HREOC Website: National Inquiry into Children in Immigration Detention
Transcript of Hearing
- SYDNEY
Tuesday 3 DECEMBER 2002,
9.05 AM
Please note: This is
an edited transcript.
Commissioners:
- Dr S. OZDOWSKI,
Commissioner
- Dr T. THOMAS,
Assistant Commissioner
- Ms P. MOORE,
Executive Officer
Continued
from 2.12.02
DR OZDOWSKI:
Welcome to everyone. I think there is no need again to administer
the oath or affirmation. As with yesterday, we will do it only in
the case of new witnesses coming, but please understand that the principles
associated with the oath or affirmation do stand up. Also, I would
like to ask witnesses in order to finish on time, that they will focus
on questions and try to answer, and to reply as directly as possible.
Okay, could I ask Mr Wigney to start asking questions, and my understanding
is that we are starting with the issue of family and family relations.
MR WIGNEY:
Yes, Mr Commissioner. We are dealing with the issue of families today.
Now, I'm not sure who the appropriate witnesses from the Department
are in relation to that, or to whom I should primarily direct my questions.
I don't know whether Mr Bromwich can assist in that regard or Mr Walker.
DR OZDOWSKI:
Mr Bromwich?
MR BROMWICH:
Sorry, Commissioner, I am just getting some instructions. Commissioner,
I have been asked if we could have - I regret any delay but I have
been asked if we could have 5 minutes. The only reason for that, Commissioner,
is that Ms Godwin not being well, it has only come to notice very
recently. We just need to sort out who is going to be best to put
forward on this issue because we had intended that it would be, of
course, Ms Godwin. If we could just have a few minutes.
DR OZDOWSKI:
Yes, fine, but 5 minutes only, please.
MR BROMWICH:
Yes, thank you.
MR WIGNEY:
Before we adjourn, could I just make one point? In due course this
morning after we deal with some of the more fundamental propositions,
we will be coming to some family case studies that I think we have
notified the Department of so they can prepare themselves for questioning
in relation to those particular case studies. I note that they largely
relate to families who have been detained in the Woomera facility,
and I note from the documentation that, at least for part of the time,
Mr Frencham - I trust I'm pronouncing that correctly - was the Department
Manager at that facility.
It may be, at
least for the case studies, he be an appropriate witness in relation
to those questions.
MR BROMWICH:
I appreciate that indication.
DR OZDOWSKI:
Okay, so we are adjourned for 5 minutes only.
SHORT BREAK [9.10am]
RESUMES [9.15am]
DR OZDOWSKI:
Mr Bromwich, are we ready?
MR BROMWICH:
I believe so, Commissioner. There's two things I would like to raise.
One is that I am now informed that while Ms Godwin may be able to
attend later in the day to assist, she is really not well enough to
be giving evidence today. That may change but, as presently advised,
I don't anticipate that to be the case. The second thing is that a
good deal of what we spent our time on yesterday was dealing with
was wide ranging and general propositions. There isn't really an officer
of the Department who is in a position to give evidence, if that is
the right word, on such wide ranging general propositions.
In any event,
they don't, with respect, seem to advance things very far. These witnesses
are better in a position to answer questions about what is and what
has taken place in relation to aspects of children in immigration
detention, so that those two cautionary notes are in a form of what
we are able to do from the Department's perspective today.
DR OZDOWSKI:
Thank you. Mr Wigney, can you adjust your questioning to focus, as
the counsel for DIMIA indicated, on more practical issues?
MR WIGNEY:
Well, I certainly intend, as I foreshadowed, to go specifically to
case studies in due course this morning.
DR OZDOWSKI:
Which the Department was provided with?
MR WIGNEY:
Yes.
DR OZDOWSKI:
Yes.
MR WIGNEY:
The difficulty is this, Mr Commissioner, that as you are aware, the
Department's submissions contain some fundamental proposition about
submissions in relation to families, and in particular to the proposition
that it is in the best interests of children to be with their families,
that families - that is, the parents - must be in detention and ergo,
children must be in detention. Now, that is a proposition that we
seek to challenge, and I seek to challenge it in questioning this
morning in general terms firstly, and then by way of example in the
case studies. Now, I don't - I mean, this is a public hearing.
Senior officers
of the Department are here. I cannot see why they cannot address those
fundamental propositions. They are, presumably, aware of the Department's
submissions and the Department's arguments in that regard.
DR OZDOWSKI:
Fine, so please continue your line of questioning, and if there are
any questions you can't answer, we will take it on notice and hopefully,
when Ms Godwin is back we will put the questions again to her. Mr
Wigney, please go on?
MR WIGNEY:
Should I direct questions to Ms McPaul or to Mr Walker?
MS McPAUL:
I guess it really depends a little on what particular area of
question you want to ask.
DR OZDOWSKI:
Could you speak to the microphone because otherwise, we are having
problems recording it please.
MR BROMWICH:
Commissioner, I've just received some instructions, and those instructions
are these. Given, in particular, what Mr Wigney has just said, I'm
instructed to seek an adjournment of the hearing until Ms Godwin is
well, given a determination in particular to press on with practical
considerations - with general propositions, and the Secretary of the
Department has indicated that he is prepared to speak to you if need
be by telephone about why it is that he seeks this adjournment. That
is what I'm instructed to seek.
DR OZDOWSKI:
Mr Wigney?
MR WIGNEY:
Ms McPaul, who presently sits at the witness table, is presently the
Assistant Secretary of the Unauthorised Arrivals and Detention Services
section of the Department. Now, to many of you, she is a Senior Officer
with responsibilities directly in this area. What is more, and I can
hand this correspondence up in due course if need be, she has been
- even putting aside the fact that the Department has now been put
on notice about the particular case studies that I intend to address
- it would appear from documents in our possession that Ms McPaul
has been and is fully briefed in relation to these issues.
In any event,
I cannot see any reason whatsoever why she is not an appropriate person
to whom I can direct questions about, firstly, the fundamental propositions
that are in the Department's submissions and, secondly, in relation
to the specific case studies that I will come to in due course.
MR BROMWICH:
The answer to that, Commissioner, is shortly this. My friend is taking
this as being a static situation, that is, the arrangements that are
in place now and the position held now applied back over time. Ms
Godwin is the person who has knowledge over time of what has happened.
If my friend wishes to ask questions about the here and now, then
what he is putting may well be correct. If, as I apprehend, he is
talking about questions ranging back over a number of years, then
that proposition starts to fall away.
DR OZDOWSKI:
Well, I'm not willing to postpone the hearing. The hearing has been
postponed a number of times. The Department of Immigration indicated
- chose its own witnesses and indicated by letter that the witnesses
are proper witnesses, so we will continue. If the Secretary of the
Department wishes to talk to me, I will be available during lunch
time to talk with him.
MR BROMWICH:
I just need to note on the record our concern that, in effect, this
has been forced on - not due to any prevarication on the part of the
Department but because a senior officer best able to handle the questions
is ill, and I am just noting that on the record.
DR OZDOWSKI:
Thank you.
MR WIGNEY:
There is another thing I want to take up in terms of Mr Bromwich's
submission about going back in time. I understand that Mr Greg Kelly
is also here and that Ms McPaul effectively, and I may be wrong about
this and the Department will, no doubt, correct me if I am but Mr
Kelly was previously in the position now occupied by Ms McPaul so
between the two of them, they would have the continuous high position
in this very area that we are exploring this morning. I don't know
whether Mr Kelly chooses to give evidence about these things.
MR KELLY:
Commissioner, I have not been in the position that Ms McPaul currently
is in at the moment.
DR OZDOWSKI:
But, I think, before you speak, if you could come forward so we can
administer the affirmation, please.
MR BROMWICH:
Mr Kelly is not - as Mr Kelly has just said, he was not in the
position previously that Ms McPaul is in so my friend's proposition
on that is incorrect. He is not a person who can be put forward in
substitution in the manner suggested.
DR OZDOWSKI:
Is Mr Kelly's name on the list of Departmental officers provided as
potential witnesses?
MR WIGNEY:
He is, yes.
DR OZDOWSKI:
I didn't hear it.
MR WIGNEY:
He was and is on that list, and what is more, it would appear from
the documentation in relation to these case studies and some other
documents that we have, that he also had some responsibilities in
these very areas at the relevant time.
DR OZDOWSKI:
Are you proposing that he enters the witness stand?
MR BROMWICH:
I suppose it is really a matter for the Department whether they choose
to want him to sit at the witness table and take the oath and answer
questions.
DR OZDOWSKI:
Well, Mr Bromwich, why cannot Mr Kelly come to the witness table?
MR BROMWICH:
As with most of this, Commissioner, we have only the most sketch plan
idea of what the questions are going to be about. We are not really
informed as to what the questions are going to be. I am not in a position
to say that a particular person necessarily will or won't be able
to answer a question because I don't know what they are. If you insist
on his presence obviously he can be there.
DR OZDOWSKI:
Yes, I ask him to join the witness table.
MR WIGNEY:
Well, perhaps we can do it this way ---
MR BROMWICH:
It is in the nature of an inquisition, Commissioner.
MR WIGNEY:
That is a ridiculous submission, with respect. Perhaps if we can do
it this way it will alleviate Mr Bromwich's heightened concerns. We
can deal specifically with the case studies. As I understand it both
Ms McPaul and others have been directly involved in the events as
they happen and as I have already indicated the Department has been
specifically put on notice that we intended to ask questions about
these case studies and there can't really be any ready excuse as to
why these officers or at least someone from the Department could not
address them this morning.
MR BROMWICH:
I have no further comment to make.
DR OZDOWSKI:
I ask Mr Kelly to join the table.
GREG KELLY,
[9.23am]
DIRECTOR,
DETENTION MANAGEMENT SECTION
DR OZDOWSKI:
Mr Wigney, if you would start your questioning.
MR WIGNEY:
Thank you, Mr Commissioner. I might just perhaps start by ensuring
that - to address these case studies we put together some folders
of documents and I will just ensure that copies of those folders are
provided to the Department officers if they have not already and to
Mr Bromwich. Mr Rushton, of course, as well. I am sorry.
Now, can I just
say this before we commence addressing the first of the case studies
in this folder that, of course, having regard to the general directions
as to confidentiality no names will be mentioned. In the event that
I unfortunately blurt out a name by accident can I just ask the Commissioner
to perhaps remind members of the public or the media that are here
that the names ought not be published beyond this room if, in fact,
I do let one of them slip.
DR OZDOWSKI:
Yes, the confidentiality orders stand as I announced them yesterday
and before.
MR WIGNEY:
I think as I take you through this folder and perhaps I will, for
relevant purposes, I will address my questions to Ms McPaul and if
she chooses to refer the questions on so be it but it is probably
better that I direct my questions to, at least, one person specifically
at the outset. Would you excuse me for a minute? Excuse me, sir, I
am sorry. Perhaps - Mr Hunyor suggested that Ms McPaul may be perhaps
more familiar with the second of the case studies so we perhaps might
start with that first. That is behind the tab halfway through the
folder.
DR OZDOWSKI:
It is case study B, yes.
MR WIGNEY:
Sorry, case study D.
DR OZDOWSKI:
D.
MR WIGNEY:
Yes, just to be clear the other case studies relate to children with
disabilities that we are dealing with separately. So this on the -
the list that has been provided it is case study D. I will just wait
until everyone has turned up the relevant documents. Now, if I can
just - now, this particular case study concerns a family of three
comprised of a father, a mother and a child, a boy, of the age of
12. Now, if I can just ask you, Ms McPaul, to accept from us for present
purposes that the basic chronology in relation to this family is that
they arrived at and were detained at the Woomera detention facility
in April 2001.
Just to put us
in the - and the other part of the basic chronology is that in late
August 2001 the mother and son were moved to the Woomera Residential
Housing Project Facility. So that is about - a few months - four months
or so after they first arrived at the detention facility. Then - and
I think we will come to some specific documents in due course that
demonstrate this but that in - on the - shortly after 25 May or towards
the end of May of this year the mother and son returned back to the
Woomera detention facility and I will come to the reasons for that
in due course as we go through the documents.
Now, you will
see that the - you have been provided with a bundle of documents and
I will take you through these documents one by one. Just to - so that
you know where I am going this bundle seems to have been numbered
by document rather than page number and the particular document references
are those that, at least on my copy, are in a large circle on the
top right-hand corner of the document. Now, you are aware, are you
not, that the Commission has - excuse me -
The Commission,
as we discussed yesterday, have served various notices on the Department
to produce documents in relation to various topics and you are aware,
are you not, that one of those notices required the Department to
produce all relevant documents in relation to this particular family?
MS McPAUL:
Yes, I'm aware of that.
MR WIGNEY:
Right. So in accordance with the evidence yesterday it would follow
from that that the Department has conducted all relevant inquiries
and produced all documents that it can in relation to this family
and its circumstances?
MR BROMWICH:
Well, can I just note in answering a question like that it needs to
be noted that such documents as meet that description and fell within
the notice would have been provided not - not something that fell
outside the notice. I'm not saying that the notice does not encompass
the full scope of what is being asked, but I just don't know.
DR OZDOWSKI:
But it is obvious, isn't it?
MR WIGNEY:
Perhaps if I just put that on the record. The notice required
all incident reports and medical reports and I won't mention the names,
regarding the family. All correspondence between the Department or
ACM, or Family and Youth Services, that is the State body, and reports
passing between those entities. All documents relating to the implementation
by the Department or ACM of any recommendations made by Family and
Youth Services. All documents relating to the progress of the family
at the residential housing project.
All documents
relating to the reasons for which the mother and son returned to the
Woomera Detention facility from the residential housing project. So
the notice was fairly broad in scope, you would agree, in relation
to documents relating to this family and their detention?
MS McPAUL:
It's my understanding that the Department did provide whatever documents
fell within the scope of the notice that we were able to identify
then.
MR WIGNEY:
Thank you. Now, as I said in the broad chronology it would appear
the mother and son returned to the detention facility in May of this
year. The first document I want to take you to which has been produced
by the Department, is a document which is document 1 in this bundle
and if you go to the 5th page of the document it is dated 10 May this
year. Do you see that?
MS McPAUL:
Yes, I can see the date.
MR WIGNEY:
And it would appear to be a document created by two officers of Family
and Youth Services from the Crisis Response and Child Abuse Service,
do you see that on the last page?
MS McPAUL:
Yes.
MR WIGNEY:
Addressed to the Acting Director, Country Region, of the Family and
Youth Services and it is directed specifically to this family. Do
you see that?
MS McPAUL:
Yes.
MR WIGNEY:
And in terms of its content one can see from it that the first
two paragraphs on the page deal with, it would appear, specific notifications
that the Family and Youth Services have received in relation to this
family. Do you see that?
MS McPAUL:
Yes.
MR WIGNEY:
The first one deals with a situation where the child learned about
his father's hanging attempt some time previously and the mother found
the son in the house threatening to kill himself. Do you see that,
and there's a further description of the son's activities?
MS McPAUL:
I - I have that on the document here.
MR WIGNEY:
I'm sorry?
MS McPAUL:
Yes, I have that on the document here.
MR WIGNEY:
Then the second incident again refers to the father being found hanging
from a tree by bed sheets, that is presumably in the Woomera facility
itself, okay? Do you see that? Do you see that?
MS McPAUL:
Yes, that's here on the ---
MR WIGNEY:
You are familiar with this ---
MS McPAUL:
Yes.
MR WIGNEY:
---particular case, aren't you?
MS McPAUL:
Yes.
MR WIGNEY:
Now, the balance of the document deals with the investigation
by the Family and Youth Services in relation to this family and you
will see at the top of page 2 that the authors of the document interviewed
a number of people including the psychologist [name removed], in fact,
I think she is a doctor and she's a psychiatrist who is an ACM staff
officer. Do you see that?
MS McPAUL:
Yes, I'm sure that we have the same document.
MR WIGNEY:
I'm sorry?
MS McPAUL:
Yes, I'm sure that we do have the same document.
MR WIGNEY:
Yes, good. I'm pleased about that. Now, what I want to take you to
firstly, is under the first - or the second subheading on page 2 and
you will see that [name removed], she is the ACM psychiatrist, describing
the family as disintegrating and the father as seriously depressed.
Do you see that?
MR BROMWICH:
Can I just correct that, it is first a psychologist, not psychiatrist,
there's a distinction.
MR WIGNEY:
Well, I think when we come to it in a moment we will see that she,
in fact, is a doctor and she is a psychiatrist but Mr Bromwich is
quite correct, it does say 'psychologist'.
MR BROMWICH:
Well, we are going off what the document said, that is what the
questions ---
MR WIGNEY:
You see that [name removed], the ACM officer, described here as a
psychologist, described to these officers the family as 'disintegrating'
and the father being 'seriously depressed'.
Do you see that?
MS McPAUL:
Yes, I can see that.
MR WIGNEY:
He is falling apart and indeed he has spent some time under observation
in a secure cell within the medical centre. Can you tell us what the
secure cell in the medical centre is please?
MS McPAUL:
I think what we have here is a term being used by someone from another
agency. That's not necessarily terminology or common usage that the
Department would apply to medical observation.
MR WIGNEY:
Well, are you able to assist us as to what this person, who is an
ACM psychologist, would be describing when she refers to the secure
cell?
MS McPAUL:
I think it just needs to be put in context that as part of our duty
of care to all detainees medical services are provided at detention
facilities including at Woomera and in the medical centre there are
different arrangements that might be available to assist various detainees
with health issues as they may arise and as you would expect there
may be individual rooms where people can be treated and observed,
if need be.
DR OZDOWSKI:
Could you speak to microphone closer, if I can't hear you here possible
other people can't hear you as well.
MR WIGNEY:
I take it you have been to the Woomera Medical Centre?
MS McPAUL:
I have.
MR WIGNEY:
Well, what do you think is being referred to here as the secure cell?
Can you describe to us exactly what it is?
MS McPAUL:
As a - sure, as I said, there's a number different parts to the medical
centre there and there are a number of individual rooms that can be
used to treat various detainees at different times and as part of
that there is a facility to be able to observe the detainee through
a window on the door.
MR WIGNEY:
Is the detainee restrained in there or is the room padded, or can
you give us some more detail please?
MS McPAUL:
Well, I can't comment on the specific circumstances of every case,
of course, but it wouldn't necessarily be assumed that a detainee
would be restrained, they're there for medical treatment. The rooms
are quite simple with a bed and I guess, as I've said a door with
a window where people can be observed if they need to be.
MR WIGNEY:
Now, if you could go over the page, I think on that balance of that
page is a reference to the officers' interview with the mother in
this family and reference to her being 'increasingly distressed and
tearful', but perhaps more relevantly if we go over to the next page,
it is page 3 of the document we have the officers' interview with
the child. Do you see that subheading there?
MS McPAUL:
Yes, I can see that.
MR WIGNEY:
And I don't want to obviously take you to all of it but amongst other
things it is recorded in the third paragraph that the son spoke of
having 'many worries' and 'he is worried about his father and upset
that he cannot talk to him anymore' - do you see that? The first line
of the third paragraph?
MS McPAUL:
Yes, I can see that.
MR WIGNEY:
Now, to put this in context at this stage we have the father at
the detention facility in Woomera and we have the son and the mother
at the residential housing project, right?
MS McPAUL:
I believe so.
MR WIGNEY:
And we will come to this in more detail in due course, but under
the present guidelines or conditions of accommodation at the Woomera
Residential Housing Project, fathers are not allowed, is that correct?
MS McPAUL:
There are a number of criteria for participation in the residential
housing projects and at the present time fathers would not be permitted,
it's for women and children and other special needs cases. One of
the reasons why fathers are not participating in the housing project,
of course, comes back to the issue of culturally appropriate accommodation
for the women and children who volunteer to be part of that and as
I understand it the ability for certain women and children to participate
is contingent on their other family members being satisfied that they
are in a suitable environment which would also include not being in
the presence of other older male children and men who are not part
of their family unit.
DR OZDOWSKI:
Are you saying that it is normal for the culture that people are coming
from that in normal circumstances older sons and fathers are living
separately from women and children?
MS McPAUL:
What I'm saying is that in order for women to volunteer to participate
in that project it was our understanding that - that voluntary participation
was more likely to be gained if they were certain that the environment
that they were going to be in was one that would be suitable from
their point of view.
DR OZDOWSKI:
But this possibly relates to the issue of available housing, that
they need to share to share houses, that they are not living in separate
accommodation, therefore possibly you can't keep family together,
am I correct about it?
MS McPAUL:
Look, I think that probably wasn't one of the original concerns, it
was before I joined this part of the Department but I think that the
infrastructure available is only one of a number of factors that we
would have been taking into account.
DR OZDOWSKI:
What other factors were taken into consideration when deciding
to split families and still allow women to stay in the housing project
and to keep men in the detention centre?
MS McPAUL:
Commissioner, there are a number of factors that are also taken
into account in the context of the housing project itself. As you
may know, it is a low security environment, you've been there yourself
and you've observed that. It is surrounded by just a normal colorbond
kind of fence. So in making the operational decisions about who might
participate in that project there are a number of different factors
that we would take into account. As I said, participation in the project
was voluntary so we needed to be able to encourage women and children
to come forward to participate. Secondly, I guess, we also needed
to have regard to the security aspects of all members of the family
and I think it would be - my understanding is that it is more likely
that women and children would be adequately accommodated in that less
secure environment than some other family members that they may also
have with them.
DR OZDOWSKI:
So when you talk about security aspects you are implying that there
is a risk of absconding of men?
MS McPAUL:
That is one of the considerations.
DR OZDOWSKI:
Thank you.
MR WIGNEY: Can
I just - I was going to come back and deal specifically with criteria
for the Woomera housing project in due course, but let us pick up
on a few of the points you have just raised. The first point that
you raised as being a reasonable rationale or principle behind not
having fathers at the Woomera housing project was that it was necessary
to provide culturally appropriate living arrangements, and I think
that is a phrase that is used in the DIMIA submissions as well. What
do you mean by 'culturally appropriate living arrangements'? Do you
suggest that in some cultures it is not normal for fathers to reside
with their families?
MS McPAUL:
I think what I was trying to refer to is the expectation that members
of one family would be able to live in a culturally appropriate environment
without any suggestion that there would be inappropriate interaction
with males who are not of that part of that family group. So I'm not
suggesting that it is inappropriate for family members to be together,
rather that families need to be certain that whatever living arrangements
are in place for them will be something that they are comfortable
with personally.
MR WIGNEY:
Sorry, you mean that there may be some concern about inappropriate
interaction with fathers of one family with the children in another,
is that what you are saying?
MR WALKER:
If I can just make a point here. The things that you need to put in
context with the Woomera Detention - alternative detention arrangements
in the trial is that there are also sensitivities within the local
Woomera community as well that have to be taken into account as well
as the safety and well-being of the participants. So that our responsibility,
our duty of care, covered situations of making alternative arrangements
that protected the individuals who participated, both from any animosity
within the local community as well. And we had to work with the local
community so there were certain parameters that were devised. The
important part of that was that the males were not included, so it
had to be a safe environment for the women and children.
MR WIGNEY:
Thank you, Mr Walker, I will come back to your separate point about
the concerns of the local community in a moment, but I was asking
Ms McPaul who used the phrase 'culturally appropriate living arrangements,'
what she meant by it and my question was: do you mean by it that there
was concern that there may be inappropriate interaction between the
father of one family with children in another family, is that what
the concern is?
MS McPAUL:
Look, I don't know that there is much more I can add to what I've
already said. You know, what we were looking for was an environment
in which the voluntary participants from the centre, the voluntary
women and children participants from the centre, would feel that they
could come forward to participate in a project where they knew that
their particular living arrangements would be adequate for the needs
of themselves and of their whole family.
MR WIGNEY:
Are you suggesting by that answer that some of the women and children
who participated in this project did not want fathers or males from
other families over 12 to be in the residential unit, is that what
you are saying?
MS McPAUL:
As I understand it, when we were originally working through the arrangements
that might be possible for the scheme this was one of the areas of
concern raised by the families in the centre before any suggestion
of participation was made.
MR WIGNEY:
I see. Did you record those concerns, that is the concerns raised
by the families, who were the first proposed participants in this
scheme, did you record their concerns in a document, or a minute,
or a report, or a recommendation, or anything?
MS McPAUL:
Look, I guess, Mr Wigney, some of the things that you are asking about
the specifics of that are prior to my joining this part of the Department
and might be best addressed to Ms Godwin, but I can say that in general,
it is my understanding, that there was consultation with the detainees
and others in the establishment of the project and you might also
be aware that we did seek and obtain an exemption from the Sex Discrimination
Commissioner for inclusion of boys older than 12 and males from exclusion
from participation in the project, and my understanding that that
was on the basis of these sorts of issues that we are discussing now,
about who would be able to participate and on what basis they would
feel that they could come forward to volunteer for the project.
MR WIGNEY:
Well, can you take it on notice, please, that the Commission would
like to see any document, be it a minute, report, a recommendation,
which records the concerns that you have just referred to, that is,
the concerns of the participants in this scheme, that they didn't
want the males, or the fathers to be there. Can you take it on notice
that we would like to see that document, if it exists, or any such
document.
MS McPAUL:
We can certainly take on notice to provide you with anything that
we may have that goes to that question.
DR OZDOWSKI:
Are you really saying that the families were saying they would
like to be split?
MS McPAUL:
Commissioner, what I'm saying is, it is my understanding that for
- as I have said previously - that for the women and children to feel
that they could volunteer to be in the project, that the parameters
that we have talked about were some of the ones that were discussed
at that time.
MR WIGNEY:
Ms McPaul, in the Woomera detention facility itself, there is - now
at least - and as I understand it at least from some time in late
2001, a separate family compound, is that right? That is, a compound
where families are detained?
MS McPAUL:
It is my understanding that that is not the case. We have a particular
family compound at the Baxter Immigration Detention facility.
MR WIGNEY:
Well, there are still some families that are residing at Woomera
now, this day, is that right?
MS McPAUL:
There are some families there, that is correct.
MR WIGNEY:
Well, can you tell us please the circumstances in which those families
are housed now please? Are they housed along with the general detainee
population, or are they in a separate compound, or how are they housed?
MR KELLY:
Mr Wigney, there are a number of families still remaining in the
Woomera IRPC. Some of those families are obviously in the residential
housing project, with their partners still in the centre itself. In
terms of those families that are still in the centre, they are accommodated
in quite large compounds. There are other single adult males within
those compounds. They have been offered the opportunity of transfer
from that centre to the new facility at Baxter. They have chosen not
to accept, or take up that opportunity of the move to a centre where
they would be in a family oriented compound.
MR WIGNEY:
Thank you. So putting aside for the moment those families - well,
I think you said that there were some families there where other members
of the family are in the residential housing project, that would mean
however that only the fathers and the boys over 12 are in the detention
centre, right?
MR KELLY:
That is correct.
MR WIGNEY:
In relation to the other families, they are in you say large compounds
and in those compounds there are also detained, or housed, single
male detainees, right?
MR KELLY:
Yes. I'm not confident of the exact breakdown at the moment, but I
could take that on notice and provide you with the information in
due course.
MR WIGNEY:
So some mothers and daughters are housed in circumstances where
they are also in a compound with a number of single males, is that
right?
MR KELLY:
Yes, they have their own accommodation, have their own accommodation
units and access to their own ablutions. As I said, they have been
offered the opportunity of transfer to another facility - those -
that offer has been documented as well as has been the refusal of
those families to take up those offers.
MR WIGNEY:
Yes, we will come back to that in a moment, but you referred to accommodation
units, I think in the documents they are generally referred to as
'dongas' is that correct?
MS McPAUL:
That is a colloquial term for them.
MR WIGNEY:
I'm sorry?
MS McPAUL:
That is a colloquial term for them.
MR WIGNEY:
Well, that is the term the Department uses to describe these units
as well, correct?
MS McPAUL:
Yes.
MR WIGNEY:
And for those like myself who haven't had the pleasure to see
a donga, that is a demountable unit, is it not?
MS McPAUL:
It is a demount - a large - yes, a demountable building with, as I
understand it, a living area and a bedroom compartment.
MR KELLY:
Could I just clarify that component, please. There are in the Woomera
centre - Ms Godwin mentioned yesterday that there were, effectively,
two elements to that centre, an older main compound which used demountable
accommodation, and two much newer compounds which have prefabricated
combination units. They are not in the style of demountables as are
in the older compound, or which would be predominantly used, say,
for, on mining sites.
MR WIGNEY:
There are still some families in the older main compound, right?
MR KELLY:
No.
MS McPAUL:
No.
MR WIGNEY:
They are all in the newer ---
MR KELLY:
That is correct ---
MR WIGNEY:
---compounds with the prefabricated housing, is that right?
MR KELLY:
That is correct. There haven't - the main compound has not been used
for quite some time.
MR WIGNEY:
And when did these prefabricated units come into being at Woomera?
