HREOC Website: National Inquiry into Children in Immigration Detention
Transcript of Hearing - Sydney
Friday 19 SEPTEMBER 2003, 10:00 AM
Commissioners:
- Dr S. OZDOWSKI, Commissioner
DR OZDOWSKI: I would like to welcome everybody to this hearing of the National Inquiry into Children in Immigration Detention.
To those of you who have been following this Inquiry closely, it may be unclear as to why this hearing is taking place as I had said in December 2002 that those would be the last of the Inquiry's hearings. I will therefore briefly set out the history and methodology of the Inquiry to this point which will take us to why we are here today. I will then set out what steps remain to be completed after this hearing is concluded and prior to publication. Finally, I will set out the proposed procedure for today's hearing. Let us start with methodology of the Inquiry to date.
The Inquiry, as you would remember, was announced on 28 November 2001. At that time the Inquiry called for public submissions and set a deadline of 15 March 2002. Due to a large number of requests for extensions, the Inquiry extended that date to 3 May 2002 and the Inquiry has, at its discretion, accepted further submissions since that time. The Inquiry has received all together 345 submissions, including 70 confidential submissions.
Submissions have taken a variety of forms, including tapes, drawings, poetry as well as detailed commentary by DIMIA, organisations that are representing detainees, human rights and legal bodies, members of the public, religious organisations, state government agencies and a range of non-government policy and service providing groups. Most of the public submissions for which we were able to obtain an electronic copy have been placed on the Commission website.
The Inquiry visited all immigration detention facilities in Australia between January 2002 and December 2002. We visited Woomera three times. During each visit, we conducted a tour of the facility, spoke to DIMIA and ACM staff present at the centre and interviewed all families and children who wished to speak to us. Over the period, we conducted a total of 112 interviews with children and their parents. All of those interviews were conducted on the basis that the identity of those detainees would be protected.
Also over 2002, the Inquiry has conducted 27 focus groups with children, parents and some other ex-detainees now living in Sydney, Melbourne, Perth, Adelaide and Brisbane on temporary protection visas. Those focus groups were also conducted on the understanding that the identity of the refugees would be protected.
Between May 2002 and August 2002, the Inquiry held hearings in Melbourne, Perth, Adelaide, Sydney, Brisbane to allow members of the community, state government agencies, NGOs and former ACM staff and others an opportunity to provide further information and evidence to the Inquiry. The Inquiry heard from more than 60 individuals and groups in public hearings. The transcripts have been on the Inquiry website for some time.
The Inquiry also heard evidence from more than 20 individuals and groups in camera hearings. Several of those witnesses subsequently agreed to make their evidence public. In particular, the Department of Human Services and many former ACM staff who gave evidence in confidence have now given us permission to publicise their evidence. Those transcripts are also available on the Commission website.
Throughout 2002, the Inquiry received evidence from the Department and ACM in the form of documents provided pursuant to five notices that the Inquiry issued to each of them. Those documents take a variety of forms and cover a range of issues relevant to the Inquiry. The Department also provided a submission in May 2002.
The Inquiry had intended to hold a public hearing to allow the Department of Immigration and ACM to give oral evidence to the Inquiry in September 2002. However, on 27 August 2002, the Department of Immigration asked that the Inquiry postpone the public hearings and consider submissions as to confidentiality. The Inquiry granted this request and on 9 October made confidentiality orders and set 2-5 December as the new date for public hearings.
Accordingly, for 4 days in December, the Inquiry heard evidence from the Department and ACM on various issues, including the Department's mechanisms for monitoring compliance with human rights in immigration detention, the care of unaccompanied children in detention, the mechanisms to deal with the deteriorating mental health of families in detention, education in detention facilities, and finally provision of services to families with disabilities. The transcripts of those hearings are also available on the Inquiry website.
After those hearings had concluded, the Inquiry commenced writing a draft of the report containing theist tentative factual findings and its preliminary views as to whether there may have been any breaches of human rights.
I provided a copy of that draft report both to the Department of Immigration and ACM. The purpose of sending the draft was to give both parties the opportunity to respond to any of the tentative findings that the Inquiry had made regarding possible breaches of the Convention on the Rights of the Child and, if they wished, to provide further evidence or submissions on any of the matters raised in the report.
ACM has provided the Inquiry with written responses to the draft report. DIMIA also provided written responses to the draft report. ACM, however, also requested the opportunity to make oral submissions in addition to its written submissions. It is for that reason that this hearing is being held today.
ACM initially indicated that it also wished to present oral evidence to the Inquiry. It no longer seeks to do so but has provided me with some written witness statements, which I have accepted.
So what will happen after these hearings? Subject to submissions made today, this is how the Inquiry intends to proceed.
Once this hearing has finished, the Inquiry will consider all the evidence and submissions and reach its final conclusions. If the Inquiry concludes that there have been acts or practices inconsistent with or contrary to any human rights, the Inquiry's proposed course of action is to serve ACM and DIMIA with a notice setting out the findings, the reasons for those findings and any recommendations. ACM and DIMIA will be asked at that time to advise the Inquiry of what, if any, action it is taking as a result of the findings and recommendations. Those matters will be reflected in the final report which the Inquiry will transmit to the Commonwealth Attorney-General. He must table the report in Parliament within 15 sittings days.
Given the sequence of events I have just described, I am hopeful that the report will be tabled in Parliament in the early sittings of 2004.
Now, the final point - the procedure for the hearings. First, I will ask Counsel for ACM to start by making his submissions. One specific issue I would like to ask Counsel for ACM to clarify is whether the Inquiry will be receiving the two additional witness statements which ACM indicated that it was going to send by 17 September. I will then ask Counsel Assisting the Inquiry to make his submissions. Counsel for ACM may then reply to those submissions, if he wishes. I note that Counsel for ACM has indicated that he is of the view that the hearing is unlikely to extend beyond today.
So I declare the hearings open and I ask Mr Stephen Rushton, Counsel for ACM, to make his statements.
MR RUSHTON: Thank you, Commissioner. Can I raise two matters. One is in response to a particular matter you asked me to address and that is whether ACM provide, or propose to provide, two additional statements. We do, from a Dr Weir and a Dr Earle. We are reasonably confident that material will be available by the end of next week. The delay has in part been because, of course, these people, or at least one of them, does not work for us - or neither of them do, I'm told and that understandably has caused some delay but we were hopeful that they will be provided by the end of next week. The second particular matter I want to raise is this, that I, of course, haven't been - - -
DR OZDOWSKI: I will ask you to raise your voice because people can't hear you.
MR RUSHTON: Yes, I will do that. The second issue I wanted to raise was a subject of confidentiality orders. I, of course, haven't been involved right the way through and as I understand it, there were confidentiality orders made at various points in time during the course of the Commission's proceedings. In order for me to address particular matters today, I am concerned that I may inadvertently breach those orders.
