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Submission to National Inquiry

into Children in Immigration Detention from

the Western Australian Government


A

state perspective

1.

The provisions made by Australia to implement its international human

rights obligations regarding child asylum seekers, including unaccompanied

minors.

2.

The mandatory detention of child asylum seekers and other children arriving

in Australia without visas, and alternatives to their detention.

3.

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

and practices governing children in immigration detention or child asylum

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

4.

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

including their long-term development.

5.

The additional measures and safeguards which may be required in detention

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

children.

6.

The additional measures and safeguards which may be required to protect

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

residing in the community after a period of detention.


A

STATE PERSPECTIVE

The Commonwealth

Government has jurisdiction for immigration policy matters through its

powers under the Migration Act 1958 and the Immigration (Guardianship

of Children) Act 1946 Act. The Commonwealth is therefore fully responsible

for current immigration policy settings, including the mandatory detention

of 'on-shore' child asylum seekers and restricted access for Temporary

Protection Visa (TPV) holders to Commonwealth-funded settlement services

on release from detention.

The Western Australian

Government is obliged to operate within the parameters imposed by Commonwealth

immigration policy. WA Government service provision responsibilities affected

include the care and protection of children; law and order; education;

and health services delivery. Under the WA Child Welfare Act 1947,

for instance, the WA Department for Community Development (DCD) is responsible

for investigating and responding to allegations of child maltreatment

involving children held in immigration detention facilities or released

into the community that are brought to DCD's attention by the Department

of Immigration and Multicultural and Indigenous Affairs (DIMIA) or members

of the community. DCD also provides a variety of support services to unaccompanied

children released from detention as a consequence of its role as guardian

for unaccompanied children .[1]

It is the WA Government's

view that the provision of services by WA Government agencies to 'on-shore'

asylum seekers, including children, should be based on memoranda of understanding

(MOUs) negotiated with DIMIA.

The WA Government's

broad position on matters relating to all families and children, including

people held in immigration detention facilities, family groups holding

TPVs and unaccompanied children living in the community, is based on the

following principles:

  • The best interest

    of the child is the primary consideration in all actions regarding children.

  • Children must

    be able to live in a safe environment and to be protected from significant

    harm in an environment where their physical, intellectual, cultural

    and psychosocial needs are addressed.

  • Family care is

    the most appropriate form of care for children, and families should

    be helped to care for and protect their children.

  • Institutional

    care is the least preferred option for providing support to children.

1.

The provisions made by Australia to implement its international human

rights obligations regarding child asylum seekers, including unaccompanied

minors.

INTERNATIONAL

CONVENTIONS

The 1951 United Nations

Convention Relating to the Status of Refugees was ratified by Australia

on 22 January 1954, and the 1967 Protocol Relating to the Status of Refugees

was accepted by Australia on 13 December 1973. A refugee is defined in

Article 1A(2) as a person who:

owing to well-founded

fear of being persecuted for reasons of race, religion, nationality,

membership of a particular social group or political opinion, is outside

the country of his nationality and is unable or, owing to such fear,

is unwilling to avail himself of the protection of that country, or

who not having a nationality and being outside the country of his former

habitual residence as result of such events, is unable or, owing to

such fear, is unwilling to return to it.

An asylum seeker

is someone who is awaiting the determination of his/her claims for refugee

status. Once a person's claim has been accepted he or she is described

as a refugee. The United Nations Convention and the 1967 Protocol relating

to the Status of Refugees do not require asylum seekers to obtain a visa

to enter a country in which they seek recognition of their status as refugees.

The United Nations

Convention on the Rights of the Child (CROC) embodies the world community's

view of the minimum standards that governments should adopt in the treatment

of all children, regardless of nationality or immigrant status. It is

the most widely accepted of all the United Nations Human Rights instruments

and has been by 191 countries, including Australia on 17 December 1990.

