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Submission to National Inquiry

into Children in Immigration Detention from

Public Health Association

of Australia


The current mandatory

detention policy of the Commonwealth of Australia breaches the fundamental

principle of the rights of the child which is that children should be

able to develop to their full potential. The policy breaches every article

of the Convention on the Rights of the Child. The policy violates the

right to health as established by international law.

The policy creates

a significant risk of harm to refugee children who are incarcerated in

detention centres, at all stages in their development to adulthood.

This submission will

focus on the risk to the health of refugee children caused by the current

refugee detention policy regime. The submission will refer principally

to international human rights instruments in relation to their relevant

health rights aspects. This emphasis is consistent with the health rights

orientation and expertise of the Public Health Association of Australia.

Throughout the submission

the term "refugee" is used to apply to all those who claim refugee

status under the Convention. The definition of a refugee is that which

is incorporated into the Migration Act 1958 (Cth) by s 36(2) which

provides for the granting of protection visas to applicants who are non-citizens

to whom "Australia has protection obligations under the Refugees

Convention as amended by the Refugees Protocol"

Such a person is

defined under Article 1A(2) of the Convention as anyone who:

"owing to

well-founded fear of being persecuted for reasons, of race, religion,

nationality, membership of a particular social group or political opinion,

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

such fear, is unwilling to avail himself of the protection of that country;

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

habitual residence, is unable or owing to such fear, is unwilling to return

to it."

In this submission

the term refugee is applied presumptively for putative refugees until

the status of applicants has been finally determined. It is submitted

that those children rejected as Convention refugees should have their

health rights and human rights respected and the obligations in regard

to those rights still apply to the Australian Government whilst those

children are subject to the jurisdiction of the Commonwealth of Australia.



It is submitted by

the Public Health Association of Australia that:

(i) Whilst there

is a paucity [see section 7] of Australian research into refugee children's

morbidity and psychological health in detention, international health

research clearly establishes that:

(ii) Refugee children

are ipso facto traumatised through the experience of oppressive

danger and the fear of danger that has caused them to seek refuge as individuals,

as members of the oppressed family or as members of the oppressed social,

political, ethnic or gender groups.

(iii) The recovery

of children from their refugee experience will vary according to the individual

child's response to their experience and to the environment into which

the child is placed.

Here the refugee

experience is defined as comprising three distinct phases of oppression,

flight and sanctuary.

(iv) As a signatory

to the Convention relating to the Status of Refugees (1951) and

its 1967 Protocol (the Refugee Convention) Australia is bound to

offer sanctuary to refugees.

Sanctuary is relevantly

defined in the Collins Australian English Dictionary as:

"2. a place

of refuge or protection 3. refuge; immunity from punishment."

(v) Furthermore as

a signatory to the Universal Declaration of Human Rights (1948)

, Australia is bound to treat refugees and those denied refugee status

consistent with the human rights principles embodied in that binding human

rights instrument.

(vi) The kind of

sanctuary offered to refugee children should be determined by the human

rights principle of the right to health, as established by Article 12(1)

and (2) of the International Convention on Economic, Social and Cultural

Rights (1966) and Article 24 of the Convention of the Rights of

the Child (1989) (the health rights principles) and the bio-ethical

principles of beneficence and non-malfeasance.

(vii) In order to

ensure refugee children's rights, policies which meet the needs of children

must be formulated and implemented. The process of formulation of such

health rights policies must be consistent with established public health

principles of policy development. These principles require that through

medical scientific methodology, population health risk indicators be established

which are the basis of health policy formulation and implementation of

consequent public health strategies.

(viii) A refugee

under the Convention is presumptively defined. In this submission the

definition of refugee is applied to all those who are claiming refugee

status and either have not had their status confirmed or those who have

had their status confirmed.

(ix) In addition

it is submitted that those who have had their application for refugee

status recognition rejected are still required to be treated by the Commonwealth

of Australia in a manner that is consistent with human rights conventions

and instruments .

(x) The scientific

health research concerning child and adolescent trauma and post traumatic

psychological conditions establishes a foreseeable risk that indefinite

or prolonged detention of children will be harmful to their health in

their immediate situation and their future.

(xi) The current

regime of imprisonment and the inevitable consequent social isolation

and deprivation fails to rehabilitate refugee children. This regime is

positively counter to the principles and obligations of international

human rights conventions, public health and humane social policy.

(xii) The current

refugee policy regime of the Australian Government fails to comply with

the human rights health principles, good public health policy and causes

risk of harm to refugee children.

(xiii) A refugee

policy based on the health needs and in the best interests of children,

consistent with the Commonwealth of Australia's human rights obligations

should be developed and implemented as a matter or urgency.

It is recommended

that an appropriate public health rights based policy for refugee children

would achieved by:

1. The immediate

end to the detention of refugee children and their families. The process

of determining refugee status should be consistent with health and child

rights conventions and instruments to which Australia is a contracting


2. The establishment

and implementation of an Early Childhood Care and Development Program

for refugee children. The aim of the program would be the identification

and diagnosis of early childhood care and development issues resulting

from malnutrition and trauma experiences, with the implementation of

appropriate Early Childhood Care and Development strategies combining

appropriate infant stimulation, health care, nutrition, education and

cultural support environments.

The management

of the Program would be the responsibility of the Commonwealth Department

of Health for funding, program development, monitoring and review. The

program's implementation should proceed through the existing Refugee

Health infrastructure.

3. The establishment

and implementation of appropriate Care and Development for adolescent

refugee children, stressing social reintegration and education assistance.