Can I suggest that a way forward may be this, that at the moment, Commissioner, you make a confidentiality order in relation to what I say so that you can then have a look at the transcript within the next few days or so and indicate if there is anything in there that shouldn't go beyond this room, for the reasons you have already advanced. I notice that undertakings were given to various people at various points in time. It is very difficult for me to address particular matters if I am constrained by those orders within the context of this hearing.
DR OZDOWSKI: Yes. Could I ask Counsel Assisting the Inquiry about his submissions?
MR WIGNEY: Would you just excuse me for a moment, Mr Commissioner? Yes, we would acknowledge that is probably an acceptable approach to take, Mr Commissioner, to avoid any inadvertent breach of confidentiality.
DR OZDOWSKI: I think I would like to take a short break and discuss that issue with you separately.
MR RUSHTON: Certainly.
DR OZDOWSKI: So I announce a 5 minute break and we will - could we discuss that issue now?
MR RUSHTON: Thank you.
SHORT ADJOURNMENT [10.14am]
RESUMED [10.17am]
DR OZDOWSKI: Okay. So we can resume the hearings and after consulting with the Counsel Assisting and Counsel for ACM, I order that the previous confidentiality orders do apply to the media being here.
However, they do not apply to Counsel for ACM. If people from the media who are here have any doubts about what the orders were and what could be reported, I suggest you talk to the Commission lawyers who are present here and they will advise you as to what can be done.
It is done in order to protect identity of people who are here on temporary protection visas and who were acknowledged as refugees and may have a difficulty in case they return to their countries of origin. So now I ask the Counsel for ACM, Mr Rushton, to start his submissions.
MR RUSHTON: Thank you, Commissioner. Commissioner, by way of general introduction, can I say a number of things? First, as a consequence of correspondence which has passed between those who instruct me and the Commission, it will be unnecessary for me to address a number of matters which were of concern to ACM. The Commission has, as we understand it, accepted the evidence presented by ACM and its submissions on certain topics and I can leave those to one side.
That leaves however, Commissioner, an issue as to how the Commission should deal with those matters where it is obviously now inappropriate to make a finding. I will come back to it in due course but can I say by way of opening comment that if there is not sufficient evidence to make a finding, indeed if as we say the evidence is all one way, it really is flirting with danger or to put it another way, courting disaster to publish allegations and leave them up in the air. To do so may cause an understandable sense of grievance to ACM and its employees.
We all know that if an allegation is published, no matter how bizarre, no matter how unlikely, there are those who will want to believe it is true. This, can I suggest, is particularly so in the context of the current inquiry where its subject matter understandably excites debate and often at a highly emotive and intuitive level rather than a level grounded in fact, logic and reason. My submission to you, Commissioner, is this.
If you come across a situation where there is insufficient evidence to make a finding, if there is insufficient cogent credible testimony which has been properly tested, then leave it alone. If you cannot make a finding, then to deal with it at all has the potential for grave unfairness and misrepresentation, particularly as to the Commission's motives. To be frank, the Commission should not engage in what might, in the context of this highly emotive subject matter, be construed as a preparedness to strike but not to wound.
Those who have participated in the Commission's inquiry have a legitimate expectation for more. They and the community generally are entitled, in my respectful submission, to expect that this Commission will take a balanced and careful approach to information and evidence it has received, that it will approach its task with a considerable degree of intellectual rigour and that its report will, as a consequence, be able to withstand the robust scrutiny to which it will inevitably be subject.
I submit again, Commissioner, that if in relation to a particular matter the Commission is not satisfied to the required standard that a complaint has been made out, then it should not find its way into a report. It is just not good enough to conclude that the Commission has not satisfied the requisite standard that X or Y occurred if the Commission is not satisfied that X or Y occurred and for the purposes of the report, either it did not occur or it is not worthy of mention.
Now, the next general matter I wish to raise is to acknowledge that the subject matter of this Inquiry is clearly of considerable moment. The mere statement of what it is that this Commission is inquiring into is enough to highlight that fact. However, because of this fact, its obvious importance, we respectfully submit, that it is incumbent upon the Commission in approaching its task to get it right and as far as it is possible humanly so to do, to get it absolutely right.
I raise this because in my respectful submission, and I will come to the details in due course, there has been on the part of the Commissioner – or the Commission rather, a tendency to demonise ACM. In this regard, ACM is an obvious easy mark. It is the entity which is contractually, at least, the one who bears immediate responsibility for detaining persons in immigration detention, including children. However, the following matters should be acknowledged and we respectfully submit expressly acknowledged in the report.
First, ACM does not accept the policy. It is a service provider who performs in accordance with a contract and by reference to a number of immigration detention standards and the like. It has performed its contract and I submit it has obviously performed it very well. It has had to cope with the ever changing patterns of arrival. It has had to respond quickly and effectively to the needs of all detainees including children and it has done so in accordance with a policy mandated by others.
Secondly, ACM is not merely an artificial corporate entity. It is made up of real people who were required to respond to the needs of many, many people arriving in difficult situations on these shores, carrying considerable baggage, for want of a better expression, as a consequence of their desperate endeavours to get here or their past histories which gave them the motivation to take the huge risks involved in doing what they did.
A number of those who found themselves in immigration detention were, as we know, children. But let me tell you, Commissioner, that many, many ACM employees were committed, indeed deeply committed, to ensuring that those who were detained were provided with all that could be provided within the constraints of the environment set by policy.
Despite the volume of material received by the Commission during the course of the inquiry, I am hopeful that you will remember the demeanour and enthusiasm of the one, the only one, of ACM's current employees who was called to give evidence. She was, at the time, a totally committed teacher.
I refer there to Ms Lumley. She had in the past taught in very difficult circumstances, I believe, in Mozambique. The one question I never asked her in conference and indeed was never asked by the Commission was whether she considered it appropriate that children be detained in immigration detention. I could speculate what her answer might have been but it is irrelevant. What is relevant and highly relevant, in my respectful submission, is that within legislative policy she was prepared to do her very best and she was but one such individual.
The point of all of this, Commissioner, is to encourage the Commission to consider that although it is tempting to regard ACM merely as a corporate creature who is, as I have said, an easy mark, you should not lose sight of the fact that it has employees, it has a human face and most, if not all, of those employed were very committed to providing the best that they could do in the circumstances. They were skilled health professionals, teachers and the like and they were, as I have said, committed to looking after the day to day well being of these children.
Now, the next matter of general significance I wanted to raise is this and it is very important. In a sense, because of the grave importance of the subject matter which is being examined by the Commission, it heightens the need to ensure that those parties who have appeared before it and, of course, including that and I direct attention to the fact that I appear for ACM, are afforded with a proper, and I stress the word "proper", opportunity to respond.
