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Submission to National Inquiry

into Children in Immigration Detention from

the Australian Federation

of University Women Inc.


Introduction

Effects

of Australia's detention regime on children

Education

of child asylum seekers: A right protected by Article 28 of the Convention

on the Rights of the Child

Recommendations

Appendices


Introduction

The Australian Federation

of University Women is one of seventy-one national affiliates of the International

Federation of University Women. Founded in 1922, it pursues educational

initiatives to advance of the status and well-being of women and girls

privately and publicly, nationally and internationally, and it attempts

to further peace and international co-operation through the development

of understanding and friendship between women of the world irrespective

of race, nationality, religion or political opinion. Membership is open

to any woman residing in Australia who holds a degree from a recognised

university or college worldwide.

While concerned with

general issues of human rights, AFUW has a particular commitment to supporting

the human rights of women and girl children, and interventions it has

taken to date on immigration and refugee issues have tended to concentrate

on the situation of women and children.

Examples of representations

made by AFUW concerning asylum seekers are attached in Appendix A to demonstrate

that it has for some time been our belief that the policies pursued by

the Australian government in dealing with asylum seekers are inconsistent

with its obligations under various international treaties and instruments

that require it to respect the human rights of those seeking asylum and

refugee status. In particular, AFUW believes that the human rights of

asylum seekers in general are abrogated by the following aspects of the

immigration policies and practices:

  • Mandatory detention,

    justified in part by the wrongful description of asylum seekers as 'illegal'

    and hence meriting treatment as criminals;

  • Detention under

    conditions which by their harshness and isolation constitute a form

    of punishment;

  • Detention under

    off-shore arrangements where supervision of the physical and mental

    health of refugees cannot be guaranteed and where access to legal assistance,

    education, and community support is effectively denied;

  • Detention for

    periods of time well in excess of what might be regarded as reasonable

    for the screening asylum seekers both for a prima facie case for refugee

    status and for their health situation.

AFUW has been strengthened

in these opinions by the eight background papers provided by Human Rights

and Equal Opportunity Commission. We submit that the information in these

papers makes it abundantly clear that Australia's treatment of asylum

seekers in general is in breach of a number of international treaties,

rules and guidelines to which Australia is a signatory.

We would also like

to draw attention to an aspect of Australia's stance on the definition

of a refugee which impacts upon the treatment of children. Australia refuses

to accord refugee status to women who have fled from, or been displaced

from, their home country by domestic violence or sexual violence resulting

from armed conflict. While persecution and threat to life on the grounds

of gender is not specified as one of the grounds of systemic persecution

used to establish refugee status, many would argue that persecution on

the grounds of gender is indeed systemic in certain societies and situations,

and that the demonstrated inability of an applicant to gain protection

within the social context from which she has fled should be grounds for

asylum. Women fleeing from sexual and domestic violence are likely to

be accompanied by their children, who are thus cast into the same limbo

as their mothers.

Effects

of Australia's detention regime on children

With respect to the

focus of the present inquiry, AFUW would submit that the adverse effect

of the breaches of human rights involved in Australia's detention practices

is especially intense in the case of children. The Convention on the Rights

of the Child attempts to ensure that children lead lives in which their

physical, mental and emotional health are protected from violence, abuse

and neglect, and in which their developmental potential can be realised.

Detention of child

refugees and asylum seekers is specified in Article 37 (b) of the Convention

as a matter of last resort. Australia makes it a matter of automatic resort,

even for the most vulnerable of groups of children, unaccompanied minors.

Children are being

detained in an abnormal physical environment; they are surrounded by adults

who are either in effect prison guards or fellow refugees who are often

in states of psychological and emotional distress that make it unlikely

that they can provide the nurturing required for children's social and

mental development. These child detainees are also deprived of normal

social relationships with other children and of adequate facilities for

physical and mental development.

This situation must

have serious consequences, especially when prolonged. And prolonged may

mean something quite different with regard to a child as against an adult.

Twelve months in the life of a child (as reported in the case of an infant

girl born in the Maribyrnong Detention Centre and still there for her

first birthday) constitute a major developmental period which can be irreparably

stunted by the socially and intellectually impoverished environment of

Australia's detention centres. Reports of visits to detention centres

provide evidence that these centres are indeed socially and intellectually

impoverished (See the Report of the Human Rights Commissioner's Visit

to Curtin Detention Centre in July 2000, the Flood Inquiry into Immigration

Detention Procedures of February 2001, and the February 2002 Report of

the Visit of HREOC Officers to the Woomera Detention Centre). And it must

be of concern that evidence in statistics available from reputable sources

show that

  • at 20 November

    2001 by far the greatest number of refugees classed as minors were in

    the most remote and harsh detention centres-117 at Port Hedland and

    293 at Woomera (Dept of Immigration figures);

  • between 2000 and

    2001, the percentage of children detained for periods in excess of 12

    months increased from 2.8% to 14.3% (Flood Report)

We would submit that

it is in essence the mandatory and prolonged nature of detention that

leads to child asylum seekers being deprived of a wide range of the human

rights accorded them by the Convention on the Rights of the Child. That

such deprivation is extended in some cases by the conditions of the 'temporary

protection visa' accorded to those children who do achieve refugee status

is outside the scope of the present inquiry, but we would recommend it

for further investigation by HREOC.

