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Commission Website: National Inquiry into Children in Immigration Detention

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Submission to the National

Inquiry into Children in Immigration Detention from

the National Legal Aid


Introduction

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.

Right

to challenge the legality of detention - article 37(d) CRC

Access

to prompt legal and other assistance - article 37(d) CRC

Alternatives

to 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

Case

study

Discussion:

conditions of detention

The

effect of the temporary protection visa system

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

Conclusion


Introduction

National Legal Aid

thanks the Human Rights and Equal Opportunity Commission for the opportunity

to make the following submissions.

National Legal Aid

is a coalition of 8 Legal Aid Commissions in Australia. Most State and

Territory Commissions provide free advice and minor assistance to members

of the community on all aspects of administrative law. Specialist advice

and representation on rights and representation under the Social Security

Act 1991, Migration Act 1958 and associated legislation is provided subject

to a means and merit test. National Legal Aid solicitors from Northern

Territory, Victoria, Western Australia and New South Wales have a long

history of representation of asylum seekers both in the community and

in detention.

National Legal Aid

also has expertise in representing children and young people in a range

of jurisdictions. The Family Court appoints legal aid solicitors as separate

representatives for children involved in family law proceedings. National

Legal Aid solicitors are also experienced in protecting the rights of

children in international proceedings under the Hague Convention. Most

of the Commissions around Australia have lawyers who specialise in representing

children and young people in criminal proceedings and in juvenile detention.

National Legal Aid

therefore is well placed to provide input into discussion on issues arising

out of the Inquiry. This submission will focus only on parts with which

we have particular expertise.

A summary of recommendations

will precede the substantive part of this submission.

General comments

"Children,

including refugee children, are the future. They need special protection

and care to realize their potential." [1]

To comply with our

international obligations Australia must provide a humane system whereby

child asylum seekers can live in security while their applications for

protection are being considered. It is not disputed that Australia must

protect its borders, nor that it must check the health and character of

people seeking to enter. However these obligations must not take precedence

over the rights of children and asylum seekers. The Australian government

must take into account that child asylum seekers may be fleeing from persecution,

war or other traumatic experiences, they may be accompanied by parents

who have suffered torture, trauma or serious discrimination or they may

have travelled to Australia unaccompanied by a related adult. The system

must be one which facilitates the child's growth and health, which enables

them to recover in safety with their family or in a family environment,

from past traumatic experiences. It must be one which provides them, once

recognised as refugees, with the support to re-build their lives in Australia,

to participate fully in the community and to be reunited with close family

members. The system must not be one which further traumatises them.

Recommendations

In light of the information

provided in the submission, National Legal Aid makes the following recommendations

Recommendation

1:

The Commonwealth Attorney-General's Department ensure that all management

staff with responsibility for the care and protection of child asylum

seekers (both in the Department of Immigration and Multicultural and Indigenous

Affairs - DIMIA, and Australian Custodial Management ACM), are given training

in international law obligations relating to children under their care.

Recommendation

2:

DIMIA consult with State authorities and key stakeholders in child

protection to develop guidelines for determining whether it is in the

"best interests" of the child to be released from immigration

detention.

Recommendation

3:

DIMIA provide monthly statistics on the number of unaccompanied child

detainees to State and Commonwealth child welfare authorities.

Recommendation

4:

That children on temporary release from immigration detention be

automatically eligible for Medicare and financial assistance through the

Asylum Seekers Assistance Scheme.

Recommendation

5:

Protocols be established with relevant Commonwealth and State authorities

to facilitate the release of children from immigration detention centres

either with their parents or if unaccompanied, into appropriate supervised

care.

Recommendation

6:

In recognition of its responsibility for monitoring the Australian

government's obligations under international law, the Commonwealth Attorney-General's

Department provide funding to relevant agencies to provide legal advice

and assistance to child detainees. Alternatively the Commonwealth Attorney-General

could allow such work to be performed by the various legal aid commissions/offices

under the agreements for the provision of legal assistance between the

Commonwealth and each state/territory.

Recommendation

7:

Each child in detention, or each family grouping where there are

children, be provided with an advocate to ensure that each child's rights

to proper facilities for their health, education, recreation and rehabilitation

are met.

Recommendation

8:

In recognition of the vulnerability of unaccompanied minors, legal

assistance through the IAAAS scheme be provided by specialist legal contractors.

These contractors be required to demonstrate their experience in assisting

vulnerable children. Alternatively, given the expertise within National

Legal Aid in relation to the representation of children, the agreements

between the Commonwealth and each state/territory should permit the grant

of legal aid in relation to the assistance of unaccompanied minors.

Recommendation

9:

The time limit for the lodgement of Protection Visa applications

from unaccompanied minors be extended beyond the current limit of three

days. The time limit be flexible to allow for the differing needs of unaccompanied

children.

Recommendation

10:

In line with State juvenile justice policy, child detainees be provided

with telephone access to interpreters and appropriate legal services without

the need for these to be requested by the child.

Recommendation

11:

Along with state provisions for juveniles in detention, advice and

information about a child's rights to complain to HREOC and Ombudsman

should be provided at the point of detention.

Recommendation

12:

DIMIA should co-operate with relevant child welfare agencies to facilitate

the provision of information about contacting HREOC and Ombudsman to children

in immigration detention centres.

Recommendation

13:

That DIMIA in consultation with HREOC establish an official visitors

program for children in immigration detention centres. Official visitors

are to visit each detention centre at least every month

Recommendation

14:

No child asylum seekers should be detained in the remote centres

at Port Hedland, Curtin or Woomera.

Recommendation

15:

Appropriate community-based accommodation should be established under

the joint auspices of DIMIA and State child welfare agencies to provide

stable housing for unaccompanied minors who are seeking asylum in Australia.

Recommendation

16:

Unaccompanied children should only be kept in detention for 48 hours

to complete initial health and identity checks, including the "screening

in" process. Any extension of this period should be obtained through

a magistrate at a Children's Court.

Recommendation

17:

Thorough medical assessments of all detainees should be made on arrival

including specialist psychological assessments.

Recommendation

18:

Detainees are to be informed of their rights to access appropriate

health care, and not be prevented by staff or internal procedures from

exercising these rights.

Recommendation

19:

Counsellors with special skills, such as those employed by the Service

for the Treatment & Rehabilitation of Survivors of Torture & Trauma

(STARTTS) should have regular access to immigration detention centres

to assist with psychological assessments and treatment.

Recommendation

20:

DIMIA take a more active role in monitoring the provision of medical

services for children by Australasian Custodial Management in immigration

detention centres.

Recommendation

21:

DIMIA facilitate the involvement of relevant child welfare agencies

in monitoring medical services to children in immigration detention.

Recommendation

22:

DIMIA in conjunction with relevant State agencies provide training

for ACM management on recognised standards for physical and psychological

care for children.

Recommendation

23:

DIMIA in conjunction with State educational authorities ensure that

child asylum seekers are provided with educational opportunities comparable

with other children through release from detention and access to community-based

schooling.

Recommendation

24:

DIMIA establish and publish protocols to facilitate the entry of

recognised NGOs to immigration detention centres

Recommendation

25 :

The regime which accords lesser rights to refugees who arrive unlawfully

in Australia, should be abolished.

Recommendation

26:

That DIMIA recognise the need for a coherent, multidisciplinary approach

to the management of refugee children, taking into account the particular

needs of the child in relation to their stage of development, their mental

and physical condition and their family situation.

Recommendation

27:

That where detention is absolutely necessary, asylum seekers and

their children need to be able to carry on relatively normal lives. The

detention environment could be modelled on community life which could

be replicated through the economic activities of adults, workshops involving

skills training and production and home gardening activities. Children

should be provided with an opportunity for normal schooling so that they

are exposed to the outside environment. Allowing access to the outside

world is also a way of improving the situation for children.

Recommendation

28:

DIMIA and the Commonwealth Attorney-General's Department fund community

education programs about refugees and asylum seekers, the conditions from

which they flee, and Australia's humanitarian obligations under international

law. Such programs should also address refugee children and Australia

responsibilities.

1. The provisions made by

Australia to implement its international human rights obligations regarding

child asylum seekers, including unaccompanied minors

This submission will

not separately address the specific provisions made by Australia to implement

its international human rights obligations. This issue will no doubt be

addressed by other submissions to the Enquiry.

The focus of the

National Legal Aid submission will be to identify Australia's human rights

obligations relevant to the Enquiry and focus on the ways in which Australia

is in breach of these obligations. The specific legislative provisions

concerning refugees and the protection visa determination process, and

the legislation and policy in relation to detention will be detailed below,

under other terms of reference.

AUSTRALIA'S INTERNATIONAL

HUMAN RIGHTS OBLIGATIONS

The best interests

of the child

Australia's overriding

obligation to children is to act in their "best interests".

This is set out in Article 3 of the Convention on the Rights of the Child

which states

1.In all actions

concerning children, whether undertaken by public or private social

welfare institutions, courts of law, administrative authorities or legislative

bodies, the best interests of the child shall be a primary consideration.

2.States Parties

undertake to ensure the child such protection and care as is necessary

for his or her well-being…

The right to seek

and enjoy asylum

All people including

children have a universally recognised right to seek and enjoy asylum

[2] and states are requested to cooperate with the United

Nations High Commissioner for Refugees (UNHCR) in the performance of its

function of providing protection to refugees. Australia, as a signatory

to the 1951 Convention and 1967 Protocol relating to the Status of Refugees,

has accepted its obligations in relation to the protection of refugees

and asylum seekers.

The extent of Australia's

international obligations in relation to child asylum seekers are found

in various instruments including:

  • Convention on

    the Rights of the Child, 1989 (CRC);

  • Convention relating

    to the Status of Refugees, 1951

  • Protocol relating

    to the Status of Refugees, 1967

and other UN documents

including:

  • Resolution of

    the General Assembly of the United Nations 428(V) adopting the Statute

    of the Office of the United Nations High Commission for Refugees 1950;

  • UNHCR Guidelines

    "Refugee Children-Guidelines on Protection and Care", 1994

    (UNHCR Guidelines);

  • UNHCR Note on

    Policies and Procedures in dealing with Unaccompanied Children Seeking

    Asylum, 1996 (UNHCR Note);

  • The U.N. Rules

    for Juveniles Deprived of their Liberty 1990 (UN Rules);

  • United Nations

    Standard Minimum Rules for the Administration of Juvenile Justice (The

    Beijing Rules) 1985;

Detention as a

last resort

The starting point

for the analysis of Australia's international obligations in relation

to child asylum seekers is found in the UNHCR Note on Policies and Procedures

in Dealing with Unaccompanied Children Seeking Asylum in conjunction with

the UNHCR Guidelines on Refugee Children. Both of these documents make

recommendations about children asylum seekers. The UNHCR Guidelines state:

7.6 Children

seeking asylum should not be kept in detention. This is particularly

important in the case of unaccompanied children.

7.7. "States which, regrettably and contrary to the preceding recommendation,

may keep children seeking asylum in detention, should, in any event,

observe Article 37 of the Convention of the Rights of the Child, according

to which detention shall be used only as a measure of last resort and

for the shortest appropriate period of time. … All efforts must

be made to have them released from detention and placed in other appropriate

accommodation…Facilities should not be located in isolated areas

where culturally-appropriate community resources and legal access may

be unavailable.

