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HREOC Website: National Inquiry into Children in Immigration Detention


Transcript of Hearing - SYDNEY

TUESDAY 15 JULY 2002

Please note: This is an edited

transcript


DR SEV OZDOWSKI, Human Rights

Commissioner

MRS ROBIN SULLIVAN, Queensland

Children's Commissioner

PROFESSOR TRANG THOMAS, Professor

of Psychology, Melbourne Institute of Technology

MS VANESSA LESNIE, Secretary

to the Inquiry


DR OZDOWSKI:

This is one of a series of hearings to be conducted around Australia.

My name is Dr Sev Ozdowski and I am the Human Rights Commissioner and

I am assisted in the Inquiry by two colleagues of mine, Mrs Robin Sullivan

who is to the left of me, the Queensland Children's Commissioner. To the

right of me is Dr Trang Thomas who is a Professor of Psychology at Melbourne

Institute of Technology. Also at the table is sitting Ms Vanessa Lesnie

who is Secretary to the Inquiry.

Before I commence

the hearings I would like to note the following matters. First the Commission

believes that it is very important to respect the privacy of individuals

and to protect children in particular so even where individual cases have

been made public elsewhere individuals should not be named in these hearings.

I have also issued a number of directions to protect the privacy, security

of employment and human rights of people assisting or otherwise involved

with the subject of this Inquiry.

The effect of these

orders is that the identity of asylum seekers is not to be disclosed throughout

the hearings and the identity of any other person who requests anonymity

is not to be disclosed and finally that the identity of any third parties

is not to be disclosed. This includes current and former employees of

immigration and detention centres. These people should not be named because

they have not had an opportunity to defend themselves against allegations

that could be made. Therefore I ask the media to adhere to the following

where a witness requests not to be identified by name or photograph even

though they may have been given public evidence. Please respect this request

and when filming also please respect the wishes of those who may or may

not wish to be included in background shots.

So now I would like

to invite the International Commission or Jurists and the Legal Aid Commission

of New South Wales to give their evidence. Do we have a Legal Aid Commission

of New South Wales?

MS ELIZABETH

BIOK: I am going to do both Commissioner. My colleague is just

here from Legal Aid, we will do that together.

DR OZDOWSKI:

Fine. The role of the Commission is to test the evidence that was provided

in your submissions and to elicit further useful information for the Inquiry,

so to start with I would like to ask you to take an oath or affirmation.


DAVID BITEL, sworn [9.47am]

INTERNATIONAL COMMISSION OF JURISTS

ELIZABETH BIOK,

affirmed [9.47am]

INTERNATIONAL COMMISSION OF JURISTS and

LEGAL AID COMMISSION OF NEW SOUTH WALES


DR OZDOWSKI: Thank you, now I would like to ask you to

give your names addresses, qualifications and capacity in which you are

appearing for the purposes of record.

MR BITEL:

My name is David Bitel, I am the Secretary General of the Australian section

of the International Commission of Jurists. I am here today to represent

the ICJ in its submission to the Inquiry. I am also a solicitor of the

High Court of Australia and the Supreme Court of New South Wales.

MS BIOK:

My name is Elizabeth Biok, I am a member of the International Commission

of Jurists and I am here today to support our submission which we provided

to the commission. I am also a practising lawyer in the area of refugee

and administrative law.

DR OZDOWSKI:

Thank you very much and I would like to thank you for the submissions

that you have provided. They are certainly well thought out and you have

put plenty of work into them. Now what I would like to do is to ask both

of you to make a short statement especially indicating your expertise

in the area of Inquiry or your contact with refugee children.

MR BITEL:

If I could go first. The ICJ has for some time been very concerned

about Australia's policies generally in relation to refugees. Refugees

are considered amongst the most vulnerable of people within the community

and certainly refugee children would be even more vulnerable in that context.

So the way in which the law handles refugees is something which has to

be of paramount concern. The ICJ is an international organisation concerned

with issues relating to the rule of law and human rights generally and

ensuring compliance by member states of the United Nations with International

principles that have been adopted.

The ICJ for many

years as I said has been involved with refugee issues and has been in

fact a member of the Refugee Council of Australia and in another capacity

I in fact represent the ICJ on the board of the Refugee Council and for

many years have in fact personally been President of the Refugee Council

of Australia. I am not appearing today though in that capacity. You asked

to address on personal abilities, I also have practiced as a solicitor

in the immigration and refugee area.

The submission that

was sent to the commission was largely the work of her Honour Justice

Elizabeth Evatt and Elizabeth Biok and myself which formed a subcommittee

within the ICJ. Her Honour cannot attend today because she is interstate

but I am sure would be happy to, or will certainly be looking at the transcript

of the proceedings today and may wish to make further written comments

as well.

DR OZDOWSKI:

May I ask any additional written comments could be provided at

a later stage also if you would like to mention particular cases which

do involve names, talk to my Secretary to the Inquiry after

MR BITEL:

The ICJ took the position that they would rather annunciate basic legal

principles as we are not an organisation which deals with applicants per

se whilst certainly members may be aware of individual cases it was felt

that those would more appropriately come through organisations which may

represent individuals so you will see our submission largely just deals

with fundamental principles.

DR OZDOWSKI:

Ms Biok, would you like to make a statement?

MS BIOK:

I would like to support what Mr Bitel has said. I see that is

the ICJ’s role to draw attention to the international law aspects

of this issue and certainly the ICJ has long been concerned with the breaches

of international law that are occurring in our migration system and the

treatment of refugees. That is something that the ICJ has very much tried

to monitor and to write to the minister where appropriate. On some occasions

we have had specific cases brought to our attention and we have tried

intervene and make some positive representations. As Mr Bitel has pointed

out we do not represent refugees per se.

DR OZDOWSKI:

Thank you. Now what I would like to start with is the issue of judicial

review of detention and the international law and under domestic law.

We were provided with quite a substantial submission from the Department

of Immigration. It is a public document so hopefully you've seen it. On

page eight of this document the Department of Immigration has submitted

that under Australia law immigration detainees have the capacity to take

proceedings before a court to determine the legality of the detention.

It of course means that children in detention can legally challenge their

detention in a court of law.

What I would like

to ask you is that statement correct and if it is correct do you know

of any challenges which were undertaken by children in detention?

MR BITEL:

I can say that the ICJ in fact did address this in its submission,

it is a view of the ICJ that the legislation which has been in place now

for almost if not ten years, effectively, provides no effective means

of judicial review of the detention other than to determine whether or

not a person is a designated person who would then be eligible for detention.

Apart from that very limited and narrow area, it is the view of the ICJ

that there is no effective ability to seek judicial review of the detention

and as a consequence the detention process in Australia is arbitrary and

to that extent the ICJ would adopt the views of the human rights committee

in A’s case with regard to the detention system and the eligibility

for judicial review.

The ICJ is not aware

of or I am not aware of any pending or current proceedings in Australia

which look at the issue and I am not aware of it particularly with regard

to children.

MS BIOK:

Commissioner if I could add, since the passing of the privative

clause, section 474, this has become even more unrealistic. The only way

a child could be released from detention would either be through the grant

of a substantive visa or a bridging visa. Now there are provisions to

have a bridging visa granted to allow release. If somebody wanted to question

the fact that the bridging visa has been rejected, under the privative

clause legislation they cannot do that now.

As well as that there

is the further problem that children cannot get legal representation to

assist with that. It is difficult enough for children to access lawyers

and to have their cases heard in relation to refugee status. Practically

there are very few lawyers who would be able to go in and be able to run

a case to get a prerogative writ to have a child released from detention.

DR OZDOWSKI:

Would you know how the issue of judicial review is regulated in other

compatible countries like the US or UK?

MS BIOK:

I have just been doing some research on this Commissioner, the

difference is under the Canadian system and the American system, there

are some human rights guarantees in their constitution.

DR OZDOWSKI:

So we are back to our bill of rights issue.

MS BIOK:

We are. Unfortunately. In America there have been cases where

people have been released by pleading aspects of the constitution and

in Canada under the charter.

MR BITEL:

Of course in Europe you've got the general provisions of the European

Human Rights Law which England has now acceded to as well.

DR OZDOWSKI:

Yes. Now coming back to international law, what would you describe as

reasonable period of detention regarding children?

MR BITEL:

The ICJ in its submission has adopted and supported the alternative detention

model that was proposed by the Refugee Council and others. That model

accepts that it is appropriate for people on arrival undocumented to be

detained, that word is perhaps an emotive word, but to be held for bona

fide assessment for health checks and for security clearances and the

period that it is contemplated would certainly be no more than three months

but in respect of minors it could conceivably be a lot less than that.

DR OZDOWSKI:

So in terms of general immigration detention three months possibly it

could be a reasonable period in some circumstances in your view but when

it's coming to children it should be possibly much shorter, that kind

of thing also concerns

MR BITEL:

Well, one assumes that the issue of health assessment, dental assessment

and security assessment should not take very long in respect of minors

and in relation to the issue of determining identity I guess it depends

on whether the children are accompanied or unaccompanied but if they are

unaccompanied it would be faster perhaps than if they were accompanied.

DR OZDOWSKI:

There is an apparent conflict between the need to further enforce some

period of time and also the issue of family unity, quite often Minister

Ruddock is coming publicly and saying that basically he is looking at

family unity as an over-riding principle and as a consequence children

cannot be released from detention. How would you interpret that part of

international law?

MR BITEL:

My view is that the fundamental principles of international law

as enunciated in the Convention on the Rights of the Child are that you

have to have regard to the best interests of the child and of course that

is a provision which is adopted under Australian domestic law in the Family

Law Act though not with direct reference to children in immigration detention

but in looking at the issues of custody and access as they were called

under the Family Law legislation those are the paramount considerations.

Certainly the importance

of maintaining the family unit is very important but that is only one

of the considerations which have to be looked at within the context of

what is in the best interests of the child and I mean, if there is a system

which is determined to detain parents then it is the view of the ICJ that

except in exceptional cases given that our view is that children should

not be detained except in that limited situation on arrival, alternative

arrangements need to be made preferably with the parents not in detention,

but if the parents must be detained then the children should not be detained

but should have access to the family nevertheless but not by the children

being in detention.

Now different provisions

apply of course where you are dealing with unaccompanied minors because

they are not here by definition with their parents.

DR OZDOWSKI:

There are for example situations when one parent is out of detention

on TPV and the rest of the family including children are in detention.

What do you think about this kind of situation?

MR BITEL:

In a situation like that it would seem obtuse to still detain children

if there is a parent who is not in detention.

DR OZDOWSKI:

Why do you think the government insists on keeping those children in detention?

MR BITEL:

Well, I think that there has been a fairly loose approach to Australia's

obligations under the Convention on the Rights of the Child but when it

suits governments to - and of course this is not just the contemporary

government, the previous government had the same policy of detention of

minors - when it suits governments to refer to international obligations

under the Convention on the Rights of the Child they will do so but then

they won't do so in other contexts.

I cannot look into

the minds of government but I mean it is my personal belief that the fundamental

reason why detention is maintained is it is seen as a deterrent and if

deterrence involves applying policies which are so strict that people

would be afraid that if they were caught up in the net of those policies

it would be to their detriment that they won't then come to Australia,

then to that extent the government's deterrent program may be seen to

be working but at great cost to the individuals who are involved and at

great cost to Australia's international reputation as a country which

follows the rule of law.

MS BIOK:

Commissioner, could I just add something? It would seem that where the

children have been disclosed by the parent who now is a TPV holder on

their application where there is some sort of identity document which

links the child with that parent there would be no reason once the child

has had a basic health examination to keep that child in detention. And

Commissioner, one issue I would like to raise with you and I am sure it

has already been raised is keeping children virtually in solitary confinement

during the screening in and screening out process and not allowing children

to have legal advice at that stage and I think that is certainly a breach

of our obligations under international law and especially the specific

obligations to refugee children which are part of the refugee convention.

We have heard anecdotally

from various detainees after their release within Curtin and Port Hedland,

unaccompanied children are kept for months on end in solitary confinement.

Now I know one group of people who arrived by boat in northern Australia

who are now on safe haven visas, they had quite a number of children with

them and they were kept in solitary confinement for eight months.

DR OZDOWSKI:

Solitary or separation?

MS BIOK:

Oh, separation, apart from other detainees and therefore without

any access to legal advice. Now I think that by denying children the right

to see a lawyer, by denying them the right to have somebody explain to

them what the process is and what the refugee convention means we are

certainly breaching our obligations and that is something that the Department

could easily resolve. All youth services have a hotline in all states

of Australia for young people who are taken in by police so they can access

a lawyer quickly. It would not be difficult to have a similar system set

up for children when they are taken into detention.

DR OZDOWSKI:

Could I return for a moment to this public policy goal of deterring people

from coming? Isn't such a policy with laws sufficient to over-ride the

principles of family unit under international law?

MR BITEL:

I think in the whole refugee debate one thing has been lost sight

of and all too commonly the politicians and the media speak glibly of

sovereignty of the borders and the right to control entry. The refugee

convention is one major exception to the doctrine of sovereignty of the

borders and where a person makes an application for protection as it is

called in Australia and is then found to be a refugee the whole issue

of sovereignty of the borders does not apply.

DR OZDOWSKI:

Coming back to legal access and making separate assessments of

children I am aware of cases when children were kept in separation detention

for over seven months without access to a whole range of services which

would be deemed as necessary for children in broader society. Can you

perhaps explain to me how would it change the decision making or assessment,

the outcome if children had access to lawyer and if they were viewed as

a separate unit from family unit?

MS BIOK:

Commissioner, I think the children at least would be informed and know

what the questions that are being asked of them mean. We are talking about

children who have been traumatised by their experience at home and then

by their travel to Australia, children who not only arrived by boat with

other people but arrived by plane and dropped by a smuggler at an airport

somewhere. This child then is apprehended and kept at the airport.

Often the turnaround

time for these children could be less than 12 or 24 hours. Now in that

time they are asked a raft of questions through a telephone interpreter,

they are not in a position to be able to understand what the process means

and they need to be advised on that.

DR OZDOWSKI:

What about the guardian? To what extent does international law

define the duty of a guardian of a child in such a situation?

MS BIOK:

Certainly domestically under the Immigration Guardian of Children

Act the Minister has specific duties and also in the case of X and Y and

the Minister, North J has indicated what he considers the Minister's duties

to be as a guardian or children and I would say that it is the Minister's

job as a guardian to provide that children are aware of their legal rights.

DR OZDOWSKI:

Is he providing property duty of care for children as a guardian according

to your knowledge?

MR BITEL:

It is argued that the Minister is failing in his responsibilities

under that legislation to properly have regard to the welfare of the children

and to take all the steps which a guardian must adopt. In many regards

of course there is a patent conflict between his role as minister to oversee

the immigration program and to ensure the integrity of that program and

also to ensure the integrity of the refugee program and on the other hand

to have regard to the protection of children.

Certainly in a situation

where children are being detained which for the reasons we have said in

our submission we consider to be a breach of all the fundamental principles

of law and then to the extent that the Minister is overseeing that breach,

he is in conflict but he is also caring for the children.

DR OZDOWSKI:

Could you perhaps compare for me the situation of a child in detention

and a child in a broader community? Let us put it as an example that the

child in detention is experiencing riots and does not have access to proper

schooling or to some medical services. What would have happened if a similar

situation occurred with a child in the broader community?

MR BITEL:

I would have thought there would have been a public outcry of gargantuan

proportions. If children were in the community experiencing the traumas

which children in detention experience on a daily basis. I mean the first

item in the news today was the issue of DOCS and its failure in New South

Wales to properly care for those who are under its charge. Quite properly

that is the subject of I believe, an ombudsman's report and all sorts

of public inquiries.

Fortunately we have

got this Inquiry but it has been going on for far too long and how many

children have been traumatised in a manner which is, we fear, of a permanent

nature, children who will ultimately become Australians and who will be

expected to maintain themselves within the community in a manner which

is appropriate and yet it is the laws of this country which are in our

view in large part added to the traumas which must have severe permanent

impact on them.

Now, I can only stress

that the obligations of the guardian in that situation have to be paramount

and to the extent that the guardian is also the prison warden and we haven't

made reference directly to it in our submission but the issue of the torture

convention is something which springs directly to mind as well and certainly

within the context of the Torture Convention the manner in which people

are detained could be a breach of obligations under the Torture Convention.

MS LESNIE:

What sort of features of detention would make it a breach under the Torture

Convention?

MR BITEL:

Well, if a person is - if there are breaches of the international principles

to start with in the manner in which children are to be detained it could

be argued that there's been a breach of the Torture Convention or the

issues under the Torture Convention could come into play and we've argued

in our submission that the manner in which children are detained could

arguably be a breach of the minimum standards applicable for the detention

of juveniles.

MS LESNIE:

And certainly placing children in an environment where they are likely

to commit acts of self harm and watch other people to commit self harm

would be placing them in a situation which would be a breach of the Torture

Convention. I could just come back to the Commissioner's comment in relation

to guardianship and what would happen to children in the wider community

in a similar situation certainly they would be brought to a children's

court under care proceedings?

DR OZDOWSKI:

The person responsible for care would be taken to the court.

MS LESNIE:

Yes. And similarly under the Immigration Guardianship of Children

Act the Minister has the power to give the custody of the children to

another party as custodian but he must indicate why that is a suitable

person to be the custodian of the child. To my knowledge we haven't had

any assessment of why ACM is considered to be a suitable custodian for

children and certainly for unaccompanied minors where there is no adult

in control.

DR OZDOWSKI:

One thing I don't understand. We have quite good state laws protecting

children and somehow these laws are failing to apply to children in detention.

Could you perhaps explain what the problem is because we don't have as

I understand any Federal laws dealing with protection of children because

it's a state responsibility but on this particular situation here the

children appear not to be covered or the laws are not being applied to

situations in detention.

MS BIOK:

I think that comes back to more or less legal fiction. The detention centres

are the territory of the Commonwealth of Australia and people who are

in them have not yet entered Australia.

MR BITEL:

And I think that the facts that applies that the children are

effectively in Australia and therefore are the subject of Australian law

and to that extent I think I would share your concerns which I read between

the lines that there may well be not only a failure by the Federal authorities

but by state departments who are charged with caring and protection of

children, that they are failing in their responsibilities and that it's

unacceptable to just pass the buck and say that it's a Federal issue because

they're in immigration detention.

They are still children

who are in Australia who on the statistics especially for Afghans and

Iraqis have 85 per cent or better chance of being ultimately allowed to

stay in Australia and who will then become Australians. And to the extent

that there has been a failure by the state authorities to take appropriate

actions under their legislation I think that that is equally a matter

of concern.

MRS SULLIVAN:

You used the term "legal fiction" before, is there a legal solution

to this dilemma?

MS BIOK:

Well, I think there is one in terms of a visitor system where the state

agencies would be able to establish and to control and monitor what is

happening in the detention centres to establish standards and guidelines

and to regularly have people going there as visitors to (1) the detention

centre and (2) to specific children who may be at need and I'm thinking

of children who are disabled, ill or are showing real signs of mental

illness and cannot be released for whatever reason.

MR BITEL:

And I've rarely had other submissions on this, the Immigration

Guardianship of Children Act, but I think that that Act needs to be the

subject of serious review and it may well be that the Minister should

not be the person who's charged with the responsibility but perhaps the

Federal Minister for Family and Community Services or whatever it's called

in the Federal context or some independent person such as one of the state

commissioners but a Federal commissioner in that context.

DR OZDOWSKI:

I'll perhaps ask my Assistant Commissioner has she got any additional

questions before I move to legal aid issues.

PROF THOMAS:

Regarding the issue raised earlier that in the best interests of the child

where the child should be put on one side, practically everybody has said

the children should not be in detention centres but on the other side

children should not be separated from their family. You submitted we should

consider the cares and the best interests of the child, does it mean that

you hold that there may be some case that children can be forcefully removed

from their parents against their wish if it's in the best interests of

the child?

MR BITEL:

Having been the person who said that, yes, I think there must be, just

the same as in the Family Law jurisdiction where you've got husband and

wife both of whom are competing for the custody of a child inevitably

I think one party will win and so the child will be taken from one of

the parents because that's what the court considers to be in the best

interests of the child. So in a situation like this given that the fundamental

principle is that a child in a detention centre it's wrong, can never

be acceptable under any circumstance.

If it's determined

that no matter what parents should be in detention centres then I would

say except in the most exceptional circumstances which would be subject

to outside involvement, you have to have counsellors, perhaps there should

be an issue of judicial review of it much the same as there is in the

Family Court and a determination of what is in the best interests of the

child except in a situation like that I think I would say yes. I would

be somebody who would say, it would be in my view better for the child

to be outside not in the detention centre, not denied access to visitation

rights to the parents but in a situation where the child can be brought

up in the most normal situation possible having regard to the abnormality

of the fundamental situation.

MS BIOK:

And I can think of an example straight away, not all children who are

in detention centres are in a refugee situation. There are families who

have become unlawful in Australia and then the family is taken into detention

while moves are made to see if they can apply for another visa or arrange

to leave Australia. Now in that situation children will go into detention

with their parents. They may have relatives outside who are Australian

permanent residents or citizens who could then take the children and allow

them to continue their normal life before they were in detention, allow

them to continue going to school as they had beforehand.

So while the procedure

is carrying on and their parents remain in detention because there could

be a valid fear that somebody will again abscond into the community somebody

who may have been here unlawfully for a significant period of time it

may be valid for the parents to be detained but in that situation the

children could validly or very easily go to the care of somebody who had

close personal links with them.

PROF THOMAS:

Well what if it is the case where the children because of the variety

of ages involved insist on being with the parents because I think in these

cases why the parents have always been the caring parents. If you ask

the children most of them will say they want to be where ever their parents

are.

MS BIOK:

It is a very individual matter.

MR BITEL:

Yes, it is an individual matter which should be the subject of

not only a decision by a departmental officer but should be the subject

of possibly a review and that is again where the role of an outside guardian

should come into play. Somebody who is independent and has the best interest

of the child at heart but sometimes decisions are taken which are not

always decisions which the children themselves would want because it is

considered in their best interest.

I appreciate it is

an invidious situation and it is a very difficult one but if we are to

have a system of mandatory detention we fall back on the basic principle

that it can not be acceptable to detain children under any circumstances

except for that initial screening period. Once you have accepted that

basic premise you then have to adopt formulas and procedures to work out

ways in which you can over come the particular problems that you have

addressed Commissioner.

DR OZDOWSKI:

The Minister often expresses concern about the possible absconding of

asylum seekers, do you have any information about families of asylum seekers

absconding?

MS BIOK:

There seems to be a contradiction here for me Commissioner, the minister

is constantly telling people that refugees are coming to Australia to

look for a better lifestyle, to look for better health, economic stability

for their children and better education. Now a family is not going to

abscond with a child if they are not going to be able to access health

and education right and that is going to make them very easily disclosed

and identified in the community.

MR BITEL:

And also I think that there is a mixing of apples and pears in

this whole debate about absconding. Anybody who has a fear of persecution

which is well founded would if they have got the slightest brain in their

head, not abscond during the period of processing. If they have been ultimately

refused in the determination system at that stage maybe they will abscond

but whilst the application is both at the primary stage and in the review

stage before the RRT it would seem to me if somebody has (a) an application

which is well founded and (b) where there is an 85 to 90 per cent chance

of success if they are an Iraqi or an Afghan that they are certainly not

going to abscond but they are going to do what every normal person would

do in that situation which is comply with lawful directions to ensure

that their case is given maximum consideration and the prospects of success.

Now Australia is

not unique in this problem, ever country which has got asylum applications

faces the problem of what do you do about absconders but Australia is

unique in the approach that it takes in terms of mandatory detention as

a means to solve that problem. Now if every other country can accept that

there is a risk and of course there is a risk but you have to weigh the

risks and if the risk is because a few people might abscond therefore

the vast majority of people who are in detention and children who are

in detention must continue to be detained at God knows what cost to those

children then it seems to me that that is an unacceptable compromise and

it can't be accepted.

DR OZDOWSKI:

Do you have or could you point me to any statistical evidence

to support your claims that families are unlikely to abscond, maybe from

other countries where kids are kept in the community?

MR BITEL:

I can't give you those statistics, I don't know whether Ms Biok

can but I mean it is a question which if at the conclusion of the hearings

you still have I am happy to take on notice and get some information.

DR OZDOWSKI:

Please take it, I would be very much interested especially about evidence

from countries which are compatible to us like US or UK or Canada.

MR BITEL:

Or New Zealand?

DR OZDOWSKI:

Yes, New Zealand whatever but now can we ask - my Assistant Commissioner

has a few questions.

MRS SULLIVAN:

Can I just return briefly to the concept of duty of care and my question

is what do you advise should be the legislative base for defining duty

of care and I guess what role might international law might play in coming

to an appropriate definition of duty of care?

MS BIOK:

Of the top of my head I would say to ensure that all the basic

human rights as set out in international instruments are being met and

certainly in the universal declaration we have a very clear listing of

rights that should be met and then in CROC we have the comparative rights

for children and we could easily see that all of those rights are not

being met in detention centres and that is something that certainly the

Commonwealth Attorney General with state agencies and commonwealth agencies

mandated to look after children should prepare guidelines and then ensure

that those duties are being met.

MR BITEL:

I mean I would think that the guidelines would surely exist in the other

hat that you wear Commissioner. If somebody asks you, well what standards

would you expect to be applied obviously Commissioners at State level

have developed standards and there seems to be no reason why similar standards

wouldn't apply merely because these are children who are not yet part

of the formal community in Australia because they haven't been granted

permanent or temporary visas but they are still entitled to the same rights

as children.

