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Submission to the National
Inquiry into Children in Immigration Detention from
the National Ethnic Disability
NEEDS & DETENTION
The National Ethnic
Disability Alliance (NEDA) is the peak body in Australia for people from
a non-English speaking background (NESB) with disability, their families
The overarching aim
of NEDA is to advocate at a federal level, for the rights and interests
of people from a NESB with disability, their families and carers.
All activities undertaken
by NEDA include strong consumer involvement and are based on the following
1. Represent the
rights and interests of people from NESB with disability, their families
2. Advocate on
issues impacting on people from NESB with disability, their families
3. Work towards
securing equitable outcomes for people from NESB with disability, their
families and carers.
policy advice to the Federal government and relevant peak bodies on
the impact of policy and legislation on people from NESB with disability,
their families and carers.
NEDA, because of
its cross-sector role (disability and ethnicity), aims to collaborate
with and work across a broad range of organisations to represent the interests
of people from a NESB with disability. For more information about NEDA,
please visit www.neda.org.au
Given the role of
NEDA (stated above), this submission will look at the issue of children
with disability living in detention from a national perspective, drawing
on NEDA's expertise about the intersection of ethnicity and disability
and the impact this has on children with disability currently living in
detention centres in Australia.
advocacy organisations such as the Multicultural Disability Advocacy Association
(MDAA) of NSW form the membership of NEDA. NEDA fully endorses the submission
lodged with HREOC by MDAA. State-based agencies that provide individual
advocacy services, such as MDAA NSW, have first hand experience about
the issues facing people from a NESB with disability, their families and
carers given their individual advocacy work.
As a peak body, one
of NEDA's primary roles is to compile NESB-disability issues from all
states and territories to develop a national perspective on issues of
that no child with a disability or their family should be detained when
seeking on-shore asylum in Australia.
Not only does
this practice contravene international human rights obligations of which
Australia is a signatory, but NEDA does not believe that it is in the
best interest of any child with a disability to be detained in an environment
unequipped to deal with their support needs.
On the 22nd January
2002, NEDA wrote to the Department of Immigration, Multicultural and Indigenous
Affairs (DIMIA) requesting information about the children with disability
living in detention.
On the 18th February
2002, DIMIA made the following information available to NEDA (see Appendix
1. As of the 1st
February 2002 a total of 378 children were residing in detention centres
on the Australian mainland.
2. As of the 5th
February 2002 a total of 16 (or 4.2%) children with disability were
residing in detention centres. Children with disability are currently
located at Port Hedland, Curtin and Woomera detention centres.
3. The types of
disability affecting these children include cerebral palsy, hearing
impairment, vision impairment, acute dwarfism, trauma, Perthes disease
and cardiac, asthmatic and genetic (including Fragile X) disabilities.
reveals that DIMIA has failed to identify children with cognitive and
other 'non- visible' disability. NEDA is extremely concerned about the
detection of disability amongst all children living in detention and we
believe that DIMIA may be underestimating the number of children with
disability, particularly those who have experienced torture and trauma
within their country of origin.
Apart from the primary
disability, these children are highly likely to gain a secondary psychiatric
disability due to their incarceration and to the torture and / or trauma
experienced in their country of origin. Therefore children with disability
living in detention should receive specialised child psychiatric counselling
in their own language, via cross-cultural counselors and psychiatrists.
People from a NESB
with disability experience multiple layers of discrimination - discrimination
on the basis of disability and ethnicity. This is no different for children
who are from a NESB with disability.
People from a NESB
with disability are one of the most disadvantaged and marginalised groups
in society. The issues and needs of people from NESB with disability and
their families and carers have not been understood or addressed by governments,
the community sector and the general population. In NSW alone, three out
of four people from a NESB with disability miss out on receiving non-
government disability services.
In Australia, three
out of four people from a NESB with disability miss out on receiving Commonwealth
funded disability services. This is in addition to the current unmet need
for people with disability in general (see Appendix 2).
This figure stands
despite genuine efforts made by many to redress this appalling situation.
This figure points towards the need to seek systemic solutions to the
whole disability services system, involving all stakeholders.
Many services seem
unable to accommodate linguistic and cultural diversity because:
- Ethnic communities
tend to be overlooked when considering the 'target group'
- Staff need continual
accredited, quality training in cultural difference, diversity and disability,
and in particular, the nature and reality of the person's experiences
- The disability
services system has not adopted even the most basic mechanisms for people
from NESB such as the use of interpreters or the publication of material
in languages other than English. Poor language skills prevent carers
from accessing services so they have less opportunity to develop their
personal, social or professional capabilities
- There are insufficient
strategies and practices to ensure that people from NESB with disability
and their families and carers participate in decision-making
- The myth of extended
family support is still subscribed to by both service providers and
funding bodies resulting in fewer services for NESB communities.