Under article 37

of the CRC, Australia also has an obligation to ensure that "no child

is subjected to torture or other cruel inhuman or degrading treatment"

.[3] It must also ensure that all children in detention

are treated with humanity and respect and in a manner which takes into

account their age [4], and that they have a right to

prompt legal and other assistance and the right to challenge the legality

of their detention. [5]

Conditions of

detention: Facilities and services for health and human dignity

The CRC provides

generally that children asylum seekers are to receive "appropriate

protection and humanitarian assistance" in the enjoyment of their

rights [6]. Where a child is unaccompanied by family

members they are to be "accorded the same protection as any other

child permanently or temporarily deprived of his or her family environment

for any reason" .[7]

The CRC also provides

obligations in relation to health care. Article 24 states:

1) States Parties

recognize the right of the child to the enjoyment of the highest attainable

standard of health and to facilities for the treatment of illness and

rehabilitation of health. States Parties shall strive to ensure that

no child is deprived of his or her right of access to such health care

services.

2) States Parties

shall pursue full implementation of this right and, in particular, shall

take appropriate measures…(f) [t]o develop preventive health care,

guidance for parents and family

planning education and services.

The UN Rules for

the Protection of Juveniles Deprived of their Liberty also state that

children deprived of their liberty shall have the right to services and

facilities that meet all their requirements of health and human dignity.

The UN Rules contain detailed requirements about accommodation, education,

training, religion, recreation and medical care and make provisions for

discipline, complaints and return to the community.

Various UNHCR documents

interpret and discuss the above requirements and provide guidelines in

relation to the detention of children asylum seekers. The guidelines indicate

that:

  • child asylum

    seekers should not be detained in prison-like conditions, [8]

  • there needs to

    be a guarantee of meaningful activity and programs thereby promoting

    the health and development of the young person. [9]

  • every effort needs

    to be undertaken so that children are released from detention. [10]

  • they have a right

    to education, medical treatment, exercise and recreational facilities.

    [11]

  • they are to be

    housed separately from unrelated adults [12]

  • they are to have

    a reasonable amount of personal privacy. [13]

The particular vulnerability

of unaccompanied minors is recognised with the additional recommendation

that regular assessments of such children be made by the appropriate social

welfare authorities.

Measures to promote

physical and psychological recovery

Finally article 39

of the CRC obliges States Parties to:

…take all

appropriate measure to promote physical and psychological recovery and

social reintegration of a child victim of: any form of neglect, exploitation

, or abuse; torture or any other from of cruel, inhuman or degrading

treatment or punishment; or armed conflicts. Such recovery and reintegration

shall take place in an environment which fosters the health , self-respect

and dignity of the child.

Australia has acknowledged

the above-mentioned obligations imposed by international law by signing

and ratifying the Refugee Convention, the 1967 Protocol and the Convention

on the Rights of the Child. These instruments and the documents which

interpret them, establish minimum standards for the care and protection

for child asylum seekers, however these standards are not being met in

current legislation, policy and practice.

Recommendation

1:

The Commonwealth Attorney-General's Department ensure that all management

staff with responsibility for the care and protection of child asylum

seekers (both in the Department of Immigration and Multicultural and Indigenous

Affairs and Australian Custodial Management), are given training in international

law obligations relating to children under their care.

2. The mandatory

detention of child asylum seekers and other children arriving in Australia

without visas, and alternatives to their detention.

MANDATORY DETENTION

The Migration Act

1958 provides for mandatory detention of all people who do not have valid

visas - "unlawful non citizens" [15]. There

is no distinction in the law between adults and children.

Unlawful non-citizens

are detained in the following circumstances:

  • at the time of

    an unlawful arrival by air or sea (i.e. when they do not have a passport

    and valid visa);

  • after an unlawful

    arrival and where they have been detected by immigration authorities

    in the community (eg ship jumpers)

  • after a lawful

    arrival (with proper documents) and their visa is cancelled or has expired.

People remain in

detention until a visa is granted or until they leave Australia. They

may leave voluntarily or they may be removed or deported.

There are a significant

number of people who arrive unlawfully who are detained and who are not

permitted to apply for protection. Additionally there are those who applied

for protection and exhausted all their legal remedies. The Migration Act

indicates that these people are to be removed from Australia as soon as

practicable [16]. The practicalities of this procedure

cause concern because people in this situation (including the children

among them) are waiting in detention for DIMIA to arrange for their removal.

In the case of people from Iraq and Afghanistan or others who may be stateless,

this detention may be extremely lengthy. National Legal Aid does not have

access to detailed information about such people. However there have been

reports of persons who have been detained for over a year after their

legal remedies have been exhausted, as a result of the difficulty of returning

them to their home country.

The Migration Act

provides for the release of people who meet the definition of an "eligible

non citizen" [17]. People who arrived in Australia

lawfully are "eligible non citizens" [18]

and if detained may be released and granted Bridging Visas in a range

of circumstances. Generally they are making "acceptable arrangements"

to leave Australia or are waiting on the outcome of an application for

another visa (eg protection visa, spouse visa etc) .[19]

For those who have

arrived in Australia unlawfully it is much more difficult to be granted

a Bridging Visa and released from detention. If they are asylum seekers

(as are most of those who arrive unlawfully) they must meet additional

criteria [20] before they can be released. For example,

the Migration Regulations provide for the release from detention of asylum

seekers under 18 where:

  • their protection

    visa application has not been finally determined ;

  • a child welfare

    authority certifies that release from detention is in the best interests

    of the child;

  • the Minister is

    satisfied that there is an arrangement between the child and an Australian

    citizen or permanent resident for the care and welfare of the child

    and those arrangements are in the best interest of the child, and the

    grant of a visa to the child would not prejudice the rights and interests

    of any person who has custody, guardianship of , or access to, the child

    .

The initiative for

the release of a child under these provisions may come from the child,

a representative or community group, or from the DIMIA. Departmental policy

[23] states that where a child is detained with his/her

parents it is assumed that it is in their best interests to remain with

the parents [24]. The majority of children in detention

are in the care of their parents and therefore according to this policy

would be expected to remain with their parents in detention. This appears

to be the practice of DIMIA.

The same policy document

states that where there are unaccompanied minors in detention, departmental

officers must contact the relevant State/Territory Child Welfare Authority

and give it information about the child's background, situation in the

detention centre (eg whether there are other family members or guardians

with them) and how long the application is likely to take to process.

It is not clear whether DIMIA does follow its policy and contact the state

welfare authority.

In addition in the

case of unaccompanied minors there appear to be significant practical

impediments in making arrangements for the care of the child outside of

detention. There may be jurisdictional questions between the state and

the Commonwealth with the Minister for Immigration being the guardian

of non-citizen children in Australia .[25] It is also

not clear what procedures are in place in each of the States. National

Legal Aid is not aware of whether any unaccompanied minors have been granted

a Bridging Visa and released from detention under this provision.

Asylum seekers (including

children) may also be granted Bridging Visas where they cannot properly

be cared for in a detention environment [26] . For those

who have been in detention for six months or more after making their protection

visa application, and who have not received a primary decision on that

application, the Minister may personally determine that it is in the public

interest to release them [27] . National Legal Aid is

not aware of whether Bridging Visas have been issued in these circumstances.

Even if a child were

to be released under the above provisions, they would encounter a whole

new series of hurdles. Significantly, children who are released from detention

on Bridging Visas will not have access to Social Security payments [28]

and Medicare [29] . Some may be eligible for limited

funding under the Asylum Seekers Assistance Scheme. Those children seeking

to attend school may be required to pay fees at overseas student rates.[30]

The DIMIA policy document states:

It is important

that all parties involved in the process are aware that [the Department]

does not take any responsibility for costs incurred by the applicant

after his/her release from immigration detention .[31]

What is certain is

that vast majority of children including unaccompanied minors have remained

in detention until their protection visa was granted and that the provisions

available for the release of children asylum seekers are not routinely

implemented.

National Legal Aid

does not dispute that it is in the child's best interests to remain with

their parents. However it would be our position that the child's best

interests are better served by release with his or her parents into the

community. Legal Aid does not support the recent measures whereby children

and their mothers were released from Woomera given that this resulted

in the separation of children from their fathers and may have increased

the stress to both the child and his/her parents.

By having a regime

which implements mandatory detention of child asylum seekers and which

does not have effective methods for the release of child asylum seekers

into the community, Australia is arguably in breach of article 37(b) of

CRC which indicates that detention of children should be used as a measure

of last resort and for the shortest possible time. Australia is not following

the guidelines set down by the UNHCR recommending that child asylum seekers,

particularly unaccompanied minors, should not be detained.

Recommendation

2:

DIMIA consult with State authorities and key stakeholders in child

protection to develop guidelines for determining whether it is in the

"best interests" of the child to be released from immigration

detention.

Recommendation

3:

The Department of Immigration and Multicultural and Indigenous Affairs

provide monthly statistics on the number of unaccompanied child detainees

to State and Commonwealth child welfare authorities.

Recommendation

4:

That children on temporary release from immigration detention be

automatically eligible for Medicare and financial assistance through the

Asylum Seekers Assistance Scheme.

Right to challenge the legality

of detention - article 37(d) CRC

Under the October

2001 amendments to Part 8 of the Migration Act in relation to judicial

review, the decisions to detain a person and the decision to refuse a

visa, are "privative clause" decisions [32]

and as such may not be open to any review by any court .[33]

Additionally where

an asylum seeker applies for a Bridging Visa on the basis that they are

an "eligible non citizen" and that application is refused it

is arguable that there is no merits review of the decision to refuse the

Bridging Visa. [34]

In considering whether

the detention of a person is "arbitrary" (and therefore in breach

of article 9 of the International Convention on Civil and Political Rights),

the question is not solely whether that detention is contrary to law.

Other elements such as whether the detention is "appropriate, proportionate

and necessary" are relevant.

The Human Rights

Committee has found that the Australian government's immigration detention

of an adult asylum seeker (under different Migration Act provisions) was

"arbitrary" [35] In making that decision the

Committee stated:

9.4. The Committee

observes however, that every decision to keep a person in detention

should be open to review periodically so that the grounds justifying

the detention can be assessed. In any event, detention should not continue

beyond the period for which the State can provide appropriate justification.

For example, the fact of illegal entry may indicate a need for investigation

and there may be other factors particular to the individual, such as

the likelihood of absconding and lack of cooperation, which may justify

detention for a period. Without such factors detention may be considered

arbitrary, even if entry was illegal.

In making the decision

in A's case the Committee took into account the fact that there was judicial

review available to A but found that that option was 'merely formal'.

There was no real review of the decision to detain over and above whether

that decision was in accordance with Australian law and no possibility

for the court to order release.

In the current legislative

regime under which children asylum seekers are detained, the decision

to detain is clearly not reviewable by any court. It is therefore arguable

that Australia is in breach of article 37(d) of the CRC as children are

not able to challenge the legality of their immigration detention. Additionally

there is no possibility for the review on the basis of whether the detention

is appropriate or necessary. It is therefore arguable that children asylum

seekers in Australia are detained "arbitrarily" as interpreted

by the Human Rights Committee. This also constitutes a breach of article

37(b) of the CRC which provides that no child shall be arbitrarily deprived

of his or her liberty.

Recommendation

5:

Protocols be established with relevant Commonwealth and State authorities

to facilitate the release of children from immigration detention centres

either with their parents or if unaccompanied, into appropriate supervised

care.

Access

to prompt legal and other assistance - article 37(d) CRC

Those detained because

they have arrived unlawfully in Australia are subject to strict limitations

on the ability to access immigration advice and assistance - either from

the Department of Immigration or an independent source. Section 256 of

the Migration Act provides that only where a detained person requests

such information or assistance they shall be given the following - visa

application forms, reasonable facilities for making statutory declarations

and reasonable facilities for obtaining legal advice or taking legal proceedings

.[36]

There is no requirement

under the Migration Act other than that above, to give a person an application

form for a visa, to give advice about whether a person may apply for a

visa, to give a person an opportunity to apply for a visa, to allow a

person access to advice in connection with application for a visa. [37]

The operation of

these provisions is particularly relevant in relation to asylum seekers

arriving unlawfully. Boat arrivals and others arriving unlawfully are

interviewed about the methods of arrival and about reasons for coming

to Australia. It is at this interview where a decision is made whether

the person is "screened in" and therefore allowed to apply for

asylum - or "screened out" where they are kept in detention

until they can be removed from Australia.