DR OZDOWSKI:

Also the children which were determined not to be refugees and

who are awaiting deportation they should be accorded similar rights?

MS BIOK:

Absolutely.

MR BITEL:

Absolutely there is no doubt about that and Ms Biok made reference

to the fact that not all children in detention are either asylum seekers

or refused asylum seekers. That there are I don't know the precise numbers

but you would be able to get those from the department, there are certainly

numbers of children who have been picked up who are in the community at

large because of the mandatory detention provisions of the legislation

in respect of anybody who doesn't have a visa. They are also the subject

of detention and presumably they are also the subject of your concerns

for the purpose of this Inquiry and similarly it should be considered

within the context of our submission.

The same principles

apply to them, they are people and we have absolute obligations to children

whilst they are physically in this country and to the extent the issue

of legal fiction that they have or don't have visas or haven't entered

into the jurisdiction for legal purposes is a nice issue at law but the

fact is that they are still here and if you have a look for example at

what happened to the Cambodians some years ago when they were in the detention

and they had to go through this ridiculous regime of going back to Cambodia,

staying there for 12 months and then we gave them visas to come back to

Australia.

In fact I think there

was, was it "A" himself or one of the children in "A"s

case who was a Cambodian and had been in the detention centre for some

years. I think it was four years there were some Cambodian children who

were then ultimately sent back and then came back to Australia. Now I

mean just because they may not be here now they may be here in the future

and so we have to be concerned about the long term consequences to the

children as a consequence of that detention.

DR OZDOWSKI:

Basically what you are saying, that every child in Australia regardless

of immigration status is entitled to our protection and favour.

MR BITEL:

I think that's what the Convention on the Rights of the Child says.

MS BIOK:

That's certainly the international law.

MR BITEL:

To the extent that Australia doesn't provide that protection

then we're falling down on our international obligations. It's no defence

or excuse to say that to rely on the provisions of the Migration Act to

hide as a shield for failing to comply. It brings to mind this whole issue

of having to say sorry and I fear that in the years to come this sorry

episode will lead to many Australians taking the view that we have a sincere

apology to make to those who have been the victim of public administrative

policies which are wrong.

DR OZDOWSKI:

Coming briefly to Legal Aid issues.

MS BIOK:

Right, I've got my colleague from Legal Aid here.

DR OZDOWSKI:

If we could ask you to join us at the table please. If I could ask you

first to take an oath or affirmation.


PHILIPPA MARTIN, affirmed [10.27am]

LEGAL AID COMMISSON OF NEW SOUTH WALES

DR OZDOWSKI:

Could I ask you to state your name, the organisation you are representing

and your address for the public record?

MS MARTIN:

My name is Philippa Martin. I represent the Legal Aid Commission, the

National Legal Aid. The address is [address removed], that's Legal Aid

New South Wales. I'm a solicitor.

DR OZDOWSKI:

Thank you very much. Could you make a brief opening statement

and in particular what I'm interested in is to what extent asylum seekers

are entitled to any legal aid in Australia.

MS MARTIN:

We represent the National Legal Aid which is a coalition of eight legal

aid commissions through the state and territory legal aid commissions.

The commissions have expertise in administrative law and in representing

asylum seekers. We also have expertise in representing juveniles in detention

in criminal law jurisdictions. In terms of representation, in the past

representation for asylum seekers in detention has been provided through

the Attorney-General's Department and national legal aid commissions were

funded directly through that scheme. That scheme changed in 1997 and whatever

representation is provided to asylum seekers in detention is now provided

through the Immigration Advice, IAAAS scheme, which is funded by the Department

of Immigration. People in detention signal that they would like a representative

and the Department of Immigration provides a person with a representative

once they have been screened in, that is once they have been allowed by

the Department of Immigration to apply for asylum

DR OZDOWSKI:

So the advice wouldn't be provided on initial stage when they were in

separation detention, would it?

MS BIOK:

No, there's no access to lawyers.

DR OZDOWSKI:

So in a way if they do not know the right formula there is nobody there

to advise them about it at the initial stage of applying?

MS MARTIN:

That's exactly right. People on arriving are interviewed by I

believe compliance officers from the Department of Immigration who investigate

how they came to Australia and it is at that stage that a determination

is made whether a person is allowed to apply for asylum.

MS BIOK:

Commissioner, if I could just make a comparison for you. When I started

doing refugee work with the Commission in the early 1990s it was practice

that once a week, I think it was every Wednesday, a Legal Aid lawyer would

go to Villawood Detention Centre as a duty solicitor, the same way we

have a duty solicitor scheme operating in all Local Courts in New South

Wales and that lawyer was there to provide advice on any legal issues

related to immigration and related to broader issues and through that

scheme we picked up refugees who wanted to apply, we also picked up people

who had become unlawful in Australia who could make another application

and we could provide a range of legal advice to people.

It was through that

scheme also that children who had become unlawful in Australia and could

apply for close ties visa found out about that. Now that scheme hasn't

operated since the IAAAS scheme has come in. Also as my colleague mentioned

under the contract with the Department for Immigration, Legal Aid commissions

have to apply to be accepted as a contractor with immigration. Now the

Legal Aid Commission of New South Wales and the Legal Aid Commission of

Western Australia who did most of the detention work have not received

that contract.

DR OZDOWSKI:

Why is that so?

MS BIOK:

We don't know.

DR OZDOWSKI:

What about the amount of money that went earlier and to this scheme administered

by the Attorney General's Department and now by the Department of Immigration,

what's the difference? Is there any difference or was the money simply

transferred from the federal Attorney General’s to the federal Immigration

Department?

MS BIOK:

I don't know but we could try and find that out for you.

MS MARTIN:

Certainly now funding is provided on a case by case basis so under the

contracts the contract provider is given a certain amount of money for

each detainee represented. That money determines to a certain extent what

kind of representation we can provide and the time we can provide the

interpreting costs. It needs to cover everything and given that many of

the contractors now need to make a profit from their representation it

is our argument that the quality of representation is affected by the

funding.

In addition in the

remote detention centres contractors are having to prepare protection

applications maybe three a day which would maximum give 4 hours preparation

to each detainee. In the case of minors that might mean that where there's

families that are being represented the protection claims that a child

might have may not be covered at all and in the case of unaccompanied

minors, certainly four hours is not necessarily enough to advise a child

why they're in detention, what's happening to them and gain enough trust

to be able to elicit any claims for protection.

DR OZDOWSKI:

It is four hours of direct contact do you know?

MS MARTIN:

I'm saying approximately. Legal Aid doesn't have experience in

the remote detention centres. We have experience in Villawood where we

have

DR OZDOWSKI:

Where you can access people?

MS MARTIN:

Yes, and we have more leeway, partly because Villawood is in Sydney we

can travel and meet the child a number of times.

MRS SULLIVAN:

What would it be in your average per case at Villawood compared with that

average of four hours?

MS BIOK:

Well, there was also a problem there, the process was that you would get

a referral from the Department of Immigration saying would you like to

take this person on as a detainee client? You then had three days in which

to decide whether you wanted to take that person on, to establish what

their language was and the first meeting to go out there. From the time

you indicated that Legal Aid would take on this client you had three days

to submit the application, the completed application to the Department

of Immigration.

DR OZDOWSKI:

Which all supporting the human

MS BIOK:

Yes, to have

DR OZDOWSKI:

Just not possible, is it?

MS BIOK:

And there were plenty of situations and I have personally knowledge of

where a letter has gone to the Department saying here are as many documents

as I can provide, I can't get the translations for another week, could

you please hold off the decisions but the decisions have been made even

before the translations arrived.

MS LESNIE:

Did the Department do their own translations of the documents?

MS BIOK:

No.

MS LESNIE:

So there were documents attached to the applications that were not considered

in the decision?

MS BIOK:

No, and they were then taken to the Refugee Review Tribunal when

it went on appeal. But certainly in that situation where you're going

backwards and forwards to Villawood, where you are dealing with two parents,

often, where you have got statements to prepare and maybe an adolescent

child who may have claims of their own. You don't have the time to really

sit and talk to the child to build up their trust and, as Pip has indicated,

it's not something you can do very quickly. Also with unaccompanied minors,

it can take you three days before they are willing to tell you what they

have experienced and what has made them come to Australia.

MRS SULLIVAN:

So in fact there is no formal acknowledgment that the children's

cases may need more time?

MS BIOK:

No.

MRS SULLIVAN:

And no special provisions either?

MS MARTIN:

No. In addition, another problem with the IAAAS scheme is that the other

rights that the child would have in terms of information about their detention,

they may be applying for bridging visas, that's not covered within that

scheme. Representation at the Refugee Review Tribunal is not guaranteed

under that scheme. Certainly all documents need to be prepared, but having

a representative with them at the Tribunal is not covered under the contract.

DR OZDOWSKI:

The Minister quite often is concerned about the high costs of legal representation.

When you receive that contract to represent a person, how far did your

contract extend? Can you go to the High Court, all the way, or is it relatively

limited?

MS MARTIN:

Representation is only at the Departmental and Tribunal stage.

DR OZDOWSKI:

I see.

MS BIOK:

But under legal aid guidelines, under the Commonwealth guidelines, we

can take on cases for judicial review.

DR OZDOWSKI:

You can?

MS BIOK:

Yes, and that's not only for detainees, that's for all refugees. Under

specific guidelines.

DR OZDOWSKI:

What percentage of detainees would go higher? Would go to the

Federal Court under the guidelines?

MS BIOK:

Legal Aid represents very, very few for judicial review, and, certainly

since the privative clause has been implemented, virtually none. I think

a lot of detainees go to the Federal Court because they realise there

is something flawed in the process and they feel that there should be

somebody who will actually look at their case properly. A lot of them

aren't advised about what it means to go for judicial review. Again, that

was something that Legal Aid did a lot work on when we had a Duty Solicitor.

Similarly, now, we advise people by phone and by mail, a lot of detainees

will send us their RRT rejection saying that they wish to go to the Federal

Court. We will then prepare an analysis of that and contact them and explain

why the Federal Court is not the appropriate option and that in fact the

Federal Court cannot give them a visa to remain in Australia.

DR OZDOWSKI:

Thank you. They are all the questions I have. Do you have any?

MR BITEL:

Could I just make one

DR OZDOWSKI:

Yes.

MS BIOK: arising

from a question there. Just an issue, going back to the issue of the Minister's

obligations under the Guardianship of Infants Act. It's been a matter

of concern to some that where you are dealing with particularly young

minors who are applicants, especially if they are unaccompanied, that

who is the person who actually completes the application and signs the

application on behalf of the applicant. If they have incapacity to complete

the form, given their age, is it the ACM Manager, or is it indeed the

Minister who completes the application on behalf of the applicant and

then makes the decision?

DR OZDOWSKI:

What is the current practice?

MR BITEL:

I think that the current practice is that the children themselves sign

the form, probably improperly and unlawfully. That's certainly something

which an outside Commissioner or Guardian would have to develop proper

guidelines for.

DR OZDOWSKI:

Professor Thomas?

PROF THOMAS:

No questions.

DR OZDOWSKI:

Yes. Thank you very much for appearing here at this Inquiry.

Thank you for your submissions. I now adjourn this session till 11 o'clock.

MORNING TEA
RESUMES [11.00am]

DR OZDOWSKI:

So possibly now we can start and I would like to invite the Refugee Advice

and Case Work Service to come forward to give evidence. Thank you, could

I ask you to take an oath or affirmation.

MELISSA McADAM, affirmed [11.00am]

SOLICITOR, REFUGEE ADVICE AND CASE WORK SERVICE

ALISON RYAN, affirmed [11.00am]

CO-ORDINATOR, REFUGEE ADVICE AND CASE WORK SERVICE

DR OZDOWSKI:

Thank you, now could I ask you to give your names, addresses,

qualification and capacity in which you are appearing for the record.

MS RYAN:

My name is Alison Ryan, I reside at [address removed], I am a

solicitor and migration agent and I am here as the co-ordinator of the

Refugee Advice and Case Work Service.

DR OZDOWSKI:

Thank you.

MS McADAM:

My name is Melissa McAdam, I am at [address removed], I am a

solicitor in case work for the Refugee Advice and Case Work Service.

DR OZDOWSKI:

Okay, thank you very much. Just to remind you about the privacy

orders I made some time ago I am asking you not to identify asylum seekers

or people working in detention centres here in the public evidence. If

you would like to provide us with the name please talk to the Secretary

of the Inquiry at a later stage. Now thank you very much for your submission,

it is substantial, we read it and now I would like to make an opening

statement. In the opening statement could you focus on your expertise

in the area and on whether you have had direct contact with refugees,

especially children.

MS RYAN:

Okay the Refugee Advice and Case Work Service is a community legal centre

that provides representation and advice to on shore asylum seekers. We

do that both in the community and in detention. We provide representation

to people in Villawood and all of the remote detention centres, that being

Woomera, Curtin and Port Hedland. We receive funding through the IAAAS

program so through the Department of Immigration and we also act on pro

bono basis for applicants outside that funding.

DR OZDOWSKI:

How many cases altogether do you handle per year in this category?

MS RYAN:

All of the cases we handle are refugee cases and I would estimate

at about 250 cases per year handled by our office.

DR OZDOWSKI:

All right, substantial. Okay, would you like to make an opening

statement as well or are you covered by the same?

MS McADAM:

There is no need to.

DR OZDOWSKI:

Okay, listen you have possibly seen the submission from the Department

of Immigration to the Inquiry which makes a number of points. One of the

points in the submission is that under Australian rules immigration detainees

have the capacity to take proceedings before a court to determine the

legality of the decision and it basically means that the children in detention

can legally challenge the decision to detain them in the court of law.

My question is do you know of any cases when this right was exercised

by children?

MS RYAN:

No, I think there are huge problems practically for children to exercise

that right but there is only a limited amount of children and I take it

the department is referring to making a bridging visa application so they

can be released from detention

DR OZDOWSKI:

They are talking generally about a legal challenge to their detention

in a court of law so, dealing with all issues starting with the issue

of detention.

MS RYAN:

Okay well notwithstanding the fact that a child mightn't have

the ability or legal knowledge or even representation to know how they

could access the judicial system there are certain children that would

be able to make an application for a bridging visa. Somebody that is under

18 is able to make an application for a bridging visa if they were detained

after 1994, if they have an application to the department or the Refugee

Review Tribunal or an application for judicial review regarding their

protection visa application. So a child that is under 18 with or without

their parents that is in detention and that is waiting for removal, so

somebody that was being rejected by the courts or by the Tribunal did

not decide to take it any further and so we have got clients that - especially

Iranian children or Iraqi children that are waiting for removal for possibly

three or four years and they are unable to access any - to make a bridging

visa because they are ineligible to do so.

DR OZDOWSKI:

So basically what you are saying that some children who were unsuccessful

in applying for protection in Australia and cannot be removed to the countries

from which they came may sit in Australian detention indefinitely.

MS RYAN:

That is my understanding, I don't believe that they have the

ability to make a bridging visa application and also for people that don't

have a protection visa application on foot so children that have come

into detention, unaccompanied minors or children with families that haven't

made a protection visa application that they don't have a basis .....

DR OZDOWSKI:

Do you know of many children spending a long time in detention when they

cannot be removed?

MS RYAN:

Yes, certainly.

MS McADAM:

Yes, we do. They have spent so long in detention they are now

no longer children. They came in as minors they are now over 18, they

have been there for three or four years.

DR OZDOWSKI:

What about the children who can make an application for bridging visa,

how successful are you with securing this bridging visa?

MS RYAN:

I would be very surprised, I think there is only extremely limited circumstances

with a child who has come in with their parents has ever been granted

a bridging visa. For these children there has to be a recommendation from

the Department of Community Services in New South Wales but the comparative

bodies throughout Australia to say that that - it is in the best interest

of the child to be released from detention. And it is common through Department

of Immigration decisions that the best interest of the child is not served

to be separated from their parents. So the unity of the family overrides

that consideration.

I think there is

huge practical problems in the sense of making that application. A form

to make that application is not widely available, this is for people who

are non immigration cleared. It is quite difficult to co-ordinate the

services of your respective community services with department to make

those reports or to provide that and those services have to be requested

by the Department of Immigration for the Department of Community Services

or a respective service to come into the centre and make that assessment.

So it is not something that the child or an advocate of the child

DR OZDOWSKI:

So it means the State department doesn't have automatic rights to access

children in detention?

MS RYAN:

No, sorry I am unaware whether they have an automatic right to access

them in detention. I know certainly there is meant to be a reporting mechanism

where the department reports any unaccompanied minors to the Department

of Community Services. We have incidences where we believe that reporting

mechanism has broken down but I am not sure what rights of the Department

of Community Services has to enter detention.

MS McADAM:

I don't know either.

DR OZDOWSKI:

Do you know of any cases where the Department of Community Services

has signed a certification that it is in the best interest of a child

to be removed from detention when parents are still staying in detention?

MS McADAM:

I haven't come across that.

DR OZDOWSKI:

So one could conclude that there is a consistent view of the Department

of Community Services that it is in the best interest of the child to

be detained with family in a detention centre.

MS McADAM:

Community Services don't often get involved, it is a rare case

when a detainee will go through this whole procedure to get a bridging

visa. It is a very daunting process to initiate. Another problem is

MS LESNIE:

Sorry, why is it so daunting to initiate?

MS McADAM:

Because you have to be able to know what to do and you need to persuade

the State Government body to come in and intervene and usually you have

to do that through liaising with DIMIA staff as well.

MS LESNIE:

Is it not part of the legal advice that an IAAAS provider would provide

to detainees to initiate that process?

MS McADAM:

It is rare to get an approval, it has - they are looking at the best interest

of the child and for someone, a child that is detained they have to show

some really extreme circumstances for DOCS to recommend or for a state

child welfare body to recommend their release.

MS LESNIE:

So does that mean you make the judgment not to advise your clients to

apply for a bridging visa?

MS McADAM:

It is standard advice we give in the beginning what the grounds for getting

a bridging visa are which include that if you are under 18 there are some

grounds for getting a bridging visa to be released from detention.

MS RYAN:

Can I just add something on the IAAAS' contract, there is no, the contract

doesn't provide for any representation as to bridging visas. So as a migration

agent and a solicitor you can provide that advice to your client but there

is certainly no capacity under that contract to be funded to represent

someone to get a bridging visas.

MS LESNIE:

So is it fair to say that as an IAAAS adviser you are not paid to follow

through on a bridging visa and that furthermore in order to succeed in

a bridging visas it requires the Department of Immigration itself to follow

through the process so they have to ask the relevant state authorities

to provide the information that would then make the application successful.

MS McADAM:

Yes as a migration adviser I mean RACS does get involved and initiates

some bridging visa applications but all we can do is ask DIMIA to start

the process because the PAMs the procedures DIMIA follows that they have

to initiate DOCS to come in generally.

MRS SULLIVAN:

Can I ask a question another way, what examples are there where there

is no legal representation for children and young people?

MS RYAN:

I think one case that I've had recently that some unaccompanied minor

child was taken from the community into detention and then the person

- sorry, claimed to be an unaccompanied minor - and then was interviewed

by numerous Department of Immigration people including a sex task force.

Nobody else was present at those interviews besides the Department of

Immigration, she was then taken to her, the Embassy of the country she

came from for deportation. So that person had no access to legal representation.

Through the intervention

of a third party the person wasn't removed and was referred to our service

so she could get legal representation but that's an instance where an

unaccompanied minor would have no access to legal representation. They

need to announce a claim for protection, so they need to have prima facie

obligations or the department is perceived and has a prima facie obligation

under the Refugees Convention to in theory then be referred to a legal

representative from the IAAAS if they are in detention and if they haven't

previously put in a protection visa application.

DR OZDOWSKI:

Now I would like to go to the screening process and the Department of

Immigration told us that the interviews with children are conducted in

non threatening setting and the children ask open ended questions which

enable them to say anything they wish to say in support of their claims.

They also say that they are non-adversarial, that they are conducted in

a culturally sensitive manner and that interpreters are used at all times.

What is your experience of the process?

MS RYAN:

Firstly I would like to say that as of possibly six months ago the Department

of Immigration has refused to release any entry interview documents.

DR OZDOWSKI:

Did you try FOI on?

MS RYAN:

They refused through FOI and refused through review of FOI and we've currently

got matters in the AAT outstanding on these issues. So the comments would

provide experiences of speaking with clients and then we do have records

of interview prior to about six months ago.

DR OZDOWSKI:

What's the reason for suddenly changing tack on this one?

MS McADAM:

They quote that they are exempt under the FOI Act. Their concerns are

that people are using the transcripts or the tapes of interviews to send

back to people smugglers so they are denying detainees and asylum seekers

the natural justice rights regarding those interviews because of that

concern of theirs.

DR OZDOWSKI:

Are you aware of things being sent back to people smugglers?

MS McADAM:

We are not aware of that. That's not to say it doesn't happen

but I have no knowledge of that.

DR OZDOWSKI:

But what you are saying, it's difficult to represent your claims without

access to this kind of information?

MS RYAN:

Certainly but those interviews are used constantly to undermine

the credibility of an applicant and it is not possible then to find out

what was said in the entry interview. Entry interviews are renowned for

the fact that they are conducted with people when they have just arrived

off a boat or off a plane often after long travelling periods, monstrous

journeys, very short interviews often, if you have a task force there

will be inappropriate interpreters in the sense that one interpreter will

go up for a boatload of people where they don't know, they are not quite

sure of which languages are being spoken, certainly not which dialects,

but you often get Iranian an interpreter interpreting for Afghans or vice

versa and a common complaint is that we didn't say all of our story because

the interpreter told us we've only got 15 minutes for that interview.

And they do, they have huge workloads on those task forces and you have

to do them very quickly and often people complain about those entry interview

processes.

MS McADAM:

And there appears to be no difference in the questions or the

style of questioning for unaccompanied or for minors as opposed to adults,

they are the same form, the same questions, the same setup and to say

that asking open ended questions advantages an asylum seeker, it doesn't,

it just leaves them as lost as they would be.

DR OZDOWSKI:

And this first interview is then followed by another interview when they

are taken to a detention centre and are waiting in separation detention

or how does it work?

MS RYAN:

No, sir. If somebody - they are not provided with any knowledge of ability

to access legal representation or what it entails to seek protection.

They need to show under the Convention why they would have a problem returning

to their country. If they don't do that they don't get another interview

as far as, well as far as the process theoretically works.

DR OZDOWSKI:

So they would be screened out as in the language of the Department of

Immigration and when they are screened out do they get a second chance?

Do they have as chance to in a way bounce back?

MS RYAN:

My information is no. There certainly is instances of self screening

in and that's where a detainee manages to come back into the screening

process after a while and that's been done by people throwing application

forms over fences to lawyers when they go up to detention in other matters

or the idea is that you get your review of your screening out and that's

done through Canberra so you, the head of onshore protection for the senior

DIMIA official; you need to somehow through the chain identify that you

do have protection obligations and there is one person in Canberra that

decides whether you do or you don't.

MS LESNIE:

If I could just be clear. So whether or not a person engaged

Australia's protection obligations is determined within the first 15 minutes

of getting off a boat or a plane?

MS RYAN:

I'm going to say it s a 15 or so minute interview. It could be longer

than that. To my knowledge the times are not recorded on the interviews

and that won't necessarily happen 15 minutes after they get off the boat.

Like, there are logistical considerations. At an airport that will happen

very soon after someone gets off the plane and if they don't engage the

obligations, the protections obligations of Australia they could be sent

back straight away, they would be turned around. If they can't be turned

around they are then brought to a detention centre and I am not confident

to say what time period generally screen out interviews occur with boat

arrivals.

MS LESNIE:

Could I also follow up when you were talking about the sort of second

chance for self screening in on a second chance. I know that an IAAAS

provider is given to people who are screened in initially. What about

the people who are screened in on a second chance? Are they also given

the opportunity to have an IAAAS provider represent them through the process?

MS McADAM:

Yes.

DR OZDOWSKI:

I understand correctly, at this initial interview which may be determinative

for the case you can't get access to information which is provided during

that initial interview but the department which has that information is

using that information in legal cases. Is this correct?

MS RYAN:

Yes.

DR OZDOWSKI:

Now, you are an IAAAS provider. We had a number of providers in our earlier

hearings who have asked to give evidence in camera because they were concerned

about the continuation of the contract or they were the reasons they gave

us. You decided to come and give evidence in public. Could you explain

the difference?

MS RYAN:

I must say that's something that I hadn't considered. I understand

that yes the department would have access to what we are saying. I don't

have any problem that there's anything untruthful about what is being

said and that we would talk openly with the department as we do in meetings

that we have with them through a number of NGO type DIMIA forums and RRT

forums that we have with the department and so these issues when we can

are brought up and I would be very concerned if we were to lose the contract

which is always a bit tenuous on the basis of things we've said at this

inquiry.

DR OZDOWSKI:

Thank you. Can I ask my Assistant Commissioners to ask questions.

MRS SULLIVAN:

In the contract that you have is there a time pressure on you in processing

claims?

MS RYAN:

Yes certainly for people in remote detention we have to interview - we

had to put forward three protection visa applications per day and that

could include a family unit of a number of children and parents. So certainly

three. We were given a list of people that we need to process and we have

to process three of those per day and often the people on that list will

only be the father, when there is another four people or five people involved

in that family application, so three of those per day. We could probably

compare that with someone that we assist in the community where it might

take us 5 or 6 hours to prepare such an application, or longer. Certainly

when we do our referrals at the local Detention Centre, Villawood, where

we don't have that time pressure we'd spend a good part of the day out

there but certainly in remote detention task forces we have to process

three per day.

