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Submission to the National

Inquiry into Children in Immigration Detention from

the Australian Catholic University


PREAMBLE

THE

WELFARE OF YOUNG PEOPEL: A HEURISTIC FRAMEWORK

NEGLECT

AND INADEQUATE PROVISION OF CARE

ABUSE

AND MALTREATMENT

PLACING

CHILDREN'S HEALTH & DEVELOPMENT AT RISK

EDUCATION

PARENTAL

RESPONSIBILITY AND ADEQUATE SUPERVISION

CONCLUDING

COMMENTS.


Preamble

Staff in the Social

Policy and Advocacy Research Centre, and the Youth Studies Flagship at

the Australian Catholic University welcome the Human Rights and Equal

Opportunity Commission's initiative in establishing an inquiry into children

in Australia's immigration detention centres.

We support the HREOC's

commitment to establishing a consultative process that will inform Australian

government policy. Hopefully it will also inform public opinion in regard

to refugee policy. Such a consultative process can only assist government

to better assess the impact of its policies on children in immigration

detention centres as well as improve the planning and delivery of services

to children and their families who are seeking asylum in Australia.

In this submission

we address some of the key themes and questions identified in HREOC's

guide to making a submission. Our response is framed in particular by

reference to child protection legislation, used throughout Australia to

determine when interventions are required to secure the health, safety

and well-being of young people.

That is, we seek

to establish whether the circumstances under which young people are being

held in various detention centres constitute a prima facie basis for determining

that such children are at risk. We begin by establishing the criteria

used in Commonwealth, state and territory legislation to determine whether

a child is in 'need of protection'. We then use that criteria to establish

whether there is evidence that the welfare of the young people held in

detention centres is threatened by their continued detention and whether,

if the normal rule of law were applied, those children would be brought

under the protection of that legislation.

The Welfare of Young People:

A Heuristic Framework

In this submission

we outline the kinds of criteria normally used to assess the welfare of

all children and young people and what those criteria would imply when

considering the circumstances of those children and young people currently

in Australian detention centres.

The idea that government

ought itself to be subject to the rule of law is a long standing and widely

held liberal principle employed to guard against the arbitrary exercise

of power. The main point being made here is that the criteria for identifying

when the welfare of children is at risk which are found in some 12 separate

and current legislative enactments, points unequivocally to the serious

plight of young people in Australia's immigration detentions centres.

We turn first to

these legislative frameworks.

In Australia the

legislative definitions of 'in need of care and protection', and the mandatory

protection requirements are set out in the following State, Territory

and Commonwealth legislation:

  • Commonwealth

    Family Law Act 1975;

  • NSW Children

    (Care and Protection) Act 1989;

  • Victoria's Child

    and Young Person's Act 1989;

  • Queensland, Child

    Protection Act 1999;

  • Queenland, Health

    Act 1937;

  • South Australia,

    Family and Community Services Act 1972;

  • Tasmania, Child

    Welfare Act 1960;

  • Tasmania, Child

    Protection Act 1974;

  • Child Protection

    Amendment Act 1986, 1987, 1991;

  • Tasmania Alcohol

    and Drugs Dependency Act 1968

  • ACT Children's

    Services Act;

  • NT Community Welfare

    Act 1983.

We systematically

survey the above mentioned Acts to determine whether any young detainees

might qualify in regard to official definitions normally applied to young

people. Under 'normal' circumstances, for a child to be placed on an order,

a court needs to determine that the child in question is in need of care

and protection.

This task is approached

thematically; by identifying five main criteria used to determine whether

a child is in need of protection- they are:

  • neglect, and

    inadequate provision of care;

  • abuse and maltreatment;
  • Children's health

    and development placed at risk

  • Parental responsibility

    and adequate supervision;

  • education.

NEGLECT

AND INADEQUATE PROVISION OF CARE

One point that medical

and social scientific experts appear to agree on is that the social and

emotional environment in which a child lives impacts on their general

health and well-being (Glover, Burns, Butter and Patton 1998; Goddard,

1996; see also, Steel and Silove, 2001: 596-599).

With this in mind,

there appears to be a basis for child protection intervention in respect

to the NSW Children Care and Protection Act 1987 (section 10, subsection

(I)). The same applies with the Victorian legislation (section 63 of the

Child and Young Persons Act 1989).

In NSW a child defined

under section 10, subsection (I) in the Children Care and Protection Act

1987 as being in need of care if:

  • adequate provision

    is not made for the child's care; or

  • the child is being

    abused, or is likely to be abused; or

    there is a … irretrievable breakdown in the relationship between

    the child and one or more of the child's parents.

