Commission Website: National Inquiry into Children in Immigration Detention
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Submission to National Inquiry
into Children in Immigration Detention from
the United Nations Association
of Australia (Incorporated)
3. AUSTRALIA'S INTERNATIONAL HUMAN RIGHTS OBLIGATIONS
4. MANDATORY DETENTION OF CHILDREN, and ALTERNATIVES
5. CHILD ASYLUM SEEKERS IN DETENTION AND THE COMMUNITY
6. IMPACT OF DETENTION ON THE DEVELOPMENT OF CHILDREN
7. MEASURES REQUIRED TO PROTECT INTERESTS OF CHILDREN
8. MEASURES FOR PROTECTING INTERESTS OF CHILD ASYLUM
BACKGROUND TO UNAA's CONCERN
1.1 This submission
is presented on behalf of the Executive Committee of UNAA, and represents
the views and policies of UNAA and its members. UNAA has some 2000 members
in all States and Territories, and has the task of promoting in Australia
the ideals and work of the United Nations and encouraging our Government
to undertake its obligations as a member-state.
1.2 UNAA has a longstanding
interest in issues of human rights, including those affecting children
and refugees. Since the Federal Government adopted a policy of mandatory
detention for asylum seekers arriving by boat, UNAA has consistently sought
to encourage official adherence to international human rights standards
and obligations.
1.3 UNAA has adopted
a series of policy statements on the issue, as follows:
The Government should
(a) intensify its support for UNHCR by increasing its contribution and
maintaining programs to resettle people needing asylum (1984); (b) fund
(with a loan system) all eligible to come to Australia under refugee programs;
and (c) increase its financial commitment to UNHCR in view of the unprecedented
demands for its services in Rwanda, former Yugoslavia, Sudan and West
Africa (1994).
UNAA (a) supports
a vigorous and comprehensive Australian refugee entry and resettlement
program; (b) opposes any reduction in the number of quota places for refugee
and humanitarian entry; and (c) supports the maximisation of settlement
opportunities through the provision of appropriate pre-arrival and post-arrival
services (1992).
The Australian Government
should (a) adopt a humanitarian approach to refugees; (b) make adequate
provision for asylum seekers; (c) not discriminate on grounds of race,
colour, class, nationality, sex, age, political or religious belief; and
(d) support the resolution of conflicts around the globe which contribute
to refugee flows (1992).
These resolutions
reflect a desire for a comprehensive and humane response by Australia
to those arriving on its shores. UNAA has also urged Australia to be a
more active player in international moves to respond to the refugee crisis.
1.4 In relation to
detention, UNAA has adopted the following policies:
UNAA (a) deplores
the Australian Government's arbitrary selective detention of applicants
for refugee status pending determination of their applications, particularly
when this exceeds the detention period allowed by the 1951 Refugee Convention;
and (b) urges the Government to align its detention policies with those
of the Refugee Convention (1995).
UNAA acknowledges
the difficulty posed for the Australian Government by the arrival of asylum
seekers by unauthorised means. At the same time UNAA affirms the importance
of Australia adhering to its international human rights obligations (especially
those under the Refugee Convention and the Convention Against Torture)
in its policies on the treatment of refugees and asylum seekers. UNAA
is concerned that the detention policy is proving incompatible with these
obligations because of the conditions under which people are being held
and the length of detention. This is having a very bad effect on families.
UNAA asks the Australian
Government to implement the recommendations of the Flood Report, the Commonwealth
Ombudsman and the Parliamentary Human Rights Committee concerning the
detention centres and assessment policies, especially in relation to women
and children, participate actively in global consultations hosted by UNHCR
on the international protection of refugees, give priority to refugees
and asylum seekers who are in life-threatening situations and process
those in safe havens via the waiting lists (2001).
1.5 In its approach
UNAA has relied on an appeal to a number of international instruments,
including the Refugee Convention, the Covenant on Civil and Political
Rights, the Torture Convention, and the Rights of the Child Convention.