Relevant provisions

of the CROC include:

  • States shall take

    all appropriate measures to ensure that children are protected against

    all forms of discrimination or punishment on the basis of the status,

    activities, expressed opinions or beliefs of the child's parents, legal

    guardians, or family members [Article 2];

  • The best interests

    of the child shall be a primary consideration [Article 3];

  • Children should

    not be separated from their parents against their will, except when

    competent authorities determine that such separation is necessary for

    their best interests [Article 9];

  • States shall

    take all appropriate measures to protect children from physical or mental

    violence, abuse and neglect [Articles 19 & 34] and to promote

    recovery and social reintegration of children subject to neglect, exploitation,

    abuse, torture or armed conflict [Article 39];

  • All asylum seeking

    and refugee children, unaccompanied or accompanied, should receive appropriate

    protection, humanitarian assistance [Article 22] and education

    [Article 28];

  • Mentally or physically

    disabled child should enjoy a full and decent life and should be given

    special care and assistance [Article 23];

  • All children are

    to be provided with a standard of living adequate for their physical,

    mental, spiritual, moral and social development [Article 27];

  • Detention of

    children should be used only as a measure of last resort and for the

    shortest appropriate period of time [Article 37].

In ratifying the

CROC, Australia accepted that it had legally binding international obligations

with respect to the treatment of children. Although the CROC has not been

incorporated into Australian legislation, the effect of ratification of

international instruments in general was raised in Minister for Immigration

v Teoh (1995), in which the High Court held that:

ratification

of a treaty by the State's Executive, while not amounting to a binding

rule of law, does create a legitimate expectation that the Government

and government agencies will act in accordance with that treaty.

The provisions of

the CROC are implemented in Australia through the implementation of the

Commonwealth's Human Rights and Equal Opportunity Act 1986, which

refers to the Convention as a 'relevant international instrument'.

Western Australian

Government Position

The right of every

sovereign nation to protect its borders is unquestioned. The State Government

supports measures to protect Australia's borders against people smugglers,

including the establishment of a proper coast guard facility to patrol

our coastline, as well as the policy of mandatory detention to discourage

the trade in the trafficking of people. However, there is also a need

to get the correct balance between this border protection and compassion.

Compassion should start at once and most obviously with both accompanied

and unaccompanied child asylum seekers, who should be accorded their fundamental

rights in keeping with the CROC. Children should not have to suffer as

a result of the Commonwealth Government's legitimate efforts to protect

its borders. In particular:

  • The dehumanisation

    of asylum seekers by the Commonwealth Government to create a climate

    of fear in the Australian community using factually inaccurate and emotionally

    charged claims should cease, in line with the resolution of the Ministerial

    Council on Immigration and Multicultural Affairs in April this year.

    The Council resolved (Agenda Item 4.1) to discourage the use of inflammatory

    and discriminatory language, and encourage the use of positive language

    that promotes community harmony and, as agreed during the debate, particularly

    by senior levels of Government.

  • Although mandatory

    detention is required to enable identity, security and health checking,

    and ensuring that those who have failed the test of being a refugee

    and at high risk of absconding do not abscond, the Government should

    promote community understanding of the facts about asylum seekers and

    children in particular.

  • It is inappropriate

    to discriminate against children on the basis of their method of arrival

    in Australia.

2. The mandatory

detention of child asylum seekers and other children arriving in Australia

without visas, and alternatives to their detention.

PRINCIPLES

As referred to above,

Article 37 of the CROC states that detention of a child must be used only

as a measure of last resort and for the shortest appropriate period of

time.

Western Australian

Government Position

The Western Australian

Government's position can be summarised as follows:

  • As a general

    rule, children should be held in detention only as last resort, with

    the best interests of each child being foremost in any decision.

  • Children should

    be held in detention centres for the minimum period possible in line

    with the following principles, as announced by the Federal Leader of

    the Opposition on 26 January 2002:

    • Where children

      seeking asylum are unaccompanied by family members, they should

      be fostered out in the community as quickly as possible.

    • Where children

      are accompanied, they should be allowed with their mothers to be

      released from the centres into ordinary style housing under appropriate

      supervision.

    • Where for

      some reason a more formal detention setting is required for a child's

      family, those families should be separated from the other asylum

      seekers and housed in more appropriate conditions.

