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Submission to the National
Inquiry into Children in Immigration Detention from
the Department of Justice,
10 May 2002
Dr Sev Ozdowski OAM
Human Rights Commissioner
Human Rights & Equal Opportunity Commission
GPO Box 5218
New South Wales
Dear Dr Ozdowski
RE: National Inquiry into
Children in Immigration Detention.
Thank you for your
recent correspondence and invitation to make a submission to the above
As the Corrections
system in Victoria does not provide services for children in immigration
detention, it would appear that this Office has a limited to capacity
to contribute. However, outside the boundaries of a formal submission
I can provide you with information regarding recent developments in the
management of immigration detainees within the prison system, and our
approach to the management of children residing with a parent in custody.
Immigration Detainees in the
Victorian Prison System
Whilst at various
points in time, the Victorian prison system has accommodated immigration
detainees at the request of the Commonwealth Government, a number of recent
events over the last twelve months have served to question the basis on
which such individuals are placed within the prison system and applied
further restrictions to their entry into, and retention in, state prison
provisions permit the Department of Immigration and Multicultural and
Indigenous Affairs (DIMIA) to seek to transfer an immigration detainee
from a Commonwealth Immigration Detention Centre to a state prison, on
the general grounds of security and/or management concerns, the acceptance
of such transfers is at the discretion of the State. Such discretion also
includes considering requests from DIMIA for detainees who have been serving
a criminal sentence to remain in prison custody, upon the expiry of their
sentence, pending deportation.
As moved by the
Victorian Minister for Corrections, members of the 2001 Corrective Services
Ministers' Conference, which was representative of all states and territories,
endorsed a resolution to the effect that immigration detainees will no
longer be kept in the state prison system, where they are not serving
a sentence or awaiting judgement on criminal charges, unless exceptional
circumstances can be demonstrated.
It is certainly my
view that detainees, who are not subject to sentence or remanded to face
criminal proceedings, should not be accommodated within the state prison
system without all other avenues having been exhausted. As such, the application
of the 'exceptional circumstances' test is engaged by this Office in a
most rigorous manner.
The narrowing of
exceptional circumstances will also amount to a key provision within the
Memorandum of Understanding that is currently being developed between
my Office and DIMIA. However, at this point in time the provisions of
the Memorandum of Understanding remain in a preliminary draft form, and
are yet to be considered by the Minister for Corrections, or the Federal
Minister for Immigration, Multicultural and Indigenous Affairs.
In relation to the
services provided within the prison system for immigration detainees,
upon entry into the prison system, detainees are managed in accordance
with the operational policies and procedures engaged for all other prisoners
within the system.
Children in Prison program
Within the Victorian
Prison system, the Women's Prison region comprises of two facilities:
the Dame Phyllis Frost Centre in Deer Park and HM Prison Tarrengower in
Maldon. Both prisons operate a Children in Prison program, through
which women prisoners can apply to have their children reside with them
in custody. The program is only available for children up to school age
and involves a thorough assessment process undertaken by both local Prison
Management and my Office. The Children in Prison program operates with
the aims of maintaining and encouraging parent-child relationships whilst
a parent is in prison, particularly where infants and young children are
involved. Since it conception in 1988, the Children in Prison program
has resulted in over 150 children residing in custody, although there
are limits as to how many children can remain within the system at any
The program is partly
governed by legislation, in the form of the Corrections Act 1986
and the Corrections Regulations 1998, but also through operational
policy and procedures, including a Working Agreement with the Department
of Human Services. The DHS Working Agreement is currently in the process
of being updated with a number of new inclusions.
Whilst there are
no restrictions on which prisoners can apply to have their children accommodate
with them, the assessment process is extremely rigorous. Applications
can only be approved by the Commissioner, following a recommendation from
prison management and consultation with the Department of Human Services.
The guiding principle in assessing applications is determining whether
participation in the program would be serving the best interest of the
child, which is then balanced with the need to ensure the security and
good order of prison operations. Essentially, advice as to what constitutes
the best interest of a particular child is required from the Department
of Human Services. The Commissioner is then also required to consider
factors, such as the applicant's recent behaviour in prison, reason for
the request, program participation, nature of offending and whether the
prison can provide suitable accommodation. All applicants are required
to authorise the exchange of information between prison services and the
Department of Human Services to ensure the merits of application can be
appropriately considered and to allow for the ongoing communication of
issues associated with the best interest of the child.
