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Submission to National Inquiry

into Children in Immigration Detention from

Commonwealth Ombudsman


1.

MAJOR INVESTIGATIONS UNDERTAKEN BY THE OMBUDSMAN RESULTING IN RECOMMENDATIONS

REGARDING CHILDREN IN DETENTION

2.

ISSUES ARISING FROM COMPLAINTS TO THE OMBUDSMAN ABOUT CHILDREN IN DETENTION

3.

DRAFT IMMIGRATION DETENTION STANDARDS


1. MAJOR INVESTIGATIONS UNDERTAKEN

BY THE OMBUDSMAN RESULTING IN RECOMMENDATIONS REGARDING CHILDREN IN DETENTION

1.1 Own Motion

investigation into DIMIA's Immigration Detention Centres

This Office issued

a formal report on Immigration Detention Centres in March 2001 which contained

a number of recommendations to DIMIA for improvements in arrangements

for children. The investigation was conducted following complaints and

a number of reported incidents including escapes and allegations of assault

on detainees. It revealed evidence at every immigration detention facility

of self-harm, damage to property, fights and assaults which suggested

that there were systemic deficiencies in the management of detainees,

including women and children. Overall, it was my view at that time that

DIMIA should have been more sensitive to the need for special provision

to be made to better cater for the needs of women and children and others

at risk living in a communal detention environment.

Two of the investigation

report recommendations addressed particularly the needs of children.

Recommendation

3: DIMIA reassess the accommodation and conditions in IDCs to avoid

overcrowding and provide appropriately for families, women and children

and individuals with special needs, to ensure that they are not exposed

to harm.

In response DIMIA

advised, inter alia, the following:

"…A

range of facilities and programs for families, women and children is in

place in detention facilities and their review is ongoing. ACM has been

asked to review as a matter of urgency all support programs for children,

and for women and children. In newer centres in particular, programs and

facilities continue to be developed and enhanced.

Completion of

upgrades to facilities at Villawood and Woomera over the next two to three

months will provide further flexibility to respond to the needs of women

and children. An area within the Port Hedland centre for recreational

use by women and children only will be established.

To the extent

possible, DIMIA will continue to take steps to ensure that infrastructure

development at each of the centres takes account of the desirability of

having separate facilities available for women and children, recognising

that there are cost implications, both infrastructural and operational.

These issues will also be taken into account in the development of new

centres."

The Office has sought

an update from DIMIA on progress in implementing these plans. Informally,

advice has been received about improvements in infrastructure in detention

facilities. These include the establishment of a specific area for children's

educational and play activities within the Woomera centre; and a "kindergym"

for mothers and toddlers at the Port Headland detention facility.

Recommendation

4: DIMIA pursue alternatives to detention for families; women at risk;

children, and individuals with special needs, outside the major detention

centres.

DIMIA's response

to this recommendation was as follows:

"Minister

Ruddock has announced that he proposes to trial some different detention

arrangements than those which currently exist for women and children with

a view to implementing such arrangements on a larger scale if they prove

effective. Priority is being given to consultations with the Woomera town

community."

A three to six month

trial project offering alternative accommodation for women and children

in detention was announced by Minister Ruddock in August 2001. It involved

25 women and children being housed in a cluster of four, three-bedroom

houses in Woomera. Participants were selected against criteria such as:

  • Having a family

    member remaining at the Woomera centre;

  • Having an application

    for asylum under consideration; and

  • Posing no character

    or management risks.

Although the families

are able to live in a relatively stable family environment, participants

are still in detention and subject to 24 hour supervision by ACM, including

being escorted by ACM officers when attending local facilities including

the pool, movie theatre or shopping centre. The children either attend

the local school or participate in detention facility educational activities.

They are also able to visit other family members still housed in the Woomera

detention facility.

The trial is a positive

response by DIMIA to the concerns already raised in response to complaints

and investigations by my office, as well as independent inquiries such

as the Flood Report. Access to such family living arrangements would be

of benefit to all detained adults with children who have satisfactorily

completed necessary health and character checks, regardless of the status

of their applications for protection. It is arguable that those children

facing long periods of detention, perhaps because their parent's application

for refugee status is proving difficult to determine or is the subject

of appeal following initial rejection, are most likely to be in need of

the secure environment offered by the family accommodation arrangement.

The project is currently

being evaluated by DIMIA.

