were new buildings in Mike and November compounds and then, unfortunately, they were burnt down. So ---
MR WIGNEY: In terms of the hours, of course, the other resourcing issue that limited you - you've referred to buildings, but the other resourcing issue would have been staff, I expect. Is that right?
MS LUMLEY: It was a resourcing issue but, if we'd have had 25 teachers on the ground, we wouldn't have had the buildings to put them in. So not much point getting a lot of teachers if we can't actually go into a room and teach. It's a restriction.
MR WIGNEY: Certainly at times you also had staff shortages at Woomera, did you not?
MS LUMLEY: When - certainly - when I - the times that I was more involved with the staffing, we had the staffing numbers appropriate to the level of detainees. I think when there was an influx of people, it was very difficult to get teachers up to Woomera in such a short period of time. It's very difficult to recruit people to go there at very short notice. And that certainly is a logistical difficulty. Anybody has to give notice for a job so, you know.
MR WIGNEY: The Commission has heard some evidence about teacher to pupil ratios in the order of 300 pupils to one teacher. Is that something that you recall?
MS LUMLEY: Well, I think the highest number of pupils when I was there in 2001 was about 400, and at that time there were five teachers. So I - you know, I guess if we do our maths with that, it wouldn't work out quite the same.
MR WIGNEY: Sorry. I think the ratio was - I may have put it to you incorrectly. The ratio was of detainees to teachers, that is 300 detainees to one teacher. Is that something that you recall?
MS LUMLEY: I wouldn't - I wouldn't be able to say off the top of my head, the ratio.
MR WIGNEY: How was the decision made as to how many teachers you were able to employ?
MS LUMLEY: It's per - yes, it was per - like, it's done in bands so there's, you know, if there's 100 detainees, there's so many teachers. If there's 1000 detainees, there's so many teachers. So it depends. It increases and it decreases.
MR WIGNEY: Because, of course, the teachers also were expected to provide at least some adult education, particularly English classes and the like.
MS LUMLEY: Yes. It just depends how - within our own team, we decided to allocate things. If somebody was an adult specialist, then we'd primarily give them adult classes. If there wasn't, you know, maybe an adult specialist available at a given time then, you know, we'd all do some adult classes as well.
MR WIGNEY: Were the staff shortages such that, at least at Woomera, there were, on occasion, detainees used as teachers?
MS LUMLEY: Yes, I think we really need to clarify this. Detainees - we used detainees for assistant teachers. A lot of - I think - the detainee population has a lot of professional and well educated people in it and some of them were teachers. Now, we couldn't actually get their qualifications because we didn't have privy to that kind of information. If somebody came up to us and said, "I'm a teacher in my own country. I'd like to teach some of my friends in a class. Could you help me with that?", then, certainly, we would supervise those people. We would give them materials to help them, and they taught. To say that we relied on them, I think would be an exaggeration. But we certainly had a number of detainees who worked in a teaching capacity, and when there's somebody in detention that wants to do that, I'm certainly not going to turn that offer down.
MR WIGNEY: I just want to direct your attention to one document in this bundle - it's at page 253 - and as I said, to your credit, you appeared more than just about any other education officer to document these sorts of issues, but that's a memorandum from you to [name removed] who is - who's that? Who is [name removed]?
MS LUMLEY: He was the centre manager at the time - ACM centre manager.
MR WIGNEY: 22 May of 2002 and the subject being, "Requirement for an extra education officer".
MS LUMLEY: Sorry. What document have you got?
MR WIGNEY: 253.
MS LUMLEY: Sorry. Okay.
MR BROMWICH: Commissioner, just - only a minor thing. Earlier there were - I think I mentioned privately that, if possible, we could avoid references to the names of the schools for privacy reasons, and I note there's a school named here. I think it slipped out before, but if we could avoid the name of the school, I think it's desirable.
DR OZDOWSKI: We are talking about Woomera detention school. We are not talking about schools in the community.
MR WIGNEY: St Michael's is actually ---
MR BROMWICH: Sorry. I beg your pardon.
DR OZDOWSKI: They're commissioned to be ---
MR BROMWICH: I beg your pardon.
DR OZDOWSKI: Yes.
MR WIGNEY: Now, I just want to direct your attention really to two items that you have recorded in this memorandum. Firstly, the third dot point down, you'll see there is the particular reference that I wanted to take you to: five to six year olds - residents who run the five to six year old class - there is no input from an ACM education officer.
MS LUMLEY: That's right. There's - the residents that were running it have been there for a good period of time and they were supervised by myself, in fact, ---
MR WIGNEY: Yes.
MS LUMLEY: --- because I ran lower primary classes.
MR WIGNEY: But you, perhaps to your credit, were drawing attention to the head office of the fact that you really required more resources to avoid, amongst other things, the situation where the education officer was not even able to have any input in relation to, in this case, five to six year olds.
MS LUMLEY: Given that the context of this document is that I wanted to double the amount of education hours for the children ---
MR WIGNEY: Yes.
MS LUMLEY: --- we were not able to resource it if I was going to double the education hours. So what I was saying is that we do 9 to 12; I want to do 9 to 3, but if we're doing that then we need to increase our resources.
MR WIGNEY: Yes. And were they increased?
MS LUMLEY: When was this? May. Not at that time, but I think subsequently they have been. I left only a month after that. So, given that time-frame, it's probably - I'm probably not able to follow that through.
MR WIGNEY: All right. Well, the only thing whilst we've got this document, is again pointing out, relevant to curriculum, that you note in the next dot point that you're not resourced with materials for long-term children for all areas of the curriculum. And that's again, pointing out to ---
MS LUMLEY: Yes.
MR WIGNEY: --- central office the limitation of the resources ---
MS LUMLEY: That's right.
DR OZDOWSKI: Perhaps when the counsel is talking to some other people, if I could ask you a question. It's a question about attendance rate. Quite often I was told that children do not take part in education. Could you comment how widespread this was from your point of view?
MS LUMLEY: Yes. Well, I'd actually disagree with that. I think one thing that struck me about the children in detention is their keenness to go to school.
DR OZDOWSKI: We are talking about kids to the age of 12 about?
MS LUMLEY: To the - yes.
DR OZDOWSKI: Yes.
MS LUMLEY: Certainly primary children were.
DR OZDOWSKI: Primary, yes.
MS LUMLEY: You couldn't get them out of the classroom. They were really, really keen, and the attendance rate for the primary age children was very, very high. For the teenagers, yes, there were some attendance issues and I guess part of that is because in Middle Eastern culture, that I've experienced in the detention centre, boys from the age of about 14 don't consider themselves necessarily to be children of school age, and they actually consider themselves to be adults and they don't find it appropriate to maybe be in a school with 12 and 13 year olds. And certainly to get 15 and 16 year olds in the classroom often was quite difficult.
DR OZDOWSKI: Did you see any difference in attendance between children who were in detention for a relatively short period of time and people who were in detention for a much longer period of time?
MS LUMLEY: Not really. I think at the same age - this criteria for the age is the key factor to attendance.
DR OZDOWSKI: So it wasn't a situation that even boys over, say, 14 were attending much more often during the first three or four months and ---
MS LUMLEY: No. Not ---
DR OZDOWSKI: --- then dropped out?
MS LUMLEY: Not necessarily, no.
DR OZDOWSKI: No.
MS LUMLEY: No. There'd be a core group of children in that age group that would always go and then there would be a - you know, sort of hangers on - people that would drift in and out. In terms of now at Woomera - I mean, it's such a small group anyway. I know those children pretty much attend every day.
DR OZDOWSKI: So basically, one could conclude that at least as far as it concerns primary-age school children, they are quite keen and willing to participate in schooling?
MS LUMLEY: Very much so. Very much so.
DR OZDOWSKI: Thank you.
MR WIGNEY: Sorry. Just one more specific issue and then - in an attempt to avoid taking you to too many documents, I think I've asked you some questions about the hours of tuition and the shortages of teaching. I think - and I can take you to the documents if needs be, but in your monthly reports - really almost every month during 2001 in your monthly report, you indicated that the limitation in expanding the contact hours from one to two hours was shortage of teachers and resources.
MS LUMLEY: And - yes, in terms of facility to teach them in.
MR WIGNEY: Yes.
MS LUMLEY: Like I say, you could have had 25 teachers, but if you haven't got the buildings - you haven't got the classrooms to use, then ---
MR WIGNEY: Yes.
MS LUMLEY: --- you know, there's not much point in having that many teachers.
MR WIGNEY: But you also do specifically raise the lack of teaching staff throughout
MS LUMLEY: Yes. I think what was difficult in 2001 certainly was - and again, not predictable - is when they're in separation detention or in different compounds. When they're housed in different compounds - you know, you might go from teaching in one compound and all of a sudden there's a boat load comes in and you've opened two more compounds. So you're suddenly going from just teaching your class in one compound to having to, you know, extend significantly. And you need people, you know, at very short notice to do that and it's very difficult to get people at that notice.
MR WIGNEY: Just as a matter of interest, you referred there to separation detention. Did you have to conduct separate classes in separation detention at Woomera?
MS LUMLEY: Well, if they're in a separate compound. So, yes.
MR WIGNEY: And what were your observations during the time that you were at Woomera as to the length of time that children remained in separation detention?
MS LUMLEY: I'd actually find it quite difficult to give you - because they were coming and going so often and they'd dribble in and out of the compound. So there were people constantly coming in and constantly going out. So it would actually be quite difficult to give you some kind of time-frame for people.
MR WIGNEY: The point in raising the fact that in memorandums throughout 1991 and 1992 - your memorandums - sorry, 2001 and 2002. It didn't seem that your memoranda were responded to adequately. That is, it does not appear that you were provided with more teaching staff that you were asking for in these memorandums. Is that an accurate statement?
MS LUMLEY: Yes.
MR WIGNEY: Now, I just want to move, finally, on to a slightly different topic and you, at the beginning of your evidence, referred to the fact that, at least in terms of socialisation, putting children in external schools was, in your personal view, a preferable state of affairs; is that right?
MS LUMLEY: Yes.
MR WIGNEY: And there were, were there not, some schools or local schools proximate to the Woomera detention facility?
MS LUMLEY: There's the Woomera Area School.
MR WIGNEY: I just wanted to explore this with you. What was your experience in terms of dealing with, negotiating with or liaising with the external schools? Was it left up to people in your position as teachers or education officers at each individual facility to so negotiate or liaise or was there some central ---
MS LUMLEY: I can't really - sorry.
MR WIGNEY: Was there some - was it ever co-ordinated from central office that you can recall?
MS LUMLEY: Not that I recall. It wasn't co-ordinated from central office. They were certainly keen for us to be liaising with the local schools.
MR WIGNEY: But they largely left it up to the education officers or teachers on the ground to ---
MS LUMLEY: Or the centre manager.
MR WIGNEY: Right. Or the centre manager?
MS LUMLEY: Yes.
MR WIGNEY: And ---
DR OZDOWSKI: We will strike the name of the school from the record.
MS LUMLEY: Sorry. I know ---
DR OZDOWSKI: It's okay.
MR WIGNEY: I'm sorry. Was that me? Are you able to recall at least during your time at Woomera that the Department of Immigration had any input or any assistance, or provided any assistance in relation to liaising with the local schools?
MS LUMLEY: Not that I'm aware of. They certainly asked us how we were getting on though. They were interested.
MR WIGNEY: As far as you're aware, was it - I withdraw that. Was - in terms of dealing with or approaching or negotiating with the local schools, were the individual ACM education officers or the like also required to deal with the issue of fees or who was to pay for the fees? Was that ever an issue?
MS LUMLEY: I would have been involved, as the Co-ordinator, and the Centre Manager was involved but individuals, no. They wouldn't be involved in that.
MR WIGNEY: So, again, it was largely left - it was largely on an ad hoc basis. That is at each centre, the ---
MS LUMLEY: I couldn't talk for other centres. I really don't know what they were doing.
MR WIGNEY: Certainly, at Woomera, it was dealt with on a largely ad hoc basis, was it; that is, the question of fees and funding for external students?
MS LUMLEY: We were following it through, extensively. There were extensive negotiations between ACM and the local schools so I wouldn't say that we were running it on an ad hoc basis at all but I couldn't speak for the other centres.
MR WIGNEY: As far as you were aware, was the funding of external schooling for detainees ever an issue?
MS LUMLEY: No.
