Skip to main content

Commission Website: National Inquiry into Children in Immigration Detention

Click here to return to the Submission Index

Submission to the National

Inquiry into Children in Immigration Detention from

Federation of Parents and

Citizens' Associations of New South Wales


Preamble

The Federation of Parents and Citizens' Associations of New South Wales

is committed to a free public education system which is open to all people

irrespective of culture, gender, academic ability and socio-economic class

and empowers students to control their own lives and be contributing members

of society.

This commitment is based on the belief that:

  • All students have

    the capacity to learn;

  • The Government

    has prime responsibility to provide an education system open to all

    which is free and secular;

  • Schools should

    be structured to meet the needs of individual students and should respect

    the knowledge those students bring to school and build on that knowledge

    to foster their understanding about the world.

Parents, as partners

in the education process, have a right and a responsibility to play an

active role in the education of their children. P&C Federation and

its representatives share a responsibility of ensuring representative

decision making for the benefit of all students. P&C Federation's

annual conference, attended by representatives of its 2100 affiliate associations,

develops policy which is energetically promoted by P&C Federation's

democratically elected Council.

Introduction

The P&C Federation

of NSW welcomes the opportunity to respond to the National Inquiry

into Children in Immigration Detention. As an organization that advocates

for the rights of children, we are concerned that the Australian Government's

policy on mandatory detention of children asylum seekers contravenes human

rights treaties and conventions that Australia is signatory to. The Federation

is particularly concerned that children's rights as espoused in the United

Nations Conventions on the Rights of the Child (1989) are not being

met when children are detained. It is an apparent contradiction to serve

the best interests of the child when detained in conditions not dissimilar

to a prison. The Federation sees this situation as urgent, requiring attention

at the national level as soon as possible. It is unacceptable for the

Australian government to detain children and deprive them of access to

normal living and education provisions. In this submission, Federation

argues that children and their families should not be held in detention

as they are protected under international law. Further, we argue for the

development of an education strategy that is ongoing from the time a child

arrives on Australia's shores. Most significantly we argue that child

asylum seekers should be able to access local schools.

P&C Federation Recommendations

The P&C Federation

Recommends:

1. That all children

be removed from detention and that their welfare is improved to more

adequately reflect the UNHCR Refugee Children: Guidelines on Protection

and Care.

2. That children are not detained while their claims are being processed

and that the Right to Family Life is respected by allowing children

to be released with their families into the Australian community.

If this is not feasible,

The P&C Federation

Recommends:

3. That children

be removed from detention and placed under foster care under the parental

responsibility of the Minister of Community Services.

4. That in the case that family placements are not possible, culturally

appropriate placements for children within their own religious, linguistic

and ethnic group should be sought.

Education Provision

The P&C Federation Recommends:

5. That a national

inquiry into Immigration Detention Standards be conducted to evaluate

education provision across the country.

6. That the Department of Immigration, Multicultural and Aboriginal

Affairs implement an educational strategy to determine children asylum

seeker's educational needs and establish clear objectives and priorities

in managing this as well as a plan monitoring the strategies success

.

7. That any education strategy utilise UNHCR Refugee Children: Guidelines

on Protection and Care.

8. That local schools be opened to children in immigration detention

and/or asylum seekers, and are resourced with extra teacher assistant

support in class rooms.

9. That asylum seeker children be provided with free full time primary

and secondary school provision with options to carry out further study.

10. That Preschool and day care arrangements be expanded in detention

centres.

11. That detention centres be provided with departmental education consultants

to assess the educational needs of children.

12. That the New South Wales Department of Education and Training re-establish

education initiatives similar to what was provided for Kosovo refugees.

13. That parent committees are set up at detention centres to establish

communication between the school and its community.

14. That curriculum and teaching is sensitive to the cultural, social

and developmental needs of this vulnerable group of children. This includes

teaching younger children in their first language and fostering a respect

for both "the national values of the country in which the child

is living and the country from which he or she may originate."(

Aims of Education Article 29 (1) UNCRC)

15. That the curriculum include components on conflict resolution, accounting

for the experiences of those children who are the victims of such conflict.

16. That children are able to have continued access to arts and recreation,

to allow the communication of cultural values and maintain social cohesion.