The Commission is, of course, bound by the rules of natural justice and we had made submissions in detail on that subject matter some time ago. Commissioner, you should bear this in mind, that it is not merely enough to have me sitting here today making submissions in relation to the draft report which was issued by the Commission because in certain circumstances, and I will highlight some of the circumstances in a moment, we are not in a position to adequately deal with the particulars of particular complaints because we do not know what they are.
Having said that, might I say this, Commissioner, that ACM acknowledges that it is quite proper for this Commission to accept information from a variety of sources. It is quite proper for this Commission to protect the identity of those persons or some of them who have provided relevant information. To suggest otherwise would mean that the Commission would be fettering itself as to what knowledge and the circumstances in which it could obtain it.
Now, that having been said, once the Commission moves on to its fact finding exercise, there are in accordance with the rules of natural justice severe limitations imposed upon the Commission accepting what these people say without it having been tested or without it having been disclosed to ACM, who they are, where they were and precisely the circumstances in which they make their complaint.
We just can't respond to it. Now, if I could then turn to some particular matters that are contained in the draft report. Might I preface what I'm about to say by making this submission, that our position is this, that all the matters that those who instruct me have dealt with in their detailed responses are regarded by ACM and its employees as extremely important and we have made the assumption and I think it is a correct assumption that in arriving at a conclusion on any particular subject matter, Commissioner, you will take into account and give proper consideration to everything that has been said in our written document.
Because I may not address particular matters that are taken up in the written documents this morning, does not mean that it is not regarded as significant by ACM. It should still be taken into account by you. What I propose to do merely is to highlight some of the problems that we see in relation to parts of the draft report as it currently stands. Again, I stress that they are matters that were not the subject of correspondence between the Commission and those who instruct me in recent days.
I first turn to chapter 9 which deals with mental health and the development of children in detention. Chapter 9, section 1, the Commission has tentatively put forward the view or the conclusion that detention has a significantly detrimental impact on the mental health of children. Now, Commissioner, that may or may not be so we respectfully submit, and it is not for us to debate the merits or otherwise of such a statement. However, we do draw the Commission's inquiry - attention to a number of matters.
Firstly, that given the complexity of the detainees' circumstances, experiences and the individual nature of mental health it is impossible, we would respectfully submit, to extricate a single factor and attribute a cause to it. Most, if not all, of these children came from an environment which on any view was difficult and in some instances was clearly horrific. Those factors, of course, would impact upon the mental health of those children as well. Those factors, we would respectfully submit, have not been adequately taken into account in the draft report as it currently stands.
ACM emphasises, Commissioner, the importance of basing conclusions on careful examination, analysis and discussion of at least the following complex issues. First, the highly individualised nature of mental health conditions. Secondly, the diagnostic imprecision in isolating and attributing causality in mental health conditions. Thirdly, the inter-relationship between predisposing genetic factors and environmental factors. Fourthly, the inter-relationship between the factors involved in the projectory of detainees through their journey and current detention in Australia. Finally, the relationship between environmental factors and critical stages of psychological development.
What we respectfully submit is that the Commission, by and large, has really responded intuitively to a matter of science and we would respectfully submit that the Commission needs to go further.
Some of these children with their families are presumably seeking refuge from what has been described by them and a range of advocacy groups as atrocious circumstances, such as persecution, brutality, poverty and other inhumane conditions. If one was to approach these issues on an intuitive basis, one could even conclude that immigration detention for some of these poor children was a wonderful respite, but we don't suggest that you approach it on an intuitive basis. It has to be reasoned, logical and based to the extent possible on expert testimony.
By way of example, Commissioner, the draft report conveys a perception, we say, that there is a significant quantity of research available on the specific impacts of immigration detention. That, we say, is wrong. The research documented by Zachary Steel upon which the Commission relies and relies extensively, contradicts this perception and categorically states that there is a dearth of data about the mental health of detained asylum seeker children and their family units held in detention in Australia.
ACM asks that the draft report be amended to clearly acknowledge the absence of data and the impact of this on the ability to arrive at unequivocal conclusions in respect to the mental health issues and the corresponding clerical factors.
An analysis of the draft report, Commissioner, indicates, as I have said, that it has heavily relied on the research undertaken by Steel, but Steel himself acknowledges a number of limitations on the methodology which he used but curiously, Commissioner, the report does not. It must do so we respectfully submit. The weaknesses in the methodology of Steel are as follows. He acknowledges that the sample is not representative. His article identifies the inherent limitations of the methodology which include an acknowledge that research has been limited to a single ethnic group in a single location at a single point in time.
The article also identifies the reliance on retrospective self-reports by detainees could have introduced inaccuracies in recall. The article also admits that respondents may have exaggerated their reports of experiences and symptoms and warns of the need to acknowledge this possibility. If the author of this report has placed those sorts of limitations upon it, then we would respectfully submit that it is incumbent upon the Commission to do so - to do likewise, if it is going to continue to rely upon it.
It is also relevant to note, Commissioner, and we would ask that the draft report be amended to reflect this, that the author expressly acknowledges that the researchers could not verify independently allegations made by asylum seekers, particularly those directed at detention officers. That, of course, includes employees of my client. Each of those limitations, we respectfully submit, should be acknowledged and acknowledged in the clearest possible terms, otherwise we would say it is likely that the report will be regarded as unbalanced and very unbalanced.
ACM requests, Commissioner, that the draft report be amended to clearly state the inherent weaknesses in the methodology identified by these researchers and by ACM in its detailed responses. ACM also requests that the claim by the Inquiry in its draft reports suggesting that research is, to quote the report, the most compelling study of mental health is just going too far in light of the limitations which its author has put upon it.
Now, having dealt with that particular matter, can I then move on to an issue which some may regard as peripheral but we certainly regard as very important.
That is pregnancy and child birth in detention.
There were a number of matters that were contained in the draft report which we have included in our detailed response which was of major concern to those who were involved in the provision of services on behalf of ACM. ACM acknowledges that pregnancy and child birth can bring associated emotional and psychological effects into play for women living in institutional environments such as detention centres and in detention centres obviously these effects can be increased.
The Commission needs to expressly acknowledge, we would say, that ACM has no control over the detention of female detainees who are pregnant. ACM is responsible, however, for ensuring that they obtain medical care to community standards. Now, the draft report correctly identifies that pregnant women in remote areas on occasions need to be moved to a major regional hospital to obtain the level of care considered necessary for the well being of the woman and her unborn child. This has been the practice at Christmas Island, Woomera and Port Hedland.
Three factors influence in the - to move women in these circumstances are firstly, the location of the detention centre. Secondly, the availability of services given at the geographical location and thirdly, a commitment to ensuring the best possible care of mother and child by providing access to tertiary health care facilities. It is this last factor which is the only factor over which ACM has control.