DIMIA's letter to
NEDA states that:
steps are taken to ensure that the needs of these children are met.
At this point in
time, NEDA is not convinced that this is happening and we have not seen
any evidence to suggest that detention centres have the capacity and expertise
to service the needs of children from a NESB with disability.
The assessment process
used to determine the type and level of disability of a child living in
detention highlights this point. The assessment process (a crucial part
of determining the support needs of a child) involves a centre nurse and
may include a counselor or psychologist - it is unclear whether or not
the staff has received additional training in disability and ethnicity.
The assessment process fails to include any specialist disability clinical
staff such as occupational therapists, physiotherapists, speech pathologists
the Rights of the Child
All children who
enter Australia need to be treated in accordance with the International
Convention on the Rights of the Child (1989), to which Australia
The current practice
of detaining children with disability is in complete contradiction to
Article 23 (1)
Article 23 (1) of
the above Convention clearly states that
that a mentally or physically disabled child should enjoy a full and
decent life, in conditions which ensure dignity, promote self-reliance
and facilitate the child's active participation in the community.
Detaining any child
with a disability works directly against any notion of promoting self-reliance
and active participation.
both at a state and Commonwealth level, now recognise on a domestic level
that incarcerating children with disability is a harmful practice and
there is a move away from large institutional settings to more community
based accommodation options. This should be no different for children
who are citizens, residents, off-shore refugees or on-shore asylum seekers.
Article 22 (1)
Further more, Article
22 (1) states that
take appropriate measures to ensure that a child who is seeking refugee
status or who is considered a refugee in accordance with applicable
international or domestic law and procedures shall, whether unaccompanied
or accompanied by his or her parents or by any other person, receive
appropriate protection and humanitarian assistance in the enjoyment
of applicable rights set forth in the present Convention and in other
international human rights or humanitarian instruments to which the
said States are Parties.
practice of detaining children with disability seeking on-shore asylum
is in direct contradiction to the very essence of receiving appropriate
protection and humanitarian assistance.
Policy - Excluding Disability
The Australian off-shore
refugee program currently excludes people with disability entering this
country due to the requirements of the health assessment that is undertaken.
As a result, families that have a child with a disability are unable to
enter Australia through the conventional resettlement program and there
is also no 'queue' that these families can join.
The only option left
available to families with a child with disability is to try and enter
Australia as on-shore asylum seekers where they are then detained. It
also means that the vast majority of families arriving as on-shore asylum
seekers who have children with disability will only ever be eligible for
a temporary protection visa which does not allow them to access Commonwealth
benefits (i.e. Disability Support Pension, Carers Pension etc) and state-funded
services (i.e. advocacy etc).
in a number of countries aimed at safeguarding the rights and dignity
of people with disability was given impetus by the:
- growth in disability
activism towards the end of the century
- increase of global
awareness of human rights
- pressure from
international human rights organisations,
of the International Year of Disabled Persons (IYDP)
- adoption of the
United Nations General Assembly of the Standard Rules on the Equalization
of Opportunities for Persons with Disabilities in 1994 - a strong moral
and political commitment of Governments to take action to attain equalization
of opportunities for persons with disabilities.
A United Nations
survey of 88 national governments in the 1990's revealed that 80 per cent
of states had reformulated their thinking on disability issues and have
introduced anti-discriminatory legislation (Priestley 2001).
Australia was one
such country that responded to the challenge of promoting and protecting
the rights of people with disability through the development of a Commonwealth
Disability Discrimination Act (DDA) 1992.
Whilst the DDA covers
all Commonwealth, State and Territory agencies, it does not
- affect discriminatory
provisions in the Migration Act 1968 or any regulation made under
- render unlawful
anything done by a person in relation to the administration of that
Act or those regulations.
means that DIMIA funded and administered agencies, such as the Australasian
Correctional Management Pty Ltd (ACM), and activities undertaken relating
to the administration of the Migration Act are exempt from the
The exemption of
the Migration Act from the DDA epitomises the two-tiered value
system afforded to people with disability living in Australia on the one
hand, and potential migrants with disability on the other. This process
also flies in the face of the Federal Government's publicly stated commitment
about valuing people with disability.