It has fully supported the work of UNHCR in its efforts to implement international
standards for refugees and asylum seekers. It has also endorsed the findings
of the several official investigations into conditions at detention centres,
and the recommendations made for improvements.
1.6 In 2001 UNAA
worked with other NGOs to develop a Fair Go Australia pledge, so far signed
by over 5500 people, which affirms the importance of a constructive debate
about Australia's obligations towards asylum seekers, and seeks to promote
understanding of the causes of the movement iof people around the world
and an international response.
1.7 Following disturbances
at the Woomera (SA) detention centre in late 2001, UNAA appealed for an
independent assessment of conditions there, and then moved to set up its
own commission of inquiry to receive stories and information from the
public, staff and detainees.
1.8 This submission
will address the different aspects of the Inquiry's terms of reference,
as well as making some wider assessments of the issues surrounding asylum
seekers.
THIS INQUIRY
2.1 The first detention
centres were established in 1994. Before that Australia dealt with unauthorised
arrivals without using such centres, but rising public concern led to
a change of policy, which has had the support of both major political
parties. The UN Human Rights Committee in 1997 questioned the use of mandatory
detention as contrary to Australia's international obligations. In 2001
an Australian Parliamentary Committee recommended time limits for people
in detention. UNHCR has called Australia's policy 'draconian'.
2.2 The Human Rights
and Equal Opportunity Commission (HREOC) has indicated that it has received
increasing numbers of complaints about human rights breaches involving
children in immigration detention. This is the main motivating factor
in establishing the Inquiry at this time.
2.3 The terms of
reference of the Inquiry cover 'the adequacy and appropriateness of Australia's
treatment of child asylum seekers and other children held in immigration
detention' and include such things as Australia's international obligations,
the system of mandatory detention, the policies governing children, the
conditions under which they are held, the impact of detention, and the
measures required to safeguard children's interests and rights.
2.4 UNAA welcomes
the Inquiry as an important part of the current re-evaluation of Australia's
approach to asylum seekers. UNAA has for some time joined other NGOs in
expressing strong reservations about the detention system as favoured
by both major political parties.
2.5 UNAA acknowledges
that, partly through the efforts of the HREOC, there have been signficant
changes in detention policy in the past month or so, and that children
are being more carefully monitored than ever before. UNAA hopes that the
Inquiry will reinforce moves already being undeertaken to bring more humane
treatment to children affected by the detention policies.
AUSTRALIA'S INTERNATIONAL HUMAN RIGHTS OBLIGATIONS
3.1 HREOC has rightly
drawn attention to the importance of the Convention on the Rights of the
Child (CROC), adopted in 1989 and ratified by Australia in 1990. Australia
has recently (December 2001) signed on to the Optional Protocol about
the exploitation of children. Thus Australia has publicly endorsed the
Convention and Protocol and thereby given them significant status in its
jurisdiction. As HREOC has pointed out, children in detention are entitled
to reasonable family life, health, culture, play, education, protection,
liberty, respect, legal assistance, privacy, and standard of living. They
are entitled to be free from violence and abuse, and inhuman punishment.
3.2 UNAA also draws
attention to other international human rights instruments which impact
on member-states including Australia - the Refugee Convention (1951),
the International Covenant on Civil and Political Rights (1976), and the
Convention against Torture (1984). These instruments provide an overall
regime of protection against abuses of human rights, and apply to those
in detention, including children.
3.3 It is appropriate
to acknowledge that the Migration Act as it currently applies requires
detention of any person who is described as an 'unlawful non-citizen'.
This includes unauthorised arrivals. A set number of places is allocated
to the Humanitarian Program under the Act, and this approach has bi-partisan
support at present. This places a limit on the number of people accepted
as refugees in any year (currently 12,000).