Diagnosis, treatment and monitoring health care strategies for adolescents

recovering from the refugee experience would be implemented as appropriately


The management of

the program would be the responsibility of the Commonwealth Department

of Health and implementation through the existing Refugee Health infrastructure.





The Public Health

Association of Australia recognises that:

1. According to the

1951 Convention Relating to the Status of Refugees ,a refugee is

a person who "owing to a well-founded fear of being persecuted for

reasons of race, religion, nationality, membership in a particular social

group, or political opinion, is outside the country of his nationality,

and is unable to or, owing to such fear, is unwilling to avail himself

of the protection of that country."

2. Under the United

Nations (UN) 1951 Geneva Convention on Refugees, an agreement signed and

ratified by Australia, we have a legal obligation to provide asylum to

genuine refugees.

3. Australia's policy

of mandatory detention for asylum seekers directly contravenes our commitment

to the Universal Declaration of Human Rights (UDHR), which states that

"[e]veryone has the right to seek and to enjoy in other countries

asylum from persecution" (Article 14, UDHR).

4. Seeking asylum

in a country other than one's own is not illegal, nor is it 'queue jumping',

but rather a fundamental human right of any person experiencing persecution

in their country of origin .

5. The overwhelming

majority of asylum seekers are genuine refugees, fleeing persecution for

reasons of race, religion, nationality, membership in a particular social

group, or political opinion, which is perpetrated or condoned by the State

or beyond State control. Experiences include torture, rape, imprisonment,

threats of death, murder, and disappearance of family members .

6. Most asylum seekers

are severely traumatised by the experiences they have lived through prior

to their arrival in Australia, often chronic and repeated with cumulative

psychological effects. Such experiences are documented torture and rape,

witnessing the death of family members, separation from family and community,

extreme material hardship and food scarcity, exploitation by border officials

and camp guards, and appalling conditions during their passage to Australia


7. Trauma experienced

by asylum seekers is exacerbated by being placed in detention centres

and the uncertainty about their future, resulting in reports of para-suicide,

completed suicide and self-mutilation.

8. Australia's treatment

of asylum seekers violates international human rights standards. The International

Covenant on Civil and Political Rights (ICCPR) and the Convention on the

Rights of the Child (CRC) prohibit arbitrary detention particularly of

children .

9. The Refugee Council

of Australia reported that as of 1 June 2001, there were 2,857 adults

and 520 children, of whom 39 were unaccompanied minors, in Detention Centres

Detention Centres are inappropriate places for children, however, family

units may not want to be separated. Detainees may be held in poor conditions

and for long periods of time, often up to eighteen months.

10. The detention

of children is a serious concern. It violates the Convention on the Rights

of the Child, signed and ratified by Australia, and poses long-term risks

to children's psychological and social development and well being, in

particular their ability to successfully resettle in an Australian community


11. The mandatory

detention of asylum seekers is an excessive response that arbitrarily

denies people of certain human rights; prolongs and exacerbates the trauma

they have experienced before and during their flight; denies them the

possibility and security of normal family life; impairs their successful

resettlement; and severely affects their mental health and well being.

12. The trauma and

uncertainty of detention upon arrival is exacerbated by the denial of

Permanent Residency visas to asylum seeking refugees who can obtain Temporary

Protection visas for three years only, with limited access to resettlement

services and inability to sponsor vulnerable family members. This places

extreme pressure on those men who have left wives and children in situations

of danger, in either situations of ongoing conflict in home countries

or in unsafe refugee camps.

13. Australia has

one of the lowest intakes of refugees of the developed world , yet it

is the only one to mandate detention of all individuals entering the country

without valid visas irrespective of whether or not they are seeking asylum


The Public Health

Association of Australia believes that:

Australia should

fulfil its international legal obligations to protect the human rights

of asylum seekers by fully implementing all Convention and Treaty obligations

that Australia is signatory to.

The Public Health

Association of Australia therefore recommends that:

1. The Federal

Government should abolish the policy of mandatory detention for asylum


2. A Royal Commission

should undertake an investigation into the conditions in current detention

centres and the treatment of asylum seekers within these centres.

3. The Federal

Government should establish an intersectoral collaborative working group

that seeks to develop a model which conforms with its international

human rights obligations.

The Public Health

Association of Australia recommends, in the interim, that:

1. At a minimum,

families with children, and without criminal records should be immediately

removed from detention centres, to enable them to regain some family

routine, to benefit from community support, to decrease their vulnerability

to detention centre guards, and to provide the children with more freedom,

access to education and better socialisation.

2. The determination

of refugee status shall be expedited in order to minimise time in detention


3. The Federal

Government should require from Australasian Correctional Management

(ACM), standard reporting in a transparent manner, to meet minimum quality

of care guidelines, especially health care.

4. The Australasian

Correctional Management (ACM) should immediately upgrade the resources

and facilities available to asylum seekers in detention, particularly

addressing the treatment of asylum seekers by ACM guards through training

programs. Of particular concern is the use of tear gas and water canons

to quell unrest amongst detainees.

5. The Federal

Government should abolish the Temporary Protection Visa category, and

provide permanent protection and asylum status to refugees seeking asylum

in Australia, allowing access to human services available the community.



Public Health Association

is a non-government organisation committed to public health, the aims

and objectives of which are constituted by the principles of the World

Health Organisation Ottawa Charter. 1 Guided by these

principles the Public Health Association of Australia policy is that effective

public health is based on five essential strategies:

  • consideration

    of public policy including the implications of education, transport,

    finance, housing, immigration and refugee policy for health policy.

