Commission Website: National Inquiry into Children in Immigration Detention
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Submission to the National
Inquiry into Children in Immigration Detention from
Jennifer
Rae
THE IMPLICATIONS OF MANDATORY
DETENTION ON REFUGEE CHILDREN
Pre-Migration and Post-Migration Experiences
Bridging Visas as Safeguard Provisions
of Immigration Detention Centres (IDC)
Guidelines and HREOC Immigration Detention Standards
and Programs in Immigration Detention Centres (IDC’s)
Treatment
accorded in Immigration Detention Centres (IDC’s)
[This
is an extract from my honours thesis analysing Australia’s Mandatory
Detention Policy giving special attention to the implications on refugee
children.]
In the eyes of the
Mandatory Detention Policy, refugee children are defined as ‘illegal
immigrants’ in a similar way to their adult counterparts. This lack
of differentiation has the effect of revoking their rights as children
having specific needs and interests. The distinction of refugee children
was only made with the recommendation proposed by the JSCM in 1994 to
grant bridging visas as safeguard provisions to vulnerable groups such
as children. However even this does not accord them their full rights,
as the provisions for release are not guaranteed and in practice children
are rarely released (HREOC, 1998). It is the aim of this report thesis
to promote the rights of these children who are regarded by Bitel (2000)
to be ‘especially vulnerable because refugees are one of the most
marginalised groups in the world…and children are at greater risk
of being abused and neglected’ (www.news.com.au).
Therefore as a consequence refugee children face greater risks to their
welfare and well being.
This Chapter is focused
on outlining the implications of the Mandatory Detention Policy on the
welfare of refugee children in terms of the conditions, services and treatment
accorded to them in immigration detention centres. Firstly an account
of the general pre-migration and post-migration experiences that affect
refugee children will be described to highlight their vulnerability. Secondly
the issue of bridging visas provided in the Policy as a safeguard to release
refugee children will be discussed. Thirdly, the conditions, services
and treatment experienced by children in immigration detention gathered
through observations, interviews and document analysis will be briefly
assessed against the UNHCR Refugee Children Guidelines and HREOC Immigration
Detention Guidelines. These instruments were chosen because they specifically
reflect the universal needs and rights of refugee children. They both
incorporate the relevant international standards detailed in the ICCPR
and CROC required for the humane treatment of children in respect of their
human dignity. It is the view of UNHCR that refugee children should not
be detained. The HREOC does not endorse Australia’s policy of unreviewable
Mandatory Detention (UNHCR, 1994, HREOC, 2000).
Pre-Migration and Post-Migration Experiences
The pre and post-migration
experiences of refugee children is considered by Breen & Pittaway
(1999) to be useful as it detailed the risks involved in pre and post
migration which in turn allowed the strategies for early intervention
to be implemented. This concept of early intervention is important as
it was regarded children did not fully experience the negative impact
of torture and trauma. However it is now ‘recognised that children
as young as three without extra assistance and support experience problems
in their psychosocial development and subsequent mental health later in
life’ (Breen & Pittaway, 1999, p.1). Machel (2000) observed
that symptoms of these problems may range from ‘increased separation
anxiety, developmental delays, sleep disturbances, nightmares, decreased
appetite, withdrawn behaviour and lack of interest in play’ for
younger children to anxious or aggressive behaviour and depression in
adolescents (p.16).
In relation to pre-migration
experiences, Boothby (1992) maintains that ‘no child remains unscathed’
from the context of war and political conflict and because of this, the
degree of trauma should not be underestimated (Low & Nguyen, 1998).
As a result of ‘direct threats (exposure to violence) and environmental
deprivation (absence of opportunities for physical, cognitive and emotional
development)‘ (Boothby, 1992, p.111), it exposes children to serious
psychological and developmental risks. Post-migration is the period of
resettlement and readjustment to which refugee survivors carry new goals
and expectations to another country. According to Low & Nguyen (1998)
this can be another phase of trauma in the new country, arising from cultural
shocks on the social level, occurrence of post traumatic stress reactions
on an individual level and a disturbance of family dynamics and structure
due to ‘war, exile and migration’. These experiences of children
are exacerberated with mandatory detention. The impact of immediate and
indefinite incarceration further compounds their ability to deal with
their crisis of loss (coming to terms with the past) and crisis of load
(coming to terms with the present and immediate future) (Rumbaut, 1991
in Breen & Pittaway, 1999, p.4).