MRS SULLIVAN:

So in terms of this perhaps being an equity issue, ie people in Villawood

get a better service, have you raised this in your full and frank discussions

with DIMIA?

MS RYAN:

No, I haven't personally raised that issue. I suppose we get around that

by taking longer than we should. It has been raised by some providers

but our ability to alter the detention contract and negotiate we've just

recently had another negotiation of the community contractors really is

very limited. I think the Department definitely has a very powerful position

when negotiating the contractors and it's normally presented to us and

then with the knowledge that amendments really can't be made to that.

MRS SULLIVAN:

I'm trying to get a sense of how you feel as a professional in the service

you're providing.

MS MCADAM:

I mean we have experiences where we will do our utmost to provide the

best service we can. So we will go to a place like Woomera and we'll stay

there til after midnight to make sure we get the clients' claims as comprehensively

as we can and we can explain the whole process to them as properly as

we can. So we work within the restraints but they're not ideal. The tender

process is extremely competitive. We think that our centre provides a

very good service and that it is important for us to continue to be an

IAAAS provider because we're not in there for profit but it is a competitive

tendering process.

MRS SULLIVAN:

Can I just pursue it a little further in terms of your clients who are

children and young people and on the assumption that they might have additional

concerns or you might have additional questions, can you give us a feel

for how your processing of their claims differs from how you process adult

claims?

MS RYAN:

I think the processing children’s claims, I don't think there is

a huge difference. I suppose the difference in taking a statement is -

and putting their case forward to the Department is just emphasising certainly

their knowledge scope. One of the huge factors when processing an application

is the credibility and whether their fear is well founded and whether

their story matches the relevant situation in the country. Often the applicant’s

knowledge of their country is certainly limited in that respect. Also

the subjective nature of their fear I think is a lot different for a child.

I think the ability to reach that level of subjective fear is a lot easier

and it is trying to put those elements across to the Department but in

the sense of processing I think that is a major problem but there is no

actual difference in the processing of a child's claim and I certainly

don't see any difference in the questioning by the Department of Immigration

when processing these claim as compared with adult.

MRS SULLIVAN:

Would your advice to us be that they should in fact be different?

MS RYAN:

Certainly with the way the interviews are conducted and the level of required

knowledge on issues and probably a level of training and recognition that

maybe even specific officers that would deal with children that would

have specific training in dealing with children and especially for children

who have often suffered from torture and trauma issues.

MRS SULLIVAN:

You don't have such people within your organisation?

MS RYAN:

No, we don't have specialised lawyers that have worked with the

children. I notice in another submission provided by a Western Australian

provider they made some very good recommendations as to the training and

requirement for IAAAS providers when dealing with children.

MRS SULLIVAN:

And finally, in terms of the documentation with children and young people

who actually signs that documentation? Is it the young person, is it a

guardian of some order? I am just trying to

MS RYAN:

The guardian is the Minister so no he doesn't

MRS SULLIVAN:

Which is the point of my question.

MS MCADAM:

For unaccompanied minors the applicant himself will sign if an

unaccompanied minor. If they have a parent the parent will sign for them.

MRS SULLIVAN:

So if they're a young unaccompanied minor who may not be cognisant of

the content they still sign the document?

MS MCADAM:

It's all read out to them before they sign it and translated

in their language through the interpreter.

DR OZDOWSKI:

There are two different tradesmen in a way because on one hand you've

got the parent, who is assisting the child, on the other hand you don't

have a guardian who should be assisting the child before signing.

MS MCADAM:

Which interview are you talking about there? Entry to field one

that

DR OZDOWSKI:

Entry into

MS MCADAM:

Yes, the unaccompanied minor would be signing that without any

independent person present.

DR OZDOWSKI:

No guardian.

PROF. THOMAS:

In your experience in dealing with preparing work for people,

helping the people, how much confidence do you have in the integrity of

the entry interview, considering claims that many of these people have

been well prepared by the people smugglers and have rehearsed their story

knowing exactly what to say. So what are your comments on that?

MS RYAN:

Well, I'd say for the limited amount of entry interviews that I've seen

of people that are screened out and I must say that I haven't seen any

interviews that look like where there have been a prepared story by a

people smuggler or that comes across in a very false way but I don't have

a lot of confidence in that process for a number of - specific case I'm

thinking about is an Iraqi asylum seeker that on reading his entry interview

I thought he engaged and basically showed his protection obligations to

Australia that can subsequently be screened out. I think the review of

that process and the fact that it is not transparent is very problematic.

MS MCADAM:

I think the officers conducting the interviews don't take into account

that a lot of these asylum seekers are getting bad advice from smugglers

and usually that advice means don't talk, don't say much, more than that

they're rehearsing stories for the officers. We point out to the DIMIA

officers that this is occurring, that the asylum seekers are being told

not to talk too much at the first interview but the DIMIA officers are

still using that against them, that they're not saying much. I mean there's

children who put their lives into hands of the people smugglers for a

long period of time and have no one to rely upon except the people smugglers

to say - for their lives but the DIMIA officers seem to be ignoring that

they might be acting on this bad advice. As far as rehearsing stories

we do get to see their claims and there's no similarity.

MS RYAN:

And the fact that there is no legal advice provided to someone or no even

advice on what protection visa obligations are about to the person, I

think the - and the entry interview without any advice on to what they

should do, the only reference they have is what the smuggler or what another

detainee has told them.

MS LESNIE:

So just to summarise, in the Department's submission they state

that screening interviews should take place in separation areas in order

to protect the integrity of the process and what would be your view about

the effect of doing that screening interview in a separate area without

access to it. Does it protect the integrity or does it have another effect?

MS RYAN:

I think the separation they're talking about is not so much the separation

from lawyers, although that happens, it is from other detainees and from

the other stories. I think that the most important part of this is that

they actually get legal advice before they have that interview and especially

for a child that anyone is able to have someone at that interview with

them.

MS MCADAM:

And having access to lawyers at that point would add to the integrity

of the process. You have asylum seekers knowing what their rights are

and knowing that Australia can offer them protection from the persecution

that they may be suffering in their country.

DR OZDOWSKI:

Just if I could come back with one question and it's a question about

IAAAS contract. The contract doesn't mention children and special need

for provision of specialised services for children as I understand?

MS RYAN:

Generally it doesn't.

DR OZDOWSKI:

It doesn't.

MS RYAN:

There is provision in this most recent - sorry that doesn't involve detention.

I will take that back.

DR OZDOWSKI:

No, and do you know the selection criteria which were applied by the Department

of Immigration and particularly I'm looking for selection criteria involving

knowledge how to deal with children and so on. Does it include any kind

of or selection criteria which deals with children?

MS RYAN:

No, to my knowledge it doesn't. We certainly didn't have to provide information

on that basis in our tendering process so I don't see how that could correlate

with what is the situation.

DR OZDOWSKI:

Thank you. I don't have any further questions. Would you like to make

a concluding statement?

MS McADAM:

Is it possible to raise an issue that might not have yet been covered?

DR OZDOWSKI:

Yes, please do so.

MS McADAM:

There's situations that can arise where, especially with - I have had

clients, there's been a mother with children in detention for long periods,

they have been found to be refugees by the Refugee Review Tribunal and

they remain in detention for six months or longer following that determination

that they are refugees because of security checks that are supposedly

taking place in a country they have passed through, and that's when a

lot of self abuse and harming is occurring with those children because

they don't understand if they are found to be refugees why they are still

in detention for such long periods.

MS LESNIE:

Would it be possible to make a bridging visa application for a family

like that?

MS McADAM:

You can, but you're in the position where you don't have the information

that it's going to be taking that long time. So we are expecting that

they are about to get their visa, or about to be released, but it's just

no visas are forthcoming so we are not quite - if we were told in the

beginning that this is going to take a year or six months then, yes, we

would be lodging bridging visa applications. When it gets to those long

periods we start to initiate a bridging visa application. The Department

often comes back to us and says, well, there's no point, that will take

longer than getting their visa.

MS LESNIE:

If you had lodged a bridging visa application in that case, is it your

view that it would have been granted?

MS McADAM:

The mothers of those children were so concerned about the ongoing and

worsening conditions of the - the deteriorating conditions for their children

and the fact that they were probably going to suffer permanent damage

from this, the ongoing detention, that the mothers were prepared to say

that they wanted their children away from them, out of detention.

MS LESNIE:

But is that sufficient to found a bridging visa application? Is it not

true that the State Child Protection Authority would have to certify to

the effect, rather than the mother just desiring it?

MS McADAM:

Yes, but because the Department will start from the fact that the children's

best interests are served by staying with the parent, if you have the

parent themself saying, no, my child's best interests aren't served by

being kept with me, then that's a little bit more ammunition to get the

bridging visa. It's not - you won't automatically get it, but it supports

their application.

MS RYAN:

And so with the difficulties in getting bridging visa applications,

I have had unaccompanied minor children in detention that have been refused

bridging visas by the Department of Immigration and that was, I believe,

just simply because of a breakdown in communications with the relevant

Department of Community Services and it was only once on appeal that we

took that case that we were able to organise a bridging visa.

MS LESNIE:

Is it not true that there are bridging visas available for people who

are suffering torture and trauma?

MS RYAN:

Again, they are extremely rare, that has to be certified by a Commonwealth

Medical Officer and that has to be at the request of the Department of

Immigration. So you can have a number of reports from psychologists or

psychiatrists on the condition of someone and it has to show that they

can't be cared for properly in detention - I can get the actual wording

- but then the Department of Immigration has to organise for a report

to be provided from someone that they deem to be appropriate to say that

that person should be released from detention. I haven't ever seen a report

where that has said that it's better for them to be outside of detention

and, again, there is no available form to fill that in and it's at the

request of the Department to continue with this process. So a request

can be made for a certified Commonwealth Medical Officer to do the report,

but that request can basically be ignored, which we have had a case of

that as well.

MS LESNIE:

So it's the jailer that has to initiate the release?

MS RYAN:

Yes.

MS McADAM:

We can alert the Department to the fact that we were requesting them to

do so, but it's then up to them if they do initiate that, yes.

MS RYAN:

Again, that won't be for someone that has either not put in a protection

visa application or has finished their judicial review options. If they

made their application after October '99 they have to have an ongoing

application. So for the long-term detainees whose mental deterioration

is quite - is very profound, they don't have any legal ability to make

an application on health grounds.

DR OZDOWSKI:

Any concluding words?

MS McADAM:

No.

DR OZDOWSKI:

No. Thank you very much to the Refugee Advice and Casework Service

for presenting the evidence.

The next witness

is Ms Jacqueline Everitt from Just Refugee Programs, could you please

come forward. Thank you for coming forward, as you know the role of the

Commission is to test evidence provided to us, I accept from the submission

provided just now and we would like to ask you a few questions but before

doing it I would like to ask you to take an oath or affirmation.

JACQUELINE EVERITT, affirmed

[11.40am]

LAWYER, JUST REFUGEE PROGRAMS

DR OZDOWSKI:

Thank you, now I would like to ask you to state your name, address,

qualification and the capacity you are appearing in for the record.

MS EVERITT:

My name is Jacqueline Everitt, I work from [address removed], I am trained

as a lawyer and I am doing a Ph.D. on children in detention.

DR OZDOWSKI:

Thank you, just before we go further I would like to ask you that you

adhere to my orders regarding privacy and in particular I would like to

ask you not to identify asylum seekers in public evidence and also the

identity of third parties shouldn't be disclosed as quite often people

are working in the detention centres and may not be able to defend themselves

during the process of the Inquiry. However, if you would like to mention

particular cases to us please mention to the Secretary of the Inquiry

after you have finished giving evidence.

Now can I ask you

to give an opening statement and in particular what I would like to ask

you is to focus on your direct experience with asylum seekers and also

on your professional expertise in this area.

MS EVERITT:

I have been in refugee camps in other parts of the world and I have never

- where the physical conditions have been much, much harsher and I have

never seen the air of despair and despondency and deep depression that

I have seen in Australia and in the time that I have been involved which

is only a year and a half in Australia I have never seen anything that

has moved me more and that's including war zones and everything else.

I have not yet met a child that is happy and outgoing and thriving and

developing and I have not yet met a parent who is able to deal well with

their children and assist them in any kind of development and I have been

to only four of the count I have been to Port Hedland, Woomera and Villawood

- no, that's three.

My colleague Naleya

Everson is actually in Curtin at the moment and that is going to be a

really, I think what she is doing is going to be really important because

she has made DCD notifications of all of the children, she spoke to every

parent in Curtin and has taken statements about the condition of every

child in Curtin and we are going to be working with a medical alliance

to assess all these children, their medical and their psychological health

DR OZDOWSKI:

You will be trying to involve State authorities, no?

MS EVERITT:

Well she has already reported them to DCD, the Department of Community

Development and her actual notifications are in that file and DCD I understand

has been in and has assessed the children. We haven't yet got copies of

those assessments but we are FOI-ing while she is there so we will have

them quite soon and that is going to be a very important separate research

project which we are doing on the basis of medicine and law it is a sort

of dual thing.

But we have also

made DOCS notifications of the children in Villawood, I think I made the

notifications in January. I didn't realise we could do this and suddenly

I did it and the DOCS assessments and recommendations are in there with

the names blacked out and I think I am correct in saying that DOCS recommended

that every child we notified be out of detention and need to be with the

parents.

DR OZDOWSKI:

Why it is so late, it looks like an obvious strategy and I didn't see

it happening much earlier and I spoke to a number of state departments

and they said to me that if children in the broader community were kept

in similar conditions as in detention the children would need to be looked

after, provided care and so on? Why didn’t State Governments do

anything in this area earlier?

MS EVERITT:

If you are asking me why they didn't, I have no understanding of why they

didn't but what also surprised me is that I and other people working in

this area didn't think of making the notifications earlier. What I have

found extraordinary in this whole thing is that on 1 August - I met a

little boy last year in June who was quite clearly dying in detention

and I wrote a story in the Herald in August and I expected, I expected

the world to come out and say this is appalling and it was published in

the Sydney Morning Herald and not a single body came out and said this

is a terrible situation and has to be changed. No State, no government,

no - the only person who spoke was Phillip Ruddock and said that it is

all nonsense or words to that effect.

I'm sorry, that is

probably not exactly what he said but he refuted the claims and so when

facts like that are put in front of you if you are State Government, surely

they should have taken the initiative then. Okay so it took me another

six or seven month to think maybe I can make a notification, I'm surprised

that the doctors didn't make notifications, I'm surprised that the teacher,

teachers in the detention - I think nobody knew they could because I think

everybody thought this whole system is something so removed from mainstream

Australia legally and in every other way that people have just let it

exist the way it is. But they are not now, but now there is hardly anyone

there.

DR OZDOWSKI:

Coming back to your statements about your visits to detention centres,

could you let us know how long you spent in the three detention centres

and how many kids you met there?

MS EVERITT:

Yes, well I'm actually banned from detention centres now so I haven't

been in for some months. Villawood I probably used to visit maybe three

times a week and I knew all the children there. I made DOCS notifications

I think it was on 11 children or maybe 16 I can't remember because there

aren't many children there. Some of them are just transient and you don't

get to know them very much, they are moved on, they are just about to

be deported because that is what you know Villawood is for.

In Woomera, Woomera

was very difficult to visit even as a lawyer it was very difficult and

I only spent one day in Woomera but I had a copy of a list of all the

people who had come in to Woomera in a three month period that somehow

had got to me and on that list were 21 unaccompanied children. My colleague

Naleya who is in Curtin now, she went to Woomera first with this list

and requested that she see a number of the unaccompanied children on the

list. There was a 10 year old, an 11 year old, two 12 year olds and a

15 year old. They were the ones we specifically asked to see. She didn't

see them but she saw other people and then the following week when I went

to Woomera I did actually see these children and I probably, all up I

probably saw about 14 children, no maybe 16 or 18 in Woomera

DR OZDOWSKI:

They were your legal clients or no, it was part of a research?

MS EVERITT:

No, no I was taking these stories as part of the Woomera lawyers

but they weren't my specific clients. What probably was the most striking

about the unaccompanied children was their complete silence and their

complete compliance. You have all been to Woomera and it is not a very

welcoming place and the guards, the people who are running the place are

very separate, they haven't established any kind of rapport with anyone.

In Villawood some of them have. So the children were brought in and they

were left to sit and I didn't actually find them for hours, they sat for

hours and then I sort of stumbled over all these kids just sitting alone

in a waiting you know a little room and three of them came in to talk

to me.

One was a brother

and a sister and although their story is not the worst story I know it

is one of the saddest and because we had found out about these children

before I actually got there we had asked Barney Cooney to ask some questions

in parliament about them. We had also heard on the grapevine that they

were screened out but we didn't know that either and because the Minister

is the guardian of the unaccompanied children obviously he keeps their

lives very private and that is quite acceptable but we did want to know

that they were okay. So Barney asked the question and this is actually

significant, Barney asked the question in parliament and that was about

three weeks before I got there or maybe four weeks. So then I saw these

children, it turned out that they had been screened out for six and a

half months until Barney asked the question.

DR OZDOWSKI:

So they were screened out and still sitting in detention six months later?

MS EVERITT:

They were screened out and they didn't know why and when I started speaking

with the older one, the sister sort of taking down all the information

where they came from, what was their story all the rest of it they were

orphans, their mother had died a long time earlier their father had been

taken by the Taliban and the grandparents panicked, went to the people

smugglers and said take the children to a safe place. They had no idea

where they were going, they were kept in rooms, their whole trip here

was pretty appalling.

They didn't know

what countries they were in at any stage, they didn't know what country

they had come to. So then they had one interview, they spoke with one

person but they didn't consider that an interview and then they were in

a room of their own the brother and sister and every morning the sister

would make sure her brother got dressed, they were wearing traditional

Afghan clothes both of them and she had a hand embroidered shawl. I mean

it's all really poignant, pretty awful stuff when you are sitting there

and you are looking at these people and they would dress and she would

take a chair outside and they would sit and they would wait for something

to happen. They didn't know what was happening, they didn't ask anyone.

There were no classes for them

DR OZDOWSKI:

What do you mean there were no classes for them?

MS EVERITT:

No school classes.

DR OZDOWSKI:

How old were they?

MS EVERITT:

The little one was 11, the boy, and the girl was 15.

DR OZDOWSKI:

And there were no activities provided?

DR OZDOWSKI:

What do you mean there were no classes?

MS EVERITT:

No school classes.

DR OZDOWSKI:

How old were they?

MS EVERITT:

The little one was 11, the boy, and the girl was 15.

DR OZDOWSKI:

15, and there was no activities provided for them?

MS EVERITT:

No, well, not as far as she knew. I asked her if she'd seen a counsellor

or a doctor, had she needed a doctor since she'd been there, she said,

no, I said, have you seen a counsellor, no, have you spoken to anyone,

no, I didn't know that there was anyone here that we could speak to. They

didn't know anything. They hadn't had a lawyer. I haven't got my notes,

but they're there. Then the worst thing was they'd heard when SIEV X went

down, they'd heard of that through the buzz in the general area and they

thought their grandparents would be on the boat because the grandparents

had said we'll come and we'll look after you as soon as we can.

So by this time she

was absolutely sobbing and I stood up and I've a 15 year old daughter,

and I put my arms around her and she was just absolutely racked with sobs

and the little boy is just sitting there and then I didn't know what to

do and I got a social worker to come and sort of help us deal with her

because she was sort of really unable to speak any more. Those kids were

the first kids that were got out. I handed it all over to the Woomera

lawyers after I'd spoken with them. The boys seem to be worse. The boys

were more withdrawn, but the boys could play soccer. She couldn't play

soccer.

The only other girls

that were in there were Iraqi and they couldn't - she could see people

in the beginning but then after they were back in the system, she couldn't

speak with them anyway because they had no common language. Her worst

feelings were that they had no-one to help them in any way. Obviously

an Afghan girl brought up in Taliban Afghanistan is not going to be very

assertive about getting help or anything else, so they were just there

in this terrible limbo with no-one looking after them in any way.

The boy - I have

no experience for saying this, except that I have seven children of my

own, the boy was very depressed and the other three little boys we also

saw, the same story, very, very depressed, very withdrawn, very inarticulate.

One of them had speaking problems and they were pretty bewildered, confused

and frightened.

DR OZDOWSKI:

Can I ask you, going one step back, what's the procedure of getting access

to children if they are not your clients, what do you need to do in order

to get access to them?

MS EVERITT:

Well, in my case, because I went with the Woomera lawyers, they applied

for access to these children to give them legal representation for other

issues, not immigration issues, because that was the tender system with

RACS and the other groups who do that. The brief of the Woomera lawyers

at that stage, and I'm sure that they could give you much more information,

was to deal with any issues that weren't immigration issues.

DR OZDOWSKI:

How easy is it to get access for lawyers or social workers to children

in detention?

MS EVERITT:

Completely impossible and this was one really freaky moment and I don't

know how it happened because it's never happened again or since. They

signed forms to ask the Woomera lawyers to be their lawyers so after that

it was okay, but that was only these five kids. Now, we knew there were

21 unaccompanied children who had arrived in Woomera just in that particular

period but, as far as I know, they were never able to get access to those

children, just these five.

DR OZDOWSKI:

We heard from evidence provided by immigration officials that more or

less access for visitors is free to detention centres and I see you are

giving us a different switch on that.

MS EVERITT:

Well, free access, we had to arrive at 8.30 in the morning, and we actually

got there at 25 to nine and they said, bad luck, you're late, you'll have

to go. We can't possibly accommodate you now, it's far too late and so

then we ended up spending two or

DR OZDOWSKI:

You are talking about Woomera, yes?

MS EVERITT:

Yes.

DR OZDOWSKI:

And it was the time when there were no riots, no hunger strike, it was

quiet days, so to say.

MS EVERITT:

I'm trying to think exactly when it was, it was last year, I think, November.

Yes, it was a perfectly quiet time. There had been nothing happening in

an immediate time before, and there was nothing that happened afterwards.

Yes, it was, yes that would have been about when it was, November, December.

It took, everything took so long to do. I mean we had to take our own

food. There was a team of about 12 or 14 of us or maybe more interpreters,

lawyers, paralegals, social workers, psychologists, a whole lot of people.

Nobody ever expected

to get access to these children, that was a completely amazing thing and,

you know, I understand there are reasons for privacy for children. I do

understand that and because we can't find anything out about the children,

because you can't request information even not knowing their names or

anything about them, you can't find out anything that's happening. It

was sheer fluke that this piece of paper came into my hands with the lists

and if I hadn't known, if we hadn't known the names and the numbers of

the children, you know, their number they're called by.

DR OZDOWSKI:

Yes, you have to make a special reference.

MS EVERITT:

Yes, we certainly wouldn't have seen them because we knew about the eight

year old boy for ages who'd been wandering around and that was another

one of those awfully sad stories and then we just got this piece of paper.

DR OZDOWSKI:

The eight year old, he was an unaccompanied minor?

MS EVERITT:

Yes but I didn't meet him. I've heard of him often. He was sort of like

a mythological person for a while. Everyone had heard of him, everyone,

you knew he was wandering around there because, a year ago it was difficult.

It was difficult to get any information, you were never put through when

you phoned if you could get on at all. They couldn't find out, all these

things happened and nobody really knew what we could or couldn't do. Now

we all demand everything and the detainees demand things but not children

of course, but the experienced ones who have been there for a long time.

So it's a lot easier to get information. Information is flying all over

the place now but that eight year old boy I am sure somebody must have

given evidence about him somewhere along the line.

MS LESNIE:

He also visited Port Hedland?

MS EVERITT:

Yes.

MS LESNIE:

What was the access like at Port Hedland?

MS EVERITT:

Port Hedland was a lot easier. I spent about seven or eight days going

in and out of Port Hedland because there was one specific family that

needed a lot of help.

MS LESNIE:

Were you acting as their lawyer then?

MS EVERITT:

No, no. No. Well, yes and no. Originally we were putting a case together

for the Federal Court to try to get all children out of detention and

I was working with Dr Steven Churchers on this and I was collecting all

the affidavits and all the information and that's why we've got together

such a lot of affidavit evidence which is there. I think most of them

are not sworn, some of them are sworn, and then we ended up dropping the

case but by that time I knew all the families and so I sort of felt a

moral responsibility to carry on trying to be supportive in some way of

a particular family in Port Hedland whom you've possibly been given evidence

on before.

DR OZDOWSKI:

Can I ask you why you were banned from entering the immigration detention

centre?

MS EVERITT:

I've never had any - - -

DR OZDOWSKI:

Official?

MS EVERITT:

No.

DR OZDOWSKI:

Because you said earlier that now I am banned so I would just like to

- - -

MS EVERITT:

Yes, they just won't let me in and they've never said. Look, it's been

something I've put aside and it's been actually a bit of a protection

because it's quite difficult going into those places time and time again

when you actually can't do anything, so it's sort of given me a reprieve

but now, yes, we are going to take it to court and I'm sure it won't hold

up so it doesn't matter.

DR OZDOWSKI:

Now, we are slowly running to the end of the time allocated.

I would like to ask my assistant commissioners to ask some questions if

it's okay.

MS LESNIE:

You mentioned that DOCS have agreed with your summation that

the children are at risk at Villawood.

MS EVERITT:

These specific children, the ones I notified, yes.

MS LESNIE:

How long ago was that decision determined, was it recently?