To ensure, Commissioner, that this issue is dealt with objectively and fairly, it is also necessary to examine the situation for a pregnant detainee from within a framework of community standards.
The statement in the draft report that mothers had to leave children for some time when they went to hospital in a distant town for another birth, it must be remembered, applies equally to both detainees and other women living in the same area. This is the reality of service provision in geographically remote areas where location impacts on available services.
It is, as the Commission would know, common place for women living in the Woomera township and many other remote locations to be required to travel to the nearest regional centre one month prior to the expected birth of their child. For many, this also entails leaving their partner and other children behind. The alternative, Commissioner, is for women to give birth within a detention centre, with limited access to appropriate facilities, professional services and the capacity to deal with a medical emergency. Had that been the situation, had that been the situation examined by this Commission, then one could understandably imagine what criticisms would be visited upon ACM.
Now, viewed in this context, Commissioner, the implied criticism by the Inquiry of the practice of temporarily relocating women for medical care for child birth is not only, we would say, incomprehensible but it is very, very unfair. The Commission really has a duty, we would respectfully submit, to give credit where credit is due. It has to not only publish the good - sorry, the bad but the good otherwise it will leave itself open to criticism and adverse scrutiny.
If I could then turn, Commissioner, to another topic which is dealt with in chapter 9. That is the treatment of children by detention staff.
The draft report makes reference to a report from the South Australian Department of Human Services in which it also comments on ACM staff. The author says, and I quote:
The increased tension in the centre environment and the deterioration and the behaviour of some of the older children are factors that can deplete the ability of staff to maintain a balanced and compassionate attitude to the detainees in general and the difficult children in particular ...(reads)... for example, in a FAYS residential facility.
Now, it is evidence such as that, or information such as that, which creates a real dilemma for ACM because it is untested, it is general and it tends to tar all ACM employees with a general negative brush. That sort of evidence, and there are many other instances in the report, must, we respectfully submit, be placed in context.
In relation to what this person from the South Australian Department of Human Services said has to be placed in the context. ACM agrees that detention officers fulfil a demanding role. The demands and behaviour of detainees can be extremely challenging, particularly when the reasons relate to detainee dissatisfaction with government policy and decision making.
The draft report, we say, relies on the opinion of one individual author of the report, with extremely limited knowledge of detention centres. The author's opinion, as we understand it, is based on a limited number of visits of relatively short duration to one detention centre. The draft report, however, uses that limited information and opinion and applies it to all ACM staff and I quote it:
The attitude of ACM staff towards children is a matter of serious concern.
It is relevant for the Commission to take into account also that despite visits and meetings at Woomera, the individual concerned has not made complaint in relation to her concerns about ACM staff. The draft report, we respectfully submit, unfairly and wrongly generalises the complaint made by one state agency into a systemic problem and the Commission really should not do that. It is unfair and it is inconsistent, we would say, with the rules of natural justice.
ACM do not condone the use of derogatory language or treatment of detainees and believe the general profile of staff in detention centres is, as was described by Philip Flood and I quote him:
The management of people in detention centres is an incredibly complex and important task. There are many dedicated Australians, nurses, doctors, detention officers, teachers, welfare counsellors and public servants helping in the process, often in remote localities and sometimes encountering misunderstanding in the community (reads)... relevant Commonwealth and State legislation.
Commissioner, the majority of staff at Woomera as described by Flood were first highly committed to assisting detainees. They worked hard in difficult circumstances. They were often the target of detainee frustration with the formal processing by the Department. They were also living and experiencing the geographical and climatic conditions of the Woomera region. They were often also dislocated from their own communities and families and, as we know, were often vilified in the media. All those matters, we would respectfully submit, must be taken into account and receive express recognition in the report.
Now, the Inquiry also received some evidence from Dr Marie O'Neill, a psychologist, and she stated in no uncertain terms that from her observation, staff generally treated children appropriately. Now, despite that evidence having been made available, nowhere in the report do we find mention of it. If one is going to have a balanced report which publishes both the good with the bad, it is evidence of that sort which should also be recognised.
Commissioner, the real issue of concern for ACM and its employees obviously is the manner in which we say the draft report generalises alleged inappropriate unprofessional conduct to all staff. The draft report then draws findings that such conduct exacerbated mental health problems in children. ACM strongly denies these generalisations for the following reasons.
First, we respectfully submit that the draft report does not provide a cogent analysis of all the available information. Secondly, the draft report ignores positive observations of staff conduct. Thirdly, it relies on one individual's opinion from visits limited in duration and frequency to a single detention centre and premised on untested hearsay. Fourth, the draft report accepts untested detainee allegations without, for example, analysing the symbolic significance of ACM staff in the detention process and the impact of this dynamic on a detainee's perception. Fifth, there has been no complaint through detainee complaint mechanisms or the Department of systemic unprofessional conduct. Sixth, the report provides no specific details to enable full examination by ACM of any of these allegations. Seventh, it does not attempt to examine the extent of the alleged negative behaviour by placing allegations in the context of the number of staff employed for the period of the inquiry which was approximately 1264.
Next, we submit that there has been insufficient rigour applied to the information used by the inquiry to sustain any finding of unprofessional conduct, let alone a finding of systemic unprofessional conduct. There has been no analysis, we would respectfully submit, and insufficient rigour applied to the information to allow a finding to be made to the treatment by detention staff has exacerbated mental health problems in detention. Now, the draft report also claims that there are significant developmental delays in children who have been detained.
Now, the Inquiry has received substantial clinical opinion about the possibility of environmental impacts on the development of children. However, Commissioner, we respectfully submit that there is little, if any, actual evidence of a significant number of children exhibiting such developmental delays. The draft report indeed references five sources of information on developmental delays in children with a corresponding two full pages of text.
Despite the volume number of references and significant expertise of the sources, remarkably there is, as we understand it, but one example of an actual case of developmental delay. That was in a child in detention at Woomera and that was acknowledged by Dr Sparrow who had been employed at Woomera for two occasions on 2 weeks duration. She apparently examined an infant who demonstrated delays in the development of critical milestones. Now, we have set out in our draft written response a number of tables that set out the number of children whose assessments indicate that they were outside developmental norms as at 31 July 2003.
ACM, Commissioner, is not disputing the research or indeed clinical opinions in respect of factors which have potential impact on mental health. It is concerned, however, with findings made by the Inquiry that have no factual or evidentiary basis. If the detention environment does have the potential to negatively impact on children's development to the extent described by the experts, then the actual low incidence of observed delay must at least, one would logically think, be partly attributable to a high standard of care provided by ACM. None of that is acknowledged.
Commissioner, can I then deal briefly with the Commission's criticism of the use of the high risk assessment team. The draft report's criticism of the level of self-harm and the failure of the high - or alleged failure of the high risk assessment team process demonstrates, we respectfully submit, three things.