Bridging Visas as Safeguard Provisions
Bridging visas that
are to be granted by the Minister for Immigration to an ‘unlawful
non-citizen’ child for temporary release are perceived to be ineffective
as safeguards for children, accompanied or unaccompanied. For accompanied
children, the release of children without their parents and against their
will amounts to a breach to CROC obligations Australia has committed itself
to. As a result children are kept in detention with their parents even
if they suffer mental, health and emotional disturbances. It is known
that separating children ‘becomes the blueprint for generating even
more harm’ (Rogalla, 2001, p.4) subsequently it is recognised through
evaluation reports that keeping children in detention exposes them to
such incidents as child abuse which cannot be avoided unless they are
released from detention. To reconcile the interests of children while
complying to the CROC, the best solution is to release families. In refusing
this option, the Policy lays blame on the parents who are designated to
be responsible for placing their children in the situation. It does not
comprehend the parents’ circumstances that this may have been the
best course of action to save their child’s life. In the issue of
prolonged detention blame is placed on the parents’ choice to pursue
litigation, a spokesman for the Minister for Immigration stated that ‘if
they (asylum seekers) wish to pursue litigation it can take years. While
they are doing that they remain in detention as they have no lawful right
to be here’ (in Benns & Walker, 2001).
The failure of the
safeguard provision is inherent in the incarceration of unaccompanied
minors. UNHCR outlines that especially unaccompanied children who are
under 18 and arrive with no parents or guardians should not be detained
and if they are should be as a last resort and at the shortest time with
the appropriate environment (HREOC, 1998). DIMA has a procedure to care
for minors by placing them with culturally appropriate guardians and those
with no guardians to be adopted by the Minister until they reach 18 where
responsibility is given to state and territories welfare authorities (Goddard,
1997). In practice, HREOC (1998) reported that rarely are unaccompanied
children released even if they have met the bridging visa criteria. This
is a great concern among NGOs and Refugee Advocates who have discovered
minors under the care of DIMA are not placed with a guardian of appropriate
cultural backgrounds. Respondent A in this study expressed that ‘minors
are just floating around in the detention centres crying alone at night’
and it has been observed that some have been detained for up to and more
than 2 years. Furthermore it is estimated that many more minors alleged
to be as young as eleven years are left in detention with ‘no peer
cultural family support or access to specialised counselling services
other than those controlled within the centres’ (Highfield, 2001,
www.theage.com.au). Although some
cases have been verified, this was difficult for NGOs to track as access
to the detention centres are restricted by DIMA and ACM.
Conditions
of Immigration Detention Centres (IDC)
The effects of incarceration on refugee children are quite severe. Goldberg,
a clinical psychologist and childhood trauma expert, believed that ‘580
children incarcerated would never recover from the experience’ (in
Benns & Walker, 2001 www.age.com.au). A research report developed
by the UNSW Centre for Refugee Research concluded that the detention conditions
were counterproductive to the well-being of children as it was detrimental
to their ‘cognitive, emotional, social and physical development’
(Maksimovic, 1999, p.1). Conditions described as a ‘confined community
where there is a large mix of cultures, ages and sexes existing in an
atmosphere of unrelieved tension and high levels of stress’ (Maksimovic,
1999 p.2) had a critical ‘pressure cooker effect’ (Silove,
McIntosh & Becker, 1999). In short children were kept in limbo land
having no ability to exercise their rights and not knowing their future.
This exacerbates the trauma already experienced by refugee children from
war and political violence in their country and in their journey to Australia.
This causes children to undergo behavioural changes which manifests in
symptoms such as ‘constant nightmares, insomnia, loss of appetite,
crying development of rashes, increased dependency and withdrawal from
the world’ which is great danger to their health (Maksimovic, 1999,
p.12).