  • monitoring both

    social and physical aspects of the health environment including identifying

    qualitative and quantitative indicators of health in lifestyle, community

    organisation, the natural and built environments.

  • educating communities

    in health advocacy and action including resourcing and teaching community

    members to evaluate state of the art information technology, utilising

    communications media and community development strategies in public

    health issues.

  • developing individual

    skills in health advocacy including training the trainers, community

    consultation, conflict resolution and other skills needed in public

    health management.

  • reorienting all

    community services towards the strategic perspective of preventative

    strategies involving the development of skills in strategic planning,

    organisational development and program evaluation. 2



The relevant human

rights and humanitarian treaties and instruments establishing health rights

for refugee children are:

World Health Organisation

Constitution (1948)

"The enjoyment of the highest attainable standard of health is one

of the fundamental rights of every human being without distinction of

race, religion, political belief, economic or social condition."


Universal Declaration

of Human Rights (1948)

Article 25(1)

"Everyone has the right to a standard of living adequate for the

health and well- being of himself and his family, including food, clothing,

housing and medical care and necessary social services, and the right

to security in the event of unemployment, sickness, disability, widowhood,

old age or other lack of livelihood in circumstances beyond his control."4


Covenant on Economic, Social and Cultural Rights (1996)

Article 12

(1) The States Parties to the present Covenant recognise the right

of everyone to the enjoyment of the highest attainable standard of physical

and mental health.

(2) The steps

to be taken by the States Parties to the present Covenant to achieve the

full realisation of this right shall include those necessary for:

(a) The provision

for the reduction of the still-birth rate and of infant mortality and

for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational

and other diseases;

(d) The creation of the conditions which would assure to all medical

service and medical attention in the event of sickness. 5

The Declaration of

Alma-Ata (Primary Health Care. Report of the International Conference

on Primary Health Care , Alma-Ata, USSR, 6-12 September 1978, WHO, 1978,

p. 2)

Article I

The Conference strongly reaffirms that health, which is a stage of

complete physical, mental and social well-being, and not merely the absence

of disease and infirmity, is a fundamental human right and that the attainment

of the highest possible level of health is a most important world-wide

social goal whose realisation requires the action of many other social

and economic sectors in addition to the health sector.


Article V

Governments have a responsibility for the health of their people which

can be fulfilled only by the provision of adequate health and social measures.

A main social target of governments, international organisations and the

whole world community in the coming decades should be the attainment by

all peoples of the world by the year 2000 of a level of health that will

permit them to lead a socially and economically productive life. Primary

health care is the key to attaining this target as part of development

in the spirit of social justice.



The Conference, recognising the special needs of those who are

least able, for geographical, political, social or financial reasons,

to take the initiative in seeking health care, and expressing great concern

for those who are most vulnerable or at greatest risk.


as part of the total coverage of populations through primary health care,

high priority be given to the special needs of women, children, working

populations at high risk, and the under-privileged segments of society,

and that the necessary activities be maintained, reaching out into all

homes and working places to identify systematically those at highest risk,

to provide continuing care to them, and to eliminate factors contributing

to ill health.

Convention on the Rights of the Child (1990)

Article 24

1. States Parties recognise 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:

(a) To diminish

infant and child mortality;

(b) To ensure the provision of necessary medical assistance and health

care to all children with the emphasis on the development of primary

health care;

(c) To combat disease and malnutrition, including within the framework

of primary health care, through inter alia , the application of readily

available technology and through the provision of adequate nutritious

foods and clean drinking -water, taking into consideration the dangers

and risks of environmental pollution;

(d) To ensure appropriate pre-natal and post-natal health care for mothers;

(e) To ensure that all segments of society, in particular parents and

children , are informed, have access to education and are supported

in the use of basic knowledge of child health and nutrition, the advantages

of breast-feeding, hygiene and environmental sanitation and the prevention

of accidents;

(f) To develop preventative health care, guidance for parents and family

planning education and services.

3. States Parties

shall take all effective and appropriate measures with a view to abolishing

traditional practices prejudicial to the health of children.

4. States Parties

undertake to promote and encourage international cooperation with a view

to achieving progressively the full realisation of the right recognised

in this article. In this regard, particular account should be taken of

the needs of developing countries.

Article 39

States Parties all appropriate measures to promote physical and psychological

recovery and social reintegration of a child victim of; any form of human

neglect, exploitation or abuse; torture or any other form of cruel, inhuman,

or degrading treatment or punishment; or armed conflict s. Such recovery

and reintegration shall take place in an environment which fosters the

health, self-respect and dignity of the child."

















"The problem

of justice is closely related to the problem of a healthy order of society.

It is concerned with the healthfulness of the parts as well as the sound

condition of the whole. These two aspects of justice are, of course, inseparable.

If the needs and aspirations of the individuals comprising society are

reasonably taken care of by the system of justice, and if reciprocal concern

for the health of the social body exists among the members of society,

there is a good chance that a harmonious and flourishing society will

be the result." 6

The right to health

has slowly evolved since 1946 through the key international human rights

instruments identified in the preceding section. 7 The

Vice Chairperson of the United Nation's CESCR has stated that "although

there was an abundant bibliography on health, very little of it related

to health as a human right." 8

It has been argued

that the right to health is rendered merely declaratory because a right

must be enforceable and a guarantee for health is legally unenforceable.9

However, the right

to health incorporates two enforceable rights, that of the right to health

care and to a physical, economic and social environment which are the

determinants of individual and public health. This interpretation of the

right to health is consistent with the definition of health implicit in

the international human rights instruments referred to above, Rights based

public health is predicated on the thesis that;

  • Health which

    is defined as a "state of moral, mental and physical well-being"

    is a human right.

