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Submission to the National

Inquiry into Children in Immigration Detention from

Council of Social Service

of NSW (NCOSS)


May 2002

Council of Social

Service of NSW (NCOSS), 66 Albion Street, Surry Hills, 2010

ph: 02 9211 2599, fax: 9281 1968, email: info@ncoss.org.au


1. Background

2. The

policy of mandatory detention

3. Conditions

in the detention centres

4. Services

for children and young people residing in the community after detention


1.

Background

1.1 About NCOSS

The Council of Social

Service of NSW (NCOSS) is an independent non-government organisation and

is the peak body for the social and community services sector in NSW.

NCOSS works with its members on behalf of disadvantaged people and communities

towards achieving social justice in New South Wales. It was established

in 1935 and is part of a national network of Councils of Social Service

which operate in each State and Territory and at Commonwealth level.

NCOSS membership

is composed of community organisations and interested individuals. Through

current membership forums, NCOSS represents more than 7,000 community

organisations and over 85,000 consumers and individuals. Member organisations

are diverse, including unfunded self-help groups, children's services,

emergency relief agencies, chronic illness organisations, local Indigenous

community organisations, church groups, and a range of population-specific

consumer advocacy agencies.

1.2 About this submission

This submission deals

with children in detention and on their release into the community. While

NCOSS is extremely concerned at current approaches to refugees and humanitarian

settlement more broadly, these are not within the scope of this inquiry

and will not be addressed in this submission.

This submission is

based on discussions with a number of community organisations and a small

number of individuals who have experienced detention in the Woomera Detention

Centre.

Most of the organisations

contacted by NCOSS were prepared to discuss issues for this submission

on a confidential basis only. Concerns were expressed about loss of Commonwealth

funding for the organisation, reduced capacity to effectively advocate

with the Commonwealth Government, and loss of visiting rights at the detention

centres. Individuals asked not to be named. As a result, many of the comments

made in this submission are not formally attributed to organisations or

individuals.

While this situation

affects the nature of the submission, NCOSS is extremely concerned at

that fear of retribution of various forms is preventing Australians from

finding out what is happening in detention centres. It is also profoundly

affecting the capacity of community organisations to perform their traditional

role of advocating for disadvantaged individuals and communities.

2. The

policy of mandatory detention

This section relates

to terms of reference 1 and 2

2.1 Breach of human rights

NCOSS considers it

manifestly obvious that mandatory detention of children is in breach of

Australia's human rights obligations. These are not obligations which

have been imposed by external bodies, but exist as a result of Australia

voluntarily becoming a signatory to international treaties. These obligations

apply to all people within Australia's jurisdiction without regard to

their immigration status.

These breaches include:

  • Article 9 of the

    International Covenant on Civil and Political Rights and article 37

    of the Convention on the Rights of the Child, which prohibit arbitrary

    detention

  • Article 10 of

    the International Covenant on Civil and Political Rights and article

    37 of the Convention on the Rights of the Child, which require that

    detained persons be treated with humanity and respect for human dignity

  • Article 37 of

    the Convention on the Rights of the Child which prohibits detention

    of children except as a last resort and for the shortest appropriate

    period of time

  • Article 9 of the

    International Covenant on Civil and Political Rights and article 37

    of the Convention on the Rights of the Child, which recognise a right

    to take legal proceedings to challenge detention

  • Article 2 of the

    International Covenant on Civil and Political Rights and article 2 of

    the International Covenant on Economic, Social and Cultural Rights,

    which prohibit all discrimination on the basis of status in the enjoyment

    of human rights

  • Article 23 of

    the International Covenant on Civil and Political Rights, article 10

    of the International Covenant on Economic, Social and Cultural Rights,

    and article 18 of the Convention on the Rights of the Child, which protect

    the right of parents to found a family, the right of families to state

    care and support and the rights of children to the care of their parents

  • Article 22 of

    the Convention on the Rights of the Child, which requires the state

    to provide appropriate protection and humanitarian assistance to refugee

    and asylum seeker children, especially in relation to family reunion

  • Articles 13 and

    15 of the International Covenant on Economic, Social and Cultural Rights

    and article 28 of the Convention on the Rights of the Child, which recognise

    children's rights to education. [1]

  • Article 9 of the

    International Covenant on Civil and Political Rights provides that anyone

    deprived of liberty by arrest or detention is entitled to seek a review

    of the lawfulness of their detention.

