Commission Website: National Inquiry into Children in Immigration Detention

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Submission to National Inquiry

into Children in Immigration Detention from

SA Coalition for Refugee Children

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Prepared

by:

Kristina Barnett

- Diversity Directions Inc.

Diana Collett - Child & Youth Health and South Australians for Justice

for Refugees

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:

Kaye Colmer

Elspeth Harley

Andrea McGuffog

Italia Parletta

Part 3 of

the Coalition Submission is based on the research and writings of the

following students at The Flinders University of South Australia:

Bethany Lohmeyer

Zoe Lugg

Adut Ngor

Michael Paes

In addition

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

Australia.

 

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Part One

• About

  the South Australian Coalition for Refugee Children

• Aims

  of the South Australian Coalition for Refugee Children

• Composition

  of Submission

• Summary

  of Recommendations

Part Two

• UNHCR

  - Refugee Children: Guidelines on Protection and Care

• Legal

  Status of Child Asylum Seekers

• Mental

  Health and Development

• Health

  and Nutrition

• Education
• Australian

  Early Childhood Association (AECA) SA Branch Report

• Culture

  and Identity

Part Three

• Violations

  of the International Law for the Protection of Human Rights

Bibliography

• Bibliography to

  material on UNHCR Guidelines

 

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Part 1

About

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: -

Aims of

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.

Composition

of Submission

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.

Methods employed

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

Centre.

We have tried to

be as complete as possible, however we have been unable to address all

matters raised in the Background Papers.

Summary

of Recommendations

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

requirements only;

(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

services;

(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

facilitate this;

(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

asylum seekers.

Part 2

UNHCR

- 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 submission.

Approximately half

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.

 

 

Refugee Children

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.

Three interrelated

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

from harm.

Legal

Status of Child Asylum Seekers

Refugee children

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

own responsibilities.

Child asylum seekers

are entitled to special legal status in recognition of their need for

international protection.

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.

However, children

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.

Unaccompanied

Children

Unaccompanied refugee

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

prison-like conditions.

Personal Liberty

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

seekers.

The Guidelines further

state that detention must not be used as a punishment or deterrence to

other asylum seekers.

Phillip Ruddock

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.

Inhumane treatment

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

in names.

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

themselves.

One family's

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.

Statelessness of

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

of Australia.

Guardianship of

unaccompanied children

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.

MENTAL

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.

Psychosocial Well-being

- 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;

'My children

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.

Psychosocial well-being

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.

Child protection

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

behaviors.

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.

Another family

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

with.

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.

A childhood

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.

All families

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

available resource.

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

interviewed.

Extended

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.

The interviews

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.

As indicated

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.

HEALTH

AND NUTRITION

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.

Importantly, when

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

  with rickets;

• 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

  of depression;

• 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.

Anti-natal and

post-natal care

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

the baby.

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

with depression.

EDUCATION

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

children.

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

were receiving.

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.

All families

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.

Parents interviewed

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

system.

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

move.

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.

Without detracting

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.

 

---

Australian

Early Childhood Association (AECA) SA Branch

Focusing on care and education

for children 0-8 years of age

 

1. Introduction

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

5AN 16.4.02)

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.

"Children's

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

draft 2002

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

Educational programs

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.

Internationally the

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

and nations."

'Learning: The

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:

"Ensure

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.

The Convention

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

Australia's

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."

The Adelaide

Declaration on National Goals for Schooling in the Twenty-First Century,

Ministerial Council on Education, Employment, Training and Youth Affairs

1999

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

offered in:

"safe environments

in which children can grow and learn…. (where)

- respectful

and friendly relationships…give a sense of belonging and self

worth…

- 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.

Commonwealth and

state supported children's services for children under 6 years of age

include:

- long day child

care

- occasional care

- emergency care

- family day care

- respite care

- out of school hours and vacation care

- in home care

- preschool

- play centre

- playgroup

- 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

  (Communication)

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

  Hospital

  - Child protection services

  - Health information

  - Children's consulting clinics

  - Podiatry

  - Orthopaedic clinic

  - Occupational therapy

  - Speech therapy

  - Nutrition services

• Health

  - Access to GP when required

• Department of

  Education Training and Employment

  - Social worker

  - Psychologist

  - Speech therapist

  - Special Educators

  - ESL and bilingual assistants

  - Aboriginal resource personnel

• Child and Youth

  Health

  - 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

  Services

  - Nutrition services

  - Counselling

  - Immunisation

• Dental services

  - School dental clinics

  - Adelaide dental hospital

  - Private dental practices

  - Hygienists

• Specialist agencies

  - Crippled Children's Association

  - Hearing impaired programs (Townsend House)

  - Vision impairment programs

  - Speech and Language

• Recreational

  services

  - Sport and recreational services

  - Parks and Gardens

  - Beaches

  - Playgroups

  - Toy libraries

  - Libraries

• Non government

  agencies

  - Church agencies - Anglicare, Central Mission, Centacare

  - Relationships Australia

  - COPE

  - Counselling

• Community

  - Counselling

  - Sports clubs

  - Recreational events

  - Family events

  - Cultural events

Quality education

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

their future.

3. Services and Programs available

for young children in Woomera Detention Centre

"Play lacks

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

Woomera centre."