  • The main determinants

    of health are economic, political, social and cultural.

  • The achievement

    of universal health is primarily dependent on the attainment of social

    justice and equity.

Applying this thesis,

rights based public health analyses ill health and disease as being produced

primarily by social structures of inequality and deprivation.

Rights based public

health has developed within the context of the emergence of international

human rights law. Public health particularly prior to the late nineteenth

century was a utilitarian-based response to plague and disease. Epidemic

control measures such as quarantine which derives from the Italian for

'forty days', which was the length of time deemed necessary to isolate

the sick, were the first use of public health strategy to protect borders

and populations. The strategy was based on the belief that illness resided

in places which had to be kept separate, whilst those from the unsafe

infectious places had to be kept out by a protective state. 10

This contagion model of public health relied upon the stigmatisation and

exclusion of threat groups. An example is the stigmatisation of medieval

lepers who were deprived of property and all other rights. 11

During the fourteenth century Jews were stigmatised as the carriers of

plague, which led to pogroms and mass killings.12

Contrary to this

exclusionary and discriminatory early form of public health strategy,

rights based public health sees the achievement of universal health as

a common good right dependent on social justice. Here health is defined

broadly as "a state of moral, mental and physical well being."

13 In 1977 the Thirteenth World Health Assembly determined

that the main health objective of the World Health Organisation (WHO)

in future decades should be that of ensuring that the people of the world

attain a level of health that would permit them to lead "socially

and economically productive lives." This Health For All statement

significantly recognises that the main determinants of health are economic

and social and not to be narrowly confined to a health sector. 14

This perspective that sees the critical determinates of health and disease

as economic, political, social and cultural and not spatially determined

provides an inclusive and non-discriminatory basis for public health policy.

15 The struggle for social justice and the overcoming

of exploitation are the strategic directions of rights-based public health.16

Such a strategy is consistent with a common goods conception of rights.17

The right to health is a fundamental group right. The importance of such

rights is not merely that of the interest of the right holder, but is

justified on the basis of the common good which confers a stringency on

the right beyond that of a justification of individual interests. The

right to health rather than being relegated to that of a "second

generation" right is a pre-eminent human right which justifies a

precedence to the individual and common interests to which it relates

when they clash with other interests. This provides a justificatory basis

for the health rights of refugees to take precedence over the interests

supporting a detention refugee policy. Public health, like unpolluted

air is in the interest of everyone in society. The Commonwealth may argue

that its detention refugee policy is in the public interest, but even

if that were to be true, it would not be a common good since unlike rights

based health it is not in everyone's interest.

Health is then one

of a class of rights that are fundamental in that everyone, including

refugee children have an interest which is non-competitive (their enjoyment

of health is not at the expense of anyone else), is similar in nature

for everyone (all enjoy it in the same way) and it serves the same interest

in every person's case (though not everyone enjoys the benefit to the

same degree). "Equity in health implies that ideally everyone

should have a fair opportunity to attain their full health potential and,

more pragmatically, that no one should be disadvantaged from achieving

this potential, if it can be avoided. Equity is therefore concerned with

creating equal opportunities for health and bringing health differentials

down to the lowest level possible." 18

The last twenty years

has seen the emergence of a rights based participatory public health movement

characterised as the "new public health."19

The two well-springs of rights based public health are the growing political

and legal influence of international human rights instruments and the

emergence of class and gender based social movements that have raised

health issues such as with occupational health and safety, the women's

movement, and the indigenous people's movement.

The right to a healthy

life and environment is the ethical and legal basis which establishes

the political and social imperative of public health. This ethic is grounded

in the intrinsic value of life. Public health is also consequentialist

20 in the objective to achieve a healthy and just society

for all people. The human right of health is applied and implemented through

social change in a society of contradiction, exploitation and inequality.21

It is in the international

health rights instruments that the legal basis of health rights is established.

Human rights health law establishes multi-layered obligations and justiciable

entitlements. Obligations on States are to respect, the duty to protect

and the duty to fulfil. 22

The duty to respect

requires primarily that the Commonwealth as a duty holder refrain from

direct violations of rights. This means that;


possible, to respect the freedom and the resources of those at risk, in

order for them to find solutions to their own problem wherever they can."


Whilst the duty to

respect has been traditionally associated with individual negative based

rights, the State may not positively infringe common goods rights such

as creating the conditions for ill-health or negligently allowing disease

or damage to the health of individuals or groups of people. The secondary

obligation to protect requires duty holder States to prevent the right

to health from being infringed by third parties. The role of the State

in the protection of common goods rights such as health is "similar

to the protection of civil or political rights" 24

International human

rights law provides precedents for a state obligation to protect individuals

from infringing third parties.

"An illegal

act which violates human rights and which is initially not directly imputable

to a State (for example, because it is the act of a private person. .

