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"Long-term detention and mental health": Dr Sev Ozdowski OAM (2003)

Rights Rights and Freedoms

"Long-term detention
and mental health"

Speech
given by Dr Sev Ozdowski OAM, Human Rights Commissioner at the 2nd Public Health
Association of Australia Incarceration Conference.
Wednesday
2 April 2003 at the Mercure Hotel Brisbane

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
interaction of many different elements such as our Federal and State constitutions,
legislation and common law.  In more recent times these have been supplemented
by institutions such as the Human Rights and Equal Opportunity Commission and
State/Territory anti-discrimination bodies.  Over the past years, the total
system has served the vast majority of Australians reasonably well.  Indigenous
Australians unfortunately form the most notable exception to this.

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;
  • Provision of public education about human rights;
  • Monitoring human rights compliance by Federal administration; and
  • Policy and legislative development.

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. Over the last
two years I have visited all the centres in Australia at least one time and in
case of some centres more often. These visits raised considerable concerns for
me 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 cultural/religious support, and were increasingly
devoid of hope.

In
general, one could say, people can take up to 2-3 months of detention without
major visible impact on them.  After this, their behaviour changes. We witnessed
trauma, self-harm and family disintegration on our visits. After one year in detention,
the number of people requiring psychological and psychiatric help is staggering.

Above
all, I was concerned at the many effects of detention on children and young people,
and this was the reason why I initiated the National Inquiry into Children in
Immigration Detention in November 2001.

My
views on this subject were also informed by evidence from the Stolen Generations
Inquiry; from the Inquiry into Child Migrants sent from the United Kingdom to
Australia, and from other inquiries which concluded, as a rule, that institutionalisation
is bad for children.

I
was concerned also that the social, psychological and economic cost of institutionalisation
is enormous.  In considering the psychological or psychiatric effect, it
is likely that some children will require many years of subsequent professional
support and care.

While
I cannot yet talk about conclusions of the Inquiry, I believe that public information
from the process so far and the assessment of my numerous visits to detention
centres has led me to develop some key observations.

Some
of these I discussed at a conference in October last year, noting especially:

  • The continued adverse
    comment on people of 'middle Eastern background' who are 'queue jumpers' with
    plenty of money. This does not help the Australian community understand the background
    and often traumatic experience of asylum seekers;
  • The fact that the mental health state of those remaining in detention, especially
    children, is atrocious.
  • In spite of this and continual recommendations from experts, such children and
    their families are not allowed to live in the community because they must be 'available
    for removal'.  Some of them have been waiting for this removal for well over
    a year. During this time their health status has deteriorated rapidly.

I
continue to be concerned about the level of mental health problems which are present
at our detention centres. Much of the research that has been carried out, as well
as the evidence presented to the Inquiry demonstrates this only too clearly.  However,
I note the recent answer provided by the Immigration Minister in a Parliamentary
response, that only some 2.9% of detainees [1] were
taking medication for a psychiatric illness.

Of
course, this may mean that some detainees have a psychiatric disorder but refuse
medication.  But in addition, the Minister also excluded depression from
the definition of psychiatric illness!!  Even though it is one of the most
common disorders in immigration detention centres.

I
look forward to the publication of recent research by Dr Zachary Steel and others
which will address the incidence of mental illness in detention centres in more
detail.

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

What
I would like to concentrate on today is some of the material which was discussed
during public hearings with DIMIA and ACM in Sydney in December 2002 as part of
the Inquiry.

Many
issues were of particular concern to me during those hearings, especially:

  1. The
    bureaucratic rigidity of senior DIMIA officials and their seeming lack of interest
    in exploring the use of existing options to improve the situation of detainees.
  2. The
    insistence of DIMIA that detainees caused their own problems; and
  3. 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 that all of these factors have led to the provision of services, or lack
of them, which have had a serious and unnecessary effect on the health of detainees
throughout the period from 1999 to the present, including 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 Officials and available alternatives to institutional detention

One
of the points that must always be considered is whether a department is responsible
for an action or direction, or whether it is just implementing legislation and
policy directions.  

Even
if a Department is implementing what government wants, there are often different
ways in which such outcomes can be achieved. The legislation itself will often
provide these.

Today
I will mention a few areas where legislation allows such flexibility

Alternative
accommodation

For
example, there is scope within the Migration Act to detain people almost anywhere.

It
is not required that they be detained in a prison-like detention centre. Yet this
option has only been explored, albeit in minimal ways, subsequent to the serious
problems that occurred with the UAMs in Woomera in January 2002.

Before
this:

  • Individuals with serious illness were transferred to metropolitan hospitals for
    treatment, and then generally returned to detention centres;
  • A child who developed a mental
    illness within a detention centre because of the violence he had witnessed was
    first transferred to another detention centre, then sent to foster care in the
    community. Eventually one of his parents was allowed to live with him; (Shayan
    Badraie); 2001.  The whole family was finally granted a visa.
  • On a few occasions, a family
    was transferred from a remote detention centre to a metropolitan detention centre
    because of better access to medical and other services.
  • On one occasion a family was issued with a Bridging Visa because the sole parent
    mother needed to be treated for a medical condition which was exacerbated by the
    conditions at the detention centre [asthma].  
  • A very young unaccompanied minor was allocated three foster families within a
    detention centre before finally being allowed to live in community based detention;

The situation
changed in January 2002 when a group of unaccompanied minors was removed from
Woomera as a result of the concern expressed by the South Australian Department
of Human Services for their well-being.