First, the Commission, we say, has failed to understand the complexity of the self-harming behaviour. Secondly, we say, that there is a failure by the Commission to acknowledge the motivating factors or stressors, that is, visa processing, which underlies such behaviour. Thirdly, there is a failure, and this is a failure which arises in other areas of the report as well, to acknowledge that ACM has no capacity to remove the stressors, that is, visa processing, underlying the self-harming behaviour.
There is perhaps a fourth matter that is of overriding significance and that is despite the draft report's criticism of the level of self-harm and what it says is a failure of the high risk assessment team, one has to bear in mind that there has never been a death in custody caused by such behaviour.
The fact that there have been no deaths, despite the risk situation, demonstrates, we would respectfully submit, the complete absence of logic in the complaints that are itemised in the draft report. A comprehensive analysis of the overall performance by ACM in preventing deaths from suicide in detention compared to similar institutional environments would, we respectfully submit, reveal that their performance has been unprecedented. The nature of self-harming behaviour of the detainees, particulars group self-harming episodes, differs significantly also from self harming behaviour appearing in other institutional settings.
Self-harm by individuals incarcerated in prisons, Commissioner, psychiatric institutions and the like is in the majority of cases closely associated with severe personality disorders or other mental health conditions. The self harming behaviour in these circumstances arises from a pre-existing mental illness. It is a very individual behaviour and treatment can be focused on identifying the particular stressors causing the behaviour and working with the individual to remove or minimise them.
Now, some individual cases of self-harm by detainees may reflect a similar situation. However, the group self-harming behaviours differ significantly. The behaviour on any view is a process against external factors which in this case are immigration policy and processing. ACM is limited in its ability to treat and prevent that behaviour. Irrespective of the amount of psychological or psychiatric intervention provided by ACM, it has no power to remove those stressors. Might we also say, Commissioner, that the continued focus by the media and interest groups in many instances, we would say, re-enforced the behaviour and prolonged periods of group self harming episodes.
In the cases of group self-harming, the most important role ACM could fulfil was to ensure the behaviour did not resolve in fatal outcomes. This was achieved and in many respects it was achieved through the very processes which the draft report criticises. We would respectfully submit therefore that the criticism, such as it is, is illogical and unfair.
Now, the summary of findings contained in the draft report, chapter 9, make this claim and I quote:
It is the degrading treatment of children by detention staff is also of particular concern to the Inquiry.
We respectfully submit that that really is, to express it in the mildest possible term, an outrageous finding, having regard to the evidence that came before the Inquiry and the evidence which the Commission now has. We ask that that particular comment be altered, or deleted rather, because it is untenable. It is made largely in circumstances where the evidence relied upon is of a general nature. It is not only of a general nature, but in some instances the Commission has again relied on material which we haven't been given an opportunity to test and quite properly so because of the undertakings given to the people who provided it. That is a conclusion which we say on any view can't be borne out by the evidence and it should be deleted.
Now, if I could move on to chapter 10. That is the chapter which deals with physical health and I understand – I won't say a great deal on this topic because I understand to some extent Dr Weir will be providing some material in relation to that in the next week but can I say this, Commissioner, that I don't know how to express this strongly enough. Cost was not an issue from ACM's point of view.
It was not an issue and it was never a constraint on the level or quality of services provided. Commissioner, some medical practitioners who have worked in remote detention centres may have been frustrated by delays and difficulties in accessing higher level services. Again though, Commissioner, this situation must be placed in context. Medical practitioners in the community in these remote areas share the same frustrations. It was not a matter of cost nor was it a matter of ACM discouraging the medical practitioners from utilising high level services. It was a matter of location and corresponding limited availability of these services.
The draft report claims that at certain times doctors were of the view that cost concerns constrained their ability to provide appropriate health care. That claim, Commissioner, can't be substantiated. The draft report makes a subsequent reference to a claim made by one doctor who appears to confuse the need for legislative authority from DIMIA to remove a detainee with authority to pay for relevant treatment. By contrast, Commissioner, Dr Pfitzner states and I quote him:
In terms of physical health, I was of the view that children received appropriate levels of care at the WIRPC when I was working there. I did not think that medical care was denied on the basis of cost.
That provides another example, we would respectfully submit, where it really is incumbent upon the Commissioner, or the Commission, to reflect the good with the bad so that one obtains a balanced view or a balanced view is published of the evidence.
Commissioner, as I said, I won't go into a great detail in relation to chapter 10 but I do want to deal with a matter of particular concern to ACM's employees. The draft report deals with health assessment and procedures.
That section of the draft report very much suggests that ACM was cursory, perfunctory and ultimately draws the conclusion that the assessment procedures and expertise within the detention environment are not the same as in the community with a clear implication that they were less than adequate. Now, Commissioner, that is a terrible slur on the many highly trained professional staff who were working within these detention centres. It is a claim which cannot, we say, be substantiated.
ACM health staff have or had professional qualifications relevant to the following positions. There were registered nurses. There were general practitioners and there were allied health workers with qualifications and experience in midwifery, paediatrics and child and adolescent care. Many centres have registered nurses who have early childhood qualifications and most centres have female general practitioners with qualifications and experience in child and family care. All centres have access to the full range of medical and skilled external services and specialists as required.
In defence of the many dedicated professional staff who provided and continue to provide service on behalf of ACM, can I say this that the criticism of their level of expertise and the way they carry out the work is just not made out and the draft report should be amended to reflect that fact and to reflect the fact that they did perform well in accordance with their professional qualifications.
There is an additional problem and it may be as a consequence of something that may have been overlooked by the Commission and it is this. The draft report alleges that the fact that health problems were quickly identified once children were released into the community suggests that the assessment procedures and expertise within the detention environment are not of the same standard as those in the community.
Now it would appear, Commissioner, that that assumption has been reached on the basis of the detainee not having a medical file with them. The absence of the information does not mean a diagnosis did not occur. Detainee medical files do not follow them into the community or back to their country of origin. As we understand it, the medical records remain the property of the Department. So it may be in all or most of these cases that where the suggestion has been made that problems which were readily diagnosed by doctors once a particular detainee had been removed from immigration detention were, in fact, diagnosed and dealt with during the period in which the particular individual or individuals were detained. We just don't know and if we just don't know it is quite wrong, in my respectful submission, to make such a finding.
Now, the report also makes some comment concerning the qualifications of ACM staff and it quotes from the Bollen report as follows:
Most of the remote and rural detention centres have an ongoing problem recruiting and retaining staff with even basic qualifications and rarely have the opportunity to choose and obtain the right mix of medical personnel to reflect the population demographics (reads)... maintaining an ideal balance of appropriately qualified and skilled staff.
It is matters such as that, we would respectfully submit again, that really are required to find their way into the Commission's report to provide a balanced and proper view of what, in fact, incurred.