1.2 Own Motion

Investigation into Incident Reporting in Immigration Detention Centres

(November 2001 - no formal report but opinions provided to DIMIA)

This investigation

arose from the own motion investigation into the management and operation

of immigration detention centres and focuses on the processes and systems

for identifying, reporting, follow up and systemic analysis of incidents

ranging from riots and self harm incidents to complaints about conditions

in the centres and breaches of centre rules. Incident reporting is a major

source of information for DIMIA in assessing the performance of ACM in

its management of the centres.

While the investigation

did not proceed to a formal report, the Ombudsman wrote to the Secretary

of DIMIA setting out his opinions on the reporting processes used by ACM.

One of these opinions made particular reference to children.

Opinion 9:

ACM staff should ensure that all staff are fully aware of the requirements

of its new Children Detention Policy staff instruction. This requirement

should form a component of all induction and refresher training courses.

DIMIA responded:

"ACM and

DIMIA submit that the issues raised here were addressed comprehensively

following the findings of the Flood Report. Closer consultation with all

State Government authorities now occurs as a matter of course. Further,

ACM staff at Woomera have received training from (the SA Dept of) Family

and Youth Services in relation to child abuse issues. The requirement

for training for ACM staff at other centres is included in draft MOUs

currently being negotiated with relevant State Government agencies."

This Office has maintained

an ongoing interest in the progress of DIMIA's negotiations with various

State and Territory agencies in the areas of health, education and child

welfare. The most recent advice from DIMIA (February 2002) is that the

DIMIA has concluded an agreement with the South Australian Department

of Human Services (formerly Family and Youth Services) and that it is

in the process of negotiating similar agreements with other States and

Territories. This is the only agency of any of those with a possible involvement

with IDCs to have formally settled an agreement with DIMIA. In relation

to agreements with police, negotiation between various agencies is continuing.

The development of agreements between DIMIA and health and education authorities

appears to be less advanced.

The investigation

into incident reporting brought to light other issues relevant to the

HREOC inquiry and on which I would like to comment.

The investigation

involved the analysis of a number of incident reports which provided insight

into the conditions affecting children held in detention. Of the 1,979

incident reports examined, seven concerned allegations of child abuse

and while the number of cases is small, any instance of alleged child

abuse in detention facilities is significant and must be taken seriously.

In relation to those allegations which were the subject of incident reports

by ACM, my office examined several in detail, focusing on action taken

by ACM and DIMIA. There was evidence that DIMIA Central Office did not

always become involved in following up the issues raised in the reports.

More serious incidents to which DIMIA staff appear not to have responded

include:

  • A 16 year old

    male detainee claimed he was being sexually harassed by a male detainee.

    This had allegedly been going on for some time and he was afraid he

    would be hurt;

  • A 17 year old

    male detainee claimed that another detainee had inappropriately touched

    him. The accused detainee had previously been the subject of allegations

    about inappropriate behaviour to two female children. Police were not

    called; and

  • A female detainee

    was observed punching and kicking her 11 year old son. The woman was

    considered to be suffering from psychological stress.

Child abuse allegations

considered by the Flood report (the Report of the inquiry into Immigration

Detention Procedures) for calendar year 2000 (a period roughly similar

to that of the incident report investigation) included a significant proportion

of alleged incidents which were not the subject of incident reports

and were not notified to State child welfare agencies nor to State police.

Among these were the following, although I note that none has been investigated

by this office and I am therefore unable to comment on their substance:

  • A nurse suspected

    a 12 year old boy had been abused and raped. The nurse created a medical

    report but an incident report was never produced.

  • There were rumours

    that a 16 year old girl was involved in prostitution in the centre.

  • A seven year

    old boy fell from a tree and injured himself. His older brother was

    his sole carer. It was questioned whether the brother was capable of

    performing the carer role.

  • A father complained

    that his 16 year old son had been assaulted by an ACM staff member.

  • A mother claimed

    that she and her daughters were being verbally harassed by two male

    detainees.

In my opinion the

non-reporting of incidents creates a definite risk in potential child

abuse cases and a suspicion of abuse should be sufficient to generate

an incident report for DIMIA in all cases. I note that in a number of

the instances cited by Flood, there was no more than a rumour or a suspicion

that abuse might have been occurring. However, in my opinion ACM staff

should not be attempting to assess the merits of such information and

making decisions as to what should or should not be reported. ACM Head

Office and DIMIA should always be given the opportunity to make their

own evaluations of such information and consider appropriate responses.