Immigration detention
severely disrupts the mental health of children. As most of the adults
are identified by [a former detainee] to be routinely suffering from severe
depressive illness diagnosed as immigration detention stress, it was asked
‘what do we expect the impact to be on children?’. In addition
to being subjected to a pressure cooker environment, children are witnesses
to self-harm, violence and sexual assault. Self-harm by detainees is viewed
to be a daily reality in detention. The consequence of this is disturbing
as confirmed by the case of a [detainee child who] was an onlooker to
people setting themselves on fire and to guards hitting detainees with
batons as a result of a demonstration in Woomera. He was moved to Villawood
with his family where he was witness to a detainee slitting open his wrists
as an act of suicide. He was diagnosed with chronic post traumatic disorder
and has now stopped eating, drinking, speaking and often he is taken to
hospital to be rehydrated intravenously (Everitt in Benns & Walker,
2001). It is the detention environment which has ‘caused this child
to withdraw from life even though it is the only place he can be with
his family’ (AMA, 2001). For adolescents as witnesses and participants
to violence, Respondent B ascertained that they become very dysfunctional
and ‘very angry as adults often repeating the abuse of power they
learnt as children’ (Goldberg in Benns & Walker, 2001). Sexual
assault is a major issue identified by refugee advocate groups and independent
organisations. The Commonwealth Ombudsman (2001) reported that the number
of reports of children being subjected to alleged abuse and sexual assaults
by adult male detainees in immigration detention were increasing. The
Flood report corroborated the seriousness of such allegations. An interviewee
respondent expressed that ‘children are physically at risk by other
detainees and guards in every way, emotionally and physically’ which
is why no child should be in detention.
In terms of social
development, Maksimovic (1999) had found in her study that because of
the different mixes of children in detention as a result of the incoming
and outgoing detainees, children are inhibited in forming and maintaining
intimate friendships. These peers of the same age are discerned to be
vital in their development and happiness as they allowed each other to
share their ideas and experiences in the process relieving their tension.
The danger of children who associated with older kids ‘began to
observe and participate in the talk about visas and release’ which
eventually defined their concept of reality’ (pp.11-12). This leads
to the issue of the formation of insecure attachments to unrelated people
(Highfield, 2001). Highfield (2001) expressed that a three-year-old viewed
it ‘like a death’ everytime a detainee was released or moved
to another facility, thus losing what comfort they had in detention.
An important and
repetitive theme was the destructive impact detention had on the structure
and dynamics of the family. It was revealed that detention breaks down
the much needed family structure which is the foundation of the support
system integral for the development of children. The separation of families
compounds to the pressure cooker effect in detention. As a result of the
Port Hedland riots, [number removed] children of one family were separated
from their parents for over [number removed] months as their parents were
placed in prison. Essentially the parental roles is slowly eradicated
with the loss of control and power. The parents are no longer able to
provide sufficient support for their children. Maksimovic (1999) observed
that this severely impacts on the dynamics of the family where the parents’
distress and feelings of shame intensifies the instability of family relationships.
As children are dependent on their parents, they are sensitive to their
parents’ emotions and attitudes. They may react to these by thinking
their ‘parents are lying about the situation as they are often shielded
from reality of the situation or that they did something wrong to be locked
up that way’ (Maksimovic, 1999, p.2).
UNHCR
Guidelines and HREOC Immigration Detention Standards
UNHCR holds the position
that children who are kept in an artificial environment on a long term
scale are denied continuity of life as their normal life activities are
taken away. As a consequence they may exhibit emotional and behavioural
disturbances either withdrawing into passiveness and submissiveness or
promoting aggressiveness and violence (UNHCR, 1994, p.23). In order to
alleviate the effects, a degree of normalcy is required to establish stability
and in addition culturally appropriate mental health services need to
be provided. The family unit is regarded to play a crucial role providing
‘self-esteem, security and identity which forms the foundation for
children to develop their personality and coping skills’ (UNHCR,
1994 p.19). Therefore the focus should be on supporting the parents and
restoring their parental roles by repairing the family structure and dynamics.
Emphasis is placed on provisions of a safe living arrangement for families
in order to allow them the chance to protect their children from risks
such as abuse.
Services
and Programs in Immigration Detention Centres (IDC’s)
Compounding to the
conditions of detention are the insuffficient services and programs given
to children especially in terms of long term detention. HREOC (1998) had
stated that the policy that leads to prolonged detention is a breach of
international law because the services that are adequate for short term
become inadequate for the long term. The services required are at a much
higher standard and of great concern to NGOs are the programs for education,
recreation and health for children.