This exemption actually
allows the Australian government to legally discriminate against people
with disability in the context of migration and NEDA believes this is
extremely problematic in terms of trying to ensure that the needs of children
with disability living in detention are met.
NEDA calls on the
Federal government to remove the exemption of the Migration Act
from the DDA and to put a stop to the current inequitable and discriminatory
to this inquiry outlines a range of options as an alternative to detention.
NEDA endorses the recommendations put forward from MDAA and does not see
merit in covering the same ground. NEDA would like to refer HREOC to the
MDAA submission where considerable work was done by a range of organisations
and individuals to develop viable, less expensive and more humane alternatives
to the current detention regime.
Like MDAA, NEDA also
supports proposals, such as those put forward by the Refugee Council of
Australia, which include a short period of closed detention and then open
detention and / or community release.
NEEDS & DETENTION
It has already been
established that there are a number of children with disability living
in detention in this country. These children have general and specific
support needs that must be met in order to maintain their well-being and
ensure that they are able to participate meaningfully in all areas of
Children with disability
have additional support needs, depending on their disability and the level
of impairment caused by their disability. Children with disability also
experiencing some sort of torture of trauma in their country of origin
coupled with the strains caused by the migration process can also develop
additional disability (i.e. psychiatric disability).
NEDA is not convinced,
despite assurances by DIMIA (see Appendix 2), that Australian detention
centres are capable of adequately meeting the needs of these children.
The assessment process of the disability alone (outside any cultural needs)
is completely inadequate and additional issues raised below highlight
the unmet need of children with disability living in detention. The lack
of expertise and support only serve to compound the existing level of
disability and in the long term, mean higher costs due to higher support
What is desperately
needed for children with disability living in detention is individually
tailored and support as opposed to stop-gap crisis management which can
not produce sustainable outcomes. The best outcome for children with disability
will be achieved through addressing their individual needs via specific
intervention programs that are incorporated into their daily routine which
include the education of their care-givers.
Children with disability
have the same needs as all children but their disability means that they
have additional needs such as:
facilities- in its letter to NEDA, DIMIA stated that most detention
centres contain non-medical facilities and services such as sports programs
and activities, education, play equipment for children etc. Whatever
facilities and services that are made available to detained children,
children with disability are most unlikely to access many of them as
they have not been made accessible. Therefore, children with disability
living in detention do not have the same opportunities as children without
disability to interact and participate meaningfully - an important part
of their social and physical development.
- Aids and Equipment
- without suitably modified aids and equipment (i.e. mobility aids),
children with physical disability will be prevented from developing
independent living skills and in the long-term, will require greater
levels of support. Modified equipment is an essential component of developing
the skills and independence of children with disability. Without this
equipment, additional resources, support and assistance will be required
in the future as these children will miss out on early learning experiences
and may remain dependent on adult care-givers to undertake basic tasks
(i.e. toileting, feeding etc). Appropriately equipping children not
only enhances functioning but also reduces the risk of future physical
- Detention Centre
Staff- according to DIMIA, a range of medical personal are employed
at the some detention centres. NEDA has seen no evidence to suggest
that these staff receive accredited and up-to-date specialised disability
and cultural diversity training which is essential to ensure that staff
are equipped to meet the needs of children with disability living in
detention. NEDA urges the Commonwealth to involve people with expertise
in these areas in the management of children with disability.
- Early intervention
- there is ample evidence available documenting the benefits of early
intervention and evidence has shown that early intervention can reduce
the chance of and, in some cases, prevent developmental problems. Early
intervention can also result in more children having a chance to experience
a 'meaningful' life, can reduce costs and improve the quality of parent,
child, and family relationships. The Commonwealth government itself
recognizes the importance and benefits of this service (please visit
- NEDA is extremely concerned about the level of education that children
with disability are receiving. NEDA has received numerous e-mails stating
that on average, a child is receiving only 2 hours of education per
day. This is completely inadequate in terms of meeting the learning
needs of children with disability. Children with disability, particularly
those with cognitive disability, require a program for that is designed
to meet their specific needs to ensure that they are equipped with basic
life skills and enough independence during their transition into the
community. Without this, children with disability will require additional
support and assistance which means additional costs.
The prejudicial attitudes
and misconceptions regarding disability present in Anglo- Australian communities
are equally evident in NESB communities. Whilst there are differences
in the perception of disability amongst different ethnic groups, the relative
degree of stigma attached to disability appears similar across NESB and
By and large, NESB
communities have missed out on education campaigns about disability because
those conducting the campaigns have failed to target and reach NESB communities.
