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Submission to the National

Inquiry into Children in Immigration Detention from

Catholic Welfare Australia


Catholic

Welfare Australia

Introduction

Foundational

Principles

The

Reference to Human Rights and the Rights of Children

Children

and Institutional Care

The

Family Unit Is Central To The Development of Children

Additional

Measures and Safeguards to Protect Child Asylum Seekers

Temporary

Protection Visas And Support For Children Upon Their Release From Detention

Conclusion

Catholic

Welfare Australia is a Commission of the Australian Catholic Bishops'

Conference and is the peak body that represents the social welfare apostolate

of the Catholic Church in Australia at a national level. It is a national

federation of Catholic social service organisations that operate in local

communities. Membership of Catholic Welfare Australia is drawn from the

Catholic social welfare organisations operating under the authority of

a diocesan bishop or a religious order and from Catholic lay associations.

Introduction

Concern for the child,

even before birth, from the very first moment of conception and then throughout

the years of infancy and youth, is the primary and fundamental test of

the relationship of one human being to another. (Familiaris consortio

n26)

The above statement,

made by Pope John Paul II in his address to the General Assembly of the

United Nations on 2 October 1979 and repeated in the Apostolic Exhortation:

Familiaris consortio, provides the context and the rationale for

the following submission from Catholic Welfare Australia. During his address

to the United Nations in 1979 Pope John Paul II also emphasised the importance

of human rights as the basis for ensuring a better future for all the

children of the world. [1]

It is the view of

Catholic Welfare Australia that the present practice of placing children

in immigration detention centres fails to demonstrate due regard for their

human dignity. It is also to disregard the due care that must be taken

of those who are more vulnerable or dependent on others for care and protection.

There are a range

of human rights instruments that can be referred to as a means of challenging

the present use of mandatory detention of children but Catholic Welfare

Australia would like to emphasise that the obligation for any society

to care for children is primarily a moral one.

The Member Organisations

of Catholic Welfare Australia have been active in child welfare matters

for over 160 years. Each organisation has always taken a keen professional

interest in establishing models of care that facilitate the healthy growth

and development of children in all aspects of their development. Therefore,

Catholic Welfare Australia welcomes the opportunity to make a submission

to this National Inquiry Into Children in Immigration Detention.

In the light of its

particular commitment to child welfare matters, Catholic Welfare Australia

will focus in this brief submission on the following Terms of Reference:

4. The impact of

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

their long-term development.

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.

Foundational

Principles

Central to the mission

and ethos of Catholic Welfare Australia and its Member Organisations is

a concern to ensure that all members of society are treated in accord

with their human dignity. In this regard, primacy is given to ensuring

that the most vulnerable are afforded the highest degree of protection.

These values are

clearly enunciated in a range of church documents and result in a set

of guiding principles that inform the analysis of public policy. [2]

These can be listed as:

  • the social nature

    of human beings, created in the image of a loving God;

  • the Gospel imperative

    to love thy neighbour, especially those in need;

  • the goal of social

    arrangements is to enhance the human dignity of individuals;

  • each person has

    rights to share in and duties to contribute to the common good;

  • each person must

    have the necessary resources to fulfil their social responsibilities;

  • the state must

    act, within the limits of the principle of subsidiary, to enure that

    all people have these resources i.e. adequate food, clothing, shelter,

    education; and,

  • justice must

    be enacted in a spirit of love to create a society marked by genuine

    solidarity.

In March 2002, the

Australian Catholic Bishops' Conference issued a statement on Refugees

and Asylum Seekers that also underpins the position adopted by Catholic

Welfare Australia in regard to the care that should be provided to children

who are seeking asylum. [3] The Bishops have stated that:

The Church's

pastoral care of asylum seekers convinces us that detention, beyond

the minimum time necessary for carrying out security and health checks,

identity checks, and the lodgement of applications for Protection Visas,

is deeply destructive of human dignity. This is particularly true of

children. After a minimum time these people should be released into

the community and be obliged to contact the immigration authorities

on a regular basis.

As a result of its

long time involvement in child welfare matters, Catholic Welfare Australia

is impelled to speak on behalf of the children presently being held in

immigration detention. The mere fact of their being in detention makes

it necessary for others to speak on their behalf. Those children in detention

centres who are unaccompanied minors have a special need for others to

intervene on their behalf.

Due to their dependent

status, children are often vulnerable and, in times of crisis, are in

need of special protection. This is especially the case for children who

have endured the challenges associated with the dislocation from their

country of origin. This vulnerability is even more evident when children

are subject to the traumas associated with seeking asylum in another country.

