Submission to National Inquiry
into Children in Immigration Detention from
SA Coalition for Refugee Children
- Diversity Directions Inc.
Diana Collett - Child & Youth Health and South Australians for Justice
Tina Dolgopol - President of Action for Children Inc
Julie Redman - Chair of the Children and the Law Committee, Law Society
of South Australia
Rosemary Steen - Chair of the Coalition, Children and the Law Committee,
Law Society of South Australia
Carey Trundle - Children and the Law Committee, Law Society of South Australia
Part 2 of
the Coalition Submission includes the research and writings of the following
members of the Australian Early Childhood Association (AECA) SA Branch:
Part 3 of
the Coalition Submission is based on the research and writings of the
following students at The Flinders University of South Australia:
part of the submission is based on the research and writings of Tania
Steinmuller an SJD student at the Australian National University.
They were supervised
by Tina Dolgopol, Senior Lecturer in Law, The Flinders University of South
the South Australian Coalition for Refugee Children
of the South Australian Coalition for Refugee Children
- Refugee Children: Guidelines on Protection and Care
Status of Child Asylum Seekers
Health and Development
Early Childhood Association (AECA) SA Branch Report
- Bibliography to
material on UNHCR Guidelines
the South Australian Coalition for Refugee Children
The impetus for the
Coalition grew out of a day seminar entitled "Children, asylum
& detention Is this the Australian Way?" held in Adelaide
on 30th June 2001, co-ordinated by The Law Society of South Australia
Children and the Law Committee, Action for Children SA and the Australian
Refugee Association Inc. and generously supported by the Law Foundation
of South Australia. Individuals and organizations have joined together
with the following shared goals: -
the South Australian Coalition for Refugee Children
1. We oppose the
mandatory detention of asylum seekers.
2. We acknowledge
the fundamental right and need for children to live with their families
in a safe and supportive environment.
3. We deplore the
physical, emotional and psychological harm and resultant developmental
damage of children and their families caused by continued detention.
4. Release from
detention is our primary aim. Until that is achieved, we seek to make
life in detention more tolerable.
5. We call for
all families and unaccompanied children held in mandatory detention
to be released into the community with culturally appropriate support.
6. We condemn the
formation of 'second class' refugee status by the Temporary Protection
Visa system. We call for the abolition of this discriminatory practice.
We seek to assist refugees released into the community on temporary
Protection Visas, particularly children.
7. We commend accurate
media coverage of asylum seekers. We seek to inform the community on
these issues and advocate for child asylum seekers.
8. We are committed
to upholding the United Nations Convention of the Rights of the Child
(1990) and other international covenants that apply directly or indirectly
to children and refugees.
9. Our motivation
is humanitarian and non-political.
This submission is
a composite. The contributions vary in scope and detail. The remoteness
of the South Australian detention center has posed a significant restriction
to our gathering of material as has the cost of interpreters.
That some issues
are dealt with more thoroughly than others does not detract from the importance
of some matters we have been unable to fulsomely address.
in the development of this submission include the interviewing of asylum
seekers on Temporary Protection Visas and professionals working with them
as well as the observations of those members who visited the Woomera Detention
We have tried to
be as complete as possible, however we have been unable to address all
matters raised in the Background Papers.
1. The abolition
of mandatory detention of unaccompanied children and families in immigration
detention centres in Australia or in any countries taking part in the
Australian Pacific solution.
2. That in responding
to a request for asylum the following principles be followed:
(a) That all isolated,
remote detention centres in Australia be closed;
(b) That the preferred
option should be community release with conditions attached, until such
time as refugee status or otherwise is determined;
(c) That the Migration
Act be amended to broaden the availability of a bridging visa under
Section 417 of the Migration Act. To allow for community release and
open detention in all cases where no national security risk is identified,
no health risk is identified or where there is no other evidence to
suggest that the applicant is likely to abscond;
(d) If mandatory
detention centers continue to be operated that the Australian Government
resume responsibility for the management of all Australian Immigration
Detention Centres and that management complies with international obligations
in relation to the standard of care of asylum seekers, particularly
child asylum seekers;
(e) That any detentions
centers, closed or open be operated in a manner that delivers all appropriate
services to all detainees, particularly to children and their families;
(f) If asylum seekers
are processed in a closed processing centre that this period not exceed
30 days and that a report be submitted on each asylum seeker as to the
status of their processing and a recommendation of, if necessary, any
continued detention and its options;
(g) Open detention.
That the Migration Act be amended to allow for an open detention scheme.
Where it is considered asylum seekers should not be released into the
community on community release an open detention bridging visa be granted.
That applicants stay in supervised accommodation provided by DIMA with
some restrictions on freedom of movement in the community by curfew
(h) That asylum
seekers be advised at least once every 30 days of the progress of their
application, in the case of children, particularly unaccompanied children
that special provisions be made for consulting with children under the
age of 18 years at an appropriate level with appropriate interpreters
and with the child's advocate present;
(i) That the Australian
Government appoint an independent monitoring body of child services
providers to ensure that the treatment of children throughout the process
of detention and during their time in the community on temporary protection
visas or bridging visas upholds the standard of protection and care
recommended by the UN and HCR and the UN Convention on the Rights of
the Child. Such an independent body to include experts on child development,
child health and their education. Monitoring to include unannounced
visits of any detention centers;
(j) That Temporary
Protection Visas be abolished. That all asylum seekers released into
the community receive equal access to and delivery of all appropriate
(k) That procedures
by which the Refugee Tribunal and Review Tribunal gain access to country
of origin information, be improved and that training be conducted to
(l) That because
detention of asylum seekers is arbitrary and amounts to cruel and unusual
punishment that the privative clause limiting Judicial Review be removed;
(m) HREOC should
consider recommending the appointment of guardians in a geographically
proximate area for unaccompanied minors who can assist them with the
exercise of their rights. This would include filing complaints with
the Commonwealth Ombudsman and HREOC;
(n) HREOC should
call on the Australian government to adhere to its international obligations
including the Guarantees Concerning Persons held in Custody adopted
by the UN Commission on Human Rights Working Group on Arbitrary Detention;
(o) In making its
findings HREOC should emphasis the fact that the emotional and psychological
well being of children and young people will not be significantly improved
unless the status of their parents is improved;
(p) HREOC should
recommend that asylum detention facilities be located in areas where
it would be possible for asylum seekers to have a meaningful interaction
with a cross section of the Australian community;
(q) There has not
been a sufficient amount of time for researchers to begin studying the
effects of asylum detention on the psychological well-being of detainees.
It cannot be assumed that such research will take place, as funding
must be sought and the government must give access to the detention
facilities. HREOC should recommend that such research be undertaken
as a matter of priority;
(r) HREOC should
examine the effect of the detention regime in light of the prohibition
against cruel and unusual punishment/treatment/treatment contained in
international law. Particular attention should be given to the relationship
between the harshness of the regime and the age and health of child
- Refugee Children: Guidelines on Protection and Care
The purpose of the
work in this section is to highlight the applicability of the UNHCR Guidelines.
Extracts from interviews with detainees and families on TPVs have been
used to illustrate the failure to reach to the standards set by the guidelines.
The Guidelines will
also be referred to under the separate headings throughout this part of
the world's refugees are children. UNHCR considers a child to be a person
below the age of 18 years, unless, under the law applicable to the child,
majority is attained earlier.
The UNHCR Guidelines
have been adopted as a policy in order to improve and enhance the protection
and care of refugee children. They provide goals and objectives, the principles
and practical measures for the protection and assistance of these children.
At the core of the guidelines is the realisation of the special care and
attention that must be and needs to be afforded to this most vulnerable
group. However, this special care and protection cannot be produced in
isolation. It must also encompass the provision of support to the families
and communities of this vulnerable group in order to adequately meet the
children's physical and social needs.
It must be understood
that guidelines do not merely offer suggestions but are tools for reaching
goals. Therefore, they cannot be ignored when it is inconvenient not to
follow them. The guiding principle of the UNHCR policy is that in all
actions taken primary consideration should be given to the child's best
interests. Ultimately, it is the translation of the guidelines from words
into actions that will provide refugee children with definitive value.
A refugee child is
understood to mean any child of concern to the High Commissioner, including
those children who are refugees, returnees, asylum-seekers and displaced
persons of concern to the UNHCR. As a general principle asylum-seekers
should not be detained. This is further reiterated in the Guidelines that
minors who are asylum-seekers should not be detained. Children, including
refugee children, are the future. They need special protection and care
to realise their potential.
factors contribute to the special needs of refugee children: their dependence,
their vulnerability and their developmental needs (ie their requirements
for healthy growth and development at different ages). Children's vulnerability
results in part from this dependence. They are physically and psychologically
less able than adults to provide for their own needs or to protect themselves
Status of Child Asylum Seekers
share certain universal rights with all other people and as children and
refugees have additional rights. CROC states a comprehensive framework
for the responsibilities of State Parties toward all children. States
are responsible for protecting the human rights of all persons within
their territory, including refugee children, and for providing the adults
accountable for these children with the support necessary to fulfill their
Child asylum seekers
are entitled to special legal status in recognition of their need for
The best interests
of the child require that procedures be child friendly and take into account
children's specific needs.
