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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)


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.

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.

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 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)..

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 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.

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 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.

9.

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.

10.

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.