It has also been

suggested that Australia may also be breaching other human rights obligations:

  • Article 6 of the

    International Covenant on Civil and Political Rights, article 37 of

    the Convention on the Rights of the Child and the Convention Against

    Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,

    which prohibits torture and all cruel, inhuman and degrading treatment

    and punishment.

  • Article 2 of the

    International Covenant on Civil and Political Rights and article 2 of

    the International Covenant on Economic, Social and Cultural Rights,

    which prohibit all discrimination on the basis of religion and race

    in the enjoyment of human rights and the Convention on the Elimination

    of All Forms of Racial Discrimination. [2]

2.2 Alternatives to mandatory

detention

NCOSS strongly supports

an alternative approach to mandatory detention which would consist of

a short period of detention, and for those who pass basic threshold tests

in relation to public health, public safety, public security and identification,

placement in the community during processing of their claim for refugee

status.

NCOSS emphasises

that even the shorter detention period should not be under the present

detention arrangements. Conditions within the detention centres are wholly

unsatisfactory, as discussed below, and the location of detention centres

in remote areas is not acceptable.

There are a number

of models for this alternative approach to mandatory detention. These

include the proposal contained in the Human Rights and Equal Opportunities

Commission report, Those who've come across the seas: detention of

unauthorised arrivals; the Conference of Leaders of Religious Institutes

(NSW) document, Policy proposal for adjustments to Australia's asylum

seeking process; the Justice for Asylum Seekers document, Transitional

Processing and Reception Model; the model based on the Charter

of Minimum Requirements for Legislation Relating to the Detention of Asylum

Seekers which was endorsed by the Australian Council of Churches and

16 other community and statutory organisations [3]; the

Independent Education Union document, Refugee and Asylum Seeker Policy

in Australia. [4]

NCOSS notes that

Australia is the only Western nation which has a policy of mandatory detention

of asylum seekers pending resolution of refugee status. [5]

3.

Conditions in the detention centres

This section relates

to terms of reference 3 and 5.

3.1 Sources of information

There is limited

information available on the conditions in which detainees are held.

There have been a

small number of official visits to the centres. The media has been a primary

source of the reports of these visits. The reports are very strongly worded

in their criticism, including comments that the facilities are 'subhuman'

and that 'some asylum seekers were cooped up in filthy cells with overflowing

toilets'. [6]

Independent organisations

seeking to inspect conditions at the detention centres are commonly refused

access. NCOSS was part of a delegation which sought to inspect the education

facilities at Villawood Detention Centre on April 26, 2002. The delegation,

convened by the NSW Teachers Federation, had contacted the Minister for

Immigration and Multicultural Affairs, Phillip Ruddock, a month beforehand

but received no formal response to their letter and was refused access

when they attended at Villawood at the date and time advised.

People visiting individual

detainees at the centres have provided some reports. The visitors to the

centres generally have access only to a limited area. NCOSS has found

that visitors to the centres are often prepared to speak on a confidential

basis only, or not at all, out of concern that their future access to

the detention centres would be jeopardized.

There are few reports

from detainees or former detainees. Former detainees whose claim for asylum

was successful, are provided with temporary visas only. As these visas

require renewal, there is a strong disincentive for former detainees to

speak publicly about their experience. One detainee who provided information

on the experience in the detention centres was Dr Aamer Sultan, who co-authored

an article on the mental health of detainees. [7] Dr

Sultan had been refused asylum prior to writing the article.

Freedom of Information

laws are of minimal assistance in obtaining information on conditions

in the detention centres. While these laws would provide access to information

about the correctional system in NSW, the Commonwealth Government has

contracted out the management of the detention centres and, as a result,

key information on the conditions in the detention centre is held by a

private company rather than the Commonwealth Government. Access to information

about management and performance of Australian Correctional Management

held by the Commonwealth Government is also constrained by claims of 'commercial

in confidence'.

The limited sources

of information available on conditions in the detention centres itself

raises serious concerns about those conditions.