MS EVERITT:

I think it's probably three months ago or more, four months ago,

the children are all still there. One of them has tried to commit suicide

again. The children are in - one particular family is in a very very serious

state, a really serious state and there was a court challenge last week

or the week before in the Federal Court, which is going to the High Court

I think this week.

MS LESNIE:

What's your judgment that three months has elapsed and there's been no

action despite DOCS assertion?

MS EVERITT:

Well, as I understand it there was a reluctance by the government

to take it any further. This is as I am told and they were just ignored.

You can read them in there, you can read the DOCS reports. The names are

blacked out. They were just completely ignored and one of the children

and her mother is now out but she's in a psychiatric hospital.

MS LESNIE:

So did DIMIA and ACM receive this information to your knowledge?

MS EVERITT:

Yes and I personally gave it to Mr Ruddock as well. I actually had an

interview with him holding the DOCS reports and he didn't want to take

them from me and so I faxed them to him and wrote him a letter the next

day which should be in there.

MS LESNIE:

Has he responded to your letter?

MS EVERITT:

No, no. I haven't had responses to my letters.

MS LESNIE:

So there's really a three month hiatus since these reports were issued?

MS EVERITT:

Yes, and they are quite clear, the reports and medical, there was medical

evidence. There's been - look, in one particular case, my first case I

got involved with, the medical reports are this thick. There would be

eight letters from doctors saying this child cannot go back in there and

this child cannot be separated from his parents either. They are ignored

and ignored and ignored. The same thing is happening with these other

children and at the moment we are just sort of looking at other, I don't

know what other opportunities there are for these children because we

can't get them out of the country; they can't go back to their own country,

and they simply can't stay there and it's almost impossible to speak to

this family now. It's such a serious state.

MS LESNIE:

And ACM have also got copies of the reports?

MS EVERITT:

I've written to ACM. I personally haven't given - yes, they would have

seen the reports but no, I am second guessing. I don't know, I would imagine

so. There seems also to be an issue in some cases where doctors who were

seeing patients, we have some conflicting information where the doctors

who see the patient, the children in the centres, don't see any need for

anything to be done and think everything is fine, whereas the doctors

who see the children when they go to hospital have a completely different

point of view. So although in the case of the first child I was mentioning,

actually the doctor in Villawood, the GP was writing very strong letters

to ACM to DIMIA to the Minister. These letters were going everywhere about

that particular child.

MS LESNIE:

But the doctors within the centre didn't report this to DOCS.

MS EVERITT:

Didn't report to DOCS.

MS LESNIE:

It was you who made the original reports

MS EVERITT:

Yes and I also made reports on children in Port Hedland and the particular

family I am dealing with. I would also like to point out there was, I

don't know if you have this information, there was an alleged sexual assault

on an intellectually disabled 12 year old boy in Port Hedland and this

report, this sexual assault was not reported by the parent, the mother,

but by one of the guards and the guard actually told the mother and the

police were called in and the WA police. It went to court, the person

and all the documentation is in there with the named blacked out, the

person who was charged with the offence pleaded not guilty. The magistrate

said he had a case to answer and it was coming up on 10 June and the man

was deported. I can't remember if it was the day before or the week before.

DR OZDOWSKI:

Yes, we are aware of that.

MS EVERITT:

You are aware of all that, yes.

DR OZDOWSKI:

Professor Thomas.

PROF THOMAS:

Can I ask about the case of the child you said was dying last July/August.

Have you followed up the case and what happened?

MS EVERITT:

I see that family every week, yes, and the child is out in the community

with his mother and sister and his father is still in detention. The family

has since been taken to the Full Federal Court and the Full Bench unanimously

upheld the appeal against the decision by the single judge in the Federal

Court and also by the Refugee Review Tribunal so that case is back at

the tribunal and the child is being counselled and he's very angry and

aggressive. He has quite a lot of problems. His mother is coping extraordinarily

well and his sister is doing really well but there is a big issue with

the father being separated because the child can't go back to detention

to see the father because detention brings on the post traumatic stress

syndrome symptoms all over again and the father is allowed to visit for

an hour twice a week, sometimes once a week but on the whole twice a week.

PROF THOMAS:

But you said the child was dying earlier?

MS EVERITT:

Well, the child, yes, the child when I first saw him was in such

a state, when I say dying he had withdrawn completely, he didn't eat,

drink or speak and you could wave your hands in front of him, there was

no movement in his eyes. He was just severely severely dehydrated, he

was in and out of hospital eight times. At one stage he spent I think

it was 40 days in hospital and he was just back in and out and in and

out and the doctors were writing to the Minister and to the Department

and everywhere else asking for this child to be released and saying he

shouldn't be split from his family. Eventually he was, and this is another

issue actually with this child because this child eventually was sent

to a foster family.

The parents were

caught in this terribly difficult position where they had to make a Solomonic

decision to let him go to a foster family or stay in detention where they

knew that he couldn't really, he just couldn't cope and so they never

actually made the decision because the decision was made by the government

and the child was taken from them. It took four and a half hours to prize

the child off the mother. He was in hospital, he was taken back to Villawood

because they knew they would never get him away from hospital without

huge scenes. There were huge scenes I understand.

Now, I wasn't witness

to it obviously but the mother still can't talk about it at all. She said

the child was screaming "Please don't abandon me, please don't leave

me, please don't let them take me." You know all that, as you would

imagine, any 6 year old child would behave in the same way but this child

it was more frightening for this child because he'd only - I mean they'd

been in Woomera, they'd been in Villawood. Look, the whole treatment is

very insensitive at the very least. There's never any concern. The way

things are broached with families, the way bad news is given to them,

the way any news is given to them. Everything about their lives, because

they're so completely impotent and unable to do anything, and the whole

- everything is geared to this one visa that they think is going to answer

all their problems. So you reach a point where parents can't parent and

children are obsessed with this visa and they're obsessed with doing what

the parents want, what everybody wants, and one day we will get out. So

they're so extraordinary vulnerable. This particular taking of the child

to the foster family is something that they describe to me again and again

when we start talking about things, they tell me this story again, and

it's a horrible story.

DR OZDOWSKI:

Any concluding statements? We need to move to the next witness.

MS EVERITT:

Yes, I think so. It's just that it is not possible to moderate detention

to make it acceptable in any way for anyone but it's particularly not

for children. I can't see - I suppose the whole system is changing now

and no boats are coming so we don't have any but I would think we should

withdraw from the Convention rather than let children go through the kind

of treatment that Australia has given them.

DR OZDOWSKI:

Thank you very much for your evidence and for your submission. We may

come back to you and ask you maybe some questions in writing about the

submission you provided us today, your written submission

MS EVERITT:

Look, just one thing before I go. I do have a child's diary here and I

don't know if you want a copy of it, but it's written in Woomera and then

it stops when she's finally given up. This family has been deported now

but it just shows the unbelievable hopelessness of a child. She was 14

when she writes. Can I just read one paragraph?

DR OZDOWSKI:

Yes.

MS EVERITT:

It just says:

Today is the

first day of summer in Iran. I'm in my classroom writing my painful

feelings. I wish to cry loudly but in this class I can't cry. Some detainees

have been interviewed today. I am praying for my parents to have quicker

interview but still they are waiting. I was jealous that some detainees

already have finished their interview on Friday, they were the first

group. Oh God will the day come that we will be out. Oh God you are

great. You may forgive us. You can help us. I have to be pleased with

your any decision but I wish if you can help in releasing us in the

hope of that day.

And it goes on. This

child spent 2 1/2 years in detention. It goes on like that. All the way

through every day is just this incredible desperation.

DR OZDOWSKI:

Thank you very much for your evidence and yes, we would like to have a

copy of that document. Before we will ask the Council of Social Service

of New South Wales to come forward, I am ordering 2 minutes break.

SHORT BREAK [12.13pm]
RESUMES [12.16pm]

DR OZDOWSKI:

Thank you very much to the Council of Social Service of New South

Wales for coming forward. Thank you also for your supplementary submission,

that will be taken into evidence. Now I would like to ask you to take

an oath or affirmation.

ALAN KIRKLAND, affirmed [12.17pm]

COUNCIL OF SOCIAL SERVICE OF NEW SOUTH WALES

ROS BRAGG, affirmed [12.17pm]

COUNCIL OF SOCIAL SERVICE OF NEW SOUTH WALES

DR OZDOWSKI:

Thank you. Now I would like to ask you to give your names, addresses,

qualification and the capacity in which you are appearing for the record.

MR KIRKLAND:

Alan Kirkland, [address removed]. I am appearing in the capacity as Director

of the New South Wales Council of Social Service.

MS BRAGG:

Ros Bragg, [address removed]. I am appearing in the capacity

of Deputy Director Policy at the Council of Social Service of New South

Wales.

DR OZDOWSKI:

Thank you very much. Just before moving to hearing your evidence I would

like to remind about the orders I made earlier about protection of privacy

of people who are subject to the Inquiry, so please protect identity of

asylum seekers and also protect identity of third parties, please do not

mention their names. If you would like to provide us with more detail,

the Secretary to the Inquiry will be willing to take it after the hearings.

Now, maybe before coming to your submission would you like to make an

opening statement?

MR KIRKLAND:

I will make a very brief opening statement. Firstly, I guess we would

say that we consider it manifest that mandatory detention of children

breaches human rights obligations that Australia has voluntarily entered,

and in our first submission we would propose an alternative to mandatory

detention. The supplementary submission that we provided today focuses

on services for children after they leave detention.

I understand the

Commission has probably received quite a lot of evidence about the conditions

in detention centres. We are focusing on a different aspect. In looking

at that issue, I guess, we have identified that it's important to look

at services for families as much as it is for services directly to children

because, obviously, services like housing and employment assistance are

vital for the well-being of children living in families. However, we also

think it's important to set focus separately on services for unaccompanied

minors once they leave detention.

We think that the

current response of treating TPV holders as somehow different to other

refugees, they are not entitled to the full range of services, including

many quite vital services that are available to other migrants and refugees.

That approach is poor policy and could have quite dramatic impacts on

the lives of children, particularly given that the three year period during

which TPV holders and their families are excluded from services may occur

at key stages in the development of a child's life. In our further evidence

we will give an overview of some of the services which are barred to holders

of TPVs, including in the areas of employment, housing, orientation assistance

and some health services.

I think that the

general theme of our presentation will be that the current system is setting

asylum seekers who are released from detention on TPVs to be homeless,

to be unemployed and to never settle successfully in Australia and we

have got to recognise that while the theory is that they may leave Australia

at the end of the period of the TPV many come from countries which have

been subject to longstanding internal conflict and there is a very real

chance that many of these people will stay in the country for a long time

after the end of their temporary protection visa period. So the Government

should be focusing on how to help them and their families to settle successfully

and that's very important for the well-being of children.

DR OZDOWSKI:

I understand that your submission is based on a range of consultations

with organisations which are part of your organisation. Could you say

for the record something about the expertise and experience your organisation

has in the area of dealing with refugees. Were people from your organisations

visiting Woomera and other centres? Did they have direct contract with

the people who were released on TPV or bridging visas here? Could you

maybe make a statement on this?

MR KIRKLAND:

I certainly will. We represent over 7000 non government organisations

in New South Wales that are funded by State and Federal Government to

deliver essential community services, which includes refugee and migrant

services. We have consulted fairly widely in formulating our submission

and Ros can probably provide some more detail to some of the issues about

whether some of those organisations have been dealing with people in detention

or leaving detention.

MS BRAGG:

I think one of the key issues that emerged in the work we did was that

a lot of the organisations who are members of NCOSS have not been dealing

with temporary protection visa holders. That's of enormous concern to

us because we would anticipate that this is a community with very high

needs. They have experienced trauma in their home country, have a range

of health problems, once they come to Australia they have had the added

trauma of the detention centre system. However, the reports we're receiving

is that people with temporary protection visas, particularly children

who are holders of temporary protection visas, have not been actively

using many of the services that are provided by our members.

Some of them, of

course, are actually prohibited from providing services to temporary protection

visa holders and I think it's these which are of greatest concern to us.

Migrant Resource Centres in particular who have precisely the role and

the expertise to provide assistance to temporary protection visa holders

are prohibited by their service agreement with DIMIA from doing so. I

think, for us, this an absolutely fundamental problem. I think it goes

without saying that the people who are involved in the Migrant Resource

Centres are extremely concerned about this and are providing us with information

about what is happening in those communities. However, it is fair to say

that they are in grave fear that they will lose their finding if they

are publicly seen to have done so.

DR OZDOWSKI:

Yes, it's really an issue of concern to me because you mention in your

submission that a number of organisations are unwilling to be named because

of fear of retribution. Could you perhaps enlighten me on this issue a

bit more?

MS BRAGG:

The people we spoke to who had - we would have expected the high level

expertise in talking about the issues affecting people with TPVs in the

community were, in all cases where they were funded by DIMIA, refusing

to be identified, either as individuals or in terms of the service they

came from. The comments they gave were that they had good reason to be

concerned that they would lose their funding if they did so, and in the

case of Migrant Resource Centres this fear was extended to being seen

to be associated with organisations raising TPV issues. So while the service

agreement, for instance, said that it was not - core funding was not allowed

to be used for provision of services to TPV holders. In fact, what we

found was reports of DIMIA staff harassing Migrant Resource Centres for

having hosted events, or having assisted organisations to hold events

where TPV issues were discussed.

DR OZDOWSKI:

So DIMIA officers from Canberra, or from Sydney?

MS BRAGG:

I don't have the State or Federal connection

DR OZDOWSKI:

But what you are saying that they were harassing, yes, organisation and

basically threatening them if support for TPVs continues?

MS BRAGG:

The comments I got were such as phone calls saying “Why should we

continue to fund your organisation?”, from DIMIA staff.

DR OZDOWSKI:

That's a very serious allegation.

MS BRAGG:

Yes.

DR OZDOWSKI:

How many organisations are in this category?

MS BRAGG:

The Migrant Resource Centres are all funded by DIMIA. Those are the organisations

where we got this particular set of allegations from.

DR OZDOWSKI:

What about other organisations at Migrant Resource Centres which

are receiving grants from DIMIA?

MS BRAGG:

There are other organisations receiving grants from DIMIA who also asked

not to be identified either as individuals or as organisations, and expressed

concern that they might have difficulty getting the next round of tenders

if they put in for that, and also expressed concern in instances where

they needed access to the detention centres that they might have difficulty

getting access in the future or they might have difficulty in managing

their relationships with the Commonwealth people that they dealt with.

MR KIRKLAND:

I would add that this is a consistent issue around services and

organisations funded by DIMIA. They are all on funding agreements of between

one to three years and are constantly fearful of whether those agreements

will be renewed. We have had a number of issues where there have been

issues directly impacting on their viability where they have asked us

to take up issues but have felt unsafe in actually speaking publicly on

those issues because there is a general climate of fear and intimidation,

I think, that organisations are very fearful of being defunded if they

in any way criticise government policy.

DR OZDOWSKI:

So that climate of fear and intimidation is orchestrated from DIMIA?

MR KIRKLAND:

I think that's the only conclusion we can reach. Certainly there are some

organisations that have told us what they're been told by officers of

the Department but it's such a common thread in any of our dealings with

DIMIA funded organisations and certainly I used to work for an organisation

that had some DIMIA funding and we had to be extremely careful about who

actually spoke out on any issues criticising the Federal Government because

we knew that if it was the wrong person then that could lead to our funding

being withdrawn.

DR OZDOWSKI:

Do you think does it impact on the organisation in terms of the provision

of services to TPVs?

MS BRAGG:

TPV holders are specifically excluded from using migrant resource centres.

There's a letter that goes out to each of the migrant resource centres

confirming their funding and in that letter they're specifically reminded

that their core funding cannot be directed towards provision of any services

to TPV holders, so they are initially excluded from services provided

by migrant resource centres. On the face of it that would appear to be

excluded from services funded by DIMIA and certainly migrant resource

centres do obtain funding from State level and other Commonwealth government

agencies to provide services but the information we have is that pressure

from DIMIA is to not provide services to TPV holders at all and so some

migrant resource centres are actually holding the state funded services

events and so on off site so they don't have any difficulties with DIMIA

staff and so they can then involve TPV holders.

DR OZDOWSKI:

What about organisations dealing with trauma counselling, torture and

trauma counselling, do they need to withdraw their services as well from

TPVs?

MS BRAGG:

No, there is access to those services.

DR OZDOWSKI:

And so basically there is no problem if they would report some issues

in public.

MS BRAGG:

We haven't heard any problems from those organisations in terms of their

work with TPV holders.

MR KIRKLAND:

But if they're funded by DIMIA we suspect that they would have to hold

the same fears that other DIMIA funded organisations have about retribution

for speaking out publicly.

DR OZDOWSKI:

Coming to your alternative models for detention and as you possibly know

that the Human Rights Commission proposed some alternative models some

time ago and opposition to the models from the Department, from Minister,

is that people would abscond. Do you have any access to statistics from

either Australia or overseas indicating the rate of absconding especially

when it comes to families - community on temporary protection visas?

MR KIRKLAND:

I'm afraid we don't but I think there are other sources of evidence that

might counter those arguments. If you look what happens to TPV holders,

many are not released in New South Wales yet the evidence suggests that

many actually end up in New South Wales and that's I guess because they

seek out their own cultural communities, particularly given the lack of

funded services for them they look for those other sources of social and

cultural support, so it's unlikely that many TPV holders or many people

who arrive on shore would simply disappear off the face of the earth,

they're likely to stay close to the communities and services which can

assist them which should make it easy for the Department to stay in contact

with them.

DR OZDOWSKI:

But you don't have any statistics?

MR KIRKLAND:

No.

DR OZDOWSKI:

No, on that issue.

MS LESNIE:

Perhaps just taking that one step further. TPV holders have access to

some social services I believe. What is the sort of base requirement for

TPV holders? Could I put it around the other way? Is the access to services

one way of keeping track of where people who are TPV holders or bridging

visa holders are?

MS BRAGG:

Unfortunately I don't think that's a particularly effective strategy

because of the limited access to services that we have in place. If you

look through the range of services that people have access to, primarily

because there's not access to migrant resource centres which would be

a logical connection point, there's access to state funded community services

which are specific to needs such as youth support, women’s health,

whatever, but the first point of contact services which you would imagine

migrant resource centres to provide any on going support and advice and

assistance which again you would have expected to be provided by migrant

resource centres, are simply not available.

MS LESNIE:

What about income support to TPV holders?

MS BRAGG:

TPV holders are entitled to a special benefit.

MS LESNIE:

How do they collect that benefit?

MS BRAGG:

Through Centrelink.

MS LESNIE:

So, do they have to give some sort of identity when they pick up that

benefit?

MS BRAGG:

They have to be closely in contact with Centrelink in order to

obtain a benefit.

MS LESNIE:

And is there a record of someone picking up that benefit?

MR KIRKLAND:

In most cases Centrelink payments are made into a bank account, so they

would certainly need to - in order to make a claim they would need to

establish their identity quite clearly. You can't get a Centrelink payment

without establishing your identity, so that will be the first hoop to

jump through and after that payments would generally be made into a bank

account. There would certainly be that identity check and if necessary,

you know, it's possible to track if people are receiving their payments.

They would possibly also need to contact Centrelink from time to time

in relation to continued eligibility for their benefit. So I think that

would provide a mechanism for tracking where people were and whether they

are still in the country.

DR OZDOWSKI:

I will now ask my Assistant Commissioners to ask questions.

MRS SULLIVAN:

Have you got any idea of how many TPV holders end up in New South Wales?

I take your point about there is a drift towards Sydney in particular

but have you got a sense of numbers?

MR KIRKLAND:

It's been suggested to us that there are around 4,000 in New South Wales

and the source of that was?

MS BRAGG:

That was the Refugee Council of Australia.

MR KIRKLAND:

Certainly the Public Community Services will be able to provide some clue

towards that because they would have records of the number of TPV holders

receiving special benefit and where they reside.

MRS SULLIVAN:

In terms of children and young people what proportion would there be?

MS BRAGG:

We don't know those statistics in New South Wales. The limits on the statistics

are that people's whereabouts are documented when they receive the Centrelink

benefit but as some people are in employment we are unable to track down

exactly what those figures are.

MRS SULLIVAN:

There's obviously a budget implication in the lack of service delivery

and this may be an unfair question but I wonder whether you've got a per

capita cost in your head of the services that are provided to other types

of migrants and then we'd multiply that by 4,000 to get the quantum for

TPV holders.

MR KIRKLAND:

We don't but it was my understanding that prior to the introduction

of TPVs then all refugees who were assessed in having valid claims were

entitled to services through migrant resource centres and the other key

program which integrated humanitarian settlement strategy. Now when the

TPV system was introduced the numbers were actually taken off I understand

the off shore quota that would were coming through the system so in effect

we've actually got less people entitled to services now than what we had

prior to the re-introduction of TPVs. So if you go back to that point

in time the budget implication would actually be nil in terms of allowing

TPV holders to have access to those services.

MRS SULLIVAN:

On the assumption that the budget could be provided can the non-government

sector cope with the services delivery that would then be necessary?

MR KIRKLAND:

Absolutely, I think the non-government sector is crying out to be allowed

to cope with that service delivery so long as the funding is provided.

Obviously people living in the community as highlighted in our submission

don't always make the distinctions that governments make about who is

entitled to services. So the TPV holders naturally turn up at migrant

resource centres and other refugee services seeking assistance and it

must be terrible for people working in those services to have to turn

them away.

MRS SULLIVAN:

Is there any particular component that that is less able to be done than

others? I'm thinking, you know, is it housing, is it education? Is there

one area where you feel there currently is a lack of either expertise

or service delivery?

MS BRAGG:

I think, I would say that we actually have expertise in capacity to provide

services to TPV holders. The barriers are that, in the case of Migrant

Resource Centres, there are prohibitions on access far more than limits

on resources. The very clear indications from the Migrant Resource Centres

are that they would be delighted to be able to assist this population

group within their existing resources. The frustration for them is being

unable to do so, to actually have to turn away these people.

DR OZDOWSKI:

Does it impact on children?

MS BRAGG:

Absolutely. When we're talking about settlement services we are talking

about very basic issues of advice and referral but also the more detailed

negotiation processes that take place and these affect housing, employment,

they affect children going to school, access to services, negotiation

with phone companies, the electricity. There is an enormous range of negotiations

which many members in the community take for granted that are actually

quite complex and difficult when you come from an entirely different environment

and basic assistance with this has absolutely immediate impact on the

lives of the children who are trying to settle in the community.

Certainly for us

one of the key things that surprised us is on arrival accommodation. There

is no on arrival accommodation for TPV holders in New South Wales which

is funded by Commonwealth or State governments. So essentially we have

people who have departed Villawood who have no accommodation provided

by the Commonwealth or by the State and a volunteer service has developed

to provide some interim assistance. But we are essentially passing these

people into a state of homelessness and while there are special arrangements

made for unaccompanied minors, families with children are being put into

homelessness. The effect of that of course is

DR OZDOWSKI:

Did you meet families which were actually homeless after release from

detention centres?

MS BRAGG:

No, we didn't. What we have been doing is examining what the entitlements

are and the way in which the systems are operating so we have been in

contact with a range of government agencies and service providers to identify

how they work with TPV families or if indeed they are able to work with

TPV families, that's really where our information has come from. What

we do have is a large number of reports from SAAP Services, the Supported

Accommodation Assistance Program which is a program of assistance to people

who are homeless and we are receiving consistent reports that they are

working very closely with TPV holders and a range of other asylum-seekers

who end up in those services when all other sorts of services have failed.

For instance they cannot maintain housing, there has been a family breakdown,

domestic violence, behaviour from children which is difficult to manage.

They have ended up in these services of last resort. There is certainly

plenty of evidence to support TPV holders ending up in these services.

DR OZDOWSKI:

Thank you. Professor Thomas?

PROF THOMAS:

How helpful are the local communities, the Iraqi community, the Afghan

community and so on? Do they provide some help?

MS BRAGG:

The gaps in service delivery are huge and what we are finding is that

it is in fact voluntary services that are springing up to try and fill

that gap. So there is a range of areas where there is, as I said, no Commonwealth,

no State funding to provide services. There are volunteer services being

set up to essentially duplicate the role of the Migrant Resource Centres

in providing support and assistance to duplicate the role of the Commonwealth

funded English language programs in providing volunteer English language

training, to provide assistance in obtaining employment, to answer a range

of gaps and services that temporary protection visa holders and families

and children need.

We are concerned

that this is the way in which those services are provided, there are certainly

big issues about the adequate resourcing of them, issues of quality, issues

of access for TPV holders to these services. But yes, the communities

have been working very hard to try to fill some of these gaps, given that

these are some of the most disadvantaged communities in Australia it is

of concern to us that they are the ones being called upon to provide assistance.

PROF THOMAS:

But some of the charitable organisations are funded by DIMIA to help the

TPVs?

MS BRAGG:

Well, as we understand it, DIMIA does not make a habit of funding our

organisations to work with TPVs. There is a few examples in some of the

other states but we have not identified anyone in New South Wales with

that role.

DR OZDOWSKI:

Any final concluding statements you would like to make?

MR KIRKLAND:

I guess there are two issues that we have not really touched on very much

and those are access to English language and access to employment assistance.

I mean, if we are talking about having TPV holders living in the Australian

community for three years and trying to minimise their impact on the Commonwealth

budget then you would think that you would be willing to encourage them

into employment. They have extremely limited access to English language

training which is obviously a key to being able to seek employment for

many refugees.

MS LESNIE:

What do you mean by extremely limited? What are the barriers?

