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Submission to National Inquiry

into Children in Immigration Detention from

Ethnic Communities Council

of Western Australia


1 Introduction

The Ethnic Communities

Council of Western Australia commends the Human Rights and Equal Opportunity

Commission and Human Rights Commissioner Sev Ozdowski in particular, for

instituting the Children in Immigration Detention Inquiry.

According to Dr Ozdowski,

"a detention centre is no home for a child; action needs to be taken

to ensure the removal of children from detention is of the highest priority."

Our Council strongly endorses this view of the Commissioner.

Australia's international

reputation as a compassionate society which accepts and values cultural

and religious diversity has been seriously tarnished by its mandatory

detention policy, particularly in relation to children and women and the

inhumane operations of its detention centers.

Subjecting children

who are already traumatised to indefinite periods of detention in Australia

is unconscionable and flagrantly breaches our international obligations.

By incarcerating them in isolated, harsh, inhumane conditions and in the

case of children, exposing them on a continuous basis to the violence

and self harm resorted to by adult detainees, Australia has prolonged

their suffering instead of alleviating it.

Several hundred children

are at risk as noted in the March 2001 report by the Commonwealth Ombudsman

on Immigration Detention Centres (IDCs):

"….in

June 2000 330 women and 469 children were living in close association

with 2,700 men, most of whom were unaccompanied. Women who do not have

a partner, family friend or male relative accompanying them and their

children, or young unattached children are at greater risk than single

men or family units..."

Evidence taken...

together with the appraisal of incidence reports indicates there were

a worrying number of indecent assaults and threats towards unattached

women and children who represent the groups at highest risk…."

Australia can ill

afford to ignore the warning of UN High Commissioner for Refugees, Ruud

Lubbers that "Recent events in Australian immigration detention centres

are a stark reminder of the concerns of the international community regarding

the detention of asylum seekers".

Whilst the Prime

Minister's Pacific solution may have temporarily halted the flow of asylum

seekers to Australia, it remains an expensive burden on taxpayers and

is clearly not a fair, humane or effectual longer term solution either.

Australia should

instead seek to; provide a speedy, compassionate and fair process for

their applications for asylum, to be determined in Australia; address

the major factors that cause people to flee their countries in search

of refuge from persecution; and work on co-ordinated regional and international

efforts to address it.

2 Our responses

to the questions relating to the Inquiry's terms of reference are as follows:

2.1 How does Australia

meet its commitments to child detainees under the Convention and other

relevant standards?

From the limited

data that is publicly available Australia is clearly not meeting its commitments

to child detainees under the Convention and other relevant standards.

Australia has blatantly ignored Article 37 of the Convention on the Rights

of the Child, which allows States to detain children, as a measure of

last resort, and for the shortest period of time in accordance with the

exceptions stated at Guideline 3.

Children have been

reportedly detained for up to 2.5 years, which is anything but short,

considering the isolated and harsh environments of our detention centers.

More importantly this has occurred despite the availability of a number

of cost effective humane alternatives. Australia has resettled a number

of accompanied and unaccompanied minors who landed on our shores by boats

or under the Orderly Departure program, from Indo China in the 70s and

80s. Competent State child care authorities and community organizations

which facilitated their resettlement clearly have the expertise to address

the current situation in a culturally appropriate and compassionate manner.

According to UNHCR'S

Guidelines on Asylum Seekers relating to children in detention "Unaccompanied

minors should not, as a general rule, be detained." From media reports

it would appear that opportunities for detained children to be released

into the care of family members, who already have residency within Australia,

have not been exercised. Worse still DIMIA have ignored the recommendations

made by competent child care authorities for the removal of children (in

some cases with their families) from detention centers despite threats

to their physical and emotional well being and in some instances their

very lives being at stake.

2.2 How are the

"best interests" of children in detention decided?

The United Nations

Convention on the Rights of the Child (CROC) was adopted in 1989

and ratified by Australia in December 1990. It makes the best interests

of the child at least 'a primary consideration', and sometimes paramount,

in actions and decisions concerning children. The principle of the best

interests of the child is one of the fundamental principles of the Convention

underpinning the interpretation of all children's rights and freedoms.

Our domestic Immigration

laws directly contravene this by mandating the arbitrary and indefinite

detention of children. Legislation has empowered the ACM officers who

staff IDCs authority to strip-search anyone over the age of 10.

With respect to CROC,

the best interests of the child have been ignored in terms of the following

articles:

  • Child

    protection and custody - article 9.1

    (States Parties shall ensure that a child shall not be separated from

    his or her parents against their will, except when competent authorities

    subject to judicial review determine, in accordance with applicable

    law and procedures, that such separation is necessary for the best interests

    of the child)

  • Continuing

    contact with one or both parents - article 9.3 (States Parties

    shall respect the right of the child who is separated from one or both

    parents to maintain personal relations and direct contact with both

    parents on a regular basis, except if it is contrary to the child's

    best interests.) Articles 9.1 and 9.3 have been infringed in many

    instances as children have been separated from their parents against

    their will and denied regular direct contact with both parents, despite

    it not being in the child's best interests, for such contact to be denied.