.) can lead to international responsibility of the State . . . because

of the lack of due diligence to prevent the violation or to respond to

it as required by the Convention." 25

The Declaration on

the Elimination of Violence Against Women places obligations on states

in relation to

"violence against women, whether those acts are perpetrated by

the State or by private persons." 26

The European Court

of Human Rights held that states have an obligation to protect individuals

from the acts of third parties and that these obligations

" may involve the adoption of measures designed to secure the

respect for private life even in the sphere of the relations of individuals

between themselves." 27

This decision is

consistent with the approach of the UN Human Rights Committee which stated


"Positive measures of protection are. . . required not only against

the acts of the State party itself, . . . but also against the acts of

other persons within the State party." 28

The obligation to

fulfil requires duty holders to provide resources, such as

"to provide food, housing, health, and education (or a monetary

entitlement sufficient to secure access thereto) to those in society without

the means to provide for themselves."29

The multi-layered

obligations on state duty holders to human rights, provide a rigorous

standard for the Commonwealth in regard to the health rights of refugee


Convention Relating

to the Status of Refugees

The Convention defines

a refugee as someone with a "well-founded fear of being persecuted

for reasons of race, religion, nationality, membership in a particular

social group, or political opinion." There are three elements

to the refugee definition. A person must be:

1. In fear of being


2. The fear must be a realistic response and cannot be imaginary.

2. The persecution must be on specified prohibited grounds.


has been defined as implying a failure to protect against violence or

ill-treatment by Lord Hope in Horvath v Secretary of State for the Home

Department [2001] 1 AC 489 at 497-498

". . . the

word 'persecution' implies a failure by the state to make protection available

against the ill-treatment or violence which the person suffers at the

hands of his persecutors."

Central to the definition

of a refugee is the experience of fear and psychological trauma. The Macquarie

Dictionary defines fear as "1. a painful feeling of impending

danger, evil, trouble, etc; the feeling or condition of being afraid.

2 a specific instance of such a feeling. 3. anxiety or solicitude."

In regard to children,

such experiences and feelings are clearly within the generic definition

of child psychological maltreatment developed by the International Conference

on Psychological Abuse;


maltreatment of children and youth consists of acts of omission and commission

which are judged on the basis of a combination of community standards

and professional expertise to be psychologically damaging . Such acts

are committed by individuals, singly or collectively, who by their characteristics

(e.g age, status, knowledge, organisational form) are in a position of

deferential power that renders a child vulnerable. Such acts damage immediately

or ultimately the behavioural, cognitive, affective, or physical functioning

of the child. Examples of psychological maltreatment include acts of rejecting,

terrorising, isolating, exploiting, mis-socializing." (Proceedings

Summary, 1983)30

Child refugees are

by definition subjected to and suffering from psychological maltreatment

and trauma. This is destructive to human development because it frustrates

and/or distorts the fulfillment of basic psychological needs. 31

There are three phases

of the refugee experience:

1. Psychological

trauma, which is very often associated with experiences of violence,

rape and persecution

2. Flight

3. Sanctuary, which in Australia for many refugees is manadatory incarceration.

The psychological trauma experienced by child refugees in these phases

of the refugee experience requires the Commonwealth of Australia as

duty-holder under the health rights international instruments and the

Convention of the Rights of the Child and to implement policies which

are consistent with those instruments and the Convention.

Convention of

the Rights of the Child

The Convention as

with health rights elevates the traditional categories of children's need

to the category of rights, codifying them 32 and establishing

the obligation of society to ensure that these rights are respected, protected

and fulfilled.33

The Convention rests

on four basic principles:

1. The best interests

of the child

2. Non-discrimination

3. Participation

4. Survival and development.34

Specifically the

right to health is established and incorporated by the Convention in all

the following Articles:

  • of all children

    to enjoy the rights of the Convention without discrimination of any

    kind (article 2)

  • to survival and

    development (article 6)

  • that the best

    interests of the child will be a primary consideration in all actions

    concerning children (article 3(1))

  • for all children

    to participate meaning fully in all matters affecting them (article


  • to family life

    (articles 5, 9. 18)

  • the highest attainable

    standard of health (article 24)

  • practise their

    culture, language and religion (article 30)

  • freedom from

    torture, ill-treatment and abuse (article 37)

  • protection from

    all forms of physical or mental violence, sexual abuse and exploitation

    (articles 19 and 34)

  • freedom of expression,

    thought and conscience (articles 19 and 34)

  • protection as

    a refugee child (article 22)

  • recovery from

    the effects of neglect, exploitation, abuse, torture or ill- treatment,

    or armed conflicts (article 39)

  • not to be deprived

    of liberty unlawfully or arbitrarily, with detention only in conformity

    with the law, for the shortest appropriate period and as a last resort.

    (article 37)

  • rest and play

    (article 31)

  • privacy (article


  • a standard of

    living adequate for physical, mental, spiritual, moral and social development

    (article 27)

  • if detained to

    be treated with humanity and respect for their inherent dignity and

    in a manner which takes into account their age.





Refugee children

suffer in many ways as a consequence of wars, internal conflict, repression

and persecution. These experiences affect the health of children in many

ways, using a broad definition of health which includes not only physical

well being but also mental and social well being. The direct effects of

war, repression and persecution on children include death, injury, disability,

physical and sexual abuse, detention, loss of families through death and

separation, displacement from homes and countries, and by definition psychological

trauma. The indirect effects on children include poverty, poor living

conditions, poor nutrition, poor health care, poor education, disruption

of normal life, loss of family life and recreation and safety, discrimination

and exploitation.35

Overwhelmingly the

research documents the harmful effects of the refugee experience on children

and the imperative of policies and health based programs of rehabilitation,

recovery and social reintegration. These public health strategies and

programs are consistent with the norms and principles of the Convention

of the Rights of the Child, in particular Article 39.