MR WIGNEY: And who did you understand was to pay for it?
MS LUMLEY: I have limited understanding of that: I guess, ACM, initially, and then - I don't know whether DIMIA would pay for that afterwards, so I really don't know.
MR WIGNEY: Did you have any specific dealings with anyone from the Department about those issues?
MS LUMLEY: I relayed some information about our negotiations to the DIMIA Business Manager at one point but, in terms of fees, I don't know - I can't recall, to be honest.
MR WIGNEY: I just wanted to ask you one final question as a general - two final questions. One concerns special education requirements, especially for disabled children. Now, did you have sufficient resources or teachers experienced in special education?
MS LUMLEY: Did I have experience in - sorry, I got distracted.
MR WIGNEY: Yes, so was I. Did you have any sufficient resources and expertise, expert staff, to deal with special education requirements?
MS LUMLEY: ESL is a special need and all of our teachers had experience in ESL and we resourced for ESL. In terms of other special needs, really, I can - I can maybe think of one child that had a disability, a physical disability. I can't really think of any other instances or there may have been children that we thought may have been - may have required maybe some extra help to what - but that was towards the end of my time there.
MR WIGNEY: What about, for example, children with - who were developmentally delayed or had development difficulties? Were there sufficient or adequate resources to do with such with special education?
MS LUMLEY: Well, we had a - we had a child with an intellectual disability. Sometimes, they can be integrated into the normal classroom and that's good for socialisation. Other times, they might need assistance.
MR WIGNEY: But were there any teachers trained in the provision of special education for such ---
MS LUMLEY: Some of the teachers may have done extra training in special needs but we didn't have a solely special needs teacher, as such, no.
MR WIGNEY: Yes, I have nothing further of Ms Lumley at this stage.
DR OZDOWSKI: Yes. Just maybe two more questions from me.
Did all your teachers have formal teaching qualifications?
MS LUMLEY: Absolutely.
DR OZDOWSKI: Everyone there?
MS LUMLEY: Everyone, as far as I'm aware. We wouldn't take anybody on that wasn't fully trained ---
DR OZDOWSKI: Thank you.
MS LUMLEY: --- and qualified as a teacher.
DR OZDOWSKI: Now, when I was in Woomera, I saw your teachers wearing ACM uniforms ---
MS LUMLEY: That's right.
DR OZDOWSKI: --- and earpieces.
MS LUMLEY: That's right.
DR OZDOWSKI: Could you explain why, for a teacher, to wear earpiece was necessary?
MS LUMLEY: Having - when you're out in a compound, there's no - like, there aren't necessarily telephones in the education area. So for anybody to have any contact with you, you need to be contactable so radios were used with earpieces and it also - it's a means of contact, partly.
DR OZDOWSKI: But in normal schools, teachers are not being contacted during the classes, during the lesson?
MS LUMLEY: No, but there may be occasions where we would need to be contacted in the Centre.
DR OZDOWSKI: Could you give an example because, as I understand the school - at least, the current school, it's quite isolated from the other complex?
MS LUMLEY: In cases of a fire, for instance - if there was a fire in the Centre then obviously we'd all need to assemble. Even if there's - obviously there's a re - you know, warning system but we'd still be notified that we'd need to assemble at the - you know, emergency assembly point, for instance.
DR OZDOWSKI: Was the uniform of a teacher, in any way, different from a uniform of a guard?
MS LUMLEY: No. There are different components to the uniform now and I chose to wear - for instance, I chose to wear a long skirt and you wouldn't wear a long skirt, necessarily, as a detention officer; so, other than that, not really.
DR OZDOWSKI: But teachers were not really distinguishable ---
MS LUMLEY: No.
DR OZDOWSKI: --- from other officers, ACM officers?
MS LUMLEY: No.
DR OZDOWSKI: The final thing, the issue of riots: they were happening from time to time in Woomera.
MS LUMLEY: Mm.
DR OZDOWSKI: What was the behaviour of children in class during the riots and after? What impact did it have on them?
MS LUMLEY: If there was a disturbance about to - you know, you could, the tension and the feeling - kind of had an idea something was to happen - I always instructed the children to go immediately back to their parents and back home and stay at home.
DR OZDOWSKI: So they left school?
MS LUMLEY: They left the school. Yes, they left school because, you know, I wanted them to be safe. After a major disturbance, the children were keen to be as normal as possible and they just wanted to go straight back into their normal routine as quickly as they possibly could and so we would assist that. You know, we would just get classes running as quickly as we could so that they could be normal, I guess.
DR OZDOWSKI: We heard much evidence that the disturbances had quite a traumatic impact on children. Did you observe any level of traumatisation in children after the disturbances?
MS LUMLEY: More in the adults than the children, to be honest. The children just - you know, when I saw the children, they just wanted to come to school, you know, learn their English and read their books and they wanted to be normal at school and generally, I - generally, they were fine, once they were back in the classroom. Now, if they didn't come back to the classroom for a while, I - you know, I wouldn't necessarily ---
DR OZDOWSKI: So there were children who were not coming back straight away?
MS LUMLEY: I don't - I couldn't categorically say because attendance isn't compulsory, so you couldn't categorically say.
DR OZDOWSKI: You possibly are aware of these drawings by children from detention, displaying various fences, razor wires, water canons and so on. Was this kind of drawing produced during school hours?
MS LUMLEY: There are some very challenging behaviours and we had to devise some very quick strategies often, I guess. The adolescent children were very challenging, a lot of them, in that environment.
DR OZDOWSKI: So you regard that drawing this kind of a picture would be challenging?
MS LUMLEY: Yes.
DR OZDOWSKI: To the teachers or ---
MS LUMLEY: Very challenging to the teachers, yes, because children are in a contained environment and, you know, not many of us, before we go into a detention centre, had experience of that kind.
DR OZDOWSKI: What were other challenges you experienced?
MS LUMLEY: It's a very - it's quite an emotional job because the detainees are living there so it's not like the children come to school and go home and that's the end. You're actually working in an environment where people are living and so you are dealing very much with people on a very personal level and certainly teachers and recreation officers and welfare officers deal at a very different level with detainees to maybe other members of staff. So it was quite - you know, people are obviously frustrated, upset, angry and you're dealing with that on a daily basis and that can be quite emotionally draining.
DR OZDOWSKI: So how did the teachers deal with drawings of this nature?
MS LUMLEY: Sorry, how do we deal with?
DR OZDOWSKI: How did you deal with the drawings showing the things in detention centres?
MS LUMLEY: The drawings?
DR OZDOWSKI: Yes.
MS LUMLEY: I just thought that was - it's a good outlet for children to draw and that's one of the best outlets is art, for them to actually draw things, you know, that they saw around them. And, you know, initially when children came to us they would be drawing boats, for instance. For a good long time they would be drawing boats. And then they may draw other things that they've seen as well. And I just felt that if they were doing that they were getting it out of their system. And that ---
DR OZDOWSKI: So it was therapeutic, yes.
MS LUMLEY: --- is a good thing. It's a good thing for them to do that.
DR OZDOWSKI: Thank you. I understand you've finished. Yes.
MR WIGNEY: I've finished.
DR OZDOWSKI: And - well, maybe it was Mr Rushton, please.
MR RUSHTON: Yes. Ms Lumley, you gave some evidence that ACM had been involved in extensive negotiations with the local school.
MS LUMLEY: That's right.
MR RUSHTON: Were you involved in that process yourself?
MS LUMLEY: Yes, I was.
MR RUSHTON: And over what period of time did negotiations take place as you recall it?
MS LUMLEY: Really from when - from the beginning of 2002. We did have some relations with the school before then but there was a new Principal in 2002 and we started afresh, I guess.
MR RUSHTON: Before 2002 were there some difficulties experienced?
MS LUMLEY: There was a turnover of Principals at the local school so that made continuity quite difficult.
MR RUSHTON: And was there any position ultimately taken by the school as to whether it would accept detainee children into the school or not?
MS LUMLEY: At the local school the school Principal was very keen to accept detainee children.
MR RUSHTON: Was he vetoed in some way?
MS LUMLEY: Sorry?
MR RUSHTON: Was he vetoed in some way?
MS LUMLEY: Yes, he was.
MR RUSHTON: By whom, do you know?
MS LUMLEY: By his superior.
MR RUSHTON: Now, was it as a consequence of that that negotiations commenced with St Michaels?
MS LUMLEY: No, St Michaels is a disused building and that was prior to our main negotiations ---
MR RUSHTON: All right.
MS LUMLEY: --- with the school.
MR RUSHTON: The Commissioner described his feeling that it was perhaps a theatre and you said that you found that upsetting. Would you tell us in some more detail why that's so?
MS LUMLEY: Because we - we secured the school building. We managed to get the school building. We were getting the children out of the detention centre every day which we thought was important for them. We were having two shifts every day of children going in and out of the school because it's only a very small building. The teachers were working very hard. We had to put up with media, all sorts of things and people coming along and looking in the windows and the children did go, they did attend and they did learn and there was a high - a high rate of children going through that school every day and everybody worked very hard. So I find that, yes, upsetting that that is seen to be the case.
MR RUSHTON: Now, when you say the classes were divided into two shifts as such did you form a view as to the length of time that the majority of these children would remain attentive in the ---
MS LUMLEY: That would remain attentive?
MR RUSHTON: Yes.
MS LUMLEY: Generally about three hours. After that they have - after that they found it very difficult to concentrate further.
MR RUSHTON: And one of the things you highlighted in your evidence a little earlier today was that an important component of their teaching was socialisation.
MS LUMLEY: Yes.
MR RUSHTON: Could you explain in some more detail what you meant by that?
MS LUMLEY: Schooling in Australia is very different to schooling in the Middle East which is a more traditional method of schooling. Children in Australia - I guess we encourage them to be more independent and more autonomous with their learning. The whole arrangement of schooling in Australia is different to the Middle East as well so - and some children that we had had never even been to school so they didn't even have a concept of what going into a classroom and sitting down and putting up your hand meant.
So we were trying to get them to sit together, learn together. You know, listen to the teacher, put your hand up, line up. You know, when the bell goes we trot out to the playground and that kind of thing.
MR RUSHTON: Now, you mentioned in your evidence also that schooling wasn't compulsory. Did that cause problems from time to time?
MS LUMLEY: I guess it caused difficulties in that you wouldn't know who was going to come to your class every day.
MR RUSHTON: And who was it as you understood it, particularly with the young children, made the decision as to whether they would attend or not?
MS LUMLEY: Their parents.
MR RUSHTON: And in your observation was that used from time to time ---
MS LUMLEY: Definitely.
MR RUSHTON: --- as a method of protest?
MS LUMLEY: Definitely.
MR RUSHTON: Yesterday I think it was the Commissioner or counsel assisting raised the issue of six weekly contracts.
MS LUMLEY: Yes.
MR RUSHTON: Was that the standard form contract for employees at the centre?
MS LUMLEY: Yes, initially.
MR RUSHTON: Well, can you explain ---
MS LUMLEY: It wasn't for myself but, yes, for other members of staff - we put people on to a six week contract for two reasons. They could either extend or they could leave after that period. And I mentioned before that a detention environment is not suitable for everybody and some people found it - that it was not the right place for them. And six weeks - you know, people can get through six weeks and then they can leave.
What everybody else - what generally happened after that if people found it a suitable environment, they were happy to work there, they would go on to a three month contract. And they just keep rolling on into a three month or a fixed term contract. And they are all fixed term contracts now for the current teachers.
MR RUSHTON: And I think Mr Wigney and the Commissioner dealt with most of the criticisms that have been made in prior evidence. There are a couple that remain though and I would like to take those up with you. Apparently the Commission has heard some evidence that there was no contact with parents in relation to schooling. What do you say about that?
MS LUMLEY: I'd say I have more contact with parents than I've ever had in a community school. The parents live there. You see them all the time. So not only can they appear at your classroom door as often as they like pretty much and they did a lot of them, but you - we often saw them daily - daily and we'd talked to them daily.
MR RUSHTON: All right. Now, you may have dealt with this one but there apparently was a suggestion that there was no record of achievement. And I think this morning you said that there was certainly ultimately a reporting system.
MS LUMLEY: Yes, we began that this year - earlier this year.
MR RUSHTON: And that continues as you understand it to the present time?
MS LUMLEY: Yes.