The most significant
concern is education for children asserted in documents and interviews
to be inadequate to meet their developmental and cognitive needs. DIMA
prescribes ACM to ‘provide educational programs appropriate to children’s
age and abilities’ however it does not list what kind of programs
or at what standard, therefore leaving it to the discretion of ACM. Maksimovic
(1999) believed that there is no continuity in teaching and inconsistencies
in formal school structures. For primary school age children, the variety
of teachers who work part time have different expectations and as a result
of the discretion given to them, develop varied curriculums. There is
no acknowledgement to primary school children who are absent from morning
classes due to restless nights and nightmares arising from pre-migration
and detention experiences. As a result of this may suffer gaps in knowledge
from their lack of attendance. Older children whose attendance is not
compulsory often do not attend due to lack of motivation from perceiving
the curriculum as inappropriate as it is not relevant to their age group
or does promote their cultural background. Furthermore, as educational
programs are not approved by the Education Department (Rogalla, 2001)
there is difficulty in assessing the quality of education.
There is reported
to be a lack of recreational facilities such as playground equipment,
activities and quality excursions organised for children (Highfield, 2001).
This results in a lack of stimulation to develop their mental and cognitive
abilities and opportunity to develop gross motor skills (Interviewee A).
The provisions of
health and medical services in immigration detention are regarded by Dr.
Kerryn Phelps of the Australian Medical Association (AMA) (2001) to be
lacking in quality. Asylum seekers are said to be ‘deprived of basic
medical care especially essential hospital services that are made unavailable
unless they pay large up front fees’ (Phelps,, 2001). This was confirmed
by a case of an Afghan woman in detention who had delivered premature
twins. They were placed in intensive care while she was returned to detention.
She was billed $300 000 after her release, although she did not have to
pay it, the error is still not fixed. Dr Phelps (2001) also commented
in light of several studies ‘that asylum seekers are highly traumatised
people with high risks of depression, anxiety and post traumatic stress
disorder…these problems can be worsened by further traumatic experiences
here in Australia’. If adults require high levels of health and
medical services, then chances are children are in even more serious need
of high quality services. This is in regards to [a detainee child] who
need special medical attention continuously as a result of being incarcerated
with his family despite his disintegrating mental, emotional and physical
well being. This service though is noted by his parents to be restrained
in its efficiency and quality.
UNHCR
Guidelines and HREOC immigration detention standards
UNHCR (1994) recognises
that education is critical to the developing child, providing continuity
and protection. Importantly, it states that children as irregular movers
should not be denied of this right. The educational curriculum should
take into account the culture of refugee children as well as that of the
host country. HREOC (2000) reiterates this human right to education by
providing in its standards that education should be of a standard and
quality equivalent to local schools (section 6.2). It mentions that the
different cultural backgrounds should be incorporated for both compulsory
school age and older children who should also have the opportunity to
continue their education. It also encourages attendance of children to
local schools to relieve resettlement difficulties and aid in social development
(section 6.5).
With regards to recreation,
play is perceived by the UNHCR (1994) to be ‘vital to the healthy
development of younger children’ as it provides a way of coping
with their experiences and tensions (p. 20). Children therefore should
have regular access to adequate facilities, equipment and organised activities
for play and in the process the opportunity to interact with peers. HREOC
(2001) in its immigration standards expressed that older children also
need to be provided with facilities and materials for recreational purposes
and opportunities to participate in cultural, spiritual and religious
activities, sports, physical exercise and leisure activities (HREOC, section
7.1) and paid work to encourage development of skills (HREOC, section
7.3) thus promoting integration into the labour market.
UNHCR (1994) stated
that children under five are at greater risk of experiencing mental and
health disturbances. This points to a need for concerted action to allow
continuous access to local health systems with health services ‘addressing
the unique health needs of refugee children in the aim to prevent and
monitor health risks’ (p. 31). HREOC stresses the need for ‘medical
personnel to comply with applicable standards of ethics for medical practitioners’
(section 13.2) to accord appropriate care. Also that preventative and
remedial medical treatment to be provided free of charge in detention
centres (section 13.8).
accorded in Immigration Detention Centres (IDC’s)
In light of the age
of children in immigration detention and ACM as the contractor for their
care and protection, there is great concern for the disciplinary measures
and application of force practised by ACM. It is observed that especially
for adolescents, they are treated as adults by ACM guards. There is no
age sensitivity in relation to their treatment, however their vulnerability
must be recognised in order to allocate them the appropriate differential
treatment. According to interview data, allegations on the severity of
disciplinary measures and force for punishment is unwarranted on children.