The same applies

with the Victorian legislation (section 63 of the Child and Young Persons

Act 1989). In Victoria section 63 of the Child and Young Persons Act 1989

indicates that a child is in need of protection if … the child has

suffered, or is likely to suffer, emotional or psychological harm of such

a kind that the child's emotional or intellectual development is, or is

likely to be, significantly damaged and the child's parent(s) have not

protected or are unlikely to protect, the child from harm of that type…

Moreover, 'the child's

parent(s) cannot protect them', nor are they likely to be able to protect'

child detainees 'from harm of that type'. In Tasmania the Child Welfare

Act 1960 similarly stipulates that 'neglect' is evident in the failure

to provide adequate care. (Tasmanian Child Welfare Act 1960).

In Tasmania the Child

Welfare Act 1960 describes various circumstances in which a child may

be in need of care and protection, as a result of neglect...

EVIDENCE AND ARGUMENT

There is considerable

evidence to suggest that young detainees are in an environment where there

is not adequate provision available for the child's care. This

is evident in the failure to provide a healthy context in which the child

can live. Prison-like environments do not constitute adequate provision

of care for the child. This is particularly so in centres where both

child and adult inmates are strip searched, where riots occur on a routine

basis; and where there are regular outbreaks of violence between inmates

and inmates and guards including the use of water cannons and makeshift

weapons (Flood Report 2000; Age, 6 April 2001; Sunday Herald Sun, 10 March

2002).

Moreover, indeterminate

imprisonment does not constitute adequate care for the child. Young people

detained in detention centres are by virtue of their imprisonment being

abused.

Freedom is a fundamental

human right. Young detainees have not committed crimes. Despite this,

their right to freedom from arbitrary detention has been abrogated. Their

offence was to have been born to parents fleeing tyranny; their offence

was to have been orphaned through war, persecution, or death on route

to Australia.

Compulsory detention

involves loss of liberty including restrictions on freedom of movement.

This inhibits a young person's capacity to engage in any semblance of

normal social, economic and cultural activities. Here we refer to a capacity

to develop social skills and primary personal and community connections

that provide a basis for social integration. Opportunities for social

participation, according to most standard medical and sociological accounts

are essential for healthy child and adolescent development. In other words,

denying young detainees the chance to take-part in general social activities

inhibit their social and emotional development (Patton, 1997). Moreover,

missing such opportunities to make social 'connection' is identified by

some as a major factor contributing to the development of later social

and personal problems (Resnick, Harris, & Blum, 1993, pp. 3-9). Detention

denies the young inmates opportunities for social participation that affirms

their self-worth and dignity as a human being - affirmation necessary

for healthy child and adolescent development.

If children in civil

society were segregated, isolated and subject to the 'security measures'

child asylum seekers experience, such action would be widely held to constitute

abuse. The experience of such incarceration for young people who have

recently suffered directly at the hands of uniformed men (militia), or

who have witnessed horrific violence en-route to Australia takes on a

special meaning: it 'does not constitute adequate care.'

There are issues

about the degree of psychological and physical damage caused by a child's

incarceration in an immigration detention camp. The imprisonment of young

people with other detainees many of whom are suffering with their own

health problems (ie., depression, suicidal ideation etc) does not constitute

adequate care (former ACM psychology staff Lateline ABC, 23 April 2002).

After visiting detention centres as part of a Joint Standing Committee,

Liberal MP Bruce Baird described what he saw as the 'psychological impact'

of the camp on detainees. He reported on '…the feeling of despair

that permeates these places, the general unhappiness and lack of activity,

with detainees either lying on their beds in the middle of the day or

wandering around aimlessly' (Baird, Hansard, 18 June 2001). Similar evidence

came from two Human Right and Equal Opportunity Commission officers following

their visit to Woomera in January 2002. Dr Ozdowski (HROEC Commissioner)

explained how the officers found four children 'exposed to a high level

of violence and were denied basic levels of education.' The officers also

'…found

24 children had harmed themselves, including one who slashed the word

freedom on his forearm and another who tried to hang himself. A 12 year

old girl told the officers: 'I am getting crazy, I cut my hand. I can't

talk to my mother. I can't talk to anyone and I'm very tired. There

is no solution for me - I just have to commit suicide - there is no

choice'. A 16 year old boy said: 'Some of us,. We not have anyone in

here. What can we do except kill ourselves?' '(Ozdowski Age, 7, February

2002 ). [1]

There is evidence

that children in immigration detention centres suffer physical, emotional

and psychological harm which damages them bodily, emotionally and intellectually.