For the remainder

of this submission we wish specifically to address issues of access to,

and quality of, education, this being a core concern of our organisation.

Education

of Child Asylum Seekers: A Right Protected by Article 28 of the Convention

on the Rights of the Child

AFUW submits that

it is only situations of community release (or at least Open Detention

in a suitably resourced location) that can meet the rights of child refugees

to have access to an education that is both of a comparable quality to

that afforded to Australian children and responsive to the special needs

resulting from their situation as refugees (e.g. special language services,

recognition of cultural identity, counselling for behavioural problems

resulting from traumatic experiences and social dislocation) . Such a

system of community release is achieved by a number of other countries,

and we do not believe that its management is beyond the capacity of the

Australian government and the Australian education system.

For legislative and

regulatory proposals as to how these systems could work we recommend the

Alternative Detention Model document prepared by the Refugee Council of

Australia and available on their website at http://www.refugeecouncil.org.au/alternative1.htm

The Australian government,

through immigration standards developed by DIMA and the Commonwealth Ombudsman,

would appear to give assent in a general way to the propriety of providing

education to detained child asylum seekers However the dispersal of responsibility

for educational provision between State and local government authorities

as well as the contracted bodies administering detention centres makes

it very easy for decision-making to be shunted from one body to another.

It also makes it very difficult for interested parties to obtain accurate,

adequate and systematic information as to what educational programs are

in fact provided on a continuing basis in any or all of the detention

centres.

Since the detention

programs are the policy of the Federal government, we submit that it is

the responsibility of the Federal government to issue clear and transparent

guidelines requiring that systematic programs of education for minors

be instituted across all detention centres. The programs should be monitored

on a regular and publicly reported basis by an independent committee of

educational experts, including members qualified in the areas of the special

needs of children who are emotionally disturbed or disabled physically

or mentally. Monitoring should not take place on an ad hoc basis as part

of general and occasional reports such as those cited above.

Such a program would

undoubtedly be expensive. Its expense would be much reduced if refugee

children were made part of the normal school population, where there are

existing mechanisms for providing and monitoring educational programs

and the support services needed to ensure that all children can access

and take advantage of them. This is a practical argument for releasing

these children into the general community. A further practical argument

springs from the fact that a majority of asylum seekers do eventually

gain refugee status, even if only under a temporary protection visa. These

children will therefore become resident in communities where education

is not only a right, but compulsory. The sooner steps are taken to prepare

them for transition into an Australian school, the smoother the transition

will be for both children and schools. Schools might however with advantage

adopt a program to educate Australian children on issues relating to refugees,

for example the program for Years Six and Seven devised by Australian

Against Racism and available on their website http://www.australiansagainstracism.org.au

AFUW knows of

no report that suggests child asylum seekers have access, either in the

detention centres or in local schools, to adequate pre-school, primary,

secondary, higher and vocational education, as outlined in the HREOC Background

Paper 6 (Education).

Such reports and

anecdotal evidence as it does have tend to be to the contrary. The Report

of the Human Rights Commissioner's visit to Curtin Detention Centre in

July 2000, for example, describes the primary school education then offered

at Curtin as basic but adequate, provided time in detention is short

(italics supplied). But time in detention is not necessarily short -according

to the figures provided by the Refugee Council of Australia as at June

2001 not one of Australia's six detention centres released a significant

proportion of detainees within 6 months.

The Report cited

above also comments on the unsatisfactoriness of the programs provided

for older children. The impression that this is a significant area of

failure is strengthened by the reported case of a family of three children

detained with their mother at Maribyrnong. The youngest of these was allowed

to attend the local school, although under escort of a Centre guard, a

condition hardly conducive to normal social relationships. The two children

of secondary school age were, however, refused local schooling on the

grounds that their attendance would be disruptive.

Certainly it would

be disruptive to the schools of communities such as Port Hedland and Woomera

to have to cope with number of child detainees involved at those localities

(respectively 117 and 293 as at 20 November 2001 according to DIMA figures).

