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HREOC Website: National Inquiry into Children in Immigration Detention


Transcript of Hearing - SYDNEY

Thursday 5 December 2002

Please note: This is an

edited transcript.


Commissioners:

  • Dr S. OZDOWSKI,

    Human Rights Commissioner

  • Dr T. THOMAS,

    Assistant Commissioner

  • Ms P. MOORE,

    Executive Officer


MR BROMWICH:

Commissioner, before we start, I have been asked to place a concern

on the record and I don't mean this to be in any sense a personal

matter but it will have that flavour, I suppose. I've been asked to

express a concern that there be no repeat of the sarcasm and personal

attacks that were on occasions made yesterday. Commissioner, we are

not aware that there has been the same approach taken to other witnesses

before this Inquiry and indeed, I'm not aware that Counsel Assisting

have been employed previously to, in effect, interrogate in part other

witnesses.

These are, with

respect, Commissioner, very senior Departmental officers. They are

being asked what are complex and detailed questions with notice only

as to broad topics and I'm simply asking - I realise that the heat

of the moment can carry things sometimes but I'm asking that they

be afforded the same courtesy and respect that I understand has been

afforded witnesses at the Inquiry.

DR OZDOWSKI:

Thank you very much for this observation. I would put it to you

that if we were to have more yes and no answers and more direct answers,

perhaps it wouldn't have happened. I would like to say further that

I hope today the questions will be answered in a more [concise] manner

so we can conclude certainly things today but thank you for your comments

and I have brought them to the attention of Counsel Assisting.

MR BROMWICH:

Commissioner, to the extent that the suggestion is being made

that the witnesses haven't attempted to answer the questions, in my

submission, that is not fair. Some of these questions have involved

leaps from the specific to the general and witnesses have been, in

my respectful submission, quite properly reluctant to take what has,

in many cases, been an invalid step. I realise, Commissioner, you

may not agree with that but the witnesses are doing their best to

answer the questions as posed as well as they can and they have not

always been susceptible to the short answer sought.

DR OZDOWSKI:

Let us ask witnesses to continue doing their best and let the

record to stand for public scrutiny.

MR BROMWICH:

Yes, thank you.

MR WIGNEY:

Yes. I think just if I can be permitted to comment very briefly on

that before we move on. I think the transcript will speak for itself

as to whether these witnesses have been endeavouring to assist the

Commission by answering the questions put to them and I reject any

accusation that any of the questions have been inappropriate to the

extent that there was any sarcasm. It was yesterday afternoon when,

you know, apart from a light-hearted response to what was a light

hearted comment to me about a trick question, there has been no other

sarcasm other than in the context of - I withdraw that.

There has been

no sarcasm but I have attempted to press for direct responses to my

direct questions, which in the most part were not objected to. Now,

if we can just move on, please. Just to recap slightly to take us

back to the position we were at before we were interrupted by the

power failure yesterday afternoon, we were at the document at page

22 of the bundle [of a specific case study] and I had specifically

directed your attention to the - that is part of the DIMIA Business

Manager's report for the Port Hedland Detention Centre of November

2001.

I had specifically

addressed your attention to the first sentence under the heading:

Special Needs Cases where it is recorded by the DIMIA Manager at Port

Hedland that the needs of intellectually disabled residents have still

not been assessed or addressed. Now, as I indicated before we embarked

on this case study yesterday, the concerns and focus of the Commission

are the submissions that have been made by the Department to the effect

that people with disabilities are promptly diagnosed and assessed

and then case management plans put into place to address those disabilities.

That is the focus

of the Inquiry. Now, yesterday we got sidetracked, as it were, as

to whether there had been other medical interventions prior to November

of 2001 and I invite you, please, if any of those - whether to tell

us with some specificity what the medical interventions were prior

to November 2001, relevant to the topic of diagnosis and assessment

of the disabilities and formulation of the case plan.

MS McPAUL:

Yes. I think that is our general understanding of where we were up

to and we were going to assist the Commission with providing some

additional information that we understand relate to the case in relation

to the ongoing case management of these particular children and mother

from the time that they were in the centre. It is my understanding,

and if you bear with me, I can just run through a list of items here

for the record, if you are happy with that. My understanding is that

on 13.10.2000, the mother of the family - I will just check I'm using

the correct numbering system from yesterday.

The mother of

the family apparently commenced seeing a counsellor for anxiety and

insomnia and was placed on some medication at that time. On 24.12.2000,

again as I understand it, the mother was spoken to by a psychiatrist

who mentioned to her apparently the possibility of the children having

what I understand at that time was thought to be Fragile X Syndrome

and the mother was provided with some information on managing children

with intellectual disabilities. I then understand that on 3 January

2001, son number 2 had a further referral suggested to a particular

doctor in relation to the delayed developmental issues I think that

we looked at yesterday.

The whole - all

of the children were apparently seen by their paediatrician at Port

Hedland Hospital on 27 February 2001. On 28 February 2001 again the

three children - here I'm referring to daughter 2, son 1 and son 2

in that context - apparently had blood testing carried out including

some chromosome level testing. On 2 March 2001, those same three children,

as I understand it, were reviewed by the paediatrician referred to

earlier regarding their developmental levels and I believe indicated

that Fragile X would be consistent with their understanding of the

family history given.

As I think you

may be aware, some other members of the family also exhibit some symptoms

that appear similar. As I understand it on 11 June 2001, further medical

advice was sought relating to seeking a definitive diagnosis for the

other condition that we were working through in relation to the children.

In August 2001, a paediatric registrar at the East Pilbara Health

Service had appointments with the children. On the 18th of July -

sorry, which - we got to - what date did you want to know up until?

MR WIGNEY:

November 2001.

MS McPAUL:

As I understand it, they are the particular medical interventions

prior to that time and as you can see, most of those referrals were

to doctors and paediatricians outside of our own particular set of

doctors at the centre. So the reports and documents relating to those

would most likely be held by those - that health service rather than

the Department but I think it is clear that there was a cognisance

of the particular - of the fact that the children did have a disability

and that action was being taken to attempt to address that.

It might be helpful

to put on the record what we currently understand to be the disability

for these children, some information about their condition, if that

would assist you.

MR WIGNEY:

Well, we are going to come to that in due course, I think, so no doubt

you will obviously have a fulsome opportunity to deal with that when

we come to it. I'm trying to deal with it in chronological order but

just ---

MR BROMWICH:

Well, Commissioner, there is just one reason why it may be useful

to have that additional information and that is the nature of the

condition is one that was only more recently correctly diagnosed and

even paediatric diagnoses early in the piece were wrong or at least

wrong in the sense that the indications being taken at an early stage,

we understand, were not correct and that explains in part some of

the questions my friend is going to come to.

MR WIGNEY:

Yes, well ---

MR BROMWICH:

What I'm saying is that the ultimate diagnosis and information

we very recently obtained, not specific to this case but generally,

has a bearing on the questions that may be asked about the early stages

because of the nature of the condition.

MR WIGNEY:

Well, that evidence can be given by the Department witnesses rather

than Mr Bromwich at the appropriate time as we go through the chronology.

MR BROMWICH:

Well, I didn't say what the evidence was going to be. What I'm

indicating is that it will have a bearing on questions early on because

the very nature of the condition affects early steps that were taken

or not taken.

DR OZDOWSKI:

Counsel Wigney, please continue.

MR WIGNEY:

Now, can I just pick up on a couple of points about the medical

interventions that you just referred to. Now, putting aside for the

present purposes the October and December [2000] assessments or consultations

with the mother, I don't for a moment suggest that they are not important

because you would agree, would you not, that in the case of disabled

children, parental support is an extraordinarily important matter,

that is, to ensure that parents have adequate support so that they

can look after the children. Is that right?

MS McPAUL:

I think the panel would agree with that.

MR WIGNEY:

So we will come back to that topic in due course. There was a visit

to a paediatrician, you say, on the 27th of February [2001]and do

I understand your evidence to be that the Department does not have

a copy of any report of assessment, written report or assessment,

provided by the doctor in relation to that consultation?

MS McPAUL:

As I understand it, the particular notes that that doctor may

have taken at the Port Hedland Hospital would be held by that doctor

at the hospital.

MR WIGNEY:

But is it not - I'm sorry.

MS McPAUL:

As I've said, we've provided all the documents that we've been

able to locate within the Department.

MR WIGNEY:

Is it not important if children with disabilities are assessed or

diagnosed externally for that - any diagnosis or assessment to be

provided in writing to the Department and ACM's so they are adequately

able to deal with it?

MS McPAUL:

My understanding is that in these circumstances the medical report

would be held by the hospital, perhaps a synopsis of that would have

been provided to an ACM doctor at the time.

MR WIGNEY:

But not in the form of a medical report as you understand it?

MS McPAUL:

I - well, I haven't seen the documents that are held by the hospital

obviously but it would be my understanding that if the care was being

provided to the children, a synopsis of the findings would have been

provided to the doctor at the centre.

MR WIGNEY:

Now again, does the same apply in relation to the consultation on

the 2nd of March? Again, we don't have a medical report that [has

been] provided by that paediatrician to ACM or the Department.

MS McPAUL:

I think the scope of the notices for Notice 5 included documents

that were actually in the Department's custody or control. I think

there were some words

MR BROMWICH:

Page 23 of the bundle.

MR WIGNEY:

Yes, but my question simply is if the report is not in the Department's

custody or control, it would follow from that, would it not, that

the paediatrician has not provided the report to the Department?

MS McPAUL:

Well, I'm not saying that. I'm saying that a search of the Department's

records did not possibly identify this particular document that you

were referred to but that does not necessarily imply that a document

does or does not exist or that it may or may not be with ACM. So we

did particularly seek some legal advice on the scope of this particular

question.

MR WIGNEY:

I see. In any event, as you indicated, and I don't want to get

bogged down in this, but there was a reference to Fragile X and I

think as Mr Bromwich correctly points out as we will discover in due

course, ultimately tests were conducted in relation to that and it

was - they were negative.

MS McPAUL:

Yes. I think what we are seeing with this particular case is that

clearly it was identified that there was a condition that the children

might have and steps were being taken to try to identify what that

condition might be and I think the other information that we have

is that it is quite difficult in the early stages of that disease

for it to be properly or adequately diagnosed, as it is a progressive

disease and exhibits symptoms akin to a number of other conditions,

many of which I understand were being assessed or eliminated by the

work of the paediatricians over time.

MR WIGNEY:

The next - well, what I think the next medical intervention you

say occurred on 11 June 2001, I think you indicated that on that occasion,

medical advice was sought seeking a definitive diagnosis. The position

is that this family were detained from at least August of 2000. We

have now 18 months later the seeking of a definitive diagnosis.

MS McPAUL:

It is just approximately a year later but as I've said ---

MR WIGNEY:

Sorry, my notes ---

MS McPAUL:

As I said, I think the particular condition that these children

are now diagnosed with, as I understand it, it is basically a disease

that is quite difficult to diagnose initially. The information that

we have is that the variation in clinical severity of symptoms and

the individual rarity of each disorder often means that the doctors,

parents and patients coming into contact with this group of disorders

for the first time can be confused and overwhelmed because it is not

clear at the outset of the onset of this condition exactly what it

might be.

As I've said

it is a progressive and degenerative condition which manifests itself

more explicitly over time and I think what we are seeing here is a

range of experts, including a number of paediatricians, having looked

at the children, considering that they may first have one name for

the condition but later on realising that that isn't exactly a definitive

diagnosis for it.

MR WIGNEY:

Do you accept that by June of 2001, that is slightly less than

a year after the detention commenced, that there had been no definitive

diagnosis of this condition?

MS McPAUL:

I think that - what I'm saying is that it was - that the case

was very difficult for a doctor to be certain of what the condition

might be and what we are seeing here is an ongoing attempt, active

attempt, by ACM and the Department to be able to specify the exact

nature of the condition, as you would in the community with a child

with something of this nature.

MR WIGNEY:

Well, if we come back to the place where we commenced this Inquiry,

that is, the Departmental Manager's report of November 2001, which

is page 22, at the very least the opinion of the Manager of the facility

at Port Hedland as at November 2001 was that the intellectual - I

withdraw that. Was that the needs of this family, the disabled members

of this family, had not been adequately or had not been assessed or

addressed.

MS McPAUL:

I think if you go on and finish that particular paragraph, you will

see that there is some additional information there.

MR WIGNEY:

Well, the additional information, and we will put it on the record

if you like.

MS McPAUL:

Yes, please.

MR WIGNEY:

The outcome of DIMIA meetings with ACM's Manager, psychologist

and Programs Manager, requesting that management plans be devised

and implemented, is that the deficit has been acknowledged and plans

are being made to address it, including the involvement of DCD and

FACS. So that indicates that it had been acknowledged that the needs

of these intellectually disabled residents had not been assessed or

addressed.

MS McPAUL:

I think it is saying that they were working - that they have acknowledged

it and they are working with appropriate external agencies to find

an appropriate range of options for the children. I think, you know,

that that is what has been happening in that particular case.

MR WIGNEY:

That as at November 2001, there was no, at least no, written management

plan that had been devised and implemented in relation to the needs

of these disabled residents - or disabled detainees.

MS McPAUL:

Yes. I think we also need to be careful about the use of the term

case management because I think there is - as we referred to earlier

in the evidence from the Department, there has been an evolution of

the way that we approach the management of individuals with special

needs and others in the Department. I think the term case management

is something that we have become more used to using towards the end

of that year, but the information that I have available to me here

is that a behaviour management plan for some members of the family

was in place from 25 March 2001.

This behaviour

management plan included tri-weekly therapeutic sessions for the family

with a psychologist. The family's management being discussed at these

fortnightly meetings. It also included 30 minute daily observations

of one of the children and checks of the children on a number of times

throughout the course of the day. Their cases were also discussed

at the high risk assessment team meetings in the centre and it is

my understanding that the parties involved in the ongoing management

of the family from this, early in 2001 onwards, included our staff

at the centre, some staff at central office, the ACM Programs Manager

at the centre, the ACM medical services staff.

Staff of Family

and Community Services, of DCD, and the other ACM welfare staff, including

the child liaison officer, the school manager, the welfare manager

and the psychologist. So that information is available to me here

and that is my understanding of how the case is being handled. Whether

we use the term specifically case management or not I think in the

way that it came to be understood by the Department later in 2000,

it was not actually in use at this earlier time and I guess that is

why we have got something called a behaviour management program.

I think that

what we are seeing here is some quite intensive management of the

case from early on in their time in detention and some appropriate

action being taken to manage their condition.

MR WIGNEY:

Ms McPaul, I suggest to you that a plan to deal with the - to

manage the behaviour of these detainees is fundamentally different

from a plan to manage the needs of disabled people. You are - this

plan is how to manage their behaviour in a detainment context, not

how to deal with their needs. Do you agree with that?

MS McPAUL:

No, I don't. I think the management plan that we are talking about

here, as we've said, includes the school, the welfare, the psychologist

and the medical officers of the centre as well as intervention with

the relevant child welfare authorities and as we know also, we've

been dealing with external paediatricians and health services in the

East Pilbara area and I think compositely that picture goes to looking

at all facets of the case.

MR WIGNEY:

Where is it - where is the behaviour management plan? Show us

the document.

MS McPAUL:

Clearly I don't have that document with me here at the moment

and a plan is also a series of actions to be taken, rather than just

a record of something that might, you know, be written down at some

point.

MR WIGNEY:

Is it written down in a document?

MS McPAUL:

I would need to check but as I've said, there is a number of plan

facets ---

MR WIGNEY:

But you plainly checked, haven't you? Is it written in a document?

MS McPAUL:

I don't have any such document here with me at the moment, no, but

that does not - you know, I don't think that negates the view that

that there were clearly a number of people at ACM and from outside

both DIMIA and ACM engaged in discussions about the condition of these

children and what we were hoping to be able to put in place for them.

MR WIGNEY:

From the point of the Department, or from the Department's point of

view, who is in charge of the detention facility at Port Hedland?

MS McPAUL:

There were a number of different managers over a period of time. Which

particular time are ---

MR WIGNEY:

November 2001. I don't want his name. Who is in charge? The manager.

Sorry, it is a very simple question. Isn't the Manager the person

in charge of the facility at Port Hedland?

MS McPAUL:

The DIMIA Manager has certain responsibilities in relation to

the centre, that is right, and as does the ACM Centre Manager.

MR WIGNEY:

One would expect that if there was, call it what you will, a behaviour

management plan or a case management plan or anything else to adequately

deal with the needs of these disabled people, one would expect the

Manager, Department Manager, to know about it. That is right, isn't

it?

MS McPAUL:

The Manager would have an idea of what is happening and I think

they have indicated in their notes here that while they felt it may

not have been adequate in some respects, that the issues had been

acknowledged and work was clearly happening, as I've said, with a

range of external agencies.

MR WIGNEY:

The Manager didn't say that they were not adequate. He said that

the needs of intellectually disabled residents have still not been

assessed or addressed. Not that they were inadequate. That they hadn't

been assessed or addressed at all.

MS McPAUL:

Well, I don't know that they are saying that at all. I think what

they are saying is that it has not been satisfactorily assessed and

I think that that is consistent with what I'm telling you, which is

that there was a process ongoing of attempting to properly assess

what the condition that these children actually had was and in the

expert opinion of a number of external paediatricians with whom we

had consulted, there was not a clear diagnosis at that point.

MR WIGNEY:

Now, I want to take you forward, please, to page 47 of the bundle.

That is a memorandum on the letter of ACM, appeared to have been authored

by the psychologist ---

MS McPAUL:

Sorry, which page was that?

MR WIGNEY:

Page 47.

MS McPAUL:

47. Thank you.

MR WIGNEY:

I might just - if you haven't already done so, you might - I'm not

going to take you through the entire document but just familiarise

yourself with that document, please.

MS McPAUL:

Okay.

MR WIGNEY:

Now, this would appear to be a report prepared by the psychologist

employed by ACM at Port Hedland to the - addressed to the Programs

Manager in response to a request by the Programs Manager for a general

outline of how to approach the issue of providing appropriate care

and management of children with a suspected intellectual disability,

right? Do you see that in the beginning of the document?

MS McPAUL:

It appears to be such a document, yes.

MR WIGNEY:

I just want to emphasise for a moment the use of the words "suspected

intellectual disability." That would suggest, would it not, that

the disability that these children had had not been properly assessed

or diagnosed at this stage, that is, 5 December 2001. If my maths

is correct, that is almost 18 months after the detention commenced.

MR BROMWICH:

Well, with respect, Commissioner, the heading is 'suspected/identified'.

That is the first point. The second point is that we have asked to

place before the Commission, to some extent we have information about

the difficulties of diagnosis including the fact that it can take

many years for this particular condition to be diagnosed. Now, Mr

Wigney does not want to have that placed on the record.

MR WIGNEY:

Well, I do. I'm just doing it at the appropriate time.

MR BROMWICH:

As I said previously, it affects criticisms being made about what

did or didn't take place at an earlier time when it is realised that

at a later time, the diagnosis - the diagnostic process of several

years is not unusual or unreasonable and the false premise standing

behind these questions is that it is somehow unusual or unreasonable,

particularly by reference to 18 months. We have asked to have the

record set straight so that can be properly understood and I can only

repeat that request.

DR OZDOWSKI:

Counsel Assisting?

MR WIGNEY:

I will move through this document quickly but can I just respond

to that by saying this. Our concern here is not that there had been

incorrect diagnosis. It is that, in our submission, the records plainly

indicate that these disabilities had not been properly or thoroughly

assessed and perhaps even more importantly, the needs of these children

had not been addressed at the very least up until very recent times.

MR BROMWICH:

That is the very problem I'm trying to identify. That is the very

point I'm trying to have addressed, that when you talk about needs,

a necessary part of that is diagnosis. If you have a condition which

takes some years, on occasions, to properly diagnose, that is going

to affect your capacity to assess needs because you have got to know

what you are dealing with. It is a false premise to say that you work

out the needs and then you get the diagnosis or that you bring forward

a diagnosis ahead of what is medically ordinarily possible.

DR OZDOWSKI:

Counsel Assisting, the problem was apart from the needs, there

is also the difficulty of making a correct final diagnosis. If we

could deal with this issue first and then you continue with your line

of questions after.

MR WIGNEY:

I was going to give adequate opportunity to deal with it. If they

want to deal with it now, they can go right ahead.

DR OZDOWSKI:

Yes, we will listen now to the statement from the Department on this

final diagnosis issue.

MS McPAUL:

Thank you, Commissioner. As we said earlier, this - it is our

understanding that the condition that the children have now been diagnosed

with is one that takes some time to manifest itself. We've been able

to do some of our research in relation to some of the conditions.