We refer to medical research that demonstrates how such children can become

severely depressed and suicidal. (Patton, Coffey, Carlin, Wolfe 2000).

We also highlight that there are children in the camps who have already

been severely traumatised and injured in their homeland and and/or on

route to Australia. For these highly vulnerable children, the added injury

compounds their problems and makes recovery more difficult.

Before their arrival

in Australia, some child detainees witnessed and been subject to horrific

violence including rape, serious assault murder. The exposure of these

children to the kind of on-going violence that takes place in the detention

centres means those children continue living in fear. Living in fear exacerbates

the past injuries and problems. Given this, it seems obvious that child

detainees are not being protected; that they are being abused; suffering

harm, and are likely to be significantly damaged as a result of their

imprisonment. On this basis there appear to be grounds according to the

NSW, Victorian and Tasmanian legislation for intervention.

Child detainees regularly

witness physical assaults and violations. Reports of the handcuffing and

beatings of inmates at Port Headland is not uncommon (Flood Report 2000;

Sultan and O'Sullivan, 2001: 593-596). Neither are accounts like the one

where a man and his three year old son were kept for 13 days in an isolation

cell where it took them an hour to attract a guard's attention so they

could go to the toilet (Flood Report 2000; Age, 19 June 2001).

The incarceration

of young detainees in top-security prisons with high reinforced razor,

solid metal fencing; their continued witnessing of violence; their continued

subjection to various forms of violence exacerbates the injuries and trauma

of young asylum seekers. Under normal rules of law, mandatory and indeterminate

imprisonment for children who have not committed a crime, in surroundings

like those that child detainees endure, would not constitute adequate

care of a child. The imprisonment of child asylum seekers is a punitive

and inappropriate response to a particularly vulnerable group of innocent

children. If parents in civil society imprisoned a child; if they denied

the child access to the outside world; if they regularly exposed those

children to distressing conditions; if they allowed those children to

live amongst depressed and suicidal adults, then most Australians would

considered such adults derelict in their parental duties and the children

in need of care and protection.

ABUSE AND MALTREATMENT

In Australia a raft

of legislation specifies the terms under which a child is held to be at

risk of abuse and maltreatment.

In NSW a child is

defined under section 10, subsection (I) in the Children Care and Protection

Act 1987 as being in need of care if .. adequate provision is not

made for the child's care.

The Tasmanian Child

Protection Act 1974 stipulates that: … a child may be placed under

a child protection order if it appears to a magistrate that the child

may have suffered abuse. Under the Child Protection Act 1986, a

magistrate who is not in a position to decide whether there may be a substantial

risk that the child may suffer abuse can make a temporary child protection

order.

A child is taken

to suffer abuse if … by act or omission, intentionally or by default,

any person … neglects, or interferes with the physical, nutritional,

mental or emotional well being of the child to such an extent that the

child suffers, or is likely to suffer, psychological damage or impairment;

or the emotional or intellectual development of the child is, or is likely

to be, endangered; or the child fails to grow at a rate that would otherwise

be regarded as normal for that child.

In NT section 4 (2)

Community Welfare Act 1983 states a child is in need of care where …

the child has suffered maltreatment. For the purposes of the (NT) Community

Welfare Act 1983, a child shall be taken to have suffered maltreatment

where they suffered or are at a substantial risk of suffering:

… physical injury

causing temporary or permanent disfigurement or serious pain or impairment

of a bodily function or the normal reserve or flexibility of a bodily,

inflicted or allowed to be inflicted by a parent, guardian or person having

the custody of the child, or where there is substantial risk of the child

suffering such an injury or impairment.

… serious emotional

or intellectual; impairment evident by severe psychological or social

malfunctioning measured by the commonly accepted standards of the community

to which the child belongs, whether a result of physical surroundings,

nutritional or other deprivation, or emotional or social environment in

which the child is living, or where there is a substantial risk that such

surroundings, deprivations or environment will cause such emotional or

intellectual impairment.

… serious physical

impairment evidenced by severe bodily malfunctioning, whether a result

of the child's physical surroundings, nutritional or other deprivation,

or the emotional or social environment in which the child is living, or

where there is a substantial risk that such surroundings, deprivation

or environment will cause such impairment.

EVIDENCE AND ARGUMENT.