"States Parties

shall take all appropriate measures to promote physical and psychological

recovery and social reintegration of a child victim of: any form of neglect,

exploitation, abuse, torture or any other form 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."

Article 39, Convention on the Rights of the Child.

Considerable international

health research has documented the extent and effects of the psychosocial

trauma and destruction that child refugees have been subjected 36


Traumatic experiences,

such as the refugee experience can influence the child's emotional, cognitive

and moral development, because the child's self image, expectations and

understanding of the environment is influenced which can have profound

developmental consequences.37 Since the early 1990's,

epidemiological studies in culturally diverse environments have documented

high level of trauma in refugee groups.38

Psychic trauma is

defined as " . . . the mental result of one sudden, external blow,

or series of blows, rendering the young person temporarily helpless and

breaking past ordinary coping and defensive operations. Trauma begins

with events outside the child, through which a number of internal, lasting

changes is initiated. Terr divides the effects of trauma into two main

types: the effect of single events (type 1 trauma) and the effects of

prolonged or repetitive extreme external exposures (type II trauma). While

a number of reactions are the same disregarding the type of event experienced,

the effects of long lasting or repetitive exposures follow a less predictable

pattern than the effects of a single event, and can result in enduring

personality changes.39

Research overwhelmingly

indicates that experience of trauma is predictor of chronic psychosocial

and mental health problems. 40

Reactions after traumatic

experiences have been known for some time under various designations -

shell-shock, traumatic shock, traumatic neurosis, survivor syndrome 41

However, it was only

in 1980 that the diagnosis of adults for Post-Traumatic Stress Disorder

(PTSD) was first included in the American diagnostic and statistical manual

for mental disorders (DSM). Four criteria establish this diagnosis:

1. exposure to

an extreme event outside the range of normal human experience,

2. repeated re-experience of the event or part of it,

3. persistent avoidance of stimuli associated with the traumatic experience

and numbing of the general responsiveness,

4. persistent symptoms of increased arousal.42

It was not until

1987 that the diagnosis of PTSD for children was formalised and recognised.43

There are two main

reasons why it is more difficult to diagnose children with post-traumatic

stress disorders and reactions. The early research had used general screening

instruments which were unsuitable to assess child stress reactions. 44

Information was primarily gathered from parents and teachers,45

who are known to underestimate children's reactions, partly due to their

own overwhelming stress reactions 46 and partly because

it is difficult, for parents also notice re-experience reactions and emotional

numbing in children, 47 which are two of the four essential

elements in a PSTD diagnosis.

The symptoms of post-traumatic

stress disorder in children are often different from adults, dependent

on the age and development of the child. In children the experience of

fear, helplessness and terror can be expressed in disorganised or agitated

behaviour. Specific for trauma in children are compulsory repeated behaviours

or monotonous play, in which themes or aspects of the behaviour are expressed,

nightmares without recognisable content, reduced interest in activities

the child used to engage in with pleasure, trauma specific fear that is

expressed at sensitive times before falling asleep, in the dark or in

the bathroom, reduced confidence in self and others, a sense of severely

limited future, and for small children, the loss of already mastered developmental

competencies such as cleanliness or language. 48

The psychological

reactions of children subjected to severe trauma are not uniform, but

are related to the context in which the experiences take place. From the

existing research, it is appropriate to conclude that children who have

been exposed to war, violence and persecution are all influenced by such

experiences, but their reactions are dependent on their physical and psychological

health, the presence or absence of parent/s, family and friends, their

material conditions, their earlier experiences, the types of violent experiences

to which they have been exposed, and the losses these experiences have


War, torture and

other organised violence which characterises so much of the refugee experience

have a profound effect on children. Prolonged and repeated exposures to

trauma can have a profound influence on children's personality development

through its impact on trust, values and morality. Torture and violence

also have specific, well documented psychological effects that interfere

with parenting making the children of torture survivors particularly vulnerable

and at risk.50

It has been estimated

that during the past decade some 10 million children were deeply affected

and traumatised by armed conflicts and some 12 million left homeless and

dispossessed by violence.51

The international

community, through the international law in place for this purpose, has

taken on a responsibility to "respect and ensure", inter alia

, the recovery of children who are victims of armed conflicts consistent

with Article 2 of the Convention of the Rights of the Child:

"State Parties shall respect and ensure the rights set forth in

the present Convention to each child within their jurisdiction. . . "

Immediately after

the 1990 World Summit for Children, the then UNICEF Director stated that

"the leaders of the world have agreed to be guided by the principle

of a "first call for children" - a principle that the essential

needs of children shall be given high priority in the allocation of resources,

in bad times as well as good times, at national and international as well

as family levels."52

The 1924 Declaration

of Geneva contained five principles, one of which was that children should

be the first to receive assistance in emergencies "[the] child should

be the first to receive relief in times of distress." It is from

the Declaration that the "children first" principle developed

53 .

Violence has many

negative effects on the psychological development of children and adolescents.

Since World War II, the effects on children exposed to war and violence

has attracted growing scientific attention. 54

Early research tended

to see child reactions to violence as mediated completely through parental

experience and reactions and not to have long lasting effects on otherwise

healthy children.55

Contemporary research

has focused on more general aspects of the impacts on child development.

Several studies indicated that child experiences of war and organised

violence can have profound developmental consequences.56

The effect of war,

violence and oppression on children has three distinct origins:

(i) the child's

own direct experiences, such as assault, beatings, and witnessing violence;

(ii) the loss and separation from family and important family members;

(iii) the impact of traumatic experiences on parental responsiveness

and role function 57.