3.2 Conditions in the detention

centres

Former detainees,

now resident in NSW, spoke to NCOSS about conditions in Woomera Detention

Centre during the time they were resident there. The detainees' names

and the time they were in detention has been kept confidential, at their

request.

The following is

a summary of the information provided by the former detainees.

Education

Initially, no classes were available for the children, so the other

residents organised classes and taught them themselves. Later, there was

a teacher, but classes were not structured and age-appropriate.

There were

young people and adults who wanted to learn English, but there was no

teacher. Some detainees who knew English, taught others what they knew.

While the managers knew that this was happening, they did not provide

books and they did not help.

Play

The children didn't play. There were no green areas, just rocks, and they

did not have toys.

The children

were sometimes taken on excursions, but their parents did not come with

them. Because their parents were left behind, the children were scared

about the excursions.

There was a

single room with a video. Adults and children used the room at the same

time, so there was conflict about what video was shown. There was not

a separate time for children to watch cartoons or other children's shows.

Food

There was only one type of food, so there was no choice about what to

eat. Many people would leave their food behind because they did not like

it.

The food was sometimes dirty and smelly. Despite reporting to Australian

Correctional Management (ACM) that food was bad, the problem continued.

It was not possible to ask for only part of the meal, such as salad. Everyone

was required to take the standard meal. If there was any discussion or

argument, the ACM staff would take the detainee's number. This was scary.

If a child was sick and wanted to eat in their own room, they needed to

get special authorisation. This was provided only when the person was

very sick. If a child or adult did not attend the mess for a meal, then

they did not get fed.

If anyone turned up late for a meal, they did not get fed. This was the

case even if people were still sitting at the table and eating inside

the mess.

People were confident that the food was halal, as they had asked for and

seen the certification.

Health care

There were few drugs available. Whenever anyone reported feeling ill,

they were told to drink more water. There were no antibiotics or Panadol

available from the nurses.

The nurses decided which detainees saw a doctor. While many were very

kind, some were not.

Obtaining dental care was very difficult. There was often two or three

weeks' wait for a dentist to visit the detention centre. People were sometimes

screaming with pain from their teeth. When this happened, they were given

Panadiene Forte, but this was not enough.

Lots of people had depression. Some of these people went mad.

Some people left the detention centre with diabetes, even though they

had not been sick beforehand

Culture

and religion

Initially,

the management did not understand about religion, but later tried to provide

religious material to encourage people to cooperate.

Initially, there were problems with breaking the fast after Ramadan. At

the end of the day in Ramadan, ACM would do a headcount. People had been

without food and drink all day, and were forced to wait for up to two

hours before they could eat or drink.

Security

practices

A higher security area existed within the detention centre. Initially,

there was no communication between the people in this area and those in

the main part of the detention centre. Later, letters were allowed to

pass between these areas and people from the main area were occasionally

allowed to visit the higher security area.

When the higher security area was built, the detainees were told that

it was for bad people and that these people would be deported or go to

prison. People were very afraid of going there.

When ACM took people to the higher security area, they would come at night

and wake the person up to take them away. This really scared the people.

People were always demonstrating and asking for freedom. On one occasion,

ACM sent a message that the demonstrators would be taken to the higher

security area that night. The detainees were so frightened that they slept

outside that night, even though it was very cold.

ACM would do headcounts at night. People would be woken up with lights

in their faces, which was very frightening.

The centre management sent two men to prison. The other detainees did

not think the two men had done anything wrong, and saw it as a way of

frightening the others. Some detainees heard that the guards had beaten

the detainees who went to jail.

A consistent

theme in the comments of the detainees was the way that they were spoken

to by the ACM staff, which they hated: "The way they talk to you,

your dignity is broken", "They let people feel they are a beggar."

3.3 Improving conditions in

the detention centres

In recommending improvements

to the conditions in detention centres, NCOSS is placed in a quandary.

On the one hand, NCOSS is appalled at the conditions of the detention

centres and can only advocate in the strongest terms for the release of

both adults and children detained there. On the other hand, given the

apparent strength of Commonwealth Government commitment to the policy

of mandatory detention, NCOSS is keen to see any improvement that is possible

in the quality of life of the detainees. It is of enormous concern to

NCOSS that children and young people who are asylum seekers may be in

detention for years, with a consequentially huge impact on their long

term education, development, and physical and mental health.