Child detainees 'suffer

maltreatment' and by virtue of their imprisonment are placed at high 'risk

of suffering physical injury causing temporary or permanent disfigurement

or serious pain or impairment of a bodily function or the normal reserve

or flexibility of a bodily, inflicted or allowed to be inflicted by a

parent, guardian or person having the custody of the child'. Young people

aged 11, 14 and 17 years who are reportedly threatening suicide, are at

risk of serious injury (lawyer, McDonald, Age, 29 January 2002; see also,

Sultan and O'Sullican 2001, pp. 593-596; Steel and Silove 2002, pp 596-599)

for detail on the impact of detention on children).

Self harm by children

and harm to children perpetrated by others has included prolonged 'hunger

strikes', sewing or stapling of lips together, attempted suicide, deliberate

poisoning all of which take place in detention camps cause 'serious pain',

impairment of bodily function and normal reserve of bodily flexibility'

(Age, 20 January 2002; Age, 21 January 2002; Age, 8 March 2002). In early

2002 the Age newspaper reported that '…three Afghan children had

stitches removed and remained in hospital … suffering dehydration'

(Age, 21 January 2002; Age, 25 January 2002; Age, 26 January 2002) The

next day it was reported that:

…the 12 year

old who collapsed yesterday was among a group of youths engaging in

self-harm, One boy 15, drank detergent, a 19 year old beat himself with

rocks and an 18 year old had slashed his chest… Another 8 people

under 18 had drunk shampoo' (Age, 22 January 2002).

Michael Dudley, Chair

of Suicide Prevention Australia, from University of Western Sydney and

Sarah Mares, Faculty of Child and Adolescent Psychiatry, Royal Australian

New Zealand College of Psychiatry made the point that normally children

who were in the care of a parent who exposed them to violence and did

not 'provide adequate education or a place for play and development would

be removed from that situation while consideration would be given to prosecuting

the guardian. This is the condition of the children in the Woomera detention

centre'. (Age, 22 January 2002).

Other health specialists

have expressed similar concerns, drawing attention to internationally

published evidence indicates that prolonged detention of children is detrimental

to the mental and physical health (Royal Australian and New Zealand College

of Psychiatrists, media release, 17 August 2001).

PLACING CHILDREN'S HEALTH

& DEVELOPMENT AT RISK

The Western Australia

Child Welfare Act of 1947 defines a child in need of care and protection

as one who … is living under such conditions, or is found in such

circumstances, or behaves in such a manner, as to indicate that the mental,

physical or moral welfare of the child is likely to be in jeopardy.

In the ACT the Children's

Services Act 1986 states that a child is in need of care and protection

if:

(a) a child has been

physically injured (other than by accident) or has been sexually abused

by one of the child's parents or by a member of the household, or there

is a likelihood that the child will suffer physical injury or sexual abuse…

(c) by reason of

the circumstances in which the child is living, has lived or is reasonable

likely to live, or in which the child is found, the health of the child,

has been, or is likely to be, impaired, or the child has suffered, or

is likely to suffer, psychological damage of such a kind that their emotional

or intellectual development is, or will be endangered.

EVIDENCE AND ARGUMENTS

The conditions in

which many child detainees have lived and currently live impairs their

'health' and 'psychological well-being'. It also damages their 'emotional

and intellectual development' (ibid).We submit that children in immigration

detention centres are at risk of physical and emotional injury. Injury

resulting from living in prison conditions, from self-harm, and/or deliberate

or unintentional harm caused by other detainees (ie., from regular contact

with other inmates who are for example severely depressed and/or suicidal)

(see Steel, Silove, 2001: 596-599; Sultan, and O'Sullivan, 2001: 593-596).

Reports of children

being assaulted by some Centre staff and the generally intimidatory environment

[2] means that young detainees are 'living under such

conditions' that 'indicate that the mental, physical or moral welfare

of the child is likely to be in jeopardy'. As medical specialists, one

of whom was himself a detainee observed:

The detention environment,

exposure to actions such as hunger strikes, demonstrations, episodes

of self-harm and suicide attempts, and forcible-removal procedures,

all impact on a child's sense of security and stability. … 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,

sleep walking, 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 behaviour,

and refusal to eat or drink. (Sultan and O'Sullivan 2001: 594).

Children whose parents

harm themselves in prison are 'at risk' in respect of their health and

development (ABC Regional News, 14 March 2002). Again, Sultan and O'Sullivan

note: 'Children of parents who reach the tertiary depressive stage appear

to be particularly vulnerable to developing a range of psychological disorders'

(ibid: 594). The trauma of separation from a parent in conditions that

are already distressful is likely to impair the well-being of the child.