MR KIRKLAND:

They only have access to the advanced level of English training which

has pre-requisites of - it requires a certain level of English in order

to do it so they don't have access to the basic and intermediate levels

of English language training which would surely be what many TPV holders

would actually require.

MS BRAGG:

I would add to that that at the State level, the TAFE system is available

to TPV holders, adults and younger people over the age of 15 on a full

fee-paying basis, so the alternative

DR OZDOWSKI:

Full fee-paying?

MS BRAGG:

Full fee-paying which basically puts it out of the reach of people

on low incomes. We did try and track down what English language classes

were available without full fees in TAFE because we had heard some discretionary

funds were being put to providing these sorts of training. We found 15

places in one program in south west Sydney for a population of 4000 TPV

holders in New South Wales.

MS LESNIE:

How much are the full fees?

MS BRAGG:

Approximately $8 an hour plus an administration fee. I cannot

give you the cost of specific English language courses as they do vary,

there's a whole range of different English language courses but we are

talking quite commonly thousands of dollars.

DR OZDOWSKI:

You mentioned employment as well, there is no support in terms

of finding employment?

MR KIRKLAND:

TPV holders only have access to the most basic levels of employment assistance

which is really just access to the touch screens in Centrelink offices

and obviously that is technology with which many people may not be familiar.

It requires a level of literacy that many people may not have, they don't

have access to the other forms of personal assistance that are available

to other jobseekers and to other refugees.

DR OZDOWSKI:

So the policy of mutual obligation does not apply to them?

MR KIRKLAND:

It doesn't in a sense that they don't have access to the programs

that exist such as Work for the Dole and while we have some criticisms

of those programs there are no programs in terms of labour market programs

that are available to TPV holders. However, some of the penalties that

exist under mutual obligation may apply to them, so for instance if they

are receiving Special Benefit, enter employment, leave employment voluntarily,

then they may not be able to go back onto the payment which is a condition

that would normally apply to people receiving unemployment payments. So

they have some of the penalties of the mutual obligation regime without

any of the benefits.

DR OZDOWSKI:

Thank you. Any further issues? No. Well, thank you very much. This completes

the evidence. Thank you very much for putting your submission and supplementary

submission in writing and thank you for your evidence.

MR KIRKLAND:

Thank you.

DR OZDOWSKI:

So not we adjourn until 2 o'clock.

LUNCHEON ADJOURNMENT [12.44pm]
RESUMES [2.00pm]

DR OZDOWSKI:

It is time to start. Do we have the people from Disability Groups in the

room, yes? Could I please ask you to come forward and take a seat at the

table? My name is Dr Ozdowski and I am the Commissioner and I have two

Assistant Commissioners with me. To my left is Mrs Robin Sullivan, who

is Queensland Children’s Commissioner and also assisting me with

the inquiry is Dr Thomas, Professor of Psychological Royal Melbourne Institute

of Technology and she's sitting to my right and also I have got Ms Vanessa

Lesnie who is the Secretary to the Inquiry. She will also ask some questions.

Well thank you very

much for agreeing to come. Basically what we would like to do is to go

to the evidence you provided and to test it. To start with I would like

to ask you to take either an oath or affirmation.

BARBEL WINTER, sworn [2.03pm]

EXECUTIVE DIRECTOR, MULTICULTURAL DISABILITY ADVOCACY ASSOCIATION OF NEW

SOUTH WALES

DAMIAN GRIFFIS, sworn [2.03pm]

SENIOR POLICY OFFICER, PEOPLE WITH DISABILITIES, NEW SOUTH WALES

DR OZDOWSKI:

Now, I would like to ask you to give for the record your names, addresses,

qualifications and the capacity in which you are appearing.

MR GRIFFIS:

Yes, my name is Damian Griffis, I'm a Senior Policy Officer in the systemic

advocacy unit of People with Disabilities, New South Wales.

MS WINTER:

My name is Barbel Winter, I am the Executive director of the Multicultural

Disability Advocacy Association of New South Wales.

DR OZDOWSKI:

Thank you. I have also on my schedule the National Ethnic Disability Alliance.

MS WINTER:

Yes, Lou-Anne from the National Ethnic Disability Alliance got stuck in

Adelaide. She's asked me to raise a few issues but she's also said she

would get some more information to you tomorrow.

DR OZDOWSKI:

Okay, so you will be representing her also?

MS WINTER:

No, I won't be representing

DR OZDOWSKI:

Not representing, but raising the issues you agreed with her?

MS WINTER:

Yes.

DR OZDOWSKI:

Now, you possibly know about the orders that were put in place to protect

the privacy of people appearing so basically I would like to ask you two

things, one thing not to identify asylum seekers in your submission and

also not to identify third parties by their names. If there is any additional

evidence you'd like to put forward, please be in touch with this Inquiry

after these hearings.

Now, would you like

to make an opening statement before we'll come to asking you a few questions?

MR GRIFFIS:

Yes, I would, yes. People with Disabilities, New South Wales Incorporated,

that's PWD, is the people’s non-government disability rights and

advocacy organisation in New South Wales. PWD's primary membership is

made up of people with disabilities and organisations primarily constituted

by people with disabilities. PWD's vision is of a socially just accessible

and inclusive community in which the human rights citizenship contribution

and potential of people with disabilities are respected and celebrated.

This vision underpins

everything we do. It is with this in mind that we have formulated a submission

to this Inquiry as we believe that this is an issue of great importance

that goes to a very elemental principle that we, as an organisation, advocate

and adhere to. Our submission and response to commission inquiries relate

a series of observations PWD has made in relation to the human rights

of children with disability in immigration detention in Australia and

observations about the Department of Immigration and Multicultural Affairs

own immigration detention standards.

We do, however, wish

to articulate our fundamental view that children with disabilities should

not be detained in immigration detention centres under any circumstances.

We would like to defer any questions about specific cases of abuse and

neglect to my colleague from the Multicultural Disability Advocacy Association

who has done some work in that area.

DR OZDOWSKI:

Thank you, Mr Griffis. Ms Winter?

MS WINTER:

Yes, I'd like to make an opening statement. I would like to make three

points at the outset. Our submission states as a principle that we believe

all children, those with and without disabilities, have no place in immigration

detention centres and we believe that, whilst we are particularly concerned

with children with disabilities, we believe the environment to be psychologically

harmful and therefore creating disability or potentially creating disability

and I don't think we've made that point in our submission that clearly.

Secondly, our submission

only focussed on onshore immigration detention centres and we are very

concerned about the children who are now falling under the Pacific Solution.

Thirdly, we note that DIMIA has rebutted our submission on their website

implying that our submission is fiction and we would like to respond to

that and maybe this is

DR OZDOWSKI:

In a moment I will ask you to respond specifically to challenges which

were put by DIMIA but before going into it, if you could perhaps say what

direct experience you or your organisation have for dealing with people

in detention or people released on TPVs. I am trying to establish to what

extent your knowledge is a result of your direct contact and to what extent

you are reporting what you heard from other people.

MS WINTER:

Our direct contact is very limited. We have had dealings with adults and

have been advocating as advocates for adults in immigration detention

centres. We have not advocated for children in those detention centres.

So we have not had direct contact as an advocacy agency or contact with

those children.

DR OZDOWSKI:

Mr Griffis?

MR GRIFFIS:

Yes, likewise. We haven't had much direct involvement. The extent

of our involvement was speaking to a former employee at Woomera Detention

Centre, but that's about the extent of it.

DR OZDOWSKI:

Thank you. Now, could I ask you to address the issue of the immigration

website which challenges your submission?

MS WINTER:

Yes, I think at the core of the matter is the use of case studies.

Let me just talk about how we did our submission which is a collaborative

effort of about 25 individuals who are refugees or legal advocates or

people working in ethnic communities or people working in the disability

community. When we started putting feelers out, it became very obvious

that because of the closed natures of the detention centres, very few

people in the disability community knew a lot about children with disabilities,

which is one of the causes of concern to us.

If specialists were

invited into immigration detention centres as DIMIA talks about then those

specialists would have knowledge, but those specialists don't have any

knowledge, they do not go into immigration detention centres.

DR OZDOWSKI:

By specialists, you mean they're from this State, the disability

expert, he's from State Government or whatever?

MS WINTER:

Well wherever their funding comes from, yes, and we've made some attempt

to talk to interstate so, knowing that New South Wales has only Villawood,

so maybe it's different in South Australia or in Western Australia and

we talked to colleagues there and the picture that emerges is that specialist

disability organisations do not go into immigration detention centres.

DR OZDOWSKI:

How much of the professional spectrum do you cover? There are possibly

plenty of specialists working disability fields, I'm just trying to find

out how many of them would be in contact with your organisation?

MS WINTER:

We would talk with a wide range. What we have tried to do in this submission

is seek out experts in child health, so we have talked to people who have

expertise in cerebral palsy, people who have expertise in autism, people

who have worked with children with intellectual disability. We were particularly

concerned about those children without physical disabilities because we

don't believe that there is capacity within the current system to pick

those children up in the assessments that are done as matter of course.

DR OZDOWSKI:

Yes. Now, are there any other points you would like to make in relation

what DIMIA said about this?

MS WINTER:

Yes, I would like to talk about the case studies because the press reported

them as individual cases, we have made really clear in our submission

that the case studies do not refer to individuals.

DR OZDOWSKI:

To individual cases, yes, that's correct.

MS WINTER:

That doesn't make the case studies fiction. We have argued that the case

studies are there to illustrate a system rather than individual cases

and we were really careful, because of what we have been asked to do,

to disguise individuals. So what we have done, just to clarify that, in

our submission we have used about 15 case studies. Nine of those are based

on incidents that we know of. What we have then done is change names,

genders, ethnicity, circumstance. Where it didn't distort the purpose

of the illustration we changed the disability type to protect those individuals.

Those stories came

from us through refugees, through legal representatives, advocates and

so forth. Six of the case studies are based on information we have received

on broader knowledge about how immigration detention centres around this

are about the unavailability of aid and equipment, about the lack of expertise

and knowledge in relation to disability amongst the staff and the detainees

themselves, and the lack of access to facilities. For those we have used

secondary evidence. For example, looking at what standard nursing training

and what does that mean? What will nurses know about general disability?

So, we believe that

we have used those case studies completely ethically, and in a sociologically

acceptable manner and to draw the conclusion that therefore they are fictitious

is not right. Maybe that will do.

DR OZDOWSKI:

Thank you.

MS WINTER:

Could I also make a comment on behalf of NEDA. They have asked me to raise

three points with you briefly. Firstly, is that NEDA endorses the MDAA

submission particularly on the recommendation for alternative methods

of detention. Secondly, NEDA is concerned on the lack of specialist services

for children in detention and, thirdly, NEDA is also concerned about the

education that children in detention are receiving. That's for the record.

DR OZDOWSKI:

Thank you. Maybe now we can move to your submissions and both PWD and

NEDA's submissions say that they don't like to reveal the sources of information

because of fear of reprisals. Could you perhaps let me know a bit more

about what the people are afraid of?

MR GRIFFIS:

Well, I only spoke to one former employee at the Woomera Detention Centre.

I guess they were concerned that they would be associated with any comments

that were fairly specific about a particular issue and that they had concerns

that that was going to harm them in the future. Perhaps I'm not sure entirely

we needed to explore that in any great detail, I just respected that and

didn't pursue it any further, but it's certainly a fear that was mentioned.

DR OZDOWSKI:

Do you know why NEDA made these comments?

MS WINTER:

I have no knowledge on that. In our submission, the MDAA submission, we

put it out to the people who contributed that some of them were not happy

to do so, so we respected that and then made the decision that we would

identify none of the contributing people.

DR OZDOWSKI:

But there was no issue of fear?

MS WINTER:

Some of that came indirect through workers. There was an understanding,

the way we have asked people to contribute, there was an understanding

from the outset that we would disguise individuals, and I think that's

why people were quite happy to come forward

DR OZDOWSKI:

To provide you with information and so on.

MS WINTER:

Yes.

DR OZDOWSKI:

But you didn't discuss in detail the reason underlining it?

MS WINTER:

We, from the outset, assumed that what we wanted to do was not discuss

individuals. Not discuss individual cases. So our whole approach was around

revealing a system that doesn't work for people rather than identifying

individuals within the system for whom the system doesn't work.

DR OZDOWSKI:

Mr Griffis, the person who informed you, he is still employed within

MR GRIFFIS:

No, he is a former employee.

DR OZDOWSKI:

Former employee. But he still prefers not to be on the record?

MR GRIFFIS:

Yes, I have attempted to re-contact the person but haven't had

luck.

DR OZDOWSKI:

Now, the second issue is I would like to ask you more about your understanding

of the impact of section 52 of the Disability Discrimination Act. You

said that basically it relates to decisions of people to come to Australia

in an illegal way because of that particular section of the Disability

Discrimination Act. Could you perhaps let me know more what you mean by

it?

MS WINTER:

I am happy to start on that. Our experience around this issue is that

people who join the so called "queue" overseas who have children

with disabilities will not get picked in that queue to become refugee

- offshore, through the offshore refugee program, - it's not my area of

expertise, so, the language sometimes escapes me - so children who have

gone through the UNHCR are processed and the families then apply to come

to Australia as offshore refugees, will basically never get picked because

they have disabilities.

DR OZDOWSKI:

So basically if you are unfortunate to have a child with disabilities

you have got no chance of qualifying to come to Australia?

MS WINTER:

You will not get picked, that's how I understand it.

MR GRIFFIS:

That's our understanding

DR OZDOWSKI:

How do you know about it?

MS WINTER:

Every story we have ever heard as an individual applicant where families

have tried, and every story we have ever heard confirms that. We have

gone through, you know, people say "We have gone through the proper

process and we were told, you know, with a child with a disability, forget

it".

MS LESNIE:

Is that because of this section 52 of the Act?

MS WINTER:

Well, people know - whether that's the Act or whether - I doubt that people

know about the Act, but that's the result of the Act as well as practices

around picking the smartest, the brightest, the ones with most English

rather than have

MS LESNIE:

So the result of the Act is that the Government is entitled not to pick

someone because they have some disabilities?

MS WINTER:

Yes. So families, in effect, have no other option but to seek

the people smuggler and so forth.

DR OZDOWSKI:

Do you know of cases of people who went through the process overseas were

unsuccessful and therefore decided to come on the boat.

MS WINTER:

We know of two cases.

DR OZDOWSKI:

You know of two cases. Directly, or to

MS WINTER:

Directly, where we have done some work.

DR OZDOWSKI:

Now, can I ask you about something else dealing with that section 52,

and possibly I don't know whether you could answer this question. Does

it nullify section 52 in the Disability Discrimination Act in relation

to children who are with disabilities and in detention in Australia? Can

a child with disabilities lodge a complaint under the Disability Discrimination

Act that certain services are not delivered and that the action of the

Department or ACM is discriminatory?

MS WINTER:

My understanding, no.

MR GRIFFIS:

Same, my understanding is, no, they can't. I understand it to be that

- I'm not a lawyer - but the Migration Act overrides the Discrimination

Act and the only way a detainee can lodge a complain is under the HREOCA

Act, the Human Rights and Equal Opportunity Commission Act, with conventions

scheduled to that. But, of course, that doesn't have an enforceability

in the court.

DR OZDOWSKI:

But the DDA doesn't apply to people who are already, in my idea as well,

that in

MR GRIFFIS:

I understand it to be that way, yes.

MS WINTER:

Let me add to that. I think there is a real concern about what does it

mean - I think that it says under the administration of the Migration

Act. My question would be; What is an administration of the Migration

Act and does that include not just services provided by ACM, but then

all the settlement services provided to people. Where does it end? I don't

know where

DR OZDOWSKI:

Where does it stop?

MS WINTER:

the administration of the Migration Act ends, and it seems to me that

people have no rights in relation to that Act.

DR OZDOWSKI:

So basically what it means is that the Commonwealth may lawfully

discriminate against kids with disabilities in detention centres in provision

of services and so on?

MS WINTER:

That's how I understand the Act.

MR GRIFFIS:

Likewise.

MS WINTER:

Can I just add to that. The problem that arises out of that is also beyond

the detention centre environment which is then around temporary protection

visas. If we're correct in saying that families with children with disabilities

have no other option then to come here, try to come here on the boat,

and then they are qualifying as refugees and they get a temporary protection

visa, we would argue that they shouldn't really be given a permanent protection

visa because they would never have the chance to get a permanent protection

visa in the first place because of the discriminatory nature of how the

Migration Act operates.

So people are being

punished twice. First at the selection where they don't get picked because

of discriminatory practices then they are given a temporary protection

visa which makes them ineligible to a whole range of services which are

essential for children with disabilities.

DR OZDOWSKI:

So in a way they would provide a double deterrent to the government because

not only are you treating them in a reasonably harsh way through mandatory

detention but on top of it you can discriminate in comparison with other

kids in detention and use them to provide that even stronger deterrent

message.

MS WINTER:

I think so.

MR GRIFFIS:

An example of discrimination in a detention centre might be access

to buildings, for example. We observed when HREOC had posted pictures

on the website earlier this year that staffers took, that some of the

buildings were demountables for example and that would suggest to us that

that's not an accessible environment;

DR OZDOWSKI:

That's correct.

MR GRIFFIS:

Which, under the Disabilities Discrimination Act on the surface would

appear to be discrimination on the ground of access to premises.

DR OZDOWSKI:

As I hear earlier evidence about a child who couldn't access a school

which was a demountable and it's exactly why I am trying to find what

we are talking about.

MR GRIFFIS:

Which would be disability discrimination.

DR OZDOWSKI:

Yes. Okay. Now could you perhaps say a bit more about the visible disabilities?

I understand the department identified to you about 16 children with visible

disabilities. Maybe let's start with general population. If you take a

thousand kids you will have a certain proportion of kids with visible

disabilities and possibly a proportion of kids with non visible disabilities.

Could you perhaps tell me what these proportions would be?

MR GRIFFIS:

No, I can't give those figures from the top of my head, sorry.

MS WINTER:

No, it's impossible to get down a figure because there are no

figures. The disability figures are very rubbery in the general population

in my experience.

DR OZDOWSKI:

But at least it was possible to establish the number of kids with visible

disabilities in detention, yes? It was possible to establish, so what

I am trying to find out, would it be a guesstimate of people with non

visible disabilities in detention?

MS WINTER:

I can talk to that. The difference, DIMIA identified in, what was it,

in February identified 16 children. All of those children by the type

of disability that DIMIA told NEDA at that time, it seems they were all

visible disabilities. They would identify hearing imbalance, cerebral

palsy, genetic disabilities. It seems to me the disability types they

described are very visible. ABS which is the only sort of credible source

on data doesn't actually distinguish between disability types so I can't

actually answer in relation to the rest of the population.

What we can answer

is to say if that's the percentage that's identified what's the percentage

missing upwards. We've done in our submission a bit of data throwing around.

It's very very difficult and we've estimated that there might be up to

30 children with disabilities and I've deliberately excluded children

with mental illness out of that. So that's the figure we've come up with

as of February 2002 figures.

MS LESNIE:

What are the sorts of disabilities that fall into that non-visible category?

MR GRIFFIS:

Intellectual disability is one, obviously. We have a concern at PWD how

that would even be assessed or if it is assessed, degenerative diseases,

may be an example. Mental illness obviously is something that we at PWD

are very concerned about. The detention environment would appear to be

very destructive to the mental health of children, so that's a major concern.

MS LESNIE:

What sort of expertise would you need to properly assess the existence

of those disabilities?

MR GRIFFIS:

I would imagine that the issues are a little bit different in relation

to immigration detention because you would be assessing the intellectual

capacity of a child, say, and they would obviously have a native language

that they need to be assessed with. There are IQ tests and things like

that, various different measures that are used to address, to try and

identify a child's intellectual disability but I guess there's other elements

at play here because we're talking about language differences and things

like that.

MS LESNIE:

Could a nurse working in one of the detention facilities carry out the

necessary testing or assessment to find out whether children have disabilities?

MR GRIFFIS:

I couldn't answer that question.

MS WINTER:

I've asked that around because I'm not an expert on it, so far as those

child's health experts have participated. Basically if a nurse has been

exposed and has done a lot of additional training specialising in disability

and intellectual disability, a nurse might be able to identify some of

the key issues and then do the referral on, but it requires a fair bit

of extra training.

MRS SULLIVAN:

There is an assessment process education departments undertake.

Would you be comfortable with that process being used in detention centres?

MS WINTER:

That's a lot. We're talking younger children. I hear that sort of thing,

younger but, yes, the school systems certainly pick up a fair few children

from the age of - and then you do all the composite things that seem to

pick up a whole lot of children in the process but, certainly before that

you need a high level of expertise. Often in the general community children

are not identified so unless people notice.

There is also some

argument, just while we're talking about that, the experience of children

in detention and their refugee experience would certainly add to their

likelihood of having acquired disabilities and I don't just mean mental

illness but also with things like what we hear, pollution levels that

then lead to developmental delay and so forth. I've read that in some

studies in that in some of the countries where people come from like Iraq

have high levels of pollution so people have high levels of developmental

disabilities.

MS LESNIE:

Is it possible that the detention environment itself could cause disabilities

in children?

MR GRIFFIS:

I imagine some of the things that children are witnessing would be very

traumatic for a child to try and understand. I imagine there's also other

children that would be suffering from post traumatic stress disorder for

example after spending time on a boat trying to get here, sort of thing,

and that may manifest later on. Yes, I would say for sure.

DR OZDOWSKI:

How important is this provision of the proper treatment dealing with disabilities.

For example, let's have an example of a child with cerebral palsy and

let's in a way say that a child is two years in detention without access

to medical or rehabilitation services. What kind of long term impact it

would have on a child and the ability of that child to function later

in the society? I am assuming the child would be able to function.

MR GRIFFIS:

Well I mean just, perhaps it doesn't answer the question directly, but

cerebral palsy for example. We would be concerned about the nutritional

health needs of a child with cerebral palsy. For example, depending on

the extent of the disability - some children with cerebral palsy may have

difficulty eating for example. May require direct support with that. So

that may be a problem that exists there. I guess that the problem we would

be concerned about, particularly in relation to the mental health of children,

is if they are in a situation where they manage to obtain a release from

a detention centre and move into the wider community. What ongoing supports

are provided to them once they are out of the immigration detention environment.

That's of real concern I think.

DR OZDOWSKI:

But what I am really trying to find out is whether detention, without

access to services which would be available in broader society, would

have a long-term impact on ability of a child to function in society.

MS WINTER:

I've asked that too of the experts and the response I got was that with

the appropriate physiotherapy - and that's for children with cerebral

palsy - 17 per cent of those children would be able to walk by the age

of three. In general, the time for really learning new skills - physical

skills that is - lasts until the age of eight and after that you do maintenance.

So, if you don't do it before the age of eight it is probably

DR OZDOWSKI:

Too late.

MS WINTER:

too late. That's basically what the experts - this is what a physiotherapist

dealing with children with cerebral palsy says.

MRS SULLIVAN:

Do you have any similar comments in relation to autism?

MS WINTER:

No I don't, but I would expect - from my knowledge I would expect there

would be exactly similar processes of -

DR OZDOWSKI:

Using this cerebral palsy example, assuming there is a child which is

having a relatively severe case and cannot walk - somehow missed it, or

couldn't learn it. How in Australian society would care of such a child

be arranged when the child is 15, 16, or 17? Would the child depend only

on the father and mother and traditional carers? Or would there be some

other respite care or some other support group other than the family?

MR GRIFFIS:

Well there would be other support provided. There would be other options.

They might range from home-care support, for example, at home. Or support

around meal preparations. It could be any range of different support.

DR OZDOWSKI:

So, in a broader Australian society it is most likely the child wouldn't

need to depend on a parent, or both parents, for 24 hours but there would

be something else provided.

MR GRIFFIS:

There are certainly other options there, yes, absolutely.

MS WINTER:

Family environment is very important to children with disabilities. When

we argued that no children should be in detention we would extend that

to their families and we would extend that to both of their parents. Children

need that level of care and support from their families.

DR OZDOWSKI:

Are they likely to abscond?

MS WINTER:

What the parents or the children?

DR OZDOWSKI:

The family - if they are released.

MS WINTER:

In the community?

DR OZDOWSKI:

Yes.

MS WINTER:

If you have support and aids why would you go somewhere else and, you

know, where you don't get those support needs, or if you had to go into

hiding. I mean there is no way somebody with levels of support needs would

go away from the services where the support is provided. I can't see that

really. The whole idea of getting those children out and giving them some

support and some services that they are not getting now.

And families, and

families what they are getting now - and the only positive feedback we've

had is families in crisis. So when they have a future medical crisis they

go into hospital and the families love it because they get access to all

these specialists and they get all this treatment. And, you know, it’s

fantastic. So, we've had feedback where families actually treat the crisis

but also sort of almost welcome it because they get something of support

when they've been in hospital.

DR OZDOWSKI:

That's possibly all the questions I had. I don't know whether

my Assistant Commissioners have any questions.

MRS SULLIVAN:

I've just gone one. There is obviously an impact on siblings in having

a child with disabilities in the family in mainstream communities. Is

that exacerbated by the detention centre environment?

MS WINTER:

I'm only speculating. We've talked in two of the case studies we dealt

with family groups and we've had some report on the siblings and that

talked about trauma. But, you know, it is really hard. In a traumatised

environment it is hard to say what's

MRS SULLIVAN:

Attributable to what.

MS WINTER:

Yes, exactly. But in the community there is certainly a lot of support

now being developed for siblings because it is clear that siblings carry

part of the responsibility and the care and the support for their disability

- the sibling's disability.

