Commission Website: National Inquiry into Children in Immigration Detention
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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 Partiesshall 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 manyinstances 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 bewith 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 socialdevelopment.
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.
