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Submission to the National

Inquiry into Children in Immigration Detention from

the Department of Justice,

Victoria


10 May 2002

Dr Sev Ozdowski OAM

Human Rights Commissioner

Human Rights & Equal Opportunity Commission

GPO Box 5218

Sydney

New South Wales

1042

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

inquiry.

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

facilities.

Whilst legislative

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

one time.

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.

Prisoners maintain

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

of use.

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.

As Commissioner,

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.

Yours sincerely

Dennis Roach

Acting Commissioner

Last

Updated 9 January 2003.