I understand there are also a number of web sites that you might like

to look at that relate to the particular condition and information

contained by a number of different medical experts in this field.

The actual term,

as I understand it and excuse me if I don't get this correct, it is

apparently aspartyglucosaminuria or AGU which, as we understand it,

is a lysosomal storage disease which can present a slow onset mental

retardation. This can - this disease can present similar symptoms

to those symptoms displayed with the Fragile X Syndrome including

learning difficulties and Attention Deficit Disorder. This particular

disease, as I said, can be difficult to diagnose initially. Definitive

diagnosis can often take many years as various diagnostic possibilities

are assessed and excluded.

The variation

in clinical severity of symptoms and the individual rarity of each

disorder often means that doctors, parents and patients coming into

contact with this group of disorders for the first time can be confused

and overwhelmed. Treatments at the moment appear to be in the fledging

stage and only useful if administered prior to becoming symptomatic.

These include things like bone marrow transplants, gene therapy, hormone

therapy, organ transplantation, and aggressive orthopaedic management

such as neuro-surgery of the spinal cord and cervical vertical fusions.

Seizures which

are common in some lysosomal storage disorders may be managed with

a number of anti-seizure medications. We understand that behavioural

abnormalities often benefit from the use of sedatives and hypnotics.

Sleep disturbances in some patients can also be managed with the use

of the hormone melatonin. So I think what we are seeing here is that

it is a progressive disease. It is a degenerative disease. It is difficult

to manage and difficult, in fact, to identify and sometimes confused

with the Fragile X disorder which, as I think we've seen some of the

earlier paediatricians assessing these children earlier on, felt that

it may be.

So I think it

is important to understand that it is not something that just by looking

at the child or coming into contact with the child you would actually

be able to clearly assess and understand the nature of the disability,

the way it might manifest itself or the way that it might need to

be particularly managed or treated.

MR WIGNEY:

Is that all you wish to say on that?

MS McPAUL:

For the time being, yes. That is some of the information that

we have to hand.

MR WIGNEY:

I rather gather that that information you have obtained in fairly

recent times from, amongst other places, web sites.

MS McPAUL:

We've done some research on this. Now that we know from a medical

diagnosis what the condition appears to be, we thought it would be

helpful to be able to have some information for you and we've obviously

been interested to know ourselves as part of that case management

process.

MR WIGNEY:

It does not appear that anyone else looked up these web sites,

at least from the documents that we've got until very recent times

at least.

MS McPAUL:

Well, you can't make that assumption, I don't think, from the

documents provided. People may be doing any amount of research separately

and it would be very hard to know what an expert paediatrician might

have resources to access.

MR WIGNEY:

Unless they reduced it to a report which they gave to the Department

or ACM in relation to these children. Is there anything else you want

to say on that topic or Mr Bromwich wants to say on the topic?

MS McPAUL:

Not at the moment, no.

MR WIGNEY:

I just want to take you through what was, in fact, taking place

in relation to these children as they remained in the Port Hedland

detention facility.

DR OZDOWSKI:

Counsel Assisting, could you put your microphone a bit closer because

it is difficult to hear?

MR WIGNEY:

I just want to continue to take you through the documents which record

what, in fact, was occurring in relation to the assessment of these

children and the addressing of their needs throughout 2001 and 2002

whilst they remained in the Port Hedland detention centre if I may.

I think ---

MR BROMWICH:

Commissioner, I just make this reservation. They record what is

being recorded. It sounds like the obvious but that is what they do.

They don't necessarily record everything that is happening because

not everything gets recorded.

DR OZDOWSKI:

But this is the evidence which needs to be tested in this forum.

MR BROMWICH:

Tested? I thought this was an inquiry?

DR OZDOWSKI:

It is an inquiry and we are testing the evidence here.

MR WIGNEY:

Of course it would be open to the Department and I think the offer

was made that if they really want to call any evidence of what, in

fact, was taking place, it is certainly open to them to do so.

MR BROMWICH:

We were told about these individual case studies late Wednesday

of last week. Several officers were dedicated to assembling information

to enable us to do what we could to answer the questions but we really

had very little notice. We specifically asked to be told what documents

witnesses were being taken to and we've been told by letter in reply

that that would not take place. We are dealing with the - what we

can the best we can in circumstances where we simply have not been

given a degree of notice that would facilitate what Counsel Assisting

is suggesting.

DR OZDOWSKI:

Counsel's inquiry was ordered - this hearing was organised - originally

scheduled for September and if we are not able to go about it more

efficiently, we will have to continue hearings either this Friday

or some time next week. I'm trying to avoid this - so please cooperate.

Let us go through the matter as swiftly as we can, please.

MR WIGNEY:

If I can just go through some of the medical records that do exist.

At page 99 of the bundle, just very quickly, this would appear to

be part of the medical record progress notes in relation to the first

daughter - I'm sorry, the second daughter, the eldest daughter with

a disability. Do you see that?

MS McPAUL:

Daughter 1 from yesterday I think - daughter 2. Daughter 2 from yesterday.

MR WIGNEY:

Yes. I just wanted to draw your attention to the fact that on

the 7th of December 2001 it appears that some reference there to a

formal assessment of IQ, I'm suggesting that tests were still ongoing

as a matter of fairness to you. The other entry I wanted to point

- direct you to was on the - I withdraw that. It was part of ACM's

practice as far as the Department understands that if there were medical

interventions, I think to use your term, they would ordinarily be

recorded in a medical record or a progress notes. That would be the

ordinary practice of most medical practitioners or health professionals,

would it not?

MS McPAUL:

In general, that is my understanding, yes.

MR WIGNEY:

So any matters of significance ordinarily would be recorded in

a record such as this one that we are looking at at the moment.

MS McPAUL:

Maybe. Yes. It may be recorded elsewhere on the child's file or

it may be recorded in notes that are made by external practitioners

as well.

MR WIGNEY:

Now, the only other point that I wanted to take you to was a further

assessment, or interview at least, on the 15th of February of this

year, which refers to some concerns about sexual vulnerability. Now,

that is about towards the bottom of the page.

MS McPAUL:

So that is on page 99?

MR WIGNEY:

Yes. Now, of course, as I said as we go through these documents if

there are any other documents that you want to draw our attention

to or passages that I don't direct your attention to, then please

don't feel constrained. Now, if we can just continue to move through

the documents. At page 107 we have some similar progress notes in

relation to - 107, I'm sorry. These medical records would appear to

be relating to the son, that is the boy that is aged 12 or 13. Do

you see that?

MS McPAUL:

Yes, that is right.

MR WIGNEY:

Again it would seem that as at December 2001, tests were continuing

in relation to an attempt to assess or diagnose what was wrong with

these children.

MS McPAUL:

As I understand it, that is correct.

MR WIGNEY:

There is a reference in - to that on the 7th of December and I think

some follow up notes. Now, we haven't actually seen, I think, the

reports of those tests but I don't think it matters particularly at

this stage at least. If we can move through to - I apologise for the

---

MR BROMWICH:

Can I just note for the record that these meetings and consultations

are taking place every couple of days? That is what these records

reflect. It is a fairly constant pattern of attendance.

MR WIGNEY:

I've invited the witness, who is on oath, to give the evidence.

MR BROMWICH:

I'm just noting ---

MR WIGNEY:

And I've invited her, if there are any observations she wants to make

about the documents, then she can do so.

MR BROMWICH:

It is a common practice for counsel to note on the records something

that is in the face - in front of everyone.

MR WIGNEY:

Now, can I take you to 34(c) of the bundle, please. It is - I apologise

for some idiosyncrasies in the numbering but if you find 34 and then

there are a few documents after it.

MS McPAUL:

Page 34.

MR WIGNEY:

34. Yes, backwards.

MR BROMWICH:

These are extra documents that have been added in overnight.

MR WIGNEY:

I'm sorry. No, they are not.

MR BROMWICH:

They were there - not numbered. I see.

MR WIGNEY:

Sorry. Can I take you firstly to 19. I'm sorry.

MS McPAUL:

19?

MR WIGNEY:

Yes, 19. I'm sorry. Now, you will gather that what I'm doing is

taking you through this in a chronological order hopefully.

MS McPAUL:

Okay. So this is page 19.

MR WIGNEY:

Yes. Now, it is part of a - the report of the Manager of the - the

Department Manager of the Port Hedland facility for December 2001.

You will see that from page 18 of the bundle and as we've seen from

these reports, there is various topics or sub-headings and I want

to direct your attention to some passages in the box dealing with

individual care needs at the foot of page 19 which records the special

needs of the three intellectually disabled children still not being

met.

Meeting

with special education teacher elicited some useful ideas and suitable

plans were subsequently devised by the psychologist. These have

not been implemented, however, due to a lack of personnel with suitable

language skills.

Now, we have

the three disabled children at this stage having been in detention

now for in excess of a year. I think we are up to almost 15 months.

We have the Department Manager in charge of the Port Hedland facility

where these children are detained saying that the needs of these children

are not being met and it would appear from this note that part of

the difficulty is that there is inadequate personnel with suitable

skills to deal with these children. Is that right?

MS McPAUL:

I think the Manager was indicating that she felt that the needs may

not have been met fully. However, she says that as well in that particular

paragraph that there have been ongoing meetings with some other staff

there. Particularly, I think, she refers to the special education

teachers and she has also indicated that there were useful ideas and

suitable plans that were being subsequently devised by the psychologist.

So while it is an assessment that perhaps the needs were not being

fully met in her view, it clearly indicates that work was ongoing

to make sure that the needs were met to the extent possible.

MR WIGNEY:

There is not much use having plans if they can't be implemented, is

there?

MS McPAUL:

Well, I'm not sure that is what this is saying. I mean, I think she

is saying ---

MR WIGNEY:

These have not been implemented however, due to lack of personnel

with suitable language skills. That is what it is saying. There is

not much point having plans if they can't be implemented. That is

right, isn't it?

MS McPAUL:

Well, ideally it would be useful to have a plan implemented. I

agree.

MR WIGNEY:

In relation to plans that this note indicates have been devised by

the psychologist, are you able to show us what plans were in existence

as at 2001, at least recorded in a report or a note?

MS McPAUL:

That would be something that I may need to take on notice. I don't

know if I have that particular document in our set here today. I certainly

don't have it with me at the moment. I mean, if you are aware of it,

I would be happy to have that pointed out so we can discuss it.

MR BROMWICH:

In the interest of balance, I would ask my friend to go to page

17, which is the following month.

MR WIGNEY:

Yes. Well, I'm going to come to that. I'm trying to do it in a logical,

chronological order if you wouldn't mind and I will come to that.

Now, in the next document chronologically that I wanted to take you

to was the document at 34(c). So you have to find 34 and then go some

documents through. That would appear as an email from the Centre Manager,

I think, at the time, Department Centre Manager at the time at Port

Hedland to two persons who, I think - and copied to officers of the

Department, I think, in the central office. Is that right?

MS McPAUL:

Yes, that is correct.

MR WIGNEY:

Now, it's topic is the family that we are discussing in this case

study. That is right, isn't it?

MS McPAUL:

Yes, it is.

MR WIGNEY:

The passage I wanted to direct your attention to commences three lines

down. The psychologist is going to draw up a management plan for them

based on her suggestions which will be implemented by the teachers.

So in part this seems to deal with the education needs of these children

but the point is this, is it not, that it indicates that as at 16

December 2001, that is 15 months after these children were first detained,

there had been no management plan drawn up in relation to the special

education needs of these children?

MS McPAUL:

I think I already referred to the ongoing involvement of a number

of people at the centre for these children, including educational,

welfare and programs officers. I think there had also been approaches

made to special education facilities external to the centre around

this time for the children.

MR WIGNEY:

I take it you are still not able to show us or point to a drawn

up management plan for the special education needs of these children?

Is that right?

MS McPAUL:

Well, I don't have a copy of such a plan here, no.

MR WIGNEY:

Well, let us go to the document that Mr Bromwich referred to earlier

and that is at page 15 of the bundle.

MS McPAUL:

I think perhaps before we move on, there are a couple of other

matters in that particular document which ---

MR WIGNEY:

Of course.

MS McPAUL:

--- might be useful to have on. It does also say that one of the three

children attended school about 60 per cent of the time last month,

although the other children were not listed as attending. I think,

as I've said, the inference that no attention was being paid to the

educational needs of these children for any of the period or certainly

around that time is not my understanding of what was happening with

that particular case.

MR WIGNEY:

No. My question was directed to whether there had been a management

plan devised for their special education needs.

MS McPAUL:

I guess what I'm saying is whether or not there is such a document

in existence. It is not - not to say that there wasn't work being

done to put educational, appropriate educational solutions in place

for the children.

MR WIGNEY:

Well, we have got one child attending school 60 per cent of the

time and the other two children not being listed as attending at all.

MS McPAUL:

Yes. As I understand it, there was a period in which the mother

of the children declined to let her children attend the school.

MR WIGNEY:

I see. We will come back to that topic. Now, the next document I was

going to take you to was the document which is the Manager's report

for Port Hedland for February 2002 at page 15. The document commences

at page 14 but the passage dealing with these children commences on

page 15.

MR BROMWICH:

Sorry, have we skipped past 17?

MR WIGNEY:

Sorry?

MR BROMWICH:

We've skipped past 17, have we?

MR WIGNEY:

I'm sorry, you are right. Yes. I had assumed that 15 chronologically

would be before 17 but it is not. Perfectly right. January 2002. Mr

Bromwich, as always, is perfectly correct. January 2002, Manager's

report commences at page 16 and we now have, it seems, the Manager

of the Department at least expressing the opinion that the needs of

MS McPAUL:

We just seem to have a little bit of difficulty with the numbering

in our particular folder. Could you just - it is page 16?

MR WIGNEY:

Yes.

MS McPAUL:

What do you believe is on the top of page 16?

MR WIGNEY:

17.

MS McPAUL:

Page 17. Ours is the ---

MS GREAVES:

There is page 18 as well. There are two pages that are the same.

MS McPAUL:

We are on page 16. Is that correct?

MR WIGNEY:

Yes. 16 is the commencement of the report just to indicate what we

are looking at. 17 is the relevant passage.

MS McPAUL:

Right.

MR WIGNEY:

Now, as Mr Bromwich has pointed out, this indicates that at least

by January 2002, that is 16 months after the children first - were

first detained, the Manager of the Department at the Port Hedland

facility has formed the view that their needs are being assessed -

sorry, addressed through a specific case management plan by the ACM

psychologist. Again, I ask if you have a document which satisfies

the description of a case management plan in existence as at this

time, I ask that you draw our attention to it now or take it on notice.

MS McPAUL:

Look, as I - yes. I think we have taken it on notice as I understand

it. Some Departmental officers are attempting to have such a document

faxed down for your information. I should say as well that I think

I alluded earlier to the evolution of the Department's approach to

case management and the use of that term and the increasing sophistication

of such documents over time. As I understand it, the use of the term

and the compilation of a more comprehensive plan that outlines various

aspects of case management was more uniformly used across all of the

centres around the time of the end of 2001.

So certainly

the Manager's statement here that there is a case management plan

in place accords with my understanding of what was happening in centres

for all children at that time, special needs children, unaccompanied

minors and so on.

MR WIGNEY:

It is a similar effect if you go to page 14 and 15. I'm trying to

move things along as best we can. You will see that again as at February

2002, I think the Manager was - remained of the opinion that the needs

of the intellectually disabled children were being addressed. That

appears about two-thirds of the way down on page 15 but to - if one

then goes to the following month, March 2002, the document commences

at page 12. If one then comes to on page 13, the part of the report,

the Manager's report, for March 2002, one sees that by that time the

Department Manager is of the view that the special needs of the three

intellectually disabled children are still not being met adequately:

ACM is

very slow to produce suitable and implement management plans, partly

due to the responsible staff being relocated for short term placements

elsewhere.

So whatever happened

in January and February, it seems that matters have regressed by March.

Right?

MS McPAUL:

Well, it is the view of the Manager that there may be some issues

for ACM. Perhaps that question might be best to be addressed to them

but as I understand it, the management plans that would have been

put in place towards the end of 2001 would still be in existence.

It is a question, I suppose, of continual refinement of those plans

to make sure that the changing needs of the children are being addressed

as they evolve. I think the important thing with the case management

approach that is being adopted by ACM and the Department is that circumstances

of individuals do not - are not static and don't stand still.

As we've seen

with the particular needs of these children, the development of their

condition degenerates over time and changes over time. So there would

necessarily, I think, be a need to review those plans and to continually

update them as different needs emerged.

MR WIGNEY:

Yes. Well, we would rather like to see the plans because we haven't

seen them and I suspect it is the case, isn't it, Ms McPaul, that

you haven't seen a written management plan in relation to these children

either, have you?

MS McPAUL:

Personally? No, I haven't personally seen it but ---

MR WIGNEY:

So when you are talking about - when you are talking about refining

of management plans, you are just speculating, are you not?

MS McPAUL:

No, I don't believe so. I think what is happening is that other officers

of the Department are aware of these plans and I'm explaining our

general understanding of how the plans work. For these and for other

children, there is continual review, as we've said in this particular

case, from the middle of 2001 with a range of staff at the centre

and our staff in central office.

MR WIGNEY:

In any event, it would seem that the head Department person at the

- on the ground at Port Hedland himself wasn't happy with these plans

- himself or herself wasn't happy with these plans as at March 2002

MR BROMWICH:

I object - well, I object to that. That is not what he is saying at

all. He does not say he is unhappy with the plans.

MR WIGNEY:

Well, he says ---

MR BROMWICH:

Concerns about adequate implementation.

MR WIGNEY:

Well, he says that the special needs are still not being adequately

met.

MR BROMWICH:

That is a different question.

DR OZDOWSKI:

Ms McPaul, did you speak to the other Departmental officers about

the existence of this plan?

MS McPAUL:

Members of my team have been working on the details of the preparation

of this particular case and, as our Port Hedland Manager indicates

there, there was a case management plan in place for the children

so it is my understanding that that is the case.

DR OZDOWSKI:

So the members of your team informed you about the existence of this

part of the plan?

MS McPAUL:

I've referred to the behaviour management and other ongoing care and

members of my team have indicated that to me. That is my advice.

DR OZDOWSKI:

That the plan does exist?

MS McPAUL:

Well, I believe so, yes.

DR OZDOWSKI:

Thank you.

MR WIGNEY:

Well, you can take it on notice that if there is a written plan

---

MS McPAUL:

We've already undertaken, I've already indicated that staff are at

the moment attempting to obtain a copy for you.

MR WIGNEY:

Now, in the next document I wanted to take you to again, we are still

in March of this year, at page 34(e) of the folder you will see commencing

in about the middle of the page is a print out of an email dated 27.3.2002

from someone to the Department Manager at the Port Hedland facility

at the time. Right?

MS McPAUL:

Yes. We have that document.

MR WIGNEY:

Now, I'm trying to avoid the use of names but do you know who the

author of that email is? What is his position at the Department?

MS McPAUL:

At the present time he works in central office. Sorry, at the time

in March 2002, I'm not sure whether he was in central office or at

the centre but in any case, I am familiar with the individual.

MR WIGNEY:

In any event, it seems to be a document that has been created after

an HA - sorry, HRAT.

MS McPAUL:

High Risk Assessment Team. Yes.

MR WIGNEY:

High Risk Assessment Team meeting in relation to Port Hedland

and it discusses, amongst other things, the children, the subject

of this case study and I was going to take you to just - well, a couple

of passages without slowing things down too much but you will see

four paragraphs down there is a reference to the son and his intellectual

disability being severe.

MS McPAUL:

Yes.

MR WIGNEY:

Do you see that?

MS McPAUL:

Yes.

MR WIGNEY:

I'm sorry, there is a reference to [name removed] throughout this

email. That would appear to be the ACM psychiatrist or psychologist

at the time.

MS McPAUL:

That is our understanding, yes.

MR WIGNEY:

If one goes over to the next page, that is on 34(f), the last paragraph

of this document records this:[name removed], that is the ACM psychiatrist

or psychologist:

Assesses

the intellectual disability problems of the family are well beyond

the capacity of the centre to deal with. They need a dedicated team

of IDS, that is intellectual disability specialists, working to

best practice and that cannot occur here. There has been no official

diagnosis of Fragile X and [name removed] does not know where that

comes from. The children need a diagnosis of their intellectual

disability problems and a program of specialist therapeutic care.

She intends to submit a formal management plan for each child this

week.

So again we are

talking about it seems that the suggestions for management plans being

submitted as at March of this year but the real point here is that

we have the ACM psychiatrist or psychologist saying the needs of these

children cannot be adequately addressed in the centre at Port Hedland.

Right?

MR BROMWICH:

Just to put balance on that, I would ask my friend to refer to the

second last paragraph on page 34(e) which suggests - well, suggests

that release isn't really an option in the circumstances.