  • On arrival, immigration

    authorities should identify children promptly, and their general wellbeing,

    health and cultural needs assessed. This applies particularly to unaccompanied

    children, who may be in detention without siblings or extended family.

  • Conditions in

    detention centres must meet the special needs of children.

  • Decisions about

    child placement must relate to the particular circumstances of each

    child on a case-by-case basis.

The decision-making

process regarding determination of refugee status and any subsequent appeals

must be expedited to minimise the time children spend in detention. Children

should be out in the community where they can live more normal lives and

not be subjected to further trauma and stress, above that experienced

prior to arrival in Australia. Minimised detention time is particularly

important for unaccompanied children, where consideration of their best

interests on a case by case basis must include decisions based on maintaining

any links the child may have with siblings, more distant relatives or

adults in their cultural group. Where an unaccompanied child has no siblings

or distant relatives in detention, particular attention is required to

ensure that their needs are addressed.

With respect to allegations

of child maltreatment in detention facilities, separation of a child from

his or her family should only be considered when there is no other way

of ensuring the safety of the child concerned. Where this occurs, the

WA Department for Community Development will continue to work with the

child, family members, DIMIA and service providers to ensure the safe

return of the child to the family, where appropriate.

The Commonwealth

Government is tending to deny children seeking asylum their rights under

the CROC by treating them as unauthorised arrivals without documentation

first, and only secondarily as children.

3. The adequacy

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

governing children in immigration detention or child asylum seekers and

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

reference to:

  • the conditions

    under which the children are detained;

  • health, including

    mental health, development and disability;

  • education;
  • culture;
  • guardianship issues;

    and

  • security practices

    in detention.

CONDITIONS UNDER

WHICH CHILDREN ARE DETAINED

Few Western Australian

government agencies are familiar with the conditions in detention centres

in Western Australia. State agencies have no right of access and must

be invited to the centre. It is therefore not possible to assess the general

conditions in the centres, although some comment is made below on specific

issues.

Child Protection

DIMIA maintains the

ultimate duty of care for all people held in immigration detention facilities,

including children. As indicated above, the WA Department for Community

Development (DCD), which has statutory responsibility for child protection,

has no right of entry to the detention centres which are on Commonwealth

land, and must be invited to visit.

DCD has a key role

in assessing and investigating child maltreatment notifications relating

to all children in detention. This includes determining the case classification

and priority of response for such notifications, and providing recommendations

to DIMIA to ensure the safety and best interests of children. DCD assesses

the situation on a case-by-case basis and responds as it would to the

notification of maltreatment of a child living in the community.

Responsibility for

acting on recommendations made by DCD to secure the care and protection

of children rests with DIMIA. DCD does not have the authority to remove

a child from a Commonwealth immigration detention facility. The authority

for such a decision rests entirely with the Commonwealth, following DCD

advice.

In the 2001/02 financial

year to date, DCD has responded to 13 notifications (not individual children)

of child maltreatment in immigration detention facilities in Western Australia.

Three of these referrals were substantiated. In this same period DCD has

responded to 25 referrals to assess and recommend as to the general welfare

of children including unaccompanied minors. Nine of these related to a

request from DIMIA to assess the emotional status of all unaccompanied

children in detention. The remainder related to advice on parenting issues.

To assist DIMIA and

Australian Correctional Management staff to recognise maltreatment when

it has occurred, or to recognise when a child may be at risk of maltreatment,

DCD is able to provide training on these issues. Currently DCD is investigating

the feasibility of providing a Positive Parenting Program for the parents

of children in detention.

Negotiations are

progressing on an MOU that involves clarification of DCD and DIMIA child

protection roles and responsibilities in immigration detention facilities.

Western Australian

Government Position

The Western Australian

Government welcomes the progress being made on the MOU relating to child

protection. It is concerned, however, about the discrepancy between DCD's

statutory responsibility for child protection and its lack of authority

within detention centres. In particular, detention centre staff may lack

the skills and abilities required to identify children in need of protection

and to notify DCD.