Epidemiological studies

indicate that:

Children are not mere passive receptors of experience, but actively process

and integrate experiences into an existing constructed social context.58

Children react differently to trauma according to their age.59

Pre-school children are most sensitive to traumatic events because of

limited cognitive resources and the consequent difficulties of understanding

and emotional processing of experiences. They are more dependent on the

reactions of their parents because of feelings of helplessness when confronted

with danger and need the most help from their surrounding emotional and

physical environment.60

Post traumatic reactions

include clinging to parents, violently protesting when left alone, afraid

of going to sleep, anxious towards strangers and nightmares 61


School age children

have more cognitive, emotional and behavioural coping resources towards

traumatic experiences. However psychosomatic problems, including poor

concentration, a generalised attitude of arousal and fear of the future

are linked to trauma experience.62

Adolescents because

of their understanding of the consequences traumatic event are somewhat

more vulnerable than younger children. They experience a premature and

forced entry into adulthood. This can result in self destructive diversionary

behaviour, pessimistic expectations and continued expectation of new trauma


The childhood experience

of trauma and its sequelae are intertwined with parental and family functioning

64 .

This is most obvious

with parental loss and family destruction or disintegration as a consequence

of the traumatic event. However, with children in families who experience

trauma, post-traumatic disturbances in parental responsiveness and impaired

parental role function are major causes of secondary stress.65

The acute emotional

reactions of children following acute war related experiences can be summarised

within the concept of Post Traumatic Stress Disorder. Social support,

access to support from family or family substitutes, open and adequate

communication with the family and the possibility of participation in

play and structured activities can help children cope with such experiences.

In addition post traumatic disturbances of parental responsiveness and

role function renders children particularly vulnerable. Torture has specific,

well documented psychological effects that interfere with parenting, therefore

children of torture survivors are particularly at risk.

Detention and

Pre and Post -Natal Health and Development

Research based evidence

from the disciplines of physiology, education, and psychology overwhelmingly

demonstrate that the early life years are the most critical.66

The human brain's structure is biologically determined and develops in

the prenatal stage of life. The connections in the brain that are significant

to the foundation of later development are the consequence of the infant's

interaction with social environments.

This critical period

concept in brain development has been scientifically widely accepted for

some time. The critical period occurs prenatally or very soon after birth.

At this early development stage many changes are occurring in the brain

at their most rapid rates. Effective endogenous or exogenous stimulation

occurring during the critical period has long term consequences on subsequent

development. Critical period of brain development involves a complex of

change from rapid cell mass formation, various enzyme systems and electric

brain activity rapidly approach adult characteristics and when external

stimuli are most effective in causing long lasting behavioral changes

persisting into adulthood.67

An example of a single

event catastrophic effect is illustrated in the case of malnutrition and

brain development. During the first months of life the brain is the organ

that grows most rapidly. In the first months of life the brain grows at

about 2 mg per minute and by 14 months is approximately eighty per cent

of adult size. In malnourished infants the shape of electroencephalographic

peaks, as well as the frequency and amplitude of the waves occurs.68

The most rapid brain

development occurs in the first two life years, establishing the basis

of future intellectual, psychological, physical and immunological development.69

Environments that are stimulating of the child's senses coupled with good

nutrition contribute to the healthy development of brain organisation

and structure. Complex motor and perceptual experiences in infancy can

enhance later life learning ability and even compensate for early nutritional

and trauma disadvantage.

Based on this research,

principles that facilitate early childhood health through appropriate

care have been developed and are widely accepted and utilised in public

health child strategies.

These principles

of early childhood health facilitation and care are:

  • Development commencement

    is prenatal and learning begins at birth.

  • Factors determining

    the development of children are interdependent and multi-dimensional.

  • The needs of children

    are various and complex.

  • Development is

    multi-determined and dependent on nutrition and biomedical status, social

    and cultural contexts.

  • Development is

    cumulative and not necessarily progressive.

  • Development and

    learning is a participatory process for children.

  • Development and

    learning are interactive and social processes for children.70

Detention and

the Principles of Early Childhood Care and Development

These public health

child development principles clearly are incompatible with the detention

of refugee children. In order to comply with health right instruments

and sound public health principles of child development, child refugee

programs should implement the principles and objectives of Early Childhood

Care and Development. This holistic approach to child health recognises

that physical, intellectual, emotional, spiritual development as well

as socialisation, and the attainment of cultural values are interrelated

factors in the health and life of the young child.71

Such an approach is consistent with refugee child policies that should

be based on children's health and developmental needs and capacities.

Therefore it is strongly recommended that the Commonwealth of Australia

should have a child refugee health policy and program based on the principles

of early childhood care and development which would be appropriately resourced

and applied to the needs of traumatised children with the objective of

facilitating their recovery and social reintegration.

In order to implement

such a public health program the current policy of detention of children

and their families for prolonged periods would obviously need to be reviewed

and comprehensively changed to a policy of refugee recovery and social


The current prenatal

and early childhood detention environment for refugee children is inimical

to the healthy development of infants and very young children.72

The establishment

of alternative child and health rights based policies is imperative. Specifically,

given the refugee experience of trauma the implementation of an Early

Childhood Care and Development Program for refugee children is urgently

required. A similarly targeted strategic public health program appropriate

for older and adolescent children is similarly required. The aim of the

programs would be the identification and diagnosis of childhood and adolescent

care and development issues arising from malnutrition and trauma experiences.