MS McPAUL:

I guess one of the things, particularly with this family, we've working

as you know with the child welfare authorities in Western Australia

and the health service authorities in Western Australia and it is

quite difficult to, as I understand it, obtain the kind of support

in the community as well in that region for some of the, I guess,

best practice or ideal things that we might like to have in place

for these children. But that is not to suggest that the people who

are working with them on a daily basis and supporting the family are

not doing the very best that they can with what they have available.

MR WIGNEY:

Please understand that I certainly, and the Commission certainly,

isn't being critical of the people employed at these facilities who,

for the most part, may well be hardworking and dedicated staff. We

are not being personally critical. We are addressing the systemic

issues relating to dealing with disabilities and here we have the

member of the ACM staff, who is a psychiatrist or a psychologist,

saying the needs of these children with disabilities cannot be addressed

in this facility. Right?

MS McPAUL:

That is the view expressed there, yes.

MR WIGNEY:

We will come to the various options in due course and the views that

have been expressed by various people. I don't think anyone is suggesting

that one ought just open the gate and let them walk out but where

are they now?

MS McPAUL:

As I understand it, they remain at the Port Hedland facility.

DR OZDOWSKI:

Can I ask you a question? It is a family of five, including three

disabled children. What is the risk of them absconding if they had

been released and allowed to access services in the community?

MS McPAUL:

Well, they would need to be eligible for a bridging visa as well.

I think we went through the whole dynamic of that yesterday so ---

DR OZDOWSKI:

Yes, and I understand that and I also understand that it may not

be possible to do this under the present system of law. But would

you describe them as likely absconders?

MS McPAUL:

It is difficult to know because there are - I think there is seven

in the extended family for this group. They have - that is right,

not all of them are intellectually disabled and they have, as I understand

it, been right through the process, the determination process, including

through the appeals process and I think the point that Ms Godwin made

the other day in relation to this is that as people come towards the

end of the process, there is a greater likelihood of them wanting

to stay in Australia. So, you know, there is a risk factor to be taken

into account there, given the stage of their processing.

DR OZDOWSKI:

So there is a risk, despite their dependence on services at this stage

of their processing, that they could abscond?

MS McPAUL:

It is possible, yes.

DR OZDOWSKI:

Yes. What about two years earlier when they started their processing?

MS McPAUL:

Would the ---

DR OZDOWSKI:

Would they abscond?

MS McPAUL:

Well, it is very hard for me to speculate on what they might do. I

mean, I think there are risk assessments made about some of those

things at different times but the likelihood of absconding is not

in itself a criteria for the grant of a bridging visa, even if they

were eligible at that time for the grant of one. But I think the point

that we were making earlier is that in that particular region, it

is a remote area of Western Australia as you know, the kinds of support

to any family with intellectual disabilities of this nature in that

particular region is difficult because of the nature of the health

services able to be provided more generally in the community.

DR OZDOWSKI:

Is the school in Port Hedland looking after children with special

needs?

MS McPAUL:

Just give me a moment just to check my notes on that. Look, it is

my understanding that the children are attending the Catholic school

with the other children from the centre.

DR OZDOWSKI:

Yes, I know. I have seen them there. My question is: is there in Port

Hedland a school which would better suit their needs? Is there a school

for intellectually disabled children?

MS GREAVES:

My understanding is that there are some state schools, state Government

run schools, that may have facilities and indeed that was one of the

subjects of conversation with the Western Australian Department of

Education that we raised - I mean, we took up recently in November.

MS McPAUL:

The children are receiving one on one instruction from, as I understand

it, an ACM teacher in the school facilities every day. So that - from

that point of view they are receiving individual education that is

targeted towards their particular needs but I ---

DR OZDOWSKI:

From a specialist teacher - a teacher who specialises in disabilities?

MS McPAUL:

I would need to check the specific qualifications of that individual

but it is my understanding that ACM have taken steps to have an appropriate

person there for those children.

DR OZDOWSKI:

So if you would check the file. What I'm really interested is,

clearly this family which has been a very long time in detention with

three handicapped children, several handicapped children, and I would

like to know whether all the resources which are available in the

locality were used to advance their health and their educative needs.

MS GREAVES:

Commissioner, we certainly tried to - ACM certainly tried to access

a special education unit in Port Hedland at various times but that

wasn't available to us. That is why we have now taken the issue up

with the higher level.

DR OZDOWSKI:

When did you first approach that unit?

MS GREAVES:

December 2001 and then later in March 2002. Sorry, May 2002. March

2002 and then again in May 2002 with various ---

DR OZDOWSKI:

Okay. So maybe that is all for the moment and I hope to get from

you some information about the qualifications of that special needs

teacher.

MS McPAUL:

Our colleagues in ACM may be able to assist.

DR OZDOWSKI:

Thank you. Counsel Assisting?

MR WIGNEY:

Yes. I just pick up on the point I think specifically dealing with

education. Can I take you to a few documents and I will try and move

through quickly here. I don't want to be accused of skipping over

positive things but I think as I indicated at the very commencement

of this case study, we don't for a moment suggest that this is other

than a complex and difficult case to deal with.

MS McPAUL:

Look, I think we are in agreement that of the small number of

children with disabilities that have ever been in the centre, this

particular case is clearly one that is very complex and it has been

one that is acknowledged in that vein.

MR WIGNEY:

Now, those difficulties and complexities, and if I can try and

do this in short terms, are demonstrated by some of the following

documents that I will try and take you to quickly. If you go to page

36 of the bundle and picking up on the points raised by the Commissioner

about education in particular, one can see there a document dated

27 March 2002. It is from the Programs Manager to the then Centre

Manager at ---

MS McPAUL:

No. To the ACM Centre Manager, yes.

MR WIGNEY:

I'm sorry. The ACM Centre Manager.

MS McPAUL:

Yes.

MR WIGNEY:

It refers to the education plan in relation to these children and

the difficulty under the present circumstances to devise a plan for

the children and then he goes on to say:

Each requires

a carer at all times for education to be a success. It is difficult

to provide for them educationally, including socially. They require

individual attention and assistance. Each appears to have an intellectual

disability.

Now, again in

general terms, you would have to accept, would you not, that attempting

to provide proper education services for these disabled children in

a detention environment such as Port Hedland was an extremely difficult

matter to accomplish.

MS McPAUL:

Look, I think it would be difficult anywhere to provide the appropriate

care for this particular group of children with this particular kind

of disability.

MR WIGNEY:

If one goes over to page 37, and again take us to any other passages

if you wish, but at the top of the page the Programs Manager refers

to the fact that education is best if trained staff work with these

children and then he refers to an option for the children to attend

the special education class at South Hedland if that were possible.

MS McPAUL:

Yes, that does make reference there to that.

MR WIGNEY:

Again just trying to move through things fairly quickly, if one goes

to 42(a) ---

MS McPAUL:

Sorry, 42?

MR WIGNEY:

42(a). Now again, to emphasise I'm certainly not being critical

of the individuals involved in this but it really demonstrates the

profound difficulties in trying to involve these children in the education

services that were provided to other children at the facility.

MS McPAUL:

Look, I think we do acknowledge that and I think as my understanding

at the moment is that the children are being taught with an individual

teacher in a room of their own at the school, somewhat separate from

the other education services being provided to the children there

at the moment. That is in recognition of a range of factors including

their socialisation and their intellectual impairment and the kind

of one on one approach that is needed in that environment.

MR WIGNEY:

Again not wishing to be critical but that teacher, I think it

is clear - I withdraw that. You are aware of whether that teacher

has special education training in relation to ---

MS McPAUL:

Somebody is checking that point.

MR WIGNEY:

Thank you. Of course, throughout these documents there is a reference

to the fact that really someone with special training in relation

to the education of disabled children is necessary.

DR OZDOWSKI:

You are aware also ---

MS McPAUL:

I'm sorry. We are just conferring about the education now. We

are just checking some details.

MR WIGNEY:

Perhaps if you jump through to 42(d).

MS McPAUL:

Yes.

MR WIGNEY:

I was just going to take you - that is an email from the Department

Centre Manager to the Department central office in relation to these

children. I think the topic is of interest but if one goes to the

paragraph on the bottom of the page, there is reference to the ACM

teacher who takes them to school and works with them every morning.

He is having ongoing discussions with the state school and with another

school, both of which have special education programs. He hopes that

he can get some input from one or other in the next couple of weeks,

even if it is just a couple of days a week that a special education

teacher spends with them. It will relieve him a bit understandably.

MS McPAUL:

Yes.

MR WIGNEY:

Then there is a reference to the fact that he does not have any

special education training and that I think the most - the local school

that other children attend also does not have a special education

trained teacher.

MS McPAUL:

My understanding that that is the case for the Catholic school.

I think as we have said from early in 2001, approaches had been made

and continue to be made to that - the various special education units

at the other schools in Port Hedland with, we'd have to say, limited

success and that is - whereas I understand it we are still in some

negotiations with the Western Australian authorities to enable us

to access those facilities in the way that we would like.

DR OZDOWSKI:

To say that they go to a school, is a bit of an overstatement,

because they are using a room, which is not a part of the main school.

It is a room which has not been used for some time for any other purposes.

MS McPAUL:

I understand it is on the school premises.

DR OZDOWSKI:

Yes. But it is not even equipped properly as a classroom.

MS McPAUL:

No. That is an assessment that you've made. I can't comment because

I haven't personally seen that.

DR OZDOWSKI:

Yes, thank you.

MR WIGNEY:

I suppose the point is this, Ms McPaul, that we are now in this document

as at May 2002 coming up towards to two years in which these children

have been in detention and even recognising the difficulties and complexities

of this particular case, it would appear that they have not had any

special education dealing with their disabilities for the better part

of two years.

MS McPAUL:

I mean, I think the educational opportunities provided to the children

take account of their disabilities to the best that is available at

the time and taking account of the evolving nature of the disabilities

that the children have. I think you may be aware that for some other

- it is common throughout Australia for children and others with disabilities

and intellectual disabilities to also have access to programs and

activities that provide a range of tactile and other experiences for

those individuals.

You may be aware,

I think from some of the notes that we have provided, that these particular

children also participated in the riding for the disabled program

at Port Hedland for a period of time and successfully completed that

program and as I understand it, enjoyed it and got quite a degree

of benefit from that.

MR WIGNEY:

Yes, I think that is the example that you gave in the Department's

written submissions to the Commission and that is why we embarked

on this particular case study but the point is this, is it not, that

accepting for present purposes that the Department and ACM did offer

the best available services open to them to offer in this detention

environment, the point is that the best available at the time was

not good enough to adequately deal with this disabled - these disabled

children? That is the point, isn't it?

MS McPAUL:

Well, I would accept that it is not part of the state or a state curricula

for special education. So to that extent I accept broadly what you

are saying.

MR WIGNEY:

Just excuse me for a moment.

DR OZDOWSKI:

I would propose to adjourn at 10 o'clock for a coffee break.

MR WIGNEY:

Yes.

DR OZDOWSKI:

Will we be able to finish that case at a later time?

MR WIGNEY:

Probably not. Perhaps if we break now I will try and shorten things

so that we don't take - Mr Bromwich can tell me any particular documents

he wants me to take the witness to or he can obviously take the witness

himself and I will try and skip over some to move things along.

DR OZDOWSKI:

Yes, so continue. We will break 10 o'clock.

MR WIGNEY:

Yes. I'm sorry ---

MS McPAUL:

So where are we up to?

DR OZDOWSKI:

No, no. I'm saying just continue and we will break in 5 minutes.

MR WIGNEY:

Now, I just wanted to try and jump forward a little bit. Just

bear with me for one moment and make sure - I'm sorry, without being

overly repetitive if you go to page 10 and 11 of the bundle you will

see the Port Hedland Manager's report for April 2002 and again a reference

to the fact that the opinion of the Department Centre Manager at the

time was again that as at April 2002, the - whilst the children are

being monitored by HRAT, there is an ongoing problem in relation to

the need for special education and training is not being addressed.

MS McPAUL:

Well, look, I think it reflects the Department's ongoing expectation

that special education would be ideal to be provided for these children

and I think the Manager is reporting back that there is still obviously

still some difficulty accessing those external services ---

MR WIGNEY:

Can I ask - I'm sorry.

MS McPAUL:

--- as we've referred to. I mean, we've been attempting for some

time to have access to those facilities.

MR WIGNEY:

Now, on a slightly different topic, you recall that I asked you earlier

this morning about the need for support of parents - supporting parents

of disabled children so that they are adequately able to ---

MS McPAUL:

Yes, and we would agree that that is an important component.

MR WIGNEY:

If one goes to page 80 of the bundle - eight, zero. Yes.

MS McPAUL:

Eight, zero.

MR WIGNEY:

You will see, I hope, some medical records, progress notes in relation

to the mother and in general terms it would be - it would appear that

as at the May of 2002, Family and Community Services, that is a state

authority, is being interviewed in relation to whether the mother

is able to cope with the looking after her children in the detention

environment.

MS McPAUL:

That is - there is a notation there in relation to that but as

I understand it, the mother had been supported in a number of other

ways from early in 2001 as mentioned before. The whole family was

part of an ongoing process of support. You know, I don't think that

the Department disagrees with you that their support to the family

in this context is important.

MR WIGNEY:

Yes. You will see that in the next sentence it refers to the fact

that at least as at May, she was relaxed and in a good mood, grateful

for the help with the children but then if one goes over to the next

page, we've got May of 2002 and again another interview with the mother:

seen in the school as I was passing them - or it seems that it was

just an observation in passing:

She was

with her children, very upset as the other children had gone to

the catholic school and her children were excluded. After long session,

settled her down, however she is emotional and worn out in relation

to her situation with the children and school and their education.

MS McPAUL:

I think she also says - that appears to be the note there.

MR WIGNEY:

Now, as far as you are aware from your study and consideration

of this case study, was that the first opportunity that Family and

Community Services had been bought in to deal with?

MS McPAUL:

No. I believe that the particular circumstances of this family,

different aspects of this family's situation were brought to the attention

of Family and Community Services some time earlier than that. I think

the first indication was on - in March 2001 I think was probably the

first time that matters relating to this family were drawn to the

attention of Family and Community Services.

MR WIGNEY:

Just while we are on the topic of state authorities and before

we take the break, can I take you to page 30(a) of the bundle. Now,

this is a fax from the centre management down to someone at head office

in the Department and there is a reference to some communication from

the Disability Services Commission, that being a commission specially

set up in

MS McPAUL:

Sorry, just the page numbering thing again. 30(a)?

MR WIGNEY:

I'm sorry. 30(a).

MS McPAUL:

Yes, thank you.

MR WIGNEY:

That fax refers to a letter from the Disability Services Commission.

You are aware that that is a state body specifically set up to deal

with people with disabilities. Having recently visited the facility

in relation to these children, are you aware of whether the Disability

Services Commission had been called in at any earlier stage, that

is, prior to 27 June 2002, in relation to these children?

MS McPAUL:

Not specifically aware although we understand that DCD was part

of the earlier programs that we talked about from March 2001 but whether

or not the matters specifically to the individual that is specified

here, I'm not aware.

MR WIGNEY:

Well, it would seem at least, and this is the last question I will

ask before the break, but it will seem at least from this correspondence

that the reason for the visit of the Disability Services Commission

on this occasion was because the plight of - I withdraw that. The

situation of these children had been bought to their attention by

the Human Rights and Equal Opportunities Commission. Do you see that?

MS McPAUL:

Yes. That is written here. I think also it points out a little

bit further on that in the view of this particular letter writer anyway

the feedback that we've received was - that the children apparently

were not disabled enough to qualify for some of the special services

available from that Commission. So - anyway, for what it is worth,

there does seem to be a view expressed there.

MR WIGNEY:

It would seem somewhat surprising for you having regard to what

we have heard this morning about this condition?

MS McPAUL:

Well, it may go to questions of assessment by some individual

in another agency. I'm not saying that that is necessarily the view

that we share here.

MR WIGNEY:

That might be an appropriate time, Mr Commissioner.

DR OZDOWSKI:

Could I ask Counsel Assisting to give me any comments you wish to

make?

MR WIGNEY:

I thought we hadn't finished with ---

DR OZDOWSKI:

Yes, yes. I think Counsel Assisting the Human Rights Commission

has finished his questions. We have ---

MR BROMWICH:

Have you finished with this topic?

MR WIGNEY:

I haven't finished the case ---

MS McPAUL:

Have you finished with this case?

DR OZDOWSKI:

No, no, not the topic but just we are adjourning for the break

to have a coffee.

MS McPAUL:

Yes. So there will be more questions on this case?

MR BROMWICH:

There is going to be more questions from Counsel Assisting on this

topic.

DR OZDOWSKI:

Yes, that is right.

MR BROMWICH:

When Counsel Assisting is finished, I will have my ---

DR OZDOWSKI:

Okay. In this case, before we adjourn, one more issue. When you

referred at the start of today to alleged sarcasm, you said that we

have got very senior Departmental officers appearing today and that

proper respect should be shown to them. I asked Counsel Assisting

to consider the matter. Now, could you put please for the record identify

the substantive level of the officers attending?

MR BROMWICH:

Sorry, can I ---

DR OZDOWSKI:

Substantive levels of the public service of the officers attending.

MR BROMWICH:

You want me to identify what ---

DR OZDOWSKI:

What levels in the public service, because you used the expression

very senior Departmental officers and what I'm asking is to identify

the substantive level of these people.

MR BROMWICH:

I understand in relation to the current witnesses, all the witnesses?

DR OZDOWSKI:

The current witnesses.

MR BROMWICH:

Both the current witnesses are Assistant Secretaries. I think

Ms McPaul is an acting Assistant Secretary.

MS McPAUL:

That is right.

MR BROMWICH:

But both of current - the two women witnesses in front of you, Commissioner,

are assistant secretaries. That is their current positions.

DR OZDOWSKI:

So what is this substantive level of Ms McPaul?

MS McPAUL:

Senior Executive Service position.

MR BROMWICH:

Senior Executive Service position. Ms McPaul is an assistant secretary

but I think currently acting in that position. Is that correct?

MS McPAUL:

That is correct.

MR BROMWICH:

Ms Greaves is an Assistant Secretary of the Detention Policy Branch.

DR OZDOWSKI:

The most senior officer would be, in the Department, the Secretary,

I would assume?

MR BROMWICH:

The senior officer in the Department

DR OZDOWSKI:

The most senior officer is the Secretary?

MR BROMWICH:

Yes, and Ms Godwin is a Deputy Secretary of the Department.

DR OZDOWSKI:

Yes. So how many levels are there between Ms McPaul's substantive

position and the Secretary's position?

MR BROMWICH:

I think you usually have First Assistant Secretaries and Deputy Secretaries

and then the Secretary- yes.

DR OZDOWSKI:

Okay. Thank you. Now we can adjourn.

SHORT BREAK

[10.05am]

RESUME [10.25am]

DR OZDOWSKI:

Okay. So the session is open.

MR BROMWICH:

Commissioner, I understand there may have been some lack of clarity

in the answer I gave you as to the ranking of these officers, Ms Greaves

and Ms McPaul - Ms Greaves is a substantive Assistant Secretary of

the Department. Ms McPaul is an acting Assistant Secretary. The other

person who was at the table but was not taking an active part in answering

questions, Mr Kelly, he is not an Assistant Secretary. He is a director

which is the next level down. In terms of the comments I made earlier,

all three are nonetheless senior officers of the Department.

DR OZDOWSKI:

So they acknowledge this? Thank you.

MR WIGNEY:

Just moving on and I will try and be as brief - I will try and

do this as quickly as possible but please slow me down if you want

me to refer to any other document or passage but I was going to firstly

just take you back to document at 102 of the bundle. Really just to

point out part of the reason as we've said is that the Department

refers in its submissions concerning dealing with children with disabilities

to the fact that these children participated in a horse riding scheme

and that would appear to have commenced - from the note at the foot

of this page, some progress notes in relation to one of the daughters

to have commenced some time in June of 2002.

MS McPAUL:

That appears to be the notation there. I'm just double checking

for you whether we have any other dates. I think the horse riding

for the disabled was an eight week course that actually commenced

some time earlier in May and probably finished some time in June.

MR WIGNEY:

Now, just trying to go through these documents as quickly as we

can whilst doing justice to them. If you go to page 60, please. You

will see that fax from ACM from a doctor, it appears, employed by

ACM, to another doctor and it is relating to these children and one

can see about three quarters of the way down the page you have referred,

of course, to the difficulties in diagnoses and we take that on board

but the doctor who authored this fax suggests that if a definitive

diagnosis could be provided, that would be very helpful.