At the same time, there have been consultations with people from NESB
with disability, but unfortunately the consultations have not resulted
in the development of concrete strategies.
People from NESB
with disability and their carers are often stigmatised and isolated because
of attitudes and misconceptions prevalent in their own communities and
in the Anglo-Australian community. Many migrant families with a member
with a disability tend to socialise less, and have fewer contacts with
other people, often only with people who accept disability.
Beneath this isolation
lies a migration process which is a traumatic and isolating experience.
Relatives, friends, social and support networks are no longer available
and are difficult to establish in a new country.
There is also a high
level of mistrust towards governments amongst many migrant communities,
often based on negative experiences with governments in their country
of birth and particularly if they have been detained for a period of time
in this country.
The lack of support
networks has a particularly adverse impact on women carers, especially
those in communities where there is an enormous stigma attached to disability.
are carried by families and carers from NESB with multiple layers of disadvantage
- disability, poverty, disruption to the family as a result of migration,
diminished support networks and lack of sufficient and appropriate services.
In general, NESB
families carers only seek help when they are at crisis point and not before.
As there are often no services involved in the carers lives, the earlier
warning signs of 'burn out' remain undetected and many GPs are not well
informed about programs and support available for carers. Thus doctors
cannot act as a go-between for services and carers.
NEDA is aware of
several instances where the lack of support and services has led to carers
suffering extreme burn out and being admitted to hospital, whilst the
person they care for, ended up in residential care or in a nursing home.
Carers from NESB
usually end up incurring a disability themselves - commonly physical and
mental health problems - as a result of the pressures involved with caring
for a person with disability whilst juggling a range of other responsibilities.
Families and Carers
NEDA recommends that
families and carers of children with disability living in detention receive
education and training about disability and the disability service system
to ensure that they are equipped with an adequate level of knowledge about
disability when they leave the detention centre and have to care for their
children alone. Without this, families are left to negotiate the maze
of bureaucracy and services alone, without the aid of interpreters.
The majority of the
people who apply for refugee status when placed in detention centres are
currently granted refugee status and given Temporary Protection Visas
(TPV). TPV's exclude people from accessing a range of services and entitlements
available to those granted Permanent Protection Visas.
TPV holders are not
entitled to access the full range of social security benefits such as
the Disabiliy Support Pension and the Carer's Pension and the 'Special
Benefit' amount granted to TPV holders is actually less than the Newstart
Allowance. TPV holders are also not eligible for employment assistance
or English language programs.
For children with
disability, this means that they cannot access specialist training and
employment programs. Without these skills, children with a disability
who are TPV holders are almost certain of facing a future of unemployment.
This situation highlights the ineffectiveness of the TPV as it ensures
the cost of unemployment and under utilization of skills will be transferred
to the broader community. It makes no sense to deprive TPV holders, many
of whom will receive refugee status, access to basic training and services.
As TPV holders have
no right to family reunion, this combined with the ineligibility for a
range of services, means that any care which might need to be undertaken
for the child with the disability is largely being provided by one person
(usually the mother).
TPV holders are also
unable to access case management offered to other refugees by settlement
services is that other services, often small, under-funded ethno-specific
community based services, have to spend huge amounts of time trying to
procure specialist and affordable services to assist children with a disability.
Lack of Clarity
Overall there is
a lack of clarity about what TPV holders are and are not eligible for
in each of the states and territories. NEDA was unable to find any information
from DIMIA documenting the service entitlements for TPV holders in each
state and territory.
If children with
disability are unable to access basic and essential disability services
and support there is not only a high cost to them in terms of their opportunities
and options but also a greater cost to the broader community - in most
cases this will be absorbed by the States and Territories, not the Commonwealth.
1. That all children
with disability and their families be removed from Detention facilities
immediately and placed in more appropriate community-based accommodation.
2. That the Federal
government to remove the exemption of the Migration Act from
the Disability Discrimination Act.
3. That the recommendations
for alternatives to detention put forward by the Multicultural Disability
Advocacy Association of NSW and the Refugee Council of Australia be
below are not valued less by NEDA than those above. Our primary position
is that all children with disability and their families be removed from
detention centres. However, should the practice of detaining on-shore
asylum seekers continue, NEDA then makes the following recommendations
in an attempt to ensure that children with disability arriving in this
country have their needs met.