It remains of concern

that such fundamental issues as reporting of child abuse or child neglect,

the circumstances in which local police become involved in disturbances

at IDCs, and the responsibility and role of State/Territory educational,

health and police authorities, are still not covered by formal arrangements.

2. ISSUES ARISING FROM COMPLAINTS

TO THE OMBUDSMAN ABOUT CHILDREN IN DETENTION

The Office has received

an increasing number of complaints from, on behalf of or about detainees

in Immigration detention facilities over each of the last three years:

Complaints regarding

detainees in Immigration detention facilities

Calendar

Year

Total complaints Number

specifically re children

1999 42 3
2000 89 6
2001 102 4

Very few complaints

relate specifically to the situation of children, although concerns about

the impact of detention on children have also been raised in the context

of complaints received about other detention matters. While I acknowledge

that the number of complaints to this office specifically about children

is small, the issues raised give weight to concerns about the effects

of detention on children.

Areas covered by

complaints about children are summarised below with illustrative case

studies.

2.1 Impact of

detention on children

The significant day-to-day

limitations which detention places on the normal developmental opportunities

for children have been highlighted in several complaints, including:

  • a lack of access

    to normal play opportunities required for healthy development;

  • limited opportunities

    for education;

  • avoidable separation

    from immediate family members; and

  • insecurity caused

    by exposure to an environment where adults, and sometimes other children,

    may be engaged in acts of self-harm, damage to property, fights and

    assaults.

A complaint recently

received eloquently describes the limitations of detention from a child's

perspective. Ostensibly from a two-year-old child detained with his parents

and young siblings, the letter in fact was written by one of the child's

parents. It nevertheless identifies the concerns of detainees about these

limitations. I note that a copy of this letter was also provided to HREOC.

One complaint has

been received about the processing arrangements for a parent and children

in detention where the other parent has already been granted refugee status

and released into the community. It came from an Iraqi father who had

been living in Sydney on a Temporary Protection Visa for two years and

was concerned that his wife and 3 year old son had been in detention in

Port Hedland for 9 months. His wife had asked that her son be released

into his father's care. On investigation it emerged that DIMIA considered

the child's status to be dependent on that of his mother and responded

negatively to her request that her son be released to his father. The

mother and child were finally released 4 months after the complaint was

made. This complaint is consistent with the experiences of other applicants

for split family humanitarian visas which have been reported in the media

over recent months.

While it is Government

policy to differentiate between onshore and offshore split family humanitarian

visa applications - typically onshore split family applications are processed

separately from other family members who are already in Australia as a

means of deterring asylum seekers from seeking unauthorised entry - the

complaint suggests that the children of such families can be adversely

affected.

2.2 Psychological

and social well-being

Several complainants

raised concerns about apparent stress symptoms suffered by children in

detention, specifically depressive behaviours such as refusing food and

regressing to behaviours more appropriate to earlier stages in the child's

development, such as wanting to sleep with a parent.

One complaint, on

behalf of an Iranian woman and her two sons who had been in detention

for about 8 months, stated that the elder son, aged 11, had apparently

stopped talking properly and was wetting his bed. He was also having trouble

eating and presented with large dark circles under his eyes. The younger

son was also having difficulty eating and had lost weight. In this case

the complainant had already raised the matter with DIMIA and the office

exercised discretion not to investigate the matter further. However, the

office was advised by DIMIA that medical and psychological health services

were being provided for both children.

Another complaint

was received about the treatment of a detainee and his young son, who

was the subject of allegations of abuse. The ACM's response to the child

abuse allegations was considered in detail by the Flood Report. The complaint

to this office focussed primarily on the treatment of the detainees when

ACM decided to act on the allegations. The father and son were abruptly

removed from a detention facility and transferred separately to Adelaide

where they were kept apart for about one week, the child being installed

in a hospital while the father stayed elsewhere. The father was apparently

not advised why he and his son had been removed from Woomera, nor the

nature of the allegations against him. Subsequently both detainees were

twice moved to other accommodation, apparently to avoid media attention,

and on one occasion were forced to lie on the floor of a van when leaving

a restaurant, again to avoid the media.

The complaint included

allegations of failure by ACM to explain to either the father or the child

what was happening and why, and to take account of barriers to effective

communication in this context; poor handling by ACM of the privacy of

the child where there was obviously considerable media interest; and concerns

about the facilitation by ACM and DIMIA of police inquiries into the allegations.