The coalition notes
the guidelines on the protection and care laid down by UN and HCR where
a child is accompanied by one or both parents the principal of family
unity applies and the dependent child should be accorded the parent status.
should be entitled to make individual claims and in the case of unaccompanied
children must make individual claims. Children are entitled to individual
legal representation. Children should be assisted to participate in the
decision making process. All agencies involved with refugee children should
be trained in child development and the needs of refugee children. Any
professional conducting an interview of a child refugee should be skilled
appropriately. Interviews should be kept to a minimum. Where more than
one agency is involved with refugee children they should work collaboratively
to maintain a child focus.
children are the most vulnerable of all refugee children. Therefore, unaccompanied
children's cases should be given priority. The UNHCR Guidelines define
unaccompanied children as those who are separated from both parents and
are not being cared for by an adult who, by law or custom, is responsible
to do so. Article 37 of the Convention on the Rights of the Child, reiterates
that State Parties are required to ensure that the detention of minors
be used only as a measure of last resort and for the shortest appropriate
period of time. Further, alternative care arrangements should be made
for unaccompanied minors and any form of detention should not resemble
and Security - Chapter 7 of The Guidelines
UNHCR policy is that
children should not be detained and if they are it should only be as a
measure of last resort and for the shortest time possible. Alternative
accommodation should be sought in all situations of child refugees/asylum
The Guidelines further
state that detention must not be used as a punishment or deterrence to
other asylum seekers.
has consistently stated that a justification of the policy to imprison
asylum seekers in detention centres is that of deterrence. The recent
drop in numbers of refugees seeking asylum in Australia through the
means termed 'illegal' has provided motive for this government to justify
its continued use of the deterrence policy of mandatory detention.
When detention is
resorted to the conditions in which the asylum seekers are detained must
be humane. The UNHCR Guidelines detail these conditions throughout the
chapters and they must include access to play and education.
As has been
discussed above there is no or very inadequate access to play and education
for children in detention centres. There is also none or very limited
access to any other services in relation to physical and mental health.
by staff at detention centres expressed in the interviews included residents
being informed that they had been granted a visa but upon arrival at
the exit of the detention centre, being told that there had been a mistake
One family interviewed
stated that they were never informed as to whom they could complain
about their situation or particular circumstances. Another family stated
that their concerns and requests were completely ignored. Any communication
with the centre authority was conducted by giving each resident a number.
This number was referred to in all communication between staff and resident.
A father, [who
had helped provide personal grooming services] was stopped with no discussion
from providing this service. He stated that all self-dignity was removed
by the detention centre through families not being allowed to groom
children stated, looking at the barbed wire perimeter, that they had
thought Australia represented freedom. Another family expressed that
these places are not detention centres but prisons. Failure to inform
families about their situation or basis of any possible release added
to this sense.
children born to refugees in Australia
Children born to
asylum seekers or temporary protection visa holders have no right to be
registered immediately after birth and therefore do not acquire the nationality
The Coalition endorses
the UN and HCR recommendation that an independent and formally accredited
organization appoint a guardian as soon as an unaccompanied child is identified.
Children interviewed by members of the Coalition invariably reported being
bewildered and confused as to their process of determination of their
claims, their health, welfare and educational rights. They also reported
a lack of understanding of who they could communicate with to seek advice
in each of these areas.
HEALTH AND DEVELOPMENT
The Coalition has
read the submission of the Australian Association for Infant Mental Health
prepared by Dr. Roslynd Powrie.
Members of the Coalition
endorse that submission and report similar stories on the interviews of
asylum seekers and temporary protection visa holders.
- Chapter 4 of the Guidelines
To understand how
the children of an Afghani family were coping on TPVs, the father was
asked about his children's life in their home country. He described the
rockets, mass graves and finally the death of his brother. Of their emotional
well being he said;
are like a glass of water that is full, the slightest thing makes them
overflow' - the family were detained in an Australian detention centre
for [several] months.
can be defined as reflecting the intimate relationship between psychological
and social factors. Therefore, it is essential to ensure those factors
that enhance a child's well-being are promoted. Special assistance must
be provided to ensure full recovery for those children who have been traumatized,
harmed or have special needs.
A mother interviewed
whose daughter suffered intellectual disabilities had her request ignored
for access to a special school for her daughter. Repeated requests for
assessment of her daughter were also ignored, as were any other special
services requested, including a specialist medical appointment.
workers found that young people within Woomera were suffering quite
severe mental problems. Traumatic experiences prior to reaching Australia
are compounded by the incidence of violence and self-harm to which young
people are exposed in Woomera. This further trauma leads to symptoms
in children of suicidal thoughts, depression, anxiety and disturbing
A child's physical,
intellectual, psychological, cultural and social development can be harmed
during the time of uprooting, disruption and insecurity that is inherent
in refugee situations. Unaccompanied children are particularly vulnerable
to these factors. Children are greatly influenced by the protection and
care afforded to them by their families. Therefore, as an adult suffers
in a detention centre so will their child/children. Parental distress
can result in family disintegration.
One mother interviewed
expressed the depression she suffered in the detention centre and the
inability she felt in being able to control her children's environment
within the camp situation. She watched her children demonstrate signs
of depression and become inactive and withdrawn.
interviewed stated their belief that because of the shortness in time
of any schooling offered, their children became depressed through boredom.
Further, that requests to detention centre staff for activities and
toys to occupy the children were either ignored or inadequately dealt
A family stated
incidents where men who were worn-down, frustrated and depressed by
the stress of the detention centre situation would overreact to a child's
behaviour and hit other people's children as an act of discipline.
nurse interviewed stated that the stress and trauma evident in most
parents and in children themselves is receiving inadequate support and
is being exacerbated by detention.
During a child's
detention they should be provided with adequate information concerning
their situation, their rights and responsibilities and possible solutions
to their situation. A child has a right to participate and anxiety will
arise where a child does not understand what is happening to them. This
anxiety can only be compounded when their adult parent/s are not fully
aware themselves of their rights or what their current or future situation
holds. The inherent uncertainty that characterizes existence on a TPV
causes constant anxiety and its many negative effects.
Play is vital to
a child's development. Not only is it essential for relaxation but it
is also imperative to the development of coping and functioning mechanisms
within the family and community situation. Playgrounds should be available
to all children within the detention centre.
indicated a lack of provision of play equipment for all age groups.
Equipment that was provided, such as balls, were inadequate in number
which in turn lead to fighting. This type of equipment was only available
to children once they had requested and signed for it, not as a freely
Due to the harsh
location of some detention centres any play outside was often impossible
due to an absence of shaded areas. This in turn was coupled with an
absence of any facilities for children. In one instance it was reported
that one swing and slide was available for children but located in broad
sunlight and therefore unusable.
The lack of
availability of toys, books, colour and other stimulating objects so
vital for a young child was further reiterated by the childhood nurse
stays in detention centres adversely affect the emotional development
of refugee children. This can result in serious adaptation problems when
a child finally leaves the detention centre.
conducted were of families from Afghanistan and Iraq. All families had
children [words deleted]. All had spent time in an Australian detention
centre for periods ranging from six weeks to six months.
A nurse working
with children released from Australian detention centres stated that
she was meeting many children with untreated developmental delays and
many suffering from emotional and behavioural problems and many demonstrating
indicators of depression. This nurse estimated that of all the refugee
children she has seen 20% of them have had undiagnosed and untreated
mental health problems.
Activities for refugee
children should be planned and coordinated by child welfare workers in
collusion with refugee parents and the refugee community. The guidelines
state the activities appropriate for the varying age groups and developmental
stages of children.
As the interviews
discussed above have indicated there are no activities for children
or families, therefore, community co-ordination and age appropriateness
have not even become an issue in the detention centres.
Due to the stress
and trauma already experienced by a large percentage of refugee children
prior to their arrival in Australia special services and treatments should
be available to them in the detention centres. Provision of these services
should be in a culturally and linguistically appropriate setting.
above, even where there are recognised and pre-diagnosed special needs,
no resources or services are made available to families or children
in Australian detention centres. Cultural and linguistic issues were
not considered for the families detained and as one mother stated the
only access to interpreters was for official DIMA interviews. Therefore,
families and children were unable to express their opinions and felt
that they were being held prisoner.