National Legal Aid

is unable to comment on the access of those who are "screened out"

to legal advice and information. It appears that in many instances those

people who are screened out have no access to independent legal advice

and it is not clear whether s256 applies or is applied to such people.

Those who are "screened

in" are provided with a government funded migration agent to assist

them with their Protection Visa application. The scheme under with this

assistance is provided, the Immigration Advice and Assistance Scheme (IAAAS),

is funded directly by DIMIA. IAAAS funding commenced in 1995.

Funding for Commonwealth

law matters is provided to each of the legal aid commissions/offices under

agreements for the provision of legal assistance between the Commonwealth

and each state/territory. Those agreements provide strict guidelines for

the kinds of matters for which legal aid may be granted. Since 1 July

1998, legal aid for migration applications at the primary (DIMIA) and

review (RRT) stages is no longer available under these Commonwealth/State

agreements. The IAAAS therefore now represents the only publicly funded

access to legal representation to people in detention. [38]

Under the IAAAS,

DIMIA enters into contracts for the provision of application assistance

to asylum seekers in detention with successful tenderers, usually for

two years. There are serious limitations on the efficacy of the IAAAS

scheme in relation to the visa applicants. These include:

  • The level of funding

    per case indirectly encourages advisers to provide a minimum service.

    Rushed or limited time affects the quality of the preparation of the

    application and may cause apparent credibility problems. Many contractors

    are now private agencies who must make a profit from the service provided.

    This further limits the services provided to applicants.

  • No funding is

    provided to follow up such matters as applications for Bridging Visas,

    translations of relevant documents, obtaining medical reports, investigation

    into and complaints about conditions of detention (eg mistreatment of

    detainees, inadequate health care) or delays in granting a visa once

    a favourable decision is made.

  • The contracts

    set unreasonable time limits for the provision of services to detainees.

    For example IAAAS contractors at detention centres such as Woomera and

    Port Hedland have to prepare three protection visa applications per

    day. This is of particular concern when acting for children who may

    have little understanding of the legal system and who need time to build

    up a trusting relationship with their representative.

  • There is no payment

    under the IAAAS for attendance at Refugee Review Tribunal hearings.

    While the RRT hearings are meant to be informal in many cases it is

    only by way of hearing that adverse information is provided for comment.

    A child attending hearing without representation cannot be expected

    to understand the legal implications of adverse material. The fact that

    RRT hearings for detainees at remote detention centres are often conducted

    by video conferencing, would further disadvantage children.

  • There is an inherent

    conflict of interest in the decision maker -DIMIA- also choosing and

    funding the agents who provide the protection visa application assistance.

    The perception of conflict should be avoided by handing over all aspects

    of the administration of the IAAAS contract to another department or

    agency.

There are additional

practical problems of providing adequate legal assistance to applicants

in detention centers, which are often in isolated areas and where communication

with detainees is restricted. Where a lawyer cannot visit a client personally

they must communicate by phone or facsimile. At all the centres, detainees

frequently experience problems obtaining access to telephones and facsimile

machines. This is compounded by the need for the ready availability of

competent interpreters to assist the communications. Many detainees are

forced to rely on other detainees whose grasp of English is far from adequate

to communicate with lawyers on their behalf. The importance of detainees

being able to communicate with their legal representatives in confidentiality

and in an unconstrained manner is often not acknowledged by staff at the

isolated centres.

Finally, there does

not appear to be any consideration given by DIMIA to ensuring that IAAAS

providers having expertise in dealing with children. Children who are

accompanied by family members may have claims of their own to protection.

Unaccompanied minors by virtue of their age may have difficulty in expressing

any claims to protection and providing relevant information to those claims.

Those who represent child asylum seekers need particular expertise in

interviewing children, and understanding and providing submission on their

particular protection needs.

Recommendation

6:

In recognition of its responsibility for monitoring the Australian

government's obligations under international law, the Commonwealth Attorney-General's

Department provide funding to relevant agencies to provide legal advice

and assistance to child detainees. Alternatively the Commonwealth Attorney-General

could allow such work to be performed by the various legal aid commissions/offices

under the agreements for the provision of legal assistance between the

Commonwealth and each state/territory.

Recommendation

7:

Each child in detention, or each family grouping where there are

children, be provided with an advocate to ensure that each child's rights

to proper facilities for their health, education, recreation and rehabilitation

are met.

Recommendation

8:

In recognition of the vulnerability of unaccompanied minors, legal

assistance through the IAAAS scheme be provided by specialist legal contractors.

These contractors be required to demonstrate their experience in assisting

vulnerable children. Alternatively, given the expertise within National

Legal Aid in relation to the representation of children, the agreements

between the Commonwealth and each state/territory should permit the grant

of legal aid in relation to the assistance of unaccompanied minors.

Recommendation

9:

The time limit for the lodgement of Protection Visa applications

from unaccompanied minors be extended beyond the current limit of three

days. The time limit be flexible to allow for the differing needs of unaccompanied

children.

Recommendation

10:

Child detainees be provided with telephone access to interpreters

and appropriate legal services without the need for these to be requested

by the child.

The Human Rights

and Equal Opportunity Commission and Commonwealth Ombudsman

The Human Rights

and Equal Opportunity Commission (HREOC) has been given the responsibility

for the protection of children under the Convention on the Rights of the

Child (1989). However the provisions of the Migration Act limit the HREOC's

access to asylum seekers in detention prohibiting the Commission from

initiating contact with a detainee unless that person has already made

a written complaint to HREOC [39]. Similar provisions

apply to the Commonwealth Ombudsman .[40] This is quite

clearly absurd when considering the ability of child asylum seekers to

make written complaints in English, to authorities which they may not

know exist, about rights they may not know exist.

Recommendation

11:

Along with state provisions for juveniles in detention, advice and

information about a child's rights to complain to HREOC and Ombudsman

should be provided at the point of detention.

Recommendation

12:

DIMIA should co-operate with relevant child welfare agencies to facilitate

the provision of information about contacting HREOC and Ombudsman to children

in immigration detention centres.

ALTERNATIVES TO DETENTION

National Legal Aid

is aware of a number of alternative models to mandatory detention of asylum

seekers. These include forms of open detention, community release with

various conditions, and home detention. The Refugee Council of Australia

has prepared a detailed paper on this issue [41]. A

paper prepared by the Edmund Rice Centre for Justice and Community Education

also discusses various alternatives to detention. [42]

National Legal Aid would endorse any of the alternatives suggested by

the above organisations, as long as that model includes procedures and

facilities which comply with Australia's international human rights obligations.

The detention

of children in New South Wales-A Comparison

There is a stark

contrast between the rights of children in detention for criminal offences

in Australia and those in immigration detention. It is sadly ironic that

children who have committed no crimes and who have come to Australia to

seek protection from persecution have fewer rights than those who have

committed crimes.

The following is

an outline of the legislative and monitoring framework for detention of

children in New South Wales. This outline is useful to contrast with the

situation of children in immigration detention and to demonstrate possible

provisions which may be implemented within the migration jurisdiction,

to ensure a higher level of compliance with Australia's human rights obligations.

The legislative

framework

Under NSW law, only

those young people who offend, or who are apprehended for allegedly doing

so, run the risk of being placed into a detention centre.

The detention of

children in NSW is governed by legislation, including the Children (Criminal

Proceedings) Act 1987, the Children (Community Service Orders) Act 1987,

the Children (Detention Centres) Act 1987 and the Children's Court Act

1987, various regulations, departmental policies, internal guidelines

in detention centre procedures manuals, and working instructions for detention

centre staff. Together these provide the framework and underlying principles

under which NSW juvenile detention centres operate.

Underpinning this

framework is the understanding that detention is the most extreme form

of intervention for children who offend. [43] Whilst

this may not always be applied in practice, in theory at least it is recognised

that:

'The particular

characteristics of children, for example, their heightened vulnerability

to physical and emotional harm and different perceptions of time, make

detention a more confronting and difficult experience for them than

for adults. Institutional environments, such as juvenile detention centres,

can harm some children, with serious social and developmental consequences'.

Increasingly,

efforts are being made in NSW to ensure that detention is used as a sanction

of last resort for children who offend, and for those who are incarcerated,

that detention centres operate in accordance with Australia's international

obligations under the Convention on the Rights of the Child (CRC), the

Beijing Rules and the UN Rules for the Protection of Juveniles Deprived

of Their Liberty. These are discussed in more detail below.

Legislative principles

underpinning the NSW juvenile detention centre system

The CRC articulates

universal values and principles in relation to how children should be

perceived and treated and establishes specific rights for children who

are alleged to have infringed penal law.

As a signatory

to the CRC, the Australian Government is obliged to ensure that every

child within its jurisdiction is able to exercise these rights fully,

regardless of the child's national or ethnic origin (Article 2).

In New South Wales,

principles concerning the treatment of children who are alleged to have

infringed NSW criminal laws are contained in the Children (Criminal Proceedings)

Act 1987, which outlines the processes for dealing with child offenders

and the penalties that may be imposed, and the Young Offenders Act 1997,

which establishes a range of alternative interventions for young people

who offend. Sections 3 and 7 of the Young Offenders Act were drafted with

specific reference to the CRC.

Both pieces of legislation

contain guiding principles which are consistent with the provisions of

the CRC, for example:

Section 6: Children

(Criminal Proceedings) Act 1987: Principles relating to the exercise of

criminal jurisdiction:

A court, in exercising

criminal jurisdiction with respect to children, shall have regard to the

following principles:

(a) that children

have rights and freedoms before the law equal to those enjoyed by adults

and, in particular, a right to be heard, and a right to participate,

in the processes that lead to decisions that affect them,

(b) that children

who commit offences bear responsibility for their actions but, because

of their state of dependency and immaturity, require guidance and assistance,

(c) that it

is desirable, wherever possible, to allow the education or employment

of a child to proceed without interruption,

(d) that it

is desirable, wherever possible, to allow a child to reside in his or

her own home,

(e) that the

penalty

imposed on a child for an offence should be no greater than that imposed

on an adult who commits an offence of the same kind.

Section 7 of the

Young Offenders Act 1997, which includes its guiding principles:

(a) The principle

that the least restrictive form of sanction is to be applied against

a child who is alleged to have committed an offence, having regard to

matters required to be considered under this Act.

(b) The principle

that children who are alleged to have committed an offence are entitled

to be informed about their right to obtain legal advice and to have

an opportunity to obtain that advice.

(c) The principle

that criminal proceedings are not to be instituted against a child if

there is an alternative and appropriate means of dealing with the matter.

(d) The principle

that criminal proceedings are not to be instituted against a child solely

in order to provide any assistance or services needed to advance the

welfare of the child or his or her family or family group.

(e) The principle

that, if it is appropriate in the circumstances, children who are alleged

to have committed an offence should be dealt with in their communities

in order to assist their reintegration and to sustain family and community

ties.

(f) The principle

that parents are to be recognised and included in justice processes

involving children and that parents are to be recognised as being primarily

responsible for the development of children.

Such statements of

principle are absent from the legislation or policy documents governing

the detention of children in immigration detention.