All applicants, including
those which are successful are required to nominate alternative care givers
to ensure that the child can be accommodated outside of the prison should
consent be withdrawn or circumstances necessitate. Once approved, the
Commissioner maintains the discretion to withdraw the child from the program
at any time.
Local Prison Management
determines the best accommodation for the prisoner and child to reside
within the prison environment. Local prison guidelines have been developed
which stipulate that the prisoner parent and child should not be placed
in an area where the child is considered at be at risk with other prisoners,
or in an area where the child is in danger of hurting itself or being
hurt by equipment or the malfunctioning of equipment. Further, the prisoner
parent and child should be placed in accommodation which would provide
some separation from other prisoners. Where the accommodation unit is
shared with other prisoners, the other prisoner residents should be notified
of the pending placement of the child and agree to it.
responsibility to feed, cloth and care for the child, with baby formula
and other nutritional requirements being able to be purchased through
prisoner stores. Whist the prison provides some property such a cots,
prams, high chairs, the prisoner parent may seek permission to purchase
items such as furniture, linen, clothes and toys or have them sent to
the prison. All property must adhere to Australian standards and it is
the mother's responsibility to ensure compliance with accepted conditions
With regard to medical
and health care matters, as soon as possible after arrival at the prison,
the child is seen and assessed by a General Practitioner to compile a
complete medical history of the child and conduct a medical examination.
The child's ongoing medical needs will then be attended to by external
maternal and child health sisters and the prison based General Practitioner.
The maternal and child health nurse is responsible for ensuring that the
nutritional and development needs of the child are being met. Subsequent
to the child's arrival at the prison, the nurse will also establish a
list of basic foods and hygiene requirements and determine the frequency
of consultations according to the child's age.
To promote the health
and development of the child, provisions will be made to enable the child
to move between the prison and outside environment to maintain other family
relationships, and to participate in relevant and appropriate programs.
The alternative caregiver, as nominated by the prisoner parent, often
plays an important role in facilitating these arrangements. It is an expectation
that all efforts are to be made to ensure that the child is not denied
access to community programs and contacts that are consistent with the
child's age and development. Where appropriate, the prisoner parent may
accompany the child to activities outside of the prison where it would
normally be expected that a parent attend.
Whilst in residing
in custody, the parent maintains full responsibility for the care and
management of the child. In turn, the prison service must maintain a duty
of care in respect to the health and safety of any child, which may ultimate
resort to the removal of a child if there are concerns regarding their
health and safety. The decision to remove a child is made on the basis
of the best interests of the child, but will generally only occur if the
prisoner, for whatever reason, is not able to care for the child. The
following situations could warrant the removal of a child from custody
- The child is being
neglected to the extent that it has been deemed by a DHS child protective
services worker to be in "need of care and protection.";
- The prisoner's
behavior necessitates placement in security or observation cells;
- The family court
or Children's Court has ruled that alternative custody arrangements
be made; or
- The child becomes
chronically ill, and on advice from medical practitioner appropriate
medical treatment could not be maintained in prison.
last month I endorsed a proposal to conduct an internal review of the
current operations of the Children in Prison program. The review will
seek to examine national and international trends in practice and guide
future policy development in relation to the management of women and children
residing in custody. The Review will also contain an examination of independent
'mother and child units', such as those currently in operation in the
United Kingdom and New South Wales Correctional systems. Similarly, the
concept of expanded consultation, such as the New South Wales system of
engaging a "Mothers and Children Program Committee" to make
decisions regarding children residing in custody on a full time basis
will also be considered.
Whilst the time-lines
for commencement and completion of the internal review are yet to be established,
this office is currently in the process of developing a broader overarching
framework for working with women in prison. The 'Women's Framework'
will examine the specific profile and needs of the women's population
and from this develop the key principles and operational impacts that
should guide a correctional services response which acknowledges and addresses
the specific needs of women prisoners.
I hope that this
information has been of assistance.
Updated 9 January 2003.