Given their extreme

vulnerability, all unaccompanied children in detention should have a guardian

who can ensure that the full range of their needs (relating to education,

health, legal status, safety and general welfare) is met. Such a guardian

must have the authority and capacity to fulfil the role in the best interests

of the child. Since children are being detained in centres under Commonwealth

control, State government officers are not in a position to exercise guardianship

responsibilities effectively.

HEALTH

Public Health

In general, the management

in Western Australia of the prevention and control of communicable diseases

in the detention centre environment for children has been effective and

well coordinated. Children are screened for symptomatic infections and

brought up-to-date with the Australian Standard Vaccination Schedule soon

after arrival. Western Australian Government Public Health Units assist

with immunisation and provide public health advice at their own cost.

The protocols for screening for infections and immunising against diseases

for detainees were drawn up in collaboration between DIMIA, the Commonwealth

Department of Health and Ageing and State and Territory Health Departments.

These protocols provide for a high standard of immunisation and infection

control.

In addition, there

is no indication that the food and water supplied to the detainees has

resulted in any outbreaks of food or water-borne disease.

In summary, the provision

of medical services for the prevention and control of infectious diseases

in the detention centre environment appears to be satisfactory.

Mental Health

The Port Hedland

Detention Centre employs a psychiatric nurse, general practitioner and

clinical psychologist with child and adolescent experience to meet the

mental health needs of children and adolescents and their parents. The

staff consult with the State Mental Health Service at Port Hedland at

their discretion about individuals.

While it is possible

for services such as the Transcultural Psychiatry Unit and the specialist

treatment service for people who have experienced torture or other severe

trauma, located in Perth, to liaise with personnel at the detention centre,

the opportunity for direct referral where required is limited.

Parental mental health

is also important for child and adolescent development. Concern about

the availability of assessment of and treatment for psychiatric illness

in adults and their children in detention has been consistently raised

with the Western Australian Government by the Royal Australian and New

Zealand College of Psychiatrists. Concerns include the lack of routine

screening for mental disorder by detention centre staff, reluctance (based

on cost considerations) of detention centre management to use appropriate

treatment, lack of confidentiality of medical records, and the potential

for selective referral to mental health professionals.

The WA Department

of Health understands that the Port Hedland Detention Centre does not

routinely screen for mental disorder, but relies on individual or staff

referral for an assessment. Staff referral is likely to be biased towards

observable behaviour that presents management problems. Parents may be

reluctant to refer themselves or their children for fear of jeopardising

their refugee status.

The mental health

staff employed by the detention centre are also seen as biased by some

of the detainees. It is known that records are made available to DIMIA

and this is likely to deter help-seeking. The lack of confidentiality

of mental health records has also been reported to the Mental Health Division

of the WA Department of Health.

The North-West Mental

Health Service has experienced at least one incident where recommended

treatment has been questioned on the basis of cost by the Detention Centre's

general practitioner and a less expensive but unsuitable substitute proposed.

Fortunately, it was agreed between the State-employed psychiatrist and

the general practitioner that the prescribed medication would be used.

However, this example indicates the potential for cost considerations

to adversely influence clinical decisions.

Western Australian

Government Position

Extended periods

of detention of children suffering trauma and stress through fleeing their

home country compounds this trauma and stress. A detention centre is clearly

an inappropriate environment for child and adolescent development. For

mental health reasons, it is reiterated that children should be held in

detention centres for as short a time as possible.

The provision of

mental health services to families and children in detention services

is a Commonwealth responsibility. At present, the WA Department of Health

provides a number of services, including psychiatric services, to the

detention centres in WA on request from centre management, without reimbursement

from the Commonwealth and on an ad hoc basis.

Formal arrangements

should be developed between the WA Health Department and DIMIA to ensure

the provision of adequate mental health services to families and children

in detention, and appropriate reimbursement to the State.

EDUCATION

Children Residing

in Detention Centres

In addition to Article

28 of the CROC, referred to above, Article 22 of the UN Convention Relating

to the Status of Refugees requires States to provide the same elementary

education as is provided to residents and other education that is as favourable

as possible.