I mean, the point

is that this is almost two years after these children have been in

custody. It is a bit of an understatement to say that it would be

helpful to have a diagnosis, is it not?

MS McPAUL:

The children have been in detention. I think we've explored at

some length this morning the difficulties in obtaining a diagnosis

from specialists in relation to this case. I think the information

we are seeing here is consistent with what we've already mentioned.

MR WIGNEY:

Just moving forward and I really - at some stage you are aware

that this Commission raised some concerns regarding the way in which

this family was - or rather the children with disabilities were being

dealt with in the Port Hedland facility. I wanted to simply direct

your attention to a document at page 44 of the bundle which would

appear to be the ACM psychologist's response to the concerns raised

by the - this Commission. 44. I simply - I draw that to your attention.

It may - I don't propose to go through it. It is a lengthy and detailed

document but now is your opportunity to say anything in relation to

it if you wish to.

MS McPAUL:

I may have some further remarks in relation to this document but I

will - let us see what you would like to ask about it first and then

I will supplement it with anything else I need to put on record.

MR WIGNEY:

Can I just direct you then to one passage on the - in the report

by this psychologist? It is at page 46 and it is picking up with the

topic that I raised with you shortly before the break about the mother

and the author of this document indicates on page 46, it is the second

last paragraph of the letter or memorandum:

In closing,

my concerns with the[family] are not for the three children with

special needs but for their mother and older sister, as my reviews(

weekly, when I am at the centre) indicate that it is they who are

displaying signs of lowered mood and general deterioration in presentation.

So it would appear

that the mother at least was, to put it colloquially, her mental state

was going downwards as a result of the pressures dealing with her

children.

MR BROMWICH:

With respect, Commissioner, that is not what the document says.

MR WIGNEY:

Well, her mood and general deterioration and presentation.

MR BROMWICH:

But that does not - my friend is making a causal connection there

which it does not say.

MS McPAUL:

It does not say what her - yes. It says that she is displaying signs

of lowered mood and general deterioration in presentation but I don't

believe that there is a direct connection made or a reason specifically

given. It says it is difficult to conjecture.

MR WIGNEY:

Well, one way or another, we dealt with in some length on Tuesday

in the context of the family's topic how, in our submission, the detention

environment undermines the ability of parents to deal with children

in any event and that - whether it is the detention environment that

is causing the lowered mood and general deterioration in presentation

or whether it is specifically the pressures with dealing with the

children, the fact is that there is an indication here that the parent,

the mother, is starting to lose the ability to look after these children,

right?

DR OZDOWSKI:

In a way this was the advice I was getting during my visit to them

when I met all the family. The official advice from ACM and the Department

was that the mother had deteriorated to such a level that she couldn't

look after the children any more. So basically daughter 1 was looking

after the children.

MS McPAUL:

Look, that is my broad understanding as well, that looking after

these particular children is a very demanding task but as to what

other factors might go to the make up of the mother's mental health,

I'm really not in a position to say. As we indicated on Tuesday, there

are any number of factors that might go to that and I think also the

- again with this family as with some of the others that we talked

about on Tuesday, the Department had determined back on 24 May 2001

that this family did not have refugee claims that were substantiated

and therefore were not eligible for the grant of protection visas

of one kind or another in Australia.

So again the

choice to bring the detention period to an end lay within the capacity

of the family and that they could choose at any point from then on

to return to their home country and so far that has not been the case.

DR OZDOWSKI:

But then possibly we are returning to the argument we had the other

day about whether the mother could make an informed choice, given

her current state of mind.

MS McPAUL:

Well, we are talking about a period now spanning 18 months and

I think at very many points in that time she would have been in a

position and possibly as of today to make that decision. There are

other members of her family, in the extended family group with her

in the centre, so it is my understanding, that she would be in a position

to make such a decision.

MR WIGNEY:

Just trying to bring this case study to a halt. If you can go through

to page 62 of the documents, please.

MS McPAUL:

Are we still looking at that particular document, Mr Wigney?

MR WIGNEY:

Yes, of course. If you wish to ---

MS McPAUL:

Page 46 of that particular document, the third last paragraph

where the particular psychologist is saying that over the past 12

months that they had been involved in contact with this particular

family. The psychologist had noted a significant improvement in global

functioning and the well-being of the three children with special

needs. In particular, there has been a dramatic improvement in the

inter personal functioning, social skills and general well-being of

two of the children.

It goes on to

say towards the end that the social capacities of the children, I

guess, have improved. He is saying that one of the children had previously

rarely made eye contact, acknowledging a greeting or a smile or verbalise.

This child

is now consistently making eye contact, actively engages in appropriate

social greeting behaviours without prompting and willingly verbalises

and

saying that the

aforementioned behaviours, the lack of eye contact and verbalisation

and so on, are common in females with - reference here is to Fragile

X -but to conditions…

So I think with

the point that is being made there is that there has been some active

intervention with the family over a long period of time as we pointed

to and the assessment of the psychologist at the centre is that there

had been some improvement following that process of interaction with

the children.

MR WIGNEY:

Can I now just take you forward to pages 62 and 63 of the bundle.

Now, you will see that there are two letters there at 62 and 63 being

letters from the doctors in the employ of the East Pilbara Health

Service and it would appear that that health service had been engaged

at least by August 2002, that is shortly - just over two years - after

they were first taken into immigration detention and I really just

wanted to direct your attention to two things. Firstly, it is apparent

that still at this stage, that is some two years later, there are

still diagnostic steps being taken ---

MS McPAUL:

Yes. That is ---

MR WIGNEY:

But in relation to - sorry?

MS McPAUL:

That is our understanding. There was a continual process of, as I

said, eliminating various possibilities.

MR WIGNEY:

There is a reference in the second of those letters, that is the

one dated 5 September 2002, to one of the children who is the, I think,

the son of the elder of the two sons having speech difficulties and

going to a speech pathologist.

MS McPAUL:

Yes.

MR WIGNEY:

Now, that is the first mention that we can see of visits to a speech

pathologist. Are you aware of whether any earlier steps were taken

in relation to testing speech and speech difficulties and speech pathology?

MS McPAUL:

I'm just checking the notes that I have here.

MR WIGNEY:

You can take that on notice if you need to do.

MS McPAUL:

They are notes that I have indicate - I don't know whether that

is the date that you are referring to but I think it is the same child

was taken to a speech pathologist appointment in September 2002. Is

that - yes, that is consistent with that document. Throughout the

period of 2002, it is my understanding that the children were seen

by a variety of paediatricians, paediatric registrars, a renal physician

at the Department of Nephrology, a paediatrician at the Princess Margaret

Hospital and an audiologist in Pilbara. So there was an ongoing process

of seeking advice about the particular conditions for the children

throughout the course of the year.

MR WIGNEY:

Now, really the final issue I want to address in relation to this

case study is this, that as a general proposition there are no administrative

or regulatory difficulties involved in moving a detainee, be it an

adult or child detainee, from one of the immigration facilities to

another. That is correct, isn't it?

MS McPAUL:

Well, there are a range of considerations that need to be taken

into account for the movement of detainees. Operational needs, other

factors going to the access that they might need to their legal team

or any other community support or networks that they may have formed

around the centre where they might be. There also needs to be consideration

given to the practical arrangements. It is possible at each of the

centres and I guess in this particular case, there is a large family

group more than just the mother and the three immediate children with

disabilities.

I think we have

mentioned that there is a group of seven family members. So it is

a - in theory it is possible to move them. In practice, there are

many considerations that would need to be taken into account to effect

a move to another location.

MR WIGNEY:

Operational needs. What do you mean by that?

MS McPAUL:

Well, yes. I mean, whether the kind of - you know, which other

centre might be best chosen for the family group. It would need to

be one perhaps where there was room in a family-style accommodation

unit. There are a range of things like that that would need to be

worked through, depending on the configuration of other family groups

at any other prospective centre.

MR WIGNEY:

Access to legal team was one of the other considerations. That wasn't

an issue in this case, was it?

MS McPAUL:

Well, I think without knowing the day to day contact of this case,

I think I was talking in general terms about some of the factors that

go - that need to be considered when moving. Obviously if the people

are being represented by a legal team in one location to move them

unilaterally to another location, that distance from that team is

something that would need to be thought through carefully because

clearly we would want them to have the advice that they need to pursue

their case.

MR WIGNEY:

Sorry, my question was fairly specific. Did you know there to be any

issue in relation to access to legal team which may have been a relevant

consideration in this case?

MS McPAUL:

I would need to check the specifics of that for this case and

could take that on notice.

MR WIGNEY:

Community support meaning what?

MS McPAUL:

Well, broadly, some detainees who have been in the, detention

for a period of time have built up a range of associations or connections

with people from the community, either through children attending

the external school, church and community groups that surround the

centre who provide support to detainees from time to time. For example,

there are a number of those groups and individuals who might know

the family or any family or any detainee and those sorts of networks

are one of the factors that we consider in any decision to relocate.

MR WIGNEY:

Meaning if the detainee or detainees have built up a relationship

with someone outside that they don't want to break, they might not

want to leave the facility, right?

MS McPAUL:

Precisely.

MR WIGNEY:

In this case you know, don't you, that the mother of these children

has a - has family residing in Sydney?

MS McPAUL:

Yes, we are well aware of that.

MR WIGNEY:

I think it is the mother's sister.

MS McPAUL:

I'm not sure of the direct - the specific nature of the relationship

but we are aware that there are other family members in Australia.

MR WIGNEY:

You are aware, are you not, that when the Human Rights Commission

first raised concerns about the treatment of this family that it was

suggested that a move to Villawood, that is the detention facility

in Sydney in the vicinity of this woman's family, and with other community

support in the area, would be an advisable course?

MS McPAUL:

I'm not aware of specifically who was making that suggestion. Was

it someone to the Commission or the Commission was making that suggestion?

MR WIGNEY:

Well, as I understand it, it came from the Commission - to the minister.

MS McPAUL:

From?

DR OZDOWSKI:

From the Commission. I wrote to the Minister asking that they

be moved here closer to the family.

MS McPAUL:

Okay.

MR WIGNEY:

Are you aware of - well, it is obvious isn't it, that they haven't

been moved to Villawood. Do you know why?

MS McPAUL:

Well, the family, as I understand it, are still in Port Hedland.

As for the reasons why not, I think as I've explained, there is a

range of factors that would need to be considered. I understand that

the minister has replied to the Commission in general terms. I think

the question you are asking me whether I'm aware of specific reasons

why the family has not been moved and I think the general answer to

that is that we consider that appropriate arrangements are being made

to the extent possible for the family where they are in Port Hedland

and would not necessarily be the case that a move to another centre

would automatically imply that a higher range of services would be

available in the centre for that family with those disabilities.

MR WIGNEY:

Well, let us deal with it this way. You indicated that community

support was one of the considerations involved in deciding whether

or not to move a detainee from one facility to another. It is hard

to imagine what better community support there can be than having

a family living in the vicinity of the detention facility. Would you

agree with that as a general proposition?

MS McPAUL:

Well, the family would still be in detention as I understand it

in that proposition so the kinds of services available would be supplied

in the same way that they have been to date.

MR WIGNEY:

Port Hedland is situated far north-west of Australia.

MS McPAUL:

It is.

MR WIGNEY:

It is probably about the furthest point in distance in Australia

away from Sydney where this woman's family resides, right?

MS McPAUL:

Well, there are also family members with the mother and child

in the centre and I think those family members are also providing

support to the family.

MR WIGNEY:

What, the daughter, the elder daughter, the one daughter that

isn't disabled?

MS McPAUL:

There are other male relatives with the family, as I understand.

MR WIGNEY:

Do you know that?

MS McPAUL:

Yes. We've already put on record that there is a group of seven

in the extended family.

MR WIGNEY:

It is hard to imagine, with respect to the good citizens of Port

Hedland, a more isolated place in Australia, in the far north-west

of Western Australia, right?

MS McPAUL:

I guess there are many isolated places in Central and Western Australia.

MR WIGNEY:

You would have to agree, would you not, that there are more facilities

in Sydney, being the largest city in Australia, for the dealing -

for dealing with disabled children and disability services than there

is likely to be in Port Hedland?

MS McPAUL:

Well, I think with any - as I've said with any decision about

the actual placement of a family in one centre or another, there are

a range of factors that need to be taken into account and I believe

that that is what has happened in the case of this particular family

as it would be with others.

MR WIGNEY:

Well, we are trying to inquire into why. Are you able to assist us

with some specifics, please, rather than saying that there is a range

of considerations that need to be taken into account?

MR BROMWICH:

Commissioner, with respect, this amounts really to a form of merits

review of an administrative decision. My friend can put various things.

The witness has indicated there are a range of considerations and

the overall decision made is that it was better for the family to

remain where they are. In my submission, it is simply not appropriate

to be going into what amounts to a full merits review of that decision

making process. Yes, it is a factor. That is a legitimate factor.

That has been acknowledged but it is not the only factor.

DR OZDOWSKI:

What Counsel Assisting is trying to discover is: what are the

reasons for not transferring this family to another place where other

family members are living, not in detention, and where most likely,

better services are available for children with disability. I think

the question is fair.

MR BROMWICH:

Well, with respect, Commissioner, it amounts to a review of the

decision, a merits review of the decision. That is not the role, with

respect, of this Commission. It has been acknowledged that that is

a consideration and doubtless a consideration which was taken into

account but it is not the only consideration.

DR OZDOWSKI:

It has got nothing to do with a review of the decision because those

decisions are not reviewable by this Commission. It has got plenty

to do with trying to discover how the system works. Basically therefore

this example which was provided by the Department of Immigration,

is being used to test the system.

MR BROMWICH:

Yes, Commissioner, but it has now turned to, away from a question

of care being provided, to a question of merits review as to where

someone should be located.

DR OZDOWSKI:

Well, I have decided to allow this line of questioning to go ahead.

MR BROMWICH:

Well, with - it is obviously your call, Commissioner, but in terms

of spending time on the proper focus of the Inquiry, this is a distraction.

It is a merits review of an administrative decision.

DR OZDOWSKI:

Sir, allow me to define what the proper course of the Inquiry is.

Thank you.

MR WIGNEY:

I'm not interested in reviewing the decision. I want to know what

is the basis of the decision. I want to know why the decision has

been made not to move these children.

MS McPAUL:

Look, I wasn't directly involved in that decision but I can talk

to you a little bit about some of the operational factors which were

referred to earlier in relation to Villawood itself. It is my understanding

that there are a very large number of people who would probably prefer

to be accommodated in Villawood and that is just simply not possible.

Villawood has a fairly high capacity at the moment and is primarily

used for managing the compliance program, compliance pick ups from

the New South Wales and to some extent Queensland jurisdictions.

So you know,

there are a number of different factors there that we have to balance

up in terms of questions about where individual families might be

located and I'm not sure that there is very much further that I can

personally add without having been directly involved in the specific

decisions, if there was one taken, not to move them. I mean, there

is a suggestion that a letter has been provided but whether the Department

has actively turned its mind to that question at this point, I really

can't say, Commissioner. I don't know how recently your letter was.

DR OZDOWSKI:

Thank you.

MR WIGNEY:

You are aware, are you not, that - well, the suggestion has been made

to the Commission that ACM has made several attempts to involve the

children in the special education in Port - unit in Port Hedland and

has been advised that those children will not be granted access.

MS McPAUL:

Well, to date they have not been granted but we are continuing

our negotiations to hopefully achieve that access.

MR WIGNEY:

Has the Department made any actual inquiries with any organisation,

special education unit of any organisation in the Sydney region as

to whether the children could be catered for in the Sydney area, in

the vicinity of Villawood?

MS McPAUL:

Not to our knowledge.

MR WIGNEY:

I have no further questions on this inquiry. Perhaps Mr Bromwich

may.

DR OZDOWSKI:

So you have concluded questions on this particular case?

MR WIGNEY:

Yes. On this case study I've got no further questions.

DR OZDOWSKI:

Thank you. Mr Bromwich, anything ---

MR BROMWICH:

Commissioner, the first just - I just wish to run through is the

processing history, case processing history, for this particular family,

then I think Ms McPaul may have a few matters that she wishes to raise

from the documents. If I could deal with that first part.

DR OZDOWSKI:

Yes, please do.

MR BROMWICH:

Ms McPaul, I think you have got the processing history available to

you.

MS McPAUL:

I believe so, yes.

MR BROMWICH:

I think it is the position that this family arrived on a boat in Australia

in August of 2000.

MS McPAUL:

Yes, that is my understanding.

MR BROMWICH:

On arrival in Australia, they initially didn't raise any claims that

prima facie engaged Australia's protection obligations, that is, they

weren't making a claim or making claims or statements that would ordinarily

give rise to a refugee claim.

DR OZDOWSKI:

So this explains the long period of their separation detention?

MS McPAUL:

Well, it would be one of the factors, yes.

DR OZDOWSKI:

Yes.

MS McPAUL:

As I understand it, a protection visa application was not lodged

until February 2001.

MR BROMWICH:

That primary application for a protection visa was refused in

May of 2001.

MS McPAUL:

Yes, as I understand it. On the 24th of May.

MR BROMWICH:

There was then an appeal to the Refugee Review Tribunal?

MS McPAUL:

That is correct. That was undertaken a couple of days later.

MR BROMWICH:

The primary application being refused meant that the delegate of the

minister found that this - the members of this family were not refugees.

MS McPAUL:

That is correct.

MR BROMWICH:

The Tribunal affirmed and came to the same view in November of

2001.

MS McPAUL:

That is correct.

MR BROMWICH:

There was an appeal to the District Court - Federal Court, sorry.

MS McPAUL:

To the Federal Court at the beginning of December 2001.

MR BROMWICH:

In May of 2002, the Federal Court dismissed the application for

review.

MS McPAUL:

Yes, that is right. That was on 10 May 2002.

MR BROMWICH:

I think, Ms McPaul, there were a number of documents you were

taken through in this bundle and there were some other comments you

wish to make about some of those documents. Is that correct?

MS McPAUL:

Yes. There were a couple of other documents that we would like

to just draw the Commission's attention to in particular.

MR BROMWICH:

If it is convenient, Commissioner, it is probably easiest if the witness

simply goes to a particular document and makes them - the comments

that she wishes to make.

DR OZDOWSKI:

Yes, please. Please do so.

MS McPAUL:

The page numbering that I'm referring to is in the general green

folder but I will just briefly refer to a couple of documents. I think

the suggestion was made earlier that there may be no case management-type

plans or records that refer to case management provided with the documents

and with respect I think that some of the documents that have been

provided indicate that there have been plans in place and do, in fact,

comment on those plans and give an outline of some of the matters

that we've discussed.

The numbering

is, as we know, a little bit confusing but I will see if I can work

through from the beginning in a chronological way. On folios 47 and

49 of this folder that we've got here, we've got a note from the psychologist,

ACM psychologist, dated the 5th of December to the Programs Manager

- December 2001, which indicates some information about the cognitive

functioning of the children, the processes of assessment, the kind

of intervention that would be required, including parent and family

based intervention services. Some issues relating to approaches to

schooling and what might be possible and the need for ongoing monitoring

of the family, the expectation that a case manager would be responsible

and appointed and responsible for the care and management of the children

and oversighting the appropriate service delivery and general management.

So within the documents, there is certainly an indication at that

point that activities were undertaken as we indicated. There are a

number of other documents subsequent to that on folios 50 to 52 dated

23 January 2002.

There is further

ACM correspondence from the psychologist to our Manager, again indicating

some matters relating to the assessment of the children. Indicating,

for example, that although the children's language was not as well

developed as their receptive language, they nonetheless - nonetheless

all three children could adequately communicate. Some assessment of

their motor skills and so on. So this clearly again indicates that

there had been a particular assessment of the children and appropriate

action is being taken in the centre to address their needs.

I think Mr Wigney

was looking for evidence provided and these are two examples, amongst

others. There are several other things here. An ACM memo dated 15

February 2002, 27 March 2002 which indicates an education plan. There

is information relating to the behaviour management program in some

detail in the documents at folios 37(a) to 37(b) and 38 and 29 in

our folder, which are dates 28 March 2002 and 2 April 2002. There

is also a progress report in folios 40 to 42 which is dated 4 April

2002 and I think possibly we looked at some of the folios on 40 to

46 which is from July 2002, an ACM memo also summarising the involvement

in the management of this case since November 2001.

So I believe

that we did provide quite a range of documents which outlines the

specific plans and actions that were being taken in the centre. Nevertheless,

I'm also endeavouring to obtain a copy of the current management plans

for the Commission's information.

DR OZDOWSKI:

Thank you for your submission. Mr Wigney, any questions?

MR WIGNEY:

No.

DR OZDOWSKI:

No. So we close the case of this particular family.

MR WIGNEY:

Yes.