MR KELLY:
I would have to take that on notice, I don't know the specific date,
but they've certainly been there for probably well over 12 months
to my knowledge.
MR WIGNEY:
Well, in June of this year some representatives from the Commission
went to Woomera and observed that families were residing in the dongas
and that more than one family unit were residing in these dongas,
often just separated by a curtain. Now, that was a situation back
in June of this year, wasn't it?
MR KELLY:
That is correct.
MR WIGNEY:
Indeed, you were there present when the Commission officers attended
on that occasion, right?
MR KELLY:
That is correct.
MR WIGNEY:
And so we have more than one family unit in a donga - and that presumably
includes the father, right - fathers?
MR KELLY:
That is quite possible, yes.
MR WIGNEY:
And also quite possible that it includes sons over the age of 12,
they also not being eligible for the Woomera Residential Housing ---
MR KELLY:
That is possible, although when the Commission visited the Centre
at that particular time, because there were very few people in the
Centre, there were a number of families who, in fact, had a whole
accommodation unit to themselves with no other people there.
MR WIGNEY:
Tell me, in relation to these families that resided in the dongas,
particularly those where they were shared with another family, did
the females that were residing in these circumstances consider that
they were culturally appropriate living arrangements, to use your
words?
MR KELLY:
I can't answer that, I can't speak for those families. It's inappropriate
for me to speak for those families.
MR WIGNEY:
Well, you see, what has just been told to us is that some of the
participants in a Residential Housing Project were concerned that
males - that is fathers and children - male children over the age
of 12 and 13 - not be accommodated at the Residential Housing Project,
because of concerns perhaps of inappropriate interaction, or other
security matters, and yet at the detention facility itself, not only
did we have the fathers and sons residing with the families often
in shared accommodation, but we also had single males in the same
compound. Now, how do you explain that?
MR BROMWICH:
I don't actually understand - I object to that question - explain
what? The question does not make sense.
DR OZDOWSKI:
I understand the question very well. Please continue, it is about
the cultural sensitivities which were referred ---
MR BROMWICH:
Well, the question will get the quality of the answer it deserves,
it does not make any sense as a question.
DR OZDOWSKI:
Please, answer the question.
MS McPAUL:
Can you clarify it for me just a little so that I can be more specific
for you?
MR WIGNEY:
Yes. You have said that some of the participants in the Residential
Housing Scheme told the Department that they would perhaps prefer
to reside in this project, the Residential Housing, without males
over the age of 12 or 13. The words you used initially were 'culturally
appropriate living arrangements', right?
MS McPAUL:
I believe so, yes.
MR WIGNEY:
Well, there are women and girls residing in families back in the Woomera
detention facility in circumstances where they are living in very
close quarters with males over the age of 12, both sons in families,
fathers and single males, right?
MS McPAUL:
It is my understanding that there would be whole family groups
living in the Centre, that is correct.
MR WIGNEY:
At close quarters, right?
MS McPAUL:
Well, in some circumstances, possibly but as we have explained that
varies depending on the number of people in the Centre.
MR WIGNEY:
I see. I asked the question before whether the families were concerned
about whether that was a 'culturally appropriate living arrangement'
and Mr Kelly said he couldn't speak on behalf of the families. Let
me ask you this: does the Department regard the accommodation of the
families in the detention facility, that is, families living at close
quarters and often with single males in the same compound, as 'culturally
appropriate living arrangements'?
MS McPAUL:
I think there is a distinction to be made between a number of different
family groups and possibly single men living in a compound environment
to having a number of women and children living together in the same
house without the other male members of their family present.
MR WALKER:
I think it is also important to put some context, once again, to this
trial. It was looking at appropriate arrangements for women and children.
One of the Government's parameters was that men would not be included.
So in fact, it was voluntary participation by women and children in
an alternative detention arrangement if they felt that that was more
appropriate to their circumstances.
MR WIGNEY:
Yes, Mr Walker, but what we are seeking to do here is explore the
Government's parameter. That is, why it was decided that men ought
not participate in the scheme. That is what we are exploring. You
understand that.
MR WALKER:
Well, you will have to ask the Government. I am afraid I can't help
you. I was not involved in the framing of the guidelines. What I say
is they were the parameters within which the trial was proposed.
MR WIGNEY:
I see. So this isn't something that the Department had any particular
input in? That is, who was able to participate in the scheme? This
was something that was simply imposed on the Department by someone
in the Government, is that what you are saying?
MR WALKER:
What I am saying is the Department provides advice to the Government
but the Government makes decisions and we implement the decisions
within the statutory framework.
MR WIGNEY:
Well, who made this decision? That is, who made the decision that
men would not be able to participate in this scheme? The Department
or the Government?
MR WALKER:
It is the Government.
MR WIGNEY:
I see. Did the Government make this decision before the or after
the intended first participants in this scheme expressed their concerns
about 'culturally appropriate living arrangements'?
MS McPAUL:
Mr Wigney, that is a question that is difficult for those of us at
the table to answer I think.
MR WIGNEY:
Why?
MS McPAUL:
We weren't involved in that original - we weren't involved in the
Department in this area of work at the time that those original decisions
were made. Ms Godwin may be able to assist you with that.
MR WIGNEY:
Can I take up - before we get back to the documents - one of Mr
Walker's points that he raised. That is, concerns expressed in the
local community. Where those concerns ever reduced to writing in a
way that we, that is the Commission, can examine it?
MR WALKER:
I am afraid I wasn't involved in the actual establishment of the scheme
or advising of it so I am not aware of whether it was, once again
---
MR WIGNEY:
Well ---
MS McPAUL:
Again, it is something that was before my direct involvement in the
program. However, it is my understanding that there was some extensive
community consultation including some participation by the Minister
in that process.
MR WIGNEY:
Well, can you take that question on notice and you can take on notice
that the Commission would very much like to see all relevant documents
which record or report on how it came to be that males were to be
excluded from this project? That obviously must be all the documents
in the Department's possession including, for example, documents that
record any concerns expressed in the local community. Can you undertake,
please, to produce those documents to the Commission if they exist?
MR BROMWICH:
Can I note at that point that necessarily that request can't extend
to material that stands within the hands of Government as opposed
to the Department?
MR WIGNEY:
I thought I made it clear that it was only documents in the possession
of the Department.
MR BROMWICH:
Just making it clear on the record.
MR WIGNEY:
I thought I did. In any event, we will come back to other aspects
of the residential housing scheme in due course but we went off on
that tangent because in the first document I was taking you to the
son of this particular family in the case study had expressed his
concerns or 'worries' I think is the word, about the fact that he
had been - he is not able to talk with his father any more, right?
That is because his father was back in Woomera detention facility
and he is in the Residential Housing Project.
MS McPAUL:
I think it might be helpful to put in context some of the arrangements
that operate between the Residential Housing Project and the Centre.
I think, Commissioner, as you were aware when we were both at the
Housing Project a little while ago there were regular and spontaneous
requests from the detainees to travel back to the Centre for one reason
or another and that is facilitated and was being facilitated at that
time. So it is my understanding that it is certainly possible for
Housing Project participants to travel to the Centre whenever they
need to or would like to. So it is my understanding that all the participants
including the members of this family would have had that opportunity
available to them.
MR WIGNEY:
I see. I am sorry.
DR OZDOWSKI:
Can I ask you a question because from my visit over there I got a
slightly different understanding of the situation and I understand
that there is some mechanism in place which may discourage women,
wives, going to the compound to meet the husbands. One of them, as
I understand, was the issue of finances. Could I ask you how much
per day a person is getting for living expenses for food, all expenses,
if a person is living in the Housing Project?
MS McPAUL:
Just before I go on to answer that I am not quite sure how that
relates to the question of whether people could travel backwards and
forwards.
DR OZDOWSKI:
I will come to it in a moment if you could answer first that question.
MS McPAUL:
Commissioner, I can get someone to check and tell you the specific
amount. It is a small amount per person per day aggregated for a family
unit.
DR OZDOWSKI:
Yes, I was told that it was $6 per person per day for food.
MS McPAUL:
It is in that order but I will get someone to check for you.
DR OZDOWSKI:
Yes. Then I was also told that if a woman decides to go to the
detention centre and spend a night with her husband then the $6 will
be deducted from her allowance, is that correct?
MS McPAUL:
Again, I would need to check the specifics of that for you.
DR OZDOWSKI:
Could you please check it because my understanding was that it was
one of the key issues which were inhibiting women from going to meet
their husbands in the compound.
MS McPAUL:
What I can say is that if a woman or family members decided to join
the rest of the family in the compound that they would have meals
and other activities provided for them in the compound so there would
be no requirement for them to have a separate meal allowance allocated
to them which they would otherwise use in the housing project. So
it is not a question of having both entitlements. It would be one
or the other.
DR OZDOWSKI:
Yes, thank you.
MR WIGNEY:
Before I ask you some questions about the visiting arrangements that
you just referred to I think I had intended to ask you one more question.
I would ask you whether the Department was of the view that the conditions
in which families resided at the detention facility that we have discussed
in evidence was regarded by the Department as 'culturally appropriate'
and I think you in your answer referred to the fact that there's a
distinction between the facility and the residential housing project.
I wonder if you could tell us, please, what that distinction is and
what that means in relation to the question I asked you, that is whether
the Department has a view about the appropriateness of the living
arrangements at the facility.
MS McPAUL:
I think in my previous answer I alluded to the fact that in the
compound there were entire family groups whereas the living arrangements
in the housing project required a number of families to live in a
particular house but without the male members of their family present
so that my understanding was that that was the element that differentiated
those two living arrangements.
MR WIGNEY:
Yes, but what we are trying to explore here is why. Why is it the
situation that it is not considered 'culturally appropriate living
arrangements' to have fathers and sons at a residential housing project
yet it is back in the detention facility? That is the question.
MS McPAUL:
I think that is probably a question best directed to the detainees
themselves. As Mr Kelly said, I can't speak on their behalf, I guess
I'm ---
MR WIGNEY:
I'm asking you the Department's view, Ms McPaul. In the Department's
view why is it not 'culturally appropriate' to have fathers and sons
in the residential housing project yet it is back in the detention
facility? I'm not asking what the detainees think, I'm asking you
what is the Department's view?
MR BROMWICH:
Well, I object to the question to this extent, Commissioner. It has
already been made clear that the way in which the alternative housing
facility was set up was a matter of government direction and necessarily
the two arrangements are quite different, one which has been identified
which is family units together with other males perhaps being in proximity,
versus women and children together not wanting other males outside
of their family unit to be present and they are two quite different
situations, one of which is arrived at by government policy and it
is unfair of this witness to be asked to, in effect, back door justify
government policy.
DR OZDOWSKI:
The Department in its submission used the words 'it is culturally
inappropriate' so it was very much a departmental submission and therefore
I see the counsel assisting is asking about the document which was
provided by the Department and asking to explain to departmental officers
why they use that phrase in departmental documents provided to this
Inquiry.
MR BROMWICH:
Yes, Commissioner, but there's a difference between asking why that
phrase was used in relation to the Housing Project which has already
been dealt with and what is now being asked, which is a comparison
between that and the arrangements within - with families within the
detention facility when that very difference is one that is arrived
at by government policy and it is a back door way of trying to have
a departmental officer justify government policy and that is unfair.
It is not the role of a departmental officer.
DR OZDOWSKI:
Counsel assisting, yes, I think if we could move on, I think,
yes, we could focus on the departmental policies but possibly the
departmental officers cannot respond what was in the Government's
mind when they were given marching orders, so to say.
MR WIGNEY:
I see. So just before we leave that topic we now - the position now
is, is it, that it was a government decision that fathers and sons
not be permitted in this project, not a departmental decision, is
that what you are saying? That was the basis of your counsel's objection.
MS McPAUL:
I think I've already indicated that that question might be one that
is more appropriate for Ms Godwin given that I was not part of the
division at the time that that was actually being - that piece of
work was being undertaken. I've explained to the best of my abilities
my understanding of that circumstance already.
MR WIGNEY:
You have - getting back to - I think you referred to the fact that
the participants in the Residential Housing Project were able to go
back to the detention facility and visit the fathers and sons, as
it were, right?
MS McPAUL:
Yes, that's correct.
MR WIGNEY:
How often were they permitted to do that?
MS McPAUL:
It's my understanding that individuals may visit the centre at any
time providing they have made a request to the staff at the Housing
Project and providing that there is no operational reason at the centre
that would preclude that happening.
MR WIGNEY:
How long were they permitted to remain back in the detention facility?
MS McPAUL:
As long as they would like to.
MR WIGNEY:
Are they able to, for example, have a meal with the fathers and sons?
MS McPAUL:
Absolutely, yes.
MR WIGNEY:
The situation was and still is, is it not, that the male sons and
the fathers are not able to go to the Residential Housing Project
and visit their families?
MS McPAUL:
No, that's not correct.
MR WIGNEY:
Are you saying that that is allowed at this point in time?
MS McPAUL:
There have been a small number of occasions when there have been visits
by other family members to the Housing Project.
MR WIGNEY:
A small number of occasions. How many?
MS McPAUL:
Look, I would have to take that on notice to give you an exact number.
It's my understanding that they have visited on more than one occasion
during the day at the centre.
MR WIGNEY:
Can I ask that you be shown this document? Now, that is a document
that has been provided to the Commission by the Department and if
you turn to have a look at the front page I think there's some information
that has been provided by the Department and also provision of a document
which is headed Fact Sheet, 83, the Woomera Alternative Detention
Arrangements for Women and Children Project. Do you see that?
MS McPAUL:
Yes.
MR BROMWICH:
Sorry, I have just been provided it so I can see what is being referred
to. Would it be possible for me to have a copy? We did write and ask
to be advised which documents were going to be referred to and we
were told that copies would be - plenty of copies would be available.
MR WIGNEY:
Well, they are the Department's documents actually but we've got ---
MR BROMWICH:
Yes, but we've provided 50 volumes of documents, Mr Wigney.
MR WIGNEY:
In any event, we will arrange for copies in due course. On the
right-hand column of this page there's a sub-heading, Visits. In the
second paragraph it is recorded that detainees from the IRPC, that
is the Woomera detention facility, are not able to visit the Project.
Do you see that?
MS McPAUL:
Mr Wigney, you might be aware that this particular document is dated
3 August 2001 and there are later versions of this fact sheet and
- which will show what I just advised you is consistent with the current
fact sheet.
MR WIGNEY:
Well, this fact sheet was provided to the Commission by the Department
last week.
MS McPAUL:
This is an earlier version, that is correct. These fact sheets are
updated from time to time and I believe we also advised you that documents
that were already publicly available on our web site would not be
reproduced to you.
MR WIGNEY:
I'm just trying to understand why in answer to a notice that the Commission
has served on the Department you gave us a fact sheet that was on
your evidence out of date.
MS McPAUL:
I believe the reason this particular fact sheet was provided was that
it contained information regarding the criteria at the time for participation
in the Housing Project and it was current at the time that the Housing
Project was established last year and it was in response to the specifics
of that particular notice.
MR WIGNEY:
Do you know or are you speculating that there is a fact sheet in relation
to this project in existence now that records that detainees from
the facility are able to visit the Woomera housing project?
MS McPAUL:
There is a later version of the fact sheet. I would need to check
the exact wording of it.
MR WIGNEY:
Well, is it policy that at this stage that the detainees from
the detention facility are able to visit the project or is that just
dealt with on an ad hoc or case-by-case basis?
MS GREAVES:
I think, Mr Wigney, these sorts of issues have to be dealt with on
a case-by-case basis. We have to operate within the legislation which
is legislation which requires the Department to keep people in detention.
So questions of moving people from place to place and to a more -
an environment where there is less security always have to be taken
on a case-by-case basis. That is our responsibility as public servants
implementing the legislation.
MR WIGNEY:
All I'm asking is whether it is now part of the general policy that
detainees are able to visit the facility or not. I'm sorry, able to
attend the Residential Project or not.
MS McPAUL:
It is my understanding that it is possible for them to do that on
a case-by-case basis and that it has occurred on more than one occasion
in the past few months.
MR WIGNEY:
Okay. Now, sorry, we haven't got very far through this case study
yet, we are still on document 1. Let us just move on. As I said, we
went off on to that tangent because of the record in this document
of the son expressing his worries about - and upset about the fact
that he can't talk to his father. Can I just take you some other parts
of this document, please? You will see that still on page 3 of the
document we have the authors recording an interview with [name removed]
who is an ACM psychiatric nurse, do you see that?
MS McPAUL:
Yes, I can see that.
MR WIGNEY:
He refers at the bottom of the page to the fact that the father is
'deeply depressed' and if you go over to the next page, the third
paragraph on the page, [name removed], the psychiatric nurse makes
some reference to his observations about the son. Do you see that?
MS McPAUL:
Who is making the observation?
MR WIGNEY:
[Name removed] who is the ACM psychiatric nurse.
MS McPAUL:
This is on page 3? On page 4, yes.
MR WIGNEY:
Now, we will come back to [psychiatric nurse]'s assessment in due
course but you will see then there is a major sub-heading on the page,
Assessment of Allegations, and that records the assessment of these
officers from Family and Youth Services to the effect that the child
in this family is exhibiting clear signs of severe stress, sleep talking,
nightmares, sleep-walking, indicated deep-seated trauma. The current
stressors of detention and his parents' depression are clearly causing
the son extreme distress, making his attempts to self-harm more likely
to be emotionally-based, not behaviourally-based as purported by the
Psychiatric Nurse.
That is referring
to [the psychiatric nurse]'s assessment. Do you see that?
MS McPAUL:
Yes, that's here.
MR WIGNEY:
Then you will see at the bottom of the page a recommendation that
the Port Augusta CAMHS - I think that is the Child and Adolescent
Mental Health Service - that is, again a state service, South Australia,
'be contacted to ascertain if they can provide a consistent counsellor',
with consistent being emphasised, 'who can provide regular contact'
with the son 'in an attempt to establish some sense of trust before
proceeding to therapeutic counselling.' If you then go over to the
next page, again the authors of this document refer with some emphasis
to the fact that 'consistency is critical'. Now, one of the questions
I have for you is this: is it the situation that counsellors at the
Woomera centre who deal with these sorts of issues are on a six-week
rotation basis?
MS McPAUL:
Yes, look, I think the questions about specifics of employment are
a matter for ACM.
MR WIGNEY:
I'm sorry, I missed that.
MS McPAUL:
Sorry, I said I think the specifics of questions relating to employment
with ACM are a matter for ACM.
MR WIGNEY:
You are an Assistant Secretary in this area that deals with detention,
are you not?
MS McPAUL:
The staffing arrangements for the provision of the outsourced
detention services are a matter for the company.
MR WIGNEY:
Well, what about Mr Kelly who, as I understand it, had some role
in relation to Woomera? Does he know?
MR KELLY:
I think the question has been asked and answered, Mr Wigney.
MR WIGNEY:
Well, I don't know the answer. I'm asking a simple question. Are the
counsellors at Woomera detention facility now or in the past on a
six-week rotation basis? Do you know?
MR KELLY:
I don't know of every counsellor or the employment of every staff
member within Woomera. I know that ACM as a company have encouraged
many of their staff to take up lengthy contracts to live and work
in the Woomera facility but I couldn't honestly say to you that every
staff member is like that or whether some staff members are on short
duration contracts. I think the question that was asked was: do you
know? The question has been answered: no, we don't know and we think
the question should be posed to ACM.
MR WIGNEY:
You monitor ACM's provision of services, don't you, you being the
Department?
MR KELLY:
Yes, it's outcome-generated, as Ms Godwin mentioned yesterday, not
input.
MR WIGNEY:
Are you seriously suggesting that you as the monitors of the service
provided by ACM don't know a simple fact such as whether counsellors
employed at the facilities are or are not employed on a six-week rotation
basis?
MS McPAUL:
That is not what we're saying. What we're saying is that we have
some understanding but if you - you have access today to the specifics
from the company directly and that may be the best source of confirming
the particulars that you're asking.
MR WIGNEY:
Well, I don't know whether it is appropriate at this stage to ask
if Mr Rushton is able to assist in that regard or whether ---
MR RUSHTON:
I'm sure we can assist. I will just have to get some instructions
as to the precise ---
DR OZDOWSKI:
Possibly - can't we return to this question closer to the end of that
session. I will allocate some time for ACM to respond to this part
of your question.
MR WIGNEY:
Very well. The next document we have in this case study you will
see is a page or two further on. It is circled number 2 and you will
see that it is a document, minute or memorandum on ACM letterhead,
its author being [name removed], the registered psychiatric nurse,
do you see that?
MS McPAUL:
Yes, I have that document.
MR WIGNEY:
It is addressed to [name removed] who is in fact - and this becomes
apparent in due course - the Department Deputy Manager at the Woomera
facility at that time, right?
MS McPAUL:
That's correct.
MR WIGNEY:
Now, the subject of this particular memorandum is the father and
his family again, do you see that, the subject?
MS McPAUL:
Yes, I do.
MR WIGNEY:
Indeed, what the author of this document has done is to include some
information about each of the family members and in particular their
mental state. Do you see that?
MS McPAUL:
Yes, I believe that's here.
MR WIGNEY:
Just dealing firstly with the father who is dealt with firstly
in this document, you will see about seven lines down it is recorded
in a sentence by the author of this document that the mental state
of the father has deteriorated dramatically in the past month. He
was generally a happy man who is devoted to his family. His wife and
son have been living in community housing for some eight months now
and he misses them very much even though he feels that they are better
off there.
Do you see that?
MS McPAUL:
Yes, that's on the first page.
MR WIGNEY:
Recording, I think you would agree, that the father is exhibiting
some signs of distress about his separation from his family?
MR BROMWICH:
Well, that connection is not there in the document, with respect.
My friend is making that connection but that is not what is in the
document.
MR WIGNEY:
Over the page there's a title, Summary. Still dealing with the father,
there's a reference to 'abject depression with continual suicidal
ideation' and then this reference - I won't use the name, of course:
The father is
a proud man who finds it degrading that he has no control over his
family's future and he now views his existence as futile.
Right?
MS McPAUL:
I think it would be important to put in context the situation for
this particular family which, as I understand it, does have a degree
of agency that they could exercise in the circumstance.
MR WIGNEY:
I'm sorry?
MS McPAUL:
I said I think that we need to put in context the situation for this
family which is that they do have a degree of agency that they can
exercise in this context. As I understand it, this family has the
ability to make a choice to return to their country of origin and
that is certainly within the control of the family to make that decision.
MR WIGNEY:
We might come back to that in a moment because that raises a number
of issues but in any event at this stage they are in detention and
this document is dated May and at this stage, as I understand it,
there was still an outstanding appeal, so can we please deal with
the chronology as we go. You see there there's a reference to the
fact that the father has expressed and the assessment of this psychiatric
nurse is that he finds it degrading that he now has no control over
his family's future and he now views his existence as futile. It is
plain from this assessment, is it not, that the separation of this
father from his family is causing the father stress and mental problems?
MR BROMWICH:
Well, I object to that again. That is what my friend is reading
into the document but it is not taking into account the total situation
and in particular - and I don't know one way or the other -but it
is silent as to the visa processing status of this family. To isolate
it as being due to detention only may or may not be correct but the
document does not say that and you are suggesting it does.
MR WIGNEY:
We are talking here about children in immigration detention. I just
see it at this stage and I'm not suggesting that it is relevant in
any event but at this stage, that is at May, there was still an outstanding
appeal afoot.
MR BROMWICH:
In other words, he had failed in his determination and he had been
found not to be a refugee and that could equally account for the lack
of control over his family's future.
MR WIGNEY:
Well, Mr Bromwich can take an oath and give some evidence if he
really wishes to do so.
MR BROMWICH:
Well, you are putting a proposition from a document that does
not stand in the face of the document and it is unfair to put to a
witness that a document says something that it simply does not and
you know that from any ---
MR WIGNEY:
The document says this, does it not, Ms McPaul:
..... is a proud
man who finds it degrading that he has no control over his family's
future and he now views his existence as futile.
Right?
MS McPAUL:
That's what the document states.
MR WIGNEY:
The next assessment by this psychiatric nurse talks about the mother
and I want to take you to just simply one passage and it is the last
sentence of the psychiatric nurse's summary and it records this, does
it not:
It is obvious
that the continued separation from her husband and the behavioural
problems of her son is having an adverse effect on her.
Right?
MS McPAUL:
Again that's what the document states.
MR WIGNEY:
Recording that in this psychiatric nurse's view the separation
of this woman from her husband, being a separation as a result of
her being in the Residential Housing Project, is having an adverse
effect on her, right?
MS McPAUL:
I'm not sure that's what the document actually states.
MR WIGNEY:
I see. Next we have the psychiatric nurse dealing with the son and
I just want to take you to one passage there under the summary. Well,
I will read the whole summary:
The son often
presents as a very angry young man who is very worried about what
is happening to his parents. His behaviours are such that he is trying
to assert his inner strength but it is obvious that he is not coping
with the breakdown in the family life.
Then over the
page we have the psychiatric nurse's family summary:
The family is
a typical family, whose bonds are being broken by continued separation,
resulting in a disintegration of the functioning of the family unit.
Do you see that?
MS McPAUL:
That's what's written here, yes.
MR WIGNEY:
The recommendation of this psychiatric nurse recorded at least
in the last sentence:
It would be
reasonable to suggest that the answer to these problems is a positive
response to their bridging visa application.
See that?
MS McPAUL:
That's written here.
MR WIGNEY:
If it wasn't obvious before it is obvious now, is it not, that this
psychiatric nurse's assessment is that the separation of the father
from his wife and child is causing considerable distress and breakdown
in family relationship?
MS McPAUL:
Well, it appears that the nurse has indicated some views here,
yes.
MR WIGNEY:
Now, that is as at 20 May. We have a week later, the next document,
document number 3. I should indicate at this stage, regarding the
reference to a bridging visa, I will come back to bridging visas in
due course. The next document, document 3, is an Incident Report of
27 May and that has been created by an officer of ACM, right?
MS McPAUL:
Sorry, the date, 27 May?
MR WIGNEY:
Yes.
MS McPAUL:
Yes.
MR WIGNEY:
Now, at this stage it would appear, and just take a moment to look
at the document if you wish, that the father is still in the detention
facility at Woomera and the mother and son are still accommodated
in the Residential Housing Project. That appears in the second paragraph
under Background.
MS McPAUL:
Yes, that's what's stated here.
MR WIGNEY:
Just in general terms, what this document records is particular incidents
first involving the mother slashing herself with a razor blade and
also recording an incident where the father had attempted to hang
himself, do you see that?
MS McPAUL:
That's the subsequent two paragraphs you're referring to?
MR WIGNEY:
Yes. Take your time to read the document. You will see on the
second page of that document under Action/Recommendations, the last
- well there is a reference there to the entire family ought continue
to receive counselling and regular visits from the psychologist, but
the last dot point it that the psychologist has recommended that the
mother and son 'be returned from the Housing Project to be permanently
accommodated in the November compound' at the detention facility,
right?
MS McPAUL:
It does state that here, yes.
MR WIGNEY:
Can you just tell us what the November compound is?
MS McPAUL:
It's one of the accommodation compounds at the Woomera IRPC.
MR WIGNEY:
Is it one in the old part of the facility or the new part of the
facility?
MS McPAUL:
It's in the new part.
MR WIGNEY:
Thank you. Trying to move through these documents as quickly as possible,
the next document we have is another Incident Report the following
day, again created by an officer of ACM, and this one is reporting
an incident whereby the son now, and I remind you the son is aged
12, has been observed to have slashed his forearm with a razor.
MS McPAUL:
That's - where are we looking, page 2 of that document?
MR WIGNEY:
Yes.
MR BROMWICH:
Well, I object to the use of the word 'slashed'. That is not accurate.
When one goes back to the previous document that is not accurate either.
MS McPAUL:
I think it says 'allegedly cut himself'.
MR WIGNEY:
Let us just say 'cut' then.
MR BROMWICH:
Well, the word is 'superficial injury' in the previous document.
MR WIGNEY:
He has cut himself with a razor blade, has he not?
MS McPAUL:
Are we looking on the 28th or the 27th now, Mr Wigney?
MR WIGNEY:
Yes, document number 4, under the narrative:
The son was
brought up to the medical clinic with his mother by Detention Officers.
And just a ---
MS McPAUL:
Yes, it states here that he 'allegedly cut himself with a razor'.
MR WIGNEY:
It also records that the incident has now been reported to FAYS,
that is Family and Youth Services, right?
MS McPAUL:
That would be the normal practice.
MR WIGNEY:
Now, the next document is - that is document number 5 - a document
written by the Deputy Manager at the Woomera detention facility on
29 May, it is a facsimile message, to a doctor. Do you see that?
MS McPAUL:
Yes.
MR WIGNEY:
This document - and take your time to read it if needs be - is a request
by that Deputy Manager for the doctor to provide some information
so that an assessment can be made as to a bridging visa for the detainees,
that is, the family that we are talking about, right?
