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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

6.1

Pre-Migration and Post-Migration Experiences

6.2

Bridging Visas as Safeguard Provisions

Conditions

of Immigration Detention Centres (IDC)

UNHCR

Guidelines and HREOC Immigration Detention Standards

Services

and Programs in Immigration Detention Centres (IDC’s)

Conclusion

 

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).

6.1

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).

6.2

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).

Treatment

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.