Of
the group removed, some were subsequently granted visas and placed directly under
state protection; others have not been granted visas, and when they turn 18 can
in theory be returned to a detention centre.

However,
since January 2002 there has been little change in the options available
to others. In fact, there are probably fewer options. From the health point of
view, detainees are harder to treat and place, because they have been in detention
so long.  

From
the security point of view, they must be available for removal even if there are
no certain plans for removal.

This
is the real difficulty with the system that we have at present: the conflicting
principles of best interests of the patient and best security practice.  In
all the different arrangements that have been made since early 2000, these conflicting
principles have been evident.

For
example:

  • A
    mother and child living in commercial accommodation in a city, still being 'in
    detention' with ACM guards.  At one stage the child was fostered when the
    mother was in hospital.  Other family members resided in the community in
    another state, and were willing to care for the child, but this was not allowed.
      [Adelaide 2002 - mother 'never to be returned to detention' as will
    commit suicide]
  • One parent and children living in commercial accommodation while the other parent
    received treatment in a hospital.  While this was for several months, it
    was still 'in detention' [Adelaide - mother with psychosis, late 2002; removed
    to Baxter, still seriously ill].
  • A woman was eventually admitted to psychiatric care on medical intervention, but
    DIMIA was unwilling to allow the next stage of treatment in a community setting.
    Intervention was required by state agency.[Sydney - NSW Public Guardian]. Family
    eventually received visa in late 2002.
  • A similar situation occurred in another state [South Australia, early 2003, man
    now living in care of family in community. Intervention of Public Advocate]
  • An entire family was moved from a remote centre to one in a large city and eventually
    all admitted to a psychiatric hospital. [Jizan family from Woomera to Maribyrnong,
    then to Austin Psychiatric Hospital March/April 2002.]
  • A child requiring continuing medical treatment and his family were moved from
    one remote centre to another, even though they would have been under less pressure
    if able to live closer to the city where the treatment is provided. [Curtin to
    Port Hedland, doctor in Perth, mid 2002].

Possibly
other factors are involved in these decisions, such as:

  • is
    DIMIA willing to pay the costs of such care? Evidence suggests that when some
    'unexpected' situation arose, it is more likely to be DIMIA who pays the costs
    of care than ACM.
  • Has ACM been reluctant to make guards available - it is expensive to provide 24
    hour shifts to guard one individual.
  • Does the state have a suitable hospital bed available, especially when ACM guards
    are forever present? - this may be upsetting to other patients in the ward.

Overall,
it is still security or costs which dominate in these arrangements, not the health
of the patient or the professional skills of the doctors.

Bridging
visas

There
is also an option to allow people to live in the community through the provision
of bridging visas.

Bridging
visas are routinely granted to all people who arrive with a visa and then apply
for a Protection Visa.  The reason for this, according to DIMIA, is that
DIMIA already knows who these individuals are: they have a name, they provided
the required information to get a visa, therefore it is appropriate to let them
live in the community.

Yet
it seems from recent public information, that it is possible for the morally bankrupt
child trafficker to get a visa to bring a twelve year old girl to this country
and to be kept as a prisoner for 15 years to work in the sex industry.

Even
though the legislation does make it difficult for some people in detention to
obtain a bridging visa because of the no final determination clause, many others
could potentially access its provisions. For instance:

  • A child could apply for a Bridging Visa if a state welfare authority has certified
    that release is in the best interests of the child; and
  • A child or adult could apply if a Department-appointed doctor certifies that the
    person has a health need or torture/trauma experience; [2]

However,
in discussing bridging visas with DIMIA officers at the December 2002 hearing,
it became clear that this option was rarely considered for people in detention.
To HREOC this appeared strange because:

  • It was aware of many cases of children with disabilities who had been in detention
    for a long time;
  • Many adults and children had other health problems; and
  • It was more than likely that many people had experienced torture and trauma prior
    to arrival in Australia.

So,
even if we put aside the fact that many people were arguably mentally unwell,
only as a result of their prolonged detention, it was obvious that bridging visas
were not even being considered, for many other detainees, in the limited circumstances
originally envisaged by Parliament.  

This
system was put in place by Parliament through legislation and through regulations
which have to be agreed by Parliament.  Yet, there seems to be a great reluctance
to follow Parliament's line.

Torture
and trauma

I
think it is well accepted that treatment for torture and trauma should not be
undertaken while a person remains in a negative environment such as institutionalised
detention. Yet we know that people who have experienced torture and trauma are
still in detention.

Why
were those not affected by the final determination clause and there are many,
not actively considered by DIMIA as candidates for bridging visas?