The right to be

heard: Article 12

With respect to children

who are involved in the legal process, Article 12 of the CRC is of particular

significance. It requires State Parties to:

' … assure

to the child who is capable of forming his or her own views the right

to express those views freely in all matters affecting the child, the

views of the child are given due weight in accordance with the age and

maturity of the child.

For this purpose,

the child shall in particular be provided the opportunity to be heard

in any judicial and administrative proceedings affecting the child,

either directly, or through a representative or appropriate body, in

a manner consistent with the procedural rules of national law.

This principle has

been incorporated into NSW juvenile justice legislation through sections

6(a) of the Children (Criminal Proceedings) Act and 7(b) of the Young

Offenders Act 1997.

In recent years,

several inquiries have examined various forms of children's advocacy and

identified a number of features for effective children's advocacy.[45]

Consistent with the

recommendations from these inquiries, in NSW, legal advocacy for children

is increasingly being provided by specialist children's lawyers. Practitioners

are guided by the Law Society's 'Representation Principles for Children's

Lawyers' (October 2000).

Prompt access to

legal advice: Article 37(d)

Additional rights

are conferred by the CRC on children who are deprived of their liberty.

Article 37(d) provides that:

Every child

deprived of his or her liberty shall have the right to prompt access

to legal and other appropriate assistance, as well as the right to challenge

the legality of the deprivation of his or her liberty before a court

or other competent, independent and impartial authority, and to a prompt

decision on any such action.

This article must

be read in conjunction with Article 12 as well as the primary principle

that all administrative actions must be in the best interests of the child

(Article 3(1)).

This right is

recognised in the NSW juvenile justice centre policy and procedures manuals.

In NSW, children

on remand or serving a sentence have access to legal advice through the

visiting legal service of the Legal Aid Commission of NSW (the Commission).

The NSW Department of Juvenile Justice provides funds to visit each juvenile

justice centre on a weekly or fortnightly basis. This means that children

are able to apply for prompt review of decisions affecting them and their

families.

In the greater metropolitan

area of Sydney, the visiting legal service is provided by solicitors who

work in the Children's Legal Service (CLS) of the Commission. The establishment

of CLS was supported by Recommendation 270 of the HREOC and ALRC Report

No 84: Seen and heard: priority for children in the legal process (1997).

The CLS is a specialist section of the criminal law branch, which specialises

in representing children in the criminal jurisdiction.

Detainees can ask

the case manager at the juvenile justice centre to register their request

for legal advice or ask to see the solicitor on the day that they are

at the centre. The advice is given in private and is subject to legal

professional privilege.

Solicitors provide

advice on a broad range of criminal law matters and referrals to appropriate

services for non-criminal matters. Any urgent requests for advice are

telephoned to the solicitor responsible for visiting the particular juvenile

justice centre. Detainees can also contact the Legal Aid Youth Hotline

(1800 10 18 10) for urgent advice.

As well as court-related

matters, solicitors can assist young people with complaints about procedures

or discipline at the juvenile justice centre, and advocate during administrative

procedures, such as transfers between centres.

The need to expedite

matters where a child is in custody is enshrined in s.9 of the Children

(Criminal Proceedings) Act 1987.

(1) If criminal

proceedings are to be commenced against a child otherwise than by way

of summons or attendance notice, and the child is not released on bail

under the Bail Act 1978, the child shall be brought before the Children's

Court as soon as practicable.

(2) Without limiting

the generality of subsection (1), a child who is not released on bail

under the Bail Act 1978 shall, for the purpose of making a further determination

of bail, be brought before an authorised justice:

(a) no later

than the next day, or

(b) if the next

day is a Saturday, Sunday or public holiday no later than the next

day that is not a Saturday, Sunday or public holiday, if, within that

time, the child has not been brought before the Children's Court.

In reality this

may mean a delay of three days as there is no provision for children arrested

immediately before or after the weekend.

The Migration

Act, on the other hand, does not contain a similar requirement. Whilst

the Act contains procedures for the temporary release of children from

detention pending final determination of their application, this does

not apply to their parents. As a result, most children remain in immigration

detention with their parents for substantial periods of time.

Detention as a

measure of last resort: Article 37(b)

Both the CRC

and the Beijing Rules provide that the detention of young offenders pending

trial should be a measure of last resort and for the shortest appropriate

period of time.

While there is no

doubt that NSW has adopted more punitive approach to young offenders in

recent years, fortunately mandatory detention does not as yet exist in

this State.

In NSW the principle

of detention as a matter of last resort is at the foundation of its juvenile

justice legislation. At the heart of this is the recognition of the detrimental

effects of detention on young people.

The desirability

of non-custodial options for young offenders is also firmly stated in

section 6 of the Children (Criminal Proceedings) Act and section 4 of

the Children (Detention Centres ) Act 1987, an object of which is the

need to ensure that 'persons on remand or subject to control take their

places in the community as soon as possible as persons who will observe

the law'.

Indeed, as a result

of concerted efforts by the Commission and the NSW department of Juvenile

Justice, the numbers of young people in detention in NSW has been reduced

over the last five years by 40%.

As outlined

earlier in this submission, detention of undocumented child asylum seekers

is a measure of first resort and it is extremely difficult for children

to gain release from detention.

Treatment of children

in detention: Articles 37 and 40

Articles 37 and 40

of CRC set out a number of protections for every child deprived of their

liberty. In particular, the CRC states:

'every child

deprived of their liberty shall be treated with humanity and respect

for the inherent dignity of the human person and in a manner which takes

into account the needs of persons of his or her age.'

State Parties must

also take into account 'the desirability of promoting the child's reintegration

and the child's assuming a constructive role in society'.

In order to comply

with the requirements of the CRC and the UN Rules with regard to the provisions

of service and facilities for juveniles in detention, National Quality

of Care Standards (QOC standards) and Design Guidelines were developed

for the juvenile detention system under the auspices of the Australasian

Juvenile Justice Administrators forum. These standards and guidelines

were endorsed by all Australian States and Territories in 1996. They apply

exclusively to juvenile detention centres and provide guidelines for programs,

services and legal processes provided in detention. These standards cover

issues relating to alcohol and other drug services, recreation, education,

employment and training programs, health services and other issues.

In NSW, there

exists a set of guidelines for complaints by children in juvenile detention

centres. They provide for comprehensive recording, review and appeal mechanisms.

[46]

Young people

in detention have access to several external complaint handling agencies

including Official Visitors, the Ombudsman, the Anti-Discrimination Board,

the Independent Commission Against Corruption, the Judicial Commission,

the Privacy Committee and the Legal Services Commissioner.

Official visitors

Each juvenile

justice centre has an official visitor program that provides for random

visits by a nominated community member. Official Visitors are appointed

by the Minister. The Visitors provide independent monitoring and evaluation

of residential conditions and services and are expected to visit each

centre at least every two weeks. They also facilitate the protection of

the human rights of detainees and register and assist in the resolution

of grievances. Official Visitors have relatively free access to the records

and personnel of the departments for the purpose of undertaking inquiries.

Official Visitors prepare written reports to the Minister every six months.

Recommendation

13:

That DIMIA in consultation with HREOC establish an official visitors

program for children in immigration detention centres. Official visitors

are to visit each detention centre at least every two months.

The NSW Ombudsman

The NSW Ombudsman

also has responsibility for monitoring juvenile justice centres. Detainees

are able to make complaints directly to the Ombudsman

The NSW Ombudsman

oversees the operation of Official Visitors indirectly in that complaints

not resolved via the Official Visitor are often directed to the Ombudsman's

Office, both by complainants and the Official Visitor themselves. The

Ombudsman's Office also takes part in training activities for the Official

Visitors. The Ombudsman's Office provides a limited outreach service to

adult correctional centres and Juvenile Justice Centres. These centres

are usually visited at least twice a year.

Section 12(3) of

the Ombudsman Act 1974 places a legal obligation on public authorities

or other people supervising inmates to take all necessary steps to facilitate

the making of complaints and the forwarding of unopened written matters

to the Ombudsman whenever a person in custody informs such a person that

he or she wishes to make a complaint to the Ombudsman.

It is the practice

of the Department of Juvenile Justice to allow detainees to telephone

the Ombudsman's Office. In the 1997-98 financial year the Ombudsman received

2683 complaints relating to prisons and Juvenile Justice Centres.

Detainees are able

to complain about detrimental treatment received as a result of an earlier

complaint to the Ombudsman.

The Ombudsman is

required to advise the complainant of the reasons for any determination

made in relation to a written complaint. The majority of complaints from

inmates are dealt with informally. Where a formal investigation is initiated

and "wrong conduct" found, a report is made to the head of the

public authority, the relevant Minister and, except in unusual cases,

the complainant. Complainants are always informed of the Ombudsman's determination

and the reasons for the decision.

NSW Anti-Discrimination

Board

Juvenile detainees

can complain directly to the President of the Anti-Discrimination Board

about any allegation of harassment, discrimination or vilification. All

complainants have access to a toll free telephone number to contact the

Board. Officers will also visit a detainee to discuss a complaint if necessary.

Children in immigration

detention

The comprehensive

system put in place in New South Wales for access to legal assistance

and investigation of complaints is in marked contrast to the lack of assistance

for children in immigration detention. Children are often held incommunicado

for months without access to legal advice. When legal advice is provided,

it covers only "application assistance" and there is no specific

provision for advice and assistance about being released from detention

or the conditions within the detention centre. DIMIA does not provide

information or facilitate access by detainees to rights monitoring bodies

and it has developed no principles for the protection of the legal rights

of child detainees.

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 children are detained;

  • health, including

    mental health, development and disability;

  • education;
  • culture;
  • guardianship issues;

    and

  • security practices

    in detention.

CASE STUDY

This case study,

prepared by one of the Legal Aid Commission of NSW's Social Workers, highlights

the negative impact of detention on a family with a disabled child, as

well as problems the family encountered once released into the community

with a Temporary Protection Visa.

Introduction

The family concerned

comprises the father and mother, their primary school age daughter and

a son and another daughter who are both toddlers. The family, who are

from a religious minority, fled from a Middle Eastern country early in

2001, having experienced torture, persecution and marginalisation over

a prolonged period. They travelled by boat from Indonesia to Australia

and on arrival were sent to Woomera Immigration Detention Centre (IDC).

After several weeks the family was transferred to the Villawood IDC. DIMIA

eventually accepted their claims to refugee status and the family was

granted a Temporary Protection Visa later in 2001.

Whilst the family

was detained at Villawood IDC, a legal officer from the Legal Aid Commission

of NSW assisted the family with their application for a Protection Visa.

The legal officer had grave concerns about the health and welfare of this

family, in particular the younger daughter who had serious and undiagnosed

disabilities. The social worker accompanied the legal officer on a visit

to the Villawood IDC in mid 2001, and interviewed the father via an interpreter.

The social worker subsequently had extensive telephone contact with the

family, linking them to a range of support services after their release

to the community. A follow up interview with the father, mother and older

daughter was conducted via an interpreter at the family's home some months

after their release.

During the interview

at the Villawood IDC, the father spoke at length about the family's ordeal

in transit to Australia and whilst in detention. He presented as suffering

from a high level of trauma and emotional stress. His distress about his

own experiences was compounded by his fears and sense of powerlessness

concerning the health and welfare of his children, especially his younger

daughter. During the follow-up interview, it was apparent that the family

members were still suffering the after effects of their experience in

detention and at times found it very difficult to talk about particular

aspects of it.

Health & nutrition

/ prevention, treatment & accommodation of disabilities

The religious minority

to which this family belongs is not recognised by the regime in their

home country. Members of this minority group are not entitled to a medical

book, which allows "official citizens" access to medical services.

The younger daughter was born with a medical condition that was not diagnosed

in the home country, and even in Australia a definitive diagnosis has

been difficult to make. The child had a breathing disorder and an organic

brain abnormality, which impacted on her growth, physical mobility, co-ordination

and sensory development.

