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.