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A last resort? Children in Immigration Detention (2004)

Rights Rights and Freedoms

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A last resort? Children in Immigration Detention

Opinion piece by Human Rights Commissioner Dr Sev Ozdowski, OAM. Published in the Courier Mail and the Newcastle Herald, 10 June 2004

How many children are in immigration detention today?

Four weeks ago today, a report was tabled in Federal Parliament that detailed numerous and repeated breaches of the human rights of children in our detention centres.

The report called for the release of all children within 4 weeks of tabling. The deadline is today and there are still children in detention - children living in Baxter detention centre in South Australia, in Villawood in NSW, on Nauru, in housing projects in Port Augusta.

There is a 14 year old boy still in detention in the Port Augusta residential housing project. Between April 2002 and July 2002, the boy (then detained at Woomera) attempted to hang himself four times, climbed into the razor wire four times, slashed his arms twice and went on hunger strike twice. This boy's mother was hospitalised due to her own mental illness during this whole period.

Then there is the case of a 13 year old child who has been seriously mentally ill since May 2002. This boy has regularly self-harmed. In February 2003 a psychiatrist examining the boy wrote: 'When I asked if there was anything I could do to help him, he told me that I could bring a razor or knife so that he could cut himself more effectively than with the plastic knives that are available.' Mental health professionals have made more than 20 recommendations that this child be released from detention with his family. But he is still there.

A last resort?, the report of the Human Rights and Equal Opportunity Commission's National Inquiry into Children in Immigration Detention found that the Department of Immigration's failure to implement the repeated recommendations to release children like this second child amounts to cruel and inhumane treatment under article 37(a) of the Convention on the Rights of the Child.

The report made three primary findings.

First, the mandatory detention policy breaches the Convention on the Rights of the Child because it makes detention the first and only resort, not the last resort. The policy fails to ensure there is an individual assessment of the need to detain and there is no effective review of detention in the courts.

Second, children have been in detention for long periods of time (the longest a child has been in detention is five years, five months and 20 days) and the longer they are there the higher the risk of serious mental illness.

Third, the conditions in detention centres: failed to provide sufficient protection from physical and mental violence; failed to provide the appropriate standard of physical and mental health; failed to provide adequate education until late 2002; failed to provide appropriate care for children with disabilities; and failed to give unaccompanied children the special protection that they needed. This directly relates to the fact that the Minister for Immigration is both the guardian and jailer of unaccompanied children.

A last resort? chronicles the experiences of children in detention in exhaustive detail. The Department of Immigration has not taken issue with the findings in the 900 page report. The Department has not disputed the incontrovertible evidence of the devastating impact that indefinite detention has on the mental health of children and their families. Some children have been diagnosed with clinical depression, post traumatic stress disorder and developmental delays. Many children have showed symptoms like nightmares, bed-wetting, muteness, lost appetite and suicidal ideation - the list goes on.

The report documents beyond any doubt - that the longer children are in detention the more likely it is that they will develop serious mental heath problems. We also know that more than 9 out of 10 asylum seeker children in detention end up calling Australia home - because they are eventually found to be genuine refugees. So the Australian community is left with the burden of helping these families deal with both the normal challenges of settling into a new society and the additional mental damage that we ourselves have caused.

So why do we lock them up for years? The government says that it has had to make the awful choice between locking up children and deterring people smugglers and it chooses the latter. There is absolutely no evidence to prove that detention deters people smugglers. Let's not forget that the mandatory detention system was put in place in 1992. It did not deter those people who have come since then.

Furthermore, there is no human rights law which allows the Department to use innocent children to attempt to deter criminal people smugglers. While Australia has the right to protect its borders and stop people smuggling, it also has the responsibility to uphold its human rights obligations to children. The human rights that Australia owes to children include that detention of children must be a measure of last resort and for the shortest appropriate period of time; and that any detention of children must be a proportionate response to achieving a legitimate aim. A last resort? shows clearly that Australia's detention policy does not meet those standards.

Also, there is no evidence of these so-called 'floods' of boat arrivals into Australia. If we took all of the boat arrivals that have come to Australia since 1989 - adults, families and unaccompanied children - they would only fill 15 percent of the Sydney Olympic Stadium.

Finally, we must keep reminding ourselves that almost 93 percent of the children we lock up end up in the community because they are recognised as genuine refugees. As a point of comparison, asylum seekers who enter Australia with a visa and then apply for refugee status only have a 25 percent success rate - yet they are almost never detained.

Our current immigration detention laws do not make sense - legally, practically or morally. This year Australia is the Chair of the United Nations Commission on Human Rights. It is a great opportunity for Australia to be a human rights leader. It's time to let the children out of immigration detention and change the immigration detention laws so that no child suffers under this system again.