The father explained

that during the six-day sea voyage from Indonesia to Australia, the family

was confined in a small area in the boat's hold, adjacent to the engine

room. Thick diesel fumes affected all the passengers and exacerbated the

younger daughter's breathing disorder, which did not improve after they

landed in Australia. For many months her parents had to take it in turns

to stay awake at night to check on her breathing and reposition her when

it slowed significantly or almost stopped. Many times her lips turned

blue and they feared she would die in her sleep. Consequently, both parents

suffered from sleep deprivation over a prolonged period.

Conditions at

the Woomera IDC

The parents described

their accommodation at Woomera. The five family members were allocated

a small cubicle about the size of a railway compartment, with bunk beds.

Instead of a door there was a curtain that did not reach the ground and

would cover an adult of average height from about the neck to the knees.

There was therefore very little privacy or soundproofing. There were six

such compartments in a small, enclosed area. Being winter, it was very

cold. The building was poorly insulated and there was only one small heater

between the six families. There were constant fights over who would have

the heater near their compartment. To keep warm, families huddled together

on their beds wrapped in blankets.

The father told the

social worker that a member of staff at the IDC had told detainees that

if they needed medical assistance, they should come and ask for it at

the medical office. At about 2am one very cold, wet night, the younger

daughter's breathing became almost imperceptible. Her lips turned blue

and she became limp and cold. Her father said he wrapped her in some bedding

and carried her across an open area to the building where the medical

office was located. Despite the father's protestations, the guard on duty

at the building's reception area refused the father entry for half an

hour. The father stood outside, trying to shield his daughter from the

rain. He commented that this was one of the most cruel and demeaning experiences

of his life. "My child and I were treated like stray dogs, left

out in the cold. Can you imagine how hopeless I felt for my family, standing

there shivering and wondering if my daughter would die in my arms?"

Whilst at Woomera,

the daughter's condition became serious enough to warrant hospitalisation

three times. Her mother, who was still breastfeeding her, was allowed

to accompany her to the hospital where they stayed for several days. The

mother said there was a guard on duty outside their hospital room 24 hours

a day, and the door was left open at all times. She had no privacy. The

mother commented "do these people think I am a criminal, that

I would run away with a sick child and leave the rest of my family behind

in detention?" She and her daughter returned to the IDC in Woomera

and the medical officers there gave the child medication for asthma. This

apparently provided relief for a few minutes at a time but did very little

to improve her condition.

The parents described

the toilet facilities at the Woomera IDC as putrid. For more than two

hundred people, there were five toilets for the males and five for the

females. The ground outside was muddy, and with people of many cultures

using the western style toilets, the toilets were never clean. They said

facilities for washing were too awful to describe.

The parents said

the diet was monotonous, with the same type of food served up day after

day. It consisted of rice, some sort of meat, lettuce, tomato and bread.

Most days they could not tell what meat was being served up and they avoided

eating it as they do not eat red meat, so they had no regular source of

protein. They lost interest in their food and lost weight. In other circumstances,

a meal might be something to look forward to, but they just went through

the motions of eating before returning to their compartment.

Conditions at

the Villawood IDC

When the family was

transferred to Villawood IDC, their accommodation was larger, more private

and food was better. However, the younger daughter's health still did

not improve and she was admitted to the local hospital, accompanied by

her mother, with security guards on a 24 hour roster outside the hospital

room door. At the IDC, the family said they had problems finding food

suitable for the younger daughter to eat. She had reflux and needed pureed

food. The parents said that for some time they were not aware that they

could ask for tins or jars of baby food. When it was available, the jars

were large and as there were no facilities in their room to keep food

cold, they ended up wasting part of each jar. They were worried that they

would be punished for this.

The social worker

phoned the health worker at the IDC and asked for information about the

younger daughter's diagnosis, whether the family could be provided with

more support in managing their daughter's health, and if baby food could

be made available. The health worker indicated that there were too many

detainees for the health staff to go around asking if they needed help.

She said the family just had to come to the medical centre and ask for

assistance. When the social worker relayed this to the father, he said

that when he had asked at Woomera IDC for assistance, he had been ignored

and humiliated, and he was afraid to keep asking for help at this IDC.

His family's lack of English language skills and lack of entitlement to

any medical services in their home country added to their reticence to

"just go and ask".

Whilst in detention,

the father said he was suffering from a degree of memory impairment. He

explained that he had been a craftsman in his home country, carrying out

delicate work with jewellery that required steady hands. The social worker

observed during both visits that the father's hands had a constant tremor.

Since their release

into the community

On their release,

the family initially stayed with relatives of the mother, who had only

recently been granted a TPV themselves and were renting a two-bedroom

flat. This arrangement was supposed to be very short term. Unfortunately,

it took several weeks for the newly released family to find a rental flat,

so for about a month nine people were sharing a small two-bedroom flat.

Some bedding was provided by a charity. The parents felt torn between

finding alternative accommodation and looking after their younger daughter's

immediate health needs, which took precedence. Three days after leaving

the detention centre, the younger daughter was again hospitalised for

several days. The family returned to the overcrowded conditions at their

relatives' flat and the whole family caught a viral illness. The relatives

came under pressure from their landlord to move the visiting family on.

Meanwhile, the father applied for leases on several flats but was rejected,

as he had no references and no track record as a tenant. Eventually they

were approved as tenants and signed a six-month lease on a flat. The flat

was gloomy and more expensive than they had hoped, but they agreed to

take it out of desperation.

During this initial

period the social worker gave the family intensive assistance with navigating

the system. Had the family been granted permanent residence they could

have accessed a range of additional settlement services that are not available

to TPV holders. Several community agencies were alerted to the family's

situation. Some could not assist, as the family did not have permanent

residence status. There was a reliance on volunteers and on luck in meeting

people who were helpful. Had there been a "Welcome House" or

some other co-ordinated form of settlement service in the community, the

family's level of stress could have been dramatically reduced.

The family said that

at the time of their release, DIMIA staff gave them $800 and some basic

information in their mother tongue about Centrelink, Medicare, the Department

of Housing and crisis accommodation. The older daughter was unable to

enrol in school until the family had their own address. The Legal Aid

social worker referred the family to DOCS for assistance with material

goods (a fridge and a baby buggy) and for an assessment by the Disability

Team, which now provides ongoing support. The Department of Housing paid

for their bond; a charity donated essential household items, and a volunteer

who spoke their language helped obtain some additional items of furniture.

The parents and older daughter were referred to STARTTS for counselling.

The family was finally free to worship with others from their own religion.

To the enormous relief

of the family, recent surgery has been successful in alleviating the younger

daughter's breathing problems. However, the child has significant developmental

problems and at the age of two cannot yet weight bear and can only roll

on the ground. She has not yet developed any speech and there is a chance

she may never do so. There are question marks over her entitlement to

ongoing assistance for hearing surgical aids, orthopaedic shoes, mobility

aids, etc whilst the family holds a TPV. Managing this child's disabilities

would be difficult enough in a stable environment, but with limited access

to services and equipment, dealing with her as she grows up is likely

to be very challenging indeed.

Education

The older daughter

outlined the activities at Woomera IDC. There was a small room for about

30 children to play in. There were some pencils and paper, and on three

days a week between 10 and 11.30am a female teacher would come and provide

some supervised play activities. It was not really school, but it gave

them something to do, even though many of the children could not understand

what the woman said. Adults in detention had one hour of English language

tuition a week.

According to the

older daughter, there was a bit more for children to do at the Villawood

IDC. Each weekday morning and afternoon, two hours of a form of schooling

was provided, but again, many children did not know enough English to

understand the teacher and there was insufficient individual attention.

The older daughter said the classes were boring and not very useful as

it was hard for the teacher to pitch at the right level for everyone.

The older daughter befriended two other girls who spoke her own language.

The play area was poorly equipped - there was a net and some sort of racket

and ball, but the equipment was often broken. The person supervising was

rarely available so the children could not use the area very often.

Now the older daughter

is at primary school, she is learning English quickly. She loves school

and just "doing normal stuff" like playing with friends,

reading books, and seeing children from many different countries learning

together. She told the social worker "I wish I could have started

proper school when we first got to Australia, then I would speak good

English now and I would not have been so bored and depressed in detention".

It should be noted

that members of the minority group to which this family belongs are not

entitled to attend university in their home country. Both parents would

have attended university if they could have. It is a sad irony that their

children may be prevented from attending university in Australia due to

having ongoing Temporary Protection Visa status.

As TPV holders, the

parents are not entitled to attend AMES or TAFE English classes. They

recently commenced a few hours per week of English lessons run by volunteers

at the local library. Both parents commented that while they appreciate

this opportunity to learn some English, it would be far more cost effective

for the Government and taxpayers if they could attend intensive English

classes, such as AMES, that would enable them to learn English more quickly

and hence become employable and independent of welfare payments in a much

shorter time.

Psychological

and social wellbeing

The older daughter

described how frightened she was whilst at the Woomera IDC. There were

many single men there, and frequently there were raised voices and fights.

She was afraid to go anywhere unaccompanied by one of her parents and

there was little opportunity to play with other children. She said "it

was so cold. Most of the time I stayed on the bed with a blanket over

me, crying and talking to God".

The mother said that

for more than 40 days at Woomera they had no contact with the outside

world and had no opportunity to phone anyone in Australia or their home

country to inform them that they were still alive. They were separated

from the people they had travelled with on the boat. There was no TV,

radio, printed material, or telephone in the family accommodation section.

Everyone was suspicious of everyone else and kept to themselves. This

added to their sense of alienation.

The father said that

to take his mind off his fears, he asked time and again at the Woomera

IDC if he could do some voluntary chores, but his requests were ignored.

He said that worse than the physical conditions in detention were the

boredom, the depression and the inability to relax. "Every waking

minute you are anxious, you fear that you will be rejected, that you and

your family will be deported, that you have been through all of this hell

for nothing. How can you be a good, responsive parent when you are in

such a state? You want your children to have a good future, but how can

you reassure them that it will be all right, when you do not believe it

yourself? And you have no idea how long you must suffer in this state.

The authorities make you feel you are a terrible criminal and trouble-maker,

that you must be isolated from Australians so you don't taint anyone.

You feel so small and powerless".

It transpired that

the family's refugee application was processed reasonably quickly. The

father said "we did not know at any stage how long it would take.

We'd hear of some families being released and that gave us a glimmer of

hope, but mostly we heard bad stories about deportations and it filled

us with dread. We met some Australian staff who seemed humane but some

others were very cruel. We did not understand what sort of country we

had come to and why we were so hated."

The mother told the

social worker "If we were not in fear for our lives we would not

have risked all this. On the one hand if we stayed in our home country

we faced the certainty of more persecution, torture and possibly even

death. On the other hand there was perhaps a 50% chance that if we took

this path we would survive and our children would have a future, so we

took that risk. "

The older daughter

said that while she was in detention she could not understand why no-one

came to visit, and said this was very demoralising. Every weekend she

felt more depressed thinking about other children outside the IDC playing

and going about their normal life. It was as if they were in a bubble

and no-one wanted to come near them. She explained that now she is in

the community she "cannot bear to go back to that place (the IDC),

to see those big wire fences and to go through all that security. I'm

too scared to visit my friends who are still there and I feel really bad

about that as I miss them. They have been there for such a long time,

they must be so lonely. I wish they would be released".

The parents and older

daughter stated that they are far more relaxed living in the community

than when they were in detention, but their experience there will always

be on their minds. "We are scarred by that experience. Even now,

we cannot really relax and throw our energy into building our future.