The strategies implemented would be to facilitate appropriate health,

education and cultural support environments. These programs would be consistent

with the Commonwealth of Australia's obligations under Ch IV of the Refugees

Convention as amended by the Refugees Protocol, as a Contracting State

to the Convention relating to the Status of Refugees and the Convention

on the Rights of the Child.

The protection obligations

imposed by the Convention upon the Commonwealth as a Contracting State

relate to the civil rights of refugees.73 In regard

to refugee children clearly the current detention policy is a breach of

those obligations and the childrens rights. The socio-economic health

standards enjoyed by most Australians and the feasibility of alternative

public health rights based policy and programs for the benefit of refugee

children makes this breach by the Australian Government particularly culpable

and inexcusable.








Overwhelmingly international

research indicates that refugee children suffer from the effects of the

refugee experience with significant numbers experiencing Post Traumatic

Stress Disorder. The dysfunctional environment of detention centres is

a totally inappropriate social environment for such children. The health

rights obligations of the Commonwealth and good public health policy requires

the release from detention of refugees and their families as a matter

of urgency to prevent the exacerbation of physical and psychological harms

and to assist in the required rehabilitation and restoration of health

to refugee children and their families.

The recovery of refugee

children to whom Australia as a Contracting State to human rights Conventions

has enforceable obligations can be reasonably achieved within the context

of specifically designed and targeted public health programs. Only this

kind of public health policy would comply with the Commonwealth's international

health rights obligations. It should not be a requirement on the advocates

of a health rights public health policy for refugee children to establish

the need for such a policy. Rather, it should be incumbent on the Commonwealth

to demonstrate how policies and the treatment of refugee children complies

with its human rights obligations as a Contracting State. Clearly, the

policy of detention of refugee children creates foreseeable harm and is

contrary to accepted public health principles and is contrary to the large

body of international research that documents the effects of the traumatic

experience of refugee children.

The Public Health

Association of Australia submits that the detention of refugee children

causes harm to children, many of whom are ill and desperately in need

of care. It is also submitted that the detention of refugee children breaches

all principles of good public health policy. Refugee children should be

assisted in recovery through sound public health policies without the

moral, economic and social cost that is being imposed on the Australian

community by the current policy regime.


1 Ottawa

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2 V A Brown and G Preston Choice and Change Ethics, Politics

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4 UDHR adopted and proclaimed by General Assembly Resolution

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5 ICESCR adopted by General Assembly Resolution 2200 A

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6 E Bodenheimer,Treatise on Justice , 1967, New York,

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7 P Hunt, "Reclaiming Social Rights, International

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8 E/C12/1993/SR41, para 4.

9 V Leary, "Implications of a Right to Health"

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10 D. Armstrong "Public Health spaces and the fabrication

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13 World Health Organisation Chronicle 1947

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23 A Eide, "Obstacles and Goals to be Pursued"

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24 bid p 37

25 Velasquez, Rodriguez Case, Inter-Am Ct HR, OAS/serL/V/III

19 doc 13, 172, reprinted in 28 ILM, 326

26 Article 4(c). Adopted by the General Assembly in December

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27 Xand Y v The Netherlands (1985) Series A, vol 91,

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28 General Comment 23, fiftieth session, 1994, para 6(1).

29 C Scott and P Macklem, "Constitutional Ropes

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30 S Hart, M Gelardo and M Brassard, Psychological Maltreatment,

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31 M Brassard, R Germain and S Hart (eds) The psychological

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32 R Reid "Children's Rights: Radical Remedies for

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33 H Shue, Basic Rights: Subsistence, Affluence and US

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34 UNICEF, Implementation Handbook , p.37, The Rights

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35 J Schaller, "Protection of Children and their

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36 M Baro. (1989) "Political Violence and War as

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37 J Bowlby, Separation , Penguin Books, London J Bowlby,

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38 R Mollica, K Donelar et al "The effect of trauma

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39 Terr , "Childhood Traumas: An Outline and Overview,

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40 D Silove. "The psychosocial effects of torture,

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41 Trimble, "Post-traumatic Stress Disorder: History

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43 American Psychiatric Association (1987) Diagnostic

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44 E Montgomery, 'Children Exposed to War, Torture and

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45 Pynoos, Stienberg , Wraith, "A Developmental

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48 Pynoos, Nader, March, 1991, pp. 339-48.

49 Montgomery, p. 198

50 Montgomery p. 200.

51 Facts and Figures 1996 , UNICEF, New York, May 1996

52 Message from the UNICEF Executive Director , James

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53 T Hannarberg, "Making the Children's Convention

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57 Montgomery "Children Exposed to War, Torture

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61 Montgomery p 193

62 ibid p 193

63 Eth and Pynoos (1985) "Developmental Perspective

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64 Allodi (1989), 'The Children of Victims of Political

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; Kinzie, Sack, Angell, Manson and Rath (1986), "The Psychiatric

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65 Allodi (1989), 'The Children of Victims of Political

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66 Evans 'Eight Is Too Late: Investment In Early Childhood

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68 GK Nelson and RF Dean "The Electroencephalogram

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69 F Mustard, "Early Childhood Development, Nueroscience

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71 R Meyers, "The Twelve Who Survive: Strengthening

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72 Report of Senate Standing Foreign Affairs Sub-Committee

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73 Minister for Immigration and Multicultral Affairs

v Khawar [2002] HCA 14 (11 April 2002) http:// www. austlii. edu. au/au/cases

at 29 per McHugh and Gummow


Updated 9 January 2003.