Response to the

Terms of Reference:

The Commissioner

will inquire into the adequacy and appropriateness of Australia's treatment

of child asylum seekers and other children who are, or have been, held

in immigration detention:

1. The provisions made by Australia to implement its international human

rights obligations regarding child asylum seekers, including unaccompanied

minors.

It is well established amongst refugee advocacy bodies and human rights

groups that Australian domestic policy concerning asylum seekers fails

to uphold the principles of the United Nations Conventions (United

Nations Convention of the Rights of the Child 1989) that it is signatory

to. A language of xenophobia has entered the nation's policy responses

and those seeking asylum, who are rightfully protected under international

law have been labelled as "que jumpers" and "illegal immigrants."

Consequently the competing aims of winning last years Federal election

and meeting international obligations espoused in United Nations Conventions

have come at an impasse. The outcome of this is that human rights have

been left far behind in the list of government's priorities. Children

in detention are the hapless victims of these competing policy drives.

The current situation for children seeking asylum is less than optimal.

Those accompanied and unaccompanied are detained on entering the country

and while the application process has recently sped up, some children

still remain in detention for up to 3 years. It is a bitter irony, that

most of these children are eligible for permanent residence in Australia

as 80-90% of applications are granted protection . [1]

The conditions under which these children are detained is inadequate.

While in detention, children receive little education and are exposed

to a psychologically damaging environment witnessing acts of self harm

and protest. The Federation sees this as an unacceptable component of

the refugee determination process that compromises any serious commitment

to Australia's human rights obligations.

Australia's International Treaty Obligations

Australia is a signatory to the United Nations Conventions on the Rights

of the Child 1989.

The Federation is alarmed that the rights of the children are breached

under Australian policy and regulation concerning children.

The Federation takes the time to outline what we consider to be the major

breaches under the United Nations Convention of the Rights of the Child

1989.

Firstly, the Federation believes that mandatory detention for "unauthorised"

entries under the age of 18 is inappropriate. This practice breaks a fundamental

provision set out in UNCRC Article 37 (b) that provides:

"No child

shall be deprived of his or her liberty unlawfully or arbitrarily.

The arrest, detention or imprisonment of a child shall be in conformity

with the law and shall be used only as a measure of last resort and

for the shortest appropriate period of time."

The fact that detention

is currently the first option for children seeking asylum concerns Federation.

It is our belief that other options need to be canvassed to meet the needs

of children taking account of their rights to survival and development,

participation, best interest and non discrimination. As well as this,

it is also imperative that in canvassing alternative options that the

Right to Family Life is also respected.

The Four Governing Principles Enshrined in the UNCRC

A Child's Best Interest

The current situation does not uphold the best interests of the child,

that are according to UNCRC, be given primary consideration by social

welfare institutions, courts of law, administrative authorities or legislative

bodies. Accordingly, it is relevant to note that budget considerations

in meeting a child's welfare, reflected in health care, education or other

rights must be funded.

Non Discrimination

The Federation believes that children seeking asylum are overtly discriminated

against under the Australian government's policy of mandatory detention.

The UNCRC provides that all children are entitled to the same rights under

the Convention without discrimination. Yet, children seeking asylum are

subject to discrimination based on their parent's political opinions and/or

beliefs. During the duration of their application processing, these children

should be able to exercise their rights as children.

The Federation is also concerned about the legal inconsistency in detaining

those children that arrive without visas and not detaining those who arrive

on a tourist or temporary visa. Both are seeking asylum, yet the former

are victimised based on their mode of arrival. It is unreasonable to provide

permanent residency for those refugees that arrive with authorisation,

and only temporary protection for those that arrive without authorisation.

Participation

The right of the child to form his or her own views and the right to express

those views freely in all matters affecting them is severely constrained

while in detention. The ability of children to participate in their own

livelihoods is constricted by the fact that their options are severely

narrow. These children do not always have access to education and activities,

or other necessary provisions. Furthermore, the power of their parents

to advocate for their needs is also limited due to Australia's domestic

policies consideration of these persons as "illegal". This no

win situation needs to be remedied as soon as possible, as children are

vulnerable and need to be properly advocated for. They also deserve proper

humane treatment and respect, and it is Australia's responsibility to

make a genuine contribution to these children's lives.