MR RUSHTON: I understand that the Commissioner also received some evidence that there was restrictions on the subject matter that could be taught.
MS LUMLEY: I think - there were restrictions on PHSE - on teaching - how can I put this, sex development adolescent things because, I think, there's a big issue there about culture and appropriateness. And if you're going to teach, you know, sex education, that kind of thing, then you would really need to talk to the parents as you would in any normal school - any ordinary school and address the parents and get a - you know, an agreement and a consensus over teaching that kind of material. And really that's not an area we were going to go into when we've got children for three months.
MR RUSHTON: Excuse me, Commissioner. You've given some evidence this morning concerning detainee teachers actually teaching. Did some detainees take up a role of assisting teachers as well?
MS LUMLEY: Yes.
MR RUSHTON: And how did that work?
MS LUMLEY: They were supervised by an ACM teacher or they worked with an ACM teacher. Say, for instance, I took the 5 to 7s, I had lower primary children, and I always had somebody working in the classroom with me, as a teacher's aide, I guess.
MR RUSHTON: And did you find personally that that assisted the process?
MS LUMLEY: It assisted the process and it assisted them. It was a mutually beneficial arrangement.
MR RUSHTON: And did it build community within the centre, as you observed it?
MS LUMLEY: Yes, it did, yes.
DR OZDOWSKI: Were they paid?
MS LUMLEY: There's a merit point system in place at the centres, so they get points into their account and points are translated into dollar amounts, yes, so they were paid for it, and again, you know, people then can buy whatever they want to buy, biscuits, sweets.
DR OZDOWSKI: So how many points did they get per week?
MS LUMLEY: One merit point is $1 and you get one merit point per hour.
DR OZDOWSKI: Per hour of teaching?
MS LUMLEY: Mm.
MR RUSHTON: And that system was purely voluntary, as I understand it?
MS LUMLEY: Oh, yes.
MR RUSHTON: Yes, thank you.
DR OZDOWSKI: Mr Bromwich?
MR BROMWICH: I have no questions, Commissioner.
MR WIGNEY: Can I just ask two questions that arise? Firstly, you referred in your evidence - just gave in answer to some questions Mr Rushton asked about approaches to the local Woomera school and the fact that the principal of that school had been vetoed by his superior. Is that - were you personally involved in that communication?
MS LUMLEY: Yes.
MR WIGNEY: Is that something that you raised with your head office?
MS LUMLEY: I raised it with the Centre Manager, and I'm not sure - I wouldn't - I'm sure he relayed it to head office, but I wouldn't actually be aware if he'd done a memo or a fax or an e-mail.
MR WIGNEY: Are you aware of whether that issue was relayed or conveyed to the department?
MS LUMLEY: I expect it was. I expect - I mean, again, it may even have been me that done a memo. I can't actually recall.
MR WIGNEY: It would tend to suggest, would it not, that it may have been useful for negotiations concerning external schooling to be conducted at a higher level, that is, a higher level of people at ACM and the department with people at the higher level in the departments of education in the various states.
MS LUMLEY: Had we been able to get some of the children into the local school, managed it at a local level, which had happened at Curtin IRPC then that would have been a satisfactory outcome for me. As that actually didn't happen at Woomera, that was unfortunate that that didn't happen so at that point, yes, it definitely would have been better to have taken it to a higher level and indeed, it was taken up at a higher level at that point.
MR WIGNEY: You referred to, in your evidence, to the fact that your observations were that children in detention, that you are providing education to, tended to remain attentive for about three hours. I think you'd agreed that in your ordinary teaching experience, pupils often have the same limited attention span?
MS LUMLEY: No, I disagree.
MR WIGNEY: I see. Yes, I've nothing further, thank you.
DR OZDOWSKI: Thank you. So we have got to now 10 past 12 so perhaps we adjourn for lunch or you prefer to continue a bit longer.
MR WIGNEY: I was going to ask, albeit fairly limited, questions of the department officers in relation to education. It may take more than 15 or 20 minutes.
DR OZDOWSKI: If it's 15 minutes, we could possibly do it now; if not, we'll possibly adjourn till 1.30 and we can start then.
MR WIGNEY: I suspect it may take more than 15 minutes.
DR OZDOWSKI: Okay. So we adjourn till 1.30. Thank you.
LUNCHEON ADJOURNMENT [12.15pm]
RESUMED [1.35pm]DR OZDOWSKI: So what we would propose to do this afternoon is to finish with the issue of education, and then - and possibly we will be talking to the Department of Immigration about the education issue. And then, hopefully, we could start going through these two disability cases we have got on our books. And, hopefully, we will finish with it today. But, anyhow, could I ask Counsel Wigney to start.
MR WIGNEY: Now, just to make things clear in terms of finishing off the topic of education. We have heard in some detail from Ms Lumley from ACM in relation to the - particularly in relation to the facility Education Services provided at Woomera. The main topic I wanted to take up with the Department in relation to education concerns external schooling, and as I understand it to be the case; the Department, at least, now acknowledges that it is likely to be appropriate and beneficial for most children to attend external schooling, that is, state schools or schools in the community as opposed to receiving schooling or education in the detention facilities themselves. Is that right?
MS GREAVES: For - now that the population has changed, and we are looking at children who are likely to be in for longer periods of time, yes.
MR WIGNEY: And as I understand the opening address that Ms Godwin gave on the first day of the hearing, the department has given some priority to external schooling, at least in the last nine months.
MS GREAVES: Yes, but that is not to say there wasn't external schooling before that.
MR WIGNEY: No. What I want to explore with you in relation to external schooling is this: that it would appear from the evidence that we have heard this morning that liaison and negotiations in relation to external schooling was largely on an ad hoc basis, and was dealt primarily with the education officers on the ground in the various facilities, and was not dealt with at a senior level in either the Department or ACM. And what is your comment about that please?
MS GREAVES: What we tried to do was to get in place practical arrangements. That was the - to ensure some practical arrangements were put in place. That was the priority. If the arrangements could best be carried forward by on the ground discussions between ACM and local schools, supported by our DIMIA staff in the centres, that was how we did it. We had had some discussions with the South Australian government at some stage last year, and I am just trying to confirm exactly when last year, but there were issues about the reaction from the community.
These things are dependent, not just on we and the state government coming to an agreement, there are, you know, the local schools need to be involved. They need to be supportive. The local community needs to be supportive. And if you look at our experience with Curtin, I think, it shows that. I think our ACM and our centre Manager in Curtin started talking with the principal of the school in Derby some months - many, many months before they actually achieved getting children into the school, and that was mainly because the community was needed to be reassured. So it is a long process, and we have to take account of the community reaction.
MR WIGNEY: I am not suggesting that you ought not to do things at the community level. As I understand the position, however, DIMIA largely left it up to the ACM education officers on site to negotiate at the community level, and really had no involvement in that whatsoever.
MS GREAVES: Prior to the influx in August last year, there were relatively few children. I mean, the numbers of children have expanded quite - you know, to quite a degree.
MR WIGNEY: Sorry, did you say last year?
MS GREAVES: Sorry, August.
MR WIGNEY: 1999, I think you might ---
MS GREAVES: No, '99 we had relatively few children. It was - it has varied over time, but - anyway, the fact of the matter is that we have a contract with ACM to provide education, and in the first instance, they are the people that it is most appropriate to try and make some of those local arrangements.
MR WIGNEY: All right.
MS GREAVES: We - our centre managers were involved in that process, as I understand it, and knew of it, and were doing what they could to take things forward, but it wasn't always necessary to take it up to a state level. Remember also that in some instances it has been non-government schools that we have had arrangements with, and that has been the case in Victoria, going back some years.
MR WIGNEY: May we take it that the Department now considers it - I will withdraw that. Now, considers it appropriate to deal at a state level, that is, with the state departments in relation to arranging for external schooling?
MS GREAVES: We are dealing now with state governments, yes.
MR WIGNEY: Well, why did it take two or three years for that to come about?
MS GREAVES: Because when you actually negotiate, there has to be a preparedness to negotiate on their side. In some instances, state governments weren't particularly interested in seeing this as a priority. When we talked with state governments about their priorities for MOUs with them, it was child welfare, and that was certainly our priority, negotiating child welfare - child protection arrangements, policing arrangements, some of those other things. Education has come up the state agenda more this year, and we have been able to move very quickly in New South Wales to get an arrangement in place in the middle of the year, and we are negotiating with South Australia and Victoria.
With Victoria is, I think, as Ms Godwin said in her opening statement, even though the MOU is not yet finalised, most of it is agreed between us, and therefore they have been prepared to allow the children to go into the state school system. But we also have children going to non-government schools, and there we make arrangements on the ground as well either through ACM, or directly ourselves with our centre managers.
MR WIGNEY: Well, as I understand the situation, at least at this stage, there is really only one formal arrangement or agreement with a state government, and that is the one in place ---
MS GREAVES: In New South Wales.
MR WIGNEY: --- with New South Wales.
MS GREAVES: That's correct.
MR WIGNEY: And as I read the Department submissions there is advance discussions, you say, in relation to Victoria. Is that right?
MS GREAVES: Yes.
MR WIGNEY: When did you first, that is, when did the Department first commence negotiating and dealing with firstly, the New South Wales Government in relation to the agreement that is now in existence?
MS GREAVES: We will need to check. My recollection is with New South Wales; there had been some discussions previously with them about provision of education in government - bearing in mind that in Villawood the numbers of children who were there for long periods of time are relatively small. We had had some discussions. They hadn't proceeded very far. But I think it was around May this year, they took a much more pro-active - the New South Wales government was much more pro-actively interested in finalising an agreement, and we were able to do so very quickly.
MR WIGNEY: What about Victoria?
MS GREAVES: Victoria, again, we have very few children in the Maribyrnong facility, and we had an arrangement in place with Victoria going back to at least as far as 1998, and possibly before it, but at least as far as 1998 with a local non-government school to take the relatively few children that we had there. Now, some issues arose during the course of this year about whether children - parents of children wanted their children to go to a non-government school, and that is where we started to negotiate something with the Victorians - the Victorian government, and that, as I say, is very close to finalisation, and we have children in the schools because the Victorian government has been prepared to accept them into the schools on the basis of the almost agreed MOU.
MR WIGNEY: So we have the situation that in the two states where there is perhaps the least children in immigration detention, we have got some form of arrangement either in place, or about to be in place, and yet in the states where we have most of the children in immigration detention; in South Australia and Western Australia we, at present, have no arrangements or agreements in place at the State level in relation to use of external schools.
MS GREAVES: With Western Australia we haven't needed to because we had in Curtin the children going to the local school and that - I think the maximum number got up to about 13 of the children in that period of time. And at Port Hedland we made arrangements with a non-government school, and all of the children at Port Hedland are attending a non-government school
DR OZDOWSKI: Yes. Can ---
MS GREAVES: But we - that is not to say that we haven't started talking to the Western Australian Government, we have done so. We have now started talking to the Western Australian Government, but right at this moment there is not an immediate need, but we are doing it anyway.
DR OZDOWSKI: Yes. Can I perhaps comment on Western Australia and basically put to you a story in a very abbreviated form as I understand from talking to managers in Curtin and Port Hedland, and also the principals of the schools? Coming to Curtin, the first time I went there the arrangement had just started, and there were only four children going to local school. Then you are right, it went, I think, up to 14 or something around that. My understanding on the basis of what I was told is that this was an arrangement negotiated by the DIMIA Manager, and my understanding is that the DIMIA Manager was in very firm control of who was attended that particular school.
So for example, allegations were made that in case if a child misbehaved, the child was not allowed to go to school. Then I also spoke to the principal of the school and principal of the school told me that he was breaking the state's rules, that he was more or less advised to not allow this to happen but he thought it was a good idea. He said that all children are most welcome to come and not all children were participating because, again, some controls were exercised in Curtin. He also said that the issue of children being transient, moving in and out, it is not a problem for the school whatsoever, because he deals with a quite substantial Aboriginal population which is in the same category. He also said that the issue of English language again is not of importance because, again, not everyone Aboriginal child coming to that school knows English well and they have a system in place where they can deal with this kind of thing.