DR OZDOWSKI:

We can progress now to the second case which you intended to examine

today.

MR WIGNEY:

Can I just indicate again the particular interest of the Commission

is on the submissions that have been made in the Department's submissions

about how children with disabilities are dealt with and in particular

the issue of early assessment of disabilities and early formulation

of case management plans to deal with those disabilities. I think

we - it is fair to say we've explored many of the issues in general

terms through the first case study so I will endeavour to move through

this case study as quickly as we can, having regard to time limitations.

MS McPAUL:

I'm conscious of the time as well.

MR WIGNEY:

I just wanted to indicate that, not to do any injustice to the importance

and significance of this particular case.

MS McPAUL:

Sure, I understand that.

MR WIGNEY:

You will see, I think, from the Department's submissions that

as I indicated earlier, two specific examples are given by the Department

in its submissions about assisting disabled children and I think you

will agree that this particular case study, that is case study A on

the list that has been provided, is one of the examples that is given

by the Department in its submissions about assisting disabled children.

MS McPAUL:

Could you just refer us, please, to the page in the submission

you are looking at ---

MR WIGNEY:

Page 70.

MS McPAUL:

--- so someone can confirm that, please? We are assuming you are correct

but we just don't have a copy of the document in front of us. That

is all. If someone could just show me the document and we may be able

to confirm it. Thank you.

MR WIGNEY:

There is a reference there to - there is a box on the page: two examples

assisting disabled children and one of the examples is a management

plan in place for a child who suffers from a congenital disorder and

you will see there some further descriptions about it and I think

it is fair to say this is that case.

MS McPAUL:

Yes, we believe it is the same case. Yes.

MR WIGNEY:

Now, just to deal with the broad chronology in relation to this particular

family, it consists of a mother. The child with the disability that

will be the subject of discussion in this case study was born in 1986

so that means that he is presently ---

MS McPAUL:

So we are referring, that, as child 1 for the purposes ---

MR WIGNEY:

Yes. Child 1. So he is now about 16 years old.

MS McPAUL:

That is right and there are two other children in that family, an

older and a younger brother.

MR WIGNEY:

Yes. The situation is, as we understand it, that that family arrived

in Australia at some stage in November of 2000 and were detained in

the Curtin Immigration Detention Facility.

MS McPAUL:

That is my understanding as well.

MR WIGNEY:

Now, again we have, that is, the Commission has served a notice requiring

the provision of certain documents and again the - and just to explain

that the documents that are within the bundle that we are going to

work through and that are paginated come from the documents that the

Department has provided to the Commission but are, of course, not

all of those documents.

MS McPAUL:

We understand that all the documents that were available when the

notice was due, which I think probably was Wednesday last week, were

provided to the Commission at that time. It is my understanding that

there are some further documents which may have subsequently been

provided on Friday to you or earlier this week from the child's period

of the child's detention at the previous centre, the Curtin centre,

which has subsequently been closed.

MR WIGNEY:

Yes. Sorry, you are saying that there are more documents that

have been provided?

MS McPAUL:

I know that they have been identified. Obviously I haven't been in

the office this week to confirm whether they have been sent but my

understanding is that they may have been forwarded to you last Friday.

In any case, somebody is confirming exactly what has happened with

that.

MR WIGNEY:

Well, that may explain one thing because accepting for the present

purposes that this family were detained in November 2000 in the Curtin

facility, the first records really that we have in relation, that

deal in any significant way with the family are dated some number

- are really dated in June of 2001. So some number of months ---

MS McPAUL:

June 2001.

MR WIGNEY:

Yes.

MS McPAUL:

Okay. So there may - yes. The family would still have been at Curtin

at that point in time so it seems like the majority of the documents

are certainly with you.

MR WIGNEY:

Well, can I ask this? It would appear that from at least from

the documents that have been provided to us, we have not been able

to identify any document or any record of an assessment of the health

of this family and in particular this disabled child and certainly

no records of any management plan, care plan or call it what you will,

plan as to how the Department or ACM ought best address the needs

of this child. Sorry, at least until some time later in 2001.

MS McPAUL:

As you indicated, the child is there as part of a family unit

and had been in the care of its mother, or the child was in the care

of the child's mother, from the time that it entered the centre. So

as I think we've indicated previously we do anticipate that parents

take responsibility for the parenting and care of their children as

far as possible. I think I've also indicated that the process of development

of management plans was an evolutionary one throughout the course

of that period. So it may well be that there is no particular document

headed: Case Management Plan or some other like term for that earlier

period.

DR OZDOWSKI:

Could I perhaps make a comment here about parenting, the responsibilities

and about my experience with this particular family? I visited Curtin

twice and on both occasions, I met this particular family. The first

time I didn't speak to the mother. However, she was pointed out to

me by other detainees as a bit of a curiosity and at that stage, I

saw her pushing a pram with a child in it and having real difficulty

doing it, because it was a near desert situation - there were plenty

of pebbles on the ground. I took particular interest in that woman

and it was early in 2001.

Because of my

responsibility as a Disability Discrimination Commissioner, and I

work especially in the area of accessible public premises, and clearly

from what I have seen, the pram was possibly the cheapest $20 pram

one could get and I was surprised that this relatively small woman

was able to push that kid over these pebbles and so on. Certainly

she was attracting the attention of all the other detainees, who were

showing me that basically this situation was inappropriate. The second

time I met her, was quite recently on my last visit to Curtin which

possibly was about four months ago. I would need to check it.

At that stage,

she had decided to take a carer for the child and she simply explained

that she had been doing it for one and a half years and she was now

mentally and physically exhausted and she couldn't do it any longer

and we had quite a detailed interview which we recorded for the purposes

of this Inquiry. So just to put that into context. I met that woman

and spoke to her. I also spoke to both her healthy children, the older

boy and the young boy. So maybe I will leave it at that. I will now

ask my Commissioner Assisting to take the chair for a few minutes

because I've got something else I need to do. So if Professor Thomas

could assume the chair for a short period of time.

MS McPAUL:

Sure. The Commission might be interested to know some further information

in relation to the equipment that is available to this particular

mother and child. As I understand it, the family was moved to the

new Baxter Immigration Detention Facility when it opened earlier this

year, in around September I understand. At the Baxter facility we

have the capacity to provide particular accommodation units that are

designed for people with disabilities. These units include wheelchair

access and particular configurations in the units themselves that

are more suitable for people for use with people with disabilities

who may have equipment that they need to use in the accommodation

unit.

I understand

that in May this year, some time well prior to that but while the

family was still at the Curtin centre, there was a number of pieces

of equipment purchased to assist with the care of this child, including

a wheelchair, a mobile shower commode, a custom-made tilting bed and

a home-care lifter or hoist with a sling and I believe that these

pieces of equipment significantly assisted in the mobility, manoeuvrability

for the child. I've personally seen some photographs of the child

using this equipment.

It is my understanding

that the facilities at Baxter where the child is now accommodated

with his mother and siblings is better suited to meeting the needs

of his particular condition in that disabled unit.

MR WIGNEY:

Yes. I just want to explore for the present purposes and as briefly

as possible the conditions that this child was in prior to the move

to Baxter because we haven't had the opportunity to consider the conditions

in Baxter now but the fact is that this child remained in the Curtin

Detention Facility for the better part of two years before being moved

to Baxter.

MS McPAUL:

Yes. Baxter was - that is right. I mean, the Department had been

working for some considerable period of time to construct a more suitable

facility for families and for people with disabilities at Baxter and

we felt that it was appropriate for the family to stay together in

the other centre until such time as it was possible to effect the

move to facilities that were better suited to their particular needs.

MR WIGNEY:

So they stayed in - they stayed in Curtin for two years?

MS McPAUL:

Up until the time that they were moved to Baxter which was, as I understand

it, some time in September this year.

MR WIGNEY:

Just less than two years then and of course, as I think we've explored

earlier, there was nothing to stop the Department from moving this

family to one of the other detention facilities. You didn't have to

wait until Baxter was commissioned, did you?

MR BROMWICH:

Well, I object to the question insofar as it is loaded with the

'nothing to stop' when we've already had a considerable body of evidence

to suggest that,… 'nothing to stop' suggests that it is a one

dimensional issue and it is not.

MR WIGNEY:

I will rephrase the question. There was nothing in - there is nothing

in the Migration Regulations, nothing in the Migration Act or in any

other instrument preventing the minister or officer of the Department

from deciding to move a detainee from one facility to another.

MS McPAUL:

I think the situation with this particular family group, as with the

other family with disability - disabilities - that we've already discussed,

is that very careful consideration needs to be given to changing the

arrangements that might be in place and while we accept that the process

of providing services and management plans to these individual families

has improved over time, one of the features to provide successful

management of these cases is to enable the families to live in an

environment that is familiar, that is understood by the children and

disruption through moves that might be operationally convenient to

the Department from one compound or one centre to another would need

to be carefully weighed up against the effects that that might have

on the children themselves.

So you know,

it is not just a simple thing to suggest that we could easily simply

move these people around at our convenience. I think there is a range

of factors that have to take into account the circumstances of the

families and their preferences and management strategies as well.

MR WIGNEY:

You say, do you, that the Department carefully considered all of those

matters that you have just referred to in that long answer in deciding

not to move this family from the Curtin facility until September of

this year?

MS McPAUL:

Well look, I think the Department, as I said, was doing its best to

continually improve the facilities and services available to the child

in its location at Curtin. We had, as with the other family, sought

advice from external health services in relation to the provision

of care so there was an ongoing process designed to provide what we

felt to be adequate care for the child at the centre.

MR WIGNEY:

I see. Well, that is what we will explore as we go through these

documents but just before we come to them, you also refer to the fact

that prior to the move to Baxter, some equipment was purchased and

I think you used the date May of this year. That is a date some 18

months after this child first was detained. Right?

MS McPAUL:

The specialist equipment that we refer to, I think, as I said,

was purchased in May. I believe there was an earlier time at which

a stroller had been purchased - a new stroller had been purchased

for the child back in May 2001.

MR WIGNEY:

I see. Well, what I wanted - one of the things - the reason I

asked the question is one of the things I want to explore with you

is how it came to be that it took the Department some 18 months to

purchase some of this special equipment but we will come to that as

we go through the documents. One other preliminary matter that I want

to take up with you in relation to an answer you gave shortly before,

this child, I think you would agree, and you have seen photographs,

is profoundly disabled, is he not?

MS McPAUL:

As I understand it, the child has cerebral palsy.

MR WIGNEY:

He is effectively unable to walk unaided and unable to carry out many

other ordinary functions unassisted at all.

MS McPAUL:

As I understand it, he has difficulty with managing his individual

care, personal care, toileting and so on.

MR WIGNEY:

That disability would have been obvious, would it not, to any

officer of the Department or ACM when this child was first taken into

detention back in November of 2000?

MS McPAUL:

Quite possibly, yes.

MR WIGNEY:

Do you suggest, do you, that the fact that this child came into

detention with his mother absolved the Department from performing

detailed and thorough assessment of the child's disabilities and from

formulating a detailed and comprehensive plan for the care of this

child?

MS McPAUL:

I'm not suggesting anything of the sort. All I'm - what I was saying

is that notwithstanding the Department's duty of care, which extends

to all detainees including the members of this family, the child did

arrive with its mother and - the child arrived with his mother and

there were obviously a competent adult able to take care of the day

to day needs of the child in question.

MR WIGNEY:

Was the child assessed by competent medical officers with relevant

expertise with a view to assessing the nature and extent of his disabilities

when he was, to use the Department's word "inducted" into

the Curtin Detention Centre in November of 2000?

MS McPAUL:

As I understand it, the child did receive medical screening at the

time he came to the facility. I understand that very shortly after

that time, in the following month, a senior physiotherapist from the

Derby Health Service was consulted in relation to the child. In addition

to that commencing at the beginning of 2001, on 17 January 2001, there

was an occupational therapy assessment made by a senior occupational

therapist at the Derby Health Service and that this then continued

twice weekly following that time.

In relation to

the mother of the family, she was provided with counselling and some

advice from a psychologist in relation to parenting strategies in

caring for the child. There was also further medical, specific medical

assessment, as I understand it, undertaken in August 2001 in relation

to a number of members of the family. Then in 2002, there is a large

number of details that I have here in relation to the child's ongoing

assessment.

A paediatric

nurse saw the child weekly from the beginning of 2002. Further psychological

assessments were conducted for the child in March 2002 and a primary

carer was appointed when it became clear that his mother was not willing

to continue to care for the child in the centre. Again, a few days

later a further psychological assessment of the child. Further assistance

to the mother of the child over a number of weeks for a range of support

services and further occupational therapy and physiotherapy, including

stretching programs and standing in movement programs were put in

place for the child back in April of this year.

As I said, we

also purchased or had purchased the equipment that I made reference

to earlier. The child has also been to a speech pathologist, a paediatrician

on a number of occasions, an occupational therapist, a physiotherapist

and since the move to Port Augusta, to the Baxter Immigration Detention

Facility there, we've also been in contact with the paediatric unit

who is providing support to the carers of the child at the centre.

The child also underwent a CT scan and an EG assessment, as I understand

it, towards the end of September this year, after the move to Baxter.

DR OZDOWSKI:

Thank you, Professor Thomas, for chairing in my absence.

MR WIGNEY:

Now, is that your full chronology of the medical interventions,

to use your phrase, and treatments given to this child throughout

the entire course of his detention, at least up until the present

time?

MS McPAUL:

Well, it is a summary of the key features which has been provided

to me for the purposes of informing the Commission. I think what it

shows is that there has been, particularly in the period when the

child's mother indicated she was no longer willing to care for him,

a very substantial process of ensuring that the disabilities of the

child were able to be managed within the centre.

MR WIGNEY:

I'm going to take up with you in due course the contention or suggestion

you've just made now twice about the mother not being willing - about

the mother not being willing to care for this child. I will come back

to that in due course but is there anything else, lest I be accused

of unfairness, you want to say about the medical treatment throughout

the entire time that this child has been in detention?

MS McPAUL:

Well, I think I've indicated that throughout the course of the

child's period in detention, there has been an ongoing process of

consultation with expert professionals in the local health services

and the advice from those professionals has been incorporated into

the care arrangements for the child in the centre.

MR WIGNEY:

Do you say that the special needs of this child throughout the

entire period that he has been in detention since November 2000, do

you say that those special needs have been adequately provided and

dealt with and addressed by the Department?

MS McPAUL:

I'm just checking something here. I think the point that I made

at the outset of the discussion around children with disabilities

is that the Department's and the services provider's capacity to respond

to the needs of these particular children has evolved over time. I

think the summary of the care record that I've just put on the record

here today indicates that there has been an ongoing process, seeking

to address different aspects of this child's disability, whether it

be physiotherapy or occupational therapy of some kind or other interventions,

including being seen by a paediatrician.

I think certainly

now with the facilities at Baxter that I referred to earlier and the

arrangements that are available to be in place there in the disabled

accommodation unit, are certainly meeting the current needs of the

child as I understand it.

MR WIGNEY:

Do you, as a senior officer of the Department, or either of your

colleagues that are presently giving witness, say that the special

needs of this child with profound disabilities have been adequately

met and dealt with by the Department throughout the entire time that

this child has been in detention since November of 2000? Can you please

answer that question?

MS McPAUL:

Well, I think - I think I have answered that question which is to

say that we acknowledge that it has been a process of continuous improvement

in terms of the facilities that have been available to the child throughout

the course of the time that they've been there.

MR WIGNEY:

Ms McPaul, I can ask the question another time but I just like

to ask you to answer it, please. Do you say that the special needs

of this child have been adequately provided for and dealt with by

the Department throughout the entire time that this child has been

in detention since November 2000?

MS McPAUL:

Well, I think ---

MR BROMWICH:

I object to the continuing questions along this line. The witness

has answered to the best of her ability. This is clearly in the nature

of an ambush question whereby you put a broad proposition, you then

go through a pile of documents, you find some word or some indication

that on a particular day or date there was some difficulty and conclude

the general proposition is therefore false. It is not a useful process

MR WIGNEY:

That is a basis for a judgment, is it?

MR BROMWICH:

It is not a useful process to go through. The witness has answered.

She is not the carer on the ground. She is answering as best she can

on the information she has available to her. Short of having every

person who has dealt with this child at every point in time, it is

just not a useful question to be asking.

MR WIGNEY:

I ask that there be a direction that the witness answer it.

DR OZDOWSKI:

My view is, and I'm willing to be corrected on it, when I was first

at Curtin Detention Centre and I met the mother and the child, there

was basically no special provision for the needs of that child in

place. It is what my considered view is at the moment. Basically what

I'm giving to the Department, via Counsel Assisting, is an opportunity

to put arguments so I might consider changing my view when I come

to the final Report, which will ultimately be laid before Parliament.

MR BROMWICH:

Well, Commissioner, you have come to a broad view. What the Counsel

Assisting is doing is inviting the witness to express a global contrary

prior view for no apparent useful purpose. He intends, presumably,

to go to individual instances and point to particular shortcomings.

DR OZDOWSKI:

I think ---

MS McPAUL:

I - sorry, Commissioner.

DR OZDOWSKI:

Yes, please go ahead.

MS McPAUL:

I was simply going to say that I understand that the minister has

also written back to you recently in relation to some of the questions

that you have raised particularly about this case and indicated here

that as I've said as well, the Department has sought to continually

improve services and facilities available to people in detention.

I understand that the level of support available to this child we

are talking about and his family have improved over time and that

the family has recently been moved to Baxter, as I've said, where

the facility is well equipped to cater for the child.

Now, I think

we are acknowledging here that there was a need for improvement and

that that occurred. I'm really not sure what else I can say in answer

to the counsel's question.

DR OZDOWSKI:

I'm fully acknowledging that the Department improved its practices

over time. What I've seen some time ago and what I see now, are two

different things. I don't have a quarrel with that. Basically your

response to the earlier question is that you improved, and I take

it the issue is you improved from where my view is, that you improved

from possibly close to zero, to something further. But I'm still asking

you to challenge my earlier view so I can consider any additional

evidence you may have on this issue.

MS McPAUL:

Well, you may have been out of the room, Commissioner, when I did

list quite extensive interactions and advice that had been sought

from a range of health care professionals throughout the period -

while the child was at Curtin. I personally believe that the Department

was taking active steps to put in place appropriate care. Whether

you form a different view about whether the actual care arrangements

were, in your opinion, satisfactory is, I think, a matter for you.

From where I sit, we were certainly working to do the best we could

with what was available.

DR OZDOWSKI:

Yes. I will read this particular part of the transcript with great

care in finally considering this issue. Now I think we can move on.

MR WIGNEY:

Yes. One more - let me ask you this. Do you think that the conditions

in which this child has been detained since November of 2000 have

been such as to ensure that he has enjoyed a full and decent life

in conditions which have ensured his dignity, promoted his self-reliance

and facilitated his active participation in the community?

MS McPAUL:

Look, I think to the fullest extent possible under the circumstances,

that has been the case.

MR WIGNEY:

Okay. Let us move on. Now, as I said, we just want to explore some

of the conditions that this child was in during his time in the Curtin

Detention Facility. As I said, we have no records whatsoever of any

medical assessment or any case plan until at the very least some time

in 2001. Do you say that such documents exist?

MS McPAUL:

In relation to a case plan earlier than that, I'm not sure that

is what I said. I think I said that processes occurred? Around the

child and advice was being sought. It is my understanding that a formal

case management plan for the child - for the family, I guess, and

for the child -was put in place early in 2002 and reviewed progressively

on a very regular basis since that time.

MR WIGNEY:

Are there any medical records, be they records of assessments,

progress notes, memoranda, doctors' reports, anything that provides

a record of any medical intervention or treatment or suggestion in

the period from November 2000 up until say, for the present purposes,

July or August of 2001?

MS McPAUL:

From the time of the arrival in the centre until August?

MR WIGNEY:

Mid-2001.

MS McPAUL:

Mid-2001.

MR WIGNEY:

Say six months or so later.

MS McPAUL:

Just give me a moment. I'll check and see if there is anything that

I'm aware of that we've directly provided. Again there is an extensive

amount of documentation that has been provided on this child. There

may well be within that some indication of records of the consultations

made with external providers and some of the arrangements placed in

the centre. As I said, the child was in the care of his mother for

the better part of that time and my understanding is that it was early

in 2002, as I've previously said, that a detailed case management

plan was put in place for all members of the family.

MR RUSHTON:

Commissioner, I might be able to assist the Inquiry. I understand

on my instructions that there were various medical assessments beginning

from 3 November 2000. I don't have the documents presently here but

if we can take them on notice, perhaps we could ---

DR OZDOWSKI:

It would be helpful if you could.

MR RUSHTON:

Yes.