Our investigation

established that the matter was, ultimately, handled appropriately by

ACM in removing the child from the situation. However, it also revealed

that ACM's handling of the removal from the detention centre and subsequent

events was deficient in some respects. ACM protocols for protecting individuals

in the handling of such high profile cases did not appear to be well established

or communicated to staff, and this shortcoming contributed to problems

with media exposure which are likely to have exacerbated any trauma from

which the child might have been suffering as a consequence of the alleged

abuse.

The issues raised

by this complaint highlighted again flaws in ACM policies on handling

child abuse matters which have been raised in the Flood report, including

reporting requirements in relation to State authorities. DIMIA has provided

comments on this complaint and the matter is still under consideration.

2.3 Education

While Immigration

Detention Standards specify that all child detainees should be provided

with education programs based on State/Territory curricula, there are

significant qualitative and quantitative differences between facilities

in the arrangements made for the education of children in detention. DIMIA

has advised that arrangements range from lessons provided within the detention

facility to attendance of children at local area schools. Complaints have

focused on the hours of schooling available, the ages of the children

who are able to attend, and provision of culturally appropriate educational

opportunities.

One complaint, which

illustrates the importance of a flexible approach to educational arrangements

and good communication between detention centre and State education department/school

authorities, was received from the father of a 10 year old Muslim boy

who was attending a local Catholic School. The child had been taught in

Christian religious education classes despite his mother's objection:

the school refused to allow the boy to be taken out of religious classes

on the ground that no other arrangements could be made for his care during

classes. When ACM offered to provide a custodial officer to care for the

child during religious education lessons the Principal of the school refused.

The local State school would not accept children who were non-residents

of Australia. The matter was finally resolved by the school's agreeing

to the child's attending two full days and three mornings of school per

week. He would be collected from the school by ACM prior to religious

education classes on those three days and would miss afternoon classes.

The issue of appropriate

arrangements for the education of children in detention was also raised

in the recommendations of the June 2001 report of the Joint Standing Committee

on Foreign Affairs, Defence and Trade on its Visits to Immigration Detention

Centres. The Committee recommended that DIMIA negotiate agreements with

State/Territory governments and non-government schools to facilitate access

to local schools. Some progress has been made. As at the writing of this

submission, DIMIA has advised that it has received legal advice on its

obligations under the Convention on the Rights of the Child and

has commenced the process of negotiating memoranda of understanding with

relevant States/Territory agencies.

Education arrangements

for children in the Woomera detention facility appear to have improved:

DIMIA has advised that since December 2001, children between the ages

of 5 and 16 years have been attending classes for half a day, 4 days a

week, in an empty Catholic school, and class hours have recently been

extended to 5 mornings per week.

2.4 Legal and

administrative framework issues unaccompanied minors

No complaints have

been received from or about unaccompanied children. However, based on

the office's experience, unaccompanied minors, many of whom do not speak

English, are likely to be a particularly disadvantaged group in terms

of their capacity to access the complaints system. It is therefore possible

that the lack of complaints from unaccompanied minors reflects a lack

of knowledge of, or difficulty in accessing, the complaints system. The

issues relating to children in detention generally are likely to apply

equally to unaccompanied minors.

Unaccompanied minors

have particular obligations owed to them in the context of detention.

These obligations are defined in the Immigration (Guardianship of Children)

Act 1946 (Cth). Section 6 of that Act states that the Minister shall

be the guardian of the person of every unaccompanied minor who arrives

in Australia and "shall have, as guardian, the same rights, powers,

duties, obligations and liabilities as a natural guardian of the child."

The Act permits the Minister to place a child in the custody of a person

who, under the Immigration (Guardianship of Children) Regulations

2001 (Cth), "must provide for the welfare and care" of the child

(reg 9(1)) and who has duties and obligations "the same as those

of a person in relation to a child who is placed in his or her care, or

of whom he or she becomes the guardian or foster parent, under the laws

of the State in which the custodian lives"(reg 9(2)).

DIMIA has advised

that case management plans have been developed for all unaccompanied minors

in detention.

  • child detainee

    held in adult correctional facility

A complaint was received

about the holding of a child in an adult correctional facility. The case

has been included here because it highlights the duty of care due to children

and the potential for detention to exacerbate difficulties that children

may already be experiencing.