Catholic Welfare

Australia is aware of the complex issues associated with any migration

program and wishes to limit its comments on this submission primarily

to certain child welfare matters. Nevertheless, the principles of Catholic

Social Teaching that guide Catholic Welfare Australia also indicate that,

whether the focus is on children or adults, all governments are required

to respond compassionately to those seeking asylum. Any system of immigration

control that is dehumanising and degrading cannot be countenanced if the

dignity of all people is to be upheld.

The

Reference to Human Rights and the Rights of Children

In this brief submission,

Catholic Welfare Australia does not attempt to canvas all of the human

rights issues associated with the international refugee crisis. Nevertheless,

it must be stated at the outset that Catholic Welfare Australia holds

the view that asylum seekers have the right to seek the protection of

another country and that the policy of mandatory detention of asylum seekers

is in fact a violation of that right.

Rights are conferred

on individuals and these rights are not intended to accommodate public

policy. If a right is declared to be a right, especially if a particular

country has assented to uphold that right, then that right should not

be curtailed because it does not fit the nature of public policy at any

given time. If it is accepted that people are owed certain human rights,

because of their humanity, these rights should not be relativised according

to the nature of certain Government policies.

For Governments to

give proportional credence to a right is to misuse the term and amounts

to a lack of national integrity. Therefore, due to its ratification of

the United Nations Convention on the Rights of the Child, it is

the view of Catholic Welfare Australia that this country has a duty to

honour, in practice, its ratification of the Convention on the Rights

of the Child.

This submission is

also based on the premise that a civil society has primarily a moral obligation

to ensure that the necessary requirements to live a dignified life are

upheld. The immigration status of an individual has never been the basis

for determining that these moral obligations should be fulfilled. The

use of rights as 'trumps' is secondary to the moral obligation to care

for all members of society. Likewise, any efforts to minimise the obligations

of any human rights treaty, due to a narrow interpretation of the use

of such treaties domestically, diminishes the status of international

human rights law globally.

The policy of mandatory

detention results in the perception that there is something intrinsically

criminal about seeking asylum. People who arrive in Australia without

a visa are presently being confined in conditions that are punitive. The

location and the physical design of these detention centres reinforces

the notion that seeking asylum is a punishable offence. To pursue such

a policy of deterrence is highly questionable. To keep children incarcerated

in such circumstances is totally unacceptable.

Children

and Institutional Care

Various investigations

into the care of children in this country have indicated that many forms

of institutional care were not conducive to the normal and healthy development

of children. [4] As far back as the 1940s, the Catholic

Welfare Bureau in Sydney was actively committed to reducing the number

of children who were being cared for in institutions.

Although theories

about how best to provide for children in need of care have altered from

time to time, it is now widely considered a matter of 'best practice'

that children should only be placed in institutional settings as a last

resort. This means that where it is not possible for a child's parents

or family to care for the child, a living situation is found which approximates

as normal a family environment as possible.

Children 'in care'

should be able to engage in routine educational and social opportunities

in the hope that the separation from their family of origin will not be

unduly destructive. It is also considered a matter of 'best practice'

that any child who may need to be placed 'in care' should be provided

with all the basic educational and social supports to enable them to develop

to their full potential. Ideally any child placed in substitute care should

be placed in a family environment. [5]

Therefore, the principle

of ensuring that the 'best interests of the child' are held paramount

is presently actualised in Australia's domestic policy by avoiding any

unnecessary separation of children from their parents. Even if it is necessary

to place children 'in care', the present reality in this country is that

no one would countenance the use of detention facilities that approximate

prison conditions.

One of the Member

Organisations of Catholic Welfare Australia has received verbal reports,

as a result of the voluntary work undertaken by its staff, which clearly

indicates that the atmosphere in at least one of the detention centres

is worse than gaol itself. [6] The reasons for this statement

are as follows. When people are sent to prison they usually have some

sense of the length of time they will be incarcerated for. There is no

such certainty in immigration detention. Children and adults held in detention

never know when they will be released or in some cases deported. Even

the most remote gaol in South Australia is at least attached to a large

town (i.e. Port Augusta) whereas the immigration detention centre at Woomera

is totally isolated. Besides the psychological trauma of being isolated

in such a harsh climate, this forced isolation also mitigates against

contact with the wider community.