MS McPAUL:
That is correct.
MR WIGNEY:
You will see that the document indicates that a report from ACM has
been annexed and that ACM have indicated that:
this family
may have conditions that cannot be cared for within a detention environment.
Right?
MS McPAUL:
Yes, that is what is written here.
MR WIGNEY:
And it has asked this doctor to provide an assessment for the purpose
of seeing whether a bridging visa may be appropriate to be issued
in relation to this family, right?
MS McPAUL:
That is what is written here, yes.
MR WIGNEY:
Well, it would appear, Ms McPaul, that we haven't received - that
is the Commission - has not received any documents indicating any
response to this facsimile message by the relevant doctor. Are you
able to offer an explanation for that? Are you aware of whether there
ever was a response?
MS McPAUL:
I'm not personally aware, no.
MR WIGNEY:
If there was a response, might we expect that the Commission would
have received it in answer to the notice?
MS McPAUL:
If the Department had that document and it fell within the scope of
the notice, we have certainly done our best to provide everything
that we had available.
MR WIGNEY:
So you are not able to offer any indication, one way or another, about
whether a response ever was received by the Department from this doctor
in relation to this assessment, relating to a bridging visa, is that
right? You don't know one way or another?
MS McPAUL:
I would need to check for you, but it is my understanding that the
Department has done a thorough search and provided you with all documents
relevant to the notice.
MR WIGNEY:
Well, you might just take that question on notice as well and
attempt to ascertain for us, please, whether there ever has been a
response to that ---
MS McPAUL:
To this particular Inquiry on 29 May?
MR WIGNEY:
Yes, whether the doctor referred to in that facsimile message ever
responded to this request. Now, the next document, document number
6, is a report from the Family and Youth Services - take your time
to look at it if you wish - but it would appear to be - you recall
from the earlier incident report we referred to relating to the son
cutting himself with a razor blade, that the Family and Youth Services
were contacted, this would appear to be a Family and Youth Services
report in relation to that incident and its investigations.
MS McPAUL:
Which other document are you relating that to?
MR WIGNEY:
Well, if you go back to document number ---
MS McPAUL:
The one dated - number 3.
MR WIGNEY:
Number 4, it is the incident report, referring to the son cutting
himself with a razor. The incident being reported to FAYS, that is
Family and Youth Services, and you will see in the first paragraph
of document number 6, which is a report by FAYS, referring to that
incident on 27 May. Do you see that?
MS McPAUL:
Yes, I guess, I'm a little confused because the dates in the second
document, the 6th, relate to the 27th. Whereas, the document number
4, relates to issues that happened on the 28th, as I understand it.
MR WIGNEY:
Well, it may in fact relate to the notification that was received
in relation to the incident report which is document number 3, but
in any event it does refer to an incident - whether the date is a
day out or not does not really matter, it seems - but an incident
where the son appears to have cut himself with a razor and it also
refers in the same paragraph to the fact that the mother also cut
her arm on 26 May, and the father made another suicide hanging attempt
on 27 May as well. Do you see that?
MS McPAUL:
Yes, that is here.
MR WIGNEY:
Then, indeed, there is also a report of another incident here,
where the son is reported to have - and this time the word 'slashed'
is used:
slashed his
forearm in several places.
MS McPAUL:
Yes, that is in inverted commas.
MR WIGNEY:
Yes. Now, it would appear that he officers from the Family and
Youth Services who authored - or the officer who authored this document
- interviewed certain persons and formed an assessment, that assessment
being set out on page 2 of the document, do you see that?
MS McPAUL:
Are we referring to the paragraph at the bottom of the page?
MR WIGNEY:
At the bottom of the page.
MS McPAUL:
Yes.
MR WIGNEY:
It refers to the fact that:
The son is the
only child in a family where both parents are severely depressed and
unable to parent him. Consequently, he has taken on the role of the
'man of the family' and mother's 'protector'. He displays this by
being (often) rude, arrogant and 'bossy' with adults.
It refers to
the fact that:
This generally
means that he is not well liked by staff
Do you see that?
MS McPAUL:
Yes, that is written here.
MR WIGNEY:
Then, over the page there is a further assessment of the child, and
it has referred to the fact that, in this officer's assessment:
He is at ongoing
risk of self-harm and his parents are unable to support and help him.
And a recommendation:
that there be
an urgent and comprehensive assessment by a Child Psychiatrist.
Do you see that?
MS McPAUL:
Yes, that is here.
MR WIGNEY:
Right, that is 6 June. Yes. I'm sorry, I had meant also to refer you
in this document to the second paragraph in the recommendation by
the officer from Family and Youth Services:
it is recommended
that this child and at least one parent be released from detention
- on a bridging visa - in order to facilitate this child's ability
to be engaged by a counsellor or therapist. Whilst in the detention
environment this child has lost all trust in the adults associated
with the Woomera Centre.
MS McPAUL:
You were referring to the last paragraph, I think, Mr Wigney?
MR WIGNEY:
Yes.
MS McPAUL:
Yes, that is here.
MR WIGNEY:
Now, the next document we have in this bundle ---
DR OZDOWSKI:
We will have a break at 11 o'clock, but continue until 11 o'clock.
MR WIGNEY:
The next document we have is a minute from the Department authored
by the DIMIA - the Department Deputy Manager at the Woomera detention
centre and it is dated 7 June on the second page, do you see that?
MS McPAUL:
Yes, that is [name removed].
MR WIGNEY:
It is again referring specifically to the medical and psychiatric
assessments of the members of the family that we have been discussing,
do you see that?
MS McPAUL:
Well, it also refers to some other detainees as well.
MR WIGNEY:
Yes, it does. It then records the Department Deputy Manager as saying
this that:
In all cases
-
I'm sorry, it
is addressed to the ACM Health Services Manager, and refers to the
fact that:
In all cases,
your staff's -
that is ACM staff's
-
reports on the
abovenamed have indicated that the detainee (or a detainee/number
of detainees in the family) have medical and/or psychiatric conditions
which cannot be adequately cared for within the detention environment.
Do you see that?
MS McPAUL:
Yes, that is the paragraph under the list of names.
MR WIGNEY:
That is right, and it is requesting to assist in the Department's
assessment of management options of those - or these detainees - including
the family that we have been discussing, requesting the ACM Health
Services Manager to:
provide some
reports detailing the precise medical and/or psychological conditions
and the treatment needed, treatment currently being provided and the
like.
Do you see that?
MS McPAUL:
Yes, that is here.
MR WIGNEY:
Again, along a similar vein we have the next document, document number
8 of the same date. We have another minute again from the Department
Deputy Business Manager at Woomera detention facility, addressed to
various officers from ACM, requesting a priority referral to the child
and adolescent mental health service for psychiatric assessment of
the son. Do you see that?
MS McPAUL:
Yes.
MR WIGNEY:
Next, we have a document, being a letter, or a minute, from the
registered psychologist employed by ACM, it would appear at the Woomera
detention facility and it is dated 18 June 2002. Do you see that?
MS McPAUL:
Yes.
MR WIGNEY:
The subject being again the family that is the subject of this case
study that we are going through, right? You will see that this particular
officer has reviewed the reports and in terms of updated information
she refers to the fact that:
the family has
further deteriorated as a unit and individual self-harming behaviour
has increased.
If one goes over
to the second page, we now have this psychologist's assessment. It
records, amongst other things does it not that:
The father is
showing acute symptoms of Chronic Stress Disorder with Major Depressive
Disorder.
Do you see that?
MS McPAUL:
The father, are we speaking about?
MR WIGNEY:
Yes.
MS McPAUL:
I'm sorry, just what were you asking me to refer to?
MR WIGNEY:
The ACM registered psychologist has recorded his condition as at this
date, that is 18 June 2002, as:
Showing acute
symptoms of Chronic Stress Disorder and Major Depressive Disorder.
Do you see that?
MS McPAUL:
Yes, I can see that.
MR WIGNEY:
The mother is reported as having:
Major Depressive
Disorder.
Do you see that?
And then the son is reported as being:
completely dysfunctional
for his age and experiences bouts of depression and uncontrollable
rage. Although he believes that he is fulfilling the correct role
in the family, the stresses for a young boy to represent the family
under these circumstances is pushing him into extreme and dangerous
behaviours.
Then there is
a reference to the fact that:
Previous intervention
has been on-going counselling, psychological intervention, medication
and time out of hospital -
I'm sorry -
time out in
hospital.
And then there
is this reference:
The severe family
breakdown parallelling the psychological breakdown of the father,
plus the growing concerns regarding the son's role, needs to be addressed
in an environment in which stronger psychological and community interventions
can occur. The son in particular, requires input which is more appropriate
to a child his age, which is outside of the role which he has acquired
at the detention centre.
Do you see that?
MS McPAUL:
Yes, that is here.
MR WIGNEY:
Can I suggest this to you, that what the registered psychologist is
effectively reporting here, is that she is unable to address the problems
of this family in the detention facility because the detention facility
itself is the very cause of these psychological problems? What do
you say about that?
MR BROMWICH:
Well, I object to the question, it is not a fair question available
on the documents, it just isn't. The connection is not anywhere in
the documents, it is not to be found in the documents. The fact that
these things are occurring does not justify the cause and effect or
conclusion that stands within that question.
MR WIGNEY:
I don't think it much matters.
DR OZDOWSKI:
Yes. I disagree with your statement to me, the statement is clearly
saying that the family needs to be out of detention in order that
the psychological and psychiatric problems could be addressed.
MR BROMWICH:
That is within the document, Commissioner. With respect, what
my friend asked was not within the document. There is a difference
between the document indicating that there may be a need to be outside
of the detention centre for treatment and saying the detention centre
is the cause of the problem, and that is what my friend has put and
that is not what is within the document.
MR WIGNEY:
I'm not - I am asking the officer what her views are about being someone
that is familiar with this case ---
MR BROMWICH:
Close.
MR WIGNEY:
---at the time and as a result of having been put on notice that
we were going to deal with this case study. Whether that is her opinion,
having read this document, that that is what the officer is in effect
saying, now, that is a permissible question.
MR BROMWICH:
The question that is being put is that this document indicates that
the detention is the cause of the illness. The document does no such
thing. It is an unfair question. It is not fairly available from the
document and it should not be asked.
MR WIGNEY:
I think the document speaks for itself, in any event, I will move
on because there are others that make it even more plain. The next
document is document number 10. We have now an involvement of a doctor
at the Royal Adelaide Hospital, that is a - well, I won't name the
doctor - it is a letter dated 27 June 2002, do you see that?
MS McPAUL:
27 June, yes, that is the date on this document.
MR WIGNEY:
I won't take you to too much detail in this document but it seems
to deal specifically with the father in this family, right?
MS McPAUL:
Broadly I think, yes.
MR WIGNEY:
It is suggesting, or rather referring him to Brentwood in order
to have a psychiatric assessment. Are you able to assist us as to
what 'Brentwood' is?
MS McPAUL:
Look, we would need to confirm for you, but we understand that may
be part of the Glenside Medical Facility.
MR WIGNEY:
The letter also records the fact that ---
MR BROMWICH:
If I could assist. The heading of the letter would indicate what
it is. It is addressed to The Assessing Doctor, Brentwood Intensive
Care, Glenside Campus.
MR WIGNEY:
It would seem to be some sort of psychiatric unit in the hospital?
MR BROMWICH:
Well, it is a mental health service, if you look at the heading of
the document.
MR WIGNEY:
In any event, I just want to take you to one passage in this letter,
if I may. It is in the second paragraph, and if you just read that
to yourself for the moment, please. I will use the precise words in
the document, or Mr Bromwich will object:
She -that is
the mother - and staff are also very concerned about the 12-year-old
son who has become increasingly disturbed as he sees his father become
more withdrawn and bizarre.
MS McPAUL:
That is the wording of the document.
DR OZDOWSKI:
Could you speak up. It is so difficult ---
MS McPAUL:
That is the wording of the document.
MR WIGNEY:
Now, the next document I want to take you to is document 11 in this
bundle of documents.
DR OZDOWSKI:
I think, counsel, it is the last document before we will break for
coffee.
MR WIGNEY:
Yes, and I will see if I can speed up a little bit going through these
documents, but it is a memorandum from ACM, the Acting Health Services
Manager, and it is attaching medical treatment plans. It is addressed
to the Centre Manager and the DIMIA Manager at the Woomera detention
facility, right?
MS McPAUL:
It is addressed to the ACM Manager with a drop copy to our manager,
that is correct.
MR WIGNEY:
If you go over the page we have attached to it the treatment plan
that is referred to and it is apparent that it is a treatment plan
in respect of the family that we have been dealing with this morning,
right?
MS McPAUL:
Yes, it relates to that family.
MR WIGNEY:
And the first box of this plan refers to: identified areas of concern,
and amongst other things it refers to 'decreased ability to function
as a family unit', right?
MS McPAUL:
That is listed here, yes.
MR WIGNEY:
And, without going through the whole document, we have got down at
the bottom of the page:
Recommendations
for Ongoing Management: Nil improvement likely in current detention
setting; Removal of child from negative environment; Alternative housing
would assist in family bonding and reduce damage caused by exposure
to self-destructive behaviour and increase residents' ability to cope
and care for child.
Right? Do you
see that?
MS McPAUL:
That is here on this page, yes.
MR WIGNEY:
Now, we are now in July of 2002 and it is apparent, is it not, that
what has occurred as a result of a recommendation is that the son
and the mother have come back to the detention facility from the Woomera
Housing Project, right?
MS McPAUL:
I understand they came back some time earlier, yes.
MR WIGNEY:
Yes. And what this ACM officer is recommending is alternative housing,
that is, removal from the detention facility at Woomera, do you see
that?
MS McPAUL:
Alternative housing would assist, they said here, yes.
MR WIGNEY:
Well, that might be an appropriate time
MR BROMWICH:
Commissioner, there is just one brief matter I just want to raise,
and it is a more generalised concern. The level of detail which this
has gone into I am advised may well have led to already an inevitable
identification of the people to whom it refers because there's been
other reporting, I gather, elsewhere where names have been used. I
just wish to register a concern in this regard, it is something we
indicated by letter last week that, depending on where the questioning
went, the concerns about confidentiality might well be breached. All
I can do is register that concern, I can't know whether that is the
case but it would seem that that is at least a distinct risk.
DR OZDOWSKI:
Yes, thank you for registering your concern. Can I assure you that
we selected these particular four cases only and we obtained all necessary
agreements from people who were concerned. So that has been taken
care of.
MR BROMWICH:
That is a matter for the Commission; I'm just simply registering
our concern.
DR OZDOWSKI:
Thank you. Could I also, that is after we break for coffee, ask counsel
assisting and counsel for ACM to approach the table, I would like
to discuss with you some arrangements, thank you.
SHORT BREAK
[11.05am]
RESUMES [11.20am]
DR OZDOWSKI:
I think
we are ready to recommence. So counsel assisting, if you could start
asking questions please.
MR KELLY:
Commissioner, may I just clarify one element and correct one element
from earlier this morning, please?
DR OZDOWSKI:
Yes, please, please do it.
MR KELLY:
The issue about the food allowance at the residential housing project,
I've now received advice that it is actually $7 per day per person,
irrespective of the age of the individual, should they return to the
centre to have a meal with other family members. There is no deduction,
repeat, no deduction, to that allowance that has been paid. Information
on this was actually provided to Pru Goward during her visit to the
centre on 30 August this year.
DR OZDOWSKI:
Thank you for this clarification. Anything else you would like
to add?
MR KELLY:
No, thank you, Commissioner.
MR WIGNEY:
Ms McPaul, I want to keep going through these documents and I
will try and speed things up so we can get to the other case study
in due course. I want to keep going through these documents but I
want try and speed things up but you will appreciate that these documents
are dealing with fairly significant and important matters are they
not?
MS McPAUL:
Well, we consider that detainees in our care are owed a duty of care
by the Department, yes.
MR WIGNEY:
So as to avoid being accused of being unfair, I'm not going to
take you to all of these documents so we can speed up but of course
you should ought feel free to point out anything in any of the other
documents that I don't specifically take you to that you consider
it to be of significance, do you understand?
MS McPAUL:
I'm happy to proceed on that basis.
MR WIGNEY:
And likewise, if you think I'm going too fast then tell me and I'll
slow down again?
MS McPAUL:
Okay.
MR WIGNEY:
We are up to document number 12, I think?
MS McPAUL:
Yes.
MR WIGNEY:
It is a letter of 23 July and it is authored by a doctor who was a
Fellow in Child Psychiatry at the Women's and Children's Hospital
in Adelaide and also a Senior Clinical Psychologist and it is addressed
to the Manager of ACM at Woomera and you will see that its topic is
the family that we have been discussing in evidence this morning.
Do you see that?
MS McPAUL:
Yes, I do.
MR WIGNEY:
In an effort to speed things up I'm just going to take you straight
to the recommendations but again feel free to refer to any other parts
of the document if you wish. The first of the paragraph under the
heading, Recommendations on page 5 of the document says:
Given the significant
disintegration of this family and the breakdown of all normal roles
and relationships, it is imperative to do what we can to provide this
family with structure and mechanisms to reconcile itself as soon as
possible. Anything that can be done to re-establish normal relationships
for this family is highly recommended.
And you will
see then some following paragraphs referring, amongst other things,
to the detention environment and then there are a number of numbered
recommendations, the first of which is:
We recommend
that the son and his family be removed from the detention centre as
a matter of urgency. The son's emotional deprivation and PTSD -which
is Post-Traumatic Stress Disorder -
cannot be treated
in the detention context, because that environment is contributing
to it. Continuing detention increases the risk of self harming behaviour
and increased traumatisation.
Do you see that
recommendation?
MS McPAUL:
Yes, that recommendation is here.
MR WIGNEY:
The next - the third recommendation is:
We do not believe
that separating the family at this stage would be in their best interests.
However, we do feel strongly that further detention in the centre
would be detrimental to their mental health and may pose significant
risk as it could result in serious self harm attempts.
Do you see that?
MS McPAUL:
That's paragraph 3?
MR WIGNEY:
Yes. Now, just to put this in a little bit of context, Ms McPaul,
this is dated 23 July and you will agree, and you can go back to the
documents in due course if you need to, but the first - the Department
first received a suggestion that the - a resolution to the problems
that this family was having might be a bridging visa, was raised with
the Department way back on 20 May and that is in document two if you
want to go back to it, right?
MS McPAUL:
I'm not sure whether that's the first time or whether there were other
occasions on which it might have been raised, but in these documents
there is a reference to them.
MR WIGNEY:
It may have been even earlier than May that this was first raised
as a serious issue and that a bridging visa might be a resolution,
at least in May, and it may have been earlier, right?
MS McPAUL:
According to the papers that we have looked at this morning there
are some references to bridging visas there, yes.
MR WIGNEY:
And in document number five which was a document I took you to earlier
today. That was the Department itself writing to a doctor asking for
an assessment for the purposes of considering a bridging visa, that
is on 29 May. So we have got that almost two months ago previous to
this letter, right?
MS McPAUL:
The other document?
MR WIGNEY:
Yes.
MS McPAUL:
That is dated, I think, as you said, 29 May.
MR WIGNEY:
And for those two months we have got the family continuing to reside
in the Woomera detention facility, that is, no longer in the Residential
Housing Project?
MS McPAUL:
I understand that they are currently in the IRPC.
DR OZDOWSKI:
I can't hear it?
MS McPAUL:
I believe that they are currently in the Woomera IRPC.
MR WIGNEY:
Yes, we will come to that in a moment, but this letter makes it as
plain as day, does it not, that a senior psychiatrist has said that
continued detention increases the risk of self-harming behaviour,
that the son and his family be removed from that environment because,
amongst other things, that very environment is contributing to those
mental problems. It is clear as day from this document, isn't it?
MS McPAUL:
It might be - sorry, yes. There are some views expressed in these
documents, I don't know that I would necessarily concur with all of
them.
MR WIGNEY:
You wouldn't concur with them?
MS McPAUL:
Well, you have made some - some very broad assessments there as
to - to what you consider to be represented in these documents.
MR WIGNEY:
I see, I have made some broad - have I?
MS McPAUL:
Yes, I believe so.
MR WIGNEY:
I see:
The son's emotional
deprivation and post traumatic stress disorder cannot be treated in
the detention context, because that environment is contributing to
it.
Can it be any
clearer than that?
MS McPAUL:
I think - I think the important word there is 'contributing'.
There may be any number of other factors aside from that which are
also at play here.
MR WIGNEY:
Well, assume for present purposes that there are other factors, it
is still a serious suggestion, isn't it, that the very environment
in which this young boy is detained is contributing to his health
problems?
MS McPAUL:
It is a view being expressed by a particular psychologist, I understand
that.
MR WIGNEY:
Let me, in the interests of speeding things up a bit, jump through
a few documents and take you to document number 16 and you will see
that that is a letter addressed to the Manager of ACM at Woomera dated
19 August 2002 and it's authored by a doctor, in fact, the Head, it
would appear of the relevant unit of the Women's and Children's Hospital
in Adelaide, do you see that? Head of the Department of Psychological
Medicine?
MS McPAUL:
At the Women's and Children's Hospital, yes.
MR WIGNEY:
And this letter, it would appear from page 1, deals specifically with
the son, right?
MS McPAUL:
I guess it does.
MR WIGNEY:
Again, in the interests of speeding things up I want to take you -
or I will have to take you to some of this in - I will take you to
a couple of passages in this document please on page 2.
MS McPAUL:
Page 2?
MR WIGNEY:
You will see the paragraph commencing with the words, 'I explored
in detail'?
MS McPAUL:
Yes.
MR WIGNEY:
Do you see that paragraph?
MS McPAUL:
Yes, I do.
MR WIGNEY:
Then five lines down:
However, my
assessment of the son is that he would not benefit from the removal
from the centre if it meant being separated from his parents.
So that effectively
excludes the Woomera Housing Project scheme, right?
MS McPAUL:
Well, he could in theory, be with one of his parents in the housing
project.
MR WIGNEY:
Well, it's said 'parents', plural here, hasn't it?
MS McPAUL:
Yes, it has.
MR WIGNEY:
And that would be the effect if they were moved back to the Housing
Project where they had been for some period of time in any event,
right?
MS McPAUL:
He would be able to be with his mother in the Housing Project.
MR WIGNEY:
But not his father?
MS McPAUL:
That's correct.
MR WIGNEY:
Next paragraph:
On the other
hand, it is frankly dangerous for the son to remain in the detention
environment, for many reasons, including...
And then the
doctor sets out a number of reasons why it would be dangerous for
him to remain in the detention environment, that is, Woomera detention
facility, right? Do you see that?
MS McPAUL:
Well, I don't think it makes specific reference to the Woomera
Centre but it does refer to the detention environment, yes.
MR WIGNEY:
Well, that is where they are, isn't it? In the detention centre at
Woomera, right?
MR BROMWICH:
It is a fair response, with respect, Commissioner. The references
are to the behaviour of this individual. Not Woomera but in any detention
environment.
MR WIGNEY:
Okay, well, any detention environment - dangerous for him to be in
any detention environment, right?
MS McPAUL:
It says:
...to remain
in the detention environment.
MR WIGNEY:
Well, it says:
...the detention
environment.
So contrary to
what your counsel has just suggested that would suggest it is a specific
reference to the Woomera detention environment, right, because that
is where they are housed?
MS McPAUL:
It may or may not but it does say:
...remain in
the detention environment.
MR WIGNEY:
Paragraph number 2:
I know of no
intervention that could be carried out in the Detention Centre that
would benefit the son.
Do you see that?
MS McPAUL:
Yes, that is written here.
MR WIGNEY:
Paragraph 3:
I concur with
the previous recommendation that an all-of-family approach is required
for this family.
So that makes
it abundantly clear that the Housing Project is no longer a viable
option because we are talking about all of the family which obviously
must include the father, right?
MS McPAUL:
I guess if they are referring to all of the family it would include
all family members.
MR WIGNEY:
Next paragraph:
I therefore
unreservedly concur with...
And there is
a reference there to the previous report by the doctors from that
hospital:
....recommendation
of removal of the whole family from the detention centre.
Right?
MS McPAUL:
Yes, there is a reference to that.
MR WIGNEY:
So now, we have jumped through to 19 August.
MS McPAUL:
Yes.
MR WIGNEY:
So it would appear that nothing has occurred in terms of removing
them from the detention environment since the letter of 23 July by
the doctors from the Women's and Children's Hospital and 19 August
when this doctor confers.
MS McPAUL:
I guess, Mr Wigney, if you are implying that the Department was not
paying any attention to the needs of this family throughout that period,
I don't think that the document suggests that at all.
MR WIGNEY:
Okay, well, let us ---
MS McPAUL:
On the contrary I think the documents are showing that we have
been maintaining our duty of care quite consistently and constantly
in relation to the issues facing this particular family as evidenced
by our ongoing interaction with the Family and Youth Services and
the other service providers in the state departments in South Australia.
MR WIGNEY:
But those service providers are all telling you that as a matter
of urgency this entire family should be removed from the detention
environment at Woomera, aren't they?
MR WALKER:
Can I just intervene to say we have to operate within the statutory
provisions. One of the important things is that unauthorised arrivals
are not per se eligible non-citizens for the grant of - to be able
to apply for a bridging visa. There are ways through that and, in
fact, regulation 2.20 deals with ways in which unauthorised arrivals
can become eligible non-citizens for the purposes of applying for
a bridging visa.
Some of these
are quite important in the sense of assessments of special needs by
medical practitioners or medical specialists appointed by Immigration.
Now, some of my colleagues can probably go on and explain who we appointed
and what we did in these circumstances but I just make the point that
it is within the statutory framework that we have to operate.
DR OZDOWSKI:
Do I understand you correctly that under the current legislation when
you see a family disintegrating as this one in the detention condition
where everyone is getting psychologically and psychiatrically ill,
you can't do anything?
MR WALKER:
I am not saying that, Commissioner. What I am saying is that we have
to work within the statutory framework. There are provisions but you
can't just automatically, on the basis of a specific assessment from
somebody who has not been appointed by Immigration, release that person.
DR OZDOWSKI:
Thank you.
MR WALKER:
Now, my colleagues may be able to explain what action was taken in
this context within the statutory framework.
MR WIGNEY:
Thank you, Mr Walker. I might just come back to the statutory framework
in due course if you wouldn't mind. The next document I want to take
you to, Ms McPaul - and again, I invite you to take - refer to any
other passages of any of the other documents that I am not specifically
referring to if you wish. I want to take you to document number 17
if you could find that please. It is a document prepared by Family
and Youth Services. That is the state department. The title page says:
Social Work
Assessment Report on the Circumstances of Children in the Woomera
Immigration and Processing Centre, dated 21 August 2002.
Have you got
that?
MS McPAUL:
Yes, I do.
MR WIGNEY:
I think we have only got - excuse me for a moment. I think to be fair
in this bundle of documents all we have is an extract of this report
that deals specifically with the family that we are dealing with in
the evidence this morning.
MS McPAUL:
Yes, it seems that number of pages are actually omitted from the
report. My version starts on page 18.
MR WIGNEY:
The family that we have been dealing with this morning is specifically
discussed, as you indicated, on page 18 and under the subheading:
Services provided
by the Centre.
That is the Woomera
Immigration Reception and Processing Centre. Concern was expressed
in section D of this report about delays in processing referrals to
the Child and Adolescent Mental Health Service and to other psychiatric
services, do you see that?
MS McPAUL:
Yes, that is written here.
MR WIGNEY:
There is specific reference to the son having been interviewed by
Family and Youth Services in March 2002, that being some six months
or more prior to the preparation of this report. Then if you go over
the page and you can refer to it in detail if you wish but there are
references to the continuation of the son's threats of self-harm and
further actions by the relevant state authorities. I want to specifically
direct your attention to the last two paragraphs:
The delay in
responding to these recommendations -
that is the recommendations
of Family and Youth Services -
which are not
made lightly, is an ongoing issue with the provision of safety and
required mental health services to the children in the centre. Such
delays mean that the Department's -
that is DIMIA's
-
duty of care
is inadequately implemented.
Do you see that?
MS McPAUL:
Yes, I do.
MR WIGNEY:
Now, I think in an answer you gave some moments ago you said, well,
the Department, in essence, is fulfilling its duty of care because
it is liaising with these departments. But this document makes it
abundantly clear that you are ignoring their recommendations, right?
MS McPAUL:
I don't think ---
MR BROMWICH:
I object to that. That is not what the document says.
MS McPAUL:
Yes.
DR OZDOWSKI:
Well, it is what ---
MR BROMWICH:
Not moving quickly enough is not the same as ignoring and ---
MR WIGNEY:
Okay, I withdraw the question and I will ask another.
MR BROMWICH:
The speed with which things are being moved has to be taken in
the context of what was happening at that time.