So basically, we have got two stories which were not necessarily very consistent. The issue was also of money, and my understanding was that the Department of Immigration wasn't paying any money to the school for the children participating there. So let's leave that one for a moment, so you could comment later, and let's go to Port Hedland. Their situation was different. There was a school outside of the detention centre which was a Catholic school, which is a private school for attendance at which usually fees are paid. My understanding was that the school principal lobbied the detention centre in order to receive children, that later the detention centre agreed, and I am not sure whose responsibility it was, whether it was ACM or DIMIA, but the arrangement was entered, and all children could attend this school, but again, no fees were paid at this stage when I was there. And that the disabled children, about whom we will be talking a bit later today - no, tomorrow - were allocated the use of a classroom so they could spend time there with the teacher who was employed by ACM and the detention centre.
What is of concern to me, and what I would like to ask you for your comment, is that, really, it appears to me that in both circumstances arrangements were ad hoc, arrangements were based on the goodwill of Departmental officers or school principals or ACM officers, that there was no systematic way put in place to recompense each schools for taking the students, and in terms of Curtin I was quite concerned about the allegation that access to external schooling was used also as mechanism to control behaviour of children and parents. If I could have your response?
MS GREAVES: The arrangements certainly have been different in different places. I think, as I said at the start, we need - we have to take account of the fact that there are different communities, different mechanisms that can be put in place. We have also - and I think if you look at the New South Wales exchange of letters which have been provided to the Commission - that there are some things that we have to look at before children can attend an external school. We have to have an assessment from the education authority, that is the school in question, that they are children that they think that they can place appropriately. But we also have to take account of our responsibilities under the Migration Act to ensure that the school and the - we have to assess the child as well to ensure that we can maintain detention. That is something that we have to assess; that is our responsibility. So there are circumstances where not all children will necessarily go to the school. Now, as I said, as the children are predominantly longer-term children, we certainly take the position that it is beneficial and appropriate for most detainee children to access external education. We have now articulated that as a policy.
DR OZDOWSKI: Did you put the money where your assessment is, by now?
MS GREAVES: The question of fees for government schools, for children attending government schools, is something that we are still discussing with the relevant state governments. They have agreed to take the children, and to continue the discussion about costs. On our side we have to look at a number of other mechanisms whereby the Commonwealth contributes to the states for education, and we are going through that process. That is not to say that we don't pay for things that parents normally pay for. Either we or our services provider pays for, you know, sort of school uniforms if they are required, and lunches, and excursion fees, and all of those sorts of things; that we have certainly paid for. But the question of the other costs is something both in the - well, in the New South Wales exchange of letters you will have seen - and in the Victorian draft - we are still continuing to talk to them about that, but that is not a matter that has held up the children attending school.
DR OZDOWSKI: In Western Australia and South Australia, in terms of negotiations with the governments for access, isn't it the financial issue which is really the issue which is slowing it, no?
MS GREAVES: In South Australia, it was an issue but again I think at this stage they are - at least at official level, are comfortable with having a similar sort of approach to the ones that apply in New South Wales and Victoria which is to work through the costing issues over a period of time while we see - we actually can assess what the costs are likely to be. With Western Australia, as I say, we're in a very early stage of our negotiations, and we still have to come to the details.
DR OZDOWSKI: When did the negotiations start in Western Australia? You said very early stage, so ---
MS GREAVES: Two weeks ago. Yes, two weeks.
DR OZDOWSKI: Two weeks ago?
MS GREAVES: Two or three weeks ago. As I say, we haven't had - we don't have an immediate need in Western Australia at the moment because all of the children are actually attending non-government schools.
DR OZDOWSKI: Are the fees being paid to the Catholic school at present?
MR KELLY: Commissioner, we've just received a request from the relevant school wishing to open up a dialogue in terms of costs.
DR OZDOWSKI: Thank you.
MR KELLY: That letter is currently with me for consideration.
DR OZDOWSKI: Thank you. I assume you already commented on the issue of selection of the children for the schools and the using of it as a disciplinary device?
MR KELLY: Commissioner, again, the information that I have to hand varies from your comments earlier, and I need to put the information I have on the public record also.
DR OZDOWSKI: Yes, it's the purpose of this hearing.
MR KELLY: But the information that we have in relation to Curtin specifically and albeit that that's now a moth-balled facility, that the school required an informal written assessment in both literacy and numeracy undertaken by the ACM centre teacher to determine whether or not it was appropriate for the particular child to enter the Derby school system. That's the information as I said that we have to hand here. In terms of the other MOUs that are currently under way, there is not a dissimilar requirement in respect of New South Wales.
The information again that I have available is that the New South Wales education department require information from the Department about the appropriate length of time the individual may remain in a detention environment. They also look then to an assessment that they will provide, as opposed to either ACM or the Department, in terms of the child's socialisation capabilities and abilities, including literacy in English and numeracy, so it's a very - seems to be a very similar pattern at this point in time. We understand that the MOUs for Victoria and South Australia are likely to reflect very similar outcomes or assessments.
DR OZDOWSKI: I would repeat that in terms of Curtin, we've got very different advice from the school principal in question and we'll be cross-checking it.
MR KELLY: Yes, I'm not challenging the information you have, Commissioner.
DR OZDOWSKI: I know, I know. It's good that it's put on public record. Thank you. Mr Wigney.
MR WIGNEY: You said that discussions started with the Western Australian government about two weeks ago; when did you first approach the South Australian government in earnest to discuss the issue of external schooling with a view to reaching a memorandum of understanding or agreement with them in relation to external schooling?
MS GREAVES: My understanding is that we first wrote to the South Australian government in June last year about Woomera. There were also around at that time, there was some community issues about whether or not the community was comfortable with children from the detention centre attending the school, and so things weren't taken further at that point. We communicated again with them earlier this year, certainly earlier this year, and again, as I say, now that we are looking at children that are likely to be in for a longer period of time.
There was some - we were aware that there was continuing negotiations and discussions on the ground at Woomera, at various times earlier this year, but we've taken it up at a central agency level, certainly over the last three months.
MR WIGNEY: My question is why has it taken the department so long to take it upon itself to start discussing external schooling at a higher level with state government; why has it been left at such an ad hoc state until recently?
MS GREAVES: Well, I have to say I don't agree with your categorisation. We first approached South Australia in the middle of last year, as I say. We are - you know, it's sort of, we're responding to the change in the detainee population as well as I think Ms Godwin made comment in her opening statement yesterday. The prospect of some 400 or so detainee children going to a school at Woomera that had a normal population of 70 was not something that was going to be welcomed or practical, so we do have to actually take the situation on the ground into account and at that stage, the children were moving through detention relatively quickly, and that was another factor that we had to take into account: large numbers of children moving through the detention centre relatively quickly and with education being able to be provided in the centre.
The other thing that I'd just point to is with Baxter, with the opening of Baxter in Port Augusta, we started the negotiations with South Australia before Baxter - before detainees were moved to Baxter because we did want to try and ensure that the children who had been to local school in Curtin who were moved to the Baxter facility were able to continue to go to local schools, and it's unfortunate that that hasn't yet transpired, but as I say, we're still negotiating with the South Australians on the MOU, and they have taken the position that they want the MOU finalised before children go to the schools. So we're proceeding with that as fast as we can.
MR WIGNEY: We heard from Ms Lumley that, in the case of Woomera, the principal at the Woomera school was quite keen to accommodate detainee children but that his keenness was scotched from a higher level. Did the Department become aware of that and did the Department seek to raise it as an issue with the state government and deal with it in that way?
MS GREAVES: I'm just not sure what period we're talking about, when that actually occurred. We were certainly aware of it - I mean, the Department was certainly aware of it, but I just, off the top of the my head, can't ---
MR RUSHTON: I'm told, Commissioner, it was April or May 2002.
DR OZDOWSKI: April 2002.
MR RUSHTON: April or May.
DR OZDOWSKI: Or May; thank you.
MS GREAVES: And that's certainly in the time frame that we've raised again with the South Australian government our interest in having the children attend.
DR OZDOWSKI: So basically what has happened from this first letter one year ago when you wrote the first time to the South Australian Government?
MS GREAVES: As I said, Commissioner, we wrote to the South Australian Government but we were also aware that there were concerns in the community about attendance of detainee children at the school.
DR OZDOWSKI: Are you saying that you wrote and you didn't follow it up till May this year because of concerns in the community?
MS GREAVES: No, I'm not saying that. I just don't have chapter and verse on what follow-up there was, what communications there were. I don't have it in front of me, I'm afraid, Commissioner, but my understanding is that there was further discussion.
DR OZDOWSKI: And did you have substantial meetings discussing the issues with Education Department of South Australia?
MS GREAVES: In the period?
MS McPAUL: You mean towards the end of last year, or you mean this year?
DR OZDOWSKI: Yes, starting - relating to your first letter. I'm just trying to find out how intensive the contacts were to negotiate the arrangement in the second half of 2001 and first half of this year.
MS GREAVES: As I said, Commissioner, it does require two parties to negotiate.
DR OZDOWSKI: Okay.
MR WIGNEY: Can I just deal with the situation with the Catholic school, I think, in Port Hedland. As I understand it and this was discussed in your evidence with the Commissioner just before, children have been attending that Catholic school for some time now; is that right?
MS McPAUL: That's our understanding, yes.
MR WIGNEY: But I think Mr Kelly indicated that only in very recent times, has there been some contact made in relation to the funding in relation to those attendances; right?
MS GREAVES: That's correct.
MR WIGNEY: That approach has come from the Catholic Education Office, a central office dealing with all Catholic schools in Western Australia; is that right?
MR KELLY: Yes, that's my understanding.
MR WIGNEY: And prior to that approach, had the department sought to enter into negotiations or discussions at a senior level with the central authority, that's the Catholic Education Office?
MR KELLY: Not to my knowledge.
MS GREAVES: No, not to my knowledge.
MR WIGNEY: Just on the issue of funding, putting aside for present purposes the way that that is dealt with or proposed to be dealt with at the state level, in memoranda of understandings or agreements, in the years gone by, 1999 through to mid-2002, what was DIMIA's attitude as to who was responsible for the funding of children attending external schools from these detention facilities?
MS McPAUL: I guess there's a couple of things that we would like to perhaps just put in context around this, and of course you know that we do have a detention services contract and as part of that contractual obligation, the detention services provider is required to provide a range of services for detention facilities. One of those areas of service is of course education and you spoke with Ms Lumley this morning regarding the provision of those services within the facilities at Woomera IRPC in particular. So there is a contractual obligation and a payment of - a component of the payment of the fees that relates to the provision of educational services within the centres.
So that, from the Department's point of view, that's one element of the payment for educational services and overlaid on top of that is the other reference that Ms Greaves has made to the existing funding provisions between the Commonwealth and States for certain aspects of education service delivery as well, so it's a fairly complex area here to work through exactly how that funding arrangement needs to look in the context of children going to a public school environment.
MR WIGNEY: Thank you for the context, but may we take it from what you've just said that DIMIA's attitude to who ought to pay for external schooling in years gone by was that ACM should pay because they were the service provider responsible for providing education?
MS McPAUL: I think we've also said that the Department has paid for other aspects of - well, other aspects of the costs associated with attendance at external schooling such as, for example, uniforms, excursions, books and so on; those sorts of items.
DR OZDOWSKI: Which are marginal costs in comparison with costs of education?
MR WALKER: Could I just reiterate what Ms McPaul said, that basically you're dealing with an area of complex Commonwealth/State relations in relation to funding of education generally. That is the context in which we're operating. I don't think it's fair to say that we would be aware of precisely what the funding formulas that are worked out between the Commonwealth and the States for provision of education for any children within the country. That is not within the realms of our responsibilities.
DR OZDOWSKI: But your Department earlier said and acknowledge that you've got duty of care for children. You acknowledge ---
MR WALKER: We have the duty of ---
DR OZDOWSKI: --- also that it would be good for children who are long-term to be educated outside. So, consequently, the questions are what did you do at the department to follow it through?
MR WALKER: Yes. Well, we've answered what we've done as a Department, but in relation to the funding, in many respects we're no different from - ask anyone around here what the Commonwealth/State funding formulas for education of their children in Government schools are. I don't think any of us could answer that. That's the point I'm making that ---
DR OZDOWSKI: But the difference is other children do attend educational facilities.
MR WALKER: We're not disputing. We've explained what we've done and what we're doing in relation to the actual arrangements. My understanding of where the questions were heading was what were we paying for and on what basis, and the point that we've made is that it's a complex area of Commonwealth/State relations in general; and that the general funding arrangements for education of children within Australia are also included in that context.