Can I say this, Commissioner, that nurses are recruited centrally and rotated into detention centres. In some of the remote areas where detention centres are located, it would be beyond the scope of the local community to be the source of recruitment. The practice of rotating staff was a sound one in terms of the intensity and acuity of the work. Rotation of staff is not an unusual practice in such environments and is a practice also used by hospitals or area health services.
Cultural sensitivity is contained in the nursing degree studies which nursing staff have completed and health staff employed by ACM are also well qualified to deliver services to the level required by the contract and most times are qualified to a high level. In the report, assumptions have been made about the qualifications of staff without access to the specific details of individual
training and experience.
Because the Inquiry has not familiarised itself with the actual qualifications of all nursing staff employed in detention centres, it is quite inappropriate, we would respectfully submit, for the Commission then to conclude that, and I quote it:
Staff were unfamiliar with the special ailments that faced asylum seekers.
Now, if I can come back briefly to this issue of cost. Unfortunately, we would say, the draft report relies in part on the evidence recently released to us of Mr Alan Clifton, a former employee. The Commission states in this report and I quote it:
A former ACM employee stated that there was strong opposition to an ambulance being called for a person who could not be treated at the detention centre. I can remember being severely criticised and threatened with dismissal. I was threatened because of the cost.
Now, we respectfully submit that Mr Clifton is not a credible witness. Indeed, if there is to be any - perhaps the clearest indication of that fact is that we all know that he made some rather outrageous allegations on the Four Corners program recently and might I say this. As a consequence of that, those allegations were the subject of an investigation by the Australian Federal Police who have subsequently issued to ACM a clean bill of health. This man has shown a marked propensity to tell lies against his former employer.
What I have just quoted from the report is a demonstrable lie. He could not have been threatened about the cost of ambulance because at Woomera the ambulance service never charged ACM for their services. They were provided free.
Now, could I then just briefly, Commissioner - I don't intend to say anything more in relation to chapter 10 and if I can deal briefly with chapter 11. Can I ask this, Commissioner? Am I permitted to mention names in this case and they won't be published, because I have to identify four cases?
DR OZDOWSKI: Yes. You are permitted to mention names but there is an order which applies to the press that the names cannot be published.
MR RUSHTON: Thank you, Commissioner.
DR OZDOWSKI: Perhaps I think the better system would be if you provide me names on a piece of paper when you talk without mentioning them because the people here may be going back to their countries and it may impact on their well being.
MR RUSHTON: Well, if I put it this way, Commissioner. If I say that there are currently - well, there certainly were at the time we were making submissions, four children with disabilities.
DR OZDOWSKI: I know this case. Yes.
MR RUSHTON: You know who I'm referring to?
DR OZDOWSKI: Yes.
MR RUSHTON: Yes.
DR OZDOWSKI: Yes. So we don't need names.
MR RUSHTON: Thank you very much. The draft report claims that during the time of the Inquiry, children with disabilities in detention did not receive services that met the standards required by the CRC. It goes further to say that neither the Department nor ACM have made arrangements to ensure access to services available to children in the community through state service providers.
Now, we respectfully submit that that demonstrates a fundamental lack of understanding of the actual availability of services to people with a disability in the community and the corresponding level of un-met need in relation to disability services generally.
We respectfully submit that in relation to the four cases identified, ACM in fact ensured that they were provided with a standard of care which exceeded the level of individual support available to many children with a disability in the community.
Now, we have set out in some detail the services which were provided in relation to the four individuals concerned and the Commission will be aware that in respect of one such individual from one family, he suffered severe cerebral palsy.
We have set out in some detail steps which were taken to deal with that and we would respectfully submit that on any view, on any view, what was provided was not only entirely appropriate but went well beyond what would generally be available to a child with similar problems in the community at large.
As to the other three children who suffer the same disorder, it is perhaps a remarkable thing that a doctor working in that remote community was able to diagnose what those children were suffering at all.
We have set out in some detail, and I won't repeat it again because I do understand that there are some sensitivities, that on any view the level of service provided to those children went far beyond what was available and generally provided to those within the general community with similar disabilities.
Commissioner, are you proposing to take a short break at any stage this morning?
DR OZDOWSKI: Well, how long do you continue - do you wish to continue?
MR RUSHTON: I just want to get some instructions and it may, in fact, shorten what I'm - - -
DR OZDOWSKI: Yes. I thought that perhaps yes, we will wait until you end giving your submissions and we will take a short convenience break.
MR RUSHTON: Thank you. Now, of course, the Commission also deals with the problem of unaccompanied minors - sorry, unaccompanied children, I should say, in detention.
It is very important, Commissioner, to put that particular issue in context. One reason why there were not – or there may not have been effective procedures until January 2001 is because there was no demands placed on ACM in relation to unaccompanied minors or children at that time. It was not really an identifiable problem until January 2001 when 35 unaccompanied minors arrived. It was at that point, of course, that the - that my client, ACM, went to considerable measures to ensure that appropriate policies and procedures were developed and they are set out in our detailed response to chapter 14.
As I indicated a little earlier, we propose putting on a - providing the Commission with a statement from Professor Leon Earle. We say even before that happens though that it would important for the draft report to acknowledge that ACM appointed Professor Earle in the capacity of social analyst to implement the highest quality model of UAM management available. This was at the sole initiative of ACM.
During the period of planning and implementation, ACM gave the highest priority to meeting attendance. The MSI developed by DIMIA in September 2002 and later refined in December 2002 formalised the ACM policy of November 2001.
As the draft report has acknowledged, ACM has taken very seriously the obligation to manage unaccompanied minors in detention and ensure their physical and emotional needs are met. A number of, we would say, highly dedicated staff have worked closely with unaccompanied minors to provide their support. These staff have been strongly committed and have invested a degree of emotional energy and support which surpasses the expectations of their positions. It appears, we would say, that much of the criticism contained in the draft report is premised on the lack of documentation and this is unreasonably translated into lack of service or lack of care.
We would say in conclusion on this subject, Commissioner, that the translation from one to the other is inaccurate and unfair to the many dedicated officers who worked closely to provide the best possible care to .unaccompanied minors in detention.
In conclusion, Commissioner, subject to just checking with my client - Commissioner, that is probably all I want to say but I do want to just obtain 5 minutes of instructions to ensure there was nothing else that I needed to put. I wonder whether -
DR OZDOWSKI: Yes. Perhaps let us take a 15 minute convenience break and then I will ask you to act on anything you have got to -
MR RUSHTON: Thank you very much.
DR OZDOWSKI: - and I will ask Counsel Assisting .....
MR RUSHTON: Thank you very much.
DR OZDOWSKI: Thank you. So we have got 15 minutes break.
SHORT ADJOURNMENT [11.15am]
RESUMED [12.00pm]
DR OZDOWSKI: Well, good afternoon everyone. I declare the hearing open and I would like to ask Counsel for ACM, Mr Rushton, to conclude his remarks.