The complaint concerned

the alleged incarceration of a child detainee in the local police station

for two weeks and the imposition of inappropriate punishments (deprivation

of air-conditioning and chilled water). Investigation revealed that a

14 year old male was one of seven detainees (the others were adults) transferred

from a detention facility to a local police station because of fears they

may have been planning disruptive activities. The minor was detained in

the station watch house for two weeks and subsequently claimed to be experiencing

psychological problems as a result of his experiences.

DIMIA advised that

transfer of detainees to correctional facilities occurred primarily when

ACM has concerns about the security of the detention centre, ACM or DIMIA

staff. Our investigation confirmed that the child had been held in the

watch house for two weeks but those aspects of the complaint relating

to the alleged punishment of the child could not be determined. However,

there was evidence that problems the child experienced in detention had

been exacerbated by incarceration in the watch house.

The child came from

a family that had a history of disruptive behaviour while in immigration

detention. The child was not attending school and was restless and frustrated,

although DIMIA noted that he could have attended English classes with

other detainees had he been willing to do so. DIMIA advised the child

was not attending school because local State secondary facilities were

not permitted to accept unlawful persons. DIMIA advised that in any event,

children of secondary age are considered to be at high risk of absconding.

In DIMIA's view, even if community-based schooling were available, it

would not have been appropriate for this child in view of the behaviours

he exhibited. The child was offered counselling, but DIMIA noted that

a number of factors other than imprisonment in the local watch house could

have contributed to his stress symptoms, citing particularly his family's

involvement in lip-sewing and hunger strikes.

2.5 Children in

detention overseas

The complaints discussed

above relate to children held in detention in facilities within Australia.

No complaints have been received concerning the circumstances of the children

who are currently in detention in Pacific island countries. DIMIA advised

that as at 23 April 2002 there were 367 children including 30 unaccompanied

minors in detention on Nauru and Manus Island. Nor am I in a position

to make informed comments on the conditions under which the detainees

are held. However, regardless of whether complaints from these detainees,

if received, would be within my jurisdiction, in my opinion, the detainees

are there at the behest of the Australian Government and Australia has

a moral duty of care in relation to any children detained in these circumstances.

As far as I can understand, DIMIA is under no legal obligation towards

detainees on these islands.

There is some evidence

that DIMIA can influence at least some of the conditions under which detainees

are being held offshore. For example, recent media reports suggested that

detainees who had been recognised as refugees and were awaiting placement

in a receiving country would have more flexible access to recreational

activities than detainees still awaiting a decision on their status. In

my view, it is arguable that as far as possible children held in detention

offshore receive access to services and facilities to a standard similar

to that received by their counterparts in onshore detention facilities.

3. DRAFT IMMIGRATION DETENTION

STANDARDS

DIMIA has promulgated

a set of standards, the Immigration Detention Standards (IDS) that govern

the conditions required to be observed by the Service Provider in the

provision of detention services. Written comments were provided to DIMIA

on its proposed revised IDS in October 2001 in the context of DIMIA's

preparation of its Request for Tender for the new Service Provider contract.

On 5 December 2001 DIMIA released an exposure draft of its Request for

Tender for provision of detention services, incorporating further revisions

of the IDS, and invited comment from the Ombudsman on both the standards

and performance measures detailed in that document. Representatives of

the Ombudsman met with DIMIA on 13 December 2001 to provide oral feedback

on the standards and performance measures included in the exposure draft.

The oral comments

to DIMIA included our overall impression that there was insufficient detail

about the level of evidence required to establish that performance standards

were being met. For example, this office indicated a concern that performance

measures in relation to the provision of health services did not prescribe

minimum standards of care and that it was not incumbent upon the Service

Provider to provide actual evidence of practice. DIMIA has hitherto resisted

the suggestion in our written response in October 2001 that a defined

ratio between the number of inmates and medical staff be enshrined in

the IDS. The concern that performance measures do not, generally, prescribe

minimum standards to be observed can be applied to a number of other provisions

of the IDS.

The draft IDS state

that "The Department takes seriously, consistent with its responsibility

under the UN Convention of the Rights of the Child, its duty of care to

all children in immigration detention. The IDS requires the Service Provider

to pay particular attention to the welfare and protection of children

in detention and their educational and developmental needs." Similarly,

the IDS make specific reference to the position of unaccompanied minors

in detention, acknowledging that "a special duty of care is owed

to unaccompanied minors because of the Minister's guardianship responsibilities

for these children" and that "[a]rrangements need to be in place

to ensure that these children are treated appropriately, understand their

situation and what is happening to them and whom they can approach for

assistance while in detention."