The child protection
visit to Woomera detention centre concluded that the continued detention
of young people has the potential to have a profound detrimental effect
on their future. Of particular concern is the effect that this continued
detention has in regards to their future in Australian life. The psychological
trauma suffered prior to arrival in Australia and the continued suffering
in the dehumanising conditions of detention in Australia set the stage
for a future compounded with severe psychological problems.
The interviews with
families on Temporary Protection Visas and of professionals working with
these families revealed numerous instances where children were not recognized
as having special health needs. They described a complete failure of the
authorities to fully assess the medical needs of their children some of
whom have visibly demonstrable needs.
Our [words deleted]
son couldn't stand and had to be carried everywhere. In [the IDC] they
said they had no specialist doctors and nothing was done about it. We
were in [that IDC] for 3 months. Only when we came to [this city] did
they diagnose that he had polio [in his home country]. Now he has special
physio lessons and splints and can walk and run.
The right of parents
to make choices regarding medical treatment for their children was blatantly
rejected by authorities.
Our middle child
is [age deleted]. You can see she has not grown properly. Intellectually
she is about the age of a 3 year old. Before we came to Australia we
bought enough medicine the specialist in Iraq prescribed to last 6 months.
When we arrived in Australia they took all the medicine they never gave
it back. We were in [the IDC] 6 months and our daughter was never properly
examined and assessed. We have been out for 3 months and now she will
see a doctor at the [words deleted] Hospital in a few weeks time.
a report was eventually made, its use and purpose were never made clear
and there was no follow up with the family. They felt and were completely
unable to assist in the care of their child's complex medical and allied
health needs. In each case, the anxiety felt by the parents impacts on
all of the children.
A community nurse
who has seen about 300 children on TPVs in the last 20 months observes:
There is a marked
difference between the level of nutrition, development and immunization
from the Kosovar refugees and these refugees from Afghanistan, Iraq and
Iran. There are a lot of congenital problems not diagnosed in detention
centres and those extra months of lack of detection are delaying children's
development. In the last 12 months:-
- two children
with polio;[in country of origin]
- several children
- many children
with developmental delays;
- many children
with nutrition problems;
- many children
with height and weight not appropriate for their age;
- many children
with emotional problems, behaviour problems, bed wetting and indicators
- there have
also been blood conditions.
All of these children
had come from detention centres and were not receiving treatment until
their release. In detention the nutritional needs of children are not
being met adequately because of the strict meal time regime with healthy
snacks not provided. Also whilst in detention, breast feeding is not supported
properly, nor are the significant nutritional needs of lactating mothers.[the
IDC] is hot, harsh and colourless. The parents report there are no special,
stimulating toys for babies and children.
In short, the nurturing
of babies and young children goes unrecognized and unsupported. Instead,
parents are left confused, angry and depressed, their resources to care
for their youngest children depleted.
It is well documented
that stress can have a negative impact on how babies develop. There is
no doubt that the trauma and stress evident in most parents and in children
themselves is receiving inadequate support and is being exacerbated by
detention. The witnessing of violence and anger and in some cases self
mutilation is dramatically affecting, not only the parents ability to
nurture but also the child's development. Parents cannot carry out adequately
their parenting role and children are being presented with severe sleep
problems, aggressive and eating disorders. The community nurse estimated
that about 20% of the children she saw had significant mental health problems.
There have been consistent
complaints from detainees about the lack of medical attention. The difficulty
of relying on the guards to permit entry into the medical compound, the
lack of interest and concern when help was sought for their health and
medical problems. The ubiquitous Panadol and water became a meaningless
response to their very real health issues. This becomes particularly serious
when the detainee is pregnant.
I was pregnant
in [the IDC]. I told the nurse. She took a urine sample but I was not
medically examined. When I was about 3 - 4 months, there was bleeding.
I knew there was a problem ( I have 3 other children). The nurse didn't
want to hear, she said take a Panadol and water. I miscarried and lost
I was four months
pregnant in [the IDC] when I went to see a nurse for a regular check
up one day. I was feeling well before I went to see her. [words deleted]
I returned to my room and began bleeding. I immediately went back to
the nurse and she told me that no doctor was available and that I should
go back to my room until 4.00pm. At 4.00pm I went back to the nurse
who told me again that a doctor was not available. So I spent the night
in my room bleeding and in pain.
The very next
morning my husband and I were told that we had been granted temporary
protection visas. They put us on a bus to Adelaide still without letting
me see a doctor. I was still bleeding and in pain. I miscarried in the
toilets of a hotel once we arrived in Adelaide. It was several days
before I could find someone to assist me to get to hospital."
Women who gave birth
whilst in detention had similar accounts of procedures which failed to
recognise the benefit of a support person of choice during birthing. They
reported that about two weeks prior to their due date they were taken
to [the nearest] hospital by an ACM guard. They were not allowed to take
their husbands or any of their children with them. They had limited ability
to communicate with hospital staff due to lack of interpreters and in
many cases cesarean operations were undertaken without the understanding
of the detainee that this was to happen. Mothers were returned to [the
IDC] after two days with very little post natal care. They had to take
their meals in the dining room during allocated meal times. The lack of
recognition for these women's needs which are inextricably linked to the
well being of their children goes to the core of their self esteem making
them even more vulnerable to depression. Consistent with this, the community
nurse reports many women on TPVs with babies born in detention present
Education - Chapter
9 of the Guidelines
The right to education
is a universal right. The absence of this right creates a lifelong handicap
for a child. Education must be considered a priority for refugee children
as it contributes to their sense of well-being and provides continuity
for them in their lives.
In a recent
visit to Woomera by child protection workers it was found that children
do not have access to a proper education and that while there is a school
in the Centre, the curriculum and school hours are limited. Further,
there is little room for children to play and the provision of bedding
and living conditions is inadequate.
The trauma of displacement
will only be multiplied if an educational opportunity is also withdrawn.
Education should be available to refugee children immediately upon the
onset of their arrival here.
In an interview
with an Afghani family it was stated that their two children were provided
with schooling once a week. This was later increased to 2 hours twice
per week. It was reiterated by the family interviewed that if there
were something they would improve about the detention centre it was
that the level of school was improved as it provided stability for their
The education provided
should be appropriate in its accessibility, quality, relevance and language.
The refugee community should be involved in the planning of education
and teachers among the community identified to assist in children's education.
No family interviewed
stated that they had had any input in to the education that their children
The quality of education
provided to refugee children should be the same standard as that provided
to nationals of the same age. Early primary education should be in the
mother tongue to enable better and quicker learning for children. Each
child's education should be recorded and monitored.
interviewed stated the same concerns re the education level at the detention
centres. The education is in English and is not culturally appropriate.
Further, it is only of a short duration in time, the longest time frame
being 2 hours per day 5 days per week.
The education should
bear relevance to the country in which these children are refugees in
order to provide them with the best possible chance of integration into
the same community upon release.
While all education
discussed in the interviews was based on basic English skills only one
family interviewed reiterated that their children had leant anything
in regards to Australia the country, and this was through videos. They
never learnt anything about their own country.
A focus group of
four 10 and 11 year old Iranian boys interviewed in November 2001 at [an
IDC] were unanimous in their statement:
There were extremely
limited educational opportunities in [the IDC] at the time which consisted
mainly in a teacher, who spoke only English, helping them for approximately
one hour per day to learn English. There was no interpreter available
and they found it extremely difficult to understand what the teacher
was conveying. All of them reported apathy and lack of motivation to
even take up this educational opportunity. They reported spending most
of their days lying on their beds, bored with nothing to do.
Their eyes lit
up when they reported that on one occasion per week they had access
to some computers on which they could play games.
in March 2002 released from [two IDCs] reported similarly the lack of
any substantive educational opportunities.
There was a
complete lack of understanding that the girls had received no education
in Afghanistan and needed very basic education, different from boys".
The lack of continuity
of teachers who are appointed on short six week contracts is a serious
concern for the implementation of any quality educational programme. This
illustrates again, that the children bear the cost of the remote and isolated
location of the detention centres.
The Woomera educational
programme has now moved to the former Catholic parish school of St. Michaels.
There is no attempt to integrate these children into a normal State education
system. They do, however, have some activities in common with the State
A new education block
has now been erected at Woomera but is not yet in use. Presumably the
intention is to resume the education of children within the detention
centre and deny them the opportunity to spend some hours a day outside
of the centre in a more natural environment. The coalition opposes this
The coalition commends
educational programmes that develop cultural exchange and facilitate relationship
building between child asylum seekers and local school children.
The educational needs
of children released on TPVs are considerable. The assistance they require
to reach their academic and co-curricular potential are significant. Child
asylum seekers released into the community are entitled to effective support
to fulfill their educational potential.
The good stories
that came through the interviews related to the children's enjoyment of
school once released into the community. But even amongst the positive
accounts of schooling the deleterious effects of the TPV came through.