We have temporary status. We want to settle down here and make a contribution,

to learn English and to work hard. We want our children to feel safe and

happy and have a good education. But we are still worrying about the possibility

that we will be sent back. This is another form of cruelty".

The father said "I

can't understand why your government allows people to suffer in detention

for so long. By the time they are released into the community they are

often so damaged, so emotionally and mentally sick, that they will be

a huge burden to your community. Why does your government want this. This

is so unnecessary, why not let the people live in the community while

they are waiting?"

On the issue of allowing

women and children out of detention whilst the men remain in detention,

both parents were of the view that "this is absolute cruelty.

It is not a concession. We know one family where the mother and children

are out and the father is detained. They are all ill with worry; they

cannot function as a family. It is terrible for the mother and children

trying to cope without the father and worrying about what is happening

to him in detention. He is so lonely and hopeless and feels he has even

less power to be a good parent than when they were all together. Families

should be released together, not locked up like criminals. If you push

people hard enough of course they snap. It is so distressing to hear of

people harming themselves. When you are at the IDC, you try to shut out

all the talk and rumours and hang onto hope and faith, but it is so hard.

They don't treat you as human, it gets hard to remember that you still

are human in spite of that."

DISCUSSION: CONDITIONS OF

DETENTION

The CRC requires

that all children deprived of their liberty are to be treated with humanity

and respect for the inherent dignity of the person, that they are to be

housed separately from unrelated adults, and are to be afforded a reasonable

amount of personal privacy. [47] The UNHCR recommends

that children should not be detained in prison like conditions. [48]

Child asylum seekers

who arrived unlawfully are detained in high security centres surrounded

by razor wire. Guards are uniformed and movement within the centres is

strictly regulated. Throughout the day detainees are called over loudspeakers

to "muster" and are given meals at times and intervals according

to the convenience of the detention centre administration. These are clearly

"prison like conditions.

National Legal Aid

does not have specific information about the conditions for unaccompanied

minors in the detention facilities. However, our case study demonstrates

that in the Woomera detention centre, children are housed in uninsulated

buildings, with spaces shared by a number of family groups. The shelters

are not adequately heated (or cooled). Children are housed with unrelated

adults and are not always segregated from the other adult detainees. The

eldest daughter stated that she was afraid of the single men and felt

she could not go about unaccompanied by her parents.

Additionally the

toilet facilities at Woomera (with a total of 10 toilets for over 200

detainees) are insufficient and unhygienic and the meals are poor in variety

and there does not appear to be provision for individual dietary needs.

The remote locations

of the larger detention centres in Port Hedland, Woomera and Curtin exacerbate

the poor conditions. The desert like environment, together with the harsh

climate, the lack of outside social contact, restricted access to expert

medical assistance and independent monitoring of the conditions within

the centres, further isolates the detainees and contributes to the adverse

effects of detention.

We refer to the comments

of the Inspector of Custodial Services in Western Australia, Richard Harding

made in late October 2001. Mr Harding said the immigration detention centers

were unacceptably overcrowded, posed hygiene and health risks, and had

"disgracefully" inadequate medical and dental services. In discussing

riots at the centres he said that it was no coincidence that riots occurred

in a system that lacked accountability, he added:

We do not have

riots in our detention centers because we have a riotous group of refugees;

we have them because we run appalling systems. [49]

By detaining children

in such conditions Australia is in breach of the spirit of the Convention

on the Rights of the Child and acting outside the recommendations of the

UNHCR

Recommendation

14:

No child asylum seekers should be detained in the remote centres

at Port Hedland, Curtin or Woomera.

Recommendation

15:

Appropriate community-based accommodation should be established under

the joint auspices of DIMIA and State child welfare agencies to provide

stable housing for unaccompanied minors who are seeking asylum in Australia.

Recommendation

16:

Unaccompanied children should only be kept in detention for 48 hours

to complete initial health and identity checks, including the "screening

in" process. Any extension of this period should be obtained through

a magistrate at a Children's Court.

Health, Education

and Recreation

The UN Rules for

Juveniles Deprived of their Liberty provide that, where it is necessary

to detain children, there should be a guarantee of meaningful activity

and programs thereby promoting the health and development of the young

person. [50] Children have a right to education, medical

treatment, exercise and recreational facilities. [51]

The case study highlights

the difficulties of obtaining even basic medical assistance. It is shocking

that a child's illness/disability would not be picked up at an initial

screening check and a treatment or monitoring schedule be instituted;

that after numerous hospitalisations such a child with serious breathing

difficulties would be returned to a detention centre where her condition

is monitored by her parents; and that when the parent demands medical

attention he is required to wait with his baby daughter barely breathing,

outside in the rain and cold, in the middle of the night, for around half

an hour, before seeing a medical officer.

Where people of non

- English speaking backgrounds, who may not be aware of their rights to

seek medical assistance or being aware of their rights, are not confident

enough to exercise them, it is not sufficient to provide medical services

behind gates on demand. This is especially so in relation to health services

for children. Having a system of mandatory detention, it is not acceptable

for the Australian government to pass on to the detainees the responsibility

for their own health.

In Woomera, Curtin

and Port Hedland the access to appropriate medical care to detainees is

impeded by the remote locations of these centres. The difficulty of attracting

medical personnel to treat local inhabitants in country areas in Australia

is well recognised. It is therefore unlikely that the detention centres

will be adequately staffed by appropriately trained medical personnel.

Asylum seekers who

have been living in unsettled circumstances and who may have escaped war

or other traumatic experiences, have increased medical and psychological

needs. Detainees with severe psychiatric conditions such as schizophrenia

and other psychoses may not be treated if nurses and non-specialist doctors

are forced to make their own diagnoses of detainees' behaviour. This will

no doubt have potentially serious consequences for the sufferers as well

as other detainees and staff.

An additional problem

is that the unavailability of qualified on-site interpreters may result

in inaccurate diagnoses being made in relation to physical and mental

conditions with potentially grave consequences. Commission staff are aware

of a significant number of detainees in the isolated centres whose mental

problems have apparently not been diagnosed and treated appropriately

and who have emerged from the centres in a severely impaired state.

The facilities for

health care of children in the detention centres are clearly substandard.

Australia is not fully implementing measures to ensure that children in

detention can "enjoy the highest attainable standard of health"

and access to "facilities for the treatment of illness and rehabilitation

of health". [52]

The case study demonstrates

the lack of formal education and "meaningful activity" at Woomera

and Villawood Detention Centres. At Woomera the children were provided

with a room and one and a half hours of supervised play three times a

week. There does not seem to have been any appropriate substantial primary

and secondary schooling at either centre. Any school or supervised activity

appears to have been in English.

It is of great concern

that children in immigration detention centres do not receive age appropriate

education. Even if formal English classes do take place at the centres

it is not clear whether they are tailored towards children. Vocational

training is non-existent in most centres and there are only the most rudimentary

facilities for any self-directed learning. Books and other education materials

including toys and play equipment are in very short supply in all centres.

Australia is clearly

not providing facilities whereby children are guaranteed "meaningful

activities and programs thereby promoting their health and development".

Children in detention are not being accorded their rights to primary education.

Recommendation

17:

Thorough medical assessments of all detainees should be made on arrival

including specialist psychological assessments.

Recommendation

18:

Detainees need to be informed of their rights to access appropriate

health care, and not be prevented by staff or internal procedures from

exercising these rights.

Recommendation

19:

Counsellors with special skills, such as those employed by the Service

for the Treatment & Rehabilitation of Survivors of Torture & Trauma

(STARTTS) should have regular access to immigration detention centres

to assist with psychological assessments and treatment.

Recommendation

20:

DIMIA take a more active role in monitoring the provision of medical

services for children by Australasian Custodial Management in immigration

detention centres.

Recommendation

21:

DIMIA facilitate the involvement of relevant child welfare and health

agencies in monitoring medical services to children in immigration detention.

Recommendation

22:

DIMIA in conjunction with relevant State agencies provide training

for ACM management on recognised standards for physical and psychological

care for children.

Recommendation

23:

DIMIA in conjunction with State educational authorities ensure that

child asylum seekers are provided with educational opportunities comparable

with other children through release from detention and access to community-based

schooling.

Contact with people

from the community

The case study demonstrates

the demoralising effects that isolation from the outside world has on

child detainees. The eldest daughter wondered why there were no visitors

and felt worried that people did not want to visit them.

National Legal Aid

firmly believes that it is in the interests of child detainees to have

access to visits from independent community organisations. Visitors from

such organisations provide invaluable emotional, psychological and practical

support to all detainees - from stemming the tide of boredom and depression

to assistance with explaining letters, communicating with officers and

detention centre management and referring to outside services including

arranging for clothing, toys and other equipment for children. The role

played by church groups and ethnic organisations in assisting those detained

in the cities, cannot be overstated. Visits will serve to maintain a child

detainee's self esteem.

However in the remote

centres detainees have little contact with the community outside. Voluntary

groups are unlikely to have the resources to travel large distances interstate

and small towns such as Woomera and Curtin do not necessarily have a sufficient

level of population to provide support, even if they were inclined to

do so. Detainees are not allowed any contact with friends and relatives

in Australia until their protection application has been lodged (sometimes

months after arrival) and even then the high cost of travelling severely

limits access. Additionally, inadequate access to telephones and the cost

of telephoning from the centres is a substantial impediment to the detainees

being able simply to speak to their friends and relatives.

Independent scrutiny

of conditions in the centres

Independent monitoring

of the conditions in the remote detention centres as well as investigation

of disturbances and hunger strikes is severely restricted. DIMIA strictly

controls visits from independent organisations and the media. Whilst it

is true that DIMIA must do its best to ensure that the identity of the

detainees is kept confidential and their privacy is protected, this should

not be used as an excuse to prevent independent monitoring of the conditions

of the detention centres. For example the US Committee for Refugees was

refused access on this basis .[53] There is no logical

reason for refusing to permit well-recognised NGOs to inspect the centres

and speak to the detainees. It would seem that DIMIA should welcome such

visits if it is confident that the conditions in the centres are acceptable

because favourable reports would be written.

There are also practical

impediments to access to the most populated centres in Woomera, Curtin

and Port Hedland. According to the USCR:

Some of the

organizations with official access to the detention centers told USCR

that in practice their access was quite limited, particularly to the

remote centers, given the high travel costs. One NGO with a major focus

on detention said its staff had never been to Woomera or Curtin because

"it's just too expensive." In addition, they said, the procedures

and logistics mean that rarely, if ever, could an unannounced visit

occur.

Another NGO representative said the detention centers "have

been assessed by a lot of groups, but never properly. The assessments

are only done at a particular point of time, not over the long term.

[54]

Another factor is

the reluctance to those who do have access (eg legal representatives,

health and other workers ) to speak publicly about their observations

of the detention centres. Confidentiality agreements are included in the

contracts with Australasian Centre Management and migration agents providing

application assistance. The threat of losing a job or a lucrative contract

effectively silences people.

Recommendation

24:

DIMIA establish and publish protocols to facilitate the entry of

recognised NGOs to immigration detention centres

THE EFFECT OF THE TEMPORARY

PROTECTION VISA SYSTEM

It is National Legal

Aid's view that many child asylum seekers are disadvantaged following

their release into the community as the Temporary Protection Visa (TPV)

regime prevents many children and young adults from accessing their human

rights as guaranteed by international law.

The majority of children

in immigration detention centres have arrived in Australia without valid

passports and visas. They have not been "immigration cleared"

and therefore, cannot meet the criteria in the Migration Regulations [55]

to lodge a valid application for a permanent protection visa. When recognised

as refugees, the child asylum seekers are granted a TPV [56]

, permitting residence for 36 months. If they wish to remain in Australia

for a longer period of time, they must lodge another application for a

protection visa before their TPV expires.