Survival and Development

It is the opinion of Federation that the former three rights (child's

best interest, non-discrimination, participation) need to be met before

any satisfactory outcome can be gauged on the developmental needs of children.

At its current state, the refugee determination process appears to be

exposing children to severe psychological harm. In order to change this,

the Federal government needs to reconsider its policy of mandatory detention

and explore other avenues. If this is not considered a feasible option,

then detention centres need to improve their facilities and be at least

at the standards designated in the UNHCR Refugee Children: Guidelines

on Protection and Care.

The Right to Family Life

The Federation recognises the responsibilities, rights and duties of parents

or legal guardians in providing appropriate direction and guidance to

children. However recent cases [demonstrate] lack of sensitivity

that can occur in processing. The Federation does not see the separation

of children and their families as feasible and instead argues for alternative

options to detention.

The P&C Federation Recommends:

1. That children be removed from detention and their welfare is improved

to more adequately reflect the UNHCR Refugee Children: Guidelines on

Protection and Care.

The Commissioner

will inquire into the adequacy and appropriateness of Australia's treatment

of child asylum seekers and other children who are, or have been, held

in immigration detention:

2. The mandatory detention of child asylum seekers and other children

arriving in Australia without visas, and alternatives to their detention.

As stated in Term of Reference 1, the Federation does not support the

detention of children. The Federation views mandatory detention to be

an unethical infringement upon the UNCRC, as detention is only to be considered

as a last resort according to Article 37 (b):

"No child

shall be deprived of his or her liberty unlawfully or arbitrarily. The

arrest, detention or imprisonment of a child shall be in conformity

with the law and shall be used only as a measure of last resort and

for the shortest appropriate period of time."

Article 37 (a)

states:

States Parties shall ensure that:

(b) No child shall be subjected to torture or other cruel, inhuman or

degrading treatment or punishment. Neither capital punishment nor life

imprisonment without possibility of release shall be imposed for offences

committed by persons below eighteen years of age

(c)Every child deprived of liberty shall be treated with humanity and

respect for the inherent dignity of the human person, and in a manner

which takes into account the needs of persons of his or her age. In

particular, every child deprived of liberty shall be separated from

adults unless it is considered in the child's best interest not to do

so [61] and shall have the right to maintain contact with his or her

family through correspondence and visits, save in exceptional circumstances.

Furthermore, Article 22 provides that child asylum seekers should receive

protection and assistance in the enjoyment of their rights. Most importantly,

the UNCRC states that all actions concerning a child must be in their

best interest. These ratified legal instruments put into question

the Australian government's detention of children seeking asylum. Although

there is a provision in the Refugee Convention that allows states

to determine their means of refugee processing, it appears that the Australian

Government is clearly wrong in its interpretation of the United Nations

Convention of the Rights of the Child. The case for releasing children

into alternative arrangements is further strengthened by the UNHCR Guidelines

on Detention that "minors who are asylum seekers should not be

detained." [2] Detention should only be for

a short period allowing for the processing of health and security checks.

The Federation sees it as unreasonable to detain children, survivors of

trauma and torture, the elderly or people with disabilities unless found

guilty of a criminal offence or posing a threat to national security.

The Federation does not consider children as posing a serious threat to

national security, nor does it see it as fit to treat asylum seekers more

generally as criminals. International law, grants these people the rights

to flee their countries if circumstances make it necessary. The Convention

relating to the Status of Refugees makes it clear that child asylum

seekers, who meet the definition of refugee, are entitled to special legal

status and are protected under international law. The Australian Migration

Act (1958) definition of these people's as "unlawful citizens"

contravenes the former convention.

The fact is that Australia is the only country in the Western world that

detains asylum seekers who arrive without a visa. Alternate provisions

for children need to be investigated which include the option of releasing

families into the community while their claims are being processed, or

housing children with extended family living in Australia.

The P&C Federation Recommends:

2. That children are not detained while their claims are being processed

and that the Right to Family Life is respected by allowing children

to be released with their families into the Australian community.

If this is not feasible,

The P&C Federation

Recommends:

3. That children be removed from detention and placed under foster care

under the parental responsibility of the Minister of Community Services.

4. That in the case

that family placements are not possible, culturally appropriate placements

for children within their own religious, linguistic and ethnic group should

be sought.