We spent five
months in [an IDC] and have been out for 15 months. We have [most of
our children] with us and one is left in [our country, he was with [a
relative]we have not been able to contact him. Uncertainty surrounds
us. The children are old enough to understand. They are in fear. We
have lived with this fear such a long time, in [our country] and now
here, fear of being sent back again. We don't know what will happen.
They lose the will to study. Their motivation is undermined. What is
the point they think. What will happen to us.
from the special needs of older children, we are able to submit a report
focusing on the needs and standards that should be adopted for child asylum
seekers from 0 - 8 years of age. The Australian Early Childhood Association
(AECA) SA Branch has prepared the report. The coalition endorses the report
and observes that all learners in South Australia aged birth to seventeen
years, except for those who seek asylum, have access to quality programs
and curriculum that are based on the South Australian Curriculum standards
and Accountability (SACSA) Framework.
Early Childhood Association (AECA) SA Branch
Focusing on care and education
for children 0-8 years of age
Children in detention
have witnessed horrific conditions which have left them traumatised prior
to arrival in Australia. On arrival they are placed in detention centres
where they are subjected to humiliation and a culture of distrust. The
detention centre environment has been referred to as a "personification
of child abuse" with women and children living in an environment
where "they are not trusted, not believed and not wanted"
(interview with Jeremy Moore - Lawyers for Woomera Refugees ABC Radio
While in detention,
children and their families are not in a secure environment and live in
fear of being deported. Families with children in detention at Woomera
IRPC were interviewed in January and February 2002 by a legal team. Behaviours
such as bed wetting, night terrors and crying continue to be reported
by parents of younger children. A sense of loss, despondency and depression
seemed to be prevalent among older children.
developmental needs are a fundamental reality often not considered in
relief efforts. In order to grow and develop normally, a child has certain
age-specific requirements which must be satisfied. Basic health care,
nutrition and education are generally recognised as necessary for the
physical and intellectual development of children. Beyond these, however,
healthy psychosocial development depends in large measure on the nurturing
and stimulation that children receive as they grow, and on the opportunities
that they have to learn and master new skills. For refugee children,
healthy psychosocial development also requires coping effectively with
the multiple trauma of loss, uprooting and often more damaging experiences.
In short, tragic long term consequences may result where children's
developmental needs are not adequately met."
AECA Position Paper On Children
Of Asylum Seekers And Children Of Refugees And Children In Detention in
The United Nations
High Commission for Refugees (UNHCR) states that children should not be
detained and should not be separated from their parents. There is much
evidence to support that prolonged detention of children affects children's
physical and mental health. This will have a significant impact on the
child's social and emotional wellbeing and the ability to function in
a learning environment.
Research on the brain
and learning shows that learning is inhibited by high levels of stress
or perceived threat by the child leading to life long mental health issues.
Reference - cited
in Rushton S and Larkin (2001) Shaping the learning environment: Connecting
developmentally Appropriate Practices to brain research Early Childhood
Education Journal, Vol.29, no.1
that develop a sense of identity and trust are therefore essential for
these children's current wellbeing and ability to lead successful lives
in the future.
power and potential of education opportunities has been acknowledged,
as has the right of all children to a quality primary education.
The 1996 UNESCO Report
'Learning: The treasure within' (commonly known as the Delors Report)
calls for the creation of an international educational community working
together to foster in children and students powerful thinking and acting
on a global scale.
while education is an ongoing process of improving knowledge and skills,
it is also - perhaps primarily - an exceptional means of bringing about
personal development and building relationships among individuals, groups
treasure within' Delors UNESCO 1996
'Education For All
(EFA) by the Year 2000' was a campaign of consensus-building and partnerships
led by UNESCO, UNICEF, the World Bank, UNDP and UNFPA, and supported by
many bilateral agencies and civil society organisations. At its heart
was a confirmation of the right of all children to gain access to the
opportunities and environments required to meet their basic learning needs.
One of the goals reconfirmed in 2000 at the World Education Forum in Dakar,
Senegal, was to:
that, by 2015, all children - particularly girls, children in difficult
circumstances and those belonging to ethnic minorities - have access
to and can complete a quality primary education that is free and compulsory."
Children in detention
centres are indeed children in difficult circumstances.
on the Rights of the Child provides that all asylum seeker children,
including those that have had their applications for refugee status rejected,
are entitled to similar education as other children in Australia. The
dynamic nature of Australian society presents a challenge, and offers
the opportunity for innovative, inclusive and rigorous curriculum, and
pedagogical development that supports equitable learning opportunities
for all children and students. In Australia, the commonwealth government
along with all State and Territory governments have agreed that
future depends upon each citizen having the necessary knowledge, understanding,
skills and values for a productive and rewarding life in an educated,
just and open society. Schooling provides a foundation for young
Australians' intellectual, physical, social, moral, spiritual and aesthetic
development. By providing a supportive and nurturing environment, schooling
contributes to the development of students' sense of self-worth, enthusiasm
for learning and optimism for the future."
Declaration on National Goals for Schooling in the Twenty-First Century,
Ministerial Council on Education, Employment, Training and Youth Affairs
2. Services and programs available
to children in the South Australian community
Early childhood education
and care has been a priority for successive state governments in South
Australia over a number of years. The range of community and local, state
and commonwealth government programs is extensive and offers families
and children aged birth to 8 years of age a broad range of education,
care, leisure and specialist services. These services and programs are
in which children can grow and learn . (where)
and friendly relationships give a sense of belonging and self
- learning experiences extend
children's development and build their confidence to try new things
- children as
individuals and as part of their family (are recognised and valued)."
Your Guide to
Children's Services in South Australia, Department of Education,
Training and Employment, 2001
Families can also
be assured that the quality of the services they choose for their children
are assessed against legislative standards and accredited against a system
of quality indicators.
state supported children's services for children under 6 years of age
- long day child
- occasional care
- emergency care
- family day care
- respite care
- out of school hours and vacation care
- in home care
- play centre
- Eclipse and First Start literacy programs
Children can commence
school in the term after they turn 5 years of age and the vast majority
of 4 year old children attend state funded preschools. Teachers employed
in all South Australian schools and preschools are required to be registered
by an independent registration board which provides quality control on
professional qualifications and assesses teachers for their suitability
to be registered, including police checks.
Care, teaching and
learning, is enhanced by learners and families access to highly trained,
committed and innovative educators who implement a curriculum that builds
on the skills and abilities of learners.
In South Australia
all learners aged birth to seventeen years have access to quality programs
and curriculum that are based on the South Australian Curriculum Standards
and Accountability (SACSA) Framework. The SACSA framework encourages a
culture of lifelong learning and reaffirms a long held belief that education
is central to the making of a fairer society. The SACSA framework represents
high expectations for all learners.
Within the SACSA
framework five Essential Learnings have been identified. They are: Futures,
Identity, Interdependence, Thinking and Communication. Specifically the
Essential Learnings foster learners capabilities to:
- Develop the flexibility
to respond to change, recognise connections with the past and conceive
solutions for preferred futures (Futures)
- Develop a positive
sense of self and group, accept individual and group responsibilities
and respect individual and group differences (Identity)
- Work in harmony
with others and for common purposes, within and across cultures (Interdependence)
- Be independent
and critical thinkers, with the ability to appraise information, make
decisions, be innovative and devise creative solutions (Thinking)
- Communicate powerfully
Engaging with these
concepts is crucial to enhancing the learning culture within and beyond
school / sites.
Specifically we know
that learning in the early years is critical to present and future success
and that children aged birth to 8 are entitled to have their particular
learning needs met by high quality staff and in appropriate environments:
- The early years
are a critical period when learning can be maximised. If this early
advantage is missed, learning may be much slower, more difficult, and
more expensive, in social and economic terms to revisit in later life.
- Current brain
research is contributing to understandings of the ways children learn
and develop. The first five years of life are marked by critical periods
during which the brain is most ready for appropriate stimulation and
nurturing from social environments.
- The brain research
has implications for educators in that, while it highlights the importance
of stimulation, it identifies the potential harm that stressful and
inappropriate stimulation and intervention can do to the child's learning
and dispositions to learn.
- Families are central
to a child's early learning. Educators actively promote meaningful partnerships
with families and communities and support each child's learning and
sense of belonging.
- Young children
need a safe (physically and psychologically) secure and aesthetically
pleasing learning environment. The environment must support children
to investigate and explore their surrounding through a range of play,
sensory and artistic experiences, including music, art, dance and drama.
They need opportunities to be imaginative and creative, use a range
of thinking modes and utilise their developing literacy and numeracy
to shape the world around them. Children need personal space, time and
resources to explore, experiment, discover and manipulate.
- A quality early
childhood curriculum engages the hearts, minds, bodies and spirits of
children and all who work with them.