4. That children
with disability living in detention receive specialised child psychiatric
counselling in their own language, via cross-cultural counselors and
5. That all facilities
and programs within detention centres be made accessible to all children
6. That appropriate
aids and equipment be given to children with disability living in detention.
7. That all detention
centre staff undergo accredited and up-to-date specialised disability
and cultural diversity training.
8. That the assessment
process of children with disability be completely revised and that early
intervention be made available to all children with disability.
9. That all children
living in detention receive basic and essential levels of education
and that children with disability, particularly those with cognitive
disability, require a program for that is designed to meet their specific
10. That families
and carers of children with disability living in detention receive education
and training about disability and the disability service system before
being released into the community.
11. That the Federal
government reconsider and revise the entire system of Temporary Protection
Visa's particularly the lack of entitlements and the inability to reunite
12. That the Federal
government produce information clearly documenting the service entitlements
for TPV holders in each state and territory.
(Removed due to confidentiality issues)
2: UNMET NEED
There is very limited
data available about people from NESB with disability. When attempting
to analyse what available data there is, the different definitions used
when referring to 'NESB' create many problems.
Below are NEDA's
calculations of the number of people from NESB with disability living
in Australia and the rate at which we miss out on receiving services in
LOTE stands for Language
Other Than English spoken in the home.
A Partial Definition
The Australian Bureau
of Statistics (ABS) and most government departments, including the NSW
Ageing and Disability Department (ADD), define NESB as a person who is
- born overseas
in a non-English speaking country
- speaks a language
other than English (LOTE) in the home.
NB: This does not
include 2nd and 3rd generation NESB.
The 1996 ABS statistics
- 15.5% of the Australian
population are people who speak a LOTE (language other than English)
at home [ABS, 1996 Census].
From these figures,
NEDA estimates that 15.5% of all people with a disability living in Australia
speak a LOTE at home.
The 1998 statistics
- 19% of the population
in Australia has a disability [ABS, 1998 Disability, Ageing and Carers:
Summary of Findings].
Using this information,
NEDA estimates that 2.9% of the population or 568,385 people in
Australia have a disability and speak a LOTE 
Access to Services
The Department of
Family and Community Services latest data suggests that:
- 6.2% of consumers
of Commonwealth funded disability employment services speak a LOTE at
home. [Dept of Family and Community Services, Disability Services
from the information provided above it can be concluded that:
out of 3 people who speak a LOTE at home with disability miss out on receiving
Commonwealth funded disability employment services.
NESB stands for Non-English
A Complete Definition
NEDA follows the
Department of Immigration and Multicultural Affairs (DIMA) in its definition
of NESB. That is, NESB refers to a person who is either:
- born overseas
and whose language or culture is not English or Anglo-Celtic / Saxon
- born here in
Australia and the first language or culture of at least one parent is
not English or Anglo-Celtic / Saxon
- born in Australia
with linguistic or cultural background other than English or Anglo-Celtic
/ Saxon who wish to be identified as such.
NB: This includes
2nd, and possibly 3rd generation NESB.
The ABS statistics
- 41% of the population
were either born overseas (English speaking + non-English speaking countries)
or have one or both parents born overseas (English speaking + non-English
- 60% of those
born overseas or with one or both parents born overseas come from a
non-English speaking background [ABS, 1996 Census].
Using this information,
NEDA estimates that 24.6% of the population of Australia are people from
a NESB .  Thus, 24.6% of all people with a disability
living in Australia are from a NESB.
As mentioned previously,
19% of the Australian population has a disability. Thus, NEDA estimates
that 4.6% of the population or 902,082 people in Australia are from a
NESB with a disability. 
Access to Services
The Department of
Family and Community Services latest data suggests that:
- 6.2% of consumers
of Commonwealth funded disability employment services speak a LOTE at
home. [Dept of Family and Community Services, Disability Services Census,
the limited definition of LOTE (16.8% of population) and adding 7% to
account for 2nd and 3rd generation NESB it can be concluded that:
out of 4 people from a NESB with disability miss out on receiving Commonwealth
19% x 19.3 million (2001 projected pop'n of Australia) = 3,667,000 people.
15.5% x 3,667,000 (people with disability in NSW) = 568,385 which = 2.9%
x pop'n of Australia.
41% x 19.3 million (2001 projected pop'n of Australia) = 7,913,00. 60%
x 7,913,000 = 4,747,800 which = 24.6% x pop'n of Australia.
24.6% x 3,667,000 (people with disability in Australia) = 902,082 which
= 4.6% x pop'n of Australia
Updated 9 January 2003.