3. The adequacy

& effectiveness of the policies, agreements, laws, rules and practices

governing children in immigration detention or child asylum seekers and

refugees residing in the community after a period of detention, with particular

reference to:

  • The conditions

    under which children are detained;

  • Health, including

    mental health, development and disability;

  • Education;

  • Culture;

  • Guardianship

    issues; and

  • Security practices

    in detention.

Education

The Parents and Citizens' Federation of New South Wales, as an advocate

of the rights of children, takes the opportunity to comment upon education

provision in detention centres across the country. Commenting upon this

issue is a difficult task without access to detailed information regarding

educational programs in detention centres. Furthermore, the private contracting

of these centres to Australian Correctional Management impacts upon the

continuity of programs across the country. Federation takes the time to

comment upon the Australian Immigration policy and its inconsistencies

with regard to the United Nations conventions. We also make recommendations

to improve the education provisions of children in detention, which are

currently substandard. At a fundamental level, Federation opposes to the

detention of children who, under international law have every right to

seek asylum. Federation also opposes to child detainment on the basis

that it contravenes the UNCRC. Children are a vulnerable, dependent and

developing group of people that require universal provision regardless

of there ethnic origin, nationality or refugee status. It is Australia's

ethical obligation to recognise this.

The Federation is concerned about Australian domestic policies, agreements,

laws, rules and practices governing children in immigration detention

and child asylum seekers. Most fundamentally, the P&C Federation is

concerned about the welfare of children in detention and the breach of

human rights that is being carried out with the support of the Federal

government. The United Nations Conventions on the Rights of the Child

is held with high esteem in the organisation. The current detention of

children indicates that changes need to be made in Australia's policy

and regulations governing asylum seekers.

The inconsistent education provision for children in detention contravenes

the UNCRC that the Australian government is a signatory to. The convention

states that is a child's inalienable right to receive a proper education

and that this should be achieved on the basis of equal opportunity

(Article 28). Under Article 28, the Australian government is obliged to

provide education at all levels from Primary through to Tertiary education.

Clearly stated in the convention are the obligations to provide free and

compulsory primary education and accessible education at the secondary,

high school and tertiary levels. What is also evident is the importance

of providing educational and vocational guidance and promoting school

attendance.

Despite being a signatory to the UNCRC, the Australian government does

not appear to be upholding its treaty obligations. It is difficult for

the Federation to know the exact nature of educational programs inside

detention centres, as entry to the sites is restricted. However A Summary

of Facilities, Services and Activities Available to Detainees [3]

discloses the patchwork of provision across the country. It is apparent

that there is a lack of continuity in children's education programs with

some children receiving education in local schools and others enrolled

in classes carried out in detention centres. Recent information reveals

that students at Woomera are enrolled in a local school for a mere 2 hours

per day. Education programs of this kind are limited in scope and do not

serve to meet the requirements of the UNCRC. From this it appears that

more effort needs to be diverted to improving the quality of program provision

for children in detention to serve their best interests and developmental

needs.

The P&C Federation

makes the following recommendations in assisting to meet this goal.

The P&C Federation Recommends:

5. That a national inquiry into Immigration Detention Standards be conducted

to evaluate education provision across the country.

8. That local schools be opened to children in immigration detention and/or

asylum seekers, and are resourced with extra teacher assistant support

in class rooms.

9. That children in detention be provided with free full time primary

and secondary school provision with options to carry out further study.

10. That Preschool and day care arrangements be expanded in detention

centres.

11. That detention centres be provided with departmental education consultants

to assess the educational needs of children.

12. That the New South Wales Department of Education and Training re-establish

education initiatives similar to what was provided for Kosovo refugees.

Education Standards

The UNHCR, Refugee Children: Guidelines on Protection and Care

as a tool for reaching policy objectives reflected in the United Nations

Conventions on the Rights of the Child, makes some statements in regard

to the standards of education provision required for refugees. The Convention

relating to the status of refugees states that : 'The UNHCR has made

it clear that "asylum seekers" benefit from the same protections

as "refugees" pending the determination of their claims for

refugee status. ' [4] In this case, it is the belief

of Federation that children seeking asylum should be privy to the same

standards. In a country like Australia, where we have the economic resources

to provide such a service, it seems inexplicable not to.