If children are to

be held in detention, even temporarily, appropriate educational facilities

must be provided. The WA Department of Education has minimal contact with

children while they are in immigration detention centres. The Western

Australian Government is therefore not in a position to comment on any

education programs that may be offered by the Commonwealth within the

detention centres. It seems clear, however, that most children in detention

centres are not receiving the same broad education as other children in

Australian schools.

Some children in

detention are attending school in Western Australia. In 2001 three school-aged

detainees were enrolled in Derby District High School. The students were

released each day from the Curtin Detention Centre and returned in the

afternoon. This year, 16 detainees, five primary and 11 secondary, are

being released each day from the Centre to attend school. The criteria

used by Derby District High School when considering accepting the detainees

are: adequate mastery of English; a medical clearance; and that they are

of school age. Effective English as a Second Language programs within

the Centre are therefore clearly required.

The only Commonwealth

funding provided to the Western Australian Government for the children's

schooling is the General Recurrent Grant of $479 for a primary school

child and $711 for a secondary school student, well below the actual cost

of providing such schooling.

Some of the children

released from immigration detention centres have had little or no formal

education prior to coming to Australia. Those who have attended school

may have been taught in very large classes, by rote, and with very few

resources. The educational environment in Australia is, in most cases,

totally different from their experience.

In the Community

Children who are

granted a Temporary Protection Visa (TPV) and released into the community

are eligible to enrol in a government school.

The Commonwealth,

through the General Recurrent Grant, provides funding for children on

TPVs to attend mainstream classes. They are not, however, entitled to

access the Commonwealth New Arrivals program, which provides targeted

per capita funding for students who are newly arrived in Australia, whose

first language is not English, and who require intensive English language

assistance to enable them to participate fully in mainstream educational

programs. For students to attract this per capita funding they must hold

Australian residency status.

Schools are required

to enrol children on TPVs without the funding support traditionally provided

to refugees under the New Arrivals program. These children are at risk

of not achieving the major learning outcomes of schooling to levels that

would enable them to achieve their potential because they have very low

levels of English. The number of TPV holders that presented for enrolment

in 2002 in Western Australia is not yet established.

In the face of the

Commonwealth's refusal to accept responsibility for providing the funding

required to meet the educational needs of TPV children, the Western Australian

Government has undertaken a number of initiatives:

  • The Western Australian

    Department of Education has worked with the Conference of Churches (WA),

    the Office of Multicultural Interests and the Association of University

    Women in an attempt to provide support and services, in particular English

    as a Second Language (ESL) tuition.

  • A special English

    as a Second Language centre, funded by the Western Australian Government,

    has been established at Balga Senior High School for unaccompanied minors

    residing in close proximity to the school. As of 11 April 2002 there

    are 11 students attending this centre.

  • Intensive Language

    Centres (ILCs) have been requested to accept TPV children on a spare

    capacity basis once eligible students have been accommodated.

In addition, all

WA government schools are required to establish and implement procedures

to plan for and provide appropriate educational programs to any children

who have been identified as being at risk of not achieving their educational

potential. Western Australian Government funding is provided to support

the Students at Educational Risk (SAER) Making the Difference strategy.

Any child released from a detention centre and enrolled in a government

school who was experiencing the effects of trauma and detention would

be included in programs provided by the school. As schools are not required

to report to the Central Office of the Department on such programs it

is difficult to ascertain how many children previously held in detention

centres are included in SAER programs.

Western Australian

Government Position

The sooner that children

in detention centres can be engaged in meaningful educational programs

the better, as this will ensure a smoother transition into Australian

schools. The WA Department of Education would be willing to provide or

assist in the provision of appropriate educational programs to children

in detention centres (particularly effective English as a Second Language

programs) should the Commonwealth be prepared to fund such an initiative.

In terms of funding

provided to children in the community, the Commonwealth should not discriminate

between TPV holders and those with Australian residency status. In particular,

intensive English language assistance should be provided on the basis

of educational need. The failure to provide this assistance can impact

not only on the children holding a TPV in achieving educational outcomes

through an inability to fully participate or requiring additional teacher

assistance, but also other children in the class.