  • Parental

    decision-making - article 18.1

    (States Parties shall use their best efforts to ensure recognition

    of the principle that both parents have common responsibilities for

    the upbringing and development of the child. Parents or, as the case

    may be, legal guardians, have the primary responsibility for the upbringing

    and development of the child. The best interests of the child will be

    their basic concern). This article has also been violated as parents

    have been denied responsibilities for the upbringing and development

    of the child. Worse still the legal guardian, in the case of unaccompanied

    minors, i.e. the Minister for Immigration who has the primary responsibility

    for the upbringing and development of the child has not sought to ensure

    that the best interests of the child will be his basic concern. Evidence

    of this is documented elsewhere in this submission.

We understand that

HREOC has the power to investigate complaints when CROC rights have been

violated by or on behalf of the Commonwealth or a Commonwealth agency

but only in the exercise of a discretion or in abuse of power, as CROC

is scheduled to the Human Rights and Equal Opportunity Commission Act

1986 (Cth).

We also understand

that when Human rights complaints which cannot be resolved by conciliation

do not proceed to a hearing and determination it may, after appropriate

inquiry, be made the subject of a report to the Attorney-General for tabling

in Parliament. HREOC however has no authority over the courts. Where legislation

requires the right of the child to be set aside, HREOC can only advise

the Parliament that the legislation should be amended and this situation

needs to be reviewed.

The High Court's

obligation to consider human rights in cases of discretionary administrative

decision-making although CROC has not been implemented in Australian law,

has been ignored by DIMIA as they have not exercised discretion in conformity

with Australia's international treaty obligations.

2.3 Can children

(including through their parents or guardians) participate in decision

making concerning them?

This certainly does

not appear to be the case in many instances.

2.4 How is the right

to survival and development respected in detention facilities?

The right to survival

and development is clearly not respected in detention centers as can be

gauged by the medical and mental health community.

The Paediatrics &

Child Health Division of the Royal Australasian College of Physicians

(RACP), and the Faculty of Child and Adolescent Psychiatry of the Royal

Australian and New Zealand College of Psychiatrists (RANZCP), are united

in their call for appropriate assessment, intervention and support for

children in Australian detention centres. They have called on the Government

to undertake an independent, expert review of the situation at the earliest

possible opportunity. They have expressed particular concern about these

children, many of whom are born in detention, for their subsequent emotional

development and for the effects of detention on the functioning of their

families.

2.5 How is the child's

right to family life ensured?

The child's right

to family is certainly not ensured. There are reported cases of children

being detained in detention centres with one parent whilst the other parent

was resident in Australia under temporary protection visas.

In another instance

a severely traumatized child was separated from his parents and family

who were in detention, and placed with foster parents, in violation of

Article 9 which grants children the right not to be separated from their

parents against their will.

2.6 How are Convention

rights reflected in the daily programs in place in detention facilities

for children?

Conventions rights

are being flagrantly violated given the following:

  • Children wear

    identity tags with a number and respond when addressed by that number;

  • Children live

    with their families in flat army-style barracks with little or no privacy;

  • Life is regimented

    for detained children. Random head counts occur at any time of the day

    or night, when the siren calls to muster.

  • Education focuses

    on English language classes, and English-speaking detainees often teach

    the material. Other subjects receive little attention. Attendance is

    not compulsory, and there is no formal curriculum with approval from

    the Education Department. This means that education is effectively interrupted

    for the duration of detention.

  • Media have reported

    a case of two children, aged six and eleven -who were locked in solitary

    confinement with their mother with no toilet facilities but a supermarket

    plastic bag.

  • A child with physical

    and intellectual disabilities who is detained in the Curtin Detention

    center has not been provided a wheel chair or assessed to determine

    what services should be provided for his well being. Reportedly he hs

    be provided a fortified stroller.

We are unable to

provide more detailed comments given the paucity of information about

daily programs. However it is clear from the limited information available

that Convention rights are not being reflected in the daily programs in

place in detention facilities for children. The evidence of ex teachers

and nurses employed by ACM at the Hedland, Womera and Curtin Detention

Centres, also confirm our views.

3 Recommendations:

To safeguard Australia's

reputation and to fulfill its human rights obligations we recommend the

urgent implementation of the following recommendations:

3.1 Abolish the policy

of mandatory detention of asylum seekers particularly children in the

interest of their mental and physical health and well-being.

3.2 If the policy

of mandatory detention of asylum seekers is not abolished, unaccompanied

children and families with children should not be detained for more than

6 weeks of their initial detention regardless of whether their health,

security and identity checks have been completed. They should be released

into the community using the "community services order" model

that that is used in the correctional setting.

3.3 If children who

are asylum-seekers are detained at airports, immigration holding-centres

or prisons, they must not be held under prison-like conditions. All efforts

must be made to have them released from detention and placed in other

accommodation. If this proves impossible, special arrangements must be

made for living quarters, which are suitable for children and their families.