MR WIGNEY:

Well, I can indicate that from the documents that have been produced

to us by the Department, there is not a single medical report or a

note or anything of that sort recording any assessment whatsoever

of this child in the period up until June of 2001. Now, we would very

much like to see such records as exist throughout the period. So if

there are any, could you please take that on notice and produce them.

MS McPAUL:

Sure. As I think I indicated at the outset, there was another

bundle of documents being provided to you. I'm not sure whether that

got to you on Friday or during the course of the week but I would

also say that the scope of the Notice 5 in relation to this child,

again as with the other one, indicated that they were documents actually

in the custody of the Department. There may well be other documents

pertaining to this child's medical records that are not directly in

the custody of the Department and may be able to be provided to the

Commission.

MR BROMWICH:

Commissioner, if I could assist, I understand something like 1700

folios of documents have been provided in relation to this family.

MR WIGNEY:

And we've been through them all.

MR BROMWICH:

Well, I'm just not sure whether we're on cross-purposes at all. You

have been through all 1700 pages?

DR OZDOWSKI:

Yes, very much so.

MR WIGNEY:

And I see that your officers are going through it now, so, presumably

if there is anything in there that you want to direct our attention

to you will be able to do so in the course of the day.

MR BROMWICH:

We will try to. Part of the reason why we asked to be advised

which documents you would be referring to was so that we could assist.

MR WIGNEY:

It's part of the reason that we put you on notice of this case

study so that you could assist the Commission in this Inquiry.

MR BROMWICH:

4 o'clock Wednesday of last week, Mr Wigney, 4 o'clock Wednesday

of last week, two working days before the Inquiry was commencing.

DR OZDOWSKI:

You chose that case as a part of the Department's submission,

you did it now almost a year ago, when their submission was provided.

MR BROMWICH:

In May of 2002 there was a reference in one small portion of a lengthy

document. Two clear working days before an Inquiry we're told that

there's going to be questions on a particular family. One of those

families alone is 1700 folios of documents. There's just a logistical

exercise in being able to get on top of that sort of volume of material

amongst the, I think, 47 or 48 lever arch folders of documents that

have been provided.

DR OZDOWSKI:

I think this kind of argument leads nowhere and we also have limited

time and we also have to read all the documents.

MR BROMWICH:

I was responding to comment by Mr Wigney.

MR WIGNEY:

Let us move forward. Can I pick up one point that you have commented

on twice about the willingness or otherwise of the mother to care

for this child. You have already agreed, haven't you, that it is fundamentally

important to provide adequate support and assistance to the parents

of disabled children. Right?

MS McPAUL:

I think I agreed it was important to recognise that parents play a

role in the management of their children in detention facilities and

that in particular for families with disabilities - children with

disabilities it was important to ensure that they were supported,

yes.

MR WIGNEY:

I don't think anyone in this room would disagree with the proposition

that the parent of a disabled child has a role to play in the care

and nourishment. My question is you agree, don't you, that a parent

in such a position, in particular when the child is profoundly disabled,

provides - requires significant support and assistance right?

MS McPAUL:

I think so, yes.

MR WIGNEY:

That would be the case if the parent was in the broader general community.

It would be even more so when the parent is a detention environment

such as Curtin, right?

MS McPAUL:

Well, I think in either case there was a need for support but

not perhaps in a detention facility even more so than in the community.

There are support services available on a daily basis that could be

used to assist the family whereas in the community the parent might

well be fairly isolated and not have access to others in the same

way that there could be in the detention environment.

MR WIGNEY:

The Commissioner has referred in discussion at the commencement

of our consideration of this case though, to the fact that he observed

this - the mother of this child pushing the child in a pram, in conditions

hardly conducive to the pushing of a pram. Are you able to show us

a single document amongst the material relating to this family which

suggests that the mother was provided with any support whatsoever

in relation to her care of this disabled child?

MS McPAUL:

As I understand it, on 7 February 2001, the ACM counsellor began

counselling processes with the mother of this family and there was

ongoing counselling support provided. I also understand that on 22

May 2001 there was also a meeting, I think, with the psychologist

in which, as I think I mentioned earlier, parenting strategies were

discussed with the mother of the child. On the 4th of April this year,

there was also a referral made for the mother. However, she declined

to take advantage of that offer and of ongoing care in relation to

the health and welfare that was provided from the centre.

So I think that

there has been support provided to the family over time. As I mentioned,

the ongoing counselling that started back in 2001. So that support

from welfare staff members within the centre and as we've said, we've

also been seeking advice from external specialists in relation to

the conditions for the children and no doubt that information would

be passed on to the mother of the child as well.

DR OZDOWSKI:

Can I ask you: was any equipment purchased to look after the special

needs of the child soon after his arrival in Curtin Detention Centre?

MS McPAUL:

I made some reference to that effect, Commissioner, when you were

out of the room. It - there was a stroller bought which may have been

the one you saw, I don't know, earlier on and a range of specialist

equipment provided at the beginning of 2002 including the wheelchair,

a lift hoist and some other items.

DR OZDOWSKI:

This stroller, this was the one I saw when I was first there?

MS McPAUL:

I don't know for sure.

DR OZDOWSKI:

How much was spent on it, would you know?

MS McPAUL:

I'd have to take ---

DR OZDOWSKI:

What I saw was very basic.

MS McPAUL:

It may well have been, Commissioner. I haven't personally seen

that piece of equipment.

DR OZDOWSKI:

Thank you.

MR WIGNEY:

My question was directed to the support given to the mother of the

child. You have referred to three things. Some counselling in February

of 2001. That is some months after the family was first detained ---

MS McPAUL:

That was ongoing counselling from that time.

MR WIGNEY:

Commencing in February, right?

MS McPAUL:

As I understand it.

MR WIGNEY:

You referred to the fact that in May, a psychologist discussed with

her parenting strategies. Right?

MS McPAUL:

That is my understanding, yes.

MR WIGNEY:

I think the third thing you referred to was April 2002 the fact

that the mother - there was some referral by the mother. That was

rather like shutting the barn door after the horse has bolted, wasn't

it?

MS McPAUL:

Well, I think we've just illustrated that there had been ongoing

counselling support provided to the mother for the period from the

beginning of 2001. I think we've acknowledged here today that the

mother - the mother's personal health has varied over time and ---

MR WIGNEY:

Is that the sum total of the support and assistance provided to the

parents that you were able to refer the Commission to - the parent,

I'm sorry?

MS McPAUL:

As I said, there was ongoing counselling provided, as I understand

it, from the very early period in 2001. Again, this family, as did

some of the others, had been in detention for quite a period of time

after their initial application had been determined by the Department.

As I understand it, on 8 January 2001, the Department made a decision

that the family did not meet the criteria for grant of refugee status

or temporary protection visas in Australia. Again, I guess the implications

that the Department could have done something about the length of

time that the people may have been in detention, the contention that

I'm putting for this family, as for the others, is that it was certainly

within their scope or their control to make a decision to be part

of Australia from very early on in the piece.

MR WIGNEY:

I don't want to go over territory that we've ---

MS McPAUL:

It was - you know, less than a year after their arrival.

MR WIGNEY:

I don't want to go over territory that we've already gone over

but ---

MS McPAUL:

You might like also to refer to folio, I think it is 156 which

relates to, it's our number, okay, it is a report dated 7 February

2001 from the ACM Curtin IRPC counsellor in relation to the mother

saying that I have been counselling the mother since she arrived

in the detention centre in November 2000, giving some details

of her personal mental health situation. So I think that confirms

the information that I've provided to you that there was an ongoing

process of support to her and attempts made to ensure that her mental

health was as good as it could be under the circumstances.

MR WIGNEY:

Now, that report that you had just referred to is a three paragraph

report and it concerns counselling in relation to post-traumatic stress

disorder and as you indicated some anxieties relating to other experiences

---

MS McPAUL:

That is right.

MR WIGNEY:

--- relevant to this woman. It mentions nothing about counselling

or support about looking after this disabled child, does it?

MS McPAUL:

Well, I think it provides - it says that it provided counselling

to the mother of the family from an early period. I think it would

be hard to imagine that a professional counsellor and psychologist

would not explore the entire family circumstances with the mother

and a range of issues which no doubt are intersecting in her particular

circumstances and care needs.

MR WIGNEY:

Perhaps it would have put the Department on notice, would it not,

that maybe this - the psychological health of this woman, even as

early as February 2001, was such that she may have difficulties looking

after and nourishing this disabled child of hers?

MS McPAUL:

Well, I think that we've already acknowledged that the Department

and ACM were aware of the need to provide support to the mother and

that that was happening.

MR WIGNEY:

Well, that is the first incident you refer to in the three things

that were done. The ongoing counselling and this report, as I said,

makes no specific reference to counselling about how she ought parent

this disabled child. Have you got a document relevant to the other

reference, the 27 May 2001? Perhaps we will just move

MS McPAUL:

No, not to hand just at the moment but it may well be within the

documents provided.

MR WIGNEY:

Can I read you a passage, please, while we are on the topic of

the mother, from page 18 of the bundle which is somewhat out of chronological

order but

MS McPAUL:

Sorry, Mr Wigney, there is another document here that I can draw

the Commission's attention to in relation to that matter.

MR WIGNEY:

Thank you.

MS McPAUL:

I have a document on ACM letterhead dated 27 February 2001. This document

indicates ---

DR OZDOWSKI:

Is it numbered, this document ---

MS McPAUL:

Well, it has our folio number on it. It is our set of folders.

DR OZDOWSKI:

Thank you.

MR WIGNEY:

Can you tell us what folio number it is, please?

MS McPAUL:

On our folders?

MR WIGNEY:

Yes.

MS McPAUL:

I believe it is 183 to 186 but it is not your set of folders number.

It is actually out of our documents. Yes, they've been provided previously.

Well, I don't know whether they are folioed in your version. It is

183 to 186. They may well be folioed.

MR WIGNEY:

Sorry, we will look for it and you continue with your answer, please.

MS McPAUL:

I think we were talking in particular about the support provided to

the mother and whether there was any confirmation of the suggestion

or of the view that I put that the mother had been provided with support

for the time that she had been in the centre. This ACM document on

page 185, which is the third page of the particular document, in the

first box at the bottom of that box indicates that the mother had

been supported through the medical and welfare Departments since her

arrival at the centre.

Indeed, that

the - in the second box there - that there had been liaison with the

Derby Hospital Occupational Therapy Department regarding the ongoing

treatment program for the child in question and I think that that

there is further evidence that ---

MR WIGNEY:

This is a document dated 27 February of 2001?

MS McPAUL:

Yes, it is. So I think that is evidence that there had been, since

the period that the family came into the centre in 2000 and ongoing,

as I've said, a variety of support provided to the mother as well

as to the child.

MR WIGNEY:

Can I just refer you to one document, please, which is a document

at page 18 of our bundle.

MS McPAUL:

I love this numbering system.

MR WIGNEY:

18.

MS McPAUL:

Can you tell me what is on your document?

MR WIGNEY:

Bottom right hand corner there should be the number 18.

MS McPAUL:

Bottom right hand corner?

MR WIGNEY:

Yes. Now, this is a letter dated 7 June 2002 authored by someone

in the detention operations division of the Department, somewhere

in central office.

DR OZDOWSKI:

It is a minute actually.

MR WIGNEY:

It is a minute. I'm sorry. I just wanted to direct your attention

to the paragraph at the foot of the page.

MS McPAUL:

Yes.

MR WIGNEY:

It says, the second or third sentence in that paragraph reads:

A psychiatric

assessment of the mother conducted in April 2002 concluded that

the mother should not be considered as having abandoned her son

but rather as a parent requiring respite care.

See that?

MS McPAUL:

Yes, that is - yes.

MR WIGNEY:

I will come, when I can find it in due course, to the actual report

but the point is that the medical assessments of the mother make it

clear, do they not, that the reason that she ultimately said that

she was no longer willing to care for her son, as you put it, was

because she was simply unable to physically and mentally care for

her son.

MS McPAUL:

I think the document is saying in that particular paragraph that

there was a view that she may need respite care which I think any

mother in the circumstances of looking after a severely disabled child

may need from time to time. The document does also say in paragraph

2 that in March 2002, the mother of this child refused to assume the

primary responsibility for the child and that the mother's action

had resulted in a strained and estranged relationship with her two

other children and as a result, some of the members of the family

unit are no longer wishing to reside together as part of that unit.

So there was

obviously a range of issues there and I think also since, this document

says that since March 2002, ACM had assumed the complete care for

the child in question and that the child was currently being accommodated

in a recently modified residential unit in close proximity to the

medical centre where 24 hour care was being provided by two registered

nurses with the patient care assistant providing back up. It was also

being reported that the child had made good progress and that his

posture and muscle tone had continued to improve.

MR WIGNEY:

Yes, we will come to that. I've now found the psychiatric report of

the mother. Go, please, to page 39. That is a psychiatric report dated

13 April 2002 by a - you will see, a professor with significant qualifications

in relation to psychiatry. I want to take you to some - it is an assessment

of the mother. If you go over

MR BROMWICH:

In terms of the last questions, I would ask my friend to refer to

the bottom of the first page first.

MR WIGNEY:

Thank you so much, Mr Bromwich. Can we go over, please, to the

middle of the second page of this document.

MS McPAUL:

Well, perhaps I could draw your attention then to that particular

paragraph which does say that in this assessment that

recently

the mother of the child had refused to care for her 15-year old

son who is severely handicapped and it has to date proved impossible

to persuade her to take over this care in the way that she had previously

managed.

MR WIGNEY:

Yes, but the balance of the report and the passages I was going

to take you to was to explain how that came to be. If you go over

to - in some detail. If you go over to the second page of the document,

four paragraphs down:

Recently

she started to feel psychologically tired. When asked to explain

this, she found it difficult but agreed that it contained elements

of depression, stress, a feeling of wanting to give up and general

unhappiness. It is this state of feeling that has led her to refuse

to look after the child who requires 24 hours supervision. She insisted

that she loves him -

and then refers

to some notes below -

but felt

that he is getting bigger and that she would need assistance to

care for him. Wherever she was she feels he will ultimately need

to be looked after in a special setting and come home to her two

or three days per week.

Then if one -

I'm sorry, you want to something?

MS McPAUL:

I was going to say yes. Look, in that context I think we've already

put on the record that the child at this stage was, as I understand

it, living in some specially modified facilities at the Curtin centre.

MR WIGNEY:

Go over to the last page - I'm sorry, to page 42 of the bundle.

There was some further notes in relation to this professor's medical

examination of this mother. Five dot points down:

She does

retain her love and concern for the son and does not want to abandon

him. At no point did she give any evidence that she was using her

situation to persuade the authorities in her favour but this cannot

be excluded.

MS McPAUL:

I don't think that the Department is in any way suggesting that in

what I've said today. I've not at any point questioned her particular

attachment to her child or suggested any motive whatsoever for what

I understand to be the facts of the case.

MR WIGNEY:

Then if you go over to page 43, there is a reference to management.

In the first dot point:

Mother

should not be regarded as abandoning or bad. She should be seen

as any person in the community who has a difficult handicapped child

and needs respite.

MS McPAUL:

Well, I think I've already acknowledged and I think put before the

Commission here today that clearly any mother in this situation may,

from time to time, need respite care whether in detention or elsewhere.

MR WIGNEY:

Well, can I just perhaps deal with this in short form and give

you the opportunity to comment. I suggest to you from - at least from

all of the materials that we have seen in relation to the services

provided to the mother in terms of assisting her care for this child,

it has been woefully inadequate. What is your ---

MS McPAUL:

No, I don't agree with that, Mr Wigney. I think I've previously

explained that the Department has continually since the period that

the mother has entered the centre provided her with counselling and

support from medical and welfare officers in the centre and externally.

We've drawn your attention to various documents today which also support

that view.

MR WIGNEY:

I will try and move through these documents as quickly as possible.

I'm not going to refer to all of them in the event that that is commented

upon later. If you just bear with me, I will try and find those that

are worth referring to.

MS McPAUL:

All right. Commissioner, can I just be excused just for 2 minutes

for a comfort stop?

MR WIGNEY:

Of course.

DR OZDOWSKI:

Of course.

SHORT BREAK

[11.58am]

RESUME

12.03pm]

DR OZDOWSKI:

Okay. Are we ready to resume?

MS McPAUL:

Yes, thank you, Commissioner.

DR OZDOWSKI:

Mr Wigney.

MR WIGNEY:

I will start talking about 1991 again if you are not careful. I'm

not going to take you to all of the documents and we will try and

move through this fairly quickly. Now, the next document I wanted

to - a document I wanted to take you to ---

MS McPAUL:

Are we - sorry, just before we move on. Are we - are you planning

to ask further questions in relation to the support to the mother

or move on to another topic?

MR WIGNEY:

I'm moving on to another topic but if you want to say anything

else ---

MS McPAUL:

All right. Before we - yes, could I, please. Just before we move

on, I think you were also, as I understand it just before the short

break, inquiring as to how far back and what dimensions there were

to the support being provided to the mother in this family. I have

a document here which appears to be some case notes for a member of

that family dated 7.3.2001. There is some other details on the top

of that document relating to the date of birth and one of the other

- the mother's name.

The particular

item that I wanted to draw the Commission's attention to was, as I

said, dated 7 March 2001. There is a note here, if I can read it all.

It says there was a meeting with the mother along with an interpreter

and a welfare officer and the author of this document, who is the

counsellor, to discuss the proposed strategy for the family. There

was agreement reached that the mother will ensure that the educational

needs of the three children are met. They will participate in the

occupational therapy program as recommended and stipulated by the

medical clinic, participate in the parenting education program as

per a particular doctor's recommendation through the medical clinic

and liaise with the welfare department in collaboration with a designated

nurse regarding the equipment needs and upkeep for the child in question.

There is a reference there to looking at the attached management strategy

which I'm not sure is in this particular set of documents just passed

to me. There are also arrangements being put in place for the children

to attend an outing today with officers of the centre to provide some

time out for the mother and to give some enjoyment and stimulation

to the children.

So that was back

in March 2001 and I think again that shows that there were a number

of centre staff working actively with the mother and the family as

a whole to provide a strategy for their support and respite for the

mother.

MR WIGNEY:

Thank you. Now, obviously can you take this question on notice so

that we don't take up too much more time but - and I don't want to

cause those that are assisting you too much stress but of course in

the fullness of time, we welcome you to go through the documents and

draw our attention in particular to any other documents ---

MS McPAUL:

We may be able to do that out of - at the conclusion of the hearings.

MR WIGNEY:

Yes, out of hearing time.

MS McPAUL:

We may be able to draw your attention to particular items prior to

the finalisation of the report.

MR WIGNEY:

Thank you.

MS McPAUL:

Yes.

MR WIGNEY:

Now, with that in mind, let us move on and it would appear that

perhaps the best way to deal with it is to put you on notice and you

can either provide us with a report or just simply direct our attention

or provide us with further copies of specific documents that you want

to draw our attention to.

MS McPAUL:

Okay. Thank you.

MR WIGNEY:

Now, I wanted to draw your attention to a document - sorry, it

was a document that was only part of which was contained in the bundle

given to you and I want to make sure that you have the full copy of

it. I will just have it handed out. Now, that document that you are

just being handed is a three page document. It is detainee management

- ACM detainee management strategies document dated 2 April 2002 and

it marries up with, hopefully, page 1 of the bundle that you have

been given which is just, I think, the attachment to that management

strategies document.

MS McPAUL:

I see. Yes.

MR WIGNEY:

Now, it is a document that contains in particular in the attachment

some plans of sorts in relation to the management of this disabled

child and in particular it refers to being housed temporarily - sorry,

I'm going to page 1 of the bundle now.

MS McPAUL:

Page 1 of the bundle?

MR WIGNEY:

Yes, which is the actual attachment which contains the plan. In

the third box down there is proposed placement and the child is to

be housed in the donga located at the back of medical centre which

is being upgraded to suit his needs and then in the next box, there

is a reference to the fact that the mother is refusing - refuses to

continue caring for him and in the following dot points, there is

a suggestion that Family and Children's Services has now been contacted.

Now, it would appear that - well, at least from our examination of

the documents that have been provided to the Commission, this is the

first document that appears to contain any detailed plan or strategy

as to the management of this disabled child.

Now, if there

are any other documents setting out a plan prior to this date, that

is the 2nd of April, can you take it on notice that we would rather

like to see it?

MS McPAUL:

All right. Look, I think we've already agreed that we might do that

and I think I've already stated that it is my understanding that it

is around this time that the first comprehensive plan that dealt with

ACM's responsibility at that point to care for the child, given the

changed circumstances of the mother's capacity to do so, came into

effect.