SETTLEMENT SERVICES

FOR UNACCOMPANIED CHILDREN

The WA Department

for Community Development (DCD) provides settlement services to unaccompanied

children released from immigration detention in Western Australia. As

of April 2002, the Department has open cases involving 66 unaccompanied

children. The average age of unaccompanied children released in Perth

at present is approximately 16 years.

DCD arranges (typically

on extremely short notice from DIMIA) for children to be met on arrival

in Perth after their release from detention and provided with emergency

accommodation leased by DCD for this purpose. The children are provided

with information and assistance to access community resources, such as

the Association for Services to Torture and Trauma Survivors, Centrelink,

education and training facilities and longer term accommodation. Where

necessary, they are assisted with bond money for rental. DCD also provides

counselling and payments for expenses such as school fees and clothing.

Unfortunately, little

progress has been made on an MOU regarding support services for unaccompanied

children released from detention into the community that is currently

being negotiated multilaterally by DIMIA and a State and Territory working

group.

At present, DCD is

operating according to the terms of a draft MOU with the Commonwealth

dating from 1996, but never signed by the Commonwealth Minister for Immigration.

The draft MOU compensates the Western Australian Government for approximately

29% of the salaries and related costs of DCD field staff working with

unaccompanied children released from detention. No provision is made for

important settlement services such as on arrival accommodation, clothing

and incidentals.

As well as providing

material support and counselling, DCD has developed a number of strategies

to reduce the social isolation unaccompanied children experience following

release from detention. In doing so, the Department is seeking to build

networks with other organisations that provide services to unaccompanied

children through mechanisms such as frequent face-to-face discussions,

e-mail groups and community networking.

DCD strategies include

the following:

  • To make it easier

    for unaccompanied children to contact DCD staff and to avoid misunderstandings

    in DCD reception areas, special purpose message cards to be left for

    staff have been designed.

  • In addition to

    liaising with schools about individual refugee students, DCD staff also

    visit schools to provide information to small groups of unaccompanied

    children. Where appropriate, teachers attend the discussion to improve

    follow-up and reinforce the advice provided.

  • A newsletter

    that provides practical information about Centrelink and other issues

    is produced for unaccompanied children. The newsletter, available in

    English and translated into Dhari, is also distributed to schools, DIMIA

    and other agencies in contact with TPV holders.

Western Australian

Government Position

There is an urgent

need for completion of the MOU regarding support services to unaccompanied

children released from detention into the community, to ensure adequate

service provision to these vulnerable young people.

The continuing failure

of the Commonwealth Government to meet its responsibilities in relation

to funding these services continues to impact detrimentally on the WA

Government. The MOU should provide for full cost recovery to the Western

Australian Government.

COMMONWEALTH-STATE

ADMINISTRATIVE ARRANGEMENTS

The discussion above

makes it clear that in a number of areas, including education, health

and settlement services for unaccompanied TPV children, there is an urgent

need for formal arrangements between the Commonwealth and State agencies

to ensure adequate service provision to children.

Western Australian

Government Position

Children in detention

centres

The Commonwealth

is responsible for children in Commonwealth detention centres. The Western

Australian Government is willing to provide services according to administrative

and funding arrangements set out in memoranda of understanding. The State

has a role in assessing child maltreatment allegations relating to children

in detention centres that are reported from within or outside the detention

centres; the State will continue to perform that assessment role as part

of its child protection function. In all other matters, there should be

full cost recovery to the State for any services it provides.

Unaccompanied

children in the community

Although the Western

Australian Government has guardianship responsibility for unaccompanied

children released into the community under a delegation from the Minister

for Immigration, ultimate responsibility for the children's welfare remains

with the Commonwealth.