MR RUSHTON: Thank you, Commissioner. I can be reasonably brief and indeed can I say this, that I think it was we that indicated originally that we might need 2 days but the consequence of correspondence and various responses that we received recently, that time has been drastically reduced and indeed I've only got a couple more minutes or so to proceed.
Can I just say, and I should have perhaps said this a little earlier, why - firstly, why we are here today and secondly, why it took so long.
Can I say up front that we apologise that it did take so long for us to present the material which has now been presented. That occurred though because the report in draft form raised a lot of specific issues that we had not then turned our minds to. As a consequence of that, we have now prepared and delivered to the Commission a very detailed response or responses to its various chapters and I say again that although I may not have canvassed each and every item in oral address, we do submit that it is more than appropriate, indeed incumbent upon the Commission to take each of those matters into account when arriving at a decision.
I should also say that if the Commission experiences any difficulty in understanding what has been put in writing or feels that it needs any further assistance in clarifying any issue whatsoever, ACM stands only too willing to provide whatever further assistance is required of it by the Commission. It is concerned, its employees are concerned, that this important function of the Commission in examining this very important subject matter is done properly and that the Commission at the end of the day gets it right. If we can be of any further assistance in that regard, we are only too happy to do so.
The final matter that I wish to raise is yet again at the risk of repetition that in inquiries of this sort, there is a standard of proof which has become known as the Briginshaw standard. Back in the early 20th century, Sir Owen Dixon indicated that one could not achieve in civil proceedings the requisite degree of satisfaction where there were serious allegations involved by reference to inexact proofs, indefinite testimony and indirect references.
That is partly the reason why we have submitted, Commissioner, that if you are not satisfied to the requisite standard that a particular finding should be made, then it really, in the context of this Inquiry and the way it has developed, is incumbent upon you not to deal with it at all.
Now that is, I think, all I have to say. If we can provide any further assistance during the course of the day, then we are only too happy to do so.
Sorry, there is one final matter that I'm reminded of. The announcement this morning indicated that the Commission proposed to proceed after today in accordance with its view of the legislation. Can I say this, because obviously the amount of material we have put forward may require some substantial re-working to occur. We say it might be sensible for the Commission to at least give consideration. We certainly don't ask for this to be decided now but give consideration to the possibility of issuing a further draft to us to which we are given a very limited time to respond just so that we have an opportunity to ensure that what we have brought has been dealt with adequately, if the Commission pleases.
DR OZDOWSKI: Thank you, Mr Rushton. I must say on my part that the materials we received were helpful but, of course, we would have preferred to have received them much earlier than they arrived. But they were helpful and they are being given full consideration in the context of the report.
MR RUSHTON: Thank you, Commissioner.
DR OZDOWSKI: Now I would like to ask Counsel Assisting to make his statement.
MR WIGNEY: Thank you, Commissioner. Can I indicate at the outset the limited reply that I propose to make to Mr Rushton's oral submissions and the reason why that response is and really must be limited.
As you indicated in your opening remarks, Mr Commissioner, this Inquiry has seen and heard a vast amount of evidence from many individuals and organisations of all different types throughout Australia and over a period of in excess of a year and has also received extensive submissions both at the commencement of the Inquiry process and now more recently ACM's submission in response to the draft report. I will return to that in a moment.
As you indicated in your opening remarks, this particular stage of the Inquiry is designed to give ACM the opportunity to respond to the draft report that had been provided to ACM in two stages in April and May of this year. As you indicated, ACM was invited at that time to lead evidence and make submissions in response to the draft report. ACM has, as we have heard, provided detailed and voluminous responses to the draft report and provided indeed a number of statutory declarations of some witnesses who provide evidence in respect of a number of issues, albeit, fairly limited issues that are dealt with in the draft report.
ACM, of course, I submit, can be rest assured that the Inquiry will and indeed already has given detailed consideration to both the additional evidence that has now been provided and the detailed written submissions and that ACM can rest assured that these matters will all be taken into account in the Inquiry's finalisation of the report and the making of its findings and the same, of course, can be said of Mr Rushton's detailed oral submissions that he made today, many of which submissions covered the same territory as is considered in detail in the written responses.
As is apparent, many of ACM's responses or submissions draw attention to certain evidence that ACM says has not been specifically referred to in the draft report and suggestions that the reports specifically refer to that evidence. Many of the submissions deal with the weight that should be given to some evidence that is dealt with in the report and some other evidence that is not already dealt with in the draft report and some reference in particular has been made to the confidential evidence and the evidence received in the focus groups in confidence and I will return to that issue in a moment.
Of course, and it is proper to do so ACM's submissions, through Mr Rushton, have pointed out different conclusions that ACM submits are available from the evidence that has been received by the Inquiry and as I've already said, it is my submission that the Inquiry should and undoubtedly will carefully consider ACM's arguments and they will undoubtedly assist the Inquiry to formulate its report and arrive at its findings.
There are a number of reasons that a lengthy oral response to Mr Rushton's submissions and indeed to the very detailed written responses provided by ACM would not be appropriate.
First and perhaps most importantly, an oral response to some of the submissions would lead to the exposure of what must be remember were only tentative or provisional findings or expressions of opinion in what is a draft report and a draft confidential report. As I've said, those submissions will be taken into consideration but further detailed responses may indeed expose what those tentative views are when, in fact, decisions have already been made or may be made to change those tentative findings or expressions of opinion.
Secondly, having regard to the length and detail of the submissions, particularly the written submissions, it would be a fairly pointless and time consuming exercise to take up time in a public hearing to respond to them orally. As I've said, rest assured they will all be given detailed consideration and taken into account no doubt in the Inquiry's finalisation of the report.
What I wanted to emphasise, as did indeed Mr Rushton when he said his failure to refer to any of the detailed written submissions ought not be taken to be an indication that ACM shrinks from any of those written submissions. Indeed, my point that I wish to make is the fact that I have not orally responded to any of the detailed submissions should, of course, not be necessarily interpreted as a matter of acceptance of those arguments.
What I do propose to do is to respond to some fairly general submissions or indeed criticisms that Mr Rushton has made of the draft report and indeed to an extent the inquiry process. There has been some criticism, it seems, of the fact that the Inquiry has made use of evidence that has been received in confidence and in particular some evidence received in focus groups.
Mr Rushton quite properly acknowledges ACM's position that it was quite proper for the Inquiry to proceed in that manner, that is, to receive some evidence in confidence and in focus groups, that is, in a way other than, for example, evidence would be received in a more judicial type paradigm.
Can I say at the outset in relation to this evidence, that is, the evidence that has been received in confidence and in focus groups, that the Inquiry will no doubt, in my submission, ought and in my submission has in the draft report taken into consideration in relation to that evidence that ACM was not and has not been given the opportunity to test that evidence as it would perhaps if the evidence was led in court in a judicial proceeding or indeed in a form of judicial inquiry.