A [teenage] boy was handcuffed and directed out of his room to a small
suicide proof isolation cell without being told the reason for the punishment.
He was repeatedly beaten by three guards and was refused food and bathroom
amenities. His handcuff marks and subsequent physical scars and trauma
were not treated. A [teenage] boy was alleged also to be pushed heavily
to the ground by guards who later succeeded in striking him. In another
case, a [young] boy was alleged to be almost legcuffed by ACM guards after
a hunger strike protest. He was then transferred with his father to a
perceived harsher detention centre and placed in a suicide proof cell
without windows, toilets, shower or medical attention for 13 days (AAP,
2000). The cases here represent the failure of policy to protect children
and certainly demands periodic judicial reviews of children in detention
and higher standards in procedures to allow accountablity of ACM to children’s
rights. The problem identified in interview data is the lack of transparency
which allows a ‘culture of cover up’ (Chennell & Logan,
2000). It was perceived that ‘ACM may not have the training and
sensitivity required to meet the needs of children’ (Amnesty in
Hern, 2000). Therefore the best way to protect children was not to detain
them at all.
UNHCR Guidelines and HREOC
immigration detention standards
It is recognised
that as family units are seen as adult units, children who are integrated
into the family units are thus perceived to be adults and are treated
as such. Inevitably this leads to ACM guards essentially neglecting the
needed differential treatment for children and ‘as children are
vulnerable they suffer first’ (UNHCR, 1994 p.69). There is an immediate
need for staff to be adequately trained in issues relating to the care
of refugee children. In addition HREOC (2000) realises that the performance
of staff should be consistently assessed against highest professional
standards (section 16.8) and to be closely monitored.
In terms of disciplinary
measures and the use of force, HREOC (2000) states that ‘no one
should be subject to torture, cruel, inhumane or degrading treatment in
any circumstances’ (section 17.1). Procedures of ACM should conform
to international standards and accord the fundamental right of humanity
and dignity to asylum seekers in detention centres (HREOC, 2000 section
17.2). Prior to disciplinary action, ACM staff should inform the detainee
of the alleged offence and for the alleged offender to be able to present
a defence (ibid section 17.6). For punishment HREOC (2000) prohibits the
use of isolation cells without adequate reason and instruments of restraint
as handcuffs and legcuffs for children (section 18.11). Finally for guards
who apply great force to be held accountable under criminal law (section
18.12). The procedures on the protection and care of children however
need independent scrutiny and transparency to effectively monitor the
rights of children. This is crucial to the welfare of children who are
‘less able than adults to understand and make known their needs
and violations of their rights’ (UNHCR, 1994 p.70)
Conclusion
This thesis has examined why and how the Mandatory Detention Policy was
developed, in addition it has given special attention to the implications
of the policy on the welfare of refugee children. It concludes that the
policy making process encompassing Mandatory Detention did not adequately
consider or incorporate the specific rights of refugee children. It is
conceded that the interests of Refugee Children were not the central concern
to policy-makers. It was only in 1994 from JSCM recommendations that safeguard
provisions were provided in the legislation to release children. This
substantiates the claim that the needs of refugee children were treated
as a side issue and subsequent afterthought.
Refugee Children
are not afforded effective safeguard provisions in the legislation to
provide for their release thus whether accompanied or unaccompanied, many
children are still immediately and indefinitely detained during the refugee
determination process. It has been argued that refugee children who arrive
as ‘unauthorised boat arrivals’ are subject to adult law and
are penalised in much the same way as their adult counterparts. This is
due to the majoritarian group approach of Australia’s administrative
law to asylum seeking boat people which refuses to recognise children
as young and vulnerable who have immediate needs for special care and
protection. The policy that exposes children to incarceration has severe
implications on their mental, health, emotional and physical well-being
as a result of the inappropriate conditions, inadequate services and treatment
afforded to them in detention. This effect is compounded in the event
of prolonged detention. This is the greatest concern for Refugee Advocates,
NGO’s and Independent Organisations as HREOC who considered Mandatory
Detention a breach to the CROC and ICCPR in its 1998 report.