MRS SULLIVAN:

And this support isn't available in detention centres?

MS WINTER:

Not that I know of, no.

MRS SULLIVAN:

Can you give us just a flavour of what that support would consist of?

MS WINTER:

Um.

MRS SULLIVAN:

The sibling support?

MS WINTER:

Yes, for example, what happens, there is like young sibling camps, support

camps, young carer camps, where siblings get together and talk to each

other. And do that in a sort of therapeutic environment, to work through

some of these issues and get away and have respite.

MR GRIFFIS:

Respite services, yeah, would be -

MS WINTER:

So, that's what would work. Obviously in the detention environment

there is nowhere to go. You can't get away.

MR GRIFFIS:

And I imagine these situations where the parents have their own

mental-health issues and distress that's occurred from being in detention

and in some cases may impact on their ability to be parenting effectively

in some cases.

PROF THOMAS:

Are you familiar with many services for migrants with disabilities?

MS WINTER:

There are not many services. But theoretically all mainstream services

should be able to deal with migrants with disabilities.

PROF THOMAS:

Is it true that people overseas who apply to come here as lawful migrants

would not be able to come in if they are - members of the family have

disabilities?

MS WINTER:

Yep, that's correct.

PROF THOMAS:

In a way these people if they have applied lawfully they would have very

little chance of being accepted?

MS WINTER:

That's correct.

MR GRIFFIS:

Yes.

PROF THOMAS:

So, in that sense there would be a higher proportion of people

who come here unlawfully, with a member of the family with disabilities,

because they would not have a chance if they applied lawfully?

MS WINTER:

Yes, except that I think the bulk of the people that we'd see

are from countries where there are lots of refugees coming from. Maybe

- and I don't know that because I think nobody knows - maybe the proportion

of disability is higher because of that reason. I don't know whether that's

the reason or whether the refugees lives and the trauma and so forth leads

to that high level of disability. It is difficult to separate one from

the other. But certainly there's lots of concerns around the disciplinatory

affects of the

PROF THOMAS:

What I mean is, the need for services for people - migrants, refugees

- with disabilities would be higher. Mainly because at the moment there

are not many services for migrants with disabilities.

MS WINTER:

The problem is that mainstream disability services don't deal very well

with people from a non-English speaking background. That's a problem.

The argument hasn't been that we need more services for people from a

non-English speaking background specifically with disabilities. There's

a few services - like our service is a specific service - and we obviously

have quite a large niche market. But we would always argue for mainstream.

DR OZDOWSKI:

Are you aware of the level of services for kids with disabilities available

at the Woomera, Curtin and Port Hedland detention centres?

MS WINTER:

I don't know of any services specifically available to children with disabilities.

What I've read is what you've read which is in the DIMIA submission.

DR OZDOWSKI:

So you didn't hear of any specific services provided in -?

MR GRIFFIS:

No.

MS LESNIE:

Have you ever been asked to provide services to any of those facilities?

MS WINTER:

We are not a direct service provider. We've provided advocacy to adults

in immigration detention centres. We've tried to get services into there,

that seems to be difficult.

MS LESNIE:

Sorry, what sort of advocacy would you provide to detainees?

MS WINTER:

People would, you know, ask us to assist with various things they need.

MS LESNIE:

So, you've been requested by detainees to get disability services for

them?

MS WINTER:

We've been asked by detainees to assist them in getting better quality

of life, some of which had to do with can you organise us some equipment?

Can you do this, can you do that? But we've never gotten a service into

Villawood which is where we operate out from.

MS LESNIE:

But is that because - have you put a request to DIMIA ever?

MS WINTER:

No.

MS LESNIE:

So how do you go about providing the services requested of you by detainees?

MS WINTER:

We don't provide services, that's what I'm trying to say. We've never

been requested to say, for example, if somebody said to us can you get

the x organisation to provide a service. We've never been asked that,

so we've never tried that, I don't know that.

MS LESNIE:

I was wondering if I could draw you to a part in the MDAA's submission

and also in the NEDA’s submission where you both state that State

and Commonwealth governments have recognised that incarcerating children

with a disability is harmful to them. Could you explain in what context

that conclusion has been reached and what the result of that has been?

MS WINTER:

You might be aware that children with disabilities have been

institutionalised for a long time or many children have been institutionalised.

So in New South Wales, for example, we still have something like two and

a half thousand people in institutions. The Disabilities Services Act

both State and Commonwealth articulate rights for people which have to

do with their individual needs and their individual desires and the need

to have individually based services for them which contravenes all the

idea of institutionalisation.

If you could - that's

the context in which there's a clear understanding that institutions are

no good for people with disabilities and certainly not for children with

disabilities. All de-institutionalisation attempts in New South Wales

at least, and I think it's the same for other States, have started with

the children as the most vulnerable in those environments. So the kids

have gotten out first of those institutions.

MS LESNIE:

So is there any way to distinguish the institutionalisation that happens

in the context of immigration from the institutionalisation that would

happen in other contexts in terms of the harm that it does on children

with disabilities?

MS WINTER:

There is clear acknowledgment that disability institutions are

harmful on children because of the whole range of factors. I would think

those factors are also true for immigration detention centres, but I think

there are some additional factors in immigration detention centres. So,

if I had to say what's worse, I would think immigration detention centres

are actually worse.

MS LESNIE:

And what are the additional factors that lead you to that conclusion?

MS WINTER:

I would think the environment in which the mix of people and

the volatility of the environment and I'm not sure whether the level of

scrutiny - institutions have been very unscrutinised in the past as well,

so maybe that's equal and therefore the level of abuse or potential abuse

that can go on unscrutinised is quite

MR GRIFFIS:

Can I just add to that I think the environment maybe an inaccessible one

also, physically inaccessible, which perhaps may be different to institutions

even though we would obviously support the devolution of institutions,

which is going on now, but those institutions perhaps were designed for

people with disability in mind, but immigration detention centres don't

appear to be, so that would be another major difference between immigration

detention centres and mainstream institutions.

MS WINTER:

And there's a whole lot of learning that's been done in the devolution

of institutions and I would think that learning is to be applied to immigration

detention centres.

MS LESNIE:

Is that learning readily available with the documents?

MS WINTER:

I'm quite happy to get some to you. The other thing that I would like

to just add to that which is on the other side which is the early intervention

side that we haven't talked much about. But it seems very clear to me

from all the evidence that I've read that if there is no early intervention

there is a long term cost to be paid. Now, the long term cost obviously

will be paid by the children first, then by their family, but in the end

the cost will be paid by all of us as part of the community. If we have

a child do the right piece of therapy, it walks by the age of three, there's

a lot more potential than not doing that and having a child in a chair,

not doing basic things that it could have been easily taught.

So I think the whole

idea of an intervention does not operate in relation to detention centres

and there's a real cost shifting towards somewhere later happening that

is, in my view, completely irresponsible because we know better.

DR OZDOWSKI:

Any final words?

MR GRIFFIS:

I'd guess I'd just like to - PWD will check the HREOC website today just

to see whether the Department of Immigration has lodged its disability

action plan yet, but we still note that as at July the 2nd, that doesn't

appear to have happened, so we'd like to express our disappointment about

that.

DR OZDOWSKI:

That will be possibly a subject of a different Inquiry. Thank you very

much for your submissions and thank you Mr Griffis and Ms Winter, thank

you for coming forward. We will recommence three o'clock.

SHORT ADJOURNMENT [2.46pm]
RESUMES [2.54pm]

DR OZDOWSKI:

I think we will recommence the hearing and I invite the representatives

of Amnesty International to take a stand and I would like you take an

oath or affirmation to start with.

STEPHEN COLUMBUS, AFFIRMED

[2.55pm]

AMNESTY INTERNATIONAL

GRAHAM THOM, SWORN [2.55pm]

REFUGEE CO-ORDINATOR, AMNESTY INTERNATIONAL

DR OZDOWSKI:

Now could I ask you to state your names, addresses, qualifications

and capacity you are appearing in for the record.

MR COLUMBUS:

Stephen Columbus, address [address removed], qualifications BA

Hons Political Science, EMA Comparative Religion, capacity is for Amnesty

International.

DR THOM:

Dr Graham Thom, my address is [address removed] and I am the refugee co-ordinator

for Amnesty International, Australia.

DR OZDOWSKI:

Just to remind you of important rulings I made earlier regarding

the privacy of people concerned by this Inquiry I would like to ask you

not to identify any asylum seekers by name during this hearing and I would

also like to ask you not to identify any people involved with the determination

process including former or current employees of DIMIA or ACM by name.

Now could I ask you maybe Dr Thom to make an opening statement please.

DR THOM:

Stephen has prepared one.

DR OZDOWSKI:

Okay.

MR COLUMBUS:

Amnesty International is an independent, apolitical human rights

organisation. AI strives to prevent human rights abuse and takes as its

benchmark the corpus of international human rights law. AI harbours grave

concerns about many aspects of Australia's policy of mandatory detention.

Believing it to be contrary in spirit and word to many of the human rights

conventions voluntarily entered into by this country.

The Commission takes

as its focus the detention of children and Amnesty shares this focus.

From AI’s perspective the plight of children represents nearly the

most extreme manifestation of what is without exception a punitive and

inhumane policy. Mandatory and indefinite arbitrary detention of asylum

seekers is indefensible. Mandatory and indefinite arbitrary detention

of asylum seeker children is also indefensible only more so. In its written

submission AI drew attention to the following areas of concern: Australia's

obligations under the Convention on the Rights of the Child, health, education,

mandatory detention, provisions for release from detention, alternatives

to detention and finally we provided case studies to illustrate our concerns.

In the time available to us today we welcome the opportunity to expand

upon these issues in person.

DR OZDOWSKI:

Minister Ruddock has made a number of statements saying that maybe, sorry

he was not that generous with refugee or asylum seekers but he assured

that Australia certainly adheres to the letter of law and to the letter

of both ICCPR and the Conventions on the Rights of the Child. Could I

ask you to specify areas where the conventions are not adhered to?

DR THOM:

Well I think in our submission we talk both about mandatory detention

specifically and how it can become arbitrary and we use the Australia

v A case to illustrate where an international body has come to the conclusion

that Australia's mandatory detention policy is indeed arbitrary and in

particular article 9 of the ICCPR in terms of the indefinite nature, lack

of access to judicial review, for us is very clear in terms of where Australia

is failing to meet its international obligations. I think the Convention

on the Rights of the Child is very clear, article 37 in terms of detention

being a last resort quite clearly shows that if it is mandatory it cannot

be a last resort.

The argument used

by the Australian government also talks about what is in the best interest

of the child I think this is seriously open to debate and they use the

argument that families shouldn't be separated yet the convention states

that children should not be locked in adult facilities. If you set up

a system where there are only adult facilities then of course they have

to be locked up with their families in those facilities. It says nothing

about unaccompanied minors and yet unaccompanied minors have also been

detained in the same way and we cannot understand how the Australian government

could possibly argue that this is in the best interest of the child. In

terms of our written submission

DR OZDOWSKI:

But it is not only Federal government it is also State government

which we heard today and on some other occasions they are basically refusing

to issue certificates that children should be released because it is in

their best interest to be taken away from detention if they can't be taken

away with parents away from the detention. So basically when you have

a choice, parents and children in detention or children out of the detention

most authorities in Australia are saying it is better to keep parents

and children in detention.

MR COLUMBUS:

I think the conflict that develops between the interests of the

child as regards to the sort of integrity of the family unit are products

of the way the system has been designed. It has been designed systematically

to exacerbate those tensions. The fact is asylum seeker parents should

not have to chose between traumatising their children by leaving them

in detention or traumatising their children by moving them away from themselves

and this is the only option they are given so I think fundamentally it

is a systematic problem. The only way to get around that is to actually

alter the system so that that sort of between a rock and a hard place

decision doesn't need to be made. I think that is where we focus on alternatives

to detention in terms of comprehensible alternatives to detention.

DR OZDOWSKI:

Do you know of any other countries having mandatory detention on their

law books?

DR THOM:

As far as we are aware there are no western democratic governments that

have mandatory detention. There are a number of other countries that use

detention in one way or another and Amnesty International recognises that

the UNHCR guidelines outline how detention can be used to establish identity,

character checks and health checks and believes that that is appropriate

but what we oppose is indefinite detention without any right to judicial

review and as far as we are aware that does not exist in any other democratic

western country.

DR OZDOWSKI:

The Department of Immigration has stated, I think you have possibly seen

the submission and I saw it is available outside on disks. They mentioned

on page 8 that under Australian law:

Immigration

detainees have the capacity to take proceedings before a court to determine

the legality of their detention. This means that children in detention

can legally challenge their detention in a court of law.

And so on. Who is

right here because the Department says there is a right to appeal and

you are saying no such a right really does exist. Do you know of any appeals

lodged under the Australian law?

DR THOM:

Not that we are aware of and certainly it is our understanding that the

courts cannot order someone to be released from detention under Australian

law.

DR OZDOWSKI:

Yes, now coming to the issue of arbitrary detention. We dealt with the

issue of mandatory detention and as a matter of fact there are some countries

which have mandatory detention but it works in a completely different

way. The issue of arbitrary detention, how would you arbitrariness of

the detention or how it is determined in international law.

DR THOM:

Well I think the two important things to look at and again this is outlined

in our submission but firstly the lack of access to judicial review and

secondly proportionality and when we talk about arbitrary detention it

is not, it doesn't just recognise whether something is lawful or not it

also has to be proportional and the amount of time especially children

spend in detention given that it is indefinite is certainly not proportional

to the fact that they have entered undocumented into the country I should

say.

DR OZDOWSKI:

So how much time in detention would you deem as arbitrary?

MR COLUMBUS:

I suppose it is very difficult to put a figure on it. New Zealand has

recently brought in a 28 day detention period after that time automatically

people have to be brought before a judge who can comment on the lawfulness

of that detention and I believe that every 28 days that can be retested

as it is still

DR OZDOWSKI:

And what do judges in New Zealand need to look at in considering a case?

MR COLUMBUS:

In terms of New Zealand I couldn't tell you, in terms of international

law I suppose our main issue would be in terms of arbitrariness is that

it is applied purely on the basis of means of entry and whereas refugee

law and indeed refugee law commentary is pretty much agreed that there

are legitimate reasons that asylum-seekers would enter a country illegally

often if they come from failed states where there is no possibility of

getting a passport or documents; often they cannot go through official

channels in terms of airports and what have you because there are black

lists so if you have a passport and you leave with that passport you will

be picked up before you leave so there are all these legitimate mitigating

factors that need to be taken into account.

I think the issue

is that the Australian regime makes no distinction or no special consideration

for whether that person is an unofficial entrant or whether they are an

asylum-seeker who happens to be an unofficial entrant.

DR THOM:

Importantly the onus is on the state to demonstrate why someone should

be detained as it is for any criminal, not wanting to make a comparison

but that's what most of the public has in mind. If you commit a crime

then you prove that and if found guilty then a sentence is given. However,

for determining whether someone should stay in detention, again it is

up to the state to show why that person poses a health risk, why that

person poses a character risk, why that person could abscond. These are

the things that the state needs to be able to prove and should have to

prove in a court of law in order to establish why someone should be kept

behind bars.

DR OZDOWSKI:

So basically what you are saying if I understand correctly is

that some detention could be justified to establish a number of things

within a reasonable time frame and at the moment it is not done within

that time frame there should be a judicial review to see whether the bureaucracy

is justified in extending that detention to say establish identity or

good health or whatever?

MR COLUMBUS:

We don't object to detention absolutely but rather the onus is

on the state to justify or demonstrate the necessity for that detention

and I think the necessity or the necessary concept is quite well-developed

in international law and in terms of the four notions that are said to

verify identity to obtain basic elements of the refugee plan to deal with

cases where it is suspected that refugees or asylum-seekers have fraudulently

or manipulated the system in some way to protect national security and

I think that one that we have to acknowledge that is a realistic necessary

issue is the risk of absconding.

MS LESNIE:

Those are all justifications that the Minister uses currently

to justify the current detention regime, so what is it about - what is

the extra factor here that nullifies the legitimacy of detention on those

five bases?

DR THOM:

The problem with the Australian system is that it is not made

on an individual basis, they have not shown why a particular individual

needs to be detained and this is with regards to this Inquiry why it is

so important, why would a five year old child or a four year old child

or a seven year old child or an eleven year old child pose a health risk

or a risk of absconding or whatever and it is up to the state in each

individual case to prove that rather than throw a blanket over a particular

class of people, for instance, those without proper documentation which

it doesn't do so for another class, i.e. those with documentation and

you raised what are Amnesty's objections at the beginning, this is where

we start looking at discrimination which is also highlighted in a number

of international instruments again, the ICCPR, the Convention on the Rights

of the Child, article 2 and also the refugee convention.

DR OZDOWSKI:

So Australia chose in a way a lazy option, you go after a class of people

without worrying about individual cases.

MR COLUMBUS:

It is more of an immigration imperative over a refugee

MS LESNIE:

Well, I mean the Minister would say that he is entitled to discriminate

against these people because there's borders to protect, so what would

you answer be to that argument? I mean there are legitimate sort of national

sovereignty issues, is that not a justification for the distinction?

MR COLUMBUS:

No, I think - because it's established well in international law that

all of those things are necessary but even in international law they still

place time limits like for instance to obtain, to verify identity and

to get the basic elements for a refugee claim takes very little time,

maybe a week at maximum. In terms of the other issues there are definite

time limits, maybe not in the Convention themselves but in the guidelines

and what have you that do actually sort of relate to the issue of, you

know, there is a timeliness issue, you can't just string these things

out indefinitely.

At some stage you

do have to justify why a particular person is being held and I think there

is a border issue but it is a well-established fact that asylum-seekers

are asylum-seekers first and foremost, they are not illegal entrants.

They may use illegal means to enter a country but special consideration

is given to them in international law and Australia at the moment chooses

to ignore that special consideration and instead prioritise the immigration

border control aspect.

DR THOM:

And again we are talking about those character checks and identity checks

and again, yes, you can detain to make those checks but in terms of do

you need to detain an unaccompanied minor in order to make those checks

or a family to make those checks has to be the question and that individual

assessment needs to be made and Amnesty International would argue that

if you took a case by case basis you could find that an eight year old

unaccompanied minor could easily be put into a foster home while those

checks were being made rather than in a detention centre in Woomera or

Port Hedland and there would still not be any threat to Australia's borders

or Australian sovereignty while those checks were being made in a foster

home rather than a detention centre.

DR OZDOWSKI:

Do you know about statistics of absconding of families seeking asylum

in other western countries?

MR COLUMBUS:

In New Zealand I know of no precise statistics. Speaking from

experience, from my own experience, as a Determination Officer in New

Zealand, families would be extremely unusual. Personally I did not deal

with that many families so I couldn't even

DR OZDOWSKI:

Unusual to abscond or

MR COLUMBUS:

Absolutely, very unusual. There are so many

DR OZDOWSKI:

For how long did you work

MR COLUMBUS:

Two years, but I would have to say from my own experience I didn't deal

with many families and most of the determination people worked in Auckland

and I worked in Christchurch which is on an entirely different island.

If I had worked in Auckland I probably could give you a better anecdotal

feel based on other people's experience. On my own experience I was not

aware of any families that I dealt with absconding.

DR OZDOWSKI:

What about evidence from other states, Mr Columbus? Do you have any evidence

from US or Great Britain?

MR COLUMBUS:

I have the research to some degree, the stats are very difficult to obtain

because they tend to be fairly - considered fairly confidential information

that immigration departments don't generally wish to make public. Just

bear with me for a second. A recent study was just completed in the States,

the AAP trial which came to a close in 2000. They found that overall they

had both a supervised tier which was basically where you had community

release but you were under quite close supervision, you had weekly meetings

with say case officers, you might have benefits that you would only be

able to maintain as long as you kept a certain address and what have you

so there would be various incentives and disincentives not to abscond

and to go through the legal channels.

Then they had an

open scheme which was basically where involvement in the trial was completely

voluntary and those people basically were on their own recognisance. They

found I believe, that 90 per cent of supervised non-citizens appeared

in court compared to 71 per cent of non-participants. This was notwithstanding

the fact that participant asylum-seekers were repeatedly told that they

would be re-detained and caught if they were ordered removed.

In terms of - I do

have a few brief statistics - there was of course the INS experiment in

the early 90s which I believe had about a 95 per cent compliance on release,

there was a quoted figure from Australia which said that no unauthorised

asylum-seeker released on a bridging visa in Australia - and this is community

but it might still be useful for comparative reasons - from 1996 to 1998

failed to meet their reporting obligations to DIMA. That's no one.

DR OZDOWSKI:

Could you mention again the source of this information?

MR COLUMBUS:

The source of that was information provided by the Office of the Minister

for Immigration and Multicultural Affairs in response to a question on

notice by Natasha Stott Despoja on September 1, 1997, question 803.

DR OZDOWSKI:

Thank you.

MR COLUMBUS:

The asylum seekers, returning to the AAP system in the States, the asylum

seekers in the intensive supervised program attended all court hearing

at a rate of 93 percent. Regular participants achieved an attendance rate

of 84 percent. This was largely something that was, there are so many

incentives not to abscond during the refugee process that irrespective

of whether they were closely supervised or completely unsupervised there

was still a very high rate of attendance. They don't break down any distinction

between families and individuals unfortunately.

DR OZDOWSKI:

So your figures do not support what the Minister was saying. How would

you explain the difference of opinion?

MR OZDOWSKI:

I couldn't explain the difference of opinion because I don't have any

DIMIA figures to compare, so in terms of my own knowledge the government

has not released any explicit figures that I am aware of that you could

actually compare or contrast or make any sort of judgment in comparative

terms. I think these are stats from particular programs that were set

up as alternatives to detention. They are not stats for instance coming

from the immigration department in America in terms of their general streams

of asylum seekers.

DR OZDOWSKI:

So the INS figures you quoted were for - - -

MR COLUMBUS:

Yes, for the AAP trial, the three year trial, basically of co-operation

between the immigration department in America, particularly in New York

and the VERA institute which is a non profit organisation in the States

which deals greatly with parole issues that they had experienced. Basically

there was a supervised program, with quite intensive supervision under

voluntary parameters. The immigration department obviously was trying

to get a feel for whether they could extend this program.

DR OZDOWSKI:

You wouldn't know what was the costs of that program?

MR COLUMBUS:

Day by day or overall?

DR OZDOWSKI:

Well, how does it compare really with keeping people in detention?

MR COLUMBUS:

Off the top of my head I couldn't give you those figures. I could maybe

provide you with them or direct you to research.

DR OZDOWSKI:

Okay, if you could maybe take it on notice and at least provide us with

some references where we can find more information.

MR COLUMBUS:

Absolutely.

DR THOM:

The other point that Amnesty would like to make and which we made in our

submission is that what we haven't seen from the department is a comparison

in terms of those people who are allowed to make their asylum applications

in the community, those who arrive documented, and whether there is in

fact a problem with absconding amongst that group, again, especially with

regard to families and one reason we highlight that point is because if

you look statistically at the success rate of people in detention as compared

with those in the community it is much higher, they are much more likely

to get refugee status largely because they're Iraqi or Afghan generally,

or in the last few years anyway. So we can't understand why the group

that's more likely to get refugee status is considered by the department

a group more likely to abscond. It just doesn't seem to make any sense

to us. I am sure the minister has his own reasons.

DR OZDOWSKI:

One question before I ask my Assistant Commissioners to take over. It

really relates to the standard of education services required under international

law. Your submission says that every child who is in Australian territory

is entitled to education and I am assuming it's average standard of education

which is available in both communities.

The Minister on occasions

says that it's simply impossible to provide the community standard in

detention centres because of a whole range of reasons like the relatively

different knowledge of English, different ages, different nationalities

and so on. What would international law recognise as adequate standard

in terms of education provision in detention?

DR THOM:

Well, I don't think international law is that proscriptive. What it does

say is that it, as you said, should be comparable to what everyone else

is having and the sort of two hours maximum that we're seeing in the detention

centre where it's really been left up to individual teachers to come up

with their own curriculum, from our interviews with a number of teachers,

based on their own in terms of bringing their own material, etcetera,

is not the same standard of education that any other child would receive

in this country and I think what we have seen have been specific barriers

put up to stop children, for instance in Villawood and Maribyrnong, from

attending local schools. We know that they do in Maribyrnong and that

was a fight to get those children to those schools.

DR OZDOWSKI:

Who was fighting with them?

DR THOM:

It was the parents and supported by I think it was RILC at the time fighting

with the Department to get the children outside. They tried similar things

with Villawood and have been unsuccessful for various reasons put up by

the department. Port Hedland I think could be another example where it

would be easy for the children to attend local schools. We know in Nauru

as well, initially the government there opened, gave an invitation for

the children in detention there to attend the local school and, again,

because of security concerns or whatever this was deemed impractical.

So the fact that detention centres generally now are so remote makes their

attendance at local schools just so difficult and in that sense we believe

that there are real concerns with meeting our obligations for the children

and education in this country.

DR OZDOWSKI:

Are you aware of an education being provided in Nauru?

DR THOM:

I believe John Pace who will be talking to you tomorrow would be better

placed to answer that question.

DR OZDOWSKI:

Well, thank you. Now can I ask, Assistant Commissioner, Professor Thomas.

PROF THOMAS:

Are you familiar with the situation of asylum seekers in Europe at the

moment?

DR THOM:

The organisation is more broadly. I have some understanding but certainly

Amnesty is very much monitoring in the situation there, yes.