As a result of changes

to migration legislation in September 2001 [57] , many

child asylum seekers may never be granted permanent residence in Australia

as they cannot meet the third country transit requirement. The Migration

Regulations now provide that an asylum seeker should not have resided

for more than seven days in a third country without seeking protection

either from the authorities in that country or from the UNHCR [58].

As most child asylum seekers, whether unaccompanied or travelling with

their families, were under the guidance of people smugglers during their

transit period, they would not have been informed of UNHCR or been able

to access other international assistance. UNHCR offices are frequently

located in major urban areas, far from transit areas for asylum seekers.

Therefore, many child

asylum seekers will face an ongoing cycle of applications for temporary

protection visas. Each three years a new application is likely to require

resubmission of claims to be in need of protection and supporting updated

country information. There is no government funding for application assistance

for TPV holders.

Child asylum seekers

will face difficulties in overcoming the psychological affect of detention

once they are released; in addition, the TPV regime creates uncertainty

about their residence in Australia and will mitigate the enjoyment of

their human rights. Key restrictions on young refugees, following release

from detention on TPVs include:

Education

TPV holders are entitled

to attend State primary and secondary schools in New South Wales, however,

they face major financial obstacles in accessing tertiary or trade education.

TPV holders are not

entitled to financial assistance through the Higher Education Contribution

Scheme (HECS) and can only attend tertiary education on the payment of

full university fees. Both the University of Sydney and the University

of Western Sydney have advised that there are no fee waiver or fee reduction

schemes for refugees who hold TPVs. They must apply for entry and indicate

that they have sufficient funds to meet tuition fees and be self-supporting.

A number of universities

in Sydney have quoted the international student fee of $13,000 per year

for a Bachelor Degree in Science, Arts and Information Technology. With

ancillary costs a young TPV holder may be required to indicate that she

has access to $20,000 a year. This is an impossibility for a young person

who has been released from immigration detention, is ill equipped to work

in Australia and may be unable to access overseas financial assistance.

Similarly the Course

Information Centre of New South Wales Technical and Further Education

(TAFE) has indicated that TVP holders are required to pay a minimum of

$8 an hour for TAFE technical courses. A certificate course, such as Introduction

to Computing, requires three subjects of 54 hours each to be completed

as part-time over one semester. The approximate cost is $1,700. Again,

this creates a serious financial hurdle for any young refugee who wishes

to follow a trade or learn computing and office skills.

In imposing these

education reduction on young asylum seekers the Australian government

therefore is in breach of the Refugee Convention Article 22, Chapter IV,

on Public Education which requires:

2. The Contracting

States shall accord to refugees treatment as favourable as possible,

and, in any event, not less favourable than that accorded to aliens

generally in the same circumstances, with respect to education other

than elementary education and, in particular, as regards access to studies,

the recognition of foreign school certificates, diplomas and degrees,

the remission of fees and charges and the award of scholarships."

TPV holders are certainly

in a less favourable position than "aliens" who are in Australia

on student, visitor or business visas.

These educational

limitations are also in breach of Article 26(1) of the Universal Declaration

of Human Rights which provides:

"Technical

and professional education shall be made generally available and higher

education shall be equally accessible to all on the basis of merit".

Clearly, the current

HECS and system in Australia favours citizens and permanent residents.

Meritorious young TPV holders are unable to access tertiary education

because of the severe financial constraints.

Accommodation

The New South Wales

Department of Housing has advised that applicants for public housing must

be Australian citizens or permanent residents.

Temporary residents

are only entitled to short term crisis accommodation. If they are assessed

as being in special circumstances, temporary residents may be eligible

for three months assistance. Therefore, young unaccompanied TPV holders

will be entitled to three months crisis accommodation following their

release from detention. Any long-term assistance would have to be found

through church or charity organisations or through limited rent assistance

from the Department of Housing.

These limits on access

to public housing contravene the Refugee Convention Article 23 which states:

"The contracting

States shall accord to refugees lawfully staying in their territory

the same treatment with respect to public relief and assistance as is

accorded to their nationals".

Certainly, TPV holders

are not in the same position as nationals accessing public accommodation

relief in Australia.

Disability Services

Many disability and

aged services are linked to permanent residence status in Australia. The

New South Wales Department of Aged Care and Disability has informed National

Legal Aid that access to many disability services and aids is restricted

to permanent residents. This includes hearing aids, wheelchairs and occupational

therapy.

Consequently, the

refugee child referred to in the Social Work case study above will face

severe limitations in accessing appropriate disability aids in Australia.

She has been diagnosed as having significant hearing loss, requiring a

hearing aid. Unfortunately her migration status as a TPV holder bars her

from receiving a hearing aid through a Commonwealth government scheme.

Freedom of Movement

TPV holders are not

permitted to leave Australia with any certainty of re-entry rights. Migration

Regulation 866.212(2)( c ) states that a TPV holder cannot leave Australia

if they wish to be granted permanent residence under a Protection Visa.

As mentioned above,

it is possible that many young people will be limited to a cycle of ongoing

temporary protection visas for many years following their acceptance as

refugees in Australia. This means that they will not be able to depart

Australia to meet any family or work commitments.

Persons recognised

as refugees are eligible for a refugee travel document issued under Article

28 of the Refugee Convention. However, the travel document does not of

itself provide the refugee with the right to re-enter Australia.

Further Applications

Article 16(1) of

the Universal Declaration of Human Rights states that all men and women

have a right to "marry and found a family". The Declaration

reinforces that "the family is the natural and fundamental group

unit of society and is entitled to protection by society and the state".

The current TPV regime

in Australia means that there is uncertainty for many young refugees about

their right to found a family and build a life for that family in Australia.

Certainly, the Australian government does not "protect" their

families as TPV holders do not have a right to lodge an application to

remain in Australia as the partner of an Australian citizen or permanent

resident.

A typical example

could be a young refugee who is released from detention on a TPV and because

of the transit provisions, is unable to access a Permanent Residence Class

866 Visa. After 6-9 years on TPV's, he/she may well have met an Australian

citizen or permanent resident and formed a close marriage like relationship.

Unlike other temporary residents in Australia, he/she is not able to apply

on the basis of the relationship and be granted permanent residence. Migration

Regulation 785.611 prescribes that a TPV holder "cannot be granted

a substantive visa other than a Protection Visa".

This is a severe

emotional and practical barrier for young people who are already burdened

with facing the long-term psychological effects of escaping from persecution

in their home country and detention in Australia. It creates a bar to

meaningful relationships in Australia and a certainty of establishing

a family unit.

Conclusion

National Legal Aid

considers that the grant of temporary protection visas to children who

have been found to be refugees is creating a scheme of second class young

people in Australia. These young refugees have limited rights in relation

to further education, employment, public assistance and family relationships.

It is hard enough for such young people to overcome the effects of detention

and they should be granted permanent residence to provide them with a

sense of security and hope for their future in Australia.

The TPV regime acts

in contravention of Article 7 of the Universal Declaration of Human Rights

which states: "All are equal before the law and are entitled without

any discrimination to equal protection of the law. All are entitled to

equal protection against discrimination in violation of this declaration

…".

As highlighted above,

refugee children are discriminated against and are unable to fully exercise

their human rights. The basis of such discrimination is purely their method

of travel to and arrival in Australia.

Recommendation

25 :

The regime

which accords lesser rights to refugees who arrive unlawfully in Australia

should be abolished.

4. The impact

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

their long term development.

Child asylum seekers

are unique in terms of mental health and developmental needs and requirements.

The child asylum seeker is likely to have had experiences outside of the

realm of other children. On top of the attendant fears and insecurities

stemming from displacement and flight, a great many will have had experiences

of war, persecution of family and friends, death, violence, and sexual

assault. Unaccompanied children are particularly vulnerable having also

experienced separation from close family members. Recent research indicates

that up to 40-50% of refugee children have a psychiatric disorder. [59]

Post-traumatic stress

disorder (PTSD) is a term that has arisen out of terms such as "concentration

camp syndrome," "survivor syndrome" and "war neurosis".

[60] Although limited, research that has been undertaken

with refugee children demonstrates that Post Traumatic Stress Disorder

is a significant problem for them. One study found that in Palestinian

children exposed to war traumas nearly all had PTSD of mild or moderate/severe

intensity. [61] Another follow up study of children

exposed to war trauma, indicated that four years after leaving Cambodia,

50% had developed PTSD as well as a mild but longstanding depression.

[62]

Evidence is growing

that PTSD due to past trauma is more likely to be triggered in vulnerable

persons who are further exposed to stress or conditions detrimental to

their health. [63] On the other hand the setting up

of an environment that is safe, predictable and supportive for persons

who have already suffered significant trauma is more conducive to their

recovery and ultimately makes good humanitarian, as well as economic sense.

[64]

Further, certain

contemporary research indicates that it is the secondary consequences

of war relating to family, social and economic life which have more predictive

validity in terms of psychological outcomes.[65] In

one study done with Iraqi asylum seekers in London, a history of torture

had a less significant long-term effect than did depression and poor social

support in the country of asylum . [66]

Similar results are

reported in children. One study found that although being exposed to organized

violence presents a risk factor for children's psychological health and

development, it is current life circumstances in the host or receiving

countries that "are of equal or greater importance than previous

exposure to organized violence". [67] Other studies

indicate refugee children exposed to war may demonstrate both psychological

as well as behavioural sequelae at acute and chronic levels lasting for

many years after exposure and the subsequent migration experience. Further,

that these effects of war continue to have a negative effect on the child's

social functions and school performance. [68]

It is clear therefore

that policy development and planning, addressing the particular needs

of asylum seeker children, is necessary to ensure that Australia does

not add to the damage that child asylum seekers have already suffered.

These studies also indicate that psychological and welfare support may

continue to be needed for many years after the detention experience.

The situation in

Australia is far from ideal. Upon arrival in Australia child asylum seekers

are thrust into a culture and environment that is very different from

their own. Those arriving unlawfully are placed in detention centres,

often in isolated areas and segregated from the rest of the community.

This experience undoubtedly exacerbates the problems those children already

face and, according to the research, is likely to have a major impact

on their mental health and development in the future.

It is well recognised

that the artificial environment created by refugee and detention centres

or camps adversely affects children's emotional development. Detainees

are unable to carry on with normal community living, their freedom of

movement is restricted and the detention environment encourages dependence

rather than autonomy. [69] This is the case in Australia

where in addition, the living conditions in detention are quite poor and

there are usually few quality activities available to children.

Many of the children

in immigration detention are adolescents. Their needs are different to

those of infants and older children. At 15 to 17 years of age they are

undergoing significant emotional, physiological and cognitive changes

and are faced with issues as reproductive health, the acquisition of life

skills, earning a living and vocational training being key areas of focus.

[70]

Unaccompanied children

are the most vulnerable children in detention as they do not have an adult

present who is directly responsible for their care. In a situation where

these children do not have a special advocate their needs will more often

than not go unmet and their rights will frequently be violated. Although

the legal responsibility rests with the Minister for Immigration this

is a formality rather than of any practical assistance to the day to day

experiences of the child.

When outlining standards

recommended to ensure a sensitive and attentive approach in the care and

rehabilitation of children in detention, the UN documents and guidelines

take into account the needs of children in various stages of their development,

and the particular needs of unaccompanied minors.

Recommendation

26:

That DIMIA recognise the need for a coherent, multidisciplinary approach

to the management of refugee children, taking into account the particular

needs of the child in relation to their stage of development, their mental

and physical condition and their family situation.