- Early childhood
can be a time of delight, discovery and wonder. Central to the early
years band of SACSA (birth to eight years) is an uncompromising view
of the child as capable of co-constructing knowledge and understanding.
In addition to the
care and education programs available to young children a wide range of
support services are available to children and families in South Australia
some of which are listed below:
- Women's and Children's
- Child protection services
- Health information
- Children's consulting clinics
- Orthopaedic clinic
- Occupational therapy
- Speech therapy
- Nutrition services
- Access to GP when required
- Department of
Education Training and Employment
- Social worker
- Speech therapist
- Special Educators
- ESL and bilingual assistants
- Aboriginal resource personnel
- Child and Youth
- Child health nurses and clinics
- Child health services
- Youth health services
- Hearing assessment unit
- Social workers
- Child Adolescent
Mental Health Service (CAMHS)
- Psychiatric services
- Community Health
- Nutrition services
- Dental services
- School dental clinics
- Adelaide dental hospital
- Private dental practices
- Specialist agencies
- Crippled Children's Association
- Hearing impaired programs (Townsend House)
- Vision impairment programs
- Speech and Language
- Sport and recreational services
- Parks and Gardens
- Toy libraries
- Non government
- Church agencies - Anglicare, Central Mission, Centacare
- Relationships Australia
- Sports clubs
- Recreational events
- Family events
- Cultural events
and centres of care and learning, remain the most effective and successful
way to construct the knowledge, skills, values and attitudes that are
needed for full human development and participation in society.
No child in detention
in South Australia or Australia should be denied access to a full and
effective education. Young children who are exceptionally vulnerable must
have access to programs that support their ongoing social, emotional,
physical, linguistic and intellectual development.
All these care, education
and support services and programs enrich the lives of children and families,
minimise the obstacles to learning and maximise the potential of each
child. For those children living in detention centres, who are already
suffering from their life experiences, such services would support them
to live far more enriched lives with both a sense and real optimism for
3. Services and Programs available
for young children in Woomera Detention Centre
the colour, clutter, and spontaneity one expects whenever children are
carefree. Only occasionally are they reprimanded for making a noise.
Detained children learn to play quietly on the barren ground at the
Little Prisoners Barbara Gagalla, Australian Children's Rights News,
Number 28, March 2001
The care and educational
programs for children in the Woomera Detention Centre aged birth to 8
are extremely limited and in no way compare with those available for all
other South Australian children.
Schooling for children aged
5 to 8
In 2001 the Department
of Immigration and Multicultural and Indigenous Affairs (DIMIA) reported
that children aged between 5 and 12 were attending school in the Woomera
township for three hours per day four days per week. Prior to this schooling
was far more limited and children did not go off site. Three or four age
specific classes are run each half day. As at 11 February 2002 91 children
in this age group were attending school.
The facility used
by these children is a disused Catholic school and not the local SA government
school and therefore the children are not being educated with the other
Woomera children. Discussions have commenced with the local school regarding
the attendance of the children from the detention centre at the school.
Programs are delivered
by qualified teachers, employed by ACM, with the assistance of detainee
teachers, who receive some training. None of these teachers are registered
with the SA Teachers Registration Board.
Programs focus on
English as a Second Language, with some mathematics, Australian studies,
art and craft and organised indoor and outdoor play. The SACSA framework
is not being utilised and the facility does not have equipment appropriate
for this age group.
There are also fortnightly
visits to the swimming pool (on Friday's) and on alternate fortnights,
another activity is arranged.
Programs for children aged
birth to 5
2001 DIMIA reported that:
- a Family Centre
for children and parents was available
- Kindergym and
Playgroup was operating for 1 to 4 year olds
was operating for 2 hours per week day
Within the main compound
there is an allocated space for free play for restricted hours.
Many of the children
are Sabian Mundaian and they have reported ongoing discrimination in the
centre from non Sabian children. The continued exposure of children to
the religious tensions that prompted their families to flee their home
countries is an issue that has significant impact on these children and
will impact on their short and long term educational opportunities and
4 Mental Health
Children have not only been potentially traumatised by their experiences
in their home country, on their journey to Australia, by the conditions
with the detention centre but also by witnessing their parents and families
distress and powerlessness to improve their conditions.
Parents of young children consistently report behaviour such as bed wetting,
night terrors, crying, anxiety, confusion and withdrawn behaviour.
All policies and
practices regarding children of asylum seekers should be based on the
1. Best interests
In all actions concerning children, the human rights of the child,
in particular his or her best interests are to be given primary consideration
Refugee children and children of asylum seekers are entitled to
the same treatment and rights as other Australian children.
3. Family unity
Preserving and restoring family unity are of fundamental concern.
4. Family support
Actions to benefit refugee children and children of asylum seekers
should be directed primarily at enabling their primary care-givers to
fulfil their principal responsibility to meet their children's needs.
5. Family participation
Where the special needs of refugee children and children of asylum
seekers can only be met effectively through child-focussed activities,
these should be carried out with the full participation of their families
Unaccompanied refugee children must be the particular focus of
protection and care.
The provision of childcare, healthcare and education for refugee
children and children of asylum seekers should reflect their linguistic
and cultural needs.
Families should be provided with suitable interpreters who speak
their preferred language whenever they are interviewed or require access
Care must be taken to maintain the confidentiality of information
provided by children. There should be no disclosure of information that
could endanger or compromise the child's family in Australia or their
home country. Information must not be used inappropriately for purposes
other than for that for which it is sought.
10. Staff training
Those working with refugee children should receive appropriate
training on the needs of refugee children.
The perception of
being imprisoned is an overriding factor in the minds of children interviewed
within the Woomera facility. Whilst significantly greater access to relevant
and varied education, activities, social opportunities, and the opportunity
to engage in normal family life and activities are desperately needed,
the perception of imprisonment and the yearning for freedom is a key issue
for every child.
Since late 2001 alternative
arrangements have been made available for some women and children that
allows them to live in accommodation outside of the detention facility.
An evaluation on this program is yet to be released.
needs must not be addressed in isolation. They are normally met most
effectively within the context of family and community. Moreover a child's
welfare is closely linked to the health and security of the primary
caregiver, who is usually the mother. It is therefore necessary to strengthen
the capacities of refugee families to meet their own needs and improve
the participation and situation of refugee women, thereby contributing
significantly to the welfare of their children
- Children are
not kept in detention as a result of immigration policies.
- Families with
young children are housed in community settings
If detention centres continue to be used as a strategy for managing
asylum seekers while their claims for refugee status are assessed then
these centres need to be located in major population centres. This will
ensure access to the range of services that are needed by children and
Paper On Children Of Asylum Seekers And Children Of Refugees And Children
In Detention in draft 2002
Children of asylum
seekers should have access to the full range of services and programs
provided by experts as do all other children. The International law expectation
is for schooling to be of the same standard as is available in the host
country, and that is clearly not occurring.
These children must
- support services
and provision to be made for social inclusion in the community. This
process to include consultation with children and families in detention
and the local community.
- teachers who provide
a learning climate/ environment where trust and respect is fostered.
This would encompass respect for diversity in family, cultural and religious
- access to multi
disciplinary teams (who have experience and training in working with
traumatised people) to work with early childhood professionals.
- programs delivered
by staff with experience in teaching ESL and who are linguistically
and culturally sensitive.
- programs delivered
by staff with relevant language, cultural and religious understanding
. ie people on Temporary Protection Visas, refugees living in the community
- adequate physical
resources and space for children to play.
- the support and
encouragement to maintain their home language.
that these recommendations will go some way to enable all children and
their families to have their safety and well being assured.
freely with their peers in schools and receiving the expert assistance
they require through counselling as well as intensive language and literacy
courses, their chances of recovery and integration into Australian society
are maximised. By attending public schools which have generations of
experience in integrating new arrivals, they have the best chance of
redressing the hostility they have faced."
For Their Sake,
and Ours, Let Them Go Rob Durbridge Australian Educator Autumn 2002
The Coalition expresses
grave concern at the devastating affects of detention on the cultural
life of child asylum seekers. There have been few examples of cultural
life surviving during detention beyond the most basic maintenance of language
and some limited forms of religious observance.
The resultant loss
of self esteem and confusion regarding cultural heritage deeply effects
the child's emotional well being.
The Coalition has
read and endorses the submission by Diversity Directions Inc in its entirety
and on this topic in particular.
All interviews conducted
by in preparation for this submission confirm there are no daily programmes
in place in detention facilities to ensure the maintenance of language,
literature, religion, arts and cultural traditions.
Due to the extremely
limited opportunities, cultural, educational or otherwise, for children
in Woomera the family unit is the sole provider for the maintenance of
their cultural heritage.
This is of particular
concern where the children are unaccompanied and there is no family to
try and maintain the cultural traditions.
The ability to retain
cultural identity once released into the community is severely challenged
by the exigencies of life on a TPV. These are families under great stress.