MR WIGNEY: I'd rather like an answer to the question that I asked, which I think I've asked twice now but I'll ask it for a third time. In relation to in the last few years where detainees from the detention facilities have attended local schools or local Catholic schools, is it the situation that the Department expected ACM to pay? That is my question; it's a fairly simply one. Can someone answer it, please?
MS McPAUL: I think I've already explained the operation of the detention services fee. And I think it is also important to note that as far as I'm aware attendance of some of these children at non-Government schools has been on a fee-free basis, as is the case with some children presently attending non-Government schools in South Australia.
MR WIGNEY: I'll ask it for the fourth time. Did you expect ACM to pay?
DR OZDOWSKI: Could we have a yes or no response?
MR BROMWICH: Well, with respect, the question is not a fair one. If there isn't a fee being charged then there is not an expectation that anyone is going to pay. The question doesn't make a great deal of sense, with respect.
MR WIGNEY: If there was a fee to be paid, did the department expect ACM to pay?
MR BROMWICH: But there wasn't a fee to be paid. So you're saying what hypothetically would you have done if there had been a different situation to the one that was in place.
DR OZDOWSKI: That's not correct because whenever I went to the schools which were providing education, the issue of unpaid fees was always raised.
MR WIGNEY: Mr Bromwich is referring to the one - the Catholic school, I think. I'm referring to the fact that other schools did expect their fees to be paid. That's your understanding, isn't it?
MR BROMWICH: Well, as I understand it, Mr Kelly has said that he has received a letter and it's under consideration. That implies - and perhaps Mr Kelly can confirm it - that it's a matter that is yet to be sorted out.
MR WIGNEY: Well, that's in relation to one school. But can you let me ask a question? Other schools where detainees attended in the course of the years 1999 through to 2002 expected some fees to be paid, didn't they?
MS McPAUL: That's not our understanding, Mr Wigney. We're talking about - I don't know which particular school you're asking about, but we have referred to the current correspondence which we've received from one school indicating an interest in discussing with the Department arrangements for future fee payment. I'm not aware of any earlier correspondence seeking such recompense.
MR WIGNEY: Put aside the Catholic school that we've been talking about that that relates to, what about other schools? Curtin School - what about Curtin?
MS McPAUL: Yes, we're not aware of that, Mr Wigney.
MR WIGNEY: Well, is anyone in the room from the Department aware?
MS McPAUL: No, I mean we are not aware that an approach has been made to the Department from that particular school.
MR WIGNEY: Can I suggest to you this: that in relation to the availability of local schools - detainees attending local schools, funding has been somewhat of an issue between the Department and ACM. Would you agree with that?
MS McPAUL: In relation to funding local schools?
MR WIGNEY: Yes, in relation to detainees attending local schools. It has been an issue between ACM and the Department, hasn't it?
MS McPAUL: I wouldn't say that that is the case; no.
MR WIGNEY: You're not aware of it becoming an issue at all?
MS McPAUL: We've, I think, mentioned before that both ACM and the Department have at different times provided school uniforms, money for excursions, books and so on. I'm certainly aware of discussions with ACM in the context of that provision. In terms of particular approaches by other schools such as the Curtin one, I'm not aware of any approach having been made, and as that particular centre is currently mothballed, I'm not sure how that is relevant to the current service delivery there.
MR WIGNEY: Go to page 79; have you got the education bundle of documents?
MS GREAVES: 79?
MR WIGNEY: Yes. If you go to page 78, it's the first page of that particular document. It's the DIMIA business manager pro forma for Port Hedland for November 2001. Go to page 79, there's the heading "Social Interaction." Can you see at the bottom of the very - the second box on the page, the bottom reference:
ACM reluctant to pursue the option of mainstream schooling for any children due to cost.
Does that refresh your recollection?
MS McPAUL: That appears to be a view expressed by the DIMIA manager at that time, but I'm not aware of - personally of any formal approach to the Department from that particular school in Port Hedland, apart from the correspondence which Mr Kelly has already referred to.
MR WIGNEY: I wasn't asking you about formal approaches. I was asking you what DIMIA's attitude was, in general terms, to who ought pay for the external school. That was my question.
MS McPAUL: That's right. And I think we've explained that it's, that at different centres, including at Port Hedland, there are a number of approaches to payment of things, such as uniforms and books and other matters associated with the schooling of the children.
DR OZDOWSKI: You are not responding to the question. Please do address the question, or take it on notice ---
MR WALKER: With respect, it's talking about costs. Costs can include precisely what Ms McPaul has mentioned. There's no mention of fees there that are outstanding to the school.
MR WIGNEY: Okay. Costs of external school generally, what - who was expected to pay for it? ACM or DIMIA?
MS McPAUL: I think that I've already explained that ---
MR WIGNEY: Look, we're going to get into double figures with the number of times I have to ask this question until I get a direct answer, please.
MS McPAUL: Well, I don't think there's any further information I can provide you, apart from what I've explained in the context of the detention services fee and our understanding of any other fees that have been levied from that particular school that we've been asked directly to deal with.
DR OZDOWSKI: I must say this answer is highly unhelpful to the Inquiry. For us, it's very important to establish what really the issues are, who was responsible for what, and the issue of who is responsible for paying of external education goes to the heart of the well being of children. And I find it very unhelpful if the Department cannot address this question.
MR BROMWICH: Commissioner, with respect, what's been said here is that there is one school that has written a letter, or through its central education service ---
MR WIGNEY: Look, Mr Bromwich, we have got beyond the one school ---
MR BROMWICH: Will you stop interrupting me, as a matter of plain courtesy. You'll have your piece, no doubt. Commissioner, what I was about to say is that the position has been reached where one letter has been written by one central authority in respect of one school seeking some discussion in the future as to fees, as I understand it. The answer that has been given is that is under consideration and, accordingly, that issue has not yet been resolved. The presumption standing behind the question is that there is, at this point in time, a concluded view and the departmental officers are otherwise being asked to answer questions in a hypothetical framework. And, in my submission, that is not helpful for this Inquiry.
DR OZDOWSKI: Mr Wigney.
MR WIGNEY: I thought I'd made it abundantly clear that we'd got beyond the one Catholic school that Mr Bromwich keeps trying to harken back to, but let me try and address it this way then. Has it, at any stage, to your knowledge, any of you, been an issue between ACM and the Department as to who should be responsible for the payment of the costs associated with external schooling, or have you never turned your mind to it?
DR OZDOWSKI: May I remind you you are under oath.
MS McPAUL: Yes. I understand that perfectly.
MR BROMWICH: With respect, Commissioner, that's not a complete set of answers. My friend is implying that there's only two possible answers, and there are other answers that are possibly available.
MR WIGNEY: Okay. Let me put it in more direct terms. Have you, the Department, ever turned your mind to who ought pay the costs associated with the external schooling?
MS McPAUL: Yes, the Department has turned its mind to that question.
MR WIGNEY: And, please, tell us the - what the Department's attitude is, please.
MS GREAVES: We have certainly turned our mind to this issue in the context of the new contract - the tender for the new contract for detention services. In the statement of requirements for the new detention contract, which was published in June this year, we stated:
Costs associated with the placement of children in local schools, such as uniforms, bags, excursions and text books, as well as charges, if any, levied in the provision of education services to detainee children, are met by the services provider.
MR WIGNEY: Thank you so much, Ms Greaves. Can I ask you this? Prior to turning your mind to the question in the context of that new contract this year, did you ever turn your mind to it?
MS McPAUL: Mr Wigney, as I've said, yes, we have, and that was in the context, for example, of, in the case of Port Hedland, whether it would be ACM or whether it would be the Department that was to pay, for example, for the cost of excursions, bags, text books and other matters associated with the participation of the children at the external school. So I'm aware of those discussions, and I've said to you that the Department has, on occasion, paid for those items.
MR WIGNEY: What about fees? Did you ever turn your mind to who ought pay for fees, if it became an issue?
MS McPAUL: Well, if it became an issue. I think that's the critical thing. As I've mentioned earlier, we do have a detention services contract, and part of that is the payment of a detention services fee which incorporates, amongst other things, a payment for the provision of educational services. I think I have already made that comment to you.
MR WIGNEY: So that means that ACM was to pay the fees.
MS McPAUL: ACM was being paid for the provision of educational services. How they provided that service, whether they chose to do it in house, or whether there was other arrangements that could be made, was a matter for them.
MR WIGNEY: So, therefore, ACM had to pay the fees, or they had to make their own arrangements to pay the fees.
MS McPAUL: Well, there are also, as you might be aware, provisions in the contract for ACM to discuss with us, as appropriate, any variations to a fee that - or variations to the contract which they think may constitute a variation to the requirements of the contract. So it's open at any time for that discussion to occur. My understanding, certainly while I've been involved in this, is that we've not had such a formal discussion with ACM.
MR WIGNEY: So ACM had to pay the fees, or seek a variation of the contract, or make some other arrangement?
MS McPAUL: I think we're still in the territory of hypothetical, as we did not have a specific approach from the school, as I understand it.
MR WIGNEY: I just took you to page 79 of the bundle, which is hardly hypothetical where, in a DIMIA manager's report, part of the monitoring system of the Department monitoring of the contract with ACM, there is specifically raised, as a point in relation to Port Hedland, that ACM was reluctant to pursue the option of mainstream schooling for any children due to cost. May we take it that that was put in that report so that head office could become aware of that being an issue?
MR WALKER: Mr Wigney, I think that you are interpreting costs as fees. It may or may not include fees. As we've said, we're not aware of having been asked to pay fees.
MR WIGNEY: Well, okay, let's ---
MR WALKER: We're certainly aware of other costs.
MR WIGNEY: Let's just limit it as to costs, then.
MS McPAUL: Well, I've already explained, I think at least twice, that my recollection is that we did have a discussion in relation to Port Hedland, in particular in relation to excursions, school bags, pens, pencils and the like and, as far as I understand, that's the nature of the discussion that was held.
MS GREAVES: Commissioner, I wonder if I might come back to an earlier question that you asked about negotiations and discussions with South Australia. I have now been provided with some further information on that if you'd like me to provide it.
DR OZDOWSKI: Yes, please do so.
MS GREAVES: As I said, a letter was written in June 2001 to the Department of Education and that was followed up by the Assistant Secretary, Unauthorised Arrivals and Detention Services who initiated some discussions with the South Australian education authorities in August last year. At that stage, there were some initial discussions but it did not progress very far and it was then subsequently - subsequent to the April situation where the situation was raised again of Woomera and the response was met that there was a further exchange between the South Australian government and DIMIA which took place in April, May this year.
DR OZDOWSKI: Thank you, Ms Greaves, for this comment. Possibly we have finished education or do you have ---
MR WIGNEY: Oh, sorry, can I just - let me just bring this discussion of funding to a close by asking you, please, to go to page 148 of the bundle. That is part of a monthly report in relation to the Maribyrnong Detention Centre, July 2001. That first page, that is on page 147, under Individual Care Needs, there's this reference:
Two children, aged 13 and 6, that have been detained since March are not receiving educational pograms appropriate to their age and abilities. ACM had indicated that it was unable to access suitable 'English as a second language' and secondary Education. ACM advised that the Victorian education system would not enrol detainees. DIMA resolved the obstacles to enrolment in the Victorian education system. ACM declined to enrol the children on the basis that the cost was too great. The Victorian Education Department fees are -
and then there is then a discussion of fees, squarely raising the issue of fees. Now, are you telling me that the Department didn't turn its mind to who was responsible for the payment of tuition fees at this stage, at least? This is a report to central office.
MR KELLY: Now, you've refreshed my memory on this one, Mr Wigney, I am aware of the particular matter in hand. There was an issue about the Catholic school where the children had previously been enrolled in not being able to take these two children. We sought - and with ACM's advice - sought whether or not the Victorian Department of Education would be able to take the children. The information came back that they were the costs. A decision was taken initially because of not knowing how long the children might remain in detention, that the education would continue to be provided within, inside the centre itself and a teacher was provided for that to continue.
MR WIGNEY: It's abundantly clear that this refers to the fact that the education within the system itself was unsatisfactory. Right? That's what it says. That's what it starts off: they're not receiving educational programs appropriate to their age and abilities. Seek outside assistance and ACM are unwilling to pay the fees and it follows inevitably from that, does it not, that the attitude of the Department to the payment of fees was that ACM, under their contractual arrangements, was obliged to pay them. That's right, isn't it?