DR OZDOWSKI:
Well, if you look at page 111 in summary, I can read a sentence here:
Recommendations
and expert clinical advice has been provided but to date substantially
ignored.
MR BROMWICH:
Sorry, I am not seeing where you are referring to, Commissioner.
MS McPAUL:
Sorry, which page?
MR BROMWICH:
I can't see where you are referring to.
DR OZDOWSKI:
It is page 111.
MR BROMWICH:
111, which tab?
DR OZDOWSKI:
In summary of document ---
MS McPAUL:
I don't know if that is in our folders, Commissioner.
MR BROMWICH:
I think, Commissioner, you may have some material we don't. I don't
have the document you are referring to.
MR WIGNEY:
Commissioner, I was going to come to that document. I think it appears
later.
DR OZDOWSKI:
Okay, so I am moving a bit too fast. We will come to it.
MR BROMWICH:
Thank you, Commissioner.
MR WIGNEY:
I think your learned counsel objected to my question, and properly
so, I will put it again in different terms. You indicated in your
answer some moments ago that in your view, the Department was acquitting
its duty of care towards this family because, amongst other things,
it was liaising with the relevant bodies in the state, that is, South
Australia? This document makes it abundantly clear that, whilst you
were liaising with those authorities, you were delaying implementing
any of their recommendations, right?
MS McPAUL:
Again, I'm not sure that the document suggests that, Mr Wigney.
MR WIGNEY:
It says:
Such delays
mean that DIMIA's duty of care is inadequately implemented.
MS McPAUL:
That is a view held by a particular officer of the Department of Human
Services, I don't know that that is necessarily a view that I would
share.
MR WIGNEY:
I see. You disagree with that, do you?
MS McPAUL:
I think the Department has been active in managing this case with
the assistance of the services provider for the better part of this
year.
MR WIGNEY:
Do you think that it had moved, that is the Department had moved,
swiftly and with urgency since it first received communications at
least in May of this year about this family and the circumstances?
MS McPAUL:
I believe that we have been actively managing this case. I think you
can see from the documents that you have drawn the Commissioner's
attention to that both our Deputy Manager at DIMIA and the staff of
ACM have been working closely with the relevant authorities to find
appropriate solutions for this family.
MR WIGNEY:
But these authorities had been telling you that they can't do anything
with this family while they remain in detention. That is what they
were telling you, weren't they?
MS McPAUL:
They had been making a number of views known to the Department.
MR WIGNEY:
What is the point of liaising if you are going to delay or ignore
the recommendations?
MS McPAUL:
Well, I don't agree that we have been delaying or ignoring the recommendations,
that is a particular spin that you have put on that. I'm saying to
you that we have been actively managing these cases, taking into account
all of the relevant factors for the management of the circumstances
of this particular family.
MR WIGNEY:
Okay, you tell us, apart from the liaising that we have already heard
about in evidence, what did you do to actively manage the health and
the provision of health services to this family?
MS McPAUL:
sI think you can see from the documents already that we've been working
closely with those authorities, we've tried also different arrangements
for the family. You yourself pointed to the option that we took up
to place the child and the mother in the alternative - the Residential
Housing Project for a period to see if that is an option that would
better suit the needs of that family.
MR WIGNEY:
Is that it?
MS McPAUL:
Well, I'm sure that there are other things I could point to but
I think what I'm saying here is that I reject the assertion that the
Department has done nothing at all in regard to the concerns of this
particular group of people.
MR WIGNEY:
I see. Let me take you to another document. I take you to the next
document which is a document dated 29 August 2002.
MS McPAUL:
Which number in the folder, Mr Wigney?
MR WIGNEY:
Number 18, I'm sorry.
MS McPAUL:
Thank you.
MR WIGNEY:
It is from - it is a letter dated 29 August 2002 from the Department
of Human Services' Social Justice and Country Division. Indeed, it
is from the Executive Director of that particular division of that
department in South Australia, do you see that?
MS McPAUL:
Yes, it is a letter dated the 29th, which the Department received
- 29 August, which the Department received on 2 September, as I understand
it.
MR WIGNEY:
It is addressed to a very senior officer of the Department, that is
the then acting First Assistant Secretary, right?
MS McPAUL:
That is correct.
MR WIGNEY:
It refers to a report from a doctor, and it is the report that I took
you to earlier, and you will see that I'm avoiding naming even doctors
in relation to this context, referring the First Assistant Secretary
of the Department to the fact that that doctor had recommended that
the child be removed from the detention centre and that the Executor
Director of this department in South Australia was recommending to
the Department that - or to this officer that she should seriously
consider the recommendation of that doctor, right?
MS McPAUL:
That is correct.
MR WIGNEY:
And then I want to take you to the next document, which is document
number 19, and we are now at the end of August, 30 August 2002. It
is a fax to the same officer, that is, the acting First Assistant
Secretary, from the executive director of the Social Justice and Country
Division of the Department of Human Services. It attaches an Internal
Memorandum of that department which, and you will see and I will try
and move through it quickly, deals with a number of case summaries
of detainees, including the family that we've been discussing in evidence
this morning, right, so you see that?
MS McPAUL:
On the third page of the document, most of the way down the page there
is a reference to that particular child and family, yes.
MR WIGNEY:
And amongst other things there's a reference to the fact that the
family are 'deteriorating' and that the son is 'at extreme risk of
self harm', right?
MS McPAUL:
That is the view expressed here, yes.
MR WIGNEY:
And again, repeating one of the doctors' recommendations of 'immediate
removal of family from Woomera'?
MS McPAUL:
That is correct.
MR WIGNEY:
And then there's a copy of another document annexed, which has been
sent down to the senior officer of the Department, being a summary
of children and families in the Woomera detention facility, and I
just want to take you to page 3 of that document, where there's a
summary of recommendations, and then there's two numbered paragraphs.
The first numbered paragraph, the first sentence reads:
All reports
have included urgent recommendations that the children need to be
out of the detention environment with their caregivers.
Right, do you
see that?
MS McPAUL:
Yes, I do.
MR WIGNEY:
And then over the page there's a summary at the end:
In summary,
assessment and in some cases follow up services are currently being
provided
That is being
provided by the state body that is the author of this letter ---
MS McPAUL:
Mr Wigney, before we go on, I think also in that particular paragraph
number 1, where the summary of recommendations is, you will notice
that, towards the end of that paragraph, it indicates some information
there about the families and their mothers having been moved into
the community housing in Woomera, and stating as well that this 'represents
a small step towards implementation of necessary changes' and so on,
so I think, if we are referring to the same family, there is also
some acknowledgment of some progress from their point of view as well.
Which other paragraph were you referring to?
MR WIGNEY:
The next page is the summary, referring to the fact that the state
service has been providing services to the nine families, comprising
14 children in the Woomera Detention Centre:
Despite some
attempts at intervention in the detention context little has improved,
and some of the children show a deterioration in their functioning.
And the paragraph
continues, but I wanted to direct your attention to the last sentence:
DIMIA ultimately
has discretion about acting on recommendations from either Health
-
that is the South
Australian Department of Health -
or Family and
Youth Services reports.
Right?
MS McPAUL:
I apologise, sorry, but you are asking me to refer to the last part
of that paragraph?
MR WIGNEY:
Yes, which is referring to the fact that the Department ultimately
has a discretion as to whether it acts on the recommendations that
have been made by the state bodies or not.
MS McPAUL:
I think that was the point I was trying to make to you earlier
in relation to all the relevant factors needing to be considered for
the cases.
MR WIGNEY:
And, I'm sorry, I had neglected to take you to two sentences back:
Recommendations
and expert clinical advice has been provided but to date substantially
ignored.
MS McPAUL:
That is the view expressed here.
MR WIGNEY:
I see. So we've got another person expressing this view?
MR BROMWICH:
Well, Commissioner, to be fair on this point, it needs to be noted
what was earlier said by Mr Walker about the legal requirements, if
to the extent that this report is suggesting that the law should be
ignored then it needs to qualified accordingly.
MR WIGNEY:
We dealt yesterday with the broad definition of 'immigration detention',
and the flexibility that that intended and I intend to come back to
Mr Walker's comments about that in due course.
MR BROMWICH:
Regulation 2.20 has limitations which don't enable - as I understood
Mr Walker's comments before - enable you simply to act upon a recommendation
of an outside provider. That is not the way the law operates.
MR WIGNEY:
Well, that is an interesting perspective on the law and we will come
back to it. The next document I want to take you to is document number
24. It is the minutes of a case conference by telephone held on 11
October 2002, so we are getting fairly close to present day, right,
and it is specifically called in relation to this family that we have
been discussing. Do you see that?
MS McPAUL:
Yes, that is - I have minutes here of a case conference held on
11 October 2002 by telephone.
MR WIGNEY:
Its participants include a doctor who was, as we have indicated, the
author of a report very early on in this series of documents that
I have taken you to, who was employed at the hospital at the Woomera
Detention Centre, that is doctor - the first doctor there named, right?
MS McPAUL:
This is somebody who - yes, it is not the same doctor that was
referred to in earlier documents that we have looked at today, I don't
believe.
MR WIGNEY:
In any event, there is a doctor. There is the Department Manager,
there is a psychiatric nurse employed by ACM. There is a Children's
Officer employed by ACM and there are two senior officers from the
Family and Youth Services, right?
MS McPAUL:
That is correct.
MR WIGNEY:
I only want to take you to a couple of aspects of this, but it is
a conference that was held specifically to discuss the circumstances
of this family that we have been talking about, right?
MS McPAUL:
As I understand it, yes.
MR WIGNEY:
You will see that, the second-last paragraph on the page we have the
doctor reporting now ---
MS McPAUL:
Yes ---
MR WIGNEY:
---that the father is having psychotic episodes and that he was
admitted to Brentwood, that is Glenside Hospital, some time ago 'due
to his depression, paranoia and psychosis', so he is now having psychotic
episodes, right?
MS McPAUL:
Well, according to the notes here that is apparently the circumstances
and that was some time ago.
MR WIGNEY:
Go over to the last page of the document. At the very top of the page
it is recorded as being discussed at the meeting - that is doctor
- you will have to go to the bottom of page 2 to find out - I'm sorry,
the doctor that is saying this - that:
if the family
remains in the Woomera centre their dysfunction will worsen.
Right, do you
see that?
MS McPAUL:
Are we are looking on page 3?
MR WIGNEY:
The top - very top of the last page of the document.
if the family
remains in the Woomera Centre their dysfunction will worsen.
MS McPAUL:
Yes, that is listed here.
MR WIGNEY:
The third dot point:
actual improvement
in the mental health of the family will only occur outside of detention.
Right?
MS McPAUL:
Yes, that is stated here and I think it is important to put in
context that at the time that this particular case conference was
occurring this family was in a position that, as I understand it,
they had no further business directly before the Department and could
be able to make a decision themselves to end their period of detention
and return to their home country.
MR WIGNEY:
I see, so they could have made a rational decision and just hopped
on a Qantas jet, could they, and zip back to their country of origin,
is that what you are suggesting?
MR BROMWICH:
I object to the sarcasm involved. What is being said there, Commissioner,
is that all rights of appeal by then had been completely exhausted
and they were no longer - they had never been found to be refugees
and that position had been upheld.
MS McPAUL:
It is a statement of fact regarding the case.
DR OZDOWSKI:
I would ask the counsel to mitigate his language.
MR WIGNEY:
Do you accept that you, that is, the Department, still has a duty
of care towards all persons in immigration detention, irrespective
of their immigration status?
MS McPAUL:
The Department has a duty of care for all individuals in immigration
detention.
MR WIGNEY:
Thank you.
MS McPAUL:
And we also have a responsibility under the Act, as I think you know,
to ensure that we effect the removal of unlawful non-citizens as soon
as reasonably practicable and in the case of this particular family,
as we have just stated, since some time earlier I think you may find
towards the end of August, this family was in fact one that was available
for removal. So at any point the family does have the option of choosing
to voluntarily return to their home country and that is a matter that
the Department is actively discussing with the family as well.
DR OZDOWSKI:
With all due respect, how they can choose when the man is having
serious psychiatric illness as shown in this document, how the issue
of choice is coming into it?
MR BROMWICH:
Well, Commissioner, with respect the fact that someone has an illness
may or may not determine their capacity to make such a decision, that
would require perhaps a medical opinion.
MR WIGNEY:
Well, the medical opinion is that he is suffering psychosis and paranoia
at this stage.
MS McPAUL:
I think - I mean, I don't think either you, Mr Wigney, or myself are
in a position to determine fully whether the man is capable of making
a decision about his removal. I was explaining to you the particular
circumstances that the Department finds itself in, which is that we
have a legal obligation to effect the removal of this family as soon
as we are able to do so and that is a matter that the Department is
discussing with the family.
MR WIGNEY:
Okay.
MS McPAUL:
It is our obligation to do so and we are fulfilling that obligation.
MR WIGNEY:
Let's just take up this position. Go, not to the next document, but
to document number 26. It is a facsimile message, a facsimile transmission
from the then Manager - Department Manager - at the Woomera detention
centre, 14 October 2002, and again it is referring specifically to
this family that we have been discussing this morning, right?
MS McPAUL:
Yes, it relates to this family.
MR WIGNEY:
This is the Department Manager at Woomera, right?
MS McPAUL:
It appears to be from the current Woomera Manager, yes.
MR WIGNEY:
Second-last paragraph:
I am inclined
to think that this family is effectively "unfit to travel"
and that removal from Australia, even with their cooperation, would
be very difficult to effect.
Now, this is
from the Department Manager herself, right?
MS McPAUL:
That is what is stated here, yes.
MR WIGNEY:
So it is really not an option, is it?
MS McPAUL:
No, I disagree. I think, notwithstanding the fact that it may be difficult
to effect, it is still our obligation under the Act, as I have mentioned,
to take whatever steps is possible to make that be an outcome.
DR OZDOWSKI:
But you were saying that the decision is involved with whether they
can depart, or not. Can you explain what you mean?
MS McPAUL:
Well, any family who has come - or any person who has come to Australia
as an unlawful non-citizen - may choose at any time to make arrangements
to depart Australia. The Department has an obligation to detain individuals
who have no lawful basis for being here.
DR OZDOWSKI:
Sure. So what you are suggesting, that this family can stay in
Australia as long as they choose, unless they make a decision to depart
Australia?
MS McPAUL:
No, no.
MR WALKER:
If I can clarify, Commissioner. The officers under the Migration
Act have an obligation to remove any person who has no entitlement
to remain in Australia as soon as reasonably practicable. In a practical
sense we would desire that people would cooperate with their removal
and, in many cases they do. Where they indicate that they wish to
depart Australia, we have an obligation to facilitate that departure,
quite separately from our obligation to remove. If people do not cooperate
in the arrangements for their removal, then, those removals can take
a further period of time as we make arrangements for travel documents
and so forth with relevant countries and gain the acceptance of countries
for their entry to those places.
DR OZDOWSKI:
What does 'do not cooperate' mean, in this particular instance?
MS McPAUL:
In these circumstances, we would normally ask the unlawful non-citizen
to complete travel documents to assist in making those arrangements
to their home country.
DR OZDOWSKI:
Just so as I understand, they are refusing to complete travel documents
and it is obstructing their removal?
MS McPAUL:
I believe that that is the case, yes.
DR OZDOWSKI:
But then we are coming again, I think, to the ability to complete
such documents. Reading the evidence and having met the family I'm
not confident that in the present circumstances, the man is able to
write anything.
MS McPAUL:
Well, I can't comment on that specifically myself.
DR OZDOWSKI:
Thank you.
MS McPAUL:
Yes, I mean ---
MR WIGNEY:
Might ---
MS McPAUL:
Sorry, there are other family members, yes. The mother in the family
could also assist in that process.
MR WIGNEY:
Sorry, just before we move on from this document, I want to just take
you back one page, the first page of that fax and you will see that
there are two - well, they are dot points, or dash points and indeed
the Department Manager at that stage referred to the fact that the
family's appeal to the Federal Court had been unsuccessful but she
was uncertain at this stage if they had sought to appeal to the Full
Court of the Federal Court. So at this stage, it is unclear still
whether, in fact, they were in a position to be removed.
MR BROMWICH:
Can I assist? They didn't end up filing an appeal to the Full
Federal Court, as I understand.
MR WIGNEY:
There are only a few more documents that I want to take you to
in relation to this family. The next document, document number 27,
is a document authored by the Mental Health Team employed by ACM at
the Woomera detention centre, right?
MS McPAUL:
Yes, it appears to be.
MR WIGNEY:
It is addressed to the Department Manager and the ACM Centre Manager
and various other officers. I just want to direct your attention to
the last paragraph. Now, these are the ACM officers and the Mental
Health Team who are on the ground at Woomera with this family. Do
you agree with that?
MS McPAUL:
It appears to be so, yes.
MR WIGNEY:
The Mental Health
Team are gravely concerned for the welfare of this family. It is particularly
concerning that we are not able to assess them on a regular basis
as they are currently refusing contact with the Mental Health Team.
It is alarming that they are now isolating themselves further and
resisting contact with the detention officers. Considering the son's
history of self-harm, the aggressive behaviour displayed by the family
and the recent involvement of Family and Youth Services, we are of
the opinion that the current placement of this family in the November
compound is inappropriate.
Right?
MS McPAUL:
That's what it states, yes.
MR WIGNEY:
Where are they now?
MS McPAUL:
Today?
MR WIGNEY:
Yes?
MS McPAUL:
I would need to check, but my understanding is that they are probably
in the same compound. Certainly at the Woomera centre.
MR WIGNEY:
I want to take you through to document number 30, it is a memorandum
on the letterhead of ACM and it's authored by, it would appear, a
psychologist employed by ACM. It is dated 21 October. It is again
addressed to the Department Manager and other officers at Woomera
and its subject is the family that we have been discussing this morning,
and by way of background it points out that there has been an emotional
breakdown in the family unit, still based in the November Compound.
The family have
dissociated themselves from all contact with staff and have withdrawn
into their flat. All efforts and avenues to make contact with them
have been exhausted.
Then I want to
take you over to this officer, this psychologist's opinion on the
next page:
Long term detention
has had a devastating effect on this family. Not only have the mother
and father experienced an emotional breakdown, their son's mental
state has been significantly affected. The son is currently in an
extremely fragile emotional state. This is likely to continue to influence
many areas of his life including his ability to form relationships,
his future risk of psychiatric morbidity and suicide.
Detention of
this family at the Woomera Detention Centre is no longer an option.
I strongly recommend that the family be given alternative accommodation,
preferably community based and provided with ongoing psychiatric and
psychological treatment and support. Anything less would be a failure
in our duty of care.
MS McPAUL:
That - that's a view expressed by a particular psychologist that
was employed, as I understand it, at Woomera IRPC for a short period
of time.
MR WIGNEY:
Well, these opinions are starting to mount up a bit, aren't they?
MS McPAUL:
I don't think the Department is disagreeing that there is a particular
set of circumstances that requires management for this family. I think
I've already alluded to the fact that the Department has been actively
working on this set of circumstances and this particular family's
set of issues for some time.
MR WIGNEY:
I have two more documents I want to take you to. The next document
is a document numbered 32, it is dated 5 November 2002, just on -
just less than a month ago.
MS McPAUL:
I'm sorry, is this - which document are we talking about?
MR WIGNEY:
Document number 32.
MS McPAUL:
Number 32, yes, that's correct.
MR WIGNEY:
It is a letter on a letterhead of ACM?
MS McPAUL:
Mm.
MR WIGNEY:
Authored by the Acting General Manager of Detention Services,
that is a central office person at ACM, is it?
MS McPAUL:
Yes, it is.
MR WIGNEY:
And as we have said it is addressed to you, as the Assistant Secretary,
Unauthorised Arrivals and Detention Services, right?
MS McPAUL:
That's correct.
MR WIGNEY:
I want to take you to a couple of paragraphs but no doubt you are
well familiar with this letter so please ---
MS McPAUL:
Yes, I am.
MR WIGNEY:
---take us to any additional paragraphs you want to refer the
Commission to. The third paragraph:
ACM has also
sought external assistance in the management of the family. Numerous
reports have been written by the Family and Youth Services and Consultant
Health Professionals regarding this family and their ongoing care
and management requirements. All external agency reports recommend
that the family remain together and receive ongoing treatment at least
in another Detention Centre to Woomera, but preferably in an alternative
place to detention.
Concerns in
respect of this family have been raised previously. My professional
experience in dealing with risk factors for self harm by incarcerated
individuals, suggests that the son presents as an extremely high risk.
Health services staff are of the opinion that the deterioration of
this family has reached the level where the options and management
strategies available to ACM are insufficient to give a reasonable
level of comfort that the risks can be adequately managed. The company
does not have the capacity to influence many of the factors contributing
to their declining mental and emotional state. Increasingly intrusive
control and monitoring strategies which may be able to be implemented
have the potential to further exacerbate their condition.
I understand
ACM's contractual requirements for the management of the care and
well being of detainees and raising the concerns is not intended to
mitigate these responsibilities. In contrast, I believe ACM also has
a responsibility to raise issues where we believe serious concerns
are held for the safety and welfare of detainees and where the solutions
available to us as the contracted service provider are unable to provide
an effective response.
Now, this is
a senior officer of the Department's service provider telling you,
I suggest, in effect, that ACM are no longer able to deal with this
individual in Woomera, that is what they are saying, aren't they?
MS McPAUL:
I think the letter makes reference to a number of things that
have happened in relation to this particular family including, as
it notes there, the ongoing relationship with FAYS and the other mental
health services teams that have been assisting the family throughout
the year.
MR WIGNEY:
I'm sorry, could you just repeat that answer?
MS McPAUL:
Yes, I said that the letter makes reference to a number of factors,
including the ongoing work that's been undertaken with Family and
Youth Services and other health team members throughout the better
part of the year.
MR WIGNEY:
It is saying they can't do anything else, isn't it?
MS McPAUL:
It's saying a number of things and the Department, as I've already
said, is - has been actively managing this case and considering what
options might be available to the family. One of the options, of course,
as we have already alluded to, is for the family to return home, and
there have been successful returns of other families to the country
where this family comes from. So the Department is looking at a range
of things that might be appropriate in handling this family.
MR WIGNEY:
Well, accepting for present purposes, that this document is referring
to a range of things as you say, one of the range of things that it
is referring to is to the fact that ACM, the people that are running
this facility at Woomera, are no longer able to care for this family
in that facility. That is what it is saying to you, isn't it, it is
addressed to you?
MS McPAUL:
Yes, it is addressed to me.
MR WIGNEY:
It is saying amongst other things that, isn't it?
MR KELLY:
Mr Wigney, could I just ---
MR WIGNEY:
No, I would rather like Ms McPaul to answer the question, please.
MR KELLY:
Well, I was going to assist the Commissioner in being able to
respond to your request but if that is your preference I will leave
it to Ms McPaul.
MR WIGNEY:
Well, I might ask Ms McPaul to answer it and then you can provide
whichever assistance you - whatever assistance you think you can provide.
MS McPAUL:
The Department has a duty of care to all detainees including to
the particular ones mentioned in this family and as you know that
duty of care is also exercised with the assistance of the outsourced
services provider. I think it is appropriate in cases where the services
provider feels that they would like to draw to our attention certain
aspects of the case management for that particular group of people
that they do so and this letter does that.
MR WIGNEY:
I see and that is your answer to my question, is it?
MS McPAUL:
For the time being, yes.
MR WIGNEY:
We might just see what Mr Kelly wants to add then.
MR KELLY:
I just wanted to add a couple of things. One of the questions
you asked earlier about is where is the family currently housed. Yes,
they are still currently housed or accommodated in the November compound
at Woomera but the Department and ACM have also attempted to do is
to offer them the change from the Woomera environment to Baxter. They
have declined to take up that offer.
I mentioned that
earlier but it has also been a recent offer yet again. We have also
offered the mother and child respite care in the Housing Project should
they wish to take that up as well and they have chosen to decline
that as well. So there are other elements that the Department and
the service provider are looking at in relation to this particular
family as well.
DR OZDOWSKI:
Would you know why they declined going to Baxter, because I had
a lengthy conversation with them about this. Would you know what the
reason was?
MR KELLY:
I don't have that information, Commissioner, but I would be able to
obtain that information for you during the course of today.
DR OZDOWSKI:
Thank you.
MR WIGNEY:
If I can take you back to some reports we have largely already
visited in any event but the Department had been receiving advice,
in particular, advice from doctors retained by or attached to the
state authorities to the effect that removal to another detention
environment is not going to have any positive effect on the treatment
of this family. That is right, isn't it?
MS McPAUL:
Well, I think there is various advice in the information that
we have looked at today including some options suggested by the health
workers for alternative detention, variously the child being placed
outside or placed with the family somewhere. I think there are a range
of views being expressed to the Department.
MR KELLY:
I think also in clarification we don't have any other alternatives
than accommodating them in a detention environment. The issue was
how - what that detention environment looks like but it is still a
detention environment because that is the legislative framework that
we operate within.
MR WIGNEY:
I don't know whether you were present yesterday but we went through
the definition of immigration and detention in the Migration Act and
it provides, as I am sure you are well aware, a very broad definition
of immigration detention which includes being held by or on behalf
of an officer in another place approved by the Minister in writing.
That is, effectively, it can be anywhere approved by the Minister
in writing.
MR KELLY:
That is correct. I didn't disagree with that. All I said was it
is still a detention environment.
MR WIGNEY:
Yes, but it does not have razor wire and guards in uniforms and
those sorts of things, does it?
MR BROMWICH:
Well, notwithstanding the rhetoric that is being presented now,
Commissioner, the fact is the definition refers to being held. That
is a form of detention and it is not the case that you can have someone
particularly in these circumstances being held just anywhere and that
seems to be the suggestion being made by counsel assisting. It is
plainly wrong.
DR OZDOWSKI:
Personally, I beg to disagree with you. I have visited a number
of people who are in so-called detention, in which they are quite
free to move and so on.
MR BROMWICH:
Yes, but we are not talking about any person, we are talking about
people with particular problems. They are not going to be held just
anywhere.
MR WIGNEY:
I am not suggesting they just be held anywhere, put out on the street.
I am suggesting that alternative arrangements can be made within the
definition, the present definition, of immigration detention that
would be significantly different to the environment that exists to
this day in the Woomera detention facility.
MS McPAUL:
I think it would be useful perhaps just to also say to you that -
and reiterate the point that I made earlier - that the Department
has been actively managing this case and looking at a range of options
for the family over the course of the year. As I have said, the mother
and child have for periods been in the Residential Housing Project.
We also offered the family the opportunity on more than one occasion
to move to the Baxter immigration detention facility where as you
know there are particular arrangements in place for families there.
The Department
is also at the present time considering other options in consultation
with [the Department's Woomera Manager] and other departmental officers
that might be suitable for the family but whatever option we put in
place must also operate within that statutory framework and in the
meantime the Department is still also obliged to work with this family
to effect its - the family's removal from Australia. So there are
a number of different things that are happening and I think the suggestion
that the Department is either negligent in its duty of care or failing
to take appropriate action to resolve the circumstances for this family
is one that does not stand up under the basis of the information provided
here today.
MR WIGNEY:
I see. Well, do you want to share with us all here today what
other information, you know, you want to tell us about in relation
to this family and ---
MS McPAUL:
I am referring to the documents that we have looked at.
MR WIGNEY:
This letter is addressed to you, 5 November 2002.
MS McPAUL:
Yes.
MR WIGNEY:
That is almost a month ago. Did you reply to it?
MS McPAUL:
I have a number of - I have had some conversations with [the ACM Acting
General Manager of Detention Services] in relation to this family
and as I said we are actively looking at other options for the family
which I have just mentioned to you.
MR WIGNEY:
Did you reply to this lestter in another letter?
MS McPAUL:
I have not yet signed a letter to [the ACM Acting General Manager
of Detention Services] directly in response to this although as I
have said we have had some discussions and the Department is actively
looking at other options for the management of this family which I
have already referred to.
MR WIGNEY:
You didn't happen to set out in a letter to this person the other
options that were being explored by the Department?
MS McPAUL:
As I said I haven't signed any letter at this point.
MR WIGNEY:
This has all just occurred on the telephone, has it? Is that right?
MS McPAUL:
I have had a conversation with [the ACM Acting General Manager
of Detention Services], as I said, yes.
MR WIGNEY:
Have you been up to Woomera since 5 November?
MS McPAUL:
No, Mr Wigney, I have not.
MR WIGNEY:
There is one more document I want to show you please. Now, I should
just explain, lest it be suggested otherwise, that the only reason
that this document is not in the bundle that we have been going through
today is that it has only been received in recent days by the Commission
and its use has only been cleared. The ability to use it in this Inquiry
has only been cleared in recent days. So in the event that there is
any suggestion that there is any subterfuge, I put that on the record.
This is a letter, you will see, from the registered psychologist at
- employed by ACM at the Woomera detention facility, do you see that?