Many are depressed and anxious and are depleted emotionally and financially.
There needs to be a cohesive, multisectorial approach to delivering support
programmes to families and communities on TPVs. Support services must
be visible and accessible to both children and their families. Delivery
of services should not discriminate on the basis of TPV status.
The material in this
part of the submission demonstrates in relation to each area of discussion
that the UNHCR Guidelines on Protection and Care of Refugee Children are
not complied with. Further and consistent with the UNHCR Guidelines the
submission demonstrates that the best interests of child asylum seekers
can not be met in detention. In addition to being deprived of their liberty
children and their families are suffering grave deprivations. The best
interests of children are nowhere in sight.
- VIOLATIONS OF THE INTERNATION LAW FOR THE PROTECTION OF HUMAN RIGHTS
background papers issued by the Human Rights and Equal Opportunity Commission
(HREOC) focus understandably on the relevant provisions of the UN Convention
on the Rights of the Child. As the Commission notes other human rights
standards also apply to children who are asylum seekers. The SA Coalition
has decided to raise some of the other human rights concerns that arise
out of the treatment of asylum seekers in Australia.
The basis of the
modern law of Human Rights is the protection of and respect for the dignity
of the human person. It is our view that the policies now in place for
the detention and treatment of asylum seekers breach some of the fundamental
tenets of human rights law and therefore undermine significantly the human
dignity of asylum seekers. In particular we believe that the treatment
of child asylum seekers violates norms prohibiting arbitrary detention
and cruel and unusual punishment/treatment/ treatment.
Both arbitrary detention
and cruel and unusual punishment/treatment/treatment are prohibited by
the Universal Declaration on Human Rights as well as various human rights
treaties ratified by Australia such as the Covenant on Civil and Political
Rights, the Convention Against Torture and the Convention on the Rights
of the Child. These rights have been reiterated in a series of instruments
because they are intimately connected to the right to life and security
of the human person. The right not to be subjected to cruel and unusual
punishment/treatment/treatment may not be derogated from even in times
of public emergency (Article 4, ICCPR).
Both of these rights
have been given a wide interpretation by the human rights bodies of the
United Nations as well as the European Court of Human Rights. Australia
as an active participant in the development of the international law of
human rights must be assumed to have knowledge of the interpretation given
to these rights by expert bodies such as the Human Rights Committee, the
Committee Against Torture and the Working Group on Arbitrary Detention.
Australia has also been one of the countries that has made frequent reference
to international human rights norms in its submissions to the UN Commission
on Human Rights. As part of its foreign policy it has consistently supported
and promoted the concept of the universality of human rights. It must
therefore accept that it is bound to apply the relevant norms to its domestic
As will be demonstrated
below there has been a consistent pattern of violations of the rights
of children in asylum detention. The existence of wide scale and systematic
violations of the rights of children in asylum detention makes the conduct
of the government even more egregious. Policies that are so antithetical
to the preservation of human dignity cannot be justified on any basis.
The right to liberty
and security of the human person is a fundamental human right. Its corollary
is the protection against arbitrary detention. This protection applies
to all persons, whether held in connection with criminal charges or detained
for purposes of immigration control.  As noted by
the Commission in its background papers, international treaties such as
the Convention on the Rights of the Child and the International Covenant
on Civil and Political Rights make a distinction between adults and juveniles.
The detention of juveniles is only to be used as a measure of last resort
and is to be for the shortest appropriate time.  The
relevant international treaties in this area reflect what is for the most
part national practice. The majority of countries recognise that detention
has a potentially negative impact on those who experience it and that
this can offset the potential for rehabilitation. Because of their age
and level of maturity greater emphasis is to be given to the long-term
welfare of the juvenile than to retribution or deterrence. Later in this
submission we discuss further the harshness of the detention regime and
comment on the issue of proportionality.
The Concept of
Detention may be
arbitrary even if it is sanctioned by the laws pertaining in a particular
country. Various international bodies have endeavoured to define the limits
beyond which a detention, whether administrative or judicial, would become
arbitrary. The Human Rights Committee has observed that the term 'arbitrary'
in Article 9(1) of the ICCPR is not only to be equated with detention
which is 'against the law,' but is to be interpreted more broadly to include
elements of inappropriateness, injustice and lack of predictability. 
In A (name deleted) v Australia  the Committee
used these criteria to reach its determination that Australia's policy
of mandatory detention as it applied to A was in breach of its obligations
under paragraphs 1 and 4 of Article 9 of the ICCPR. 
The Committee observed that a court should be able to order the release
of an asylum seeker if that persons detention was incompatible with the
provisions of the ICCPR, including Article 9(1). 
Further it would not be sufficient for the court to review only the domestic
lawfulness of the detention. It would have to utilise the jurisprudence
developed by the Human Rights Committee in making its determination.
Further the Committee
noted that Article 9 required the reviewing body to individually assess
the case of each asylum seeker. A state seeking to detain someone had
to provide appropriate justification for the continuing detention. A detention
which was initially lawful because of the circumstances of the asylum
seeker's arrival would not continue to be lawful if the detention exceeded
the period necessary to check the identity and security status of the
Many of the delays
experienced by asylum seekers in the processing of their visa applications
are not due to their individual circumstances. Rather they are the result
of policy decisions to go slow on the processing of claims for asylum
by Afghani refugees or the refusal to allocate sufficient resources to
process other claims expeditiously. Some of the unaccompanied minors have
waited for unduly long periods of time to have their claims heard. One
brother and sister in South Australia have not had an assessment made
of their status despite their arrival in Australia more than 8 months
ago. They were detained in Woomera for over 6 months. Although they are
now in the community they remain under detention and can be returned to
Woomera at any time. The Refugee Tribunal has not acknowledged their claim
for refugee status.
Refugee Law and
The Executive Committee
of the Programme of the United Nations High Commissioner for Refugees
on the detention of asylum seekers has stated that the detention of asylum
seekers may be considered necessary if it is to either verify the identity
of the asylum seeker or to determine the elements on which the claim to
asylum is based.  "This exception to the general
principle [that asylum seekers should not be detained] cannot be used
to justify detention for the entire status determination procedure, or
for an unlimited period of time." 
Detention of asylum
seekers is allowable when "refugees or asylum seekers have destroyed
their travel and/or identification documents in order to mislead
the authorities [emphasis added] of the State in which they intend
to claim asylum."  This exception to the presumption
against detention does not extend to situations where the asylum seeker
has been unable to obtain documentation.  The protection
of national security or public order may also be used by a country to
justify a limited period of detention. 
The Australian government
has repeatedly made claims that some of the asylum seekers may pose a
threat to national security. However these claims have not been tested
as the basis for the government's assertions have not been made public
to any substantial degree. The information that has been placed in the
public arena suggests that the assertion of national security interests
is based on the characterisation of an entire group as posing a security
threat. This indicates that there is a form of discrimination at work,
based on either or both the ethnicity of the asylum seekers or their religion.
Of questionable validity is the underlying assumption that those who arrive
by boat are more of a national security threat than those who arrive by
plane on other visa categories and then claim asylum.
In its review of
Australia's mandatory detention policy HREOC took note of the UNHCR advice
that "the detention of asylum seekers should not be automatic or
unduly prolonged. The detention of a person for the entire duration
of a prolonged asylum procedure is not justified." 
This principle applies to this inquiry as well. The UNHCR has reiterated
its view that the routine and prolonged detention of asylum seekers is
not justified under refugee law. At is forty-ninth session in 1998 the
Executive Committee issued a document entitled Conclusion on International
Protection  in which it deplored the fact that many
countries continued "routinely to detain asylum-seekers (including
minors) on an arbitrary basis, for unduly prolonged periods, [and
denied] fair procedures for timely review of their detention status."
The Executive Committee also stated "that such detention practices
are inconsistent with established human rights standards and urge[d] States
to explore more actively all feasible alternatives to detention;
an Impermissible Objective
The policy of mandatory
detention is also unjust as it is being used to deter other asylum seekers
rather than being a direct response to the behaviour of the individual
asylum seeker. There is an element of group punishment in the use of a
mandatory detention regime that makes no distinction in treatment in accordance
with the level of threat an individual poses or the probability of an
individual absconding. The views of the UNHCR on this issue are instructive:
"Detention of asylum-seekers which is applied for purposes other
than [security, health or identity checks], for example, as part of a
policy to deter future asylum-seekers, or to dissuade those who have commenced
their claims from pursuing them, is contrary to the norms of refugee law."
The use of deterrence
as a significant objective in asylum seeker policy also contravenes Australia's
domestic law. In Veen v The Queen (No. 2) ,
the High Court held that the sentencing objective of deterring recidivism
does not justify a sentence disproportionate to the offence. Although
the case dealt with someone who was charged with a criminal offence the
principles utilised by the Court would apply even more strongly in the
case of asylum seekers. It would seem to be an essential requirement of
natural justice that those the government accuses of being 'illegal' entrants
despite their claims for asylum should not be treated less favourably
under the law than those accused of having committed serious breaches
of our criminal law.