The guidelines recommend that appropriate standards are maintained, giving

attention to gender, access, quality, curriculum, relevance and language.

It is important that any schooling is sensitive to these needs. Schools

should be fully accessible for all children, both boys and girls. In such

a situation as the Australian instance where there are a total of 365

child asylum seekers [5], it is legitimate to argue for

children to be integrated into local schools.

The UNHCR guidelines make particular reference to the importance of education

being relevant to the particular needs and situation of the children in

question. In accordance with the aims of education set out in the UNCRC

it should foster personal and cultural identity as well as promote psychological

well being. The language of instruction should be of primary consideration

and should be spoken particularly into the grades. Learning English should

be part of the educational programs, but not at the cost of children being

unable to communicate in their primary language with their parents.

The UNHCR guidelines make clear the provisions required in terms of educational

planning. It is important for the host state to:

'Support educational

planning for refugee children by qualified professionals in collaboration

with refugee educators, parents and host government representatives.

Educational planning should begin during the initial stage of a refugee

influx and be an ongoing process.' [6]

Key components of

successful educational planning include a plan of action, expertise, refugee

teachers and parent committees. Educational planning must include determining

children's educational needs, identifying resources from within the refugee

population and from local and national authorities, establishing clear

objectives and priorities and a plan for monitoring. Parents of children

seeking asylum should be closely involved in the process to ensure that

children have access to their culture and language of origin.

The P&C Federation

Recommends:

6. That the Department of Immigration, Multicultural and Aboriginal Affairs

implement an educational strategy to determine children asylum seeker's

educational needs and establish clear objectives and priorities in managing

this as well as a plan to monitoring the strategies success .

7. That any education strategy utilise UNHCR Refugee Children: Guidelines

on Protection and Care.

13. That parent committees are set up at detention centres to establish

communication between the school and its community.

14. That curriculum and teaching is sensitive to the cultural, social

and developmental needs of this vulnerable group of children. This includes

teaching younger children in their first language and fostering a respect

for both "the national values of the country in which the child is

living and the country from which he or she may originate."( Aims

of Education as set out in the UNCRC)

15. That the curriculum include components on conflict resolution, accounting

for the experiences of those children who are the victims of such conflict.

16. That children are able to have continued access to arts and recreation,

to allow the communication of cultural values and maintain social cohesion.

Child Protection

Issues

Child Protection

issues in terms of the Children & Young Persons Care and Protection

Act (NSW) 1998.

Children are removed

from their parents in NSW and placed in the care of the Minister for Community

Services for three main reasons.

1. Children who

are the victims of child abuse, sexual or otherwise.

2. Children who

are being bought up in a home characterised by frequent domestic violence.

3. Children whose

parents, through drug related, psychiatric or being otherwise unable

to care for their children, eg in hospital or in custody.

It is evident from

the published material on children in refugee camps that they are subjected

to child abuse which is defined as being either of a physical or a psychological

nature. This abuse comes about from the very nature of their circumstances

being held in custody for an indefinite period.

The abuse occurs

firstly directly because of the child's own perceptions on what is being

do to them and secondly indirectly because of the effect that imprisonment

has upon their parent(s) and sibling(s). This factor is enough on the

normal standards applied by the Children's Courts in NSW to have the children

removed from the care of the Federal Minister of Immigration and placed

in the parental responsibility of the NSW Minister of Community Services.

There are also reported

instances of children, without parents, who have been without an effective

carer for some years. Quite clearly these children ought to be removed

from the centres and placed in foster care under the parental responsibility

of the Minister of Community Services. This move would not necessarily

effect their immigration status as unaccompanied children arriving at

Australian airports, are usually placed in state foster care until such

time as they can be returned to a suitable relative.

In the daily practice

of the Children's Courts in NSW no distinction is made between sexual

abuse of children and exposing children to domestic violence within the

home. Both circumstances are equally damaging to children. More children

are removed from their parents in circumstances where domestic violence

is a factor that for any other set of circumstances.

There is no doubt

that the atmosphere of the detention centres equates with a domestically

violent home and on this basis those children in detention centres within

NSW ought to be removed from the care of the Minster for Immigration and

place in foster care under the parental responsibility of the NSW Minister

for Community Services.