MS McPAUL:
It appears to be from a registered psychologist to the Director of
Family and Youth Services, yes.
MR WIGNEY:
Is she still employed as the registered psychologist at Woomera, to
your knowledge?
MS McPAUL:
I would need to confer with my ACM colleagues as to whether she is
still there.
MR WIGNEY:
In any event, this letter is addressed to the Director of Family and
Youth Services and as we have heard, that is part of the Department
of Health Services in South Australia.
MS McPAUL:
That is right.
MR WIGNEY:
That being the department that has responsibility ---
MS McPAUL:
Department of Human Services.
MR WIGNEY:
---for amongst other things, the protection of children.
MS McPAUL:
That is correct, yes.
MR WIGNEY:
I am writing
to you to express my concern at the level of distress amongst the
children at the Woomera Detention Centre.
Then the author
sets out the Children's Protection Policy and then states as follows:
I accuse DIMIA
-
that is the Department
-
and the Federal
Government of emotional abuse of children at the Woomera Detention
-
or
WIRPC
which is the
Woomera Immigration Reception and Processing Centre:
and RHP.
That is the Residential
Housing Project, right?
MS McPAUL:
That is the way it is constructed here, yes.
MR WIGNEY:
So, I accuse DIMIA and the Federal Government of emotional abuse of
children at the detention centre at Woomera and the Residential Housing
Project.
DIMIA and the
Federal Government continue to ignore reports and recommendations
by health professionals stating clearly that continued detention of
children is placing them at risk of further self harm and emotional
pain to the extent that their psychological development is in jeopardy.
Right? Do you
see that?
MS McPAUL:
That is what is written here, yes.
MR WIGNEY:
By the psychologist who at least as at 8 November 2002, when this
document was authored, was at the facility in Woomera, right?
MS McPAUL:
I believe this psychologist was working for a short period of time
at the centre and had not done so previously.
MR WIGNEY:
There is then a reference to a number of children in this document.
MS McPAUL:
Mm.
MR WIGNEY:
Including, relevantly, you will see at the bottom of page 2, the
child of this family that we have been discussing in detail this morning.
MS McPAUL:
Yes, it makes reference to that child.
MR WIGNEY:
It refers to the fact that he
is completely
dysfunctional for his age and experiences bouts of depression and
uncontrollable rage. He is in the process of developing borderline
conduct traits. High risk of suicide.
Over on the last
page of the document:
These children
cannot be treated in the detention environment. Helping the children
is inseparable from the safety and well being of the parents who equally
require appropriate mental health interactions and appropriate psychiatric
care.
These children
continue to suffer severe mental health problems.
This is a medical
and psychiatric emergency.
Have you seen
this letter before?
MS McPAUL:
I'm aware of the letter, yes.
MR WIGNEY:
I suppose you would say this is just another opinion?
MR BROMWICH:
Sorry, is that a question?
MR WIGNEY:
Yes, I suppose you would say, would you, that this is just another
opinion, or have you got another piece of information or a comment
or an opinion you want to share with us in relation to the contents
of this document?
MR BROMWICH:
I object to this, there's no reason to treat any witness before this
Commission in this fashion. She has been asked to comment on someone
else's letter, all she can do is agree that the document says that.
DR OZDOWSKI:
Please, could you rephrase your question?
MR WIGNEY:
Do you have any comment you wish to make to this Commission about
the contents of this letter and the present circumstances that this
family is in, including the child, in the Woomera detention facility
today?
MS McPAUL:
I am aware of this particular letter. As I understand it, the issues
being raised in this letter are a matter that are being currently
investigated by the Commonwealth Ombudsman, and we are co-operating
with that Inquiry.
MR WIGNEY:
What are you going to do?
MS McPAUL:
In relation to what thing?
MR WIGNEY:
In relation to what this psychologist says is 'a medical and psychiatric
emergency'. What are you going to do?
MS McPAUL:
I think the views expressed here are no different to some of the other
matters that have already been drawn to our attention in the earlier
documents. I mean, I think if you are suggesting that this is in some
ways unusual information or advice that we would not be aware of,
seems to overlook the fact that I've already pointed to, that the
Department has been working actively to manage all of the circumstances
that need to be considered in relation to the case management of this
family throughout the year.
DR OZDOWSKI:
I think possibly we would be coming close to a lunch adjournment so
if you could conclude, counsel assisting?
MR WIGNEY:
I have no further questions in relation to this particular case study,
and I should indicate that I will move on to, hopefully with some
more brevity, the second case study that we want to address this afternoon.
DR OZDOWSKI:
That we will do it, yes, after lunch. Now, are there any other issues?
MR BROMWICH:
Commissioner, in relation to this particular matter there is some
additional material that I think needs to be before the Commission.
In part, that will depend on Ms McPaul but also Mr Illingworth may
able to assist in relation to some further information which is relevant
to this case.
DR OZDOWSKI:
So you are calling Mr Illingworth to take the stand?
MR BROMWICH:
Yes, please.
DR OZDOWSKI:
Yes. Would you please take also an affirmation?
MS MOORE:
I think he has already been ---
DR OZDOWSKI:
He has been, okay.
MR BROMWICH:
Mr Illingworth, what is your position within the Department?
MR ILLINGWORTH:
I'm the Assistant Secretary, Onshore Protection Branch.
MR BROMWICH:
And you have made sure you have got some information as to the case
processing history of this particular family that has been discussed
this morning?
MR ILLINGWORTH:
I have, yes.
MR BROMWICH:
I think it is the case that the family first arrived in Australia
in April of 2001?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
They lodged a protection application in July of 2001?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
A delegate of the Minister found that they were not refugees some
five weeks later in early September 2001?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
Subsequently, an application for review was made to the Refugee
Review Tribunal?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
In mid February 2002 that Tribunal, which is an independent Tribunal
from the Department, affirmed the delegate's decision and also found
that this family were not refugees?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
In that short time, was a determination reached on the basis of lack
of credibility in the claims made?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
In short form, the Tribunal found that the mother had fabricated her
claim to create a case for refugee status?
MR ILLINGWORTH:
There had been embellishment and new claims emerging throughout the
process, I think that was the - the finding of the Tribunal.
MR BROMWICH:
And the husband had not been frank or truthful in his claims and was
lacking in credibility?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
Subsequently, an appeal was lodged to the Federal Court?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
That appeal failed in August of 2002?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
There has been no appeal lodged to the Full Federal Court?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
And the position now reached is that this family has no other avenues
for appeal, is that correct?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
And under the legislation the family is required to be removed from
Australia?
MR ILLINGWORTH:
That's correct. Required to be detained and removed as soon as reasonably
practicable.
MR BROMWICH:
And that, I think as you already said, the primary determination has
been in place since September of 2001?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
Sorry, Commissioner, I'm just finding this one here. If I might just
go back to Ms McPaul, in relation to the documents, if you could look
at tab 1?
MS McPAUL:
Yes.
MR BROMWICH:
That was the first document you were taken to by Mr Wigney this morning?
MS McPAUL:
As I understand it, yes.
MR BROMWICH:
One of the points that was omitted by Mr Wigney was on the fourth
page of that document in the third paragraph.
MR WIGNEY:
The 4th ---
MR BROMWICH:
You see, in particular there's a sentence there where the psychiatric
nurse stated that
this child has
had contact with other youths who have spoken about the 'value' of
self-harm behaviour/threats and the possibility that these might assist
in processing visa applications.
MS McPAUL:
Yes, that is written here.
MR BROMWICH:
Yes, thank you, Commissioner.
DR OZDOWSKI:
Is that all?
MR BROMWICH:
Yes, for the moment, yes.
DR OZDOWSKI:
For the moment?
MR BROMWICH:
We've only had notice of these particular cases, that is since late
last week, we may or may not have further information we may need
to place before the Commission, but at that stage that is all I have.
DR OZDOWSKI:
So this is an offer to provide to us, in a reasonable timeframe, further
information after the hearings are finished?
MR BROMWICH:
Yes.
DR OZDOWSKI:
If there are any additional documents.
MR BROMWICH:
Yes, thank you, Commissioner.
DR OZDOWSKI:
Now, could I ask counsel for ACM, any submissions at this stage?
MR RUSHTON:
No, not at this stage, Commissioner.
DR OZDOWSKI:
In this case, it is time for a lunch break. We will adjourn and we
will meet again 1.30 in this room, thank you.
LUNCHEON BREAK
[12.30pm]
RESUMES [1.35pm]
DR OZDOWSKI:
Yes, 1.30. So I think we are ready to go. So I think everyone is ready,
we can start afternoon session. I know Ms Godwin is back with us,
welcome, and I will ask Mr Michael Wigney to start with a statement.
MR WIGNEY:
Thank you, Commissioner.
MR BROMWICH:
Commissioner, just before you do, just one thing, in relation to Ms
Godwin's presence, she is here. She really is quite unwell and if
health was her primary consideration she wouldn't be here at all.
So she is here to assist but she really, in one sense, shouldn't be,
but she is concerned to assist the Commission.
DR OZDOWSKI:
Yes, I do appreciate it. Mr Wigney.
MR WIGNEY:
Ms McPaul, if I can just continue to direct questions to you but,
of course, as we have indicated, feel free please to refer a question
on to one of your other colleagues or to Ms Godwin if you think it
more appropriate.
MS McPAUL:
Yes.
MR WIGNEY:
Before we come to the second case study which I hope I will deal with
with some considerable more brevity than the first. It may perhaps
be useful, at this stage, to deal with some general principles, really
by way of explanation for why we have selected these case studies
in the first place. Now, broadly speaking, of course, the children
who find themselves in immigration detention find themselves to fall
within broadly two categories. One is unaccompanied minors, that is,
children under the age of 18 who arrive in Australia without a parent
or an effective guardian and also the other category being children
that arrive with their parents. Right?
MS McPAUL:
That's correct.
MR WIGNEY:
And what we have been dealing with, at least this morning, and what
we will continue on this afternoon with is the situation of those
children who arrive with their parents and hopefully later this afternoon
we may get on to some of the issues that arise in relation to the
unaccompanied minors. Now, one of the reasons - really the main reason
that we have raised these case studies and asked the Department about
them is really to explore some of the submissions that are made in
the Department's submission to this Inquiry and I think yesterday
when you were present we considered Article 3 of the Convention for
the refugee - could I withdraw that - Convention on the Rights of
the Child and concerning 'the best interests of the child' being a
principal consideration in relation to administrative action which
may impact upon a child, right?
Now, as I understand
it, from the Department's submissions, one of the submissions - and
I invite you to correct me if I'm incorrect about this - one of the
Department's submissions as to why children are detained, or must
be detained is the following effect that:
In almost all
cases it will be in the child's best interests to remain with their
parents.
Is Step One of
the argument, right?
MS McPAUL:
That's one of the considerations, yes.
MR WIGNEY:
Because the current regime - and that is the Act and the Regulations
- requires the parents, as unlawful non-citizens, to be detained,
and it follows that it is in the best interests of children to be
detained with their parents in the detention facilities. Now, does
that do justice to your submissions?
MS McPAUL:
Yes, I think it - just to be clear, yes, I think it's our understanding
that it would be preferable for the children to be located with their
parents, yes.
MR WIGNEY:
And indeed as you correctly point out in your submissions, the Convention
on the Rights of the Child also contains a number of articles that
also suggest that it is in - the primary care giver ought be the parents
and the like, and I don't need to take you to those specific items?
MS McPAUL:
No, that's - that's right, yes.
MR WIGNEY:
Now, is this - that is, that it is in the child's best interests to
remain in a detention environment with the parents - something that
the Department assumes in relation to each non?citizen child that
comes into Australia, or is it something that is assessed by the Department
on a case-by-case basis?
MS McPAUL:
As I understand it, the law requires us to detain all unlawful
non-citizens which would include children and their families, but
we would and do make assessments on a case-by-case basis where it
may be appropriate in some circumstances to review that.
MR WIGNEY:
And do you assess on a case-by-case basis whether it would be in the
best interests of the child to remain with the parents when the parents
are required to be in a detention environment such as Woomera?
MS McPAUL:
Well, that's one - one of the factors that we would be looking
at, yes.
MR WIGNEY:
And is that situation, that is, the best interests of the child, continually
monitored by the Department?
MS McPAUL:
Are you asking us whether we have a case management approach to
- to looking at the welfare of children in detention? If you are,
then I think that the Department does take an active role in ensuring
the welfare of all children is monitored and appropriately addressed.
MR WIGNEY:
Whether - let me just put some general propositions to you. The proposition
that it is or remains in the child's best interests to remain with
their parents in a detention environment depends to a certain extent,
does it not, on the family in detention being able to continue to
function as a family unit?
MS McPAUL:
If the child is with the parents in detention, I think we've already
indicated that we would expect the parents to have a role in parenting
the child. Where the child remains - and the circumstances relating
to the needs of the child - is, I think as Ms Godwin said yesterday,
one of a number of matters that we would take into account.
MR WIGNEY:
But I suppose the point is this, in general terms, that if the family
unit breaks down in the detention facility or as a result of the environment
in the detention facility and the child's parents are no longer able
to or capable of looking after their child, it may no longer be in
the child's best interests to remain in the detention environment
with the parents?
MS McPAUL:
If the Department has a concern about the parenting capacity of any
individual set of parents for their child then that's a matter that
we may seek to discuss, in the case of Woomera, with our colleagues
in the South Australian Department of Human Services and FAYS and
seek advice.
MR WIGNEY:
Well, you are aware of course, are you not, and please tell us if
you are not - I'm sorry, was there something else you wanted to add?
You are aware, of course, and please tell us if you are not that this
Inquiry has heard public evidence to the effect that from a large
number of experts to the effect that the environment in the detention
facilities including Woomera, Port Hedland and Curtin relevantly does
have a destructive effect on the family structure and the ability
of families or parents to continue to parent. You are aware of that,
are you?
MS McPAUL:
We're aware that there has been a number of public submissions making
those remarks, yes.
MR WIGNEY:
And if I can just - to assist you, the Department, I withdraw that.
The Commission heard evidence, for example, from a Dr Ros Powrie,
from the Australian Association for Infant Mental Health and she said,
amongst other things, and this was at the Adelaide hearings of the
Commission on 1 July this year, and I will just quote to you part
of her evidence:
But overridingly
it seems that detention has a pathogenic effect on parenting. The
institutional experience of parents, as has already been mentioned
here, very much undermines their ability to care for their children.
They cannot provide for children's emotional needs while they are
in a situation of deprivation themselves. So that kind of problem
is passed on to children.
That is one piece
of evidence and I'm obviously not going to stand here and read all
of the evidence to you, but there is one other passage that I would
like to take you to.
Now, this evidence
again was taken - again it was public evidence taken again at Adelaide
on 2 July this year from Dr Jon Jureidini, who was the Head of the
Department of Psychological Medicine at the Women's and Children's
Hospital and indeed I think it was the situation that Dr Jureidini
provided one or more of the reports that we examined in the course
of the case study this morning. Dr Jureidini said, amongst other things,
that one of the systematic effects of detention in such a hostile
environment is that ordinary people break down in their functioning:
People who are
competent to function as parents in a reasonably sympathetic or even
an ordinarily hostile environment, in that very hostile environment
lose the capacity to exercise their normal parental responsibilities.
So effectively they are failing as parents. It is kind of a secondary
failing in that they are not - it is not something about them that
is making them fail but their failure as, you know, their breakdown
as adults. The most significant portion of that from our point of
view as child psychiatrists is that they then fail as parents.
Now, we have
been at length this morning through one case study. Do you accept
as a fact that the environment in these detention facilities such
as Woomera, Port Hedland, and Curtin when it was commissioned, had
a detrimental effect on the family unit and the ability of parents
to parent?
MR WALKER:
If I could just say something here, Mr Wigney? I think that both
our Minister and the Prime Minister have made statements that detention
isn't the most desirable circumstance for families but we have a statutory
framework that we operate within. It is not their preferred option
but the law requires unlawful non citizens to be detained unless they
are granted a visa and there are quite specific statutory criteria
that must be satisfied. In administering detention we do it to the
best of our ability, and I think that we believe we do quite satisfactorily
overall, take care of people within a detention environment, but we
are working within a statutory framework. Asking us what is or what
is not desirable I don't think is appropriate for a public servant.
DR OZDOWSKI:
Well, I disagree with you. We are not asking you to comment on government
policy. What we are asking you to comment on is your experience as
a person responsible for running these particular institutions and
being there on a daily basis, what your experience - what your assessment
is in terms of what is happening to families over there. So it is
nothing to do with government policy.
MR BROMWICH:
Well, Commissioner, the question was, Do you accept that there is
a detrimental effect? Whether any departmental officer does or does
not accept that there's a detrimental effect is in one sense quite
beside the point. They have, as Mr Walker has indicated, a legal framework
within which they have to operate.
DR OZDOWSKI:
I accept the legal framework which exists but what I'm trying to do
is to establish fact, what impact on families this framework is having
and people who are responsible for operations should be able to provide
me with the information.
MR BROMWICH:
Except that question wasn't directed to a fact, that question was
directed to an opinion as to whether or not something was or wasn't
detrimental. Now, whether it is or isn't detrimental is something
that the Commission will doubtless make some finding about but the
opinion of this officer as to whether or not that is the case, in
my submission, is neither here nor there.
DR OZDOWSKI:
Counsel, could you ask about the fact?
MR WIGNEY:
Well, I suppose if the Department does not wish to respond to that
or comment on it then so be it. Can I ask Mr Walker who responded
to this question, that, accepting for present purposes the existing
statutory and regulatory framework, do you accept that detention,
immigration detention, in Australia ought be humane?
MR WALKER:
Yes, and we believe that we do operate within those parameters. We
do attempt to make it overall humane. I should also clarify before,
what the Minister and what the Prime Minister both said is that they
don't like detention but it is required by the law. It is not something
that they prefer to see people in but it comes back to overall management,
a statutory framework for the orderly entry of non-citizens into Australia.
MR WIGNEY:
Does the Department accept that immigration detention in Australia
ought be managed flexibly by the Department?
MR WALKER:
It is. We would argue that it is. We do make individual assessments.
There are circumstances where people are held in a variety of different
detention arrangements depending on their needs.
MR WIGNEY:
You see, you wouldn't disagree with this proposition, would you, that
based on the definition of immigration detention, the Department has
considerable flexibility as to the conditions of immigration detention,
be it alternative detention or be it the conditions in these specific
detention facilities?
MR WALKER:
There is flexibility within the statutory framework but there are
factors that go to the individual needs and circumstances of particular
detainees and also in the orderly management of detention services.
MR WIGNEY:
I have just read some passages from at least two - the evidence of
at least two experts in child psychology and psychiatry to the effect
that the detention environment may be deleterious to parents and as
a result the children that they parent. Does the Department have any
expert advice to the contrary?
MS McPAUL:
I think it's very important not to make a generalisation about the
factors that might contribute to a person's mental health. The documents
that you are referring to point to one factor that might go to the
state of a person's mental health at a given time but there are any
number of factors that might also be at play some of which have no
bearing - some of which occurred well before the individuals might
even have come to Australia.
MR WIGNEY:
I will ask the question again. Does the Department have any expert
evidence to the contrary?
MR WALKER:
I think it is important to bear in mind, as I said before, that we
are working within a particular statutory framework.
DR OZDOWSKI:
Could you directly answer the question. The question is very simple.
MR WALKER:
I'm not aware that we have ---
DR OZDOWSKI:
Thank you.
MR WALKER:
---but once again, it goes to the point, we are working within
a statutory framework. We are charged by the Government to administer
detention. That is not necessarily something that would necessarily
arise in a broad sense within our administration. We may have advice
in particular circumstances dealing with particular cases and we make
arrangements accordingly.
MR WIGNEY:
Can I put a factual proposition to you and ask you whether you do
or do not agree with it. Of course it is a matter for you. If you
don't choose to comment, so be it, but the factual proposition I put
to you is that, in many cases, the Department's experience is that
in many cases, over the past few years, the detention environment
has had a deleterious effect on the mental health of parents, effectively
making them unable to parent and care for their children. Now, do
you choose to comment or not in relation to that proposition?
MS McPAUL:
I don't think there is anything further I can add on that. It is a
view that you are expressing.
MR WIGNEY:
I'm asking you. We are a Commission, we are an Inquiry and we are
interested in your views about these matters. Do you care to comment
on it or not?
MS McPAUL:
I think, as I've said before, there are many factors that go to the
mental health of individuals and, while there may be some families
that appear not to cope as well as others, there are many families
who are in detention who do not fit the description of the documents
that you have just read to us.
MR WIGNEY:
Just excuse me. I think we've already really explored to the extent
necessary, the availability to the Department and the Minister of
alternative forms of detention, that is alternative to the particular
facilities, such as Woomera, Port Hedland and Curtin and in particular
the fact that detention can take place in any place that the Minister
so directs. Can I just deal with one of the other alternatives to
detention? I suppose - well, I was going to actually deal with the
availability of bridging visas but I may just come back to that in
the context of unaccompanied minors. I think we might just try and
go through the other case study now as quickly as we can.
We want to address
now the case study that is referred to as Case Study C on our list
of case studies and hopefully, it is the case study that appears in
the beginning of the folder that you were given this morning.
MS McPAUL:
It is somewhere in the middle of mine.
MR WIGNEY:
I'm sorry. I must have a different folder, the middle of the folder,
I'm sorry.
MS McPAUL:
There is only one set of documents, no tabs.
MR WIGNEY:
Yes, sorry, I have a different folder. It is the middle of the
folder, Case Study C. Now, unlike the case study we considered this
morning I think this bundle of documents relevant to this case study
is numbered by page in the bottom right-hand corner of the document
and I will make reference to those pages. Somewhat confusingly there
are other numbers so ---
MS McPAUL:
Okay, we will see how we go.
MR WIGNEY:
Try and just deal with that number. I have misled you.
MR BROMWICH:
We seem to be looking at a document that has got a textaed number
on the top right-hand corner - number 1 to 45 after the first page.
MS McPAUL:
Is that the one you are talking about?
MR WIGNEY:
Mr Bromwich has once again been both astute and accurate and I have
been inaccurate. Apparently, the version you have is numbered in the
top right-hand corner in large texta, is that right?
MS McPAUL:
Yes.
MR WIGNEY:
Let us try again. In any event, this particular case study concerns
- have you had the opportunity to look through those documents or
are you familiar with the family in this case study?
MS McPAUL:
I am familiar with the family.
MR WIGNEY:
I am sorry?
MS McPAUL:
I am familiar with the family.
MR WIGNEY:
Now, again, in the interest of brevity, I am not going to go to every
document in this folder and I invite you of course again to refer
not only to any documents that I don't expressly refer to, but any
passages that I don't refer you to as we go through them. This family
in this case study comprises a father and a mother, an elder daughter
who I will try and refer to as daughter 1, she is currently, I think,
about 18, a second daughter, who I will refer to as daughter 2, who
is currently 15, and a son who is currently 4, right?
MS McPAUL:
That is my understanding, yes.
MR WIGNEY:
The situation is that this family has been in detention at Woomera
since 1 January 2001 subject to - I think the mother and the children
spent some period of time at the Housing Project in Woomera.
MS McPAUL:
Yes, that is correct. I am not sure what date you said they were detained
on but in any event, they have spent some time at the Housing Project.
MR WIGNEY:
Essentially, they have been ---
MS McPAUL:
Since July of this year.
MR WIGNEY:
They have been in immigration detention, in any event, since 5 January
2001, it appears.
MS McPAUL:
That seems to be our information as well, yes.
MR WIGNEY: Now,
if we can just go through some of the documents and as I said I will
try and do so as quickly as possible although as fairly as I can. The
first document I think in the bundle is a report authored by a particular
doctor who is a - referred to as a Consultant Child and Family Psychiatrist
and it is dated 12 February 2002, do you see that?
MS McPAUL:
Yes, I can see that.
MR WIGNEY:
It is apparent from the first page of that report or document that
it concerns this family the subject of the case study and involves
a psychiatric report as to their mental health at the time of the
report.
MS McPAUL:
At the time of the report, yes.
MR WIGNEY:
Now, you will see as you go through the document, and I don't propose
to take you to all of the assessments, but each of the members of
the family are assessed and really it is sufficient unless you wish
to refer to anything more specific that on the fourth page of the
document there is an overall assessment of the family just above the
sub-heading, Recommendations, and it is to this effect that:
Our assessment
is the whole family are suffering varying degrees of post traumatic
stress, depression and suicidality, which are directly attributable
to their prolonged time in Woomera IRP.
Do you see that?
MS McPAUL:
Yes, that is here.
MR WIGNEY:
Now, I think as we have indicated they were - they commenced being
in immigration detention on 5 January 2001 and it would appear that
at least up until the time of this report they had remained the entire
time in the detention facility at Woomera rather than the alternative
housing scheme.
MS McPAUL:
I think - yes, it is also important to realise that this family had
a primary decision taken on their case in the middle of March 2001
so at any time from that period onwards they could have chosen to
bring their detention to an end and return to their home country.
MR WIGNEY:
Yes, but ---
MS McPAUL:
So the reason for their prolonged detention was action that they had
chosen to take.
MR WIGNEY:
Our concern, at least for present purposes, is the immigration detention
and their detention in immigration. I think you agreed before the
luncheon ---
MS McPAUL:
That is the point that I am making. The reason why they remained in
immigration detention is because they chose to pursue some options
through review and court processes in Australia.
MR WIGNEY:
You accept, do you not, that - as I think you did before the luncheon
adjournment - that irrespective of the immigration status of an individual,
the Department owes a duty of care to anyone that is in immigration
detention?
MS McPAUL:
That is true. The duty of care remains but I think it is important
to recognise that again, this case as with the others - it is certainly
within the scope of the family's decision-making to make a choice
to go home.
MR WIGNEY:
It is also within their legal rights to challenge the decision, the
primary decision, is it not, in the Courts?
MS McPAUL:
That is right. It is a choice.
MR WALKER:
It certainly is but it is within the context of being well aware that
they are required to be detained.
MR WIGNEY:
Sometimes applicants are even successful in challenges of primary
decisions, aren't they?
MS McPAUL:
They are.
MR WALKER:
Of primary decisions, yes.
MR WIGNEY:
Now, just returning to the report I just wanted to direct your attention
to one other passage. You will see under the recommendations, recommendation
number 1, and I suppose this picks up with a point that you have just
raised that ---
MS McPAUL:
We are on page 4, are we? Sorry.
MR WIGNEY:
Yes. Page 4. The first recommendation is that:
within the current
context of mandatory detention of asylum seekers in Australia that
clarification of this family's immigration status occur as soon as
possible to remove uncertainty about their future and clarify their
options.
Right? Now, at
this stage, at least, the primary decision had not been made.
MS McPAUL:
Sorry, which page are we looking at?
MR WIGNEY:
Page 4 of the bundle. I am sorry, you are quite right. You said March
2001. The primary decision had been made by this stage.
MS McPAUL:
Had been made well and truly.
MR BROMWICH:
11 months earlier.
MS McPAUL:
Yes.
MR WIGNEY:
Now, the second numbered paragraph:
While this is
occurring, the family be released from detention to live in the community
with culturally appropriate supports. This should occur immediately.
The severity of depression, despair and suicidality in the father
and both girls must be considered a psychiatric emergency. The youngest
child is also traumatised by ongoing exposure to violence in the centre
and affected by his parents' depression. This should not be further
prolonged.
Then it is recommended
that:
If this cannot
occur immediately the family should be moved to a less harsh and isolated
centre where they can receive visits and have adequate medical and
psychiatric treatment and follow up.
Now, that is
a report that is dated 12 February 2002. I think to be fair it is
unclear when that report was provided to the Department but it seems
to have been provided at least by July of 2002.
MR BROMWICH:
I should point out, Commissioner, for completeness that by July
2002, not only had the primary decision been adverse, the Refugee
Review Tribunal had been adverse and the Federal Court decision I
think had been adverse.
MR WIGNEY:
Now, the next document I want to refer you to commences at page six
of the bundle and it would appear to be a letter from a doctor employed
at the Woomera Hospital, and it is addressed to the then DIMIA Manager
at the Woomera Detention Centre, do you see that?
MS McPAUL:
Yes, that is correct, I have that here.
MR WIGNEY:
He commences the letter by stating that he is writing to inform
the Department Manager of his concern at the level of mental illness
and depression amongst the members of the family that is the subject
of this case study. Do you see that?
MS McPAUL:
Yes, that is written here.
MR WIGNEY:
Then, on the second page he indicates that in his opinion:
Each family
member is exhibiting some form of mental illness
and that the
level of illness is particularly severe in relation to the two daughters.
MS McPAUL:
The first paragraph on that page makes reference to that matter,
yes.
MR WIGNEY:
Yes. Sorry, I should - can I just take you back to one passage
which is perhaps also relevant back on page 1 and, that is, that the
family at least ---
MS McPAUL:
Page 1 of the whole ---
MR WIGNEY:
I'm sorry, page 6.