As the Age (18 March 2002) highlighted in a recent report, adults who

self-harm are sometimes parents.

'…the mother

of a seven year old girl was admitted to the Adelaide Hospital in a

critical condition after trying to hang herself (Age, 18 March 2002)

The report details other 'incidents' which indicate the unhealthy context

in which child detainees live:

…another woman

was admitted after setting herself on fire, other detainees hung themselves

from the razor wire in a 'crucifix' demonstration and were admitted

to the medical centre with severe cuts. (Age, 18 March 2002).

Given such evidence

it appears there are reasonable grounds for Child Protection intervention.

Child detainees have

been 'physically injured (other than by accident)' inside the detention

centres. Moreover, 'there is a likelihood that the child [in detention]

will suffer physical injury'. 'By reason of the circumstances in which

the child is living, has lived', [namely in detention], 'the health of

the child, has been', and 'is likely to be, impaired'. Furthermore, those

children are 'likely to suffer, psychological damage of such a kind that

their emotional or intellectual development is, or will be endangered'.

EDUCATION

In South Australia-

under the Children's Protection Act 1993 an application may be made to

the Youth Court when the Minister is of the opinion that the child is

at risk and an order should be made for the child's care and protection.

For the purposes of the Act, a child is at risk if the child … is

of compulsory school age but has been persistently absent from school

without satisfactory explanation of the absence.

In NSW a child defined

under section 10, subsection (I) in the Children Care and Protection Act

1987 as being in need of care if adequate provision is not made for the

child's care.

In Tasmania the Child

Welfare Act 1960 describes various circumstances in which a child may

be in need of care and protection. That includes, a neglected child as

one who 'has not attained the age of 16 years in respect of whom there

have been at least 2 convictions under section 9 of the Education Act

1932 without lawful excuse, attend school regularly'.

In the ACT the Children's

Services Act 1986 states that a child is in need of care and protection

if … 'the child is required by law to attend school and is persistently

failing to do so and the failure is likely to be harmful to the child.

EVIDENCE AND ARGUMENT

According to former

detention centre teaching staff, children in immigration detention centres

over the age of 12 years do not attend school (Katy Brosnan, Elly Leaver,

former teachers, Port Headland, ABC Lateline, 10 April 2002). Given such

evidence child detainees who do not have access to education are 'at risk'

and there are grounds for an order to secure the child's care and protection.

Many children in

detention camps who have not attained the age of 16 years regularly fail

to attend school. Moreover, the quality of the education offered to the

children who do attend school is reportedly dubious according to the available

evidence. As one former detention centre educationist explained, there

was no syllabus, no accountability and in her opinion, 'an absolute disgrace',(Katy

Brosnan, Lateline 10 April 2002; Age, 7 February 2002 ).[3]

Similar 'insider' reports come from Aamar Sultan, medical practitioner

and former detainee in Villa wood Detention Centre, who observed that:

…for most

of the previous two years, there has been a general dearth of activities,

resources, or educational material, leaving detainees [young and old]

with long period of unstructured time. Despite recent improvements,

boredom, aimlessness and apathy are widespread, particularly among those

who have been detained for longer periods of time (Sultan and O'Sullivan,

2001, p. 593).

PARENTAL RESPONSIBILITY

AND ADEQUATE SUPERVISION

In NSW a child defined

under section 10, subsection (I) in the Children Care and Protection Act

1987 as being in need of care if: … there is a … irretrievable

breakdown in the relationship between the child and one or more of the

child's parents.

In Victoria section

63 of the Child and Young Persons Act 1989 indicates that a child is in

need of protection if … the child's parent(s) have not provided for,

arranged or allowed the provision of, or are unlikely to provide, arrange,

or allow the provision of, basic care or effective medical, surgical or

other remedial care.

In Queensland under

sections 9 and 10 of the Child Protection Acts 1999 a child is defined

as being in need of protection if that child… does not have a parent

able and willing to protect the child from harm. (Harm is defined as any

detrimental affect of a significant nature on the child).

In South Australia

under the Children's Protection Act 1993 an application for an order may

be made to the Youth Court …. if the guardians of the child are unable

to maintain the child, or are unable to exercise adequate supervision

and control over the child.

In the ACT the Children's

Services Act 1986 states that a child is in need of care and protection

if: … (d)the child is engaged in behaviour that is, or is likely

to be harmful and the parents or guardians are unable or unwilling to

prevent the child engaging in that behaviour…

(f) there is serious incompatibilities between the child and one of their

parents or guardians….