One of the most insidious

problems arising out the detention centre environment is the effect it

may have on parents, primary care givers and other family members. Many

detainees are already suffering lowered self-esteem, and this may be exacerbated

by the stress and confinement of the detention facilities. They are rendered

dependent on those operating the detention centres, for the fulfilment

of most basic needs. They are unable to enter into normal productive work

and see the efforts of their labours come to fruition. As a result depression,

along with other mental health or stress related problems, can set in.

A loss of control of their lives and a sense of hopelessness, which are

often at the heart of mental health problems, can prevail.

As most of the asylum

seekers arriving in Australia are recognised as refugees, it is fair to

say that they have already been through trauma of one kind or another.

Parents' and carer's own emotional problems which may arise or at the

very least be exacerbated by detention will ultimately affect the quality

of the care they are able to provide for their children. In addition to

experiencing their own reactions to flight and detention, children are

affected by the parents' or carer's loss of functioning. A vicious cycle

is set up whereby the mental health of the adult family members may contribute

to the children's emotional health problems.

Recommendation

27:

That where detention is absolutely necessary asylum seekers and their

children need to be able to carry on relatively normal lives. The detention

environment could be modelled on community life which could be replicated

through the economic activities of adults, workshops involving skills

training and production and home gardening activities. Children should

be provided with an opportunity for normal schooling so that they are

exposed to the outside environment. Allowing access to the outside world

is also a way of improving the situation for children. [71]

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.

Recommendations covering

this issue have been made under previous terms of reference.

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

Once released from

the protected confines of a detention centre, children may experience

difficulties with re-adjustment and adaptation.[72]

Any measures taken by governments concerning child refugees and asylum

seekers in the community should take into account the findings of research

about the psychological needs of children for their long term development,

rehabilitation and reintegration. (see discussion above)

An important factor

influencing the integration of asylum seekers and refugees into the Australian

community is the provision of a community capable of providing a supportive

environment which encourage and supports them in the struggle to build

a new life. It is the Australian government's responsibility to foster

community support for refugees and asylum seekers and the children among

them and understanding of their rights and needs.

Recommendation

28:

That DIMIA and the Commonwealth Attorney-General's Department fund

community education programs about refugees and asylum seekers, the conditions

from which they flee, and Australia's humanitarian obligations under international

law. Such programs should also address refugee children and Australia's

responsibilities.

All other recommendations

covering this issue have been made under previous terms of reference.

Conclusion

Australia remains

in splendid isolation from the remainder of the western world in relation

to the policies it has adopted on mandatory detention for asylum seekers

arriving without proper documentation. [73] National

Legal Aid submits that the regime of mandatory detention for all asylum

seekers including children is in breach of Australia's international obligations.

However recognising

that there is at present no political intention to end this regime National

Legal Aid has focused on recommendations to improve the current provisions

to bring them into line with international human rights standards for

the protection of children. We would urge the government to implement

these immediately.

Asylum seeker children

recognised as refugees will, upon release into the Australian community,

adapt into this society according to the experiences they have had upon

reception into this country. To continue to detain child asylum seekers

in a hostile and unsupportive environment, where their basic rights are

at best compromised, or at worst denied, will have an adverse impact on

the children themselves and indirectly the future of Australia. Such negative

treatment will be reflected in the child's attitudes, values and beliefs

about Australia and may well lead to an angry, negative or potentially

disturbed adult, unable to fully integrate into Australian life. If we

want healthy, well-adjusted young people who can make a real contribution

to Australian society, it is necessary to provide them with a welcome

and humane environment which respects their human rights.


1. UNHCR

Refugee Children, Guidelines on Protection and Care

2. Universal Declaration of Human Rights article 14(1)

3. article 37(a) CRC

4. article 37(c) CRC

5. article 37(d) CRC

6. article 22(1) CRC

7. article 22(2) CRC

8. Note 7.8

9. Rules II.12

10. Guidelines 5

11. C.R.C., Notes, Guidelines, Rules, infra

12. Guidelines 6, see also article 37(c) CRC

13. Rules 4.D.31

14. UNHCR Policies and Procedures paragraph 7.4.

15. s 189(1) of the Migration Act states: " If an

officer knows or reasonably suspects that a person in the migration zone,,,

is an unlawful non-citizen, the officer must detain the person."

16. s198

17. see s72

18. see s72(1)(a)

19. see Schedule 2 Bridging Visa E subclass 050

20. The definition of "eligible non-citizen"

in s 72(1)(b) is in a prescribed class of persons and regulation 2.20

describes a range of people who may come within that class.

21. in these circumstances this means that they have

not completed merits or judicial review

22. regulation 2.20(7)

23. Migration Series Instruction 131

24. unless there is a suspicion that the child is at

risk of neglect or abuse.

25. Under s 6 Immigration (Guardianship of Children)

Act 1946 that the Minister is the guardian of all non citizen children

"to the exclusion of the father and mother and every other guardian

of the child, and shall have, as guardian, the same rights, powers, duties,

obligations and liabilities as a natural guardian of the child would have,

until the child reaches the age of 18 years or leaves Australia permanently

…"

26. This can only be certified by a medical specialist

appointed by the Department of Immigration.

27. If the Minister makes such a determination he must

cause the reasons to be laid before Parliament

28. as they are not permanent residents (see s 7 (2)

Social Security Act)

29. Section 3 of the Health Insurance Act 1973 defines

an "Australian resident" for the purposes of eligibility for

Medicare. Protection visa applicants come within that definition only

if they also have permission to work.

30. Each state will have its own policy about school

fees for children who are not permanent residents. In NSW for example

asylum seekers may apply for an annual exemption of state school fees.

There is no entitlement for child asylum seekers to attend intensive English

courses.

31. Migration Series Instruction 131 paragraph 7.5.2

32. as defined in s474(2)

33. Section 474(1) states that a "privative clause

decision" is "(a)is final and conclusive; and (b) must not be

challenged, appealed against, reviewed, quashed or called in question

in any court; and (c) is not subject to prohibition, mandamus, injunction,

declaration or certiorari in any court on any account."

34. s 338(4)(a) provides that the refusal to grant a

Bridging visa is an MRT reviewable decision only where the non- citizen

is "in detention because of that refusal". Arguably unlawful

arrivals are in detention because they do not fall within the definition

of eligible non- citizen, and they are detained without reference to any

formal decision about refusal of a Bridging visa.

35. A v Australia (Communication No 560/1993: Australia.

30/04/97. CCPR/C/59/D/560/1993

36. s256 Migration Act

37. s193(2)

38. Prior to 1 July 1998, the state legal aid commissions

were funded through the Attorney General's Department to provide advice

and representation in migration and refugee applications. The Legal Aid

Commission of NSW ran a weekly advice session at Villawood Immigration

Detention Centre. There is no publicly funded advice service for people

in immigration detention.

39. s 193(3) Migration Act

40. s193(4) Migration Act

41. paper entitlde "Alternative Detention Model"

available on www.refugeecouncil.org.au/

42. "End Mandatory Detention" report commissioned

by the Independent Education Union 26 February 2002 see pages 10 - 12

43. See Children (Criminal Proceedings) Act 1987 (NSW)

s 33(2).

44. Australian Law Reform Commission, Report No 84, Seen

and heard: priority for children in the legal process, Human Rights and

Equal Opportunity Commission 1997 (Cth) at p. 575.

45. Standing Committee on Social Issues, Report Number

10, Inquiry into Children's Advocacy (September 1996), NSW and Australian

Law Reform Commission, Report No 84, Seen and heard: priority for children

in the legal process, Human Rights and Equal Opportunity Commission 1997

(Cth).

46. Juvenile Justice Centre Operational Procedures Manual,

NSW Department of Juvenile Justice, Sydney 1997.

47. Rules 4.D.31

48. UNHCR Note , 7.8

49. As reported in US Committee for Refugees Issues Paper

"Sea Change; Australia's New Approach to Asylum Seekers" 85

"Immigration detention centers a disgrace, says watchdog," Australian

Associated Press, 10-30-01.

50. Rules II.12

51. C.R.C., Notes, Guidelines, Rules, infra

52. CRC Article 24

53. See USCR report supra

54. p 20

55. 866.212

56. Subclass 785

57. Migration Amendment Act No. 6 (2001)

58. One of the criteria for the grant of a permanent

protection visa, 866.215, provides that a person who spent more than 7

days in a country where they could have sought and obtained 'effective

protection' of that country or of the UNHCR will not be able to be granted

permanent residence in Australia unless the Minister for Immigration is

satisfied that it is in the public interest to waive this requirement.

59. Research from the United States on refugee children

from South East Asia and recent studies from the former Yugoslavia support

this. See Sack WH, Clarke G, Seeley J. Post-traumatic stress disorder

across two generations of Cambodian refugees. J Am Acad Child Adolesc

Psychiatry 1995;34:1160-6; Weine S, Becker D, McGlashan T, Vojvoda D,

Hartman S, Robins J. Adolescent survivors of "ethnic cleansing: observations

on the first year in America. J Am Acad Child Adolesc Psychiatry 1995;34:1153-9;

Savin MD, Sack WH, Clarke GN, Meas N, Richart IM. The Khmer adolescent

project: m. A study of trauma from Thailand's siteII refugee camp. J Am

Acad Child Adolesc Psychiatry 1995;35:384-91 all cited in Hodes, Refugee

children may need a lot of psychiatric help. (Editorial) M. British Medical

Journal, March 14, 1998

60. Summerfield, Derek, War and mental health: a brief

overview, British Medical Journal, July 22, 2000

61. Abdel Aziz Mousa Thabet & Panos Vostanis, Post-traumatic

stress reactions in children of war, found at http://www.gcmhp.net/research/Post_traumatic.html

site visited 18.2.02

62. Kinzie, J.D., Sack, W.H., Angell, R.H., Manson, S.

& Rath, B. (1986). The psychiatric effects of massive trauma on Cambodian

children: I. The children. Journal of the American Academy of Child and

Adolescent Psychiatry, 36, 349-356.

63. Steel Z, Silove D, Bird K, et al. Pathways from war

trauma to posttraumatic stress symptoms amongst Tamil asylum seekers,

refugees and immigrants. J Trauma Stress 1999; 187 200-207

64. Silove D, The psychosocial effects of torture, mass

human rights violations and refugee trauma: Towards an integrated conceptual

framework. J Nerv Ment Disorder 1999; 187:200-207

65. Basoglu M, Paker M, Ozmen E, Tasdemir O, Sahin D.

Factors related to long-term traumatic stress in survivors of torture

in Turkey. JAMA 1994;272:357-63

66. Gorst-Unsworth C, Goldenberg E. Psychological sequelae

of torture and organised violence suffered by refugees from Iraq. Trauma-related

factors compared to social factors in exile. Br. J Psychiatry 1098; 172:90-4

67. Kjerstin Almqvist, Mental health and social adjustment

in young refugee children 31/2 years after their arrival in Sweden, J.

of the American Academy of Child and Adolescent Psychiatry, June, 1999.

68. Cited in Geltman, P.L. War Trauma Experience and

behavioral Screening of Bosnian Refugee Children Resettled in Massachusetts.

J. of Developmental & Behavioral Pediatrics, Issue: August 2000

69. UNHCR Refugee Children Guidelines on Protection and

Care 1994

70. Standing Committee, Progress Report on Refugee Children

and Adolescents, including UNHCR's Strategy for Follow-Up to the Report

on the Impact of Armed Conflict on Children (EC/47/SC/CRP.19) 7th Meeting

http://www.unhcr.ch/cgi-bin/texis/vtx/home/

71. Id UNHCR

72. Id UNHCR

73. Zachary Steel and Derrick M… The mental health

implications of detaining asylum seekers,

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Updated 9 January 2003.