MS McPAUL:
Page 6, yes.
MR WIGNEY:
The doctor recounts the fact that the family told him that before
they arrived in Woomera they were psychologically well and that they
had behaved throughout their time in detention and had not taken part
in any riots, or disturbances. Do you see that?
MS McPAUL:
That is written here and that may be the view of the family. I
can't comment on their view.
MR WIGNEY:
Well, we will come to another passage to similar effect later on in
any event, but the ultimate recommendation of this particular doctor
is that:
this family
would be a good candidate for moving to community housing from the
viewpoint of treatment of their mental illnesses, though they do not
meet the current criteria.
Is it the situation
that they did not meet the current criteria at that stage because,
at least at that stage, one of the criteria for admission to the Residential
Housing Project was that the primary application had not been determined?
MS McPAUL:
That was one of the original criteria for the Housing Project,
yes.
MR WIGNEY:
And amongst the things that Ms Godwin referred to yesterday in the
opening address was that the Minister has since changed that criteria,
such that persons who have Refugee Review Tribunal applications on
foot, or indeed Court proceedings on foot, are now eligible for the
Woomera Housing Project?
MS McPAUL:
That is correct.
MR WIGNEY:
Now, the next document is a document that commences at page 8 of the
bundle.
DR OZDOWSKI:
Perhaps, if I interrupt for a moment. Ms Godwin, I know you don't
feel well. If you would like to contribute, simply stay on. However,
if you don't have anything you would like to contribute, you are free
to go, your presence is not required.
MS GODWIN:
Thanks, Commissioner, but I would like to provide whatever support
I can for the officers at this time.
DR OZDOWSKI:
Thank you.
MR WIGNEY:
Now, the next document which commences at page 8 of this bundle is
a memorandum from a registered psychologist and it is dated 16 May
2002 and it is on the letterhead of ACM, so we may assume it is a
psychologist employed, at least at that stage, by ACM. It commences
by referring to a request, presumably, made by that person, [name
removed], who was the DIMIA Manager at that time, is that correct?
MS McPAUL:
Yes, that is correct, I have that document.
MR WIGNEY:
He had presumably asked this psychologist to review the records that
relate to the psychological needs of this family that we are considering,
and without taking you through it word for word it is clear, is it
not, that on a review of the records they disclosed as the author
recorded, that the records consistently refer to:
The family members'
ongoing psychological distress that is becoming increasingly more
difficult to manage within the Centre.
And amongst other
things it refers to the father showing symptoms of Post Traumatic
Stress Disorder, do you see that?
MS McPAUL:
I do. I think the document also goes on to point out that this family
has been receiving some mental health support from the Child and Adolescent
Medical Health Service as well on a subsequent page.
MR WIGNEY:
One other passage that I wanted to point you to is that it would appear
that one of the concerns that the mother expressed was that she was
no longer able to control her daughters, and there is also a reference
to the psychological state of the young son, who at this time, was
four years old:
exhibiting aggressive
and anti-social behaviour towards his peers.
Ultimately, the
professional opinion expressed by this doctor was that:
the psychological
needs of the family cannot be adequately managed within a detention
environment.
Do you see that
on the last page of the document?
MS McPAUL:
I believe it is a registered psychologist and there is a view
expressed there, yes.
MR WIGNEY:
Yes, well, she signs it. Next, we have a document that commences
at page 10 of the bundle and, again, this would appear to be a communication
directed to the DIMIA Manager of the Woomera detention facility. It
is dated 22 May and, again, concerns recommendations relating to the
particular family that is the subject of this case study, right?
MS McPAUL:
Yes, it does.
MR WIGNEY:
In the background the author of this document who is a Senior
Clinician with the Women's and Children's Hospital in Adelaide, traces
the background and expresses various opinions in relation to each
of the family members and, in general terms, it is that each of them
is showing signs of mental illness at this stage. Now, I can be more
specific if needs be.
MS McPAUL:
In broad terms, I think that is correct.
MR WIGNEY:
I just want to take you to some passages further on through this document.
You will find that page 14 of the bundle still within the same document,
having dealt individually with each of the members of the family,
there is then a paragraph, rather a sub-heading:
Child protection
issues which place the children -
You will see
referred to there the names of the two daughters and the son -
at further risk of harm.
And there is
this passage:
The above named
children need protection from all forms of physical and mental violence.
Clearly, parents who are depressed and disempowered are less able
to protect their children. In addition, violent attacks in detention
centres are without...
In addition violent
events - what did I say - sorry:
in addition,
violent events in detention centres are without doubt placing the
children at risk of further harm and can be a dangerous environment
for children to exist.
MS McPAUL:
I think it is important to note that where parents accompany their
children in a detention facility, as we have already stated earlier,
parents have a responsibility for guardianship roles for their children,
including in any circumstances where there might be a violent incident
of some kind and we would expect the parents in those circumstances
to also take a role in ensuring that the children are protected from
becoming involved in any circumstance that would be inappropriate.
MR WIGNEY:
Well, if I may say so with respect, I don't think anyone would quarrel
with that proposition, but the point that is being made by this person
is that what happens in the detention environment is that, to use
the author's words:
Parents who
are depressed and disempowered are less able to protect their children.
That is one of
the incidents of being in this detention environment, right?
MS McPAUL:
It is a view expressed here.
MR WIGNEY:
Yes. One of the other things that is addressed in that passage that
I took you to is that - and this was certainly the case, I think you
would agree at the Woomera Facility at the time we are talking about,
that is, towards the beginning and middle of 2002 - that there were
often incidents of violence and self-harm amongst detainees, right?
MS McPAUL:
I don't think you could say there are often these circumstances. There
are occasions in which that does occur.
MR WIGNEY:
Would you accept that one of the aspects of the Department's duty
of care was to endeavour to protect children from witnessing such
events?
MS McPAUL:
I think that is the point I was just making, that where parents
are in the Centre, it is also the parents' responsibilities to protect
their children and to take what reasonable steps they can to ensure
that their children don't witness things that they would consider
unsuitable.
MR WIGNEY:
But as the ---
MS McPAUL:
As does the Department have a duty of care broadly in those circumstances.
MR WIGNEY:
But the point is, is it not, that as the mental state of the parents
deteriorates, as they become depressed and disempowered, to use this
author's words, they are less able to fulfil that function that you
have just referred to, that is, the function of protecting their children?
Do you agree with that proposition?
MS McPAUL:
Well, I'm not qualified to comment on the relationship between the
parents' mental state and their capacity to parent. I think there
is a view being expressed here by a particular clinician and there
may be any number of factors that might go to a parent's capacity
to parent.
MR WIGNEY:
Can I take you to page 16 of the bundle, which is still in this current
document, and there are a number of dot points there, which contain
the author's recommendations in relation to this particular family.
The second dot point is to the effect that the Child and Adolescent
Mental Health Services are of the opinion that:
it is not possible
to treat post-traumatic stress, suicidality and depression within
a detention centre environment.
MS McPAUL:
Yes, that is stated here.
MR WIGNEY:
The second dot point:
It is also important
to advocate for the release of the children with their parents, as
separation would potentially add further trauma, anxiety and development
of attachment issues.
MS McPAUL:
Yes, that is written here as well.
MR WIGNEY:
Now, then turning to a specific assessment in relation to this family,
the third dot points refers to the high degree of stress within the
family, the fact that both parents suffer from symptoms of depression,
anxiety and suicidal ideations. And reference to the fact that:
These issues
place the parents at risk of further harm and jeopardise their ability
to parent.
Then, the author
says that:
The Child and
Adolescent Mental Health Service is of opinion that helping the children
is inseparable from the safety and well being of the parents, who
equally require appropriate mental health intervention and appropriate
psychiatric follow up.
Do you see that?
MS McPAUL:
Yes, that is also written here.
MR WIGNEY:
Then, finally, the author refers to the fact that it is her opinion
that:
to delay action
on this matter will only result in further harm to the family. I recommend
that the whole family be urgently released from the detention centre
environment on medical, psychological and compassionate grounds.
Right?
MS McPAUL:
I think the important thing to remember when we are reading this is
that the Department was working actively with Family And Youth Services
and with CAMHS in the management of this case, and I think as with
the case that we discussed this morning, it would be wrong to construe
that the Department was not providing support to that family. Clearly
it was, as was our services provider.
MR WIGNEY:
Well, you referred to the fact that the Department was working
actively with, in this case the Child and Adolescent Mental Health
Service. Did working actively with that service include acting in
accordance with their expert recommendations and advice?
MS McPAUL:
I think as we also referred to in the case this morning, we need to
consider a range of options that might be available to any given family
group within the context of our statutory regulatory environment and
the information provided as in this report is one of a number of things
that we take into account.
MR WIGNEY:
The range of options including, for example, release of the entire
family into some form of alternative detention, that is, detention
not in one of the facilities, such as the Woomera detention facility,
that was an option available to the Department, was it not?
MS McPAUL:
I think you will find that one of the recommendations made to the
Department by FAYS was that consideration be given to placing some
of the family in an alternative detention arrangement, and we did
act on that and that was why the family - in part why the family moved
to the Residential Housing Project in July.
MR WIGNEY:
But you will see that in this particular recommendation there
is a reference to the fact - and this is in the third dot point on
the page - that the children ought be released with their parents,
plural, and then if you look at the last dot point on the second line,
the recommendation is that the whole of the family be released into
some alternative detention. Now, that is not possible still at the
Residential Housing Project in Woomera, is it?
MS McPAUL:
Well, we have already explained this morning the parameters for
operation of that Housing Project.
MR WIGNEY:
Another option available is this, is it not, that the family be granted
a bridging visa?
MR WALKER:
I think as I mentioned before, Mr Wigney, there is a statutory framework.
Unauthorised arrivals are not eligible non-citizens, unless they meet
particular requirements that are set out in regulation 2.20, and that
is to make the threshold issue of being eligible to apply. They then
have to meet the specific criteria. Each individual has to meet the
criteria in respect of a bridging visa.
MR WIGNEY:
Well, let's deal for present purposes with the entire family, because
that was the question I asked.
MR WALKER:
No, I think that it is important to deal with the statutory framework,
where there are individual applications made.
MR WIGNEY:
Now, even in relation to - well, one of the criteria for eligibility
in regulation 2.20, that you have referred to in sub-regulation (9),
is that:
The person has
a special need based on health, or previous experience of torture
or trauma, in respect of which a medical specialist appointed by Immigration
has certified that the non-citizen cannot properly be cared for in
a detention environment.
That is one of
the criteria, right?
MR WALKER:
Yes.
MR WIGNEY:
That could apply to all members of a family, could it not?
MR WALKER:
There would be individual assessments made, yes, but you could have
that.
MR WIGNEY:
Yes.
MR WALKER:
But the important thing is, it is 'a medical specialist appointed
by Immigration'.
MR WIGNEY:
But to respond to your point, it was possible within the existing
regulatory framework for the family to be considered - well, each
individual member of the family to receive a bridging visa, right,
if they complied with that eligible ---
MR WALKER:
No, that is only one criterion. It is also in respect of whom the
Minister is satisfied that adequate arrangements have been made for
his or her support in the community.
MR WIGNEY:
I see. We will come back to this in due course, but one of the other
eligibility criteria for a bridging visa, specifically referable to
children, is that in sub-regulation (7), at paragraph (d), refers
to the fact that one of the criteria being:
A child welfare
authority of a State or Territory has certified that release from
detention is in the best interests of the non-citizen.
Right, so that
specifically addresses children?
MR WALKER:
That is right.
MR BROMWICH:
Mr Wigney, just in terms of this line of questioning, there is a fundamental
misconception in what you are dealing with here. A bridging visa is
a bridge to something. By the time we had got to May of 2002, there
had been a failure at primary level, at failure at the Tribunal level,
a failure at the Federal Court level, one rhetorically asks, a bridge
to what?
DR OZDOWSKI:
What about help ---
MR BROMWICH:
A bridging visa is a bridge to obtaining a substantive visa, but
this family had lost their prospect of being able to obtain a visa.
DR OZDOWSKI:
What about ability of help to departure?
MR WALKER:
I think, Commissioner, there is also an important element in terms
of the criteria for a bridging visa, one of which here is that in
fact they have to have either a visa application that has not been
finally determined, or a judicial review application on foot. If there
isn't any application on foot, either for judicial review, or a substantive
visa, then, they don't meet the criteria for the bridging visa and
they are required to be detained and removed as soon as practicable.
MR WIGNEY:
Go to page 19 of the document, please. A minute to Ms Godwin as First
Assistant Secretary and one will see about two-thirds of the way down
the page:
Status: Full
Federal Court.
So indeed this
family was still at a stage where they were able to apply for a bridging
visa, were they not?
MR WALKER:
I wouldn't necessarily say that, Mr Wigney. There is also a requirement
that they give an undertaking in terms satisfactory to the Minister
that they will make arrangements and depart 28 days after the expiry
of their judicial review application in the Federal Court.
MR WIGNEY:
Well, Mr Walker, go back to page 17 then. Here we have a fax from
the Deputy Manager of the Woomera Facility at this stage, to a doctor,
asking for an assessment required concerning bridging visa applications.
So it was an option, even the Deputy Manager of the Centre at this
time was referring the matter off to assessment for that very reason,
right?
MR WALKER:
Well, that may well have been the belief of the Deputy Manager at
the time. I'm not saying that that is necessarily the case that a
bridging visa could have been granted. It is certainly, in a sense,
seeking an assessment in relation to the eligibility to apply for
a bridging visa, it is not necessarily conclusive of the fact that
the person would be eligible to be granted the visa.
MR WIGNEY:
That document that I have just referred you to is a document addressed
to a doctor, and I think we observed in the case study this morning
a similar fax in relation to that case study, asking for - as part
of the process involving processing a request for a bridging visa
- an assessment as to whether the needs of the family can be cared
for within the detention environment. Now, again, we have not seen
any response to that request. Are you aware of whether that request
was replied to?
MS McPAUL:
Look, we are not aware. As I said this morning, we did make attempts
to locate all of the documents required under the notice and I believe
that we have provided everything that we have in this matter.
MR WIGNEY:
I see. Now, I took you before to page 19 of the bundle. I just want
to refer you to some other passages in it. It is the minute to Ms
Godwin through the Assistant Secretary and it is from someone by the
name of [name removed]. Who was that, just as a matter of interest?
Or, at the time, what was her position in the Department?
MS McPAUL:
I believe [name removed] was Assistant Director of case management
in the Detention Operations Section in central office.
MR WIGNEY:
In any event, in the background section of this minute, there is a
reference to the fact that:
The family has
been in detention for over 18 months
and that
they have been
well behaved throughout this time and have not participated in riots
or disturbances. However, each family member is now exhibiting symptoms
of mental illness such as major depression and anxiety disorder.
It goes on to
recommend that:
the Minister's
office be approached to seek approval to place the mother and her
children at the Housing Project.
Do you see that?
MS McPAUL:
Yes, that is written here in the document.
MR WIGNEY:
Now, just dealing with these documents as quickly as we can, doing
them justice, page 21 we have another letter from a doctor attached
to the Women's and Children's Hospital in Adelaide. It is marked 'Urgent'
relating to this family, and you will see at the bottom of the page
21:
This family
cannot be treated in the detention environment. They are at very high
risk of suicide, particularly the father and his daughters.
Do you see that?
MS McPAUL:
Yes, it is on folio 21.
MR WIGNEY:
Yes. Now, I think the next document really is an attachment to
that letter by that doctor and it is a detailed report marked 'Urgent'
in relation to a psychological assessment of the family that is the
subject of this case study, and without taking you through all of
it, it refers to concerns that this doctor and diagnoses that this
doctor came to in relation to the mental state of those family members.
At page 28 there is an overall assessment, and the doctor records
that:
My assessment
of this family on the 3rd of July 2002, confirmed an exacerbation
of post traumatic stress disorder and major depression in both parents
and the two adolescents. Their psychological condition has deteriorated
since last seen in January and the adolescents in particular currently
see the hunger strike as a way of acting on their suicidal ideation.
A number of things
seem to emerge from that. We have seen before in the earlier documents
that at least prior to this time, none of the family members had participated
in any form of protest. It seems now that the adolescents are on hunger
strikes.
MR BROMWICH:
With respect, that is not correct.
MR WIGNEY:
Well, that ---
MR BROMWICH:
Being a form of protest that is ---
MR WIGNEY:
Well: they see the hunger strike as a way of acting on their suicidal
ideation, I think are the precise words of this doctor.
MS McPAUL:
That does not mean that they are on a hunger strike. I think that
is a view expressed here that they may see that as an avenue to express
themselves.
MR WIGNEY:
You will see then through on page 29, under the heading, Urgent Recommendations,
the first recommendation being:
The situation
of this family represents a medical and psychiatric emergency.
And then slightly
further down the page in about the middle of the page:
It is extremely
important for this family to remain together. There is a high risk
that if the children were separated from their parents, or the mother
and children separated from the father, that this would increase the
risk of suicide of one of the family members.
Do you see that?
MS McPAUL:
I think it's also going on to say that the family could be moved to
live in the Woomera Housing Project which is one of the recommendations.
MR WIGNEY:
Well, the first recommendation is that:
This family should
be immediately removed from the detention context
and then the
second recommendation, as you point out, is that:
Until this is
possible, they should be moved to live in the Woomera housing project.
So it is really
a secondary recommendation, is it not?
MS McPAUL:
Well, it's a number of recommendations here, yes.
MR WIGNEY:
Now, subject to anything Mr Hunyor says, I will move through the next
few documents really to a document that commences at page 34 of the
bundle, that being a letter from a named paediatrician dated 2 August
2002, and as I understand the situation and no doubt you will have
the details ready at hand but, in fact, the mother and the children
were moved to the Residential Housing Project on 30 July, that is
some days before the date of this letter, at least?
MS McPAUL:
Yes, the letter's dated 2 August.
MR WIGNEY:
Now, again, subject to any particular passage you want to take us
to, I want to really just take you to one passage on page 33 of the
- I'm sorry, 36 of the bundle and it really is to demonstrate one
of the general points that I think I made before we embarked on this
case study again. There's a paragraph there commencing - well, I will
read it:
A further issue
is that I think that because of his mother's health problems -
and I think the
doctor here is referring to the youngest of the children who is not
yet four years old -
because of his
mother's health problems and also because of the difficult situation
in Woomera, and as I have observed with a number of children in recent
times, prolonged detention has resulted in an inability of parents
to actually parent. They have very little control over food, lighting,
housing or discipline for their children. They also have very little
control over contact with other people.
So again this
is a doctor referring to the fact, I suggest, that the conditions
in Woomera were making it - presenting an inability of parents to
actually parent and protect their children. Would you agree with that?
MS McPAUL:
And I think the point to make here is that as we have said before,
this family could have made a choice some time earlier to remove their
children from the particular circumstances that they find themselves
in here, and that option was for them to return to their home country.
MR WIGNEY:
But again ---
MS McPAUL:
And I think the other - I think the other point to make as well is
that, as you have mentioned, the family was - the mother and the children
were, in fact, moved to the Residential Housing Project at the - towards
the end of July which provides them with that opportunity, as you
know, to take greater control over the day to day circumstances of
their life and I think the evaluation report for the Housing Project
certainly indicated that there was a widespread view shared by the
detainees, the health professionals and some others that that environment
provided positive impact on the parenting capabilities of the people
located in the housing project.
MR WIGNEY:
Well, I will pick up - well, perhaps the best way to respond to that
point without going over ground that we have well travelled this morning.
If you could go to page 41 of the bundle that is a letter on a letterhead
of ACM Detention Services again by the doctor retained at the Woomera
hospital. Have you got that?
MS McPAUL:
Folio 41, 42, 43, yes.
MR WIGNEY:
Dated 13 October 2002?
MS McPAUL:
Mm.
MR WIGNEY:
And the doctor is specifically referring in this communication to,
I think, the mother of the children, right? You will see the ---
MS McPAUL:
It's dealing the issues relating to the mother, yes, I think so.
MR WIGNEY:
And you will see towards the foot of the page, the last sentence of
the second substantive paragraph:
It is obvious
to me that her -
that is the mother
-
her level of
functioning is extremely poor and that she is unable to care for -
the young boy
who at this stage is about four years old.
Do you see that?
MS McPAUL:
That's stated here, yes.
MR WIGNEY:
And then if you go over specifically in relation to the point that
you have just made about the Woomera Housing Project, can I take you
to, firstly, the second paragraph on the page and please feel free
to refer to any other passage you wish to but you will see about five
lines up the sentence commencing, However, the husband - it is referring
to the movement to the Residential Housing Project.
MS McPAUL:
Mm.
MR WIGNEY:
The husband was forced to remain behind in the detention centre, the
family have still not been assessed for a bridging visa and at this
point if granted one would not remain in the community for long as
a bridging visa is only a bridge, as Mr Bromwich points out, until
the appeal process has taken its course. The point being that there
is a reference there to the fact that the husband is not able to go
to the Residential Housing Project and if one goes to the next - and
Mr Hunyor reminds that at this stage it is five months since that
letter directed to the doctor directing attention to an assessment
for a bridging visa had been communicated.
But specifically
in the third paragraph on the page commencing about four lines down,
a reference to the fact that 'the family found it difficult to cope'
without the father. Right, now we explored this issue this morning
the difficulty in relation to some families when they are separated
from the father, right?
MS McPAUL:
I think that - that particular paragraph also goes on to say that
the family was offered a move to Baxter and as we discussed this morning
as well there is a capacity in the Baxter immigration detention facility
for families to be co-located together with additional support services
that are available through the Port Augusta region and that offer
was made to the family and, as I understand it, they declined.
MR WIGNEY:
Well, we will come to that in due course, but if we come to the third
paragraph on this page, the doctor refers to the fact that the week
prior to this letter being penned the mother, the circumstances had
got to be the case where the mother had stated that she was no longer
able to look after the youngest child, that is the boy about four
years old, right?
MS McPAUL:
I think that paragraph also refers in the opening lines to the initial
improvement in the mother's mental health and the family's mental
health ---
MR WIGNEY:
Yes.
MS McPAUL:
---having moved to the Residential Housing Project.
MR WIGNEY:
But ultimately, the separation from the father caused additional stresses,
did it not?
MS McPAUL:
I'm not sure that that's my understanding of this.
MR WIGNEY:
Well, let us just go to the next paragraph:
In summary it
has been observed by various clinicians that the members of the family
are suffering from severe mental illness. It has been recommended
to the Department of Immigration by the Child and Adolescent Mental
Health Service that the family be removed from the detention environment.
The move to the Woomera Housing Project has been unsuccessful at preventing
further deterioration of this family and in particular the mother.
Do you see that?
MS McPAUL:
Yes, that's written here.
MR WIGNEY:
And it goes on:
Prescription
of medication and provision of supportive psychotherapy have also
failed to prevent deterioration. I personally feel that removal of
the family from the detention centre to a place of alternate detention
as a family unit with proximity to mental health services offers the
only alternative for this family.
Right?
MS McPAUL:
But it ---
MR BROMWICH:
I ask my friend to read the next sentence.
MR WIGNEY:
Absolutely:
I would be concerned
that a bridging visa would expire if and when the family were to lose
their appeals and they would be returned to the detention environment,
this could be potentially more harmful.
That is the return
to the detention environment. Now, that again emphasises, does it
not, the importance of the whole of the family to stay together and
the deleterious effect that separation from the father figure may
have on the family unit, would you agree with that general proposition?
MS McPAUL:
The statements made here are a view of a particular doctor about
the arrangements that he thinks may be suitable for the family. I
think it's important to remember, as Mr Walker has said this morning,
that we must operate within the regulatory environment and while it
may be the view of some individuals that it would be possible to provide
a bridging visa for this particular family group, that may not necessarily
have been possible.
MR WIGNEY:
Where is this family now?
MS McPAUL:
As I understand it, the father is in the Woomera IRPC and the remainder
of the family are still in the Residential Housing Project.
MR WALKER:
I think there is one important point to just highlight what Ms McPaul
said, is that in relation to keeping the family together that the
offer had been made for them to move to Baxter where they could be
kept as a family. Now, they have declined that offer.
MS McPAUL:
We're just checking exactly where they are today for you, we will
clarify that.
MR WIGNEY:
I think and I seek your assistance in this regard that it, I think,
was understood by at least some officers of the Commission that in
fairly recent times the mother, at least, has returned to the detention
facility.
MS McPAUL:
We're, as I said, we're just checking the exact location on whereabouts
today.
MR WIGNEY:
Well, perhaps I just again return to the general point that I made
before embarking on the second case study that experience has shown,
has it not, and I suggest to you that the detention environment, at
least, in the detention centre such as Woomera has a deleterious effect
and a break down effect on the family unit that really robs the parents
of the ability to parent children. Would you agree with that or not?
MS McPAUL:
I think what this shows is that managing individual circumstances
in a detention environment is an inherently complex and dynamic process
that requires input from - active input from the Department and a
number of other support agencies which, I think, in looking through
the documentation of both the case this morning and for this one,
shows that the Department has been working actively and closely with
these other agencies and with our services provider to provide the
kind of support needed to the families that we have been discussing.
MR WIGNEY:
Well, you say working actively, I suppose, we return to the same point
and there's no little point in continuing to labour it, but these
other bodies that you say the Department is working with are continually
recommending that the only alternative for this family is a whole
family approach and all of them to be removed from the detention environment
at Woomera. That is what they are saying and the Department is not
acting on their recommendations, is it?
MS McPAUL:
Well, with respect, I think that we have looked at documents in relation
to this particular family that also recommended that location of the
family members in the Residential Housing Project was an appropriate
alternative and I believe that the Department has, in fact, acted
on that advice which was the reason, in part, that the family moved
to the Residential Housing Project at the end of July.
MR WIGNEY:
Would you excuse me for one minute. I took you shortly before
the luncheon adjournment to a letter of 8 November 2002 directed to
the Director of Family and Youth Services in South Australia, the
author of which being a registered psychologist employed by ACM, at
least, as at that date. I don't want to take you to the same passages
that I took you to this morning other than to point out that in that
same letter where certain accusations are made about DIMIA and the
Federal Government and emotional abuse of children, there is reference
to the children of this family in this case study that we have considered
after lunch.
MS McPAUL:
As I understand it, yes.
MR WIGNEY:
So it appears, at least, in the opinion of that registered psychologist
that the continuing detention in the Woomera detention centre of these
children amounts to emotional abuse of children and is a medical and
psychiatric emergency.
MS McPAUL:
I think the point you were trying to make earlier was that there was
a blanket view that they needed to be removed from a detention environment
and I think the point that I was clarifying was that not all of the
recommendations in fact point to that and secondly, in relation to
that point I think just for clarity the children remain in the Residential
Housing Project and are not actually in the centre as indicated by
the notes, as I understand it, made in this other document that you
are referring to.
MR WIGNEY:
I'm sorry, are you saying that you know for a fact now that these
children are in the Residential Housing Project?
MS McPAUL:
I've indicated earlier that they were and I've just been advised that
the mother and the children do remain in the Residential Housing Project.
The father, as I understand it, has his own accommodation unit in
one of the compounds at the Woomera centre and the mother and the
children visit the father on a regular basis. I also understand that
the father has been making fortnightly visits to the Housing Project
to see the family.
MR WIGNEY:
The point still being, I suppose, that at least in the opinion
of the author of this letter, the registered psychologist, even in
the Residential Housing Project the detention of these children amounts
to emotional abuse of children?
MS McPAUL:
Well, I'm not sure that she makes references to the housing project.
MR WIGNEY:
I accuse DIMIA
and the Federal Government of emotional abuse of children at Woomera
Immigration Reception and Processing Centre and RHP.
the Residential
Housing Project. So she does refer specifically to it.
MS McPAUL:
Well, I guess that's a view that she has expressed.
MR WIGNEY:
She being an employee - registered psychologist - employed at
least as at 8 November by ACM, your service provider?
MS McPAUL:
She was employed at that time, I understand, yes. I think the
other point that I would like to make just in relation to that, and
I think we've seen that through a number of documents that you have
drawn our attention to today is that people from other agencies quite
often make recommendations which go beyond the powers that are available
to us as immigration officers under our Act and I think the point
that Mr Walker has made on a number of occasions earlier today is
that notwithstanding the views of certain individuals about what might
be possible under the Act the officers of the Department are still
required to work within the framework that's possible under our own
Commonwealth laws.
MR WIGNEY:
Mr Commissioner, that is the end of the case study, can I be so bold
as to suggest an adjournment for two purposes? One, I want to return
after the break and simply address a few general issues that have
arisen on this particular topic that is, families, and then move on
to a different topic, being the unaccompanied minors, and I might
need just some little bit of time to gather my thoughts in that respect
and it is probably an appropriate time to take a break in any event.
But perhaps the Commission may ask ACM whether they have any comment
or whether Mr Bromwich has anything in reply.