(e)there is no appropriate person to care for the child because the child

has need abandoned, the child's parents or guardians cannot, after reasonable

enquiries have been made, cannot be found; to the child's parents are

dead and the child has no guardian…

In NT section 4 (2)

Community Welfare Act 1983 states that a child is in need of care where

… the child is not subject to effective control and is engaging in

conduct which constitutes a serious danger to their health and safety.

In Tasmania the Child

Welfare Act 1960 describes various circumstances in which a child may

be in need of care and protection, as a result of neglect or being beyond

the care or control of the parent with whom they child is living. A neglected

child is a child … who … is in need of care and protection to

secure that they are properly cared for.

EVIDENCE AND ARGUMENT

Much of this legislation

suggests that a child in need of care when they are 'beyond the care or

control of the parent with whom they child is living' .

The imprisonment

of the child, and in most cases their parents, by the Australian government

often makes it impossible for parents of young detainees to parent adequately.

Prison life prevents parents from attempting put in place living conditions

that benefit their child. It also subverts parents attempts to build relationships

with their child aimed at securing their parental influence over the child.

The capacity of parents to prevent their child from self-harming and to

restrain or guide their conduct is limited by the conditions of living

in a detention centre.

Parents of children

in detention are denied their parental rights and capacity to protect

their children from harm. They are not 'able to protect their children'

from harm. Sultan and O'Sullivan (2001) argue that the effects of such

diminished parental responsibility:

A secondary effect

[of detention on children] is mediated via parents, whose ability to

provide caring and nurturing environment is progressively undermined

as they pass through the stages [of depression] outlined above, with

risk of neglect and physical abuse of dependent children increasing

across the course of detention. Following allegations of child sexual

abuse at the Woomeras centre, detaining authorities have increased monitoring

of parents at Villawood for evidence of abuse and neglect, leading to

parental fears of their children being removed, which has further increased

family insecurity. At times, children have also become negotiating pawns

in attempts to contain protests with the detention centre. For example,

on a number of occasions, the authorities have separated children from

their parents to pressure adults to cease their hunger strikes (Sultan

and O'Sullivan 2001, p. 595).

There is also the

plight of unaccompanied minors. The policy of mandatory and indeterminate

detention of children in conditions like those described means that the

Australian government as custodian of unaccompanied children 'allows'

those children to 'suffer' various 'injuries' which 'cause temporary and

permanent disfigurement' and impairment to the young inmates 'bodily functions,

flexibility' and 'normal reserve'. In civil society parents or guardians

who permitted such suffering would be subject to child protection legislation.

Cases of self-harm

also raise issues about the provision of adequate supervision. For parents

of child detainees this goes to the question of the government denying

or undermining their parental rights by incarcerating them in an environment

that obstructs mothers and fathers from fulfilling their parental obligation

of providing a healthy environment in which injuries including self harm

is unlikely. Thus, in respect to the NT Community Welfare Act 1983 there

are reasons for concern. Children held in immigration detention centres

are often not 'subject to effective control and engage in conduct that

constitutes a serious danger to their health'.

There is also the

issue of unaccompanied minors who deliberately harm themselves. This poses

questions about whether the state in loco parentis has been neglectful

in providing adequate supervision and control of children in their care.

Given the incidence of self-harm by unaccompanied minors, there appear

to be grounds under South Australian law for arguing that unaccompanied

child detainee who self-harm be placed 'in need of care and protection'.

It is worth pointing

out that the prison conditions and status of child detainees is itself

a primary cause of the child's own 'behaviour that is likely to be harmful'.

Moreover, in cases where the state is acting in loco parentis,

the parent (the state) appears to be unwilling to prevent the child they

are responsible for from engaging in harmful behaviour (ie., a preventative

measure, might involve removing them from the environment that is causing

the self-harm).

A number of children

in immigration detention centres have 'lost parents, and those parents

cannot be found'. In these cases the government assumes a guardianship

role, which under normal rule of law prohibits the kind of treatment young

detainees currently endure.

The 'incompatibilities'

between parents and children as outlined in the legislation raises issues

in respect to unaccompanied minors. In the case of these children the

Australian Commonwealth government assumes a guardian role. When this

takes place an 'incompatibility' exists between the child and government

as prison-keeper-cum-guardian/parent. The two roles parent and the authority

that determines their imprisonment are incongruous and incompatible.