MR WIGNEY:

That is right. It would appear, I would suggest, that the first time

that a detailed plan was put together in relation to the management

of this child was when the mother indicated that she was no longer

able to look after the child.

MS McPAUL:

Well, there may have been, as you said, something prior but this is

the first detailed one that, as I understand, relates particularly

to the responsibility that ACM had assumed when the mother no longer

was able to take care of the child in the way that she had been previously.

MR WIGNEY:

That is some 18 months after they - the child was first detained

under the Migration Act.

MS McPAUL:

Approximately, yes.

MS GREAVES:

But we've taken on notice that we look to see that there are management

plans ---

MS McPAUL:

Any other things in the documents.

MR WIGNEY:

Thank you.

MS GREAVES:

--- or management strategies as indicated by the previous documents.

MR WIGNEY:

Thank you. Now, just trying desperately to finish this by 12.30, can

I take you next to page 11 of the bundle which compromises some case

notes from the Department for Community Development of the State of

Western Australia and it would appear that at this time, or some time

before it, shortly before it, the relevant authorities or bodies in

the State of Western Australia were contacted in relation to the care

for this child.

MS McPAUL:

I'm sorry, you were saying that we - that the document refers to ---

MR WIGNEY:

This would appear to be at least from the documents we've seen to

be the first indication of any active involvement by the relevant

state authorities.

MS McPAUL:

I think to put it in context it was at this point that it became clear

that for whatever reason, the mother was not able or prepared or capable

of looking after the child as she had done in the past. One of the

options that was being explored at that time was whether there were

any possibilities for placement of this child in an appropriate foster

arrangement in the community with the support of the local community

child welfare department.

I think one of

the difficulties that we found here and again in South Australia in

relation to this child is that while there may be foster care carers

available for children without disabilities, it is extremely difficult

to find an appropriate placement or carer willing to take on the responsibility

of looking after a disabled child. The Department has certainly been

active in working with the authorities, as Mr Wigney is pointing out

here, from this point when it became evident that the mother may not

be able to look after the child she had in the past.

Certainly, it

is my understanding that the same sorts of discussions have occurred

following the move to Baxter because it would be, in this case, obviously

a desirable outcome and the Department continues to explore whether

that is a possible option.

MR WIGNEY:

I just want to take you to a couple of the recommendations from the

author of this document who would appear to be a social worker employed

by the Department for Community Development. Now, please feel free

to refer to any other recommendations that you wish to but I wanted

to take you to the third dot point which suggests that the family

remain together and the next dot point: DIMIA to follow up whether

Disability Services Commissioner could assist in planning and assessment

of the child's needs.

Now, just picking

up on that point, it would appear that prior to this date, that is

prior to March of 2002, the Department had not contacted the Disability

Services Commission, that being a state body looking after the services

for disabled people in Western Australia.

MS McPAUL:

I would not be certain that the Department had not contacted that

body previously at all in relation to this case but I think it is

true that it is the first time that the Department probably, given

the changed circumstances of the family in the centre, were seriously

looking for other possibilities for the care of the child in some

kind of a supported community arrangement.

MR WIGNEY:

Now, next to that notation, at least on our copy of the document,

is some handwritten notes saying ACM can initiate this. Now, I want

to come shortly to a slightly different theme and that is the respective

roles of ACM and the Department in the care of this child but are

you able to offer any explanation of who, in the Department's view,

was responsible for contacting, for example, state authorities?

MS McPAUL:

Well, it - as far as I understand, it would be a responsibility of

the services provider but it may also be something that we would ask

our managers to do additionally to add support to the particular claims

in a case such as this where clearly there are, is an agreement about

the benefit of finding an alternative arrangement. That might be possible

for the child. Could I just come back to another document in relation

to the question of whether we had previously contacted the Disability

Services Commission in this case?

MR WIGNEY:

Yes.

MS McPAUL:

In our folios, number 958 - I'm not sure what it might be in yours

but in the documents that we provided. I understand it is on Kimberley

Health Service letterhead. Do you have that document?

MR WIGNEY:

Yes, I've got that.

MS McPAUL:

Yes. Okay. My understanding is that this is correspondence from

a senior occupational therapist at the Derby Regional Hospital to

the paediatric nurse at the Curtin Immigration Reception and Processing

Centre and in that correspondence, it indicates in the second paragraph

- well, it indicates a number of things, there being in the second

paragraph in particular it says that the Disability Services Commission,

our therapy outreach team, had been consulted in the care and management

of this particular case and discussed what they would recommend for

the child in relation to some shelf seating system and other options

for his circumstances.

There was also

mention of various quotes for something he called glide rehabilitation

products so that the child could receive a wheelchair. Hip guides

and so on and also makes reference to an assessment conducted by the

physiotherapist and the senior occupational therapist on 20 February

2001. So it would appear that there had been some consultation with

that Commission prior to that date.

MR WIGNEY:

Thank you. Can I just ---

MS McPAUL:

But it - sorry.

MR WIGNEY:

Can I pick up on one point that - don't let that document go for

the moment. You see in the first paragraph of that letter, there is

a reference to the provision of a wheelchair and appropriate seating

for this child.

MS McPAUL:

Yes.

MR WIGNEY:

This is back on 29 March 2001.

MS McPAUL:

That is correct.

MR WIGNEY:

Can you go to page 51 of the bundle, please?

MS McPAUL:

Of your bundle?

MR WIGNEY:

Our bundle, yes. I'm sorry. That would appear to be a document

on the letterhead of Australasian Correctional Management Limited

dated 19 April 2001 - 2002.

MS McPAUL:

Yes, it is.

MR WIGNEY:

In relation to this child and referring to the fact that:

it has been

agreed after consultation with the physio and senior OT that the

following equipment will be necessary to maintain his appropriate

full time care in the medical area

and the first

thing there is a wheelchair. That would suggest that the suggestion

back on 29 March 2001 in relation to the provision of a wheelchair

may not have been picked up at least until April or the next year,

that is some year later.

MS McPAUL:

I'm not sure of what may have happened in that intervening period

but as I previously stated, the wheelchair was purchased - well, I

guess it would be shortly or around the time of this piece of correspondence

that we are referring to now.

MR WIGNEY:

That is the April one so that perhaps may explain why the mother

was seen to be pushing the child in a pram at some stage.

MS McPAUL:

I think we've already considered that point.

MR WIGNEY:

I'm sorry, I may have - we are talking about April but if you now

go to page 18 of the bundle, it would appear that ---

MS McPAUL:

We have one labelled A18. Is that the one you want me to refer

to?

MR WIGNEY:

Yes. It would appear that there would still be ruminations and communication

between the Department and ACM about the purchase of this wheelchair

as late as June of 2002. Do you see ---

MS McPAUL:

Look, it is my ---

MR WIGNEY:

Five paragraphs down.

MS McPAUL:

Yes, it is - it is my understanding that the equipment was provided

in May, I think I said earlier. So it is quite normal for equipment

or for items to be purchased and for us to still have some ongoing

processing of the payment for those items some time later.

MR WIGNEY:

This - the suggestion for the purchase of a wheelchair having first

taken place, it seems, back in March of 2001.

MS McPAUL:

I believe that there was some discussion at that time, yes.

MR WIGNEY:

Can I ask you this and I'm sorry to be jumping around like this

but who did the Department regard as being responsible for purchasing

such items? The Department or ACM?

MS McPAUL:

I think if you are asking who is going to pay for it, then that

question is neither here nor there. In the case like this, what we

would be interested in is the acquisition of the equipment and as

I said, if there was an issue about who was to pay for it at some

later stage, that would be worked out through the contract management

processes between the organisation and the Department.

MR WIGNEY:

Well, you see, there was - it became a real issue between ACM

and the Department as to who should pay for items like this for this

child, didn't it?

MS McPAUL:

I don't think, on the basis of the documents that you are referring

to, that that is the case. I think the equipment was provided, as

I understand it, around May.

MR WIGNEY:

Okay.

MS McPAUL:

I think the important thing is that the equipment was there for

the child at that time.

MR WIGNEY:

Go to page 34 of the document, please, of the bundle. This, I

accept, does not deal specifically with the purchase of a wheelchair.

It is an email dated around about the same time as that minute or

letter that I just took you to. It is dated 20 June 2002. It is to

a senior officer in the central office of the Department and it is

- contains these words:

This afternoon

[name removed] -DIMIA Centre Manager

whoever that

may be -

was advised

by the ACM manager that unless ACM received an immediate response

to their request for additional funding for the care of the child

they, ACM, would be dumping the child on DIMIA's doorstep tomorrow

morning. ACM manager advised that this direction had come directly

from someone -

and you can explain

who that person is in due course if necessary -

who also

instructed the ACM manager to contact DCD -

that is the disability

- the Department for Community Development -

and advised

them of the intention to dump the child. Whilst I can understand

the frustration of ACM in relation to this matter, such action,

which is no less than blackmail, is both unprofessional and totally

inappropriate. DIMIA is as equally frustrated by ACM inaction on

a range of issues but does not resort to these types of threats.

Such threats only put ACM and DIMIA staff at Curtin under unnecessary

pressure.

Does that refresh

your recollection as to whether costs of caring for this child became

an issue as between ACM and the Department?

MS McPAUL:

I think what you were referring to earlier was the particular

cost in relation to the wheelchair and as I indicated, I didn't believe

that that was - I think you used a particular phrase which has implied

that it was a significant issue. Quite clearly the care required for

this child is of the nature of round the clock, 24 hour attention.

I think we've mentioned previously that the child has very little

capacity for toileting and taking care of his personal needs.

It is the case

that there is a provision in the contract that DIMIA has with the

outsourced services provider that for out of scope items that are,

that is items that were not originally envisaged and specified in

the parameters of the body of the main contract, can be raised with

the Department as items for consideration and appropriate arrangements

associated with that can then be negotiated in terms of - well, whatever

that service might be but it may include such things as cost and operational

matters associated with it.

In that context,

shortly after the period in which ACM resumed full responsibility

for this child, including providing that 24 hour care which had, in

the past, been undertaken by family members, ACM had made a request

to the Department in relation to that process with a proposal including

an adjustment to the pricing structure that might relate to the care

of this child. However, I would like to add that that in no way has

affected the actual care that has been provided to the child for that

period.

It is certainly

my understanding that in this case, as with any other out of scope

items, the provision of service continues in the way that we would

expect while there is some negotiation at head office level about

the specifics of the payment arrangements that might be put in place

and as I understand it, those negotiations in terms of the cost of

the particular care for this child is a matter that is currently being

negotiated with the Department and the services provider.

MR WIGNEY:

Is that all you want to say?

MS McPAUL:

For the moment.

MR WIGNEY:

That long answer, I suggest, entirely glosses over the real state

of affairs, at least according to the author of this email who may

care to comment on it if needs be, that relations between ACM and

the Department in relation to the cost of the care of this child had

reached such a point that ACM, to use the words in this document,

had threatened to dump the child on DIMIA's doorstep. Now, that was

the suggestion, wasn't it?

MS McPAUL:

That is a view expressed by a particular DIMIA officer on that

given day. I have no personal basis to suggest that that is actually

the case. As I said, my understanding is that from the period towards

the beginning of this year, ACM, as we've just outlined, has been

working very closely and appropriately in the care of this child and

I don't think there has been any suggestion that those care arrangements

have been impacted by the other discussions happening in relation

to the cost.

I mean, we're

talking here about a situation where, as we've identified, the child

is profoundly disabled and we are now in a situation where, as I understand

it, the mother is not able to care for the child, or wasn't for a

good proportion of this year, able to care for the child in the way

that she had previously and that required round the clock care by

some other specialist staff. I think it is quite reasonable that the

services provider might want to discuss with us something that was

well outside the scope of the contract in the beginning when I think,

frankly I don't think either the people, any of the people negotiating

the contract in the first instance envisaged that we may have a profoundly

disabled child.

MR WIGNEY:

Can I ask Mr Kelly if he wants to comment on this? Do you suggest

that ACM did not threaten to dump the child on DIMIA's doorstep?

MS McPAUL:

It is not the same person that - this is a different person entirely.

I'm sorry.

DR OZDOWSKI:

It was a note from the Manager of the camp site.

MR WIGNEY:

I think just to put it ---

MS McPAUL:

Could I just also - I'd just like to further clarify my answer

on that which is that my understanding is that the request from ACM

in relation to issues associated with the cost goes entirely, as I

said, to care costs - costs of the carers, not to equipment which,

as I said, I think had already been dealt with earlier.

MR WIGNEY:

Now, I think when we launched off on that tangent, I was asking you

some questions about a particular document which I'm just trying to

turn up again now and if we can just briefly go back to that and I

will try and wrap this up fairly shortly.

MS McPAUL:

Which document?

MR WIGNEY:

I'm just trying to find it. Just bear with me for one moment.

DR OZDOWSKI:

I don't know. Do you mean 56?

MS McPAUL:

I don't think that was the document we've been asked to turn to. We

were on 18(a) or something, I think. Is that where we were?

MR WIGNEY:

Sorry, bear with me. I was about to - sorry, I should take you

to 56. That is the page that the Commissioner just referred to. I

think that would appear to be a letter dated 10 October 2002 from

the 58, sorry. We've got the multiple numbering here.

MS McPAUL:

58. Yes.

MR WIGNEY:

58.

MS McPAUL:

Sorry, the number at the bottom of the page was 58. The number

at the top was 56, as I understand it. It also has 167.

MR WIGNEY:

It does.

MS McPAUL:

We are talking about the same one, right?

MR WIGNEY:

Yes. 10 October 2002, I just wanted to refer you to that document

which would appear to suggest that as you have indicated, negotiations,

it would appear, are still ongoing at least as at October this year

between really the highest levels of ACM and the Department in relation

to who ought be responsible for the cost and the care of this child.

MS McPAUL:

That is my understanding.

MR WIGNEY:

Now, just bear with me for one moment. I apologise. Look, can

I just - I will just jump forward in time. I'm not sure where I was

up to but I will jump forward in time. Having regard to the time,

we really need to wrap this up but can I take you to the document

numbered 35.

MS McPAUL:

Which one again?

MR WIGNEY:

35, bottom right hand corner, there is lots of numbers on ---

MS McPAUL:

35?

MR WIGNEY:

Yes.

MS McPAUL:

35. Yes.

MR WIGNEY:

Now, this would appear to be an email, an internal Departmental email,

and amongst other things - well, it is on the topic of this child

and I want to take you to a couple of things, please. In the first

large substantive paragraph on the page at the bottom - well, let

me withdraw that and start this way. The general topic of this email

is the various options open to the Department in relation to the continued

management or care of this child. Is that right?

MS McPAUL:

Yes, it appears to be that. Yes.

MR WIGNEY:

There is a reference at the bottom of the first substantive paragraph

on that page to the fact that both DCS, that is the relevant state

body, and the psychiatrist strongly recommend that if the child is

to be placed in the community, his mother and brothers would need

to have regular access. Then there is a discussion of five particular

options, those five options being: one, the child should be placed

in a community facility and other family members are to be moved to

an IDC in metropolitan location.

Second, placement

in a community facility and family members placed in an alternate

place of detention. Third, the child is placed in a community facility

and other family members remain in the IRPC facility. I think that

is Curtin. Four, representations made to the authorities in the home

country of this family to give consideration to forced return of family

to that country. Fifth, entire family, including the disabled child,

remains in the facility at Curtin and ACM assisted to financially

- to provide care.

Now, I just want

to take you to each of the options which are then considered in detail

on the next page.

MS McPAUL:

I don't know. I mean, I'm happy to talk those through with you but

I think I have already said that the Department was, and I think this

document reflects that, actively looking at the options that might

be possible for this child, both at Curtin and in the Port Augusta

region and whether the child is with its - whether the child and the

mother are located together in an alternative place of detention or

whether the child is placed in a foster care situation, the reality

is that outside of the centre, in the community, the Department would

be required to ensure that there was appropriate support.

The experience

that we understand today and I think is also reflected in part of

this document that you are just taking us to which is that:

DCS have

advised that it will be impossible to place this child in the local

community of either Derby or Broome. He will be a difficult placement,

given his degree of dependence. Community placements in the best

of circumstances are very difficult to achieve and waiting times

run into years.

I think that

is reiterated in some other parts of the documents.

So I think, you

know, we've already acknowledged enough, I hope, and it has been accepted

here that the Department is working to the best of its abilities with

the services provider and with those appropriate external welfare

services to provide support, either to the child as a foster placement,

which is quite difficult, or for other options. Even if the child

and mother were to be located together, they would still need community

support, either from the relevant welfare authorities or from some

other community group that might be prepared to provide that.

Now, from the

information that is available to us, that is likely to be a very difficult

thing to achieve and a very costly thing to achieve. So it is not

a simple thing and I think what this document is showing is that the

Department has been looking for a range of possibilities that might

be suitable and I said in the interim, the child is located at the

Baxter facility where within the detention environment he is receiving

24 hour specialist care and in disabled accommodation unit that is

appropriately equipped for his needs.

MR WIGNEY:

In the interest of time, I won't quibble with your claim that it is

somehow accepted that the Department has done everything that it can

but let me just - of these options, the option that ultimately was

taken up by the Department at least as at the date of this memorandum

was to retain the child at Curtin.

MS McPAUL:

Well, that is right, pending the opening of Baxter which we knew

to be some short time after that and as I've said, the child and the

remainder of the family have since moved to Baxter where there are

better facilities and appropriate equipment and care is available

and I think also one of the advantages perhaps of Baxter over Curtin

is that it is closer to a metropolitan area and in Adelaide where

there are also - a more easy access perhaps to some of the advice

and support that the staff at the centre and ourselves may be interested

in obtaining for the child's welfare.

MR WIGNEY:

You refer to attempts to find community placement in Derby and

Broome ---

MS McPAUL:

Yes.

MR WIGNEY:

--- both fairly small settlements and fairly isolated settlements,

you would agree. What, if any, steps did the Department take to ascertain

whether there could be some community-based care for this child ---

MS McPAUL:

I mean, we'd also - sorry.

MR WIGNEY:

--- in larger metropolitan areas such as, for example, Sydney

or any of the other larger cities.

MS McPAUL:

Yes. Yes. I think that same document refers to some investigations

that had been made in relation to DCS in New South Wales where the

advice had already - had also been received that it will be very difficult,

if not impossible, due to the unavailability of places and the issues

that arise. As I said before, foster care options do exist for foster

children but in cases of profound disability, it is a very big ask

of any other person to take on. It is extremely difficult for the

welfare authorities to find a suitable placement that we could take

advantage of.

MR WIGNEY:

Let me take up one final point about this document and that concerns

the comment in relation to option 2, that is placement in a community

facility and family members in alternate places of detention. You

will see in the middle of the page, page 36, part of the reason why

that was advised against is that this family with this profoundly

disabled child would be a flight risk. Is that a serious assessment?

MS McPAUL:

It is a view expressed here but I think I can only refer again to

some of the issues that Ms Godwin placed on the table which was that

once families are not able to achieve the migration outcome they'd

hoped for by coming to Australia as unauthorised boat arrivals or

other unauthorised arrivals, the likelihood or propensity for absconding

does increase with the advanced stage of processing and the number

of determinations that have been made that the family have not been

found to be refugees. So it would be a factor but again I guess it

is open to question as to the degree of ---

MS GREAVES:

The other factor, of course, with alternate places of detention, alternative

places of detention, is the question of care and being able to provide

an alternative place of detention where proper care can be provided

to the family.

MS McPAUL:

I mean, obviously in this document there are a number of options being

put forward for serious consideration and I think I would like to

suggest that the Department has, in fact, been doing that over a number

of months.

MR WIGNEY:

There are a number of other issues, Commissioner, I want to explore

with this but I think that having regard to the rest of the program

that we have, I think we should really conclude this case study now.

DR OZDOWSKI:

It is possible we know enough ---

MR WIGNEY:

Yes. I don't think it is fruitful to pursue it any further. Yes, that

concludes the questions ---

DR OZDOWSKI:

You concluded? Mr Bromwich?

MR BROMWICH:

Commissioner, I only briefly wanted to again put the case processing

history forward. That would take about a few minutes, if I could do

that.

DR OZDOWSKI:

Please do it.

MR BROMWICH:

Yes, thank you. Ms McPaul, I think you have got the case processing

history with you.

MS McPAUL:

I have a summary of it, yes.

MR BROMWICH:

Is it the position that the family in this case arrived as unauthorised

boat arrivals and were initially detained at Curtin in November 2000?

MS McPAUL:

That is correct, yes.

MR BROMWICH:

In mid-November 2000, temporary protection visa applications were

lodged.

MS McPAUL:

Yes. Around the 8th of November.

MR BROMWICH:

In early January 2001, a determination was made by a delegate

of the minister that the applicants were not refugees.