MR KELLY: I mean, in reading this in isolation, that could be an interpretation that's placed on it. However, what is not there and what did happen were other options considered for that particular family, including the education of the children. At one point in time, an offer was made as an option for them to be transferred to the Villawood Immigration Detention Centre where appropriate schooling could be offered on a much longer basis than what could be offered at Maribyrnong at that particular point in time.
DR OZDOWSKI: Do you say, a moment ago that you didn't know how long they will stay and now you are saying that the education is to be offered on a much longer basis? Are you ---
MR KELLY: That was at a particular point in time when we were concerned, clearly, about the continued education of the children, Commissioner. I mean, I don't remember the specifics of this particular case but I could certainly take that on notice and provide the Commission with further advice.
MR WIGNEY: We'll be here all day if, to get your co-operation, I have to take you to a specific document to answer a question, but go to page 151, the next monthly report: still under the same heading, concerning the same issue:
ACM had declined to enrol the children on the basis that the cost was too great. The provision of education to the children continues to be unsatisfactory.
Now, presumably, that was a matter of some concern to the Department, was it not, that unsatisfactory education services were being provided?
MR KELLY: It's always a concern, Mr Wigney.
MR WIGNEY: Are you saying that the question of who should pay the fees for external tuition was dealt with on an entirely ad hoc or case by case basis, are you?
MR KELLY: Mr Wigney, what I offered to do was to take this particular matter on notice for the Commission and to provide further advice in due course.
MR WIGNEY: Would you agree with this general proposition, to perhaps avoid me having to take you through vast numbers of documents in this bundle? Are you willing to acknowledge - that is, is the Department willing to acknowledge - that over the last few years, as a result of staffing resourcing issues and the like, the level of education in a number of these detention facilities has not been adequate?
MR WALKER: I don't think that we would accept that as a general proposition. It's a very broad generalisation. Similarly, if you take us through document upon document, you're dealing with isolated and specific instances and circumstances. As my colleagues have said, we had a huge influx of people over a very short period of time. Our objective was to assess their applications as quickly as possible. That, in itself, meant that many of these people were in detention for a relatively short period of time. They had different levels of education, literacy and various backgrounds which obviously are also factors that go to the type of educational services that can be provided and that are appropriate for the individual.
So these are factors that, quite clearly, have to be taken into account which we did and we operated in conjunction with our service provider in seeking to provide appropriate education for the individual needs and circumstances. As I said, our objective is to minimise the period of detention to as short a period as possible. In many cases, that was very short and it enabled children to receive education services that would suit them for then entering Australian schools. I don't know whether my colleagues wish to say anything more.
MS GREAVES: I would just repeat what Ms Godwin said yesterday, in her opening statement the day before yesterday, and what I've said earlier. As the population has moved to a longer term population, we have tried to put in place arrangements that deal with that situation. We have been working on that and we are now getting some of that in place.
MR WIGNEY: I was trying to avoid taking you through a large number of documents and taking up valuable hearing time by getting you to acknowledge - we accept that the Department is seeking to improve its services. We accept that, on occasion, in the last few years, there have been stresses in the system perhaps because of the large influxes of people. My simple question is, do you accept that, perhaps as a result of those difficulties, on occasion, the provision of education services in some of these facilities has been inadequate?
MR WALKER: I think that, once again, that's a broad generalisation. I would say that we would accept that the educational needs of some individuals may not have been dealt with as well as they might have but that's a criticism that you could make of any school: that not necessarily every person's educational needs are specifically met but we, overall, believe that we did provide appropriate educational services.
MR WIGNEY: I'm not making a criticism. I'm asking whether you acknowledge something as a fact.
MR WALKER: I don't believe that you're actually asking a fact. You're asking for an opinion which I've given you.
MR WIGNEY: Look, frankly, we're on the afternoon of the third day of the hearing and I don't want to take up too much time with this but - and as a result rather than getting down into detail and having to take you through document after document I'm trying to deal with it in terms of generality. We have heard on the first day that in terms of monitoring we accept that ACM was under its contract of service, required to provide educational services.
As we understand the situation the Department monitored that to ensure that ACM provided it, the services, to the standards set out in the Immigration Detention Standards. Right?
MS McPAUL: Yes.
MR WIGNEY: Now, I think it's fairly clear that you referred to some of the standards as, I think, output based or something but whatever you want to call it they are fairly broad and general standards. Right?
MS McPAUL: I believe we had that discussion.
MR WIGNEY: Were you aware, for example, that throughout 1991 on - I'm sorry, I don't know what is wrong with me. I seem to have a problem with dates; a fixation with the 90s. Were you aware, for example, that throughout 2001, for example, in the Woomera Centre that on average the number of hours of education offered to children was between one hour and three hours?
MS McPAUL: We were monitoring the level of service provision at the centre during those times and I think as Ms Lumley explained this morning there were a number of particular demands on the centre and it's my understanding that there were a number of shifts of classes provided for some periods of that time.
MR WIGNEY: You say in your submissions that the Department aims to provide educational opportunities broadly consistent with those available in the general Australian community. The conditions in the general Australian community in relation to hours of education are that children receive more than one to three hours of education per day. Right?
MS McPAUL: I think the important thing there is that we aim to do that.
MR WIGNEY: Yes.
MS McPAUL: And where particular circumstances, including the socialisation of educational opportunities, that the particular detainee children bring to the circumstances in the centre also need to be taken into account.
MS GREAVES: And the submission makes that clear.
MR WIGNEY: What, if anything, did the Department do in relation to the fact that throughout 1991, on average ---
DR OZDOWSKI: 2001. I think we are due for a break.
MR WIGNEY: What, if anything, did the department do during 2001 in relation to the fact that at the Woomera centre, only one to three hours of education were provided to the children detainees?
MS McPAUL: I think we heard some evidence this morning that explained a range of factors that led to the particular construction of education services at the centre for some parts of 2001. As I have already alluded to, and I think my colleagues have as well, there was a high volume and high turnover of detainee children at that time. There was also a high volume in the centre, and some practical reasons, as well as the socialisation of the children, as to why that particular configuration was occurring at the centre at that time. So I think that there are a range of factors there that need to be taken into account.
MR WIGNEY: What, if anything, did the department do in relation to the fact that only one to three hours of education were offered in Woomera throughout the course of 2001?
MS McPAUL: I think what I am trying to explain to you is that there was a number of quite reasonable reasons why that circumstance occurred at the centre for some periods of 2001, so to suggest that we could do something about it seems to overlook some of the practical situation there. I think we have already mentioned that. It would be completely difficult to place that number of students in the community school situation, and in any case, we have heard evidence this morning that many of those students were not well situated, or well equipped, to be participating in such a lengthy day, or an external schooling situation.
MR WIGNEY: What, if anything, did the department do about the fact that during the course of 2001 only one to three hours of education was being offered to children in the Woomera Detention Centre?
MR BROMWICH: Well, with respect, Commissioner, my friend may not have got the answer he wanted.
MR WIGNEY: No, it has not been answered.
MR BROMWICH: He may not have got the answer that he wanted, but what is being said is that there were reasons why the situation was as it was, that the priority, answered before, was to try and get things processed quickly, and that is already part of the answer that is on the record; that for short periods of time, you had to deal with the situation as it was.
DR OZDOWSKI: So are you saying that the departmental answer is that there was no priority for children education during that time?
MS McPAUL: No, I don't think we are saying that.
MR BROMWICH: No. No, it's ---
DR OZDOWSKI: So could you rephrase it?
MR BROMWICH: Well, the answer that has been given so far, as I understand it, and I am sure my friend is able to understand it, is that there were a number of things that were being addressed at the same time, and what he is trying to do is to take this issue out of context and in isolation, when it was not being dealt with out of context and isolation. It was being dealt with in a context with an evolving and difficult situation with large numbers passing through.
MS McPAUL: Perhaps just to recap some of the things that I think we have already put on the table that the Department was doing. We had made ---
MR WIGNEY: That would be nice. That is the question I have asked three times now.
MS McPAUL: Well, I think ---
MR BROMWICH: We can do without the sarcasm, Commissioner.
MS McPAUL: I think we have already mentioned some of these factors. As we have already said, we did have, as I understand it, some contact with the South Australian Education authorities around the time that one of the peaks of arrivals occurred in 2001. We have also, throughout the course of that year, made arrangements for the provision of additional infrastructure at the centre. The completion of that occurred, as I understand it, early this year. And I guess the - you know, in terms of the other question that you were asking about whether we were monitoring the situation? Yes, of course, we were.
MR WIGNEY: We heard from Ms Lumley this morning that there was no written recorded curriculum in place at the Woomera Detention Facility in terms of education services. What, if anything, did the department do about that?
MR RUSHTON: Could I object? I know questions are being asked of the Department, but both that question and the one that preceded it are about hours - what did the Department do about it - and curriculum. The previous witness, without challenge, gave reasons why, for example, it wasn't appropriate to teach them beyond the one or three hours and why it was inappropriate to have a formal curriculum. In my respectful submission, based on those answers which weren't challenged, these questions shouldn't be put, because it assumes - they assume that there was something wrong with not having a curriculum with these sorts of children, or there was something wrong with not teaching them a four or five hour day.
MR BROMWICH: I join in that objection for the same reasons.
DR OZDOWSKI: You see, my position is that I do agree with this assumption because my position is that if you decide to detain somebody, you are obliged to provide conditions which are usually expected, in this case which were involving international obligations at which we are looking. I understand that there were difficulties with establishing the centre and I take all of this into consideration. However, I can't escape the argument that it was the Department which was putting people there when facilities were possibly not ready to accommodate that number of people to the standards which were expected in detention centres or prisons.
MR RUSHTON: I'm not cavilling with you for one moment with whether it was right or wrong to have the children there. I don't enter into that debate. But I am concerned that there seems to be an underlying assumption that children in that position, or children with those backgrounds, may be subjected to the same sort of schooling as they would on the outside with the same conditions, in a situation where they can't understand English; they come from various cultural backgrounds where ---
DR OZDOWSKI: ..... it's exactly what we are doing to migrant children who are arriving in Australia. They are put into normal intensive language classes. They are going for eight hours, I think, to the school, and they are provided proper education during a year or whatever is necessary for them when they can join mainstream schooling.
MR RUSHTON: But isn't, with respect, that the issue: what was necessary and appropriate for these children at the time?
DR OZDOWSKI: Well, the Convention doesn't draw the distinction.
MR BROMWICH: But what you're saying here, Commissioner, amounts to despite the fact that the witness who was on the spot, who expressed a view, whose view wasn't challenged as to what was appropriate and expressed a view given the particular circumstances of these children - not your grandchildren, with respect, Commissioner - was appropriate and that it wasn't suitable for them to have the same hours as outside for reasons particular to them. An assumption has now been made contrary to evidence which was not challenged.
MR WIGNEY: Look, I reject the contention that I did not challenge it. Ms Lumley's evidence was abundantly clear, and it is even more clear in the reports that I took her to, that the principal reason that there was only one or two or three hours of education offered at these facilities was a lack of resources, facilities and teachers. That was what her evidence is and ---
MR BROMWICH: Well, the transcript will ---
MR WIGNEY: --- and all that Mr Rushton asked was what the attention span of these children was, and Ms Lumley said three hours. Now, it's abundantly clear from the documents that the reason that it was - Ms Lumley thought that that was unsatisfactory, and she was seeking more resources. I reject the contention that I did not challenge it. Anyway, let me deal with it this way. Did the Department, knowing that one to two hours or three hours of education was being offered at Woomera Detention Centre throughout 1991 form - 2001 - form a view one way or another as to whether that was an adequate number of hours of tuition to provide to children at those facilities?
MS McPAUL: I'd like to just perhaps draw your attention to one of the Immigration Detention Standards which relates to this, and it does say that social and educational programs appropriate to the child's age and abilities are available to all children in detention. That's 9.4.1. And I think what we've heard today is that a program that was appropriate for the children's age and abilities was in fact in place at that centre.
MR WIGNEY: Do you say, do you, that one to two hours of education for children at the Woomera facility was education appropriate to the child's education and abilities in the context of 9.4.1 of the Immigration Detention Standards?