Equally with respect

to the third cause of placing children in care all the available evidence

indicates that psychiatric problems, especially those associated with

post traumatic stress syndrome and depression are rife within detention

centres. Parents of children thus affected are less effective in caring

for their children. Equally the children themselves could well be affected.

Removal of the children

from the detention situation and placing them in foster placement with

appropriate supports such as those offered by Redbank House, Burnside

or the Benevolent Society would not only be in the best interests of the

children, but would also be very cost effective in that the social problems

that will flow on from the trauma of a childhood spent in part in detention

will cost Australia more in the long term that the immediate costs of

foster care and treatment.

Within a multicultural

society like Australia, even if family placements are not available, culturally

appropriate placements for children within their own religious, linguistic

and ethnic group ought to be possible. Equally contact can be maintained

with their parent(s) much in the same way as contact between children

in foster care and their parents in custody can be maintained.

Out of home care

is a response of last resort. There is no doubt that out of home care

has a lifelong impact upon those children thus placed. However the evidence

from the last fifty years is that detention in a concentration camp has

an even greater effect. Out of home care is not cheap. It is however a

lot cheaper than supporting a mentally ill person over several decades

or locking a person up in long term imprisonment.

The P&C Federation Recommends:

3. That children

be removed from detention and placed under foster care under the parental

responsibility of the Minister of Community Services.

4. That in the case

that family placements are not possible, culturally appropriate placements

for children within their own religious, linguistic and ethnic group should

be sought.

APPENDIX A

1. Terms of reference

The Human Rights

Commissioner, Dr Sev Ozdowski, will conduct an Inquiry into children in

immigration detention on behalf of the Commission. He will be assisted

by an inquiry team that will be announced at a later date.

The Commissioner will inquire into the adequacy and appropriateness of

Australia's treatment of child asylum seekers and other children who are,

or have been, held in immigration detention, including:

1. The provisions made by Australia to implement its international human

rights obligations regarding child asylum seekers, including unaccompanied

minors.

2. The mandatory detention of child asylum seekers and other children

arriving in Australia without visas, and alternatives to their detention.

3. The adequacy and effectiveness of the policies, agreements, laws, rules

and practices governing children in immigration detention or child asylum

seekers and refugees residing in the community after a period of detention,

with particular reference to:

o the conditions

under which children are detained;

o health, including mental health, development and disability;

o education;

o culture;

o guardianship issues; and

o security practices in detention.

4. The impact of

detention on the well-being and healthy development of children, including

their long-term development.

5. The additional measures and safeguards which may be required in detention

facilities to protect the human rights and best interests of all detained

children.

6. The additional measures and safeguards which may be required to protect

the human rights and best interests of child asylum seekers and refugees

residing in the community after a period of detention.

"Child" includes any person under the age of 18.

APPENDIX B

Article 28 of the United Nations Conventions on the Rights of the Child

states,

States Parties recognize the right of the child to education and with

a view to achieving this right progressively and on the basis

of equal opportunity, they shall, in particular:

(a) Make primary education compulsorily and available free to

all;

(b) Encourage the development of different forms of secondary education,

including general and vocational education, make them available

and accessible to every child and take appropriate measures such as the

introduction of free education and offering financial assistance in case

of need;

(c) Make higher education accessible to all on the basis of capacity

by every appropriate means;

(d) Make educational and vocational information and guidance available

and accessible to all children;

(e) Take measures to encourage regular attendance at schools and

the reduction of drop-out rates.

Article 28(1), Convention on the Rights of the Child

Article 29 (1) Aims

of Education

States Parties agree that the education of the child shall be directed

to:

(a) The development of the child's personality, talents and mental and

physical abilities to their fullest potential;

(b) The development of respect for human rights and fundamental freedoms,

and for the principles enshrined in the Charter of the United Nations;

(c) The development of respect for the child's parents, his or her own

cultural identity, language and values, for the national values of the

country in which the child is living, the country from which he or she

may originate, and for civilizations different from his or her own;

(d) The preparation of the child for responsible life in free society,

in the spirit of understanding, peace, tolerance, equality of sexes, and

friendship among all peoples, ethnic, national and religious groups and

persons of indigenous origin;

(e) The development of respect for the natural environment.

Last

Updated 9 January 2003.