Analysis of the Mandatory
Detention Policy was undertaken within the policy cycle framework developed
by Howlett and Ramesh (1995). It has been illustrated that this particular
approach to analysing the policy process is advantageous for several reasons.
Firstly, it is useful because of its simplification strategy that aims
to break down the policy process into five discrete stages. The policy
process encompassing Mandatory Detention is highly complex as it is controversial
and politically sensitive, the process would not have been adequately
examined without using this model to separate the process into stages.
Significantly it aids in understanding as it reduces the complexities
involved in the process.
Secondly, the five
basic stages is presented in a sequence which allows an orderly view of
the process. Importantly, the life-cycle of the Mandatory Detention Policy
can be determined and this is useful to answer such questions as how and
why it developed. Thirdly, the discrete stages have the ability to isolate
an area of policy making thus it acts as a zoom lens to each area. This
offers insight into the roles and relationships between central policy
actors, identifies events that may influence policy making and affords
an explanation of the issues involved in each stage. Overall, the policy
cycle model is conceived to be the better model to present the policy
process because it is simple and neat. In this thesis, it has fulfilled
its objective to facilitate a basic yet insightful understanding of the
Mandatory Detention policy-making process.
However it is important
to point out that the policy cycle model does not give an accurate portrayal
of the policy process. The model is still incomplete as observed in this
thesis and may be considered inappropriate in examining other policies.
It is perceived that this simplification approach is inherently problematic
because of the reason that it fails to address the complexities of the
policy making process. The linear analysis importantly does not account
for the cyclical nature of the policy process. Policies may not follow
the successive sequences of the stages outlined by the model. In this
case, it fails to represent the true nature of the process pertaining
to the Mandatory Detention Policy which is characterised by continuous
change. For example, in the policy evaluation stage, as there is continuous
assessment of Mandatory Detention, standards continually change. This
has implications on the policy implementation stage. Commissioned administrative
reports and judicial reviews are observed to have influenced the Government
to react as implementation procedures are re-adjusted to fit the standards
set in the evaluation reports.
Additionally, the
stages in the policy process may not be separated so discretely and cleanly.
Certain stages may be inseparable and a forced segmentation of these stages
would render the analysis inadequate. For example: the policy formulation
and decision-making stages in this thesis were combined in one chapter
because they were crucial in understanding the central role of the Executive
and its relationship to the specific problem of ‘unauthorised boat
arrivals’. The Executive retaining full control of immigrations
issues is both the formulator of options and decision-maker of the preferred
option, hence it would not only be difficult to draw a line for separation
but inappropriate to separate the stages. Similarly, the policy implementation
and policy evaluation stages travels along this argument of being inseparable.
They are too closely intertwined because evaluation directly impacts on
implementation procedures, there is a continuous dependency on each other
in the policy process of Mandatory Detention. These are the main limitations
in utilising the policy cycle as a source of analysis, however it is maintained
that this model serves as an important starting point which can be built
upon to address the complexities as environmental influences that impact
on the policy process.
This thesis has illustrated
that Howlett and Ramesh’s (1995) policy cycle model can be effectively
utilised to gain an indepth understanding of the policy process. In the
analysis of the Mandatory Detention Process, it has been useful in imparting
knowledge to adequately examine the set research questions. In terms of
the agenda-setting stage, The policy was noted to have developed out of
the conceived general problem of irregular movement, specified to ‘unauthorised
boat arrivals’ to which refugee children were lumped into. It was
the mode of arrival and entry in addition to the cultural background of
irregular movers that was problematic. It represented a loss of control
over border protection procedures and a loss of control over the selection
process set down in the immigration system, which meant that Australia
no longer had full control over the composition of its people. The negative
approach to irregular movers emanated from a historical ideology of a
‘White Australia’ forming Australia’s federalism, nationalism
and identity, which in turn created an attitude of xenophobia and fears
of invasion played out in the periodic waves of boat arrivals. As the
public’s reaction corresponded to that of the Government, a high
level of support was given to the Government to develop solutions to prevent
the arrivals. This was how Mandatory Detention was created, out of fear
arising from ideology, out of demand by the public and out of a desire
by the Government to control its borders and composition of its cultural
mix in society. In short, the Australia approached irregular movers not
as subjects but ‘objects of polity’. Children became part
of the problem and thus were no longer seen to have the status of a child.
