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Diversity in Health 2003: Dr Sev Ozdowski OAM

Rights Rights and Freedoms

Diversity in Health 2003
Sydney Convention & Exhibition Centre Darling Harbour
27-29 October 2003

“Long-term immigration
detention and mental health”
Dr Sev Ozdowski OAM, Human Rights Commissioner

Conference Convenors and Co-directors, distinguished
guests from both Australia and overseas, ladies and gentlemen, all. I
would like to acknowledge the traditional custodians of the land on which
we stand and by so doing remind ourselves that Australia’s cultural
traditions stretch back many thousands of years.

The Human Rights Protection System
in Australia

The system of human rights protection in Australia is rather
complex and depends on the interaction of many different elements such as our
Federal and State constitutions, legislation and common law. It is fair to say
that with the very notable exception of indigenous Australians, the system,
while not perfect, has still produced some reasonable outcomes. Notably what
I would call the “fair go” laws: that is disability, race and sex
in the anti-discrimination arena and economic justice from the “Harvester”
decision, through minimum wages to the centralised wage fixing system.

What has not been well maintained, has been the area of civil
and political rights where the absence of a constitutional Bill of Rights and
reliance on the common law creates an obvious lacuna in the human rights menu.
The Human Rights and Equal Opportunity Commission is an important element of
the human rights protection system in Australia. It is a statutory authority
which is independent of the Government of the day. It was first established
by the Australian Parliament in 1981, and then re-established in 1986.

HREOC administers laws relating
to human rights and discrimination

It does this in several ways, including:

  • Investigation
    of complaints; with provision for court sanctioned outcomes in the anti-discrimination
    area contrasting with parliamentary reporting in the case of human rights
    breaches.
  • Provision of
    public education about human rights; the HREOC website’s (www.humanrights.gov.au)
    popularity is testimony to this: nearly 4 and a half million page views in
    2002/03.
  • Policy and legislative
    development; the suite of anti-terrorism bills is a good example.
  • Monitoring human
    rights compliance by the Federal administration; of which “Bringing
    them Home”
    and Children in Immigration Detention are but two recent
    examples.

Responsibility for Human Rights
in Immigration Detention Centres

As Human Rights Commissioner, I have the responsibility to
inspect and report on conditions in immigration detention centres on an ongoing
basis, from an HR compliance perspective. These visits raised considerable concerns,
and were personally traumatising, because I could see the visible changes in
individuals I had met previously.

I could also gauge the changes in mood in general as various
factors caused many adults and their children to remain in remote centres for
well over a year. They were deprived of community contacts and living in conditions
that are certainly not “4 star hotel”, as some would have it.

Three phases of Detention:

Honeymoon:

In general, one could say, asylum seekers can take up to 2-3
months of detention without major visible impact on them. They are relieved
to be in Australia and believe that their new start in life is just around the
corner.

Trauma:

After this their behaviour changes: “I’m a
father of two teenage children. My 15 year old son sleeps only with the help
of sleeping pills. Both of my children are severely depressed after 5 or 6 months
in the camp. My daughter is 16”
. (Iranian man, detainee representative
committee meeting, Curtin IRPC.)

This is one of the milder reactions that I have personally
observed in the course of my many visits. Other reactions include intense trauma,
self-harm and complete family disintegration.

Total abandonment:

After one year in detention the rate of decline is marked:
“It’s about 16 months since I arrived here. I’ve been under
a lot of pressure. My life has been taken away from me. Within this 16 months
I have become mentally and also physically ill. Every day my physical well-being
is getting worse….I’ve become a useless person who wishes for death
every day”
. (Afghan man, interview, Perth IDC.)

My observations are similar to those of professionals who
actually worked in the field.

As Harold Bilboe,
a psychologist who worked at Woomera from September 2000 to January 2002 described
the various phases of detention in evidence to CIDI:

“Family
roles break down significantly. We actually started time-lining the break
down of individuals. We classify the first three months as being a state of
euphoria, hope, dreams. The next three months, as they are going through all
of their interviews and there is anxiety starting to build up.

After six
months we start to see a deterioration in the emotional and psychological
well-being of individuals, a significant start in the increase of self-harm.
Be it hunger strikes, emotional anxiety, psychological disturbances developing,
increased requests for assistance for sleep, which is an indication of depression,
medication for depression, more active involvement in disturbances and in
self-harm. So, yes, I have seen people age on a daily basis. I have seen middle
aged men become old men in months”.