Commonwealth funding

is an area of particular concern. According to the Commonwealth, the Grants

Commission provides the States with funding sufficient to the children's

needs. However, although the Grants Commission potentially redistributes

GST revenue from States where the children's needs are lower than average

to States where the needs are higher than average, the Commission provides

no additional funding in aggregate to cover the additional costs of meeting

Commonwealth responsibilities. While there are other specific sources

of funding, in practice this funding falls far short of the need eg. no

provision for intensive English assistance and only 29% of the cost of

settlement services, as explained above.

The Commonwealth

must recognise the special needs of these children and provide funding

for all the services required to meet them rather than shifting these

costs on to the State. One way of achieving this end would be for DIMIA

to assess needs and purchase State services as required.

4. The impact

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

their long-term development.

The potential negative

impact of the refugee experience upon children is well documented.

Children in detention,

by nature of displacement, are generally deprived of their normal social,

economic and cultural environment, which has the potential to disrupt

their natural development. Many children lose role models in a detention

and refugee situation, their role in the family may change, and the continuity

of experience required for normal development may be further undermined

when the children come into contact with different cultures.

The emotional and

psychological well-being of children in detention is particularly jeopardised

when they are exposed to adult distress, self harming behaviours and violence

[2]. Children are made even more vulnerable by distress

and psychological disorder in their parents, and by the inappropriate

burden of supporting parents and caring for siblings. The trauma experienced

by many children in detention may manifest itself in withdrawal reactions,

muteness, food refusal and sleep disturbance. Newman suggests that trauma

has long-lasting effects on children and is likely to influence the children's

capacity for trust, empathy and attachment. Traumatised young children

are likely to suffer from depression, anxiety and post-traumatic stress

symptoms.

More broadly, research

into early brain development [3] suggests that trauma

experienced during early childhood may increase the likelihood of complex

problems emerging during adolescence and young adulthood, including drug

abuse and anti social behaviour. Clearly the State Government is concerned

about such long-term problems being evidenced in children granted refugee

status, both in relation to the individuals themselves as well as the

impact on the wider community.

As noted by the Federal

Leader of the Opposition in his Australia Day address this year, Australians

are becoming increasingly distressed with the plight of the children held

in detention. All children, regardless of their family background, should

have the chance to be happy and healthy and get a good education.

A detention centre

is an impoverished social, educational and physical environment for child

and adolescent development. There is also the risk of physical and sexual

abuse and for the experience of further trauma due to rioting and other

expressions of adult frustration. The likelihood that children in detention

have experienced extreme stress prior to arrival can be expected to compound

the effects of living in a detention centre.

Western Australian

Government Position

The manner in which

the Commonwealth Government holds children in detention is not meeting

their basic needs and therefore clearly contravening the CROC provisions.

The detention of children for indefinite periods of time is of particular

concern. It is not in the best interests of children to be held in immigration

detention facilities. At the very least, every effort should be made to

minimise the period of time in detention, and conditions within detention

facilities should be conducive to the safe care and protection of all

detainees, particularly children.

If the Commonwealth

is to continue to hold child asylum seekers in immigration detention facilities,

DIMIA has a duty of care to ensure that conditions are not prison-like,

that they meet the psycho-social, educational, health and cultural needs

of children and protect them from exposure to harm. DIMIA also has an

obligation to collaborate with Western Australian Government departments

to achieve these objectives and to advise agencies with statutory responsibilities

for the protection of children when children are considered to have suffered

harm or to be at risk of harm.

In addition, the

importance of accommodating a child in detention with their family must

also be considered including, in relation to unaccompanied children, their

siblings, extended family or more distant relatives in detention with

them.

Because of the impact

of detention on children's development, every effort should be made by

the Commonwealth to minimise the time children spend in detention. The

extended length of detention for some children makes their rehabilitation

post-release very difficult, imposing a heavy and ongoing burden on State

service provision.

5. The additional

measures and safeguards which may be required in detention facilities

to protect the human rights and best interests of all detained children.

The conditions in

detention facilities, the experience of detention and other factors make

it difficult to undertake effective assessments of the well-being of individual

children held in immigration detention facilities.