Prisoners have the

right to legal assistance and access to lawyers is usually well facilitated

in gaols in Australia. Presently, at Woomera, lawyers are being asked

to sign a four page document which outlines the conditions of entry to

the immigration detention centre. The detention centre authorities can

determine what constitutes a breach of the above agreement. In gaol, most

prisoners have the opportunity to work, study and to retain some personal

items but this is not the case for those in immigration detention. In

gaol, some provision is made for a regular system of visitation. There

are many factors associated with the location of the immigration detention

centre and the system operating at Woomera that prevents some people from

visiting family members who may still be in detention.

Catholic Welfare

Australia is most concerned about the fact that children in immigration

detention centres are being housed in the same compound as adults.[7]

Therefore, it is not just the actual detention of children that may harm

their development but it is also their confinement within harsh and potentially

soul-destroying environments that needs to be addressed.

Given the professional

paradigm of limiting 'out of home' care, it is difficult to see how there

could be any justification for keeping children locked up in detention

centres. If a welfare organisation in Australia were to provide 'out of

home care' equivalent to that of the detention centres, then it is highly

probably that such an organisation would have to answer claims that it

failed to provide a proper 'standard of care'.

The negative consequences

of long-term institutional care and, more precisely, institutional care

that resembles prison has been well documented in the social sciences.

What is now emerging from the implementation of a detention/exclusion

policy in Australia is that children who seek asylum or children who are

with their parents who seek asylum are being treated in a dehumanising

fashion. The long-term consequences of mandatory detention for the children

involved cannot be measured empirically at this stage. It is possible

to postulate that even an emotionally resilient child may not have an

easy transition into adulthood as a consequence of their being incarcerated

during their formative years.

The

Family Unit Is Central To The Development Of Children

The Catholic Church

has traditionally seen the rights of children being safeguarded by the

protection offered by the state to the family as the foundational unity

within society. [8]

In this context,

Catholic Welfare Australia is concerned about the situation where a child

separated from a parent due to either party being placed in immigration

detention. It is acknowledged that some women and children are now being

housed outside the detention facility in Woomera. Whilst this has a lot

of merit, in that the children are not 'in detention', it is still less

than ideal in regards to the right of children to have access to both

parents. For the same reason, it is also a source of great concern that

some children who are being held in detention are separated from a parent

who may be residing in the community.

From the perspective

of Catholic Welfare Australia, any immigration policy that works against

the maintenance of the family unit cannot be seen as being in the 'best

interests' of the child.

The collective and

accrued experience of the Member Organisations of Catholic Welfare Australia

is that the emotional, educational, spiritual, and physical well-being

of children is contingent on the sense of security that they feel in their

family. To expose children in detention to such abnormal family dynamics

for long periods of time is to act in contravention of all the current

professional understandings in child development.

Catholic welfare

organisations in Australia have always placed a high priority on supporting

families. Consequently many of the Member Organisations of Catholic Welfare

Australia are involved in Commonwealth Government or State Government

sponsored programs. These programs have been designed to minimise the

breakdown of family life and to maximise the options for those who experience

irreconcilable differences in their relationships.

At every point in

these programs, where there are children involved, the 'best interests

of the child' are to be held paramount. It is totally appropriate that

the family law system in this country should ensure that all those who

provide any service within the system should uphold the 'best interest'

principle.

It is evident to

many of the Member Organisations of Catholic Welfare Australia, who work

in the area of child welfare and family law, that there is something fundamentally

flawed in a policy that results in some children not being offered the

protection of 'the best interest' principle. The perception is that children

in immigration detention are not regarded as needing the same degree of

care. Whereas, any child in detention, or any child who is separated from

a parent because of the policy of mandatory detention, would seem to have

a greater claim on the Government's protection.

Those responsible

for immigration policy need to address this disparity if Australia is

to have a collective sense of integrity. This can only be achieved by

ensuring that all children who are residing in Australia are to be offered

the same standard of care regardless of geographical location. The capacity

of the Convention on the Rights of the Child to effect any real

change in childrens' rights becomes highly tentative if a child's immigration

status becomes the primary condition for an actualisation of his or her

rights.

Additional

Measures and Safeguards to Protect Child Asylum Seekers

Catholic Welfare

Australia would also like to comment more specifically on the sixth Term

of Reference for this Inquiry as copied below:

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.

Since the 1970s,

many Church groups in Australia have provided a high degree of support

for those who arrived seeking protection as refugees. The immigration

policy at that time, especially in regard to the Vietnamese 'boat people',

meant that people seeking asylum were only held in detention for a short

time.