The “Sultan and O’Sullivan” study of the
mental health of detainees notes that the mental decline of detainees matches
the stages of the visa process combined with the length of detention. [1]
The report [2] notes four stages in psychological reaction
patterns, with each successive stage being ‘associated with increasing
levels of distress and psychological disability’:

Non-symptomatic stage:

During the early months of detention, before the primary refugee
determination decision, the detainee is shocked and dismayed at being detained,
but these feelings are mitigated by an unwavering hope that confinement will
be short-lived and that their claim will be upheld.

Primary depressive stage:

This follows the receipt of a negative decision by DIMA and
the realisation by detainees that they face a serious threat of forcible repatriation
or detention for an indeterminate period, or both. The clinical presentation
is consistent with a major depressive disorder, with the severity closely related
to pre-existing risk factors, such as premigration exposure to trauma or personal
predisposition to depression.

Secondary depressive stage:

This typically follows the rejection of the asylum seeker’s
application by the Refugee Review Tribunal, the ultimate administrative level.
The timing of this final rejection may vary, but generally occurs between six
and eighteen months after first being detained. This stage is associated with
a more severe level of psychomotor retardation and/or agitation. There is a
marked narrowing of focus to issues of self-preservation and survival and an
overwhelming feeling of impending doom.

Tertiary depressive stage:

At this stage the detainee’s mental state is dominated
by hopelessness, passive acceptance and an overwhelming fear of being targeted
or punished by the managing authorities. Affected detainees become self-obsessed
and trapped in their predicament. … The detainee’s life can become
dominated by paranoid tendencies, leaving them in a chronic state of fear and
apprehension and a feeling that no one, including other detainees, can be trusted.

Now whatever one’s personal views about immigration
detention, all of us must acknowledge that it is premised on the removal of
freedom. That is freedom of choice about where to live, freedom about what to
eat, freedom about whom you associate with, freedom to fulfil even the most
basic functions such as choice of education or health-care provider. The very
stuff of day to day life, in all its gloriously normal mundaneness.

Prison versus Immigration Detention

And in considering the above it is important to remember that
immigration detention is for “administrative purposes” only and
not “punishment” as we understand the concept by reference to Australia’s
domestic penal arrangements. Clearly the latter is intended to include such
a rationale, while equally clearly immigration detention is not. And yet perversely,
some aspects of penal incarceration could almost be said to produce superior
outcomes.

At least in prison you have committed a crime, in immigration
detention you have not; in prison your length of sentence is determinate, in
immigration detention it is indeterminate; in prison there is a rigid rehabilitation
regime which includes a mandated timetable of recreation, work and education,
in immigration detention these elements may exist (but sometimes don’t),
and are often beset with problems of inconsistency, quality unevenness and arbitrariness
of application.

Australasian Correctional Management, the erstwhile immigration
detention centre services’ provider also manages “Arthur Gorrie”
correctional centre in Queensland. As this facility houses some immigration
detainees (typically non-citizens who have served a penal sentence for committing
a crime in Australia and are now awaiting deportation) I have had cause to visit
it on a number of occasions. My observations of conditions there have informed
the views expressed earlier. My suspicions in this regard have also been reinforced
by discussions with detainees who have experienced both forms of incarceration.
Unhesitatingly they tell me that given a choice, they would prefer prison to
immigration detention.

In passing I should also add that I consider the commercial
out-sourcing of immigration detention services’ provision preferable,
while the current policy settings prevail, over the suggestion that it should
be once again managed “in-house” by the Government. It is demonstrably
unworkable, by reference to a raft of other sectors in the Australian economy,
to have the regulatory oversight function and the service delivery vehicle bundled
together. While the current policy is in force, DIMIA should be responsible
for regulatory oversight of immigration detention standards and Group 4/Falcke
(the newly appointed service provider) for service delivery.

Immigration Detention and Deterrence

Immigration Minister Ruddock in an interview with ABC Radio
National on 1 August 2002 stated: “Detention arrangements have been
a very important mechanism for ensuring that people are available for processing
and available for removal, and thereby a very important deterrent in preventing
people from getting into boats”.

UNHCR Guideline 3 of the “UNHCR Detention Guidelines”
states: “The detention of asylum seekers as part of a policy to deter
future asylum seekers, or to dissuade those who have commenced their claims
from pursuing them, is contrary to the norms of refugee law”. Even without
this admonition, the concept of proportionality militates against this rationale.
Public policy should not only be effective, it should also provide a proportional
response to that which it aspires to achieve. Clearly at one end of the spectrum
you could staunch the flow of “asylum seeking boats” by sinking
them; at the other end of the scale, you could permit all people who arrive
at our borders immediate and unrestrained access to the general community without
any health or security checks.