The standards themselves

contain, for the most part, detailed provisions as to what is appropriate

to provide to children in detention. However, the performance measures

are structured in a way that does not prescribe minimum standards but

typically require 'no substantiated instance' of a particular standard

not being met. Further, that part of the IDS which relate to what is required

to be addressed in a tender are often silent as to what particular

provision will be made for children in detention.

While the Statement

of Requirements and the Overview specifically refers to the need to pay

particular attention to the needs of unaccompanied minors, children, families

and women, few of the performance standards/measures specifically refer

to these individual needs. Consequently, reporting and measurement of

performance may not reflect the need to weight performance in these areas

appropriately.

These standards are

reaching finalisation and it is presently unclear the extent to which

the comments that I have made have been incorporated into the final version.

Whilst the following expansion on our observations have not been specifically

made to DIMIA, they form part of a more general concern regarding the

lack of basic requirements contained in the IDS performance measure which

has been conveyed to the Department and I hope will be taken into account

in relation to the following areas.

3.1 Separation

detention

The notion of separation

detention refers to the placement of new arrivals in IDCs into a separate

area of a facility in order to provide DIMIA "with the assurance

that any claims by unlawful non-citizens to remain in Australia are put

forward by detainees without the embellishment or coaching of others."

Whilst in separation

detention, detainees are not permitted to make telephone calls or to correspond

with people in the Australian community. In consultation with the Department,

detainees in separation detention may have access to bodies such the Ombudsman

and HREOC. However, the IDS and performance measures remain silent as

to the circumstances in which an unaccompanied minor in detention can

gain access to external bodies. Further, the tenderer is not required

to provide any specific information on how they will deal with children

in separation detention. Unaccompanied minors would be extremely vulnerable

during separation detention and consequently specific support should be

provided. The current standards do not highlight these special needs.

3.2 Health care

The basic standard

of care outlined in the IDS is that "the level of primary health

care services to detainees in detention facilities should sit broadly

with the norms of primary health care available to members of the Australian

community through a general practitioner …". Specific reference

is made to unaccompanied minors, in that in light of the Minister's "particular

guardianship responsibilities", "arrangements need to be in

place to ensure that such children are accessing and receiving appropriate

health care." Health care extends to psychiatric and psychological

services.

There is no precise

specification of the manner in which health services are to be provided.

As noted above, DIMIA did not agree with this office's recommendation

that a particular ratio of medical staff to detainees be incorporated

into the IDS. Whilst the performance measures require that detainees have

access to timely and effective primary health care, including psychological

and psychiatric services, the ultimate measure is that there must be "no

substantiated instance of a detainee not having access to health care

of this nature." Rather than placing a positive obligation on the

Service Provider to ensure appropriate services are available, the performance

measure is reactive and may result in particular health services becoming

available in response to a substantiated instance where they have not

been available.

3.3 Special care

A further example

of this office's general concern in relation to performance measures not

prescribing minimum standards is found in the area of 'special care'.

The broad requirements for care of minors in detention are specified in

the IDS. The Service Provider "is required to address the special

needs of minors in detention, particularly their psychological wellbeing

and developmental needs, taking into account the best interests of each

child. Given the particular guardianship responsibilities of the Minister

for unaccompanied minors, arrangements are required to ensure that such

children are accessing and receiving appropriate, individual care."

The performance

measures require that the special care needs of detainees be identified,

assessed and responded to and these include minors, particularly unaccompanied

minors, detainees in need of psychiatric or psychological treatment, and

detainees at risk. The performance measures require that the Department

be provided with evidence, on a monthly basis, that the special care needs

of detainees are being met. There are specific performance measures in

relation to children which require that the "safety, care, welfare

and well-being of detainee children, in particular unaccompanied minors,

are managed effectively and appropriately in accordance with:

  • their age, family

    circumstances, gender, background (cultural, linguistic, religious),

    personal history and physical/mental health;

  • the law;
  • relevant memoranda

    of Understanding and other agreements between the Department and State/Territory

    agencies; and

  • relevant departmental

    procedures or instructions.

Further, the performance

measures requires that "there is to be no substantiated instance

of detainee children not being managed according to this Standard and

linkages an unaccompanied minor may have formed with members of his or

her extended family or other care-givers not being taken into account."