3.4 The Government
maintains that its policy of detaining unauthorised arrivals (including
many asylum seekers) is consistent with the accepted legal principle of
national sovereignty, and that it does not differentiate between adults
and children in this regard. This means that children assume the same
immigration status as their parents. The Government believes that detention
serves a number if important purposes, including (a) ensuring health and
identity checks are carried out properly, (b) providing access to asylum
seekers regarding claims for refugee status, and (c) maintaining the integrity
of the migration program.
3.5 In a letter to
UNAA in October 2001, the Minister for Immigration (Philip Ruddock MP)
stated that the Government "is conscious that children should be
detained only as a last resort and for the shortest possible period. To
this end, applications from family units and single children who are unauthorised
arrivals are processed as quickly as possible". The Minister says
that every effort is made "to ensure that children are treated in
accordance with the provisions of the Convention (on the Rights of the
Child) and receive appropriate care. This commitment is evident in the
attention that is focussed on the health, welfare and safety of children
in detention".
3.6 The same letter
from the Minister outlines detailed activities organised for children
in detention centres - social and educational programs, and recreational
pursuits. It also says that counselling is available, and that family
accommodation is designed to allow for playground space. More recently,
a trial has been undertaken whereby women and children have been allowed
to live in accommodation away from the detention facility at Woomera,
and have greater opportunities for excursions. The Minister says that
there is provision for children in detention to be released on a bridging
visa into the communty, assessed on a case-by-case basis
3.7 A major focus
of the Government is 'people smuggling' and its policies appear to be
directed towards discouraging this practice. As a result the impression
is often given in public statements that this is the priority, rather
than ensuring the welfare of asylum seekers. In this context it is notable
that the Minister for Immigration, in a discussion paper on Migration
policy (January 2002) refers to the need for signatories to the Refugee
Convention to moderate their sovereignty to the extent necessary to accommodate
people fleeing persecution and landing on its territory, yet the Government
in public pronouncements always emphasises Australia's sovereignty as
paramount and unqualified.
3.8 The UN High Commissioner
for Refugees (UNHCR) has stated on its website (www.unhcr.ch) that, as
a general rule, the detention of asylum seekers is not acceptable, and
that women and children are especially vulnerable and should not be detained.
Detention for a brief period is justified only for determining identity
and the basis for asylum being sought. Detainees have the right of access
to UNHCR and to legal advice. On these grounds, Australia's policy seems
to be at odds with international standards. UNHCR issued a statement on
1 February 2002 reiterating that it opposed detention of asylum seekers,
and saying that Australia was part of the executive board that adopted
that policy.
3.9 Refugee groups
in Australia have consistently claimed that the people in detention are
being denied their legal rights and that they as NGOs are being denied
access to the detainees. They point to the deliberate policy of placing
the detention centres in isolated areas to minimise access options.
3.10 Media reports
over many months have raised public concern about the deficiencies of
detention in relation to children in particular. Children have been driven
into taking desperate measures (eg sewing lips together) to protest at
their traumatic experience in detention. The recent incidents (late January)
in Woomera Detention Centre have involved children being exposed to traumatic
actions and have led to calls by Amnesty International (21 January 2002)
for an immediate resumption of processing of applications for refugee
status, regardless of the reported improvement in conditions in Afghanistan
from where most of the detainees come. UNAA wrote to the Minister at that
time seeking an independent assessment of the Woomera situation, especially
in relation to children.
3.11 The Human Rights
and Equal Opportunity Commission (HREOC) conducted an investigation into
conditions at Woomera in January 2002, and concluded that the Commonwealth
was in breach of its obligations under a number of Articles of the Convention
on the Rights of the Child (media release, 6 February 2002)..
MANDATORY DETENTION OF CHILDREN, and ALTERNATIVES.
4.1 Australia remains
the only western country to detain children in the way it does, over long
periods. Despite improvements in some aspects of the implementation of
the detention policy, there remain serious doubts about its effects on
children. Such reports as that on the ABC's Four Corners program in August
2001 indicate that there may be serious psychological impact on some children.