Furthermore even if it can be proved that the policy has achieved
its deterrence outcome of stopping the boats, it remains a flagrant breach of
human rights obligations. It is likely that a similar outcome could have been
achieved, albeit over a longer time-frame, by way of international co-operative
measures to ensure the orderly processing of asylum seekers in transit countries.
Now let’s look at some basic facts about our detention regime.

Some Basic Statistics on the Immigration Detention
Regime

  • When was the
    policy introduced?
    1992 to deal with the perceived influx of Cambodians
    and Vietnamese. One of the primary purposes was to perform basic health, identity
    and security checks.
  • Who is detained?
    All persons who either arrive without a visa or whose visa expires. If
    they are intercepted outside Australia’s territorial waters or arrive
    at Christmas/Ashmore, they go to Nauru/PNG; otherwise detained in Australian
    detention centres.
  • How many boat
    arrivals?

    In practice, most people in long term detention are asylum seekers who arrive
    by boat. It goes in waves but since 1989, 13,475 have arrived by boat which
    would only fill about 20% of Telstra Stadium out at Homebush.
  • Where are
    they from?

    Over the past few years most boat arrivals have been from Iran, Iraq, Afghanistan;
    reasonable numbers have also come from Palestine, Sri Lanka and China.
  • How many
    in detention (all categories)?

    In 2001-2002 approximately 10,000 people in detention; 1,700 were children
    and 1,400 of those children were boat arrivals. As at 7 July 2003, there were
    just over 1,000 people in detention, 92 of whom are children.
  • Are they
    genuine refugees?

    Over 90% of boat arrivals in detention over the past three years have been
    found to be genuine refugees ie almost all found to have suffered persecution
    and released into Australian community.
    • In the same
      period only about 20% of the asylum seekers who arrived with a visa (eg
      tourist visa) were found to be refugees; this refutes the argument that
      there is a correlation between being a “boat person” and a
      “fake refugee”; in fact boat people are much more likely to
      be refugees.
    • Children?
      Nearly 50% of the children who applied for asylum over past three years
      are from Iraq and 97% of those were successful. Approximately 35% are
      from Afghanistan and 95% were successful. Just under 10% were from Iran
      and 66% were successful.
  • How long in
    detention?
    Boat arrivals must stay in detention until they get a refugee
    visa or are sent back home. Sometimes this can take years.
    • The longest
      a child has been in detention with a family is 5.5 years.
    • In January
      2003, the average length of detention for children was more than one year
      and three months.
    • By April
      2003, 50 children had been in detention for more than 2 years. All of
      those children were in detention with one or more parents.
  • What type
    of visa do they get?

    Since 1999, those who do get a refugee visa only get a three year temporary
    protection visa. After three years is up they must start all over again. This
    compares with those who arrive (say) on a tourist visa and then apply for
    refugee status – they get permanent visas. Regulations proposed by the
    Government to bring these applicants into line with “boat arrivals”
    were disallowed by Parliament in September 2003.
  • What impact
    do the TPVs have on their recipients?

    There is evidence suggesting that, despite their ‘right to work’
    and access to some basic services eg ‘special benefit’ and medicare,
    they suffer from a lack of stability, have difficulty settling and factually
    they cannot access some key services like:
    • English tuition
      for adults;
    • Full range
      of employment assistance and programs;
    • Access to
      tertiary education, and
    • Family reunion
      or ‘right of return’ on departure.

ACM/DIMIA Public Hearing, Sydney
2-5 December 2002

Now I would like to finish by briefly examining some of the
material which was discussed during public hearings with DIMIA and ACM in Sydney
in December 2002 as part of the Inquiry. My purpose here is not to demonise
individuals within DIMIA and ACM, but rather to demonstrate the cultural attitude
that the policy has engendered in the department and the company.

In fact I did not intend to deliver this part of my speech
due to time constraints, however a conversation I recently had with a relatively
senior DIMIA official convinced me that my concerns, expressed earlier, were
well founded. When I mentioned to this official that one detainee child had
spent 5.5 years in immigration detention prior to release into the Australian
community, she responded: “there must be a good policy reason why
this had happened”.
It is significant that her initial response was
to neither seek the facts nor proffer concern about the child’s wellbeing.

So let me give you two of my particular concerns from those
hearings:

  • The insistence
    of DIMIA that detainees caused their own problems; and
  • DIMIA’s
    belief that a wealthy 1st world country such as Australia meets its international
    obligations even if it only provides the minimum requirements.

I believe it is factors such as these, which are linked to
the provision of services, or lack of them; this in turn may have had a serious
and unnecessary effect on the health of detainees throughout the period from
1999 to the present. This includes the health of those unlikely to obtain a
visa, in that they have been found as not engaging Australia’s “protection
obligations”.