There are grounds

for arguing that an 'irretrievable breakdown exists' in the relationship

between an unaccompanied child and the parent - namely, the Commonwealth

government acting in loco parentis. The 'incompatibility' in the

relationship is evident in the act of forcibly detaining the unaccompanied

child; a child who has already been subject to persecution and orphaned.

There is also evidence of incompatibility when the guardian -the Australian

Government- fails to meet that child's basic needs in respect to their

emotional and physical well-being.

Australia's practice

of holding unaccompanied child asylum seekers in immigration detention

centres indicates at best a conflict of interest between those acting

in loco parentis and the child, and at worst, an 'irretrievable

break down in the relationship' between the two. According to the NSW

Children and Care Protection Act 1987 these are clear grounds for defining

unaccompanied children held within Australia's immigration centres, and

especially unaccompanied children as 'being in need of care.

Holding unaccompanied

minors in prison adds to their injuries and is not in the best interest

of the child. Moreover, there is a fiduciary relationship between the

unaccompanied child and the Australian government. This relationship involves

a duty or obligation to act in good faith towards the person for whom

responsibility has been accepted in such a way as to confer a benefit

upon that person. (It is understood that the power the stronger party

possess ought not be exercised to the detriment of the weaker party).

Such fiduciary obligations are inherent in the relationship between those

acting in loco parentis and the child.

The fiduciary (ie.,

the state and/or its representatives) is obliged to act in the interest

of the young person to the exclusion of the fiduciary's own interest.

Furthermore, persons subject to this duty are not expected to profit from

the relationship, or to put themselves in a position where the fiduciary

obligation and personal interest may conflict. Fiduciary obligations operate

with a recognition that the position of disadvantage or vulnerability

on the part of the weaker party which causes that person to rely on the

other and requires the protection of equity acting upon the conscience

of the other .

In this regard, and

particularly given the extreme vulnerability of unaccompanied child asylum

seekers, the state has an obligation to consider the well-being of minors

above their own. The interests needing protection within fiduciary relationships

are those of the weaker party.

The actual circumstances

of the relationship between unaccompanied child detainees and the Commonwealth

government are such that the child is entitled to expect that the government

will act in his or her interests. The nature of the relationship in terms

of the power, vulnerability, trust, confidence and dependence between

the two parties provides evidence of a relationship requiring fiduciary

entitlements. This relations must implicate the government in the unaccompanied

child's affairs or so align the government with the protection or advancement

of the child's interests.

CONCLUDING COMMENTS

Australia is the

only country in the world to compulsorily 'detain' asylum seekers who

arrive without valid documentation. This is a policy of which Australians

should not be proud. It involves an exercise of state power which in tandem

with the suspension of normal legal protections that are available to

all other people, brings Australia uncomfortably close to historical and

contemporary examples of what happens when state regimes extinguish fundamental

legal and constitutional rights understood to constitute the rule of law.

The immigration detention

centres provide an experience of isolation, the physical design features

and austerity more commonly found in high security prisons designed to

house high risk criminal offenders.

  • Australia now

    pursues a policy that has meant the indefinite detention of thousands

    of people.

  • In late 2001 there

    were 582 children in immigration detention centres, 53 of them were

    unaccompanied.

  • In Australia,

    people classified as 'unlawful entrants' are subject to mandatory sentencing

    in detention centres for long and indeterminate periods of time.

  • These people

    include large numbers of pregnant women, babies, children and teenagers.

  • Many of these

    people have recent and direct experience of political oppression and

    violence - including systematic and illegal detention and torture -

    in their country of origin.

We argue that Australia's

has abrogated its international obligations recognised by a number of

conventions to which Australia was a signatory. The mandatory detention

of asylum seekers breaches Australia's human rights obligations under

the International Covenant on Civil and Political Rights, the Refugee

Convention [4] , and the Convention on the Rights of

the Child (see also, Art 31 Refugees Convention). Australia's international

obligations, (as set out in the principles and provisions of the Convention

on the Rights of the Child and the International Covenant on Civil and

Political Rights) compels Australia's federal government to comply with

the conventions. If the government does not, then we breach international

standards that we only recently agreed to uphold

Such observations

sit alongside claims of child sexual abuse, maltreatment, evidence of

self-harm, documented evidence of serious health and social pathologies

amongst young detainees; and the provision of inadequate health, social

and educational services for child and teenage detainees.