That, of course, follows from the fact that the evidence was taken in confidence in the first place and for obvious reasons in fairly informal settings. The Inquiry will also, no doubt, should and will take into consideration that some of the evidence that was received in the course of the focus group inquiries and the confidential evidence about the conduct of some ACM officers is in fairly general terms, that is, imprecise as to date and for the most part does not mention names of officers and the like and as a result ACM - a precise rebuttal by ACM is difficulty in the circumstances.
That, of course, is a matter that should and undoubtedly will be taken into consideration by the Inquiry in assessing that evidence and if the Inquiry should and undoubtedly will give considerable weight to those considerations when deciding what use ought be made of that evidence. In certain cases, as my learned friend is aware, those considerations, that is, that ACM has not in the circumstances been able to test the evidence as it would in a judicial proceeding or indeed respond to it precisely because of the lack of precision of the evidence, has already led the Inquiry to form the view that it cannot make specific findings in relation to certain alleged incidents.
It is my submission that that is not to say, of course, that the Inquiry should ignore that evidence all together. As I've said, the considerations of the fact that ACM has not been given the opportunity and cannot be given the opportunity in the circumstances to cross-examine, for example, the witnesses or respond in precise views is a matter that goes to weight and ought not lead the Commission necessarily to disregard or reject that evidence all together. Can I just move on then to some other responses.
I think towards the commencement of his submissions, Mr Rushton suggested that in his submission the draft report tended to demonise ACM. In my submission, though it is a very arid debate because it is a draft report in any event, but that submission is not open but in any event like all of the other submissions, the Inquiry ought and undoubtedly will give careful consideration to that submission in finalising its report but my response is that certainly in the draft report, there has been no intent and cannot be concluded that there has been an intent to demonise ACM.
I should say also in that context, Mr Rushton heard - made some submissions and indeed there are detailed submissions in the written material concerning the respective roles of ACM and the Department. They are matters that the Inquiry undoubtedly will view with much interest and will take into consideration in the finalisation of its report.
One other criticism that was made by Mr Rushton of the draft report and which flows - relates really to the submissions that I've just made in relation to the confidential evidence and the evidence received in the focus groups. The submission is that the Commission - for the draft report leaps from the specific to the general and tends to cast a slur on all ACM staff.
Can I acknowledge that the Inquiry has heard evidence that has demonstrated and indeed acknowledges that ACM staff operate in a difficult and very complex environment and their position and responsibilities are very demanding in those contexts. For the most part, ACM officers who work in the detention centres are in the most part - or have for the most part always strived to treat child detainees with dignity and respect.
It is acknowledged that that evidence of specific incidents that are, particularly those that have been referred to in the confidential evidence and the focus groups, ought not be interpreted as amounting to a general criticism of all ACM staff or ACM staff generally and that is a matter which will be given consideration weight in finalising the report.
Can you just bear with me for a moment, Mr Commissioner? Just very briefly and some specific matters. In relation to chapter 11, that is the chapter of the draft report that deals with children with disabilities.
Mr Rushton referred with some understandable circumspection and without wanting to name the particular case studies that had been referred to in that report to some services being provided to a particular child, can I just acknowledge that the Inquiry has and indeed ought to accept that from a certain time and in particular from about March 2002, the services that were being afforded towards that particular child showed a marked degree of improvement and to the point of - but the particular point I wish to make and this perhaps flows from Mr Rushton's point that ACM stood willing to offer more material if called upon to do so is that the draft - I'm sorry, in the responses to the draft report, Mr Rushton referred to it orally, there is a detailed table of services provided to this particular child.
What the Commission would be assisted by and indeed really can't operate on the basis of that information unless some further specifics are given as to when those particular services commenced to be provided to this particular family - I'm sorry, to that particular child.
Mr Rushton referred to Dr Earle. I can't really respond to that until we actually get the evidence next week.
The only other specific matter I want to refer to is the submissions that Mr Rushton made in relation to the evidence of Mr Clifton. The Inquiry accepts and ought accept that Mr Clifton's evidence ought be carefully scrutinised and in my submission the draft report demonstrates that in many respects, the Inquiry has carefully scrutinised that evidence and that is for a number of reasons, that is because firstly, Mr Clifton's evidence was not tested in cross-examination because it was initially received in confidence. There are other reasons to view his evidence carefully. We reject, however, that for the reasons given by Mr Rushton Mr Clifton's evidence is entirely unreliable and should be - all of his evidence ought be rejected out of hand.
In response to Mr Rushton's indication towards the end of his submissions that ACM stood ready to provide further assistance to the Inquiry, there are some other matters that the Inquiry will propose to take up with ACM, in particular, I think, in the course of his submissions, he referred to some data in tables about children with developmental delays and the like, but perhaps it is more appropriate for the - rather than me doing that orally for it to be taken up in detail in writing with ACM shortly after the conclusion of these hearings.
Subject to any further issues, those are my submissions.
DR OZDOWSKI: Well, thank you, Mr Wigney. Now, Mr Rushton, would you like to respond now or would you prefer to take a break for lunch?
MR RUSHTON: If you can give me about 15 seconds I will just get some instructions.
DR OZDOWSKI: Yes.
MR RUSHTON: No, Commissioner. All I wanted to say was to thank you on behalf of my client for the opportunity to respond publicly today as we have. I have nothing further to say.
DR OZDOWSKI: Now, earlier when you were speaking you mentioned that there will be two written statements coming by the end of next week.
MR RUSHTON: Yes.
DR OZDOWSKI: So I can assume they will arrive on 26 September at the latest.
MR RUSHTON: Yes.
DR OZDOWSKI: Thank you. Now, one of the statements was a statement, or supposed to be a statement, from Mr Kevin Lewis. It was - of course, his name was mentioned in our correspondence.
MR RUSHTON: No, that is no longer the case. Can I indicate why, that Mr Lewis was going to deal with some matters which have not caused – I withdraw that. It was going to deal with some matters that are not within the draft report, if he was required to do so but I've spoken to my learned friend and he indicated to me that we were only being required, as was quite proper, to respond to the terms of the draft report. So in those circumstances, what Mr Lewis is going to address is beside the point.
DR OZDOWSKI: Thank you. So then I will receive only the other two you mentioned?
MR RUSHTON: That is correct.
DR OZDOWSKI: Now, can I ask Counsel Assisting, do you have anything to add before I will close the proceedings?
MR WIGNEY: I do not, Commissioner.
DR OZDOWSKI: So thank you very much for your submissions and I'm declaring the proceedings closed.
MR RUSHTON: Thank you, Commissioner.
ADJOURNED INDEFINITELY [12.24pm]
Last Updated 30 September 2003.