MS McPAUL: I think what I'm saying is that, given all of the factors relating to these children's detention, the length of time they were expected to be in the centre, the throughput at the centre at the time, the previous socialisation and school history for those children, the literacy in their own language, the degree to which they knew English language, the facilities and resources and capacities physically available in one day at the centre - all of those factors taken into account - I think that the circumstances were, at that particular time, probably adequate for the kind of detainee child population that we had.
And as we have indicated today - and I think Ms Lumley indicated as well - as the nature of the child detainee population has changed and evolved at Woomera and at the other facilities, the nature of the education able to be provided to those children has also evolved to take account of their growing capacities and the needs that they have and the kinds of lengths of time that we now see some of these children being in detention. And the Department's response to that as well, as Ms Greaves has indicated, has been to more proactively progress some of the discussions with the relevant state departments of education that can assist in providing access to state educational facilities for some of those children.
MR WIGNEY: So in all the ---
DR OZDOWSKI: Mr Wigney, I would like to have a break at 3 o'clock so perhaps if we could finish the topic in next 10 minutes, so we can move on.
MR WIGNEY: Yes, quite, yes. So you've given a long answer there. Do you say, do you, that in all of those circumstances that you outlined in that lengthy answer, that the department formed a view that one to three hours of tuition was adequate in the course of 1991 at Woomera - oh, 2001.
MR WALKER: I think in the circumstances it was reasonable, what was provided. As I said before, we were looking at people being there for relatively short periods of time. We also made significant efforts to upgrade the facilities. We did put in additional classrooms and places. Unfortunately some of those were destroyed at particular times. They were subsequently replaced. And as the length of detention of some people increased, other arrangements and other external arrangements have been made. You can't just treat it in isolation.
We had a range of circumstances that we had to deal with: a large detainee population. And going back to the fact that we had an obligation under the Migration Act for these people to be detained.
MR WIGNEY: Did the Department take any steps to ensure that there were - the course offered in the various detention facilities including Woomera were curriculum based; that is, based on a written curriculum?
MR WALKER: I think that we've gone over that quite a bit in the past. What was provided was what we believed was appropriate to the circumstances of the individual, and particularly the circumstances of that we were operating in. As I said, a very large number of people arriving in a very short period of time. I think there would have been stresses in any education system of getting those influxes, and in fact I think one of my colleagues mentioned that there was difficulty - or would have been difficulty - with the local school at Woomera of 70 taking 400 children. It was just not possible.
MR WIGNEY: Did the Department take any steps to ensure that the courses offered in any of the detention facilities were curriculum based; that is, based on a written curriculum?
MR BROMWICH: Well, I object to the question to the extent that it assumes that that is appropriate for English as a second language. I don't believe it is, on the earlier evidence.
MR WIGNEY: If one goes to the education programs definition in the Immigration Detention Standards, it contains those very words that I just used.
MR BROMWICH: Whereabouts?
MR WIGNEY: Did the Department take any steps to ensure that? Or do you want me to repeat the question a third time?
MR BROMWICH: Well - except you've left out half the definition:
...taking into account variable lengths of stay and detention, in line as far as possible...
That's a significantly qualified definition, and you've been selective, with respect.
MS McPAUL: And I think we would also just like to put on record that it's my understanding that, at least from the beginning of 2002, the curriculum available to children at the Woomera IRPC is, as far as I understand it, consistent with the South Australian curriculum. And I think that on the basis of the evidence we also heard this morning, and our understanding of the changing detainee population, there's been an evolution of the kind of educational services able to be provided and that are appropriate to be provided for the particular children at the centre.
DR OZDOWSKI: Perhaps when counsel is conferring I would like to ask one question. Going back to my first visit to Woomera my understanding was that provision of education just one to three hours was only four days a week not five days a week; could you confirm or correct me on this understanding?
MS McPAUL: We'll check that for you and get you an answer at the break.
DR OZDOWSKI: Any final questions, Mr Wigney?
MR WIGNEY: No, I don't have any more questions.
DR OZDOWSKI: We will have a break until quarter past 3.00 and we will start with the disability cases after that.
SHORT ADJOURNMENT [3.00pm]
RESUMES [3.20pm]DR OZDOWSKI: So I open the final session for today and I understand we will be dealing with two disability cases to start with and hopefully if we are able to finish them today we'll have left for tomorrow the issue of mental health and the issue of the management's relationship between DIMIA and ACM and there will be a time for making of final comments and also asking questions which were left over and hopefully, if we are on this timeframe, we'll be able to finish tomorrow. So could I ask Counsel Wigney to start asking questions?
MR WIGNEY: Can I just really by way of introduction indicate where we are going with these case studies, why we have selected them and what we see as the principal issue involved in these case studies. Can I start off by saying this, that, firstly, as I understand the situation, the Department has been put on notice of these particular case studies. To make it clear one of the main reasons that we are embarking on an examination of these cases is essentially to test the submission that is made in the Department's submissions to this Inquiry to the effect that, firstly, and this is on page 69 of the Department's submissions, child detainees with disabilities are provided special care and assistance on entry into immigration detention facilities through the development of case management plans and that in particular the initial health screening of the detainees on entry to an immigration facility provides for the early detection and treatment of disabilities in child detainees. Can I indicate this in relation to the two case studies that have been selected. Firstly, again as with the case studies that we considered in the context of the families in detention topic, we will do, of course, all we can to avoid disclosing the identities of these persons so I will generally refer to them as mother, father, daughter, son or the like but, secondly, and perhaps more importantly for present purposes, is that to indicate the basis on which we selected these case studies we certainly did not select these studies because they are the most difficult or complex of cases. We acknowledge that the treatment of children with disabilities in immigration detention is a difficult and complex issue and, indeed, that perhaps raises the issue in itself whether they ought be detained in such facilities but putting that aside for present purposes we acknowledge those difficulties and that will become apparent as we go through these case studies.
The basis of section of these particular case studies is this, that on page 70 of the Department's submissions two examples are given in relation to assisting disabled children and as we understand it the case studies that have been selected are indeed these two examples that the Department gave in its submission so I want to scotch any suggestion, as it were, that we have simply picked out two case studies because they're the most difficult or complex.
Can I deal with the first of the case studies and on the list that you've been provided it is case study B. Now, to put it in context, in the Department's submissions the second example given in the box on page 70 of the submissions is to the effect that:
Disabled children in another IRPC have recently been enrolled in Riding for the Disabled classes. This experience will assist with socialisation skills for the children as well as provide a break for their carers.
As we understand it the example that we're going to come to in a moment is the children referred to in that example and in the Department's submissions. I'll just pause for a moment whilst everyone gets their case studies together. Now, this family comprises a mother and two daughters and two sons. As we understand it the eldest daughter who I'll endeavour to call daughter one has no disability?
MR BROMWICH: She's also not the daughter.
MS McPAUL: Well, there's some question ---
MR BROMWICH: There's a question about that at least.
MR WIGNEY: Perhaps it doesn't matter in any event, she appears to be part of the family whether she's biologically the daughter or not, she is effectively part of the family and has always been dealt with as such. Feel free, of course, to raise it as an issue if it is an issue that she's not the daughter.
MS McPAUL: No, I don't believe it is a particular issue.
MR BROMWICH: It shouldn't make a difference.
MR WIGNEY: Thank you for raising that with us. Then we have another daughter who I'll endeavour to call daughter two and she, as we understand it, is about 15 years of age. There is an older son who is about 13 years of age who I'll call the first son and then we have a second son who is about seven years of age and I'll endeavour to call him the second son. If I can just remind any members of the media here or anyone else of the confidentiality orders and that if I unfortunately let it slip, a name slip, that ought not be reproduced or published in any way.
Now, as we understand the situation, this family were first detained in the Port Hedland facility on 6 August 2000, does that accord with the Department's records?
MS McPAUL: We have information that they were detained during that month, not on that date, but approximately that.
MR WIGNEY: The month of August, 2000?
MS McPAUL: Yes.
MR WIGNEY: And at least our information is to the effect that they are still detained in that facility, that is they've been detained there now for over two years?
MS McPAUL: That is correct.
MR WIGNEY: Now, if we can go through the documents please and I'll try and do this as quickly as possible. Now, the first document and they don't necessarily appear in sequential order as we go through the bundle, I'll try and deal with it in chronological order and at risk of having something thrown at me by those that instruct me I think the numbering system is a little bit difficult to understand, but at least on my copy it's in the top right hand corner.
MS GREAVES: No, we don't seem to have numbers on all of the pages.
MS McPAUL: Some pages are numbered. Let's do our best and see if we can work them out.
MR WIGNEY: Yes, I'm told that I'll be helped out through this process.
MS McPAUL: Someone may need to come around and just point us to the document if we're not sure.
MR WIGNEY: Unfortunately a number of these documents contain a number of numbers, so it may be difficult, but we'll see if we can muddle through it. The first document I want to take you to is at page 96 of the bundle.
MS McPAUL: Which is about?
MR WIGNEY: That's towards the back of the bundle.
MS GREAVES: We're going to need more help.
MS McPAUL: You might need to give us a description or somebody perhaps to help us.
MR WIGNEY: It's a document headed Australasian Correctional Management Detention Services Health Profile form. Top right hand corner it's got printed page 11 of 12 and I think, just to confuse things, there's also the figure 199 in the corner.
MS McPAUL: There isn't another volume is there?
MR WIGNEY: I think the only sensible course to adopt is that we take these bundles back and we number them now in the next ten minutes, because I think that ten minutes spent ---
MS McPAUL: It might be well worth it.
MR WIGNEY: I think it will save us ten minutes of bungling through the rest of the afternoon. So perhaps if we just adjourn briefly for ten minutes.
DR OZDOWSKI: A ten minute adjournment, yes.
SHORT ADJOURNMENT [3.32pm]
RESUMES [3.50pm]DR OZDOWSKI: Mr Wigney, if you could start please.
MR WIGNEY: I'm sorry about that interlude. I have got to ask one thing and that is for everyone to check that you have a folder with a green dot on the spine. Can I just, perhaps before I take you to the documents, put this on the record. You accept, do you not, that in relation to this case study the Commission served a notice dated 24 October 2002 which basically required the Department to produce, if I could put it broadly, effectively all documents relating to this case including medical records, incident reports, correspondence between the Department and ACM and the state authorities and the like. I can be more precise if necessary?
MS McPAUL: No, the Department accepts that we did receive a notice and we have undertaken to provide you with all of the documents that we have in our possession.
MR WIGNEY: Just to make it plain, the bundle of documents that you have really is entirely made up of documents that have been provided to the Commission by the Department. I was taking you to a document which is now hopefully numbered 96 in some sort of coloured pen.
MS McPAUL: Yes, we have that.
MR WIGNEY: Hopefully that is an Australian Correctional Management Detention Services Health Profile Form for a child and the name that is written on the form is I think the second daughter, that's the daughter aged 15 and it records the date of admission being 6 August 2000.
MS McPAUL: We have that.
MR WIGNEY: That is, is it not, a document that is created during the screening process when someone is received into one of these detention facilities?
MS McPAUL: That's my understanding.
MR WIGNEY: In this case it's Port Hedland facility and as I said it's the second daughter. If one goes down about two-thirds of the page there is a box for health problems to be completed on all major health issues during admission and what is recorded there in respect of this person, that's the second daughter, is firstly it appears anorexia and I'm afraid that in terms of the box to the right which enables the person filling in the form to specify management or treatment. It is difficult to read but it would seem to say, "Observe". Is that right?
MS McPAUL: That's very hard to tell.
MR WIGNEY: In any event also recorded as a problem in the box is, "Delayed development".
MS McPAUL: That appears to be the case, yes.
MR WIGNEY: Again, in terms of management and treatment, it's difficult to read but it would seem to read something like, "Approved" or "Approved education" or something to that effect.
MS GREAVES: Something educational, yes.
DR OZDOWSKI: "Appropriate education".
MR WIGNEY: If I can then also take you to page 106. This is a slightly different form it would appear. It's an ongoing health profile sheet for a child in Port Hedland, IRPC and it is dated 24 August 2001.
MS McPAUL: Yes, we have that document.
MR WIGNEY: It is difficult to see but it does appear to contain the individual's name, the details of which are recorded in this form. But if one then goes down to the problem there is a reference to intellectual impairment and then down in family history we have recorded, sister intellectually impaired and brother intellectually impaired. This has been produced in answer to the notice and we may take it, may we, that that is one of the medical records relating to one of the children in this family?