In principle, NCOSS

would like to see children and young people in detention provided with

the same services available to children and young people in the broader

community. Given the nature of the environment, there are questions about

whether some of these services would be effective.

(i) Child protection

In NSW, there is

at present no Memorandum of Understanding (MOU) between the Commonwealth

and the State in relation to child protection services and the Villawood

Detention Centre. The NSW Department of Community Services (DoCS), which

is the agency charged with implementing the Children and Young Persons

(Care and Protection) Act (1998) has no jurisdiction in relation to

the detention centres, and, in the absence of a MOU, is able to pursue

child protection reports only at the discretion of the DIMA.

NCOSS notes that

the Minister for Immigration and Multicultural Affairs stated on 27 February

2000 that negotiation of protocols with state authorities involved with

immigration detention was a priority for the Department. [8]

NCOSS understands

that DoCS has received notifications of children at risk in the detention

centre and has gained permission from DIMA to conduct investigations.

NCOSS also understands that there have been significant delays in DIMA

responses to DoCS recommendations. As DoCS has no jurisdiction in this

area, it has no power to enforce these recommendations, as would be the

case elsewhere in NSW.

NCOSS is extremely

concerned about the delays in resolving the MOU as it contributes to an

extremely unsatisfactory system of investigation and response to child

protection notifications. The MOU would also a provide a mechanism to

require detention centre staff to provide notifications of children at

risk, as is currently the case for a vast array of professionals and staff

engaged in the human services industry elsewhere in NSW.

Even with the resolution

of relationships between State and Commonwealth, implementing child protection

arrangements in relation to children in detention raises major ethical

difficulties. There are powerful arguments that the environment of a detention

centre is innately abusive to children. As a result, child protection

authorities seeking to protect children from the abuse of the detention

centre are left with the choice of removing children from an abusive environment

and from their parents, or leaving them with their parents in an abusive

environment.

The obvious response

would be to transfer the entire family of parents and children to the

community. This would require not merely the extension of the current

child protection regime to the detention centre, but a shift in Commonwealth

policy and practice. NCOSS is well aware of the past practice of DIMA

and the Minister for Immigration of refusing such requests.

(ii) Education

NCOSS strongly advocates

for children and young people in detention to be supported to attend early

childhood services, primary and secondary school, and TAFE classes. This

would require appropriate, specialist staff in pre-schools, schools and

TAFEs. NCOSS emphasises the importance of early childhood services in

preparing children for attending primary school, and in promoting their

development at what is recognised at a key period in childhood.

NCOSS notes that

following its inspection of detention centres, the Joint Standing Committee

on Foreign Defence and Trade recommended that DIMA negotiate with State

and Territory governments and non-government schools to enable children

in detention centres to access nearby schools. [9]

NCOSS notes that

the NSW Government is supportive of this approach for school and TAFE

students. In a letter to the NSW Teachers Federation, the Director General

of Education and Training, Ken Boston AO, indicated that the NSW Department

of Education and Training would provide appropriate ESL and counselling

resources to public schools which welcomed these children, and that the

Department supported the inclusion of the children and young people in

Villawood into NSW public schools and colleges. [10]

Ken Boston stated that he had advised the Department of Immigration and

Multicultural Affairs of these positions.

NCOSS also notes

that the Villawood Detention Centre is located across the street from

the Chester Hill Public School which provides specialist English language

classes.

(iii) Health

The mental health

of children in detention was described in an article by Dr Aaman Sultan,

a medical practitioner and detainee at Villawood Detention Centre, and

Kevin Sultan, a psychologist who provided treatment to detainees at Villawood.

They reported:

A wide range of

psychological disturbances are commonly observed among children in the

detention centre, including separation anxiety, disruptive conduct,

nocturnal enuresis, sleep disturbances, nightmares and night terrors,

sleepwalking, and impaired cognitive development. At the most severe

end of the spectrum, a number of children have displayed profound symptoms

of psychological distress, including mutism, stereotypic behaviours,

and refusal to eat or drink. Children of parents who reach the tertiary

depressive stage appear to be particularly vulnerable to developing

a range of psychological disorders. [11]

NCOSS understands

the Service for the Treatment and Rehabilitation of Torture and Trauma

Survivors (STARTTS) does not provide services within the detention centres

as they do not consider that it would be effective or appropriate.