1st Point –DIMIA’s insistence that detainees
caused their own problems;

It is in the area of mental health especially that DIMIA’s
attitude to at least the current detainee population is most obviously negative.
There is an automatic distrust of people who do not arrive in an orderly fashion;
from this follows that any mental “condition” they subsequently
manifest must be false. But “orderliness” has never been a characteristic
of refugees!!

For example; witness Jews escaping the Nazi Holocaust, the
many millions seeking to escape Stalin’s oppression and the thousands
fleeing Vietnam after the fall of Saigon in 1975; these are some representative
samples of the manifest absurdity of this proposition. Assuming that there is
a sound Refugee Convention basis for the acceptance by either DIMIA or the RRT
of applications for a visa, there was a sound reason for people to leave promptly.

There is often no alternative except to turn to a people smuggler.
From the statements of some asylum seekers, they have no idea where they are
going, only that the money they have will take them to one place rather than
another. Had a better option been available or feasible, or been known to be
available, would people not save their money and go to it?

But the understanding demonstrated by DIMIA of asylum seekers
especially those who fail in their applications is minimal. During the public
hearing in December, DIMIA said: “the choice to bring the detention
period to an end lay within the capacity of the family and… they could
choose at any point from then on to return to their home country and so far
that has not been the case”.
[3]

This is a strange statement, given that:

Some of the detainees
are mentally ill and cannot come to a well informed judgement of what they should
do. In many instances, it has been impossible for people to return to their
home country, even with DIMIA’s help. It is not logical to support a war
against Iraq, but for a government department to think it possible at the same
time to return to Iraq the very people who were forced to leave. There is such
a degree of contradiction and perversity in what DIMIA says and does that the
effect can be quite surreal. Speaking of refugees, and the effect on them of
detention itself, the DIMIA officer stated on one hand:

“Of
course, some of these people have had a very difficult and often perilous
voyage to get to Australia and they may well have other predispositions or
issues in their life well before any thought of coming to Australia which
might also be impacting on their personal circumstances whilst here”.

Firstly, this statement says to me that DIMIA
believes:

  • mental health
    problems are probably not caused by detention – people carry them with
    them.

Secondly, DIMIA also seems to be saying:

  • at most these
    people had an unpleasant voyage to Australia; this has contributed to their
    mental health problems and also:
  • they may have
    been losers in their own country. It has really got nothing to do with Australia.

Yet DIMIA knows that it expends significant funding on torture
and trauma services under its settlement services for people who arrived as
recognised refugees under the “off-shore humanitarian program”.
What is the difference? The fact that we carefully chose one group and didn’t
choose the other group. I believe we all have a responsibility to point out
the lack of logic and the discriminatory attitudes that are being perpetuated
by these statements.

2nd Point - Provision of Bare minimum of services:

I don’t believe that detention centres have ever been
very generous in their provision of services to detainees. From the detailed
evidence provided to the Commission, this certainly appears to be the case over
the past few years. Maybe this wouldn’t matter much if there was a short
maximum period of detention. It is when detention is for many months and even
years, that the greatest damage is done. International conventions are rarely
specific about the standard of services that should be provided or the time
by which this standard must be reached. But in terms of children, the CRC states
that detention must be the last resort and must be for the shortest possible
period. As far as health and related services are concerned, a country such
as Australia should seek to provide the highest standard that it can. The CRC
speaks of taking positive action to restore and rehabilitate, not just to hand
out Panadol.

In its evidence to the Inquiry in December last year, DIMIA’s
position appeared to be that due to the large number of detainees, services
could only be basic:

“The
provision of immigration detention services is a complex and dynamic area
of public administration. It is not possible to predict the number of unauthorised
arrivals that may come to Australia. After all people simply do not book in.
Nor is it possible to predict the means of their arrival, the characteristics
of the population that arrives nor the validity of any claims they may make
to remain in Australia”.
[4]

If numbers were relevant, many disadvantaged countries would
have a good excuse to provide the bare minimum. Yet, the Inquiry heard evidence
that even countries dealing with massive numbers of traumatised people –
such as in central Africa - were assessing the nutritional intake of children.

I agree that the provision of services to a refugee or asylum
seeker population is complex. The way the system is structured means that one
is essentially running small separate towns in isolated parts of the country.
But the services’ provider ACM was paid handsomely to cope with this complexity.
And DIMIA also, as a long-established department, was paid by us taxpayers,
to be efficient. I think Australia could easily have provided a much better
level of service to asylum seekers which would have had a beneficial effect
on their health.

After all as I said earlier, if detainees who have experienced
both jail and immigration detention, would rather be in a penal institution
than a detention centre, I think we need to be seriously concerned about this
policy’s implications.

 

Last
updated 3 November 2003

See Also