PROF THOMAS:

You think those people are better off or worse off?

DR THOM:

I think it depends on the country but certainly in terms of not being

detained they are definitely better off. As I said initially no other

country detains in a way that Australia detains people and so in that

sense, yes, given that they are entitled to certain liberties, definitely.

The fact that there are eight or so European courts of justice which would

make it very difficult to detain people in the way that Australia detains

people. Yes, I would argue that they are certainly better off in a number

of European countries.

PROF THOMAS:

So are they are fed or housed or merely look after themselves?

DR THOM:

It varies again from country to country but at a minimum they get vouchers

to be able to have a certain level of food and a certain level of housing.

Germany, for instance, has communal housing and food vouchers. Britain

I think is about to remove its food voucher system because it's seen as

impractical but all European countries certainly provide them with some

level of basic social rights.

PROF THOMAS:

So would you argue that kind of system should be applied here

in Australia?

MR COLUMBUS:

I don't know that there is any one system to compare it to. I think there

is a unified asylum system in Europe but I think, I don't know if either

of us would be qualified to make any sort of very strong judgments, I

don't think there is a unified system in Europe and I think it's a complex

issue to compare two whole determination systems from any two countries,

let alone, from Europe to Australia.

DR THOM:

But certainly elements of systems, for instance, you have probably been

made aware, by Grant Mitchell, of the Swedish model and how it's used

and there are definitely aspects of that model which we would see as preferable

to what is being used in Australia. Minimum times for detaining children,

for instance, other countries set minimums for detaining people full stop.

These sorts of initiatives would be certainly welcome in Australia.

MR COLUMBUS:

I think of the general alternatives, broadly speaking, it would probably

vary across Europe quite radically, but I think in alternative terms in

most countries there's a notion that not all asylum seekers need to be

detained. If they do need to be detained the detention needs to be justified

by the State on an ongoing basis. That the decision to detain is taken

on a case by case basis and that decision to detain is taken through some

sort of screening process where you take in a whole variety of factors

to judge whether this person is safe or at risk or will run away into

the community, or what have you. And through that sort of screening process

you also have the ability therefore to say, okay, this person is extremely

low-risk in any sense, they are not a risk to the community, they are

not going to abscond.

In the case of children,

for instance, they would probably - for instance, there's a notion there

that you tie risk to level of restriction of movement so that very low-risk

people, for instance, might just be on their own recognisance in the community.

They might just have reporting rights, or they might be in large open

community centres where they are basically free to come and go as they

wish. If they are a slightly higher risk, or at a slightly further point

in their determination process, perhaps they would be considered to be

placed in a more of a medium sort of style situation where they might

have curfews, or where perhaps it's a closed situation and they are only

allowed out for certain hours.

Or perhaps they have

very restrictive sort of monitoring things, where they might have to keep

a set address, or they might have to go to a welfare provider every week,

or what have you, right up to the point of where perhaps you might have

someone who is considered a risk, or maybe is at the end of their determination

process and maybe the risk of absconding is very high. Then perhaps that

person would be redetained before removal from - so it's more a situation

of, I think in most countries, having a varied continuing of approaches

to asylum seekers genuinely, or generally, based on the notion of risk.

The more at risk, the more restrictive the conditions, up unto the most

restrictive of all which of course is detention.

PROF THOMAS:

Thank you.

MRS SULLIVAN:

Several people have commented to us on the tension between State

and Federal powers in a system such as Australia. Have you got any suggestions

of how to, I guess, un-jam those logs?

DR THOM:

I wish we had. I think there are some very serious ones there. I think,

well, slightly outside of the terms of reference of this Inquiry the fact

that people could have been, in the past, transferred and technically

still can, transferred from detention to prison without ever having to

go before a court. We saw as very serious breach of people's human rights

the State Governments have now turned around and said that they are not

going to detain people unless there is compelling reasons to do so. Unless

people are charged with an offence. So, for us, that was a step in the

right direction. The fact that Departments of Community Service and things,

they have now become more aware of what is going on in detention centres

is a good first step. But, again, the red tape to get them in to investigate

children in detention has been a long battle, and I still don't think

it's over.

Getting police, state

police, to investigate allegations where something might have happened

in a detention centre. The Minister said recently that he believed state

police are reluctant to investigate crimes committed in detention centres.

I think that's an horrendous admission if you have got children who are

potentially at risk and that we have seen in the past have been at risk

of criminal acts. So my answer to your question is, no, but I wish there

was.

MRS SULLIVAN:

I just wanted to give you an opportunity, if you choose to take

it, to comment on the screening process because it's not something you

have addressed yet in your presentation. Does Amnesty have any concerns

about the screening process, and if so, what are they?

DR THOM:

Pre-screening?

MRS SULLIVAN:

Yes. The initial screening.

DR THOM:

Yes. In previous submissions and documents that we have produced we have

raised that as a serious issue. I guess, fundamentally, our concern is

that you have a right to seek asylum in this country, but that right is

not made explicit to you when you enter the country and unless you actually

engage Australia's protection obligations when you are being questioned

you are screened out of the process. That, I think, for children, and

again particularly for unaccompanied minors, is horrendous. How does a

child know the right words to say? How does a child distinguish between

I am being persecuted, to I want to be safe? That's the sort of technical

language that maybe can be used against them to screen them out. And we

have seen examples where unaccompanied minors have been screened out,

people have discovered this and created a fuss and had them be able to

re-apply and ultimately be accepted as refugees shows just how fundamentally

flawed I think the screening process is in Australia, and I think for

minors, again, their rights need to be made explicit to them as soon as

they enter Australian territory. And if they are being taken away from

Australia's territory then their rights also need to be made explicit

to them, and preferably with legal representation.

MS LESNIE:

The Department states in its submission that the entry interview is conducted

in a non-threatening setting and the children are asked open-ended questions

which enable them to say anything they wish in support of their claims.

Do you know, a) whether this is true and, b) if it is, whether it would

satisfy your concerns?

DR THOM:

I think, again, non-threatening is open to interpretation and I think

the fact that we have seen evidence of minors, unaccompanied minors, who

have been screened out and then ultimately recognised as refugees shows

that that is flawed. Open-ended questions are great, but unless the child

has some sort of guidance in terms of their rights and what ultimately

the Department is looking for - and again, we are not talking about prompting

them or trying to make them tell a lie or come up with something that's

not, you know, their exact factual story, but it can be as open-ended

as you like, if that child is intimidated then they are not going to say

anything and if that screens them out then Australia is certainly at risk

of its non-refoulement obligations.

MS LESNIE:

I wonder if I could just ask one more question going back to the discrimination

point that we were talking about earlier? You state in your submission

that you believe there is discrimination in that unauthorised arrivals

are only entitled to a temporary protection visa whereas authorised arrivals

may be entitled to a permanent protection visa. I would guess that once

again the Minister would say that there is justification for that discrimination

because of border protection and because it is trying to provide an incentive

for people to go the legal route. I wonder what your response to that

is, whether that is a sufficient reason to justify that distinction or

not or if there are others.

DR THOM:

No, I don't think it's sufficient and I think the refugee convention in

terms of not penalising people for the way they arrive makes that quite

clear and I think Excom conclusions would also support the view that you

shouldn't introduce things like temporary protection visas and I know

UNHCR in particular is highly critical of the fact that travel documents

for instance are not given to people on temporary protection visas raises

questions about whether or not we are meeting our international obligations

under the refugee convention and so, yes, I think Amnesty would certainly

say that that is discriminating against that group and in no way can border

protection concerns be used to justify not meeting your international

obligations.

MS LESNIE:

Even if it is in the protection of national sovereignty?

DR THOM:

I don’t understand how it could be a threat to national sovereignty,

realistically. And if these people are going to be staying for three years

and if they are going to be able to stay for another three and another

three and another three, how is our sovereignty possibly threatened? You

know, I am asking these questions because I honestly don't understand

the Minister's rationale for the temporary protection visas given that

they would appear to be so in breach of the spirit, if not the letter

of the refugee convention.

SHORT BREAK [3.36pm]
RESUMES [4.02pm]

DR OZDOWSKI:

Well, I think we are ready to start our last session for today

of this hearing. My name is Dr Sev Ozdowski and I'm the Human Rights Commissioner.

To my right is Professor Thomas who is a professor of psychology at the

Royal Melbourne Institute of Technology. She is an Assistant Commissioner.

On my left I've got Mrs Robin Sullivan who is Queensland Children’s

Commissioner who is again assisting me with the Inquiry.

I would like to invite

now the New South Wales Commissioner for Children and Young People to

come forward. I would like you to ask you to take an oath or affirmation.

GILLIAN CALVERT, affirmed

[4.03pm]

NEW SOUTH WALES COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE

DR OZDOWSKI:

So could I ask you to give your name, address, qualification

and the capacity in which you are appearing, for the record.

MS CALVERT:

My name is Gillian Calvert. My address is [address removed]. I'm appearing

in my capacity as Commissioner for Children and Young People in New South

Wales. My qualifications are, I have a Bachelor of Arts, a Bachelor of

Social Work and a Master of Business Administration.

DR OZDOWSKI:

Thank you. To commence the hearings I would like to remind you about some

rulings I have made about privacy of people involved with this hearing

and I would like you to protect the identity of asylum seekers and also

to protect the identity of third parties which may be named during the

process of the hearings.

Now, could I ask

you to make an opening statement and in the statement I would like to

ask you to mention your sources of knowledge about detention and how it

impacts on children, for the record.

MS CALVERT:

Well, I want to thank you for the opportunity to appear today before the

Inquiry into Children in Immigration Detention Centres. The Commission

for Children and Young People was established in June 1999 and we were

established to provide a voice for children and to bring children’s

views into community discussions on issues that affect them. We are governed

by three principles set out in the Commission for Children and Young People

Act and these are that the safety welfare and well being of children should

be the paramount consideration, that the views of children should be given

serious consideration and taken into account and the other principle is

that the relationships supporting children should be enhanced. That is

the relationships with their parents and the community. The Act also requires

me to give priority to the interests and needs of vulnerable children.

The intent of our

submission to this Inquiry is to make sure that the voices of children

and young people who have experienced life in Australian Immigration Detention

Centres are heard during the Inquiry and in the broader community discussions

on the issue. In preparing this submission we met with ten children and

young people who had lived in Immigration Detention Centres within the

past two years and listened to their stories about various aspects of

arriving in Australia, their life in the centres and once they had been

released from the centres. The ten children now are all on temporary protection

visas and live in the community and their age range was between eight

and 18 years. Some of those children were unaccompanied and some arrived

with their families.

Our submission presents

the children’s experiences in the centres, including the opportunities

or perhaps more accurately their lack of opportunities for education,

recreation and culture. Their access, or lack thereof, to medical assistance

and the supports that were available, or in fact were not available, to

help them in their transition from the detention centres to the Australian

community.

The message that

every one of the children and young people gave is that there should be

no detention of child asylum seekers coming into Australia and my key

recommendation to the Inquiry is that children’s wishes in this

regard should be respected and that we should stop placing children in

Immigration Detention Centres.

Many of the children

and young people in Immigration Detention Centres will become Australian

residents and then citizens, our citizens. They're part of the future

of our country. Our current detention system does not help them recover

from the experiences they have had in escaping from their country of origin.

In fact I believe we're further traumatising them by placing them in detention

centres and I think the experiences that these children and young people

have had in detention will not only cause them problems now but later

on in their life when they are Australian citizens.

Our current practice

of detention is causing health and social problems that will require services

in the future and it makes no sense at all that we would be creating problems

for ourselves further down the track. I acknowledge that abolishing detention

is a task that may require some time and for such a change to be implemented

there are certain things that need to happen. So in the mean time I've

made 31 recommendations for changes and improvements to make detention

a less traumatic experience for children and young people and these recommendations

cover measures such as recognising that childhood is a critically developed

mentally sensitive period for children and that we should therefore be

providing them with additional and extra supports, not less supports.

We should acknowledge their humanity by calling them by their name rather

than a number; by letting them know where they are and what is happening

to them and by allowing them to communicate with their friends and relatives.

The recommendations

also argue that we should provide adequate opportunity for them to learn

and to have similar educational experiences as Australian children or

children in the broader community have. We should be allowing them to

play and have access to toys and sporting equipment so they can in fact

be children. We should be giving them acceptable health care. A chance

or an opportunity to have dental examinations and drinking water when

they need it. We should be informing them about life in Australia so that

if they do become residents or citizens they know what is expected of

them and how they can contribute to our society.

We should also be

giving them proper preparations to leave the centres so that the process

of leaving does not add yet a third trauma to the one they've already

had getting to Australia and then being in detention. My hope is that

the voices of children and young people who have experienced life in Australian

Immigration Detention Centres will be heard by decision-makers in our

society and by our community and that we will stand up and say this is

unacceptable and that action will be taken to in fact promote their safety

welfare and well being rather than diminish it which is what I think is

happening now.

DR OZDOWSKI:

Thank you very much for your opening statement, Commissioner Calvert.

Could you please clarify for me one issue. What's the relationship in

terms of responsibilities between your organisation and DOCS? Who is responsible

for the welfare of children in New South Wales?

MS CALVERT:

The welfare of children in New South Wales is the responsibility

of a range of agencies. Certainly the Department of Community Services

looks after the protective intervention and out of home care services.

Equally the Department of Health has responsibilities to provide services

as does the Department of Education and Training. So those three agencies

would be the key agencies in New South Wales that are responsible for

service delivery to children. My role is to act as an advocate for children's

issues and to, in a sense, speak up on their behalf. We don't provide

direct services in that health, welfare and education way. The other agencies

do.

DR OZDOWSKI:

Sure, for example if you were to have a neglected child in a broader New

South Wales community, if there was a child say who isn't sent to school,

there is some allegation about sexual abuse, there's a problem with food

and so on, it would be more the responsibility of DOCS to look at this

situation and find the solution?

MS CALVERT:

Yes, it would be DOCS responsibility but they would be helped

by the Department of Education and the Department of Health.

DR OZDOWSKI:

Perhaps I am putting you in a bit of a difficult situation asking why

the department did so little to look at children in detention so far?

MS CALVERT:

One of the difficulties is that the immigration detention centres are

seen as Commonwealth lands. They're not seen as New South Wales land or

New South Wales territory, therefore New South Wales laws don't apply

but Commonwealth laws do apply and the issue is that there are no child

protection laws, if you like, at Commonwealth level.

DR OZDOWSKI:

That's correct.

MS CALVERT:

Even if there were Commonwealth laws at the top, and Commonwealth

Child Protection legislation, if the New South Wales Department of Community

Services tried to intervene, then the Commonwealth legislation would override

it, so the problem is one of Federalism in that the responsibility for

child protection is at the State level and these children in detention

centres are in fact Commonwealth children, they're not State children,

but the Commonwealth has no child protection legislation on which it can

rely. Therefore it has to rely on its immigration legislation and clearly

that's inadequate in terms of looking after the welfare and well being

of children. I think what's happening to children in detention centres

demonstrates the inadequacy of the immigration legislation in relation

to their safety, welfare and well being.

DR OZDOWSKI:

How does the issue of guardianship work at a State level? If

you have such a neglected child as I mentioned and there is a need to

appoint a guardian, who would be appointed guardian in New South Wales?

MS CALVERT:

The courts would appoint the Minister for Community Services as the guardian

of the child and there's a legal process involved with that. The Minister

then delegates that responsibility, usually to the Department of Community

Services. My understanding is that some unaccompanied minors, refugee

or asylum seeking minors, have in the past had their guardianship transferred

to the State Minister for Community Services.

DR OZDOWSKI:

From the Federal Minister?

MS CALVERT:

From the Federal Minister for Immigration over to the State Minister for

Community Services, but I'm not quite sure how many of the current children

have had their guardianship transferred.

DR OZDOWSKI:

How would you regard the Commonwealth arrangement that Federal Minister

for Immigration is automatically guardian for unaccompanied children arriving

into Australia?

MS CALVERT:

I think there are some difficulties because the Minister for Immigration

is, in a sense, their gaoler and I think it's very hard to be both the

gaoler of those children and at the same time to advocate for their safety,

welfare and well being. So I think there is a conflict and I think as

a result of that children's welfare is suffering because they don't have

an advocate for them at the Commonwealth level. So I think there are problems

with having the Minister for Immigration as their guardian.

DR OZDOWSKI:

How would you solve the issue? What would you suggest the Commonwealth

should do?

MS CALVERT:

Well, I think the Federal Government are to be commended for having established

a Minister for Children and it would seem to me that that provides one

possible solution for them, that they could actually have the Minister

for Children as the guardian of the children in detention centres which

would then enable the separation of the role of gaoler and advocate and

would enable the Minister for Children to actively advocate on behalf

of the children in detention centres and perhaps put in place some of

the reforms that we're suggesting such as calling them by name rather

than by number, providing adequate education services and so on.

MRS SULLIVAN:

Would you extend his role to monitoring those other issues that arose

in your submission?

MS CALVERT:

I think if he was to be the guardian of the children, then like most good

parents he would monitor their safety, welfare and well being and would

actively advocate for services to them, so, yes, I would see that as a

logical extension.

DR OZDOWSKI:

Some of the children with whom you consulted preparing your submission

were unwilling to be identified in the submission. Could you perhaps explain

why they were unwilling to be identified? Are they afraid of something

or what was the reason?

MS CALVERT:

The children who we met with spoke quite a lot about the atmosphere

of intimidation and fear in the detention centres. They were quite uncertain

about what their future held. They were quite uncertain about what their

present held, if the truth be known and I think in that context it's understandable

that children who are uncertain about what's going on, don't understand

the system of government or what life in Australia is like, would be very

reluctant to stand up and speak out publicly against the people who they

perceive are their gaolers.

The children saw

them as gaolers and because many of them were escaping from countries

where there had been considerable violence and trauma in their home country,

they arrived feeling disempowered, they arrived feeling frightened and

scared and then they were placed in gaol which further heightened their

feelings of anxiety. Having got out of that gaol, they don't want to jeopardise

in any way the limited freedoms that they currently do have.

As one young boy

under ten said, and remember this is his perception and this is what he's

living with, (whether or not it's accurate in a sense, say to an adult

who has competencies and who can speak the language is another question),

but he says, "The boss sometimes in morning, he kicks the door in

and if he sees you, he puts you in gaol. At night when we sleep the officer

comes inside", this is the mother now speaking, "At night when

we sleep the officer comes inside with his foot, kicks the door, and he

came inside and he have a torch and see we in the room or not."

The child then takes

up the story again, "The worst thing was one day they tried to make

a fence and tried to shut it on us and lock us in so we could not go out.

In morning, the officers come and see your card and they say, What number

are you? Everybody, and they can kill you or that, they come and check

us". So it gives you some idea of the fear that the children experience

while they're in the detention centres. Now, if you're worried that the

person who's your gaoler is going to kill you, whether that's a rational

fear or not, it's the fear that the child has, then you're going to be

very reluctant to speak out once you get outside that gaol circumstance.

DR OZDOWSKI:

Would you suggest that the temporary status of people who are

being released has something to do with it? People are usually released

on temporary protection visas, so it means their status in Australia is

far from being determined.

MS CALVERT:

I think it's both. I think it's the experience of having been

in detention centres and the fear that's engendered from their experience

in the detention centre. Then when they are released, they're released

on temporary protection visas so they're not going to jeopardise their

status at all and frankly neither would I.

DR OZDOWSKI:

Now, the issue is they went through the detention centre, they left with

some fears you're describing. How long term is the impact of immigration

detention is on these children? Will they be able to shake off that experience

at some time or do you think the damage which we may be creating is much

more long lasting?

MS CALVERT:

I think the damage that we're creating is much more long lasting.

As I said earlier, childhood is a developmentally sensitive period and

there's that common saying give me a child until they are seven and I

will show you the man and I think that's a commonsense saying about how

critical the period of childhood is. These kids have been through a very

difficult stressing experience getting to Australia. We then compound

that trauma by placing them in detention and provide very few services

to help them make sense of their experience and we then release them into

the community with insufficient supports.

I think the legacy

of that experience will remain with those children for the rest of their

lives. And I think that as a country with considerable resources we should

be in fact providing support services for children as soon as they arrive

in the detention centres to try and help them work through and recover

from the trauma they've had getting here. We should not be locking them

up and in a sense doubling the trauma and compounding the trauma.

DR OZDOWSKI:

Working with children, are you aware of acts of self-mutilation by children

in the broader community by children under the age of 12 or so.

MS CALVERT:

The children we spoke with and met with didn't talk about

DR OZDOWSKI:

No, no, my question is different. I'm not talking now about the

children who are released from detention, I am talking about the broader

New South Wales community. What I am trying to find out is are you aware

of any act of self-harm committed by children, in the broader New South

Wales Community under the age of 12 or 13?

MS CALVERT:

Not in my current role, no I am not. I would have thought that probably

the child psychiatrist or the child mental health services would be able

to assist you with that question.

DR OZDOWSKI:

Thank you. Now I will ask my Assistant Commissioners to ask further questions.

Perhaps if we start here.

MRS SULLIVAN:

Could you comment on the effect of family relationships of children being

in the detention centre? I'm thinking of that two ways. The relationship

of the children with their parents and siblings but equally the relationship

of the parents with the children.

MS CALVERT:

I think inevitably they were affected. Certainly the kids who were unaccompanied

were anxious and worried about not being able to make contact with their

families back in the country that they had come from - their country of

origin. So, that certainly made it difficult for those kids because they

were constantly worried about were they okay, were they in fact still

even alive. For the children who came as members of their family they

saw their parents and their families as their one source of refuge but

it certainly impacted - from our observation - impacted on their relationships.

For example, the

fact that they might have had two families living in the one room. Or

there might have been a family plus a sole other adult male living in

the room with them. They were unable to - I imagine the women felt terrible

and the men also because the kids talked about not being able to get food

outside the regular hours of breakfast, lunch and dinner. And so the kids

talked about trying to sort of take bread out of the dining room - so

that there would be something for the younger siblings if they got hungry

say during the night or during the day - and the way the guards would

search them and so on. So, I think, inevitably, being locked-up would

put enormous stresses on family relationships.

I think the other

thing is that once the kids are released with their family there are additional

stresses trying to survive in the broader community. My understanding

is that a number of families are really struggling to stay together after

the whole process of getting out into the broader community and then feeling

that there are insufficient supports for them once they get into the broader

community.

MRS SULLIVAN:

Do they indicate any use of counselling services? Either inside the centre

or since they've been released?

MS CALVERT:

They certainly had no counselling services inside the centre. And, yes,

some of them are accessing counselling services now that they are outside

the detention centre. Can I just say that I think one of the other impacts

on family relationships is witnessing violence on a family member. So,

that for a kid watching your older brother, or your mother or father being

involved in some sort of physical conflict or disturbance in the detention

centre is really very traumatic. We know from studies involving domestic

violence that the impact of witnessing domestic violence on children is

long-lasting. And certainly I think a similar parallel is watching violence

in the detention centre.

DR OZDOWSKI:

Could you give us some references, maybe later, to such issues? We could

take it on notice, please.

MS CALVERT:

I would be happy to provide you with references.

MRS SULLIVAN:

There have been some statements that have implied that the kids

have been asked to do certain things by their parents, for example, self-mutilate.

Did you hear any evidence of, if you like, parental manipulation of children's

behaviour?

MS CALVERT:

No we didn't.

PROF THOMAS:

I'm sure you are familiar with many cases of children in the

juvenile detention centres - I mean under the justice system?

MS CALVERT:

Yes, I am aware of juvenile detention centres in New South Wales.

PROF THOMAS:

Can you compare the two groups?

MS CALVERT:

I think if I had a choice I would rather be in a juvenile detention

centre in New South Wales than in a detention centre run by the Commonwealth

Government.

PROF THOMAS:

What is the age group at the New South Wales detention centres?

MS CALVERT:

You are unable to be convicted of a crime in New South Wales really -

you've got to be 10 or older. Most children who are in detention centres

are generally 14 and older. It is fairly rare to find a young child -

someone under the age of 14 - in a detention centre.

I think there are

a number of critical differences between the criminal detention centres

and asylum seeking detention centres. I think if you have been in a juvenile

detention centre, they know their maximum period of imprisonment. That

is they know the latest date by which they'll be released. If you are

in an immigration detention centre you don't know that. You are in a constant

state of uncertainty. You don't know when you're going to be released.

If you are in a juvenile

detention centre you know you've been imprisoned following a trial process

which is fair. Where you've had an opportunity to put your point of view

and to argue your case. Whereas, if you are in an immigration detention

centre you've had no process - due process - by which you've been placed

in detention centres. You've not had the opportunity to really challenge

your detention or to state your case.

I also think that

kids in juvenile detention centres know they are being detained as a punishment

for crimes. They may not like it, they may not agree with it, but there

is at least a rationale that is commonly accepted around the world that

it's a form of punishment as a result of their own misconduct. The opposite

is true for children in immigration detention centres. They have done

nothing wrong. They have been brought to Australia by their parents or

because of the circumstances of their country. And they have done no more

than claim a right under Australian and International Law to seek and

obtain protection from prosecution.

I also think that

kids in juvenile detention centres have the opportunity to make contact

with relatives, to inform them of how they are, and their well-being.

And they have the opportunity to have visits. Kids in immigration detention

centres don't.

MS LESNIE:

When you say that they don't have that opportunity, is that because of

their location or because there are some barriers to access for visitors?

Other barriers.

MS CALVERT:

It is because of their location, but also if you are an unaccompanied

minor it is very difficult to contact your family back in your home country.