4.2 The ongoing efforts
of refugee groups in Australia have ensured that action has been taken
to improve things to some extent. A statement of agreed norms for dealing
with people in detention was developed by peak NGOs in 1994 and remains
an important benchmark.
4.3 The Refugee Council
of Australia (RCOA), in consultation with other agencies, has prepared
a detailed alternative detention model. This would provide more flexibility
and be less expensive. It envisages three stages to meet the needs of
different people as well as of the Government - closed detention, open
detention, and community release. The details are contained on the RCOA
website (www.refugeecouncil.org.au) UNAA fully supports this approach
and commends it to the Government. Essentially the proposal allows for
a gradual increase in freedom of movement for asylum seekers upon achieving
identity checks and public interest requirements.
4.4 The Government
often claims that children are being sent to Australia on their own to
improve the chance of family members being accepted as refugees. This
is said to be a reason for holding children in detention. A booklet published
by the Centre for Refugee Research (University of NSW, 2002) refers to
the fact that repressive regimes do not discriminate between adults and
children, and that many of those children, with the help of their families,
escape from being soldiers or sex slaves.
4.5 Other countries
have found different ways to deal with asylum seekers. These options include
(a) monitoring and regular reporting, (b) provision of a guarantor for
the person, (c) release on bail, and (d) open centres with a curfew. There
would be cost savings in these options, as well as greater humanity.
4.6. On the matter
of cost, the International Commission of Jurists (ICJ) has estimated that
it costs over $100 a day to detain one person in a detention centres,
as against around $60 for home detention. The use of off-shore processing
increases the cost enormously. ICJ maintains that Iran receives $60m from
the international community to support 2.6 million refugees; while Australia
spends eight times more trying to keep a few thousand out. (statement
by Emilia Della Torre, Vice President of ICJ on legal issues, at a forum
held at Armidale NSW in November 2001).
4.7 In the case of
the people from Kosovar who were given safe haven in Australia, the Government
offered an orderly process of repatriation, with appropriate support services.
Such an approach could be a viable alternative to the detention policy.
At the end of January 2002 the Federal Government announced its intention
to provide financial assistance for people from Afghanistan held in detention
to return home when the situation there was safe. UNAA supports this approach,
on the understanding that no one will be forced to leave if they have
a well-founded fear of persecution, and that appropriate counselling support
is given in addition to funds.
CHILD ASYLUM SEEKERS IN DETENTION AND THE COMMUNITY.
5.1 Recent media
reports, and studies by research groups and Parliamentary committees,
have raised strong doubts about the adequacy of policies regarding children
in detention. Incidents of self-harm, including by children, have highlighted
the dangers of the policies for children. The conditions under which the
detainees are held are such as to increase levels of stress, especially
when added to the detainees' own experiences before and since escaping
from their own countries.
5.2 The most recent
example is the case of the asylum seekers from Afghanistan. Their applications
for refugee status were not processed because of an official belief that
the changed circumstances in their home country might make it possible
for them to return home sooner rather than later. The effect of this was
to increase tension among the detainees, confined behind barbed wire and
denied access to legal and other support while waiting indefinitely for
their applications to be processed. This led to numerous desperate actions
(hunger strikes, sewing of lips together, jumping onto barbed wire fences)
and children were caught up in these actions. The HREOC investigation
of Woomera in January highlighted this situation (media release, 6 February
2002).
5.3 Because the children
detainees were involved in this situation, they were held longer in detention
than would be consistent with the Convention on the Rights of the Child
that the Government claims to observe (see section 3.5 above). The children
were undoubtedly exposed to grave psychological and physical risk as a
result.
5.4 The health of
children in detention cannot easily be assessed by outsiders. It is, however,
significant that a number of health personnel employed at detention centres
have left and spoken publicly about their concern for the health of the
children in particular. This was brought to light especially on the ABC's
Four Corners Program in August 2001. The plight of one young boy who had
become very depressed was exposed on that program, and the publicity led
to action by the Government to improve the situation for the family concerned.