3.4 Initiate action

to ensure that children in detention enjoy the rights prescribed by the

International Convention on the Rights of the Child, signed and ratified

by Australia, particularly their right to:

  • family

    life, and to be

    with their parents unless separation is in their best interests.

  • the highest attainable

    standard of health.

  • protection from

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

    They also have the right to recover and be rehabilitated from neglect,

    exploitation, abuse, torture or ill-treatment, or armed conflicts.

  • to practise their

    culture, language and religion.

  • to rest and

    play.

  • to primary education,

    and different forms of secondary education should be available and accessible

    to every child.

  • appropriate protection

    and humanitarian assistance as an asylum seeker or refugee.

  • not be deprived

    of their liberty unlawfully or arbitrarily, with detention only

    in conformity with the law, as a measure of last resort and for the

    shortest appropriate period of time.

  • be treated with

    humanity and respect for their inherent dignity and in a manner which

    takes into account their age.

  • access to legal

    assistance and the right to challenge their detention.

  • not be subjected

    to torture or other cruel, inhuman or degrading treatment or punishment.

  • privacy.
  • a standard

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

    development.

3.5 Transfer the

primary responsibility for the guardianship of children from the Minister

for Immigration to the relevant state Minister where the detention centers

are located. It is of great concern that Commonwealth state protocols

to safeguard the rights and welfare of children in detention and unaccompanied

minors are yet to be finalized except in the case of South Australia.

These should be finalised as a matter of urgency.

3.6 The Immigration

department should provide disaggregated data of children in detention

by age, gender, disability, length of time that they have been held in

each centre etc on a quarterly basis.

3.7 During detention

children have the right to an education which should optimally take place

outside the detention premises in order to facilitate the continuance

of their education upon release. Distance education facilities should

be used to ensure that appropriate syllabus based education is provided.

3.8 Provision should

also be made for their recreation and play, which is essential to a child's

mental development and to alleviate stress and trauma.

3.9 Children with

disabilities should be assessed by the relevant statutory authority in

the state and their needs met in accordance with Australian Disability

Service Standards.

3.10 Managing detention

centres on a 'commercial in confidence' arrangement is not appropriate

and the running of these centres should be placed within the public domain

to make their operations transparent and accountable.

3.11 Media and community

organizations should be granted easy access to detention centres to ensure

the transparency and accountability of their operations.

3.12 The appropriateness,

and lawfulness of the use of force and restraint by Australasian Correctional

Management (ACM) or Department of Immigration and Multicultural Affairs

(DIMA) officers in immigration detention centres, are questionable. They

should be investigated urgently to ensure that children in detention are

not traumatised and to ensure that the policies, guidelines and practices

meet with the requirements of Australia's international obligations.

3.13 HREOC should

play a more prominent role in monitoring the operations of detention centres

on a more regular basis.

4 Conclusion

Australia's treatment

of asylum seekers violates international human rights standards and particularly

those standards relating to children. Our Council does not condone the

violence and destruction that eventuated in Detention Centres. But the

mistreatment of asylum seekers, particularly children, as criminals without

recourse to defend their human rights cannot be justified on any grounds.

Worse still having spent millions of dollars to correct myths about refugees

the government, can ill afford to erode the state of community relations

in our community by reinforcing them, through its misleading and relentless

campaign against asylum seekers.

Australia has not

lost control of its immigration program nor is it under any serious threat

of doing so. This is evident by Minister Ruddock's claim that, "Australia's

ability to deliver the program on target and with the desired balance

contrasts considerably with other migration countries such as Canada and

New Zealand where the actual outcomes (visas granted) have varied from

the announced programs by as much as 20 per cent under target in recent

years." (Media Release 27/7/00)

The stigmatisation

of asylum seekers and Refugees as "illegal immigrants", "queue

jumpers, and "criminals", is xenophobic and dehumanising. Australia

has provided refuge for hundreds of thousands of refugees after World

War 2. The religion and colour of the people that are seeking asylum now

are different to those whom we assisted earlier, but this does not make

them any less worthy of our assistance.

Smaller and poorer

countries are bearing a disproportionate burden of providing refuge to

asylum seekers globally. Instead of seeking to avoid its global obligations

by diminishing its human rights commitments, advanced civil democratic

countries such as Australia should be leading the way in upholding &

promoting human rights.

Australia's post

War record of resettling displaced people and refugees earned it an enviable

record as a nation which promoted and protected human rights of people

who have suffered persecution and sought asylum in a third country. However

its recent record in this regard has earned it the pariah status of being

the only western nation that has a mandatory detention policy.

The detention of

children is a serious concern and violates the Convention on the Rights

of the Child, signed and ratified by Australia. Minister Ruddock's view

that children in detention centres who self harm are indulging in attention

seeking behaviour or "misbehaving" is most distressing.

The short and longer-term

impact of detention to their psychological and social development and

well being is well documented. It will undoubtedly compromise their ability

to successfully resettle in an Australian community. This is of serious

concern given that a substantial proportion of the asylum seekers eventually

are granted temporary protection visas. With a view to salvaging its international

reputation our Council strongly recommends that our recommendations be

implemented as a matter of urgency.

Last

Updated 9 January 2003.