Ideally, all Governments

should be required to assist with the care and support of those seeking

asylum or those who are residing in the community as they await a determination

of their immigration status. In the absence of a more generous response

from any level of Government in Australia, Catholic Welfare Australia

is of the opinion that there is enough infra-structural support within

the Catholic welfare sector to provide some assistance in this regard.

This support would

take the form of broad-based counselling to assist people to determine

their needs and to refer them to the appropriate pastoral care mechanisms

within the wider Catholic or civic community. As in the past, many of

these support services would be provided through the range of Catholic

welfare networks that operate throughout Australia.

Temporary

Protection Visas And Support For Children Upon Their Release From Detention

The issue of Temporary

Protection Visas is not directly listed in the Terms of Reference for

this Inquiry. However, Catholic Welfare Australia believes that a critique

of this type of visa falls within the ambit of the sixth Term of Reference.

Given the 'best practice' paradigm, which has been referred to in this

submission, the use of Temporary Protection Visas must be addressed.

As they are only

initially valid for three years, these Temporary Protection Visas produce

a great deal of insecurity. It is difficult to see how any child could

thrive educationally, socially, and emotionally with the knowledge that

after a relatively short time the grant of protection will be reviewed.

There is the ever-present possibility that the whole family may once again

be on the move. In a child's life, this may mean that schooling and social

networks are always tinged by a sense that that there is no permanency.

It is possible to

construct a scenario where a child who has been through all the traumas

associated with seeking asylum in Australia may just be establishing a

normal routine when the family is forced to move again. The long-term

consequences of such disruptions are not easily determined but it is difficult

to justify in regards to the 'best interest' principle. From the counselling

perspective, the possibility of assisting a child to regain some normal

patterns of development may be decreased by the insecurity associated

with the use of Temporary Protection Visas.

Many refugees who

come to Australia expend a lot of energy in learning English. It may be

particularly disruptive for a child who has begun mastering English language

skills to have this process interrupted.

The mere fact that

a child is aware that there is no real sense of permanency may negatively

impact on his or her total development. Catholic Welfare Australia also

suggests that the issue of the use of Temporary Protection Visas should

be challenged in the context of this National Inquiry Into Children in

Immigration Detention.

Conclusion

Catholic Welfare

Australia is appreciative of the opportunity to make a submission to this

National Inquiry into Children in Detention. As stated at the outset,

the main concern of Catholic Welfare Australia is in regard to the general

question of child welfare. Given this perspective, it is difficult to

find any basis for the maintenance of the mandatory detention of children.

The rights of all

children are being compromised by the placement of some children in immigration

detention. It is acknowledged that there are many complex issues associated

with any form of child welfare. It is beyond question that the placement

of children in immigration detention centres, especially for lengthy periods

of time, cannot be for the benefit of the children concerned. Neither

the children involved nor the wider community is served by the use of

mandatory detention.

The possible negative

consequences of being placed in detention are also compounded by the actual

atmosphere and environment of the detention centre. The recent media reports,

which depict serious unrest in some of the Australian immigration detention

centres, are another reason why children and their families should be

settled in the community as they await a determination of their status.

The mandatory detention

of those who arrive in Australia without valid documents is primarily

a punitive policy. Tragically this policy is exacting a toll on those

who are least able to assert their own rights.

Catholic Welfare

Australia is willing to participate in any discussions or meetings which

could assist in a process of designing a better option for all those involved.


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ENDNOTES

1. Pope

John Paul II, 1981, 'Familiaris consortio' Apostolic Exhortation on The

Role of the Christian Family in the Modern World. n26

2. Australian Catholic Social Welfare Commission, 1996,

Towards a Practical Theology of Welfare: Guiding Principles for Catholic

Social Service Agencies. Vol. 5 No.1 p 6.

3. Australian Catholic Bishops' Conference, 26 March 2002,

Refugees and Asylum Seekers

4. See The Report of the Commission of Inquiry into Abuse

of Children in Queensland Institutions. (The Forde Inquiry)

5. Australian Catholic Social Welfare Commission, 1997,

The Heart Of Our Nation: Towards a National Commitment to Caring for Children

and Young People. Discussion Paper No. 12 p 17. Canberra.

6. As reported by Mr Dale West the Director of Centacare

Adelaide.

7. Ibid.

8. Gudorf, C., 1994, cited in New Dictionary of Catholic

Social Thought. Dwyer, JA., (Ed.) see page 144.

Last

Updated 9 January 2003.