MS McPAUL: I think we would agree with that, yes.
MR WIGNEY: It just contains a confusing date of admission. It seems to be a date of admission some time in August 2001, are you able to assist us as to - see the date of admission, the top left hand side of the page, 24/8/01, it seems. That doesn't seem to accord with anyone else's records. That may be just some sort of mistake.
MS McPAUL: The other dates on the document are in 2000 and 2001.
MR WIGNEY: That would seem to suggest, would it not, that at least in relation to daughter two, the assessment during the induction or screening process was limited to anorexia and delayed development, is that right?
MS McPAUL: Well, this could be actually the document relating to one of the sons perhaps because it refers to a sister and a brother in the family history box. I am just saying this particular document may in fact relate to one of the sons rather than to one of the sisters because it does indicate in the family history box, a sister and a brother. It belongs I understand to one of the children of this family.
MR WIGNEY: You are talking about the document at page 106?
MS McPAUL: Yes.
MR WIGNEY: It would appear that in terms of documents recording the initial assessment during the induction or screening process, that they are the only documents that we have been given, is that correct?
MS McPAUL: It's possible, yes.
MR WIGNEY: Can I ask you this general question. Are you aware from the Department's records how long this family, in particular these children, were in separation detention?
MS McPAUL: We would need to check for certain but it appears to be a period of some months, possibly six months, but we would need to check.
MR WIGNEY: Are you aware of how that came to be, having regard to the discussion that we had yesterday about attempting to minimise the period of separation detention, how it came to be that this family and in particular these children were in separation detention for so long?
MS McPAUL: As I understand it from the notes I have here, the family made a primary application at the beginning of February 2001.
MR WIGNEY: Meaning I take it that prior to that time they had not raised any specific claims that would have given rise to any protection obligations that Australia may have under the Refugees Convention?
MS McPAUL: That's my understanding.
MR WIGNEY: Just dealing with those documents that we do have and perhaps with the benefit of hindsight in respect of what we now know in terms of the condition of these children, you would hardly describe that initial assessment as a comprehensive or detailed assessment of the state of health of the daughter, would you?
MS McPAUL: I think the important thing here to understand is that initial screening process is designed for a range of matters and not to provide a detailed assessment of the particular circumstances of all of the health issues for a particular family in great depth, it's more designed to flag issues that might require further follow up, amongst other things.
MR WIGNEY: When does the detailed, if any, when does the detailed examination take place, if there is one?
MS McPAUL: I guess with this case as with the other case that you will be referring to this afternoon I think it would be fair to say that as with other departmental processes we refer to the degree to which those - the degree of sophistication of those processes has, of course, evolved over time. I think you made reference earlier to the wording in our submission in relation to these children and I think that it would be fair to say that the Department takes its duty of care towards children with disabilities particularly seriously and some of the processes that may have been in place earlier on have evolved since the beginning of - well late 2000, 2001 to the point now where I believe that we have something that is more robust in place than we did at that time.
MR WIGNEY: May we take it from the statements that you've just made that you would acknowledge in relation to this case, the first case study, that this was an example of a case where the initial health screening of these detainees, on entry to the facility, did not provide for early detection and treatment of disabilities that were in due course discovered amongst these children?
MS McPAUL: I think what I would be prepared to say is that the initial screening identified that there were some developmental issues for these children and manifesting itself as delayed development or learning impairment or whatever the other word was there - intellectual impairment. But this particular disability that these children, as I understand it, that these children have is not something that's easy to diagnose and it has been a process that's taken some time for the medical experts to be able to eliminate certain suspected names for the disability and to be able to identify in particular what we now believe to be the actual disability that these children have.
DR OZDOWSKI: But Ms McPaul, with all due respect, I have seen the children and it is a visible disability and I can agree with you it may be difficult to diagnose what it is. It's for non-medically trained observer it's obvious that these children are disabled.
MS McPAUL: I'm certainly not disputing that. I guess in terms of the question that Mr Wigney asked me about whether the medical screening was adequate to identify the specific nature of the disability rather than whether they had one or not, I think it's clear that it was evident at the time that the children entered the facility that they did have a disability of some kind and it took a while to identify the nature of it.
MR WIGNEY: Now we're restricted, of course, to working from the documents, but you would agree that at least this document at page 96 would tend to suggest that the initial assessment was hardly comprehensive or thorough in terms of the state of health of this child.
MS McPAUL: I think we've already acknowledged that the initial screening process is designed to flag issues that require further assessment.
MR WIGNEY: Well, we will explore as we go through the documents whether those further assessments took place but can I just explore again at this early stage whether the other submission is made is that on entry to the facilities there is a case management plan put in place. Now, accepting what you've said that an issue has been flagged here, that is anorexia and delayed development, we have not seen in any of the documents that have been produced to us any case management place that was produced at any time approximate to the entry into detention of these children. Are you able to comment on that?
MS McPAUL: I believe that would be correct and Ms Greaves may have a further comment.
MS GREAVES: I just make the point that the submission which was written in May this year reflects the situation as in May this year. It's written to say that this is what we do now.
MR WIGNEY: It does not appear that it was something that was done back in August 2000 when these children were inducted into the immigration detention.
MS McPAUL: As I said the process for managing children with disabilities is something that has evolved over time.
MR WIGNEY: Well, let's just travel through these documents and hopefully we can do it as quickly as possible to see whether the issues that were initially flagged were followed up and when the first case study was devised.
The next document I wanted to take you to was at page 23. Page 23 hopefully is a document on the letterhead of the East Pilbara Health Service dated 2 March 2001. It deals with the children of this particular family, at least three of them, the second daughter and the two sons, they're the one that it would appear have the disabilities. I just want to direct your attention to, well firstly to the date, so we're now some six months or thereabouts after the date of detention and it would appear that those three children have been referred for assessment to the East Pilbara Health Service on 2 March, so as I said some six months after their initial induction into the centre, right?
MS McPAUL: It appears to be, yes.
MR WIGNEY: What was the date that they were cleared from separation detention? Have you got a precise date to that?
MS McPAUL: I don't have a precise date but I imagine that it would be close to the date on which they made their primary application which was on 2 February 2001.
MR WIGNEY: So this referral to the East Pilbara Health Services occurred relatively shortly after their release from separation detention. Are you able to say whether or not that release from separation detention had anything to do with the referral in March?
MS McPAUL: No, I'm sorry, I really can't comment on that. I simply don't know the answer.
MR WIGNEY: Are children in separation detention afforded the same degree of assessment and medical attention as other children?
MS McPAUL: I would believe so, yes. As far as we understand it there should be no difference in terms of duty of care between one part of the detention centre and another. The nature of separation detention does not go to the question of whether the children would receive health treatment or like services.
MR WIGNEY: Now, without taking you to other specific passages in this document and take your time to read it but it would appear that at least as at 2 March 2001 when these children were referred to this health service for assessment, it does not appear that the health service were provided with any earlier assessments or medical records or anything else to assist. That is that this assessment really was taking place afresh as at 2 March 2001?
MS McPAUL: It's hard to say today exactly what else might have been provided. The letter, as far as we are concerned, doesn't appear to make reference to any other documents.
MR WIGNEY: In any event we don't seem to have any other documents between the documents I firstly took you to and this document suggesting that there had been any at least record of any other assessment prior to 2 March 2001, do you agree with that?
MS GREAVES: Excuse us just a moment while we look at some of the documents.
MS McPAUL: The letter makes reference to the request to review the children which must have arrived at the East Pilbara Health Service prior to the date of this letter to enable that assessment to happen. The general point I think that you are making is that there appears to be a period of time when there is no obvious medical record for this family.
MR WIGNEY: Now, just moving through. The next document I want to take you to is page 70 of the bundle. It being the next document that relevantly refers to the state of health of children. But in fact it would appear to be a medical record, progress notes for the mother. The entry I want to direct your attention to is dated 1 June 2001. Now, the entry there includes, amongst other things, by reference to the mother. She has a very difficult time with her children, two are mentally challenged and difficult at the best of time. Then:
She also endures hostility from other residents who are intolerant of her children's behaviour.
MS McPAUL: The letter does make reference to that. It is my understanding that this issue was something that had been addressed on an ongoing basis with the mother since earlier in the year.
MR WIGNEY: Now, we nextly move forward a number of months to November 2001. I take you to page 22 of this case study.
MS McPAUL: Did you say page 22?
MR WIGNEY: Yes. I should take you to 21 first which, hopefully, is the first page of that document. The document at 22 would appear to be part of a departmental Business Manager pro forma for the Port Hedland Detention Centre of November 2001. I was going to direct your attention to the passage on page 22 under the heading, Special Needs Cases. It refers to the fact that the needs of intellectually disabled residents have not been assessed or addressed.
MS McPAUL: The date of this particular report?
MR WIGNEY: November 2001.
MS McPAUL: A number of things seem to have happened for the children in that period and according to some further information that I have available today there was a range of medical interventions being taken for members of this family for some good period prior to that date of this particular reporting. Going back approximately a year. So, I am not quite sure the basis upon which this particular view was expressed. They may not have been aware of some of the prior matters.
MR WIGNEY: Well we're somewhat constrained by the information in the documents that you have provided to us. Where is your information coming from?
MS McPAUL: We have looked at a range of documents including some of the ones, of course, that you have. Also our ICSE records I guess and other information that members of our team are aware of from managing this case over a period of time.
MR WIGNEY: I thought it was the position that you produced to us all relevant documents. So it must follow ---
MS McPAUL: There may not be written documents that fell within the scope of the notice that contained further details.
MR WIGNEY: Well we asked for, and I think you will agree, all medical records available to this family.
MS McPAUL: All medical records, correct. And incident reports I believe. And communications with FAYS. There may be other documents to the Department that contained relevant information which has been pieced together here.
MR WIGNEY: You say, "there may be" but do you know whether there is or is not?
MS McPAUL: Well I didn't personally construct the chronology that I am looking at now but you could well imagine that there would be any number of other departmental documents that would fall outside of the scope of medical records, incident reports and communication with FAYS that may deal with matters - DCD - that might relate to matters pertaining to this.
MR WIGNEY: Can I ask this? Having regard to the fact that you have been put on notice, at least since sometime last week about this case, that if someone has had access to documents relating to this case, be they within or without the terms of the notice, that you bring them along or have them brought to the Inquiry tomorrow, please.
MR KELLY: My understanding, Mr Wigney, is that the documents that we are referring to in our notes here are documents that have already been provided to the Commission as part of this Inquiry.
MR WIGNEY: Can you tell us what they are?
MR KELLY: I am just referring to my notes in terms of - and I am assuming that they are part of the medical records. These are a precis of information in the medical records. My understanding is that there was a considerable amount of medical records provided in relation to this particular family.
MS McPAUL: There was a large volume of records.
MR WIGNEY: Yes, but before 2001.
MR KELLY: Well, the first records I have here, in relation to at least the mother, dates back to 13 October 2000. And the first mention of some work with counsellor and the psych on site occurred on 24 December 2000. As I said, I am working from a precis of notes. I don't, certainly, have the full records in front of me. But my understanding is that my precis is based on the information that has been provided to the Commission. I apologise if that isn't the case but I would expect that the Commission does have those documents.
MR WIGNEY: Of course, if there was medical intervention the likelihood is that there would be medical notes of what intervention was taken, right?
MR KELLY: I would expect these to be included in the Medical notes that you have. As I said there was a significant amount of material provided in relation to this family.
MR WIGNEY: Well, I will have them checked again overnight.
SHORT ADJOURNMENT [4.20pm]
RESUMES [4.30pm]DR OZDOWSKI: It's already 4.30. We don't know when the light will be restored so I will adjourn until tomorrow nine o'clock. Thank you.
MS GREAVES: Commissioner, could we have some idea as to whether or not you think we are going through to Friday.
DR OZDOWSKI: I would hope not but I won't be able to tell you just now.
MR BROMWICH: I need to indicate, Commissioner, that I at least have very real difficulties with Friday, so does my instructing solicitor.
DR OZDOWSKI: Let's put it this way: we will try to do our best to finish tomorrow but we need cooperation of all parties. We possibly could go a bit faster through the material. Yes, I will do my best to finish tomorrow. The meeting is adjourned.
ADJOURNED UNTIL THURSDAY, 5 DECEMBER 2002 [4.30pm]
Last Updated 30 January 2003.