Recent WA Department

for Community Development (DCD) psychological assessments of the best

interests of individual unaccompanied children held in immigration detention

facilities resulted in the following recommendations to DIMIA:

  • Children in immigration

    detention facilities should have improved access to psychiatric services

    or be transferred elsewhere to receive specialist mental health treatment.

  • Immigration detention

    facilities should not be 'prison- like'.

  • A more personal

    relationship between detainees and staff than currently exists would

    reduce the 'prison-like' atmosphere for children.

  • Minimising processing

    time for visa applications and providing regular updates concerning

    status would lessen the anxiety of children.

  • Increased contact

    between unaccompanied children still in detention and the outside community

    through outside visits or increased community visits to centres.

  • Communication

    by unaccompanied children still in detention with their family or other

    people in Australia or from their country of origin should be facilitated.

  • Improved access

    to education services, translators and computer and internet access

    within centres.

  • Increased access

    to counselling provided by people of a similar cultural orientation.

  • An independent

    advocate should be appointed for unaccompanied children to ensure their

    needs are met and their rights upheld.

Western Australian

Government Position

The Western Australian

Government supports the Commonwealth Government taking responsibility

for acting on the above recommendations.

Other measures and

safeguards needed to protect the human rights and best interests of children

in detention are raised under Terms of Reference 3 and 4.

6. The additional

measures and safeguards which may be required to protect the human rights

and best interests of child asylum seekers and refugees residing in the

community after a period of detention.

The current Commonwealth

policy of restricting access to post-arrival services effectively creates

two classes of refugees living in the community:

  • those who enter

    Australia via United Nations Human Rights processes off-shore have full

    access to a comprehensive range of settlement services, including education;

  • TPV holders, both

    family groups and unaccompanied children, are denied access to many

    settlement services. This is a source of additional stress to people

    who are often already traumatised as a result of events in their native

    land, the journey to Australia and a prolonged period in detention.

    It also shifts the financial burden for providing these services to

    the State.

Western Australian

Government Position

The Commonwealth

must take responsibility for the consequences of its immigration policies

in this area.

The failure to provide

access to services places significant demands upon community volunteer

groups and Western Australian Government service providers in the absence

of DIMIA-funded settlement services. It also makes it more difficult for

TPV holders to adjust following release from detention with potential

long-term impacts on the State.

The Commonwealth

must recognise the need to collaborate more effectively with Western Australian

Government and community agencies to enable TPV holders to settle into

the community. In doing so, the Commonwealth should:

  • ensure that realistic

    funding levels are provided to the States and Territories for the extensive

    services required to support refugees, particularly both accompanied

    and unaccompanied children, as they leave detention and enable them

    to become contributing members of the community

  • ensure TPV holders

    have access to the full range of Commonwealth settlement supports.

One specific issue

of concern is the level of reimbursement DIMIA provides to DCD for support

services to unaccompanied children. Currently this meets only a fraction

of the costs incurred, a matter that requires urgent attention through

completion of an MOU. Another is the lack of provision for intensive English

language assistance.

The Commonwealth

should also consider funding community groups that support TPV family

groups and individuals, such as the Coalition Assisting Refugees After

Detention in WA.

CONCLUSION

In this submission

the Western Australian Government has identified a number of concerns

about the adequacy and appropriateness of the Commonwealth's treatment

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

in immigration detention.

The Western Australian

Government welcomes the opportunity to work with the Commonwealth to ensure

that children who are, or have been, in immigration detention are enabled

to develop their potential and contribute to society.


1. 5

of the Commonwealth Immigration (Guardianship of Children) Act 1946 empowers

the Minister for Immigration and Multicultural and Indigenous Affairs

to delegate all guardianship powers, functions and duties regarding unaccompanied

children to State and Territory child welfare departments.

2. Newman,

L. (2001) Children in Detention - the Burden of Trauma in Developing Practice,

Summer, 2001/2002.

3. Marshall,

J. & Watt, P. (1999) Child Behaviour Problems A Literature Review

of the Size and Nature and Prevention Interventions. Perth Western Australia:

The Interagency Committee on Children's Futures.

Last

Updated 9 January 2003.