MR OZDOWSKI:
Mr Bromwich, what is your view?
MR BROMWICH:
Commissioner, as with the last case study there are some additional
facts I seek to place before the Commission, first of all from Mr
Illingworth.
MR OZDOWSKI:
Yes, please do.
MR BROMWICH:
Thank you. Mr Illingworth, the family we have been considering the
second case study, I understand you have checked the circumstances
of their case processing history?
MR ILLINGWORTH:
Yes, I have.
MR BROMWICH:
The position is they arrived on a particular boat at the end of 2000?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
And they were detained, as previously indicated, at the Woomera immigration
centre on 5 January 2001?
MR ILLINGWORTH:
That's correct.
MR BROMWICH:
The Department screened them for refugee assessment on 12 January
2001?
MR ILLINGWORTH:
They lodged their protection visa application on that date.
MR BROMWICH:
The application was refused on 13 March 2001?
MR ILLINGWORTH:
That is correct, just on a month later.
MR BROMWICH:
And so a month after formal application - well, I think there
was a screening in January but a formal application for a temporary
protection visa on 13 February?
MR ILLINGWORTH:
I'm sorry, that is right, sorry.
MR BROMWICH:
And then one month later, on 13 March the temporary protection
visa was refused?
MR ILLINGWORTH:
Yes, 2 months after - 2 months later.
MR BROMWICH:
So the determination period was - sorry?
MR ILLINGWORTH:
Two months. Sorry, the PV was lodged on 12 January ---
MR BROMWICH:
I see.
MR ILLINGWORTH:
---and the decision was 2 months later.
MR BROMWICH:
Sorry, I had different dates.
MR ILLINGWORTH:
13 March.
MR BROMWICH:
Two months later it had been determined?
MR ILLINGWORTH:
That is right.
MR BROMWICH:
The Refugee Review Tribunal affirmed the decision of the delegate
on 26 November 2001?
MR ILLINGWORTH:
That is correct.
MR BROMWICH:
And both the primary decision and the Refugee Review Tribunal decision
were to the effect that this family were not refugees?
MR ILLINGWORTH:
That is correct.
MR BROMWICH:
An appeal to the Federal Court was unsuccessful?
MR ILLINGWORTH:
That is correct.
MR BROMWICH:
There is a Full Court appeal to be heard later this month?
MR ILLINGWORTH:
That is right.
MR BROMWICH:
In relation to the Refugee Review Tribunal's determination, the claims
for refugee status turned in substance upon the claims made by the
husband?
MR ILLINGWORTH:
Yes.
MR BROMWICH:
The Tribunal found that it could not be satisfied that at any of the
events claimed to have taken place after 1985 were credible?
MR ILLINGWORTH:
That is correct. So essentially from 13 March 2001, the Department
had satisfied itself that if necessary the removal of this person
would not be in breach of our obligations under the Refugee Convention.
The person was obviously free to depart at any time.
MR BROMWICH:
Yes, thank you for that. If I could turn now to Ms McPaul. Do
you have the bundle of documents in front of you?
MR WIGNEY:
Sorry, can I just - before Mr Illingworth departs, can I ask him this?
Whether his wealth of information about the immigration status of
these people extends to what happened to the bridging visa application,
or at least an application for an assessment that was made in May
of this year?
MR ILLINGWORTH:
No, it does not. My focus is on the assessment of any protection obligations
under the Refugees Convention in relation to these individuals.
MR WIGNEY:
So you are not able to assist us whatsoever in relation to this bridging
visa assessment?
MR ILLINGWORTH:
That is correct.
MR WIGNEY:
Very well.
MR BROMWICH:
Ms McPaul, page 3 of the bundle, you were asked a number of questions
which went to the issue of manifestations of distress and other matters
arising, it was said from detention, do you recall that?
MS McPAUL:
Yes, I do.
MR BROMWICH:
And if you look under the heading where the father's name is referred
to at about a third of the way down on page 3?
MS McPAUL:
Yes.
MR BROMWICH:
You see that? It is there stated:
Both parents
also felt hopeless. They felt sure each 'visa day' their names would
come up. The day their names were called he -
this is the father
-
assumed they
would be given visas and the girls were very happy, but when they
were rejected, he came pulling his hair and hitting his head and the
daughters wanted to cut themselves with wire.
Do you see that?
MS McPAUL:
Yes, I do.
MR BROMWICH:
And by reference to what has just been said, that adverse decision
was on 13 March 2001?
MS McPAUL:
As I understand it.
MR BROMWICH:
So it would appear from this report by the psychologist, the first
event giving rise to distress and concern was an adverse decision
on the visa, rather than the fact of detention?
MR WIGNEY:
I object to that.
MR BROMWICH:
That is the first point in time I have referred to ---
MR WIGNEY:
Mr Bromwich has been picking ---
MR BROMWICH:
---in any of these documents.
MR WIGNEY:
Mr Bromwich has been picking me up on summarising documents all morning,
perhaps I might pick him up on the same point.
MR BROMWICH:
Well, if my friend can point to a point earlier in time where
this was disclosed? That is the earliest point in time I can find
in this bundle. I could be wrong and I stand corrected if I am.
MR WIGNEY:
Yes, but you went beyond that point.
MR BROMWICH:
Well, the point I am making is that the earliest point in time at
which a distress was exhibited was at the point of rejection of a
protection visa, not at the point - some point in time merely of a
detention.
MR WIGNEY:
Sorry ---
DR OZDOWSKI:
Thank you for the statement.
MR WIGNEY:
No, I have nothing further.
MR BROMWICH:
The point is made, Commissioner, I don't need to have a further
answer.
DR OZDOWSKI:
Thank you. Is there anything else you would like to ask before we
break?
MR BROMWICH:
Not at this stage, no, thank you.
DR OZDOWSKI:
And Mr Rushton?
MR RUSHTON:
No, Commissioner.
DR OZDOWSKI:
I should find in this case we break for half an hour and we will meet
and half past three.
SHORT BREAK
[2.55pm]
RESUMES [3.35pm]
MR BROMWICH:
Commissioner, I understand there is to be some - a few general questions.
Ms Godwin felt that she was best placed to deal with those, although
she is still not at all well, so hopefully they will be in a relatively
short compass and we might be able to manage with those?
DR OZDOWSKI:
Thank you, thank you, very much, Ms Godwin, for doing it and whenever
the transcript is ready of the proceedings, you will receive a copy
of the transcript and if there are any comments or general points
you would like to make, you are welcome to make them and they were
will be certainly considered in the context of the Inquiry and the
record writing.
MS GODWIN:
Thank you, Commissioner, that is helpful.
DR OZDOWSKI:
So possibly, we are ready to start, Mr Wigney?
MR WIGNEY:
Just - I will just - I really just wanted to ask a couple of final
questions to finish off on the topic of families and the questions
I wanted to ask really concerned something that we have addressed
to an extent already and that is the alternatives to detention in
the facilities such as Woomera, Port Hedland and Curtin when it existed.
Now, you accept, do you not, as a result of the broad definition of
'immigration detention' in the Act that it is possible to transfer
an entire family to an alternative place of detention, being a place
authorised or approved in writing by the Minister, do you agree with
that?
MS GODWIN:
Mr Wigney, yes, excuse me. Yes, that flexibility exists within
the statutory framework of the Act but I need to reiterate the point
that I made yesterday I think, in response either to a question or
as a part of a general statement and that is, alternative places of
detention have to be capable of meeting the purpose for which we have
detention and we talked about those purposes yesterday. The purpose
for detention is the people are available for processing and available
for removal and it has been our experience that in numbers of situations
where we have been exploring individual alternative places of detention
for particular circumstances, that it is that requirement that is
often the most difficult to meet.
We cannot transfer
someone to an alternative place of detention unless we have a degree
of confidence that the - that those purposes will be met. So that
is a fundamental consideration. Secondly, I think Mr Walker made the
point at some stage, it is not just the place of detention, there
has to be someone who is prepared to in effect, hold and supervise
and if that person isn't prepared to cooperate with the overall purpose
of the - of the detention framework, then again, that presents real
difficulties. So yes, I agree with the general proposition you are
putting that there is that flexibility in the Act, but the flexibility
is clearly constrained by a number of factors.
The most important
of which is, as I say, that as an alternative place of detention,
it still operates within the framework of the Act and must be capable
of meeting the objectives and purposes for which we have detention.
MR WIGNEY:
Can I just pick up on a couple of points there, I think some of the
considerations - well, one of the considerations you referred to was
that the - the persons in the alternative place of detention would
have to be available for processing, that is processing their various
visa applications?
MS GODWIN:
Yes.
MR WIGNEY:
That, you would agree, is a consideration that could be addressed
by ensuring that the alternative place of detention is close to your
departmental officers, would you agree with that?
MS GODWIN:
Well, again, as a general proposition, yes, there are a number of
ways of addressing that requirement.
MR WIGNEY:
So for example, in the case of the Woomera Residential Housing Project
for example, that is obviously relatively proximate to the Woomera
detention centre.
MS GODWIN:
Yes.
MR WIGNEY:
Therefore has the facility for the officers at the Woomera centre
to also process people at that Housing Project?
MS GODWIN:
It is, okay, your general point is, whether the processing is being
done at the Residential Housing Project or at the centre? It is reasonably
proximate?
MR WIGNEY:
Yes.
MS GODWIN:
So, yes.
MR WIGNEY:
So again, putting aside the Residential Housing Project, the first
of the considerations, that is, that the persons be available for
processing, could be satisfied if the alternative place of detention
was proximate to departmental officers, for example. The other considerations
- one of the other considerations you referred to was that the persons
in the alternative detention be available for removal and I think
- I don't want to go over old ground, we explored that to an extent
yesterday - one of the concerns there being whether the persons are
a flight risk, for example?
MS GODWIN:
Well, that is obviously a consideration, yes.
MR WIGNEY:
And I think we considered yesterday and the Commissioner asked questions
about whether the Department had ever considered any studies or statistics
in relation to the propensity of families as opposed to individual
men being a flight risk?
MS GODWIN:
You did and we took that on notice and I think I commented at
the time, while we had statistics on - that go to this question, I'm
not sure that they can be broken down into family groups because of
the ways the statistical databases work. Having said that though,
given that from time to time we locate in the community families who
have previously had unsuccessful asylum claims, I would expect that
even if it is not demonstrable by the individual statistics, that
the phenomenon of absconding is not limited to single individuals.
MR WIGNEY:
Would you agree as a general proposition that it would be less likely
for a family group, particularly one including young children, to
be a flight risk or a risk of ---
MS GODWIN:
I don't have any basis on which I can agree with that general proposition.
MR WIGNEY:
You are aware, I suppose, that, you know, in an entirely different
context, say the criminal law context, in the context of bail, that
there are other ways and means available to ensure that people don't
abscond when on bail, including for example, daily reporting, sureties?
Have any of those alternatives to detention as a means of avoiding
the risk of flight been explored by the Department?
MS GODWIN:
As a general question, yes they have, and I think it is important
to note in this context, that the direct comparison in this situation
with the criminal justice sort of environment, is really not valid,
because in that context the incentives to abscond are reduced as a
person moves their way through their sentence. The closer they come
to the end of their sentence, the greater is the incentive to simply
comply with whatever regime they are in, in order to achieve their
release.
In a detention
environment, where the greatest propensity for release is at the beginning
of the process when people have not yet received their primary decision,
the incentives tend to work in the opposite direction and certainly
it has been the experience overseas that people will, up to a point,
make themselves available for processing, but as soon as they know
that processing isn't headed in the direction they want it to go,
that is when locating them becomes more difficult. And so in this
situation, the sorts of things, like day reporting - I mean day reporting
works where people have got a strong incentive to do it, but if the
incentive is becoming weaker and weaker because they know that they
are coming closer and closer to a point where they will be available
for removal, then the incentives weaken in this situation.
MR WIGNEY:
Sorry.
MS GODWIN:
No, no, I was just going to say, and we have looked at a number of
things like that have been put up from time to time, such as electronic
means of identifying where people are. But the technology is such
that they tell you where people are while they have got the - they
have got whatever the device is, on them or near them. The advice
we had was that none of these systems are foolproof; they are all
capable of being tampered with or removed. You would know that that
was happening according to the information that we have because they
let off an alarm if they are being tampered with. But by the time
you could then get to the place where the person was when the tampering
started, they may well be not in that area and become extremely hard
to locate.
So we have had
a look at some of these sorts of things and they don't appear to apply
directly to the circumstances within which we are operating.
MR WIGNEY:
If I can just pick you up on one of the points that you have just
raised, that is that as the - assuming of course, that the visa applications
are unsuccessful and the incentive to flight increases as the process
goes through - and I don't - would that not suggest at least as one
possibility that when the prospects of flight are low, that is towards
the beginning of the period at the very least, alternative forms of
detention ought be considered, that is when the prospects of flight
are less?
MS GODWIN:
Well, I guess as a theoretical point it suggests that, but there are
two points that I alluded - sort of alluded to here, one is a point
I made yesterday that when people are either arriving or being located
in numbers as they are - or arriving as they were over a couple of
years' period here in Australia and continue to be located in relatively
large numbers in the community, that if your objective is to have
people available for processing and available as quickly as possible
for processing, then there is a sort of an infrastructure, logistical
sort of consideration to be applied at that early stage.
The other point
I wanted to make is a number of countries overseas have operated that
sort of an arrangement but the difficulty with it is they find it's
very hard to locate people once they know that their application has
been refused and that they are going to be likely to be detained for
the purpose of removal. Now, I know in one instance the United States
has just in effect reimposed a mandatory detention regime for unauthorised
arrivals, unauthorised boat arrivals, because of that particular concern,
that people were allowed to remain in the community for processing.
Then they were having difficulty locating them and they have decided
now for unauthorised boat arrivals to move back to mandatory detention
and that was announced, I think, just a couple of weeks ago in the
US.
MR WIGNEY:
I think those that instruct me indicate that their understanding is
that there is a bill currently before the US Senate to exclude children
from that mandatory detention regime. Are you able to comment on that?
MS GODWIN:
I'm not specifically aware of that but the current arrangements are
capable of operating in their current legislative framework.
MR WIGNEY:
In any event, rather than take up time with it now, I think perhaps
if you can take another point on notice, the Commission of course
would be interested to receive any documentation or studies that the
Department has analysed in relation to alternate ways in which flight
risks can be attended to that the Department may have considered and
if those studies or documents could be produced.
MS GODWIN:
Well, I think I already took on notice yesterday two things. One
was the statistical issue and the other was what other considerations
had we looked at. They may not be in the forms of formal studies or
whatever but we've certainly considered these issues.
MR WIGNEY:
Now, I think the third consideration, or point, that you picked up
on before was, I think, Mr Walker's point that one also requires a
person willing to hold and supervise someone in alternative detention.
Can I just address that issue in this way, that I think it's common
ground, is it not, that in relation to the unaccompanied minors who
were released into forms of alternative detention from the Woomera
centre in the beginning of this year, a number of them were released
into what could broadly be called foster care arrangements. Is that
right?
MS GODWIN:
That's right. The foster carers have been designated under that
circumstance, I think.
MR WIGNEY:
Relevantly the foster carer was a person willing to hold and supervise
in that context of alternative detention. I suppose the point I wanted
to pick up - and that occurred in the context where the Department
was receiving advice from the Family and Youth Services that those
unaccompanied minors were at risk and then moved to put them in those
alternative forms of detention.
MS GODWIN:
Yes.
MR WIGNEY:
The question I have for you is this. Is the Department aware, or has
there been any case, where an entire family has been put in a similar
sort of foster arrangement, I suppose, when the Department has received
advice from a state authority to the effect that (a) it's in the interests
of the family to be released from detention, and (b) it's in their
interests for the family as a whole to be released? Has there been
any case where an entire family has been put into a similar sort of
foster care arrangement?
MS GODWIN:
I think from my memory there is a family in an alternative place
of detention, not strictly speaking a foster placement as such, but
where an organisation has agreed to take responsibility for their
ongoing care and also to make sure that they're available for immigration
processes, whether that's application or removal. But I return to
the point that I made before. I'm also aware of another situation
where we were attempting to establish that and there were considerable
difficulties identifying a place that was both able to provide - or
an organisation able to accept responsibility for the provision of
care and support and willing to take responsibility for having them
available for immigration processing.
Now, it's certainly
been the case that over the years numbers of community organisations
have come forward saying, you know, that they're prepared to provide
support in these situations but it has most often been the case that
when what they're actually committing to is explored, they regard
it as outside their ambit of responsibility to agree to co-operate
in having people available for removal and I understand their point
here. They say that's not their responsibility, but if they are not
prepared to take that responsibility, then it falls to the Government
to find ways of meeting that obligation in the most appropriate way
that it could be done.
DR OZDOWSKI:
Could I ask you, is it the [names organisation] in Melbourne which
is looking after some families?
MS GODWIN:
It's looking after one family.
DR OZDOWSKI:
One family.
MS GODWIN:
And one individual.
DR OZDOWSKI:
Only one family, one individual and the family is regarded to
be in a place of detention?
MS GODWIN:
Yes.
DR OZDOWSKI:
Thank you.
MR WIGNEY:
Can I just clarify one thing if I might? I have a reference in
my notes - and unfortunately I don't have the entire instruction,
Migration Service Instruction 234 - can I ask firstly whether that
instruction is still in force and what its general topic is?
MS GODWIN:
There I need to rely on my colleagues. What is MSI 234?
MR WALKER:
I'm afraid I can't help you at the moment. The battery has died in
this, otherwise we would certainly - I will take it on notice while
I just recharge it.
MS GREAVES:
Which MSI?
MS GODWIN:
234.
MR WIGNEY:
My battery is starting to run down as well but perhaps if I just read
out what is in my notes. The note that I have in the context of alternative
places is really in the context of alternative places of detention
and it's paragraph 1.3 of MSI 234 and as I understand it - and perhaps
you may need to take this on notice, but it provides as follows, that:
The approval
of places of immigration detention in writing should be limited to
where it is absolutely necessary because of the condition or special
needs of the detainee, the unsuitability of locally available places
of detention or the unavailability locally of places of detention.
The mere presence of a person in such a place does not constitute
immigration detention. The person must be held by an officer, or on
behalf of an officer, in that place.
Now, does that
reflect - and you can take it on notice - the Department's current
position in relation to alternative places of detention?
MS GODWIN:
I think that's broadly consistent with what we've been saying.
MR WIGNEY:
I suppose the only point I wanted to pick up on is the fact that
it's referred to as being only in circumstances where it's 'absolutely
necessary'. Is there any reason why the Department has imposed that
criteria or condition?
MS GODWIN:
Well, without being able to refer to the specific MSI or the sort
of date at which it was generated, no, I'm not able to comment except
it doesn't seem to me to be inconsistent with the point that we were
making that we use alternative places of detention in a wide variety
of circumstances because we regard them as necessary and they range
across a whole range of things - motels, hospitals, schools, all sorts
of things. We regard that as necessary in the circumstances and that
doesn't seem to me to be inconsistent.
MR WIGNEY:
Just finally on alternative places of detention. I think yesterday
in your opening statement you referred, amongst other things, to the
broadening of eligibility criteria for women and children in relation
to the Woomera Residential Housing Project and that largely dealt
with eligibility now, or people being eligible now, after an adverse
primary decision but whilst the matter's still before the Tribunal
or the Courts.
MS GODWIN:
I think I referred to that as an example. I don't think that was the
only way in which they were broadened but I don't know. I think we've
given you the various documents on how it broadened. So as I say,
in my opening statement I drew attention to a couple of particular
examples but I don't think that's the totality. Sorry, I interrupted.
MR WIGNEY:
The other reference - I'm just looking at the typed version of your
address - it was referred to as establishing the possibility of establishing
a similar alternative detention arrangement in Port Augusta, or in
the region.
MS GODWIN:
Yes.
MR WIGNEY:
Without treading on bureaucratic toes, as it were, how far advanced
is that exploration of that option?
MS GODWIN:
Well, it's an active exploration, but I think I made the point
that it requires the co-operation of a range of agencies, not just
our own, and so there's a process of trying to work through the various
issues.
MR WIGNEY:
Again, tell me if you're not in a position to answer this, but are
there any other proposals that you're aware of for the broadening
of the eligibility criteria of the Woomera Housing Project or any
similar projects at this stage?
MS GODWIN:
Well, I'm not aware that we've sort of focused on other similar projects.
I mean, one of the issues for us is that these sorts of projects are
sort of time-consuming to establish because they do require a whole
range of things and so we've, consistent with the Minister's announcement
about Baxter, focused our efforts there.
MR WIGNEY:
Now, just very finally on this topic in terms of alternatives
to detention in the facilities such as Woomera, we've addressed to
an extent the other option, that is, bridging visas, and engaged in
some discussion with Mr Walker shortly before or shortly after lunch.
One of the eligibility criteria set out in Regulation 2.2 that may
apply to families being, in situations where each member of the family
is assessed as having a special need, based on health or previous
experience of torture or trauma, in respect of which a medical specialist
appointed by Immigration has certified that the non-citizen cannot
properly be cared for in a detention environment.
My only follow
up question in relation to that is whether anyone in the Department
is aware of any situation where a bridging visa has been granted to
a family in those circumstances?
MS GODWIN:
I would need to take it specifically on detail, but my recollection
is that there has been a family in that situation but could I make
a couple of general points round that? There is a view amongst some
people that - and I think this was alluded to in one of the documents
that you referred to before the break - that in some circumstances
a bridging visa may not necessarily be the best option, notwithstanding
that there are particular issues, management issues, in relation to
a particular family.
For a start it
requires that once all dealings with the Department or the Courts
are ceased, that the person would then be required either to depart
or to be taken back into detention and there's a view amongst some
community groups that we've spoken to that that of itself presents
real difficulties. Secondly, one of the associated criteria is that
the Minister has to be satisfied that there are appropriate care arrangements
in place and it has sometimes been difficult to find people prepared
to take on that responsibility because it can be a significant one.
So the issue of bridging visas remains a real one but they are not
necessarily in any given circumstances best suited to the particular
needs of the individual or family that we have under consideration.
Finally, we would
have to take into account the particular circumstances of the individual
and if there are real credibility concerns and other things about
a particular individual or family and therefore concerns that any
undertakings they themselves give may have limited effect. That is
also something that needs to be considered.
MR WIGNEY:
Mr Commissioner, that's all I really had in relation to families.
I don't know whether it's perhaps, unless the Department has any further
comment they wish to make or ACM, then we might just move on to a
different ---
DR OZDOWSKI:
So you are finished with your general policy questions for today?
MR WIGNEY:
In relation to families. I'm going to move now on to some topics relating
to unaccompanied minors, if that's suitable?
DR OZDOWSKI:
Would you start again with broader policy questions?
MR WIGNEY:
Yes.
DR OZDOWSKI:
Yes, okay. So would you be able to stay a bit longer?
MS GODWIN:
Yes, that's fine. Before you finish though with the subject of families,
I thought it might just be useful to - I was listening with interest
after I came into the room and apologise again. I'm having difficulty,
but I just wanted to try to bring together a couple of the points
that were made by officers and that I think are relevant to reiterate
and, as I say, just sort of draw together. I think the first point
to make is that in taking officers through individual documents and
referring to recommendations, we are obliged as officers of the Department
to look at those recommendations within the ambit of our statutory
obligations.
Mr Walker, I
think, at one point sort of drew attention to that general point.
The fact is many of the recommendations that we get go beyond any
statutory power to address the recommendation in the way it's made
and our objective in those sorts of situations has been to try then
to work with the relevant child welfare authorities or whoever else
to arrive at a management plan which takes account of the recommendation
but doesn't necessarily implement it because we are prevented by it,
from implementing it by the Migration Act, in the way that the recommendation
has been made.
We have already
talked about the bridging visa issue. I think the other point to make
about bridging visas is that there is special provision in the bridging
visa regime for children under the age of 18 and generally speaking,
I can only think personally of one or two possibly exceptions to this.
Generally speaking, the relevant state welfare authorities, who are
able to make a declaration under that particular bridging visa provision,
don't normally do so because it applies to the children and not to
the family as a whole and they have to weigh up whether in that situation
it's in the interests of the child, as opposed to the ongoing interests
of the child to remain with the family, and that clearly is a compelling
consideration for them and for us.
I think Ms McPaul
made the point that nonetheless, we then do try to work with people
like FAYS and others about okay, is there a way of establishing an
appropriate management regime which is broadly consistent with the
issues raised without necessarily going to the specifics? We have
talked about alternative places of detention and the fact that they
need to meet our overall purpose.
The final point
I would like to make again draws on points that officers made but
I just think it's worth reiterating. The individual cases you have
raised, and understandably, are examples of some of the most complex
cases that we've had to manage in detention and that complexity obviously
is not something we have sought to neglect but it equally means that
finding an appropriate management strategy can itself be challenging.
In that context I think we need to return to a point that Mr Bromwich
made just before the break and that is that we need to recognise that
in many instances, and we certainly have had some considerable experience
of this, people's distress in detention is very often occasioned by
the fact that they - that the decision they are looking for is not
forthcoming, when in certain circumstances, we can locate people's
demonstrations of distress, if you like, to a point in the decision-making
process. It goes to that point.
I made the point
in my opening statement that that is not - I mean, we understand the
frustration and anxiety that detainees feel in that sort of situation
because they have set out to achieve an objective and that objective
is not forthcoming. We are nonetheless obliged to continue to detain
them and to manage them while we process them for removal.
That brings -
sorry, I said that was my final point but this actually brings me
to my final point. I know at various points officers have commented,
a number of the families we now have in detention, it has been becoming
increasingly clear over a lengthy period of time that they are not
going to be granted visas and for the vast majority of them, they
could co-operate in bringing their own detention to an end by working
with us to arrange their removal from Australia. I know there is a
lot of discussion about the particular circumstances of families and
the management challenges that they present and I am not in any way,
shape or form wanting to underestimate those management challenges.
The assumption
is often made that there is often only one way to bring their detention
to an end and that is to look for either a visa or some other community
option and in this situation there is another alternative and that
is removal from Australia. That just summarises the points I wanted
to make.
MR WIGNEY:
Nothing in relation to that topic.
DR OZDOWSKI:
Okay, so could you start with your new topic which is ---
MR WIGNEY:
Yes, now Ms Godwin, I know your unfortunate position ---
MS GODWIN:
It is okay, it hasn't affected my ---
MR WIGNEY:
---in terms of directing my questions, they are fairly broad
and general principles in relation to the topic of unaccompanied minors
and just to let you know where I am - the particular area of interest
for the Commission is the particular - relate really to the Minister's
position of guardian in relation to unaccompanied minors, and what
he and or his delegates do or don't do in relation to the process.
So that is just to let you know where we are going.
MS GODWIN:
Yes, sure.
MR WIGNEY:
If I can just start in fairly general terms and would I continue to
direct questions to you or?
MS GODWIN:
Yes, no, just ask away, if I can't or flag, I will get someone else
to help.
MR WIGNEY:
Now, I think we have already generally established that in terms
of unaccompanied minors, what I am referring to generally are non-citizens
under the age of 18 who come to Australia without a parent or relative
over the age of 21 years old to care for or protect them. I think,
as Mr Walker pointed out yesterday, there is the additional requirement
under the relevant Act I will come to in a moment, that the minor
has to intend to become a permanent resident, accepting for the moment
the regime of temporary protection visas, accepting that the asylum
seekers themselves often intend to be permanent residents.
That will largely
cover or catch all asylum seekers under the age of 18 that don't come
here with their parents or relatives. Now, the effect of the Immigration
(Guardianship of Children) Act in general terms is that the Minister
is the guardian of all such unaccompanied minors. Is that right?
MS GODWIN:
Yes.
MR WIGNEY:
I think we also established yesterday that the Minister and the Department
accept that the Commonwealth owes a special or additional duty of
care to these unaccompanied minors when in immigration detention,
and that is in part because of their obvious increased vulnerability
of their position. Do you agree with that?
MS GODWIN:
Well, in part, but it is clearly because there is a specific obligation
to be discharged in the law.
MR WALKER:
I think there are two, there is certainly the obligation under the
Immigration (Guardianship of Children) Act and overlapping that is
obviously holding or ensuring that unaccompanied minors are in safe
conditions within the detention environment as a responsibility in
relation to detainees as well, but certainly, bearing in mind that
they are minors and they may have ---
MR WIGNEY:
Also arising from the Minister's position as their guardian.
MS GODWIN:
Yes.
MR WALKER:
Yes, that is right.
MR WIGNEY:
Now just in general terms, the Minister - I appreciate that -
I withdraw that. The Department understands that the Minister's responsibilities
as a guardian include his responsibilities to ensure the rights of
the child under international instruments such as the CRC, the Convention
on the Rights of the Child. Is that - do you agree with that as a
general proposition?
MR WALKER:
I think the proposition is basically that the Minister has the same
responsibilities as any parent or guardian under the various international
instruments.