Australia's

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

In

2001 DIMIA reported that:

• a Family Centre

  for children and parents was available

• Kindergym and

  Playgroup was operating for 1 to 4 year olds

• "Kindy"

  was operating for 2 hours per week day

Within the main compound

there is an allocated space for free play for restricted hours.

Religion

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

outcomes.

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.

4. Recommendations

All policies and

practices regarding children of asylum seekers should be based on the

UNHCR principles

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

2. Non-discrimination

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

and communities.

6. Separated

children

Unaccompanied refugee children must be the particular focus of

protection and care.

7. Cultural

support

The provision of childcare, healthcare and education for refugee

children and children of asylum seekers should reflect their linguistic

and cultural needs.

8. Interpretation

Families should be provided with suitable interpreters who speak

their preferred language whenever they are interviewed or require access

to services.

9. Confidentiality

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.

"Children's

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……

AECA recommends

that

• 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

  their families."

AECA Position

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

have:

• 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

  practices.

• 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

  etc.

• adequate physical

  resources and space for children to play.

• the support and

  encouragement to maintain their home language.

AECA believes

that these recommendations will go some way to enable all children and

their families to have their safety and well being assured.

"By mixing

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

No 33

CULTURE

AND IDENTITY

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.

Part 3

- VIOLATIONS OF THE INTERNATION LAW FOR THE PROTECTION OF HUMAN RIGHTS

Introduction

The

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

policies.

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.

Arbitrary Detention

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. [1] 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. [2] 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

Arbitrariness

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. [3]

In A (name deleted) v Australia [4] 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. [5]

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). [6]

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

particular individual.

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

Detention

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. [7] "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." [8]

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." [9] This exception to the presumption

against detention does not extend to situations where the asylum seeker

has been unable to obtain documentation. [10] The protection

of national security or public order may also be used by a country to

justify a limited period of detention. [11]

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." [12]

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 [13] 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; …

." [14]

Deterrence as

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."

[15]

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) [16],

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:

"Principle

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."

Australia's policy

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

law.

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

rights.

 

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:

"[It] considers

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.

The Committee

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." [18]

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. [19]

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." [20] 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.

Proportionality

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…." [21] 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.

Implementation of

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." [22] 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

Regime

As demonstrated

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:

Cavan routine

Weekday

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).

Downtime

Unit activities - TV, music, computer, table tennis, gym, pool,

oval, tennis.

Tea followed by

phone calls and visits (general, visits outside of hours can be organised

with the Centre).

Weekend

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).

Sensory Deprivation

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." [23]

RES can begin to appear within a number of days or even hours. [24]

Some of the symptoms manifested by people suffering from RES are:

Perception distortions;

Derealization experiences;

Hyper-responsitivity

to external stimuli;

Cognitive impairment;

Massive free floating

anxiety;

Emotional disturbances;

Disturbances in

comprehension and ability to think;

Infantile regressive

changes in the mode of life;

Difficulty in making

social contacts. [25]

One observer of prisoners

subjected to sensory deprivation stated that they 'had become lethargic,

hopeless and depressed due to the conditions of their confinement."

[26] 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.

[27] 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. [28]

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. [29] 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.

The indeterminacy

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 [30]

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

suffering.

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

seekers.

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

cease.

---

BIBLIOGRAPHY

Interviews with families

from Afghanistan and Iraq.

Interview with community

nurse.

UNHCR Revised Guidelines

on Applicable Criteria and Standards Relating to the Detention of Asylum

Seekers (Feb/1999).

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.

---

1.

Human Rights Committee General Comment 8, para 1.

2.

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.

3.

Albert Womah Mukong v. Cameroon (458/1991), 21 July 1994, UN Doc. CCPR/C/51/D/458/1991,

p/12.

4.

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

5.

Nick Poynder, A (name deleted) v Australia: A milestone for asylum seekers,

in the Australian Journal of Human Rights.

6.

A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993

(1997).

7.

Executive Committee of the United Nations High Commissioner for Refugees,

Conclusion No. 44 (1986), paragraph (b).

8.

United Nations High Commissioner for Refugees, Revised Guidelines on Applicable

Criteria and Standards Relating to the Detention of Asylum Seekers, Guideline

3, February 1999.

9.

Conclusion No 44, (1986), above n 7.

10.

Guideline 3, above n 8.

11.

Conclusion No. 44, above n 7.

12.

Human Rights and Equal Opportunity Commission, Those who've come across

the seas: Detention of unauthorised arrivals, 1998, p 47.

13.

A/AC/96/911m)

14.

Id. at para. 21.

15.

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.

16.

(1988) 164 CLR 465.

17.

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.

18.

CCPR/CO/69/AUS, para 19.

19.

See commentary to Guideline 1, above n 8.

20.

Guideline 3, above n 8.

21.

Veen v The Queen [No 2] above note 16, at 472 per Mason CJ, Brennan, Dawson

and Toohey JJ.

22.

Human Rights and Equal Opportunity Commission, above note 15, p 47.

23.

Miller, N.D. 1995, p.162.

24.

Romano, S.M. 1996, p.1115.

25.

See Romano id at 1110 and Miller, above note 23 at p. 165.

26.

Miller, id.

27.

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.

28.

Romano, above n 24 at 1115.

29.

Miller above n 23 at 165.

30.

11 Eur H.R. Rep

31.

Newman, F., and Weissbrot, D., 1996, p.161.

Last

Updated 9 January 2003.