This is not an argument for denying these children access to community

education. It is an argument for changing the location of the children.

AFUW submits that

Australia is failing to meet the requirement of the Convention to provide

for the educational rights of child asylum seekers. It believes that this

failure, along with the failure to meet other rights protected under the

Convention, is an inevitable consequence of the policy of mandatory detention

and of policy implementation that involves the imposition of punitive

conditions, often involving isolation and undue prolongation of the period

required for processing refugee claims.

It therefore makes

the following recommendations

Recommendations

1. That Australia

honour its obligations under the Convention on the Rights of the Child

to use detention of child asylum seekers arriving in Australia without

authorisation as a method of last resort, not as mandatory;

2. That this policy

be extended to family groups arriving with children;

3. That the norm

for all asylum seekers should be release, as soon as possible, into local

communities, or at the very least a system of Open Detention such as proposed

in the Alternative Detention Model published by the Refugee Council of

Australia;

4. That any period

of that detention necessary for health screening and the establishment

of refugee status not exceed three months;

5. That detention

centres not be maintained in remote localities such as Woomera and Port

Hedland,

6. Failing this recommendation,

that unaccompanied minors and family groups with children not be placed

in such detention centres;

7. That Australia

honour its obligation under Article 28 of the Convention on the Rights

of the Child to provide child asylum seekers with an education which is

both comparable in quality with that provided to Australian children and

cognisant of the special needs of refugee children for support services

such as special language skilling and counselling for emotional or behavioural

problems resulting from traumatic experiences in their past history;

8. That wherever

possible the education of child asylum seekers take place within local

schools which have been adequately resourced to meet any special needs.

Such resourcing may need to include special programs to educate Australian

schoolchildren in refugee issues and cultural diversity.

9. That where children

are present in detention centres and unable to access local schools educational

programs be available to them which are comparable in curriculum design

and in delivery to those enjoyed by Australian children

10. That the delivery

of educational programs for children in detention be monitored regularly

by a panel of suitably qualified education experts and that the reports

of such panels be published in a form accessible to the general public.

Signed:

(Dr) Jennifer Strauss

President, Australian Federation of University Women Inc.

14 March 2002

Appendices

1.

Letter of 17 December, 2000, to the Hon. Philip Ruddock, Minister for

Immigration

2. Letter

of 23 February 2001 to the Minister for Immigration and others

Appendix One:

Documents illustrating the position of the Australian Federation of University

Women on the treatment of asylum seekers.

1.

Letter of 17 December, 2000, to the Hon. Philip Ruddock, Minister for

Immigration

Dear Mr Ruddock,

I write to express

the mounting concern of my organisation about the conditions imposed upon

asylum seekers held under mandatory detention at Woomera, Port Hedland

Curtin and Maribyrnong. This concern is, I assure you, not simply a reaction

to the more alarming allegations of abuses of human rights that have appeared

recently in the media. There has in fact been for some time a growing

a body of very reasonable and carefully expressed press material that

addresses the fundamental human rights issue that these people, many of

them fleeing from appallingly oppressive regimes, are effectively imprisoned

in Australia. Imprisoned moreover for prolonged periods in remote places

under harsh physical and psychological conditions which, I believe, Australians

would not tolerate for our own citizens who have actually been convicted

by due process of criminal offences.

As an example of

such reasoned and principled objections to the current treatment of asylum

seekers, I would draw your attention to the enclosed article by Professor

Tay, President of the Human Rights and Equal Opportunity Commission. I

would also point out that public concern at reports of abuses in these

detention centres is exacerbated by the general refusal to open them to

public scrutiny. This does not only extend to resisting visits by external

UN committees. There seems to be an unreasonable delay in publishing the

report of the Australian Commission's visits in 2000 to Woomera and Curtin,

and today in Melbourne we had the unedifying spectacle of the Maribyrnong

centre refusing to allow the press to witness Amnesty International giving

Christmas presents to the children imprisoned there.

According to the

report of this incident there are some two hundred children currently

in detention at the various centres-and of course a number of children

now in the Australian community who had to spend an unconscionable time

in detention before their parents were accepted as meeting the very stringent

criteria for being accepted as a refugee. This is a situation so appalling

that I find it hard to believe: I would be grateful therefore if you could

provide me with accurate figures of the number of children currently held

in all detention centres.

It is particularly

the situation of women and children that calls for urgent remedial action.

The Australian Federation of University Women has as its core purpose

the advancement of the welfare of women and girl children through education,

but we have had, from our foundation, a commitment to working to ensure

an environment for women and children which is free of both political

oppression and domestic violence. Apart from the apparent denial of educational

and health rights to children under the current conditions of detention,

there is an abundance of material from the experience of refugee and detention

(concentration?) camps around the world that demonstrates that women and

children in such circumstances are highly vulnerable to emotional and

sexual abuse.