Lack of Predictability
Asylum seekers are
told that there are administrative mechanisms for the review of their
situation, but are given little information about the operation of that
system. Further they are not routinely informed of the progress of their
cases. The lack of transparency in the purpose of detention and the criteria
on which individuals will be granted protection visas makes asylum detention
both unjust and unpredictable.
Views of the Working
Group on Arbitrary Detention
In 1997 the Working
Group on Arbitrary Detention of the UN Commission on Human Rights was
asked by the Commission to consider the practice of administrative custody
of immigrant and asylum-seekers. During the course of its work it adopted
a set of "guarantees concerning persons held in custody" to
enable it to assess the alleged arbitrariness of the various forms of
administrative detention that exist in different parts of the world. Those
guarantees include the following:
3: Any asylum-seeker or immigrant placed in custody must be brought
promptly before a judicial or other authority.
Principle 7: A
maximum period should be set by law and the custody may in no case be
unlimited or of excessive length.
Principle 8: Notification
of the custodial measure must be given in writing, in a language understood
by the asylum-seeker or immigrant, stating the grounds for the measure;
it shall set out the conditions under which the asylum-seeker or immigrant
must be able to apply for a remedy to a judicial authority, which shall
decide promptly on the lawfulness of the measure and, where appropriate,
order the release of the person concerned."
of mandatory detention does not comply with these principles. There is
no review by a truly independent authority and asylum seekers are not
given any meaningful information about the status of their claims and
the grounds on which their detention may be challenged. Asylum detention
is not of fixed length and the evidence before HREOC clearly indicates
it is excessive in length. Further there have been persistent complaints
that asylum seekers are not informed of their rights under Australian
Connected to this
is the difficulty asylum seekers have in obtaining legal advice because
of the remote location of the majority of detention centres. It is important
to recall that children and juveniles may not be in a position to exercise
their rights except through their parents or guardians. Further unaccompanied
minors may be in a particularly disadvantageous position with respect
to the exercise of their rights. The Commission should consider recommending
the appointment of guardians in a geographically proximate area for unaccompanied
minors who can assist them with the exercise of their legal and human
Detention as a
Measure of Last Resort
The concluding observations
of the Human Rights Committee adopted in July 2000 after its consideration
of Australia's third and fourth periodic reports is relevant to this inquiry.
The Committee stated:
that the mandatory detention under the migration Act of 'unlawful non-citizens',
including asylum seekers, raises questions of compliance with article
9, paragraph 1, of the Covenant, which provides that no persons shall
be subjected to arbitrary detention. The committee is concerned at the
State party's policy, in this context of mandatory detention of not informing
the detainees of their right to seek legal advice and of not allowing
access of non-government human rights organisations to the detainees in
order to inform them of this right.
urges the State party to reconsider its policy of mandatory detention
of 'unlawful non-citizens' with a view to instituting alternative mechanisms
of maintaining an orderly immigration process. The committee recommends
that the State party inform all detainees of their legal rights, including
their right to seek legal counsel." 
With respect to the
principle that children and juveniles be detained only as a measure of
last resort, regard should be had to whether or not there is a viable
alternative method of detention. There are a range of facilities around
Australia located in or near metropolitan areas no longer used by the
Australian Defence forces. For example, in Adelaide there is an area known
as the Hampstead barracks. This was used to house the Kosovar refugees.
This allowed the refugees to mingle in the general community and also
made the detention facility accessible to the general public. Many South
Australians donated generously of their time with respect to the provision
of English language classes and arranging leisure and sporting activities.
At the moment we house asylum seekers in remote locations away from the
general population. As the majority of these asylum seekers will be found
to be genuine refugees it is important that they begin to have contact
with the Australian community as early as possible.
By moving the asylum
seekers to these facilities it would be possible to allow them the ability
to come and go during the day time. A number of countries, including New
Zealand, adopt this policy of having designated facilities but allow freedom
of movement until a fixed curfew, usually 10 pm. The UNHCR does not consider
restrictions on domicile and residency as a form of detention. 
The UNHCR has indicated
that where there are "monitoring mechanisms which can be employed
as viable alternative to detention these should be applied first
unless there is evidence to suggest that such an alternative will not
be effective in the individual case."  Those
children and young people who arrive in Australia seeking the protection
of the refugee Convention have been traumatised by both events in their
countries of origin and well as the voyage to Australia. Detaining traumatised
children for an indefinite period of time is 'inappropriate' in the sense
that the Human Rights Committee uses that term.
Detention is inappropriate
when its duration is unconnected to the seriousness of the behaviour that
led to an order of incarceration. The mandatory detention of asylum seekers
for prolonged periods is also disproportionate to the behaviour that is
alleged to make them 'illegal entrants.' "The principle of proportionality
is now firmly established in [Australia]. It was the unanimous view of
the Court in Veen [No 1] that a sentence should not be increased
beyond what is proportionate to the crime in order merely to extend the
period of protection of society from the risk of recidivism on the part
of the offender ."  The detention of children
and their families for unduly long periods of time must be viewed as disproportionate
to the act of coming ashore in Australia for the purpose of escaping persecution
and discrimination in the their countries of origin.
the principles of proportionality is also an international obligation
freely undertaken by Australia. As noted by HREOC "The jurisprudence
of the Human Rights Committee indicates that, to avoid the taint of arbitrariness,
detention must be a proportionate means to achieve a legitimate aim, having
regard to whether there are alternative means available which are less
restrictive of rights."  The evidence before
HREOC with respect to practices in other countries such as New Zealand
indicates that there are less restrictive alternatives available to the
Australian government that would be less restrictive of rights.
Although beyond the
scope of this submission it is also probable that the Migration Review
Act which limits the ability of Australian courts to scrutinise the detention
of asylum seekers in line with fundamental principles of natural justice
such as the inappropriate use of deterrence and lack of proportionality
in sentencing breaches the provisions of the ICCPR that require countries
to create and support an independent and impartial judiciary.
Harshness of Detention
in Part I of this Submission, asylum detention has serious consequences
for the mental health, emotional and intellectual development of children
and young people. When reviewing the policy of mandatory detention HREOC
should as a matter of priority focus on the long-term effect of this policy
on children and young people. The harshness of the mandatory detention
regime should be contrasted to the normal routine available to juveniles
who have been found guilty of serious offences and placed in detention
facilities. Below is the usual schedule for those detained at Cavan, one
of South Australia's secure facilities for juveniles:
7.30am - Wake up call by intercom, door unlocked, shower.
8.00am - Seated for breakfast
8.30am - Unit chores
8.45am - Line up for school. Various classes. With Centre approval outside
work, TAFE and outside programs are available.
10.30am - Back to unit for break - tea/coffee.
11.00am - Back to school.
12.30pm - Unit for lunch, then lunch chores.
1.15pm - Back to school.
3.15pm - School finishes, back to unit (for downtime).
Unit activities - TV, music, computer, table tennis, gym, pool,
Tea followed by
phone calls and visits (general, visits outside of hours can be organised
with the Centre).
Big unit clean-up and chores.
Videos, sport, pool, visits, BBQ for tea on Saturday night.
The schedule of activities
at facilities such as Cavan is more conducive to the long-term development
of the child. It takes account of the child's need for education as well
as rest, leisure and recreational activities. It also allows young people
to have ongoing connections to the community. The location of facilities
in areas where it would be possible for asylum seekers to have a meaningful
interaction with a cross section of the Australian community should be
a priority for the Commission when making its final recommendations. Also
the connection between the child's mental health and that of the child's
parents should not be overlooked. It will be impossible to ameliorate
significantly the detrimental impact of detention on children unless the
emotional and psychological status of their parents is improved.
Detention as a
Form of Cruel and unusual punishment/treatment/Treatment
A serious question
for the Commission is whether or not the maintenance of facilities such
as Woomera is a form of cruel and unusual punishment/treatment. Although
there have been recent efforts to improve the physical layout of Woomera,
the Commission should take account of the effect sensory deprivation would
have had and may have in future on detainees. The physical environment
at Woomera until February 2002 was unacceptable by modern standards of
decency. Everywhere one looked there was a lack of visual stimulation.
The only colours one could see when standing in the compound were white,
silver and beige (dust).
or Reduced Environmental Stimulation (RES) Syndrome occurs when "
human beings are subjected to social isolation and reduced environmental
stimulation. [Those suffering from the syndrome] may deteriorate mentally
and in some cases develop psychiatric disturbances." 
RES can begin to appear within a number of days or even hours. 
