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)
1. BACKGROUND TO UNAA's CONCERN
2. THIS INQUIRY
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 SEEKERS AND REFUGEES
9. CONCLUSION
10. RECOMMENDATIONS
1. 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.
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.
3. 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 community, 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)..
4. 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.
5. 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.
6. 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 psychological 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.
7. 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.
8. 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 community
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.
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.
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.