In regards to the
policy formulation and policy decision-making stages, the preferred solution
derived by the Executive and supported by the public in relation to irregular
movers was a closed detention system. The decision for this type of detention
that was to be Mandatory Detention was also made into a policy and subsequently
legislated by the Executive. This centralisation of the policy process
to the Executive questions how practical and humane the policy is as a
solution as it does not incorporate the concerns of asylum seekers and
refugee children voiced by Refugee Advocates, NGO’s, the international
community and the Courts. Essentially, the specific rights of children
are obliterated in the policy which only provided safeguards for their
release in 1994 however in practice a large number of children still remain
in detention. Refugee children as irregular movers lose their status as
children and so are subject to adult law. Inevitably, they are penalized
in much the same way as their adult counterparts, yet the impact is more
severe as children are ‘young, vulnerable, dependent and developing’
(UNHCR, 1994).
In relevance to the
policy implementation and policy decision-making stages, there is perceived
to be imperfect implementers and implementation procedures which in turn
may reflect an overall inadequate policy. Firstly, the two main implementers
of the policy as DIMA and ACM are observed to have conflicting roles.
It is conceded that DIMA are not able to effectively implement the aims
of refugee protection essential to the refugee determination process because
it conflicts with their role as immigration controllers and defenders
of national sovereignty. ACM on the other hand, in their role as a private
correctional company are perceived to be inappropriate to provide care
for already traumatised people in detention. The crucial problem identified
is the lack of transparency and accountability which needs to be immediately
confronted. Following on, the overall adequacy of the policy is in doubt.
Hence, law regarded as the source of authority for the implementers is
questioned in its appropriateness. There are inherent discriminations
in the policy which directly impact on ‘unauthorised boat arrivals’.
The rights of onshore asylum seekers are further marginalised in detention,
compounding to this are the incarceration effects that severely effects
their subsequent resettlement into society. It is recognised that there
would always be difficulty in implementing a policy that depersonalises
and dehumanises people.
Specific to children,
policy evaluation reports reveal systemic problems in subjecting children
to immigration detention. Refugee children are inevitably exposed to an
unreal world characterised by daily self-harm, boredom, violence, sexual
abuse and depression. It is perceived by HREOC (1998) to be a severe breach
to the CROC and ICCPR to detain children at all, let alone for long periods
without high quality services and family friendly facilities. The repeated
exposure of refugee children to detention by the unreviewable policy of
Mandatory Detention reflects the view that Australia perceives these refugee
children as less than the children of Australian citizens. Yet the difference
is non-existent, as expressed by a respondent: “These children are
deemed as illegal, so they don’t feel or hurt like our children?
They don’t bleed?”.
It is viewed that
the conditions of detention is the antithesis of everything refugee children
require for their healthy development. It does not project a positive
reality for children instead it perpetuates their trauma. The services
are not well-equipped to meet their specific needs and in the event of
prolonged detention, the quality of the services deteriorates further
exacerbating the negative experiences which is detrimental to their social
and psychological development. The treatment is inappropriate for children
who are vulnerable to prison guards and adult detainees. The disciplinary
measures and use of force are unwarranted and excessive. The institution
of detention in short does not provide continuity of life that refugee
children desperately need. Children require close parental ties, stability
and routine (Boothby, 1992), trust, security, sense of purpose, self-esteem,
identity (Machel, 2000) ‘playgrounds, toys, grass and a formal education’
(Rogalla, 2001, p.3). These experiences of immigration detention centres
promotes abnormal development where creates ‘suffering later in
life’ (Miller in Rogalla, 2001) thus Australia is producing ‘damaged
adults’ (Rogalla, 2001).
Lastly, if the intention
was genuine to search for practical and humane long term solutions to
the worldwide problem of irregular movement, it was expressed in interviews
that Australia would need to cooperate with the international community.
Similarly, if Australia wished to preserve its legitimacy and credibility
in the international arena, changes would need to first start at home.
Throughout the analysis of the Mandatory Detention Policy it was certain
that the policy did not fit the ever changing world we live. It did not
recognise such realities as war and warfare, famine and poverty, religious
persecution and environmental degradationthat characterises the globalising
world. It is ignorant to the rights of children who are already marginalised
by the virtue of being a refugee and a child.
Last
Updated 14 July 2003.