5.5 The Government
attempts to provide educational, recreational and cultural activities
for children in detention centres. This is laudable, and no doubt of some
benefit to the children. However, given the enormous stresses of being
in detention, and the political furore over the current policies, the
children often become part of the political/media interaction when they
travel to nearby schools. This cannot be assisting the children to adjust
to a new situation.
5.6 The complexity
of the present situation is emphaised by guardianship issues. There have
been suggestions that children should be removed from detention, and therefore
in most cases from their parents, to meet acceptable standards. However,
the breaking-up of family units at such a time is extremely contentious,
and may well add to the chlidren's distress. Even if women and children
are removed together, that is still a severe imposition on families. It
also appears to go against the intention of the Government to treat all
asylum seekers witout discrimination.
5.7 UNAA supports
the views of Human Rights Watch (statement on 31 January 2002) that unaccompanied
children should not be held in detention but should be fostered out or
reunited with family members already in the community.It was estimated
at that time that at Woomera about one fifth of the children were unaccompanied,
and that these children were mixing with unrelated adults, with the ensuing
risk of child abuse.
5.8 Children in detention
are subjected to the security provisions inevitable in gaol-like environments.
This is hardly conducive to healthy development for children.
IMPACT OF DETENTION ON THE DEVELOPMENT OF CHILDREN
6.1 The foregoing
paragraphs have outlined the range of issues affecting children in detention
centres. It is clear that detention does no good for children, and probably
much harm or potential harm. Apart from exposing them to the harsh reality
of life behind bars, it places them in situations where they can be subjected
to physical, emotional, sexual or psycholgical abuse. Australia should
not be party to such a situation. As The Canberra Times said in an editorial
on 22 January 2002, "that a five year old boy, who has committed
no crime, can be put into detention in Australia for nearly a year should
be offensive to the vast majority of Australians".
6.2 Many reports
of conditions in the detention centres are disturbing. They tell of poor
accommodation, poor food, harassment by officers, exposure to extreme
heat and cold, inadequate washing facilities, crowding, random searches,
curfews, and use of tear gas and water cannon to quell disturbances.
6.3 The impact of
detention on children can be shown by an example given in Peter Mares'
book Borderline (2001) in which he speaks of a young boy whose father
had been presumed killed by government forces in Cambodia and who came
to Australia with his mother. "His mother attempted suicide by tablets,
then went on a hunger strike. She hoped to die so that her son would be
allowed to stay in Australia...The boy did not understand why she was
trying to do this. He was shattered as his mother tried to reject him,
because she would have to reject him in order to be able to die for him".
6.4 In the ABC Four
Corners program (August 2001), Zachary Steel, a medical doctor, reported
that "looking at the population from the detention centres...suggests
that within our detention centres are probably the most traumatised people
on the face of the planet".
The background stories
of many of these people are horrific, and the children are affected deeply
also. The trauma of detention adds immeasurably to their suffering.
MEASURES REQUIRED TO PROTECT INTERESTS OF CHILDREN
7.1 UNAA's overall
view is that detention is inappropriate for children, and that alternatives
should be found. However, until this policy change is achieved, UNAA submits
that children in detention deserve greater care and protection.
7.2 Given the stories
of abuse that have arisen in several detention centres, UNAA believes
that attention needs to be given to (a) keeping children separately from
unrelated adults, (b) immediately reporting incidents to relevant child
protection authorities, and (c) speeding up the processing of asylum applications
for children, especially unaccompanied children.
7.3 It appears that
the staff of detention centres lack the skills needed to proect children
adequately. This is presumably because their training relates to adults
in detention situations of various kinds. There needs to be a policy of
employing more suitably qualified health workers and counsellors to help
meet the needs of children.