It has been reported

that you are considering taking steps to provide group homes where women

and children could be housed. We urge you most strongly to proceed immediately

with this proposal. It would be at least a temporary step on the way to

a more just and humane system for all asylum seekers,

Yours Sincerely

(Dr) Jennifer Strauss,

President, Australian Federation of University Women

2.

Letter of 23 February 2001 to the Minister for Immigration and others

Dear Mr Ruddock,

At its Annual General

Meeting of 16 February, the Australian Federation of University Women

passed (nem con.) the following motion:

That the Australian

Federation of University Women Inc. requests the Minister for Immigration,

Multicultural Affairs and Aboriginal Affairs, the Hon. Philip Ruddock,

to bring an immediate end to the incarceration of women and children under

harsh conditions in remote and isolated localities as a result of the

current government policy of mandatory detention of unauthorised refugees

and asylum seekers.

AFUW has an obligation,

both through its own policies and through those of its international body,

the International Federation of University Women, to endeavour to protect

the welfare of all women and children, and in particular to strive for

the fulfilment of the various United Nations Conventions on the treatment

of women and children who are victims of war, civil unrest, oppressive

regimes or domestic violence. As Australian citizens, we are saddened

to have to conclude that Australia's treatment of unauthorised asylum

seekers breaches such conventions, both in the very fact of automatic

detention, as well as in its nature and its often lengthy duration. A

year is a very long time in the life of a child. And what is a child to

make of the country that guards them so closely that they are not even

permitted to see the faces or hear the voices of its citizens who come

to bring them Christmas gifts, as was the case at the Maribyrnong detention

centre last Christmas?

We do not oppose

Australia's right to screen those seeking residence or temporary refuge

in this country. We had hoped, however, that your recent visit to Sweden

would convince you of the feasibility as well as the desirability of systems

whereby unauthorised immigrants were released into appropriate communal

settings-or at the very least, in the cases of women and children, the

most vulnerable of these often severely traumatised groups, were separately

accommodated in normal housing rather than camp conditions. We would point

to the recent example of the French government in releasing into the general

community (during processing of residence applications) the shipwrecked

Kurdish victims of the unquestionably deplorable traffic in those desperate

to escape from oppressive regimes.

We have also noted

a recent media report that a very large percentage of Iraki and Afghan

unauthorised entrants into Australia do in fact ultimately gain refugee

status. If this is the case, it seems that their preceding detention may

be of dubious cost benefit and must surely not be the ideal preparation

for their becoming well-adjusted residents, whether temporary or permanent,

in our community.

Immigration has always

been a divisive issue in Australian history, but our members believe that

we speak for a very solid body of public opinion which would support a

more generous, compassionate and ultimately more intelligently self-interested

policy than that currently pursued. We urge you to listen to that voice,

Yours

sincerely,

(Dr) Jennifer Strauss

President, Australian Federation of University Women

cc:

The Prime Minister, the Hon. John Howard

The Leader of the Opposition, the Hon. Kim Beazley

The Minister Assisting the Prime Minister on Women's Affairs, The Hon.

Amanda Vanstone

Ms Murielle Joye, Secretary General, International Federation of University

Women, Geneva

3. Resolution

on Refuges at the 28th Conference of the International Federation of University

Women held in Ottawa, August 2001.

Delegates from over

70 countries voted unanimously in support of a motion proposed by the

Australian Federation. It resolved to re-affirm earlier resolutions calling

for the protection of the human rights of refugee women and girls; and

further to encourage all national associations (a) to urge their governments

to find considerate and humanitarian solutions to the problems of refugees

and asylum seekers arriving in their countries; and to monitor the situation

both nationally and locally and render appropriate assistance where possible;

and (b) to ensure that their own members are appropriately informed or

educated on the issues of refugees and asylum seekers.

4. Motion passed

unanimously by Council of the Australian Federation of University Women

at its Meeting of 27 October, 2001

That Australia should

process unauthorised asylum seekers within Australia;

That the process

should be as expeditious as possible to ensure that the validity of refugee

status can be established and refugees settled with the Australian community;

That the Government

should ensure that education programs are available to all those held

in detention pending finalisation of their claim. Such programs should

be available to adults and children;

That educational

programs should continue to be available once refugees have been released

into the community, in particular that specific funding should be provided

to meet the costs of education for children in refugee families;

That the provisions

of the temporary protection visa should be revised so that refugees are

not deprived of the rights to education, access to health care and the

freedom of movement available to Australian citizens and their children."

Last

Updated 9 January 2003.