Some of the symptoms manifested by people suffering from RES are:
to external stimuli;
Massive free floating
comprehension and ability to think;
changes in the mode of life;
Difficulty in making
social contacts. 
One observer of prisoners
subjected to sensory deprivation stated that they 'had become lethargic,
hopeless and depressed due to the conditions of their confinement."
 This statement is eerily similar to the description
that many psychologists and lawyers give of the Woomera detainees. This
also correlates with the findings of the previous HREOC inquiry in which
it found evidence of mental distress including symptoms of depression,
boredom, sleeplessness, psychotic episodes, self harm and suicide attempts.
 The Commission then observed that there was also
an increase in the incidence of violence within families and between detainees
and guards. There is little doubt that many of these symptoms are related
to the lack of sensory stimulation experienced by the asylum seekers.
Also relevant to
this issue is the psychological make-up of the individual. Those who are
already traumatised are more susceptible to RES syndrome. 
Children and young people detained in facilities such as Woomera are a
particularly vulnerable group. They may have witnessed the torture or
death of a parent, been forced to leave their country of origin with few
possessions, endured a hazardous voyage, been subjected to extremely unsanitary
conditions on their voyage and witnessed their parents being humiliated
by guards in the detention facility. Some children may not themselves
experience RES syndrome, but may have to watch the effects of this syndrome
on other members of their family.
It should be noted
that most of the studies done on RES syndrome have concerned prisoners
in solitary confinement, but the literature suggest that it also occurs
in those who have been confined in groups.  It appears
to be the case that the symptoms are to be expected in those who are confined
for significant lengths of time. One of the difficulties in this area
is the lack of research on the peculiar effects of this type of administrative
detention. As noted above the conditions being experienced by children
and juveniles is harsher than that for juveniles who have infringed the
penal law. It would also be the case that the conditions of detention
are worse than those in adult detention facilities, where again there
is access to a significant number of training and educational programs
as well as a greater range of sporting and leisure activities. There has
not been a sufficient amount of time for researchers to begin studying
the effects of this form of incarceration. It cannot be assumed that such
research will take place, as funding must be sought and the government
must give access to the detention facilities. The Commission may want
to recommend that such research be undertaken as a matter of priority.
of the detention regime would exacerbate the symptoms being experienced
by asylum seekers. The lack of fixed time limits, the failure to be informed
of the progress of their cases and the uncertainty as to outcomes for
family members who may have lodged separate claims (such as adult brothers
and sisters) all add to the levels of stress being experienced by asylum
seekers and these factors would aggravate symptoms of RES syndrome.
A detention regime
that brings about RES syndrome or similar psychological disturbances violates
Australia's obligation not to subject people to cruel and unusual punishment/treatment.
Such punishment is prohibited by the Universal Declaration on Human Rights
(Article 5), the Covenant on Civil and Political Rights (Articles 7 and
10), the Convention Against Torture and the Convention on the Rights of
the Child. Treatment of this type also violates Australia's obligation
to observe the UN Standard Minimum Rules for the Treatment of Prisoners,
the Body of Principles for the Protection of All Persons Under Any Form
of Detention or Imprisonment and the United Nations Rules for the Protection
of Juveniles Deprived of their Liberty.
Principle 6 of the
Body of Principles for the Protection of All Persons Under Any Form of
Detention includes a statement to the effect that the prohibition against
cruel and unusual punishment/treatment should be interpreted so as to
give the widest possible protection against abuse and that conditions
of detention should not deprive a prisoner of his or her natural senses
such as sight.
Even if the Commission
were to find that the conditions of detention at facilities such as Woomera
did not cause RES syndrome it is still the case that bringing about the
severe mental suffering of a detainee is a form of cruel and unusual punishment/treatment
or treatment. In Soering v United Kingdom 
the European Commission on Human Rights stated that inhumane treatment
encompasses deliberately causing severe suffering whether mental or physical.
Treatment will be considered to be degrading if it grossly humiliates
a prisoner before others or drives the prisoner to act against his or
her own will or conscience. Given the length of time the conditions of
detention in Woomera have been known to cause great psychological suffering
among the detainees it could be argued that the continued confinement
of asylum seekers in such conditions is a deliberate infliction of mental
In determining whether
or not a particular form of treatment will be found to be cruel and unusual
the Commission noted that a number of factors had to be taken into account.
They included: "the nature and context of the treatment or punishment,
the manner and method of its execution, its duration, its physical and
mental effects and, in some instances, the sex, the age and the state
of health of the victim." HREOC should examine the effect of the
detention regime in light of these criteria, particularly the relationship
between the harshness of the regime and the age and health of child asylum
There is no need
to establish intent when determining whether or not a particular form
of treatment is cruel and unusual. In Soering the Commission determined
that with respect to the particular facts of that case the extradition
of Mr Soering would expose him to cruel and unusual treatment but there
was no suggestion that it was the intent of the United Kingdom government
to expose him to such treatment. The Court emphasised that each case had
to be judged by the totality of conditions test and that even if a specific
treatment was not itself a per se violation of the prohibition against
cruel and unusual punishment/treatment or treatment, the underlying adverse
psychological effect could, in itself, be a violation.
Given the evidence
available to HREOC in this Submission as well as others it has received
there can be little doubt that the detention environment at Woomera is
causing severe and potentially permanent psychological harm to children
and their families. This must lead HREOC to conclude that the prolonged
detention of asylum seekers, particularly children and young people, should
Interviews with families
from Afghanistan and Iraq.
Interview with community
UNHCR Revised Guidelines
on Applicable Criteria and Standards Relating to the Detention of Asylum
Media Release - The
Hon Stephanie Key.
UNHCR Policy on Refugee
Children - Executive Committee Report.
UN Resolution 56/136
- Assistance to unaccompanied refugee minors.
Report of the UN
HC for Refugees, questions relating to refugees, returnees and displaced
persons and humanitarian questions. Report of the 3rd Committee (Dec/2001).
Trends in Unaccompanied
and Separated Children Seeking Asylum in Europe, 2000.
UNHCR Refugee Children:
Guidelines on Protection and Care.
Human Rights Committee General Comment 8, para 1.
Article 37 (b) of the Convention on the Rights of the Child; Rule 1 of
the UN Rules of the Protection of Juveniles Deprived of their Liberty;
Rule 19 of the Beijing Rules and Article 46 of the Riyadh Guidelines.
Albert Womah Mukong v. Cameroon (458/1991), 21 July 1994, UN Doc. CCPR/C/51/D/458/1991,
Communication No. 560/1993, Human Rights Committee, 59th session, 24 March
-- 11 April 1997, UN Doc CCPR/C/59/D/560/1993 dated 30 April 1997
Nick Poynder, A (name deleted) v Australia: A milestone for asylum seekers,
in the Australian Journal of Human Rights.
A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993
Executive Committee of the United Nations High Commissioner for Refugees,
Conclusion No. 44 (1986), paragraph (b).
United Nations High Commissioner for Refugees, Revised Guidelines on Applicable
Criteria and Standards Relating to the Detention of Asylum Seekers, Guideline
3, February 1999.
Conclusion No 44, (1986), above n 7.
Guideline 3, above n 8.
Conclusion No. 44, above n 7.
Human Rights and Equal Opportunity Commission, Those who've come across
the seas: Detention of unauthorised arrivals, 1998, p 47.
Id. at para. 21.
Guideline 3, above n 8. This issue was also discussed by HREOC in its
inquiry into Australia's mandatory detention policy. Human Rights and
Equal Opportunity Commission, Those who've come across the seas: Detention
of unauthorised arrivals, 1998, p 46.
(1988) 164 CLR 465.
This term is defined by the Working Group as follows: "The term 'a
judicial or other authority' means a judicial or other authority which
is duly empowered by law and has a status and length of mandate affording
sufficient guarantees of competence, impartiality and independence."
Report of the Working Group on Arbitrary Detention - E/CN.4/2000/4, Annex
II: Deliberation No. 5.
CCPR/CO/69/AUS, para 19.
See commentary to Guideline 1, above n 8.
Guideline 3, above n 8.
Veen v The Queen [No 2] above note 16, at 472 per Mason CJ, Brennan, Dawson
and Toohey JJ.
Human Rights and Equal Opportunity Commission, above note 15, p 47.
Miller, N.D. 1995, p.162.
Romano, S.M. 1996, p.1115.
See Romano id at 1110 and Miller, above note 23 at p. 165.
Human Rights and Equal Opportunity Commission, 1998, at www.hreoc.gove.au/human_rights/aslyum/inex.html
and HREOC, 1999, at www.hreoc.gov.au/human_rights/asylum/inex.html.
Romano, above n 24 at 1115.
Miller above n 23 at 165.
11 Eur H.R. Rep
Newman, F., and Weissbrot, D., 1996, p.161.
Updated 9 January 2003.