MR WIGNEY:
Right and that would be to attempt to uphold the various rights that
a child has under those international conventions?
MR WALKER:
With the obligations of a parent or guardian under those instruments.
MR WIGNEY:
Just on that topic, there are, are there not, some specific provisions
in the CRC that apply specifically to unaccompanied minors? I was
going to refer you, in particular to Article 20 firstly:
A child temporarily
or permanently deprived of his or her family environment, or in whose
own best interests cannot be allowed to remain in that environment,
shall be entitled to special protection and assistance provided by
the State.
Is that right?
MR WALKER:
Yes.
MR WIGNEY:
Of course, the Department, mindful of this Convention, attempts to
satisfy that right?
MR WALKER:
Yes.
MR WIGNEY:
I think the other article that specifically deals with the question
of unaccompanied minors is Article 22:
States Parties
shall take appropriate measures to ensure that a child who is seeking
refugee status or who is considered a refugee in accordance with applicable
international or domestic law and procedures shall, whether unaccompanied
or accompanied by his or her parents or by any other person, receive
appropriate protection and humanitarian assistance in the enjoyment
of applicable rights set forth in the present Convention and in other
international human rights or humanitarian instruments to which the
said States are Parties.
They are particular
provisions that apply to unaccompanied minors.
MR WALKER:
Yes.
MR WIGNEY:
Now I think one of the differences in principle between children who
arrive with parents or family that we have dealt with this morning
and unaccompanied minors, is really the Minister is not in a position
to say, as he does, and the Department says that the best interests
of the child are to be with parents. Parents are in - parents have
to be in detention, therefore the child has to be in detention.
MS GODWIN:
Well, that takes us back to the more fundamental set of requirements
which is that as a matter of Australian law and consistent with Australia's
sovereign right to determine who enters and upon what conditions,
all unlawful non-citizens are required to be detained and that applies
equally to unaccompanied minors. So they are required to be detained
and once in detention we then have set up a set of arrangements to
try to focus on their particular circumstances.
MR WIGNEY:
I don't want to go over the territory we went over yesterday. You
accept Article 3 of the CRC provides as a principal consideration
the best interests of the child. Is that an interest that the Department
regards as a particular interest in relation to unaccompanied minors
when the decision is made to detain them?
MS GODWIN:
Well, it is a primary consideration as a sort of general requirement.
MR WALKER:
Also I should just point out that you said the decision to detain.
That is not our decision, it is an obligation to detain an unlawful
non-citizen but certainly in the context of carrying out that obligation,
it is a primary consideration.
MR WIGNEY:
Can I just move now onto, I suppose, the topic of guardianship and
just really, I suppose, to attempt to clarify hopefully the position
in relation to delegations of the Minister's powers as a guardian.
I think the situation is that in 1999 the Minister delegated his powers
as guardian to various officers of state departments of community
service - various state officers?
MS GODWIN:
Was it 1999? I thought it pre-dated that. I would need to check, there
may well have been an amendment to the delegation in 1999. I thought
that the delegation actually pre-dated that.
MR WALKER:
I think that the context is that there have been a series of delegations
made over the years, now whether they were specifically related to
unaccompanied minors who entered without visas is a different issue,
but certainly delegations have been in place with many of the state
child welfare agencies for many years because, bear in mind, this
Act also covers other individuals such as those who come for adoption
in Australia. So I am not deflecting it, I am just putting it in that
context. So Ms Godwin is right in the sense that historically there
have been delegations. They may well have been updated or modified
in 1999.
MR WIGNEY:
Well it has, and I was going to take you to the more recent ones,
but as far as we are aware, at least, the first that we are aware
of is one that occurred in 1999 to various state officers and I suppose
my question is, are you aware of any earlier than 1999 or what was
the position in relation to delegations prior to that time?
MS GREAVES:
The delegation in 1999 actually revoked an earlier instrument
of delegation under the IGOC Act. So I can only assume from that that
there were earlier delegations to the states but I don't actually
have the evidence of that in front of me.
MR WIGNEY:
As far as you are aware, are they delegations to state officers or
---
MS GREAVES:
To state officers.
MR WIGNEY:
Again largely to the community welfare groups?
MS GREAVES:
Child welfare.
MR WIGNEY:
Yes. Now can I just - is it the situation that the various state officers
as we understand it, and the Commission has received some evidence
or submissions to this effect, effectively understood that their roles
under the 1999 delegations really only kicked in, as it were, if and
when the child was released from detention? Does that accord with
your understanding?
MS GREAVES:
In practice that was the case.
MR WALKER:
Although there is no fetter on the power once delegated. No attempt
is made to fetter the delegation.
MR WIGNEY:
That may be - that is certainly accepted but as a practical matter
I think the state authorities tended to regard their role as really
limited to one that kicked in when the children were released from
immigration detention. Is that accurate?
MS GODWIN:
I think as a matter of practice, yes.
MR WIGNEY:
I think we have effectively just received some submissions from South
Australia, Western Australia and Victoria to that effect and that
accords with your understanding?
MS GODWIN:
Well, as I say, we would need to check the exact sort of arrangements
at any given point in time but as a general proposition and as a matter
of practice, yes, I think that is the view that was taken.
MR WIGNEY:
Now can I ask you this, back in 1999 and at least up until recent
times, was there a situation whereby state authorities received any
notification about the existence of unaccompanied minors in immigration
detention, that is, before release? Was there any process of notifying
the state authorities?
MS GODWIN:
That there were unaccompanied minors in detention?
MR WIGNEY:
Yes.
MS GODWIN:
That practice has varied between centres but certainly was practice
applied in some centres over a period and I think it is something
we now talk to individual states about, whether they want a similar
practice to apply to them.
MR WIGNEY:
Now, just going through the series of delegations, I apologise if
this is a bit mundane, but in January 2002 I think the situation was
that there was a further delegation by the Minister of his powers
as a guardian this time to the, in general terms, the Department Managers
and Deputy Managers of the various detention facilities. Is that right?
MS GODWIN:
That is correct, yes.
MR WIGNEY:
It did not - that particular delegation in January 2002, did not revoke
the delegations to the state officers as you understood it?
MS GREAVES:
I think that is right, the one in January didn't. It was subsequent,
it was a delegation that changed the timing in which the delegation
to the states - to some of the states - commenced.
MR WIGNEY:
Yes, well that - sorry, prior to the most recent delegation I will
come to in a moment which was in September of this year, that further
delegation in January 2002 didn't really clarify the position of the
state bodies, that is, it is your understanding that they still really
regarded their responsibilities as only arising if children were released
from immigration detention?
MS GODWIN:
That is correct, in a practical way.
MR WIGNEY:
I think the position really now has been clarified by the delegations
in September which revoked those past delegations and really made
it clear that the state officers to whom the powers as guardian were
delegated really only apply where either the unaccompanied minors
are not in detention or they are in alternative detention. Is that
accurate?
MS GREAVES:
That is correct for some states but not for all states because there
was an exchange of communication with the various states to determine
how they wish to proceed and some of the states have responded and
some haven't.
MR WIGNEY:
I see. Now what I suppose I want to explore now really is as a practical
matter. What assistance, if any, is provided by the Minister or any
of his delegates as guardians or as persons with the power of guardians
in the context of the refugee status determination period?
MS GODWIN:
I am sorry, could you - are you asking what other people who are now
delegated under that 2000 - January 2002 delegation are also involved
in?
MR WIGNEY:
Yes, what I want to try and explore now is what role, if any, does
either the Minister himself or his delegates play in the refugee status
determination period when children are in immigration detention as
unaccompanied minors.
MS GODWIN:
Well, a number of officers in the Department hold a number of
delegations but the officers who specifically hold the delegation
from the Minister under the IGOC Act do not play any role at all in
the determination of refugee status and that is deliberate. That is
to ensure that that process happens separate from their sort of on-going
management in detention.
MR WIGNEY:
Sorry, can I just take one step backward for a moment. Just before
I explore that topic a little bit more, I wanted to ask you something
about the United Nations High Commissioner for Refugees. You are aware,
are you not, that the High Commissioner has issued guidelines on policies
and procedures in dealing with unaccompanied children seeking asylum?
MS GODWIN:
I'm aware of the guidelines, yes.
MR WIGNEY:
I think they were issued, if my notes are accurate, in February of
1997?
MS GODWIN:
I would have to check that but that sounds right. I should make a
general point, of course, that they are not binding. They are not
a binding instrument.
MR WIGNEY:
Well, what is the Department's position in relation to them? Is it
something that the Department works towards, that is, to meet the
guidelines that are in that document?
MS GODWIN:
Well, as a general matter, we have regard to them and would look to
them as a form of guide, but I make the point that they are not binding
instruments on member States, and to the extent that there's anything
in there which is inconsistent with our statutory obligations, we
would regard them as no more than just a guide.
MR WIGNEY:
Well, perhaps if I can just take you to paragraph 5.7 of those guidelines.
Do you have copies of them?
MS GODWIN:
I don't. We don't have a copy of the guidelines handy. There may
be some around.
MR WIGNEY:
I think you well find that the first document in that bundle of documents
you have just been provided with. Hopefully, it is like my bundle.
There's the Office of the United Nations High Commission for Refugees,
Geneva, and the guidelines issued in February 1997. I was going to
take you to page 7, and there's a provision there that deals with
the appointment of a guardian or adviser:
It is suggested
that an independent and formally accredited organisation be identified/established
in each country, which will appoint a guardian or adviser as soon
as the unaccompanied child is identified. The guardian or adviser
should have the necessary expertise in the field of childcaring, so
as to ensure the interests of the child are safeguarded, and the child's
legal, social, medical and psychological needs are appropriately covered
during the refugee status determination procedures and until a durable
solution for the child has been identified and implemented. To this
end, the guardian or adviser would act as a link between the child
and existing specialist agencies/individuals who provide the continuum
of care required by the child.
Now, at least
in relation to those states where the delegation presently is in relation
to children who are in immigration detention only to the Department
Managers and Deputy Managers, it would appear that that guideline
has not been followed or adopted by Australia.
MS GODWIN:
Well, I wouldn't necessarily accept that proposition. I would argue
that it requires a broad range of factors to be taken into account,
and I think we have said a number of times that we would regard it
as appropriate and, indeed, this is the case that the people who have
that delegated guardianship within the centres would consult with
appropriate experts and authorities such as the local child welfare
authorities. As a matter of practice, I think for some time, the care
plans that we have developed for unaccompanied minors have been the
subject of consultation with those authorities. So I would regard
that guideline as, broadly speaking, being met but in a variety of
ways.
MR WIGNEY:
Well, the Minister is not someone who has expertise in the field
of child caring. He is the actual guardian. You would agree with that?
MS GODWIN:
Yes, but it goes on to say that so as to ensure that the interests
of the child are safeguarded, and the child's legal, social, medical
and psychological needs are appropriately covered. That is what the
delegated guardian in the centre is focused on and consults with appropriate
experts just as a parent would.
MR WIGNEY:
I think we established yesterday that the Department Managers and
Deputy Managers at these detention facilities, again, they also don't
have relevant expertise in child caring, do they?
MS GODWIN:
We established yesterday that they aren't trained teachers, doctors
or nurses, or a variety of other things but we also established, I
think, that they are experienced Departmental officers with a degree
of expertise across a range of areas which would enable them to take
an appropriate degree of responsibility in this situation.
MR WIGNEY:
Well, whilst I've got you on these guidelines, even though it is a
slightly different point, can I ask you to go to page 10. You will
see there that there are some paragraphs in the guidelines concerning
detention, the first of which is paragraph 7.6:
Children seeking
asylum should not be kept in detention. This is particularly important
in the case of unaccompanied children.
Now, I don't
think you would quibble with me that that is not a recommendation
that Australia has taken up.
MS GODWIN:
Well, it is a well known point of view from the UNHCR but as I've
pointed out, these guidelines are not binding on States.
MR WIGNEY:
Paragraph 7.7:
States which,
regrettably and contrary to the preceding recommendation -
and I interpolate
including Australia in that sense -
may keep children
seeking asylum in detention should, in any event, observe Article
37 of the Convention of the Rights of the Child
which I think
we addressed yesterday -
according to
which detention shall be used only as a measure of last resort and
for the shortest appropriate period of time. If children who are asylum
seekers are detained in airports, immigration-holding centres or prisons,
they must not be held under prison?like conditions. All efforts must
be made to have them released from detention and placed in other appropriate
accommodation. If this proves impossible, special arrangements must
be made for living quarters which are suitable for children and their
families.
And I suppose
I ought to emphasise the final sentence:
The underlying
approach to such a programme should be 'care' and not 'detention'.
Facilities should not be located in isolated areas where culturally-appropriate
community resources and legal access may be unavailable.
Now, without
wanting to spend too much time on this, would you accept that, for
the most part, at least in the case of Woomera, Curtin when it was
open, and Port Hedland, that they are all located in isolated areas
where culturally appropriate community resources and legal access
may be unavailable?
MS GODWIN:
Well, I reiterate the point I made. These guidelines are not binding
on States. They represent exhortations, if you like, to best efforts
and so forth. We already explained yesterday, I think I made mention
in my opening statement, as to why Curtin and Woomera were located
where they were. Given their location then, we worked to provide an
appropriate range of services and facilities within those Centres
to enable the needs of the detainees to be met.
MR WIGNEY:
Okay. Well look, Mr Hunyor is giving me the hurry up, so perhaps I
ought to move on. Now, as I said before, I want to deal with some
of the more practical aspects of guardianship and, in particular,
the role of the Minister and the DIMIA Managers and Deputy Managers.
Can I ask you firstly some questions in that context about the period
of separation detention? The present situation, as we understand it,
is that for detainees generally, they are kept in a period of separation
detention for a period of time when they first arrive in a detention
facility. Is that right?
MS GODWIN:
That is standard practice, yes.
MR WIGNEY:
I think, and I will take you to it if need be, the ACM Operations
Manual which deals with separation detention does not delineate or
distinguish between other detainees and unaccompanied minors in relation
to their treatment during the period of separation detention. Is that
right?
MS GODWIN:
Well, you are referring to the document. I accept the reference that
you are making.
MR WIGNEY:
Well, there's no separate provisions in the ACM Operations Manual,
and I will take you to it in this bundle if need be. I think you are
being given two folders. I shouldn't ask you questions about these
things without taking you to the documents. The first document in
the second folder is, in fact, the ACM policy in relation to separation
detention. Just to be clear, if one goes on to the second page, it
sets out the purpose of the separation detention:
To ensure that
newly arrived detainees are kept separate, unable to communicate with
or be seen by other detainees or persons not permitted by DIMIA, at
the facility.
Accepting for
the present purposes that unaccompanied minors may be in a vulnerable
position, there's no separate provision for how unaccompanied minors
are to be dealt with during this period of separation detention, is
there?
MS GODWIN:
Well, I mean, without reading the whole document, I accept the
proposition you are putting, but that does not mean that as a matter
of practice, that isn't something that is looked at and considered
while people are in separation detention.
MR WIGNEY:
Now, can I ask you this general question, is there any separate
accommodation for unaccompanied minors during this period of separation
detention, or are they put in with the other detainees generally?
MS GODWIN:
It would depend very much on the circumstances. I mean, a number
of the centres have more than one area for use in separation detention.
They have the capacity, if not within a separate building then within
a separate area within a building, to provide accommodation for particular
groups. It would just really depend on the circumstances at the time
and the numbers, and the other point that I think I made yesterday
was that at that point of arrival and induction into separation, we
may not be aware yet of all of the details and all of the circumstances
of people in the group.
Particularly
where young men, 16 or 17, have travelled with other family groups
and are, in a sense, linked to them, it may well be in those circumstances
appropriate as an initial thing, or maybe even as an ongoing thing,
for them to remain with that group. So, as I say, this would really
very much depend on the nature of the group and the circumstances
of the people within it.
MR WIGNEY:
In the interests of brevity, can I just put this general proposition
to you and ask you for your comment. During this process which, I
think, is sometimes referred to as the reception or screening process
- that is when the person is first arriving in immigration detention
- the situation is this, is it not, that the Minister as guardian
and, indeed, his delegate for the relevant purposes, the DIMIA Manager
or Deputy Manager, they play no effective part as guardian or as a
person who has the powers of guardian in relation to advising or guiding
the minor through this reception or screening process?
MS GODWIN:
Well, they don't but I need to make a point about the reception or
screening process. There's nothing complex about this process. It
is simply a matter of sitting down with individuals with an interpreter
and working through what was their purpose for coming to Australia,
and is there any reason not to leave. So this is simply a process
whereby people need to tell their story, you know, in a frank and
- it does not have to be a complex sort of thing. They just need to
tell us what their story is and what their circumstances are.
DR OZDOWSKI:
How long, if I could ask, does the separation detention take?
MS GODWIN:
Well, it can vary but in the vast majority of circumstances, it
would be for a relatively short period of time.
DR OZDOWSKI:
A month, two months, three months?
MS GODWIN:
No, I mean, days in the majority of instances.
DR OZDOWSKI:
Thank you.
MR WIGNEY:
Just taking the point raised by the Commissioner up, I think the situation
is that MSI 357, which is a new or relatively new instruction issued
on 2 September of this year, includes paragraph 5.1.3 which specifies
that in relation to time of unaccompanied minors in separation detention
that the process should be approached as a matter of priority and
separate detention should be for the shortest possible time. Was there
any equivalent provision or instruction, policy instruction, prior
to the coming into being of the MSI 357?
MS GODWIN:
Well, I'm not necessarily aware of any written instruction but I think
we've made the general point a number of times that the formalisation
into instructions of this sort over the last, sort of 12 months or
more at different points in that process for different elements was
essentially a process of putting into those procedures established
practice, so this is something to which we have been or of which we
have been conscious for a period of time. The fact that there's not
a written policy instruction prior to this is not, of itself, reflective
of practice.
MR WIGNEY:
But would you accept, as a general proposition, that during this period
of separation detention and during this interview process that you
have just referred, the unaccompanied minors have no effective guardian
looking after their interests, that is, someone that is with them
advising or guiding them through this process?
MS GODWIN:
Well, the process is explained to them as part of the interview
with an interpreter. The overall nature of the process is explained.
The circumstances of their detention are supervised by staff in the
centre so I don't necessarily accept the general proposition that
you are putting.
MR WIGNEY:
But those people are not guardians or people with powers of guardians
who are specifically charged with looking after the rights of the
child at this stage, are they?
MS GODWIN:
Well, I mean, there's a point at which, and I described this process
yesterday, the fact is, at this early stage, we may not be aware that
they are an unaccompanied minor. We may not be aware that they are
a ward. That is a process which, in a sense is established through
this initial entry process where we try to establish as clearly as
we can at that initial stage just who all of the people in the group
are, what their circumstances are. It is not uncommon for people to
present themselves as being part of a group and trying to tease out
then what the relationships are within the group.
I also mentioned
the issue of age where it is often indeterminate at a point in the
process, and we have certainly had cases where the assessment of someone's
age has shifted both ways, so as I say, at this particular point,
as I say, they may not at that point have been identified as someone
to whom the Minister has formal guardianship responsibilities. Nonetheless,
the way in which the overall process is managed is designed to ensure
that people have information about the process, understand how it
sits in to the broader application process, and it is not an adversarial
situation.
It is one where,
as I say, people are invited to simply tell their story. That can
often be a time consuming interview, sometimes several hours, so it
is not one where we are attempting to limit people's opportunity,
quite the reverse - give them as much opportunity as possible to explain
what their circumstances are. In that context, it may well be that
as a result of that interview that the question of whether or not
they are an unaccompanied minor is established. I mean, the other
point to make and it is a difficult one in some respects, but it is
not unknown from our perspective within detention for people to not
mention family relationships because they think that that will somehow
have some benefit to their processing or, indeed, to claim to be part
of a family group.
It is only subsequently
that we establish, in any substantive way, that they are not, so this
is a process of working through with individuals who they are and
why they are here and what is it that we can do to expedite their
situation as much as we can. As I've said, that entry process, the
period in which they are in separation detention, for very, very many
people who enter detention over the last couple of years, was as short
as three or four days because I described yesterday, I think, the
process whereby we virtually had staff on the ground within 24 hours
of the group arriving, and they would work through - we would send
teams of staff so that there were enough staff to work through the
entry process within just a matter of days.
MR WIGNEY:
Just wrapping up in relation at least to the period of separation
detention or the screening process, the likelihood is that the interview
conducted with a minor for the purpose of the screening process will
occur with the minor by himself or herself, the immigration officer
and perhaps an interpreter if the child is not an English speaker.
Is that the ordinary situation?
MS GODWIN:
Yes. It is probably - you used the word, is that the ordinary situation,
it probably is the ordinary situation but it is not necessarily always
that situation. If a child is reasonably young or there are other
circumstances, it may well be that someone else would attend the interview
with them.
MR WIGNEY:
But certainly as far as you are aware, there's no policy or instruction
providing that as a rule there ought be some form of neutral adult
with the child during this period - by 'neutral' I mean a non-Departmental
officer - is that right?
MS GODWIN:
Well, there's not such a requirement as that. As I say, the fact is
that that part of the process and the rest of the primary process
is not adversarial, it is simply a process of teasing out what the
person has to say. Case officers are trained to do that and take account
of particular circumstances of individual interviewees.
MR WIGNEY:
Can I just move now to I suppose the next phase and that is that if
claims are made which would perhaps raise Australia's protection obligations,
we move then to what I suppose is called the refugee status determination
phase. Is that right?
MS GODWIN:
Yes.
MR WIGNEY:
During that phase, the Minister remains as guardian, is that right?
MS GODWIN:
Yes.
MR WIGNEY:
I think without getting bogged down in the legalities of it, there's
certainly been a Federal Court case to the effect that the Minister,
notwithstanding the fact that he is the ultimate decision?maker for
the visa, is in no conflict of interest position because he is not
the guardian for the purpose of advancing protection visa applications.
Is that your understanding?
MS GODWIN:
That is as I understand the outcome of that particular court case,
yes.
MR WIGNEY:
So at least in those states where the delegation of - Minister's delegation
of his powers as a guardian where the child is in immigration detention
is only to the DIMIA Manager or Deputy Manager, that Manager or Deputy
Manager is effectively the only person in the role of performing any
role of guardian during the refugee status determination phase. Is
that right?
MS GODWIN:
Well, they're performing the formal role of guardian but I'm sure
you are aware that in every one of those situations where someone
moves to make a formal application for refugee status through a TPV
application, they are appointed - sorry, they are offered - an adviser
paid for by the Government but who operates independent of DIMIA and
I'm certainly not aware of instances where certainly in relation to
unaccompanied minors that that offer of advice and support through
the process has not been taken up.
MR WIGNEY:
Well, I will come back to that adviser role in a moment but would
you accept as a general proposition that the DIMIA Manager or Deputy
Manager as the delegate of the Minister's powers as guardian plays
no effective role in the refugee status determination? That is, does
not personally assist or guide the minor through that process, that
is, the refugee status determination process?
MS GODWIN:
Well, I mean, they may provide assistance in the form of information.
I mean, our staff in the centres, that is one of their functions but
they are not part of the decision-making process because that is focussed
on deciding the circumstances and facts of the actual application
in a way that isn't, in a sense, related to actions or issues that
arose in a detention centre. The fact is as well that, as I've said,
we regard that advice and support specifically in relation to the
application as being provided by the IAAAS provider which all of them
have and who is competent and capable of providing information and
advice about the process and taking them through it, in fact works
with them through that process.
MR WIGNEY:
The IAAAS lawyer is a person's lawyer, he is not a replacement for
a guardian, is he or she?
MR WALKER:
Well, I think you need to also put it in the context of the accompanied
minors and other persons and adults within that protection visa application
process. They are provided with a similar adviser and also older children
may make their own individual claims. Now, their parent or guardian
who is with them does not necessarily or isn't able to assist them
terribly much with going through the protection visa application process
and the claims. That is why the IAAAS provider is offered.
MS GODWIN:
Sorry, could I just add one other thing to what Mr Walker has
been saying and that is that there is a Full Federal Court case which
deals broadly with this issue and that case found that the Minister
is not required to appoint an individual guardian to an unaccompanied
minor and that the provision of IAAAS's assistance in this context
is sufficient.
MR WIGNEY:
Well, I suppose the difficulty we have with that proposition is that
the Commission has heard some evidence from legal advisers and in
fact I will read a passage from the evidence which I understand was
public evidence over a minor about the fact that, look, the fact that
the unaccompanied minor has no effective guardian causes them difficulties,
for example in taking instructions or effectively advising the minor.
Children are processed - can you just bear with me for a moment? I
will read the passage. It is some evidence that was given by a Mr
David Manne who was from the Refugee and Immigration Legal Centre.
He said this - this occurred during the proceedings of the Commission
in Melbourne on 30 May:
In not having
that independent person -
meaning effectively
someone performing the role of a guardian -
it is not possible
to fully get instructions and fully provide advice, particularly if
the unaccompanied minor who is someone which is a child who doesn't
fully comprehend the consequences of what is happening, or what they
are actually saying. I should also note in this area it is particularly
important - it is important in all areas of law for independent guardians
to be appointed in our view. Particularly important in this case where
you are talking about a lot of other issues being in play at the same
time. Different cultural issues. Different issues that might impact
on the child, given torture and trauma experiences
And then Mr Manne
then goes on to refer to the fact that it takes a long time to build
up trust with a client, whether adult or child.
You would agree
that the lawyer in general terms is really no replacement for someone
performing an active role as guardian during this process, would you
agree with that?
MS GODWIN:
I regard it as our responsibility to ensure that people get proper
advice and assistance in order to make their applications and that
proper advice and assistance is provided.
MR WIGNEY:
Can I then ask you again in fairly general terms, about the interview
process that takes place as part of the refugee status determination
phase, paragraph 8.4 of the UNHCR Guidelines states that
the interviews
that is, interviews
during the refugee status determination period for unaccompanied children,
should be conducted
by specially qualified and trained representatives of the refugee
determination authority who will take into account the special situation
of unaccompanied children, in order to carry out the refugee status
assessment.
Just in the interests
of brevity, we - that is, the Commission has seen no indication in
any of the documents, or evidence that it has received, that DIMIA
case officers who deal with unaccompanied minors are specially trained
in relation to, to take into account the special situation of unaccompanied
children. Are you able to comment on that please?
MR ILLINGWORTH:
Yes, you have documentation which shows that the topic of unaccompanied
minors was included in our training, both induction training and top-up
training which was conducted last year, using an external consultant.
You also have documentation which shows that one of the core resource
documents we use for our training is in fact this document which is
the UNHCR Handbook on Procedures and Criteria for Determining Refugee
Status which itself includes a number of paragraphs which itemise
the sorts of considerations to take into account when dealing with
unaccompanied minors.
That having been
said of course, this is a non-binding document which is really just
setting out what the UNHCR suggests the State should perhaps aspire
to, so it is a guidance in terms of indicating what the UNHCR's aspirations
and their objectives are. The long and short of it is, that through
our processes of training, and through our processes of monitoring,
and I believe you also have documentation which shows that one of
the issues that is specifically monitored and reported on by the team
leaders that are deployed to do this work in the IRPCs, is unaccompanied
minors. You will see that there is plenty of evidence to indicate
that it is a continuing concern of ours.
MR WIGNEY:
Sorry, it was a long answer. Can I just take up one or two of the
points?
MR ILLINGWORTH:
Sure.
MR WIGNEY:
Firstly, you refer to some training that commenced or began ---
MR ILLINGWORTH:
Induction training.
MR WIGNEY:
---late last year, is that right?
MR ILLINGWORTH:
There was specific training last year which used an external consultant
but our long-standing induction training has as one element, the use
of the refugee handbook produced by the UNHCR as a source work. All
case officers who are being inducted into its line of work, and it
is a specialised line of work, are provided with a copy of the Convention
and the UNHCR handbook and you will see at paragraphs 213-219, that
there's extensive coverage of the principles that the UNHCR thinks
are important in dealing with these issues.
I believe you
also have copies of the instructions which are used by team leaders,
which are leading teams of interviewing officers to the IDCs and amongst
those instructions there are specific references I believe, to unaccompanied
minors.
MR WIGNEY:
That may be an appropriate time ---
DR OZDOWSKI:
This will be concluding ---
MR WIGNEY:
Yes.
DR OZDOWSKI:
Please continue but we said ---
MR WIGNEY:
I was going to move onto a different topic so perhaps that might be
an appropriate time.
DR OZDOWSKI:
That is fine. Thank you. Mr Bromwich, anything to add?
MR BROMWICH:
Not at this time, Commissioner, thank you.
DR OZDOWSKI:
Nothing from ACM? So thank you very much and we will meet tomorrow,
9 o'clock.
ADJOURNED
UNTIL WEDNESDAY, 4 DECEMBER 2002 [5.05pm]
Last
Updated 3 February 2003.