It is arguable that,

despite the laudable requirement that particular attention be provided

to the needs of minors, both accompanied and unaccompanied, the IDS do

not specify the basic threshold standards of education, recreation and

health and that as such, Service Providers are given too great discretion

in deciding how they will meet these requirements.

3.4 Education

Education has been

referred to above, in the context of the complaints received. The IDS

require that all children should regularly attend educational classes,

that such classes should be based on State/Territory curricula. The standards

also require that there should be after-school activities and school holiday

programmes in addition to normal unstructured play opportunities. The

standards further require that children have access to safe, secure areas

where they can play and that sporting and recreational activities are

to be available.

The performance measures

require that the Department be provided with evidence, on a monthly basis

that such educational services are available. Phrases such as 'reasonable

period' and 'regular basis' are arguably, too imprecise to ensure the

adequate provision of education, particularly in light of the fact that

such matters are stringently defined in State/Territory curricula. Moreover,

the IDS and concomitant performance measures are silent as to the type

of educational services to be provided to children with learning difficulties,

children who suffer from trauma and mental illness and to children with

behavioural problems. Similarly, the performance measures which refer

to after-school and school holiday programmes require that there be evidence

provided that such programmes/materials are available. They do not specify

the regularity with which such programmes are to be made available.

Further, there are no minimum standards prescribed in relation to the

provision of sporting, leisure and recreational facilities. The performance

measures merely require that the DIMIA be provided with "evidence

that strategies are developed and implemented to ensure children's sporting,

leisure and recreational needs are met."

3.5 Communication

and visits

Whilst the IDS acknowledge

the role of HREOC and the Ombudsman in investigating individual written

complaints and in visiting the centres, this office regularly receives

complaints in oral form. There appears to be a direct conflict between

this and section 7(1) of the Ombudsman Act 1976 (Cth) which permits

complaints to be made orally. However, we have been informed by DIMIA

that when the IDS are settled and released, they will be amended to reflect

the fact that this office is empowered to receive complaints in oral form.

The performance measures

require, inter alia, that detainees be informed of the services available

to them for the making of complaints, that the Department is provided

with evidence that such information is provided within 5 days of arrival,

that it is current and comprehensive, that it is available to detainees

through written and oral communication and is regularly communicated.

However, no reference is made to any special measures that should be in

place to ensure that unaccompanied minors are aware of the avenues through

which they may pursue complaints that they have, nor is there any indication

of any special assistance to be provided to unaccompanied minors in voicing

complaints they may have.

3.6 Security and

order

This portion of the

IDS addresses the use of force or instruments of restraint, and punishment

for non-compliance with orders and directions. Again, our general concern

is that performance measures are not specific. For example, it is of significant

concern that, with the exception of the use of instruments of restraints

(which are not to be used on minors under the age of 10), no specific

reference is made to the circumstances in which force and restraint can

be used against minors. Therefore, the full scope of the IDS in relation

to the use of force would appear to apply equally to children and adults.

In the absence of any specific provision, it appears that the minors could

be subject to the use of force, and placement in isolation detention.

The IDS do not overtly mention the possibility of isolation detention

or the severe restriction of movement, but it is clearly implicit. The

performance measure refers to a requirement that there be "no substantiated

instance of a detainee whose movements in the facility are restricted:

  • not being seen

    daily by qualified medical staff; and

  • not being the

    subject of adequate, detailed records."

Given that it is

an extreme measure to use force against a child, it is of concern that

the IDS are largely silent as to the nature of and the circumstances in

which force may be used against children.

Issues of child abuse

have been canvassed above, but it is pertinent to note that whilst the

IDS require that "any allegations or reasonable suspicions of assault,

including sexual assault, of minors are referred promptly to the appropriate

authorities, in accordance with the law and relevant understanding with

State/Territory agencies, and to the Department's managers", DIMIA

has informed us that such understandings with appropriate agencies have

only been settled with the South Australian Department of Human Services.

In circumstances where a decision is made to separate a detainee for a

specific reason, for any period of time, it is essential that immediate

arrangements are made for dependent children who may be without alternative

support within the detention centre. It is not appropriate for children

to be held in secure compounds with groups of detainees who have been

separated on the basis of their aggressive behaviour, anger, violence

etc as was the case during the riots in Woomera in mid 2000. In such circumstances

it will normally be appropriate for the assistance of the relevant State

authorities to be immediately sought.

Last

Updated 30 June 2003.