What we have argued

here is that if any civil parent or guardian acted in the way the Australian

government has in regard to child asylum seekers detained in immigration

centres, they would be immediately subject to child care and protection

orders. There are too many examples of the Australian government contravening

its own legislation enacted to protect the wellbeing of vulnerable children

and applied to all civil parents and guardians for that purpose. Thus

we see the principle of exceptionality applied to exempt the Australian

government from regulations that apply to all others and to injury to

children that in all other circumstances would be unlawful. It is action

that is not only damaging to the young people concerned, but offensive

to Australians who identify themselves as members of a democratic and

humane culture.

The Australian government's

self-imposed exemption from the normative and legal restraints which ordinarily

render absolute government power give cause for serious concern for citizens

interested in justice and the well-being of one of the most vulnerable

groups of children. Arguments for the suspension of law on the basis of

the right to protect a nation state's own existence is what facilitated

the authority of regimes like the Third Reich and the establishment of

concentration camps. On the grounds of 'general national principles' certain

perversions of justice, as exceptions to normal rule ought not be allowed

.

Perhaps Chris Goddard

and Max Liddell hit the mark when they observed the hypocrisy of the prevailing

situation.

It is surely impossible

to imagine that any child protection service anywhere in the world would

regard keeping a child behind razor wire in a desert as anything but

emotionally abusive. It is not hard to imaging how history will judge

the present circumstances of the children being held in .. detention

…(Age, 21 March 2002).


 

 

References.

Sultan, A., and O'Sullivan,

K., 2001, Psychological disturbances in asylum seekers held in long terms

detention; a participant-observer account, Medical Journal of Australia,

(175), pp. 593-596.

Bond, L., Carlin,

J., Thomas, L., Patton, G., 2001, Does Bullying cause emotional problems?

A Prospective study of Teenagers, British Medical Journal, (323), pp.

480-484.

Glover, S., Burns,

J., Butler, Patton, G., 1998, Social Environments and emotional wellbeing

in young people, Family Matters, (49). Pp. 11-16.

Human Rights and Equal Opportunity Commission, 1998, Those Who've Come

From Over the Seas, HREOC, Sydney.

Indermaur, D., 2001,

Young Australians and Domestic Violence, Trends and Issues in Crime and

Criminal Justice, No 195, Australian Institute of Criminology, Canberra.

Joint Standing Committee

on Foreign Affairs, Defence and Trade Human Rights Sub-Committee, 2001

A Report on visits to immigration detention centres, Canberra, Parliament

of the Commonwealth of Australia.

Patton, G., 1997,

Meeting the Challenge of adolescent Mental Health, Medical Journal of

Australia, (166), pp. 399-400.

Patton, G., Coffey,

C., Carlin, J., Wolfe, R., 2000, Adolescent depressive disorders: A population

based study over three years, British Medical Journal, (318), pp. 765-768.

Resnick, M.D., Harris,

L.J., & Blum, R.W., 1993, 'The Impact of caring and connectedness

on adolescent health and well-being,' Journal of Pediatrics and Child

Health, vol. 29, supplementary 1: 3-9.

Senate Legal and

Constitutional Reference Committee. 2000, A Sanctuary Under Review: An

Examination of Australia's Refugee and Humanitarian Determination Processes,

Commonwealth Government of Australia, June, Canberra.

Steel. Z., Silove,

D M., 2001, The mental health implications of detaining asylum seekers,

Medical Journal of Australia, (175), pp.. 596-599.

United Nations Convention

on the Rights of the Child, 1989, Adopted by the General Assembly of the

United Nations, 20 November.

United Nations Convention

on the Rights of the Child, 1989, Adopted by the General Assembly of the

United Nations, 20 November.


1.

Age, 7 February 2002 'Dr Ozdowski [Commissioner HROEC] Said nine children

has been at Woomera for more than a year and 70 more for more than six

months, even though children should only be detained as a last resort

and for a limited time under the UN Convention on the Rights of the Child,

to which Australia is a signatory.'

2. They ( staff) - just kick the kids - they just want

to insult us in any way.' (Al-Hashimy, released Woomera inmate, (Age,

8 February 2002); see also

3. Age 7 February 2002. Report on Human Rights and Equal

Opportunity Commission - '…children under 13 received eight hours

of classes a week and there was virtually no education for teenagers a

claim disputed by the Federal Government'

4. Australia committed itself to provide protection to

people applying for refugee status in Australia and who are recognised

as refugees in accordance with the international definition in the 1951

Convention relating to the status of refugees (the Refugee Convention)

and the 1967 Protocol Relating to the Status of Refugees.

Last

Updated 9 January 2003.