7.4 UNAA supports
the establishing of a proper royal commission or equivalent to examine
the position of children in detention and make recommendations about their
treatment.
MEASURES FOR PROTECTING INTERESTS OF CHILD ASYLUM SEEKERS AND REFUGEES
8.1 UNAA believes
it is time for a complete review of existing policies towards children
in detention. Even the UN High Commissioner for Human Rights, Mary Robinson,
has sought (4 February, 2002) to send a special envoy to the Woomera centre
following the many reports of crises there.
8.2 Children are
the most vulnerable group of asylum seekers, and need special attention.
Treating them the same as adults is not appropriate and leads to their
being exposed to dangerous and disturbing experiences with long-term consequences
for their physical and mental health. Their lives have already been put
at risk by the need to flee their homelands, and Australia should not
add to their burden.
8.3 An orderly and
compassionate program of receiving asylum seekers, such as that outlined
in section 4.3 above as an alternative to present policies, would give
greater assurance of effective response to children. In this context,
the Government is to be commended for the use of bridging visas to allow
children into the comunity
8.4 The appointment
of additional specialist professional health and counselling staff to
support the care of children asylum seekers would improve outcomes.Better
access of children to toys and other gifts from the wider community would
also assist.
8.5 There are many
Australians who would be glad to take an active role in welcoming these
asylum seekers and offering to monitor their stay in the community while
they are being assessed. Children would benefit from such an arrangement,
as they would be away from barbed wire and prison-like conditions.
CONCLUSION
9.1 The position
of children in detention is part of the wider scene of asylum seekers
arriving on our shores and seeking refugee status. Many of the solutions
to the problems for children would be assisted by changes in the overall
policy on the treatment of asylum seekers by the Australian authorities.
9.2 At the same time,
there are special problems affecting children, as outlined in this submission,
and these need to be addressed urgently to prevent ongoing trauma for
those children already in detention and facing an uncertain future.
9.3 UNAA believes
that most Australians want immigration and refugee policies that offer
sanctuary and support to those who have been forced from their own homes
by events beyond their control. The response of Australians to previous
examples (eg the Vietnamese, the Kosovars) suggests that there remains
a strong underlying compassion.
9.4 UNAA appreciates
the report by HREOC into conditions at Woomera, and its view that the
Centre "is enveloped in a self-reinforcing miasma of despair and
desperation" (media release, 6 February 2002). This clearly points
to the urgency of a change in policies.
9.5 UNAA commends
the Human Rights Commission for this Inquiry, and offers a series of recommendations
(see below) to help its work.
RECOMMENDATIONS
The Australian Government
should:
1. Have a flexible
refugee and humanitarian program, with an increased allocation of places
(sections 1.3 and 3.3 above).
2. Be more actively
involved in international efforts to find long-term responses to the flow
of people from conflict situations (section 1.4).
3. Review its obligations
under the relevant international instruments (Refugee Convention, Convention
on Rights of the Child, International Covenant on Civil and Politicial
Rights) in relation to the treatment of asylum seekers, especially children
(sections 3.1, 3.2, 5.3).
4. Reconsider its
mandatory detention policy in view of the ongoing trauma for asylum seekers,
especially children (sections 3.8, 3.9, 3.10).
5. Adopt an approach,
similar to other western countries, that involves minimal detention, such
as that put forward by the Refugee Council of Australia (section 4.3).
6. Continue to seek
ways for unaccompanioed children to be released into the community with
foster families or relatives (sections 5.7, 8.3).
7. Speed up the processing
of applications for refugee status (section 7.2).
8. Initiate a royal
commission into conditions in detention centres, especially as they affect
children (section 7.4).
9. Appoint additional
professional health and counselling staff to support the care of children
asylum seekers (section 8.4).
10. Implement a scheme
under which volunteers from the Australian community can take responsibility
for monitoring asylum seekers while their claims are being assessed (section
8.5).
UNAA,
Canberra,
March 2002
Last
Updated 9 January 2003.