Health/disability
issues

The great
distance of the remote centres from a range of services needed by detainees, means
that too often minimal service has been provided. Sometimes this seems to be on
the basis that a parent, however depressed and exhausted he or she may be, is
solely legally responsible for their child.

I
think this is a somewhat perverse interpretation of the CRC's emphasis that parents
must not be displaced from their parental role. In all other respects, institutional
detention deprives mothers and fathers of a parental role.

So,
to make them solely responsible, for example, for a seriously disabled child,
with minimal resources, in remote Australia, borders on the bizarre.

  • At any time, was
    special consideration given to adults and children in these circumstances in accordance
    with Parliament's intentions for bridging visas?

DIMIA's
role:

On questioning
DIMIA officials, HREOC counsel found there was no evidence of any action being
initiated by DIMIA officials even though it is within the capacity of a detention
centre manager to do so. In discussing Bridging Visas for unaccompanied Minors
with DIMIA, HREOC found that DIMIA had not been much involved in initiating better
outcomes for UAMs:

As
far as children
were concerned, DIMIA thought that State welfare officials
should make such assessments.  

However,
there was a Catch 22 - sometimes State welfare departments were
unaware of the existence of children, much less their mental health status or
any disabilities they might have. In any event, state legislation in itself did
not allow them access to children in detention centres, unless DIMIA agreed.:

MR WIGNEY:   It[a
Bridging Visa] 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?

And,
on the many occasions when state welfare agencies have become more involved
- and this has increased since January 2002 ---DIMIA will not accept the
word of recognised experts.  The State reports, at best, will trigger
a request for a DIMIA-appointed doctor to make an assessment.

In
one case, Bridging Visas were issued to 3 out of 4 members of a family on the
basis of the health of a child, but this was not until after months of alternative
arrangements including fostering the child. [Badraie case] The visas were issued
under S417 of the Migration Act (which allows the Minister to substitute a more
favourable decision), and not under the usual Bridging Visa process [3].

For adults,
the situation is even more difficult, although it is more likely that it will
be an adult who has directly experienced torture.

  • Are they aware of Bridging Visas?
  • Are they able to make a case for themselves?

So,
some of the options available to DIMIA under the Migration Act were not used in
ways which could benefit the most vulnerable detainees.  

2nd
Point -DIMIA's insistence that detainees caused their own problems;

The
very negative attitude to asylum seekers from the Middle East which I referred
to at the beginning is clear in the attitudes expressed towards detainees with
mental health problems.

Obviously
those still in detention now are likely to be suffering mental problems, because
they have been there for well over a year. Very few are still awaiting a 'final
determination.' Therefore they have no hope.

It
is in this 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, 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
.[4]

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
  • The detainee may believe the RRT has not understood their evidence;  and
  • 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;

Afghanistan
has not yet been shown to be stable; and even if it were the Hazara will still
be subject to discrimination.; Australia was specifically asked not to return
Afghanis during the winter;

Iran
previously refused to accept people who did not return voluntarily; and people
who believe they have been discriminated against are not going to change their
mind and agree that they will be alright on return.

Some
people simply cannot get a clearance to return to a country through a particular
country.  In these circumstances people really do not have the choice to
'end their suffering' and return as DIMIA contends.

I
am not saying that those who fail to establish they have a claim to protection,
should be allowed to stay forever.  What I do believe though, is that we
must provide a much better environment for them, for as long as return is not
a feasible option.

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
as well as settlement services for people who arrived as recognised refugees under
the off-shore humanitarian program.

I
don't believe DIMIA says to these more orderly refugees that their problems are
essentially trivial and reflect the fact that they are only refugees because they
couldn't make it in their own country.

  • 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.

3rd
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
.[5]

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.

DIMIA has said
that their main concern was to concentrate on the basics - these being health
care, accommodation, food etc. After that, they were able to move on to matters
such as education, recreation.

From
the material provided to the Inquiry, there is some concern whether even these
basics were provided at an appropriate level. The other factors such as education
and recreation - which might have helped reduce self-harm - appear to be less
than acceptable.

These
matters are of course being addressed in the report of the Inquiry.

Conclusion

There
is much else to consider with the situation of children in immigration detention.
 I believe that the problems of mental health in particular affect both adults
and children and that there must be a solution.  

After
all, 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.


1
March 24th, 2003, Hansard, Senate, pp. 9705-9706
2
Migration Act S72; Migration Regulations 2.20(7) and 2.20(9)
3
Note for Sev: we have found a couple of references in DIMIA documents, although
no evidence of a DIMIA doctor being appointed.  Now the Migration Series
Instructions requires DIMIA managers to advise state departments
4
According to DIMIA Bridging Visas were not available because the case had been
'finally determined' in that the family failed to make an application to the Federal
Court within 28 days of the RRT decision: HREOC Report 25, p.7, p. 29
5 Transcript
of evidence, DIMIA, Sydney  5 December 2002, p. 37
6 Transcript
of evidence, DIMIA,  December 2002, p.

See Also