NCOSS is at a loss

to make recommendations which would ameliorate the mental health condition

of children and young people in detention.

In relation to the

general health of detainees, NCOSS can only reiterate the importance of

speedy access to appropriate health services. The reports received by

NCOSS about conditions at Woomera Detention Centre indicated that this

was not the case, and that oral health was particularly poorly served.

(iv) Other services

In principle, NCOSS

would seek to have asylum seekers able to access the full range of services

available to people living in the community. This would include services

such as family support services, women's health, specialist family counsellors,

disability support services, and others. As discussed above, given the

nature of the environment, there are questions about whether some of these

services would be able to be effective.

4.

Services for children and young people residing in the community after

detention

This section relates

to terms of reference 3 and 6.

The Commonwealth

Government response to the needs of refugees and other humanitarian entrants

settling in Australia is contained in the Integrated Humanitarian Settlement

Strategy (IHSS). Many of the services in this strategy are not available

to holders of a Temporary Protection Visa (TPV), which is the visa provided

to successful asylum seekers who have been subject to mandatory detention.

TPV holders are entitled

to a health assessment, Medicare card, torture and trauma counselling,

the right to work, and employment assistance which is limited to the 'touch

screen' job-matching service. TPV holders are eligible for Special Benefits,

Rent Assistance, Maternity and Family Allowance, and the Family Tax Payment.

[12]

Unlike TPV holders,

refugees and humanitarian entrants who have a '200-class visa', are entitled

to free tuition under the Adult Migrant English Program and the Advanced

English for Migrants Program. They have full access to all employment

assistance programs. They are eligible for settlement services including

orientation, accommodation, household formation, and for assistance from

Migrant Resource Services.

Unlike TPV holders,

the '200-class' visa holders are also eligible for the full range of social

security benefits and they are eligible for the Higher Education Contribution

Scheme (HECS) for tertiary education.

Both TPV and '200-class'

visa holders are entitled to access the full range of State funded human

services. NCOSS notes that the ineligibility of TPV holders to the case

management services of Migrant Resource Centres means that many TPV holders

may not be aware of the services which are available to them.

NCOSS also notes

that a number of agencies are delivering services to TPV holders on a

voluntary basis, however there is a manifestly inadequate network of services

for refugees with TPV.

NCOSS

May 2002


1.

C. Sidoti, Refugee policy: is there a way out of this mess?, speech

to Racial Respect Seminar, Canberra, 21 February 2002

2.

C. Sidoti, Refugee policy: is there a way out of this mess?

3.

C. Sidoti, Refugee policy: is there a way out of this mess?

4.

Independent Education Union, Refugee and asylum seeker policy in Australia,

2002

5.

Independent Education Union, Refugee and asylum seeker policy in Australia

6.

US Committee for Refugees, Sea Change: Australia's new approach to

asylum seekers, 2002 p23

7.

A. Sultan, and K. O'Sullivan, 'Psychological disturbances in asylum seekers

held in long term detention: a participant observer account', Medical

Journal of Australia Vol 175:593-595, 2001

8.

Report of Inquiry into Immigration Detention procedures, Statement by

the Minister for Immigration and Multicultural Affairs, Immigration Detention

Procedures, 27 February 2000 at <http://minister.immi.gov.au/detention/inquiry_response.htm&gt;

9.

Parliament of the Commonwealth of Australia, Joint standing committee

on foreign defence and trade, Reports on visits to Immigration Detention

Centres, Canberra, June 2001

10.

Letter from Ken Boston AO, Managing Director of TAFE NSW and Director

General of Education and Training, to Barry Johnson, General Secretary,

NSW Teachers Federation, 24 April 2002

11.

A. Sultan, and K. O'Sullivan, 'Psychological disturbances in asylum seekers

held in long term detention: a participant observer account'

12.

Independent Education Union, Refugee and asylum seeker policy in Australia

Last

Updated 9 January 2003.