And there doesn't seem to be much assistance given to the kids to do that.

I also think that

kids in juvenile detention centres have the opportunity to take educational

courses. They have access to good health care, they have access to their

own room, they have access to adequate facilities.

DR OZDOWSKI:

Could you say something more about educational courses. How much education

would be provided for a child over 14?

MS CALVERT:

It was really variable from the children's point of view. Some of them

talked about only having an hour a week of education.

DR OZDOWSKI:

No, no, I'm talking about juvenile detention centres.

MS CALVERT:

In juvenile detention centres they are required to attend school under

New South Wales legislation. Every child under the age of 15/16 years

has to attend school and so if they are in a juvenile detention centre

then they have to attend school and there are schools provided in the

detention centres for that purpose.

DR OZDOWSKI:

And they are normal full time schools?

MS CALVERT:

They are schools, they are normal full time schools and they complete

the curriculum just as everybody else does, every other child in New South

Wales is required to do. They also provide TAFE courses as they get older

or vocational education courses if they are over 16 years.

MS LESNIE:

Are there any children of non-English speaking background in

the juvenile detention facilities?

MS CALVERT:

Yes, there are.

MS LESNIE:

So how does the education inside the detention facilities cater

to their needs?

MS CALVERT:

In the same way they do in any other Department of Education School. They

provide English as a second language classes and teacher's aides and so

on. The schools in juvenile detention centres are run by the Department

of Education so they are provided the opportunities, in some cases it

is often easier for them to get to school in a juvenile detention centre

than it is if they are outside the juvenile detention centre.

DR OZDOWSKI:

And how does it compare, juvenile detention centre schooling

to the Commonwealth's detention centre schooling?

MS CALVERT:

I don't think you can compare them. The first thing is they are not run

by the Department of Education and Training they are in fact run by -

I don't know who they are run by, ACM, they are not educationalists and

I think that is very much reflected in the fact that the education is

sporadic. It doesn't appear to have set routines. The lessons don't follow

the - well if there are lessons they don't appear to adhere to any particular

curriculum. The children who we spoke with talked about for example, being

required to copy out a page of the dictionary, just you know copy it out

and that was the English lesson. Now by any standards that is hardly an

educationally enriching experience. So I think really you are looking

at quite different experiences.

MS LESNIE:

Is there any reason in your view why the education provided in

the juvenile detention facilities couldn't be applied in the Commonwealth

Immigration detention facilities?

MS CALVERT:

My preference would be for the children to go to an external

school, an outside school because I think they are run by the relevant

State Department of Education they have access to the enormous resources

of the State education department. They also get to build relationships

with other children in the community and they learn about Australian life

and it is a great first step to integrating them and to normalising their

world. If it was to be a school inside the detention centre the difficulty

you have got is that the Commonwealth does not operate any large departments

of education at a primary and secondary level so they wouldn't have access

to the resources that the State Department of Education and Training has.

MS LESNIE:

If the Commonwealth Government was willing to invite the State Education

Department to provide those services can you see any reason why those

services couldn't be provided in the same way as in the juvenile detention

centres.

MS CALVERT:

Providing the Commonwealth funded the State Government, no I

don't see any difficulty. Again though let me say my preference would

be for the children and young people to go to an external school because

I think it is much more normalising and what these kids need more than

anything else is a normal life.

PROF THOMAS:

So as New South Wales Commissioner for Children can you take

up the cause because I understand at the moment there is a stumbling block

because the State Department of Education want to be paid

MS CALVERT:

Well I think that's reasonable, I think that if the Commonwealth

Government are going to ask the State Government to provide services to

children who are the Commonwealth's responsibility then they should pay

for them and I think it is really unacceptable to use the money argument

to refuse to provide adequate services. The Commonwealth Government collects

taxes, it is the primary tax collecting agent in this country. They have

access to enormous resources, they can afford to fund the educational

needs of the children who are in detention centres.

PROF THOMAS:

Now back to the children who are in the juvenile detention centres.

By definition they are a group of criminals. Would you consider the atmosphere

in those centres just as full of conflict and tension?

MS CALVERT:

I think they are difficult environments for any child or young person

to be in but I think the fact that they have access to educational opportunities

during the day, they have access to support services and counselling services,

the fact that they have access to recreational facilities, they have adequate

facilities for sleeping, they don't have to wait for hours to go to the

toilet, they have the right to appeal processes and to have visitors I

think it does a lot to in a sense mediate the tension and conflict. Children

in immigration detention centres don't have access to any of those sorts

of things to make their lives easier.

MS LESNIE:

I wonder if I could just follow up where we started which was

you stated that one of the difficulties of your involvement in the detention

facilities is that there weren't Federal child protection laws. In the

Department of Immigration's submission which I am not sure if you have

had an opportunity to look at, they actually say that State laws are enforced

in immigration detention facilities to the extent that they don't conflict

with the Migration Act and I am wondering if that is a sufficient hook

for you to go in and at least examine how State laws are being upheld

inside the immigration detention facilities.

MS CALVERT:

I have no right to go into a Commonwealth detention centre. I have no

powers of entry for example into a Commonwealth detention centre. I would

only be able to go if I was invited by the Commonwealth Department for

Immigration into that detention centre. So I have no powers of entry.

DR OZDOWSKI:

Just one more question.

MRS SULLIVAN:

What do you think is an appropriate complaints mechanism for

children and young people in these settings. Do they articulate how they

want their voices to be heard within this context?

MS CALVERT:

I am actually not sure complaints is the right way to approach

it Robin, as you appreciate because the kids are far too vulnerable and

feel far too exposed to complain. I think what we should be doing is providing

a network of relationships around those children that they trust, for

example, schooling provides a very good set of relationships with adults.

I think that recreation and play opportunities similarly provide those

sorts of opportunities for relationships to form and I think in the context

of those relationships then children are able to talk about what it is

that they need and what it is that they want. I think if you don't have

those relationships it is very difficult for children to make any sort

of comment and to put forward their point of view because it is just far

too risky for them. I think that's also what makes it very difficult for

children or it explains why there are hardly any opportunities for children

and young people to participate in the running of the detention centre

because it is a hostile environment from a kid's point of view and they

just don't have the relationships around them to support them to participate.

What the children

said they wanted in terms of changing detention is things like put in

taps and TV, playgrounds and toys in the detention centre, clothes, no

washing in the toilets. Another child talked about more teachers, a nice

room, computers and they should put the effort in to teach them so they

can use their time effectively. Probably entertainment, activities like

football and swimming, something that is structured. Also I would suggest

a maximum of four people in one room under 18. So I think you start to

see what kids want, opportunities for activities and for meaning in their

lives. Underneath that is a comment about wanting the relationships that

would form as a result of those activities and that would help them feel

safer, that would then give them a platform on which they could start

to put forward their point of view.

MRS SULLIVAN:

The Minister and the Department have stated that there is a designated

officer for unaccompanied minors, the equivalent of a case officer. Did

you get the impression from talking with children and young people that

they readily identified such a person?

MS CALVERT:

No, I would not have formed the view that there was a specific

person that the unaccompanied minors could go to from my conversations

with them. In fact they felt quite abandoned and quite unassisted by the

adults that were surrounding them and they felt quite isolated and alone.

MRS SULLIVAN:

So case planning was an unknown concept to them?

MS CALVERT:

It was an unknown concept to them and in fact that extended to

outside, when they made the transition back into the community. They didn't

appear to understand child welfare systems and how to get in contact with

them and a lot of them struggled to make contact with the relevant agencies.

They didn't understand who DOCS were, one kid actually thought DOCS was

a person. He didn't understand that DOCS was in fact a large State bureaucracy.

They kept on asking, "Where can I meet Docs?". So I think that

gives you perhaps some idea that if there was a person they probably weren't

doing their job very well.

DR OZDOWSKI:

Possibly one last thing, at one of the previous hearings when we spoke

with the mothers of children in detention they quite often complained

that there was no separate food provided for younger children. In your

experience in the broader community is there a need to provide separate

kind of food for young children?

MS CALVERT:

Yes, my experience is that young children tend not to eat the

same sort of food as young people. They also have different eating patterns

in that they need to be able to eat, if you like, they need - well, I

guess young people do too, they need to be able to graze. So they need

to be able to access food when they're hungry rather than having to wait

for set periods of time. Some of the young people spoke about not having

enough food. They're young people who are probably somewhat underfed when

they arrive, but they also tend to be young people and therefore eat quite

a lot. And so they felt that there wasn't enough food.

There probably was

enough food from a calorie and a nutritional point of view, but the young

people themselves felt hungry and felt like they were unable to get food

when they needed it. I think a similar sort of thing can probably apply

to babies, in that they need more than just three meals a day. They actually

need to be fed every four to six hours, often also into the night.

DR OZDOWSKI:

Thank you very much. Any concluding statement?

MS CALVERT:

No, just to reiterate that I think the children and young people

who spoke with us showed a great deal of courage in putting forward their

point of view, and I think that the least we can do is show them the courtesy

of listening to them, and in particular listening to the universal demand,

if you like, that they should not be in detention centres and that they

- that no child or young person and their families should be kept in detention.

DR OZDOWSKI:

Thank you very much.

Now, could I ask

Ms Gaye Phillips from UNICEF to come forward.

GAYE PHILLIPS, affirmed [4.44pm]

EXECUTIVE DIRECTOR OF UNICEF

DR OZDOWSKI:

Thank you. Now, could I ask you to state your name, your address, qualification

and the capacity in which you are appearing?

MS PHILLIPS:

Gaye Phillips, the Executive Director of UNICEF Australia, [address

removed]. I've been the executive director of UNICEF for nearly seven

years, and in the organisation for more than 10.

DR OZDOWSKI:

Do you understand the rulings I made before about privacy, protection

of privacy of children?

MS PHILLIPS:

I understand.

DR OZDOWSKI:

Could I ask you to make an opening statement, and in particular address

the issue of your direct experience with children who were in detention,

or who are in detention, and state also your organisation's concern relating

to children in detention.

MS PHILLIPS:

All right. Let me address one of your questions first before

I read an opening statement. I do not have direct experience with children

in detention centres currently in Australia. I need to let you know I

do that by choice. I have been invited by the Minister to go to detention

centres. It was a choice made by myself in consultation with my Board

that I not do that at this stage, a deliberate choice, for two reasons.

It was an invitation made sometime ago, about a year ago, and I felt at

that time I did not want to raise - the word ‘UNICEF’, it

is a large word. A delegation with someone from UNICEF would raise expectations

from the men, women and children in those centres, and they are expectations

that at that time, and now, I would not be able to meet because I don't

have jurisdiction in Australia to implement programs in Australia.

Secondly, UNICEF

takes an ‘in principle’ view that children should not be held

in these detention centres under any circumstances, except as a last resort,

and then for the shortest period of time. So the view agreed between myself

and my Board was that my very attendance at such a centre may, obliquely

or by perception, imply some kind of endorsement to the existence of these

centres, and therefore the imprisonment of these children. So it was an

active decision of conscience not to attend.

I think the qualification

that UNICEF, and myself as a spokesperson for UNICEF in Australia, has

is best summed up in the Convention on the Rights of the Child, a charter

in which UNICEF is of course very active and was an active contributor

to get it up and running, and also Article 45 which specifically names

UNICEF as an organisation that can monitor and comment on situations affecting

children under the terms of the Convention of Rights of the Child. So

for that reason I feel I have some grounds to make a comment on this issue.

So by way of an opening

statement I want to thank you for inviting submissions for your hearing.

It's an important time for Australia, and it could well be that the hearings

and the public debate which I hope they will ignite, will provide a turning

point for our current attitudes to children in detention. There are currently

150 children in detention centres, as per DIMIA’s stats as of 24

May, held in Australia. Of course there are children held in Nauru, Mannus,

Christmas Island, and the Cocos Islands, and I also have concerns for

those children although I appreciate you're not addressing those in this

Inquiry.

However, I do have

a major concern of a terrifying possibility in fact, that the current

Australian government policy could influence other countries and their

policies towards asylum seekers, a vast majority of them being children.

A conservative estimate is 20 million refugees, even more displaced people

adding to that number, and more than 45 per cent of them being refugee

children worldwide. So I think it is a global problem of humane but large

proportions, and it behoves the community of States parties to conventions

like the Rights of the Child to come up with a solution that is workable

and long-term, and not just specific country by country.

Australia is currently

the only country in the world that mandatorally detains children. It has

not been used as a measure of last resort, and for the shortest period

of time as required under Article 37B of the Convention on Rights of the

Child. There is no legitimate justification for this discriminatory policy.

There are alternatives. Not only is there currently a model already in

place, as demonstrated by the larger number of asylum seekers that arrive

in Australia, with documentation, who are within the community in the

process of having their refugee status determined. But there are also

numerous alternatives, many of which have been submitted throughout the

process of your Inquiry. I've examined all of those various alternatives

and the one that I would come down in support of is the Justice of Asylum

Seekers proposal, being a reception and transitory processing system.

I am really not here

to comment on the conditions within the detention centres for children.

You have no doubt heard overwhelming stories and you have a large amount

of documentation. I do want to affirm that arbitrary detention of children

has an incalculable detrimental impact on their lives, and especially

when they are as vulnerable as asylum seeking children. No one can seriously

argue that it is in the best interests of the child to detain children.

The government attempts to argue that it is in their best interest because

of the family unity.

Now, we agree that

family unity is vital and an integral right under the Convention. However,

it can't be used as a justification to detain children. It must be read

in totality this Convention, not in isolated bits. The Convention really

can't be used, in fact is misused, if we justify a position of one evil

versus another. It is not a choice between detaining children with their

family or releasing children and separating them from their family. Children

and their families need to be released from detention. Thank you.

DR OZDOWSKI:

Thank you.

MS LESNIE:

I was just wondering. You said that the alternative detention

model that you favoured was the justice for asylum seekers model. What

are the features of that model that particularly grabbed your support?

MS PHILLIPS:

It appeals to the sense that you can detain children for a very

short period of time. Currently, and this may be a simple view, there

are two ways that people who are seeking asylum or refugee status in Australia

get here. One, there's been some processing offshore and they arrive with

some documentation. These people go into the community on protection visas

while their refugee status is being determined and the validity of it.

The second group of arrivals arrive without paper work. This is the group

we immediately imprison and detain for an unspecified period while we

determine their refugee status.

It seems to me that

it is a simple step in logic to basically process that second group of

people, as if they were the first group of people but firstly catching

them up to the first group of people. So we detain them in secure situations

for a short period of time, do health checks, security checks, determine

the threat or security danger thereof, of which most will not be, that's

our current experience, and then we release those people into the community

having caught up with their paper work now in the same way as we have

the previous group of people. And so we continue to determine their refugee

status while they are within the community.

That may be a flawed

logic but it seems to me a most simple procedure to take place. It's the

Justice for Asylum Seekers system that most seems to me to capture that.

A short period of detainment, health checks and assessments - with the

children security checks aren't the case anyway - quickly into the community

where they can live within their family unit in a fairly normal way while

we determine their refugee status.

MS LESNIE:

If I could just follow up quickly, are you saying that there

are no security checks done of children as opposed to their parents?

MS PHILLIPS:

There are security checks, to my understanding, done of unaccompanied

minors. I may be wrong but it's my understanding that there aren't security

checks done of children with their parents.

PROF THOMAS:

You talk about the child's right to participation. How do you think these

principles apply to the child’s right to participate in all decisions

about him or herself? Should the child have the right, say, to decide

whether he or she would attend school? Do you think the child has that

right?

MS PHILLIPS:

Well, the Convention of the Rights of the Child does not supersede domestic

legislation. It's not the covenant that then wipes out all domestic legislation.

In Australia compulsory schooling for children is part of our domestic

law and so while children may have a point of view about their participation

at school they certainly under Australian domestic law must abide by that

law and attend school up until a certain age.

PROF THOMAS:

So do you think that the children should determine whether they are refugees

or not independent of their family?

MS PHILLIPS:

Well, the point I would like to make about participation is that

participation could quickly become a bit of a buzz word and the flavour

of the month. We have to make sure that children's participation is always

appropriate to the circumstances and relevant to their age and responsibilities

and that sometimes if we go too far and encourage participation at inappropriate

times we may well be endangering or in some way compromising that child.

For instance, if

you are in an interview, you are an asylum seeking child without the papers

and you're caught up in the detention centres and you are at an interview,

is it appropriate always for that child at the interview to have full

participation rights in the interview? In theory, yes but not always in

practical circumstances. There may be many other ways to gain the point

of view of that child other than the constraints and tensions and stresses

of the formal interview process. There are lots of ways to get children's

opinions that don't in any way torment them or traumatise them or confuse

them.

So, participation

can't be defined in any really limited or restrictive way. I think a child

can have the right to say they want to have an opinion heard and in a

way that does not compromise them or cause them more harm.

PROF THOMAS:

So you mean it depends on the child's level of maturity?

MS PHILLIPS:

That's part of it, that's certainly part of it.

PROF THOMAS:

Instead of using the legal age which is 18.

MS PHILLIPS:

Yes, that's certainly part of it and depending on circumstances

in which they come and what authority has meant to them. Some of these

children have come from situations where an authoritarian person asking

a question may imply some other terrible circumstance so, yes, we might

invite the child to participate and they feel they must because a person

in authority has said you may participate. I just think there's a contextual

situation here that we have to come to grips with. Some of these children

are fleeing very oppressive regimes where if people ask them questions

- - -

PROF THOMAS:

Because at the moment, say in the case of parents’ divorce

and custody, children do have quite a lot of rights in participating about

with who they will live.

MS PHILLIPS:

Yes.

PROF THOMAS:

Do you think that should also apply to these children in detention centres?

MS PHILLIPS:

Are you asking me if they're given a choice between staying in

the detention centre with their families or going out on their own, is

that the context?

PROF THOMAS:

Yes.

MS PHILLIPS:

Well, you see again, I can only offer an opinion on that and

I'm not sure that it's a very valuable opinion for you. The principle

I want to reinforce is that children should not have to make that choice

and therefore should not have to participate in the decision that compromises

the integrity of the family unit. That's against the spirit of the Convention.

So while we may congratulate ourselves that we invite children to participate

under the Convention on the Rights of the Child we are simultaneously

breaching their rights under the Convention by asking them to make a choice

between family unity and making it on their own.

So I think that's

why the Convention is such a holistic document. It's not about plucking

out one and counterpoising against another article, it really is looking

at the well being, best interests of the child and determining where that

is best met and detention, any form of detention, especially indeterminate

detention of children is not the optimum situation in which to keep them.

MS LESNIE:

If you do accept that there is detention, however, how would

you recommend the exercise of the right to participation of a child in

the detention environment?

MS PHILLIPS:

While in the detention centre? Well, I accept detention, and

I am not trying to be difficult here, but I accept detention as a last

resort and for the shortest period of time, so in those circumstances

there will be reasons why the child is being held in detention, something

to do with health checks or some initial processing of some sort. The

child's right to participation in that context, fine. There are going

to have to be some compulsory checks, health checks and so on, is the

right to be informed and to participate in that information process.

So the right to be

appropriately informed in their language with clear instructions so the

child gets to participate in the sense of being aware and knowing of what's

about to happen to that child. Participation shouldn't be narrowly defined

in terms of kids being allowed to speak out at every opportunity inappropriately

or not, whatever they want to think or say at any given moment of the

day. Genuine participation as we understand it as adults is to be able

to have some genuine impact on decisions and policies that affect our

lives. So I think it's much more in that subtle and complex notion of

participation.

MS LESNIE:

I guess what I am trying to get at, as you know better than most people,

is that there are three fundamental tenets of the Convention on the Rights

of the Child, best interest, discrimination and participation and what

I am trying to get a sort of get a sense of is if we're to make recommendations

or to make findings about whether or not the Commonwealth government breaching

the Conventions of the rights of the child how does participation play

into that? What should we be looking at to make sure that that strain

is there? I accept that you don't accept detention for a long time but

given that it does exist how should we be applying that principle when

examining what is going on in those centres?

MS PHILLIPS:

Well I mean you'd look at each incident, each activity or process

during the day of the life of that child and see where they are able to

participate at a level that suits their maturity and ability to participate.

So I can only speak by example. If you're looking at a processing stage

where perhaps the family are being interviewed by officials and the children

or child can be invited to participate in that interview then I'd want

to ensure that the child is invited to participate and not compulsorily

made to participate. I'd want to ensure that the circumstances, context,

general conditions are favourable to that child being able to participate

in a way that enhances their participation, it doesn't frighten them or

in any way impose some sense of terror or a sense of unknown consequence

for their action.

If it’s in

terms of while they're staying for the shortest period of time in a detention

centre and there's an opportunity to be assessed by psychologists or counsellors

or trauma specialists then I would certainly want the child to be able

to participate in a way that suited them. They may not want to speak.

For instance they may want to draw, they may want to dance, they may want

to act out in some other way and so the choice of their level of participation

is as valid as a child who may be very articulate.

If for instance if

it's participation in terms of their right to education or to play then

I think children, as we allow our own children in society, can get a choice

of how they want to play. If they want to do team sports that should be

available. If they want to do individual sports that should be available.

Play and recreation is about expressing your spirit and being and therefore

one needs to provide a fairly full set of options so that children can

generally and genuinely participate without feeling that participation

is just about us getting them to agree to do an activity we fancy they

might like.

So I think it is

that education, and under the Convention too the guarding of one's cultural

heritage and one's nationality, means that participation in one's education

should also involve being able to participate in one's language of origin.

So as I say participation is not this one big umbrella thing that we can

say we've ticked off the box where, you know, they're participating because

we've asked them do they like Kelloggs Corn Flakes or something else.

Participation, if we take it holistically in the way it is intended, is

complex, resource intensive, requires a lot of one on one and individual

time spent on individual children and needs to be provided within the

context of safety, care and really professional supervision especially

in circumstances where children may have been traumatised.

DR OZDOWSKI:

Just one question, just listening to you, how international is the difference

between imprisonment and detention? What is the related difference between

these two words?

MS PHILLIPS:

That's the juveniles?

DR OZDOWSKI:

Yes.

MS PHILLIPS:

Well, the general principle is that in most circumstances it is undesirable

for children to be detained for any length of time anywhere and that if

it's in that criminal juvenile justice arena that the children be given

access to legal counsel and appropriate care and have access to visitors

and to maintain family relationships and access to all the things they

would otherwise be able to participate in, education, health and so on.

It is interesting

because Article 40 talks about that context as being quite particular

that a child in custody has a right to treatment which promotes the child's

sense of dignity and worth and takes the child's age into account, aims

at his or her reintegration into the society. The child is entitled to

basic guarantees as well as legal or other assistance for his or her defence

and judicial proceedings and institutional placements shall be avoided

wherever possible.

So, even in the administration

of juvenile justice we're seeking that children's rights be maintained

in a way that's quite specific to them. So, if in the treatment of asylum

seeking children who have not committed a criminal offence we fail to

deliver even those minimum standards we apply to juvenile offenders, then

I think we've really moved into a very terrifying new area of inhumanity.

DR OZDOWSKI:

So basically what I hear is that in a way when you take going

through different levels, the attention that is supposed to be in English

language is much weaker level to imprisonment and possibly also imply

shorter period of time and so on.

MS PHILLIPS:

Yes, quite right.

DR OZDOWSKI:

Now, my last question if I could is about the 40,000 unaccompanied minors

moving around the world seeking protection from different governments.

Do you know of any other solutions which better look after unaccompanied

children in different countries? What's happening especially in countries

which are comparable to Australia? What's happening in US or in England

or wherever UNICEF is in terms of developed countries?

MS PHILLIPS:

Well, you know, this is the interesting area of debate and one in which

Australia could take a wonderful leadership role because this is a contemporary

problem.

DR OZDOWSKI:

Exactly. It wasn't on the books 5 years ago.

MS PHILLIPS:

It wasn't on the books 5 years ago, the rule books haven't been written,

there aren't fabulous best practice and how to manuals about this. This

is an emerging but enormous global problem in which leadership about the

issue and trialling of new practices could actually open up a whole new

humanitarian management of this global problem. There are, of course,

some countries, Scandinavian groups, who manage asylum seekers including

among that unaccompanied minors in a way that is preferable to Australia

in that they don't detain them for long periods of time. They do health

checks and move them into community and foster situations rapidly. So

that's certainly, by comparison to the one we have, better practice.

I guess the reason

I get concerned that Australia, not only in practice, but in its heart

of hearts gets this right is because the world is really hungry for some

kind of leadership and answer on this question because it is a big problem

and not looking like going away. For Australia to come up with punitive

measures that deplete the spirit of these children is really disappointing

when we could be looking at a situation in a very small manageable context

that begins to set up some best practice models that others with much

larger numbers could benefit from. What I worry about is instead of adding

to that debate in a really positive productive sense we're actually setting

punitive harsher penalties than people who deal with this on a bigger

scale and those people as we've seen lately in statements from Mr Blair

and Mr Bellasconi will begin to take our lead on that harsher regime.

That is tragic for the children and it's kind of sad for Australia's spirit.

DR OZDOWSKI:

Would you like to say any concluding comments?

MS PHILLIPS:

No, thank you very much, I think we've covered things very well.

DR OZDOWSKI:

Thank you, Ms Phillips, for your submission and thank you to UNICEF, I

see you've put in plenty of work and it was very useful to us.

This is the end of

public hearings so I will have to ask everyone to leave because we will

be taking now one more submission in camera.

SHORT BREAK [5.10pm]
CONTINUED IN TRANSCRIPT-IN-CONFIDENCE

Last

Updated 9 January 2003.