MS McPAUL:

It is my understanding that the primary decision was made and the

refugee status was refused on the 8th of January.

MR BROMWICH:

That position was confirmed, that is, that the family were not refugees

by the Refugee Review Tribunal on 26 June 2001.

MS McPAUL:

That is correct.

MR BROMWICH:

The position is that the family are now available for removal

pending other issues.

MS McPAUL:

That is my understanding.

MR BROMWICH:

Yes. Thank you, Commissioner.

DR OZDOWSKI:

Thank you very much. Thank you very much for cooperation of all

parties. It looks as if we are on time and we will be able to finish

today. Maybe a few words about what I would like to do in the afternoon

and we will meet at 2 o'clock so we look at a decent time for lunch.

In the afternoon, I would like to press the issue of mental health

but very briefly. Then I still would like to explore the issue of

division of responsibilities between DIMIA and ACM, especially in

the light of this correspondence and I would really like to do it

on a practical level.

So I would like

to ask that DIMIA officers who have actually been in detention centres

to be available to answer some questions about it. Then if there are

any outstanding issues, and from my point of view, I would like to

ask a question about provision of food and special arrangements for

food for children, what they are being given, including special formula

milk. As you know it was a controversial issue in some of the public

hearings so at least I would like to draw this to your attention.

Then I will invite

DIMIA to put any additional issues on the public record you may choose

to put, if you feel there is not enough evidence relating to some

other issues.If you would like to put such other matters of your choosing,

on the public record, you will have an opportunity to do it. And finally

I will listen to your submissions about the time frame for response

to questions on notice. Hopefully we can conclude all this not too

late in the afternoon. But is this an agreeable course of action or

are there any other issues, either DIMIA or ACM would like to have

dealt with during the afternoon?

MS McPAUL:

Well, no, but I guess I speak for myself but I would be prepared to

start a little earlier in the hope of finishing a little earlier,

rather than - maybe 1.30 rather than 2 for lunch.

DR OZDOWSKI:

I don't have a problem with that. What about the other counsels? 1.30

would be convenient?

MR WIGNEY:

I don't have a problem. The only thing that I was going to say is

I will be very brief, at least - I think I'm going to ask two to three

questions on the topic of mental health, although they are very broad

questions really to elicit the Department's comments or response so

but I'm certainly open to coming back at 1.30.

MS McPAUL:

I'm just offering that ---

DR OZDOWSKI:

But possibly, considering that some people need to travel to their

home for a weekend, so let us start in this case at 1.30. Okay? Thank

you very much.

LUNCHEON ADJOURNMENT

[12.45pm]

RESUME

[1.35pm]

DR OZDOWSKI:

Thank you very much for agreeing to start a bit earlier. Let us hope

we can aim to finish between 4, 4.30 if everything goes okay, in light

of people travelling back to Canberra. So we go to one new witness

who wasn't on the stand before. So could we administer the oath or

affirmation?

DAVID FRENCHAM,

sworn [1.35pm]

FORMER DIMIA MANAGER WOOMERA

DR OZDOWSKI:

Thank you very much, Mr Frencham. So Mr Wigney, if we could start

briefly with mental health, please.

MR WIGNEY:

Yes. As I said, really what I propose to do is really make an

observation and then ask the Department officers to comment on it.

My observational preface to the question is this. The Commission has

received a large number of submissions and heard a good deal of evidence,

most of it from eminent practitioners and experts in the field of

mental health. Most of the submissions and evidence having been taken

or heard publicly and therefore I take it that the Department is aware

of it to the following effect.

That the environment

in the detention facilities and Woomera in particular but the other

facilities included is such as that it creates and exacerbates mental

illness and development problems amongst detainee children from severe

depressive orders to, in some cases, psychosis. To put it in the words

of one of the professionals that has given evidence, that being a

Dr Jureidini, it is hard to conceive of an environment more potentially

toxic to child development.

We have also

heard considerable evidence and taken submissions again from eminent

practitioners to the effect that it is impossible to adequately treat

these mental disorders in the detention environment because, in effect,

it is the detention environment itself that creates and exacerbates

the mental condition and the mental illness. Again in the words of

one of the psychologists who worked on the ground in Woomera for,

I think, over a year, that person being Harold Bilboe:

I was working

in a no win environment because I couldn't change the environment.

No matter how much I worked with the clients, I couldn't change

the cause of the behaviour, the cause of their stress. It's like

having a patient coming into a hospital with a nail through their

hand and you are giving them pethidine injections for pain but you

don't remove the nail. That is exactly what is happening in Woomera.

You've got people down there with nails through their hands. We're

holding them, we're not treating the cause. So the trauma, the torture,

the infection is growing. We are not treating it. We're just containing

it. Eventually when those people return to their homelands if they

don't get temporary visas, they are going to carry that with them.

Now, my question

in the light of that evidence and those submissions is this. Well,

firstly what is the Department's response and in particular does the

Department accept and acknowledge that the environment in these detention

centres, and I include amongst those centres the recently opened Baxter

centre, create and exacerbate mental illness? What, if anything, does

the Department propose to do about the children who are still in immigration

detention in the environment, for example, those that still remain

in immigration detention in Woomera, and does it propose to continue

to detain children in the immigration detention, for example, in Woomera

in the future?

MS McPAUL:

There are very many parts to that question, if you don't mind me saying

so. You may need to help us recall all of those as we go through.

MS GREAVES:

Can I say at the outset that the question of detaining children in

immigration detention centres is a matter of policy and the law. The

law requires that we detain children as well as adults and as we've

made clear, I think, we do, when there are special needs required,

we look to provide alternative arrangements where we can but we as

Departmental officers are bound by the law. You asked a question about

whether or not the Department was going to continue to detain children.

That is a matter of policy and law.

MS McPAUL:

Just in relation to that point, I think you asked the question

as well about whether the Department would continue to detain children

at the Woomera centre, in particular. It is my understanding at the

moment that all of the children and families that remain at Woomera

have been offered the opportunity to be accommodated at another facility,

specifically at Baxter, on more than one occasion. I believe that

offer has been made to those people and at this stage, they have declined

to accept the offer of the improved accommodation and the new facilities

at Baxter and the family compound atmosphere there. So for the time

being, yes, it is my understanding that those children would continue

to remain at the Woomera centre. There were some other bits.

MR WIGNEY:

Well, it is really just to give you an opportunity, I suppose,

to comment on the topic in general.

MS McPAUL:

I mean, I think there was a point that Ms Godwin made in her submissions

to the Commission a couple of days ago which is that it is extremely

difficult to identify the exact genesis of a person's mental health

that they might exhibit in the centre at any point in time. Of course,

some of these people have had a very difficult and perilous voyage

to get to Australia and they may well have other predispositions or

issues in their life well before any thought of coming to Australia

which might also be impacting on their personal circumstances whilst

here.

So I think it

is quite difficult to conclude that detention alone is the prime factor

contributing necessarily to every person's mental health.

MS GREAVES:

Indeed I think there is some evidence that has been put before

the Commission that the impact of these refusals also has an impact,

not detention per se, but the visa status. Also I think that some

of the witnesses to the hearing have indicated that they can't pull

apart the source of trauma. What we are trying to do is to focus on

protective factors. We seek to - we focus on the amenities. We seek

to support families while they are in detention and we are applying,

as we have said on several occasions, continuous improvement to those

amenities and to that support.

MR WIGNEY:

I only want to take up one point with you and it relates to Baxter.

As I understand the position, and I stand to be corrected, there have

been for want of a better description, excursions to Baxter, that

is, some of the families that are in Woomera have been taken and shown

the facilities at Baxter and yet still declined to go there. Is that

correct and ---

MS McPAUL:

That is my understanding that there has been at least one visit for

some family members from Woomera to Baxter and as I said to date,

those families have chosen to remain where they are.

MS GREAVES:

But that is not to deny that Baxter does have two separate family

compounds in which families can be accommodated separately from the

rest of the population.

MR WIGNEY:

Can I ask you this? It is really to put again a proposition to

you and to ask for your comment. In relation to the mental health

services that have been and are provided in these detention facilities

can I make the point again that I make no criticism of the staff and

the mental health teams and the medical staff who attend to the mental

health services on a daily basis. But can I suggest to you that it

is manifestly the case that the mental health services that are provided

in these detention facilities are entirely reactive as opposed to

pro active and really are no more than a band-aid solution, that is,

to use Mr Bilboe's analogy, like giving an injection for the pain

caused by a nail in the hand but not removing the nail. Now, I just

invite your comment in relation to that, please.

MS McPAUL:

Okay. I disagree that it is manifestly clear in the way that you

are suggesting. I think the initial health screening that happens

for detainees - look, I think the broad proposition that the Department

would put forward is that individuals with - who exhibit a need for

particular mental health assistance will come to the attention of

the services provider and DIMIA through initially the reception screening

processes when they arrive in Australia but in addition to that, there

is a continuing process of enhancing our case management approach

to these issues.

It is certainly

our expectation and understanding that the services provider is working

to ensure that the mental health of detainees is managed throughout

their time in detention and not simply, I think as you put it, a reactive

process to a particular trauma or crisis point that may occur for

that person whilst they are detained. These programs and activities

are available in the centre and include a range of different opportunities

for people to be involved in different activities that are happening,

educational, recreational and sport, various excursions outside the

centre and so on.

Of course, the

other access is to welfare, mental health and medical staff on an

ongoing basis in the centre. So I think to characterise the process

as being simply reactive is not how I would understand it to be.

MS GREAVES:

I would add that where it is assessed by the staff in the detention

centre that external specialist help is required, that is provided.

MR WIGNEY:

Just to make it clear, the reason I'm asking very few questions on

this topic is not because it is a topic of considerable interest to

the Commission but you will probably agree that in the context of

the family case studies in particular that we've dealt ---

MS McPAUL:

We have canvassed ---

MR WIGNEY:

--- with and various other things we've covered virtually all of the

topics that we proposed to address, I really just wanted to give you

and the Department a further opportunity to comment on any issues

relating to mental health.

MS McPAUL:

Sure. I accept that we did canvas a number of mental health issues

earlier on in relation to the specific cases. I guess I would just

suggest to you that we need to be careful about generalising out from

the particular circumstances of one case to all detainees who may

have at one time or another been in detention. I think we've also

discussed in this forum the fact that for different periods of the

time that is being examined by this Inquiry, there were periods at

which there was a very high turnover of detainees through centres,

as well as some who are there obviously for a longer period of time.

The nature and

type of health and mental health care to be provided to those detainees

varies obviously, depending on their circumstances.

MR WIGNEY:

The only response I wish to make to what you have just said is

that we have, of course, because of the limited time available to

us in terms of public hearing time, selected only two case studies

for the family topic and two for disabilities. I wouldn't want it

to be suggested however that as I've indicated before we embarked

on all of the case studies that we have simply selected the most difficult

or complex cases and I can suggest to you that in relation to - or

firstly in relation to the disability case studies as I suggested,

we picked those two case studies because they are the two very examples

that the Department gave in its submissions.

MS McPAUL:

There is a very limited number of children with disabilities that

have been in detention at all.

MR WIGNEY:

In relation to the family case studies, I can do no more than to suggest

to you and indicate to you that from the information and evidence

available to the Commission, there were a large number of other families

in almost identical circumstances to those that were picked for the

case studies and that - and obviously as a result of the limitations

on time, we certainly couldn't address all of them.

MS McPAUL:

Look, obviously there needed to be some choices made about the

ones that the Inquiry would like to look at more closely. Clearly

there are a range of circumstances for families and children in detention.

I think it is just important to put on record that a very large number

of those families and children move through detention very quickly

and that the experiences of these quite difficult cases would not

be typical of all detainees in detention, although it may represent

a particular cohort that remain in detention today.

MR WIGNEY:

Just finally in relation to the mental health topic and to an extent

we've addressed this in the context of the family topic and the case

studies. I think you have indicated on a number of occasions that

the Department consults with state bodies and authorities in relation

---

MS McPAUL:

Yes.

MR WIGNEY:

--- the state bodies that deal with mental health issues and the

protection of child issues. I think it is the situation and there

was some discussion at length about whether or not the Department

listens to specific recommendations made by those bodies in relation

to families. It is the situation also, is it not, that the - at least

some of the Government departments and in particular in South Australia

have made general recommendations that, for example, children ought

not be detained at all in the Woomera centre and the point is, we

suggest to you, that the Department chooses to ignore those recommendations.

What is your response to that?

MS GREAVES:

I have to say that we do do more than just listen to the recommendations

of the state authorities. We try and apply them and do apply them

where we can, where they are not directly in conflict with our obligations

under the Migration Act. Where we cannot apply the recommendations

because of a difference under the Migration Act or circumstances under

the Migration Act, we work with the health - the child welfare authorities

to try and come up with the best solution in the circumstances.

We spend some

time working with the child welfare authorities to do just that. I

think that is seen from the evidence that has been provided to the

Commission.

MS McPAUL:

In particular one of the case studies that we looked at yesterday,

I think you will recall, made a series of recommendations and whilst

the Department was not able to, for reasons relating to our statutory

environment and regulatory environment, implement all of those recommendations,

the recommendation to move a particular child or family group to the

housing project was, in fact, taken up and that family remains at

the housing project as we discussed yesterday.

MR WIGNEY:

Can I just give you one example and I will read it to you from a report

provided by the Department of Human Services into the Woomera Detention

Centre. Assessment Report dated 12 April 2002.

MS McPAUL:

Have you got a page number for that, please?

MR WIGNEY:

The document commences at page - top right hand corner 28. I was going

to take you to two passages in that report.

MS McPAUL:

Again, I think we've got ---

MS GREAVES:

This is a report from ---

MR WIGNEY:

It is from the Department of Human Services and hopefully at the top

of page 28 ---

MR BROMWICH:

I've got an ACM document. Page 28.

MS McPAUL:

It might be the one that starts at page 29 headed ---

MR WIGNEY:

Page 29.

MR BROMWICH:

12 April 2002.

MR WIGNEY:

Yes. Sorry.

MR BROMWICH:

That is page 29.

MR WIGNEY:

Page 29.

DR OZDOWSKI:

29.

MR WIGNEY:

I've got a title page in there as well but it does not - it is a report

from the Department of Human Services, assessment report for the Woomera

Detention Centre, 12 April 2002. I was just going to take you to two

passages. Firstly on page 35, top of the page:

Continuous

exposure to violence and self-harming behaviours is creating an

unstable and unsafe environment in which psychological symptomatology

such as suicidal ideation, disassociation, depression, restricted

ranges of [a]ffect and anxiety are appearing in many of the children.

The mental health and personality of many of the children and young

people is being severely impacted because parental guidance and

authority is being undermined, especially by the institutional nature

of the facility.

On page 40 of

the document, another general finding at the top of the page before

particular case studies are considered, the Department says, or the

author of the report says:

For children

and young people in the Woomera centre the social and physical environment

of detention is one characterised by alienation, idleness, dependency

,passivity through to aggression and even despair in some. The mental

health and personality of many of the children and young people

is being severely impacted because parental guidance and authority

is being undermined. Parents are being degraded in the eyes of their

children and scenes of hopelessness and social isolation abound.

For the

children and young people at Woomera, their continuous exposure

to violence and self-harming behaviours is also creating an unstable

and unsafe environment in which psychological symptomatology such

as suicidal ideation, disassociation, depression and restricted

ranges of effect and anxiety are appearing.

Now, my suggestion

to you is that no amount of upgrading of the physical infrastructure

of Woomera is going to overcome those fundamental issues with the

detention environment.

MS GREAVES:

I think we need to clarify the status of this report. It was a document

that was provided to us and which we then subsequently had a tele-conference

with DHS personnel about it and because there were a number of factual

errors in it, there were statements made in it which suggested that

the Department was responsible for issues which were, in fact, within

the responsibility of, for example, a state hospital. There were a

number of issues that we went to in this report and DHS agreed with

us that they would issue a corrigendum to it.

We've had to

clarify how they have come to their findings and to highlight the

areas where they have not asked - actually - checked with the staff

of ACM and the DIMIA Manager at the time to - there were a number

of unsubstantiated statements in it that they hadn't taken the time

to check with ACM health staff or other ACM staff or DIMIA staff in

the facility at the time. They were going to go back and look at all

of that. We had a further tele-conference with them on the 29th of

August and they were going to revisit the language that they had used

in this report and we, I think, are still waiting for further documentation

from DHS on it.

DR OZDOWSKI:

Well, you see, our problem is that the submission we've got stands

in evidence. It was provided to us, and stands unchallenged unless

it is corrected. So therefore I think it is very important if there

were changes that we are notified about it by DIMIA so we can consider

it when writing the final report. We need you to provide us with some

good examples to compare and contrast.

MS GREAVES:

As soon as we get them from DHS we will provide them to the Commission.

DR OZDOWSKI:

Thank you. Now, Mr Wigney, did we finish with mental health?

MR WIGNEY:

I'm just checking.

MS GREAVES:

Commissioner, there was just one other point that I would make about

general recommendations by state child welfare authorities. Of course,

we do take into account the general recommendations in our program

of continuous improvement as best we can within the context of the

law.

DR OZDOWSKI:

Thank you.

MR WIGNEY:

The only thing that I wanted to address and we might just take

a moment to turn it up, this specific passage, is we have received

evidence or submissions from the relevant state department that authored

that report which is somewhat - well, does not entirely align with

the version you have just given us. I'm just seeking to have it turned

up now and if you could just excuse us for a moment.

MS GREAVES:

I can attest to the fact that we had a telephone conversation with

DHS about this report because I was part of that telephone conference.

MR WIGNEY:

I'm sorry, I should ---

DR OZDOWSKI:

No, no. We are not doubting what you are saying.

MR WIGNEY:

I'm not doubting what you have said about having tele conferences

and the like. It is a more general proposition. I apologise if I gave

the other impression. Well, the passage perhaps for the present purposes

I just want to take you to and again I'm not taking issue with what

you have said about - specifically about this report and the tele-conferences

is that at the Adelaide session of the Commission on 1 July 2002,

some evidence was taken from a Ms McNeil whose position in the department

I will tell you in a moment.

There was a general

discussion about Woomera in particular and various reports and recommendations

in relation to Woomera that had been given by the department to the

Department of Immigration, given by the state department to the Department

of Immigration. Mr Hunyor asked the question:

To what

extent do you think the failure to heed the broad recommendations

that you were talking about just before I asked the question to

what extent has the failure to heed those recommendations increased

the rates of child abuse, alleged child abuse?

The answer was:

'hugely, hugely':

So if the

broader recommendations that you have been giving to ACM and DIMIA

had been followed, your evidence is that the incidents of child

abuse and alleged child abuse would have decreased significantly?

Answer: 'definitely.'

Now, that was on a slightly different topic but again it deals with

recommendations from state authorities. Was it the situation that

the Department of Immigration actively listened to and followed recommendations

by state departments?

MS GREAVES:

I think we have nothing further to add. We do take account of the

state Government's recommendations where they are within our capacity

under the law to do so. We work actively with them. We have a generally

cooperative relationship with the Department of Human Services and

the Family and Youth Services part of that department. We have an

MOU with them that deals with child protection and child welfare issues.

All I can say is that that is the opinion of one person.

I guess what

I'm saying is from our perspective we do - we do take account of those

recommendations as best - to the extent that we possibly can within

our obligations under the Migration Act.

DR OZDOWSKI:

Basically it is a question; it follows that if there would be different

legislation, one would assume you would be accommodating different

recommendations, or maybe more or less of them?

MR BROMWICH:

With respect, Commissioner, that is hypothetical.

DR OZDOWSKI:

My comment is, yes. Yes, I don't - do not expect a response. Thank

you.

MR WIGNEY:

Well, just finally on the topic, can you go to page 213 of the bundle

that I think I've given you. I'm getting very nervous about giving

you page numbers at the moment. Let me just give you - sorry, I can't

give anyone else - I think they were handed out yesterday but anyway

look, rather than take up time, let me just give you this bundle.

That bundle I've given you is opened at page 213. It is a report of

the Department of Human Services Family and Youth Services Social

Work Assessment Report on the circumstances of children in the Woomera

Immigration and Processing Centre, 21 August 2002.

So it is later

in date than the other report. If one goes to page 216, part C of

the report: Recommendations. Recommendation A: that no child should

be kept in the Woomera centre as it is an environment that fails to

provide care and protection.

MS GREAVES:

As I think my colleague has already said, we have - we have offered

to move all families, all children, from the Woomera Detention Centre

to another facility and they have chosen not to be moved.

MR WIGNEY:

Is the fact that you have offered all children to move from the Woomera

Detention Facility because you now acknowledge that it is, in fact,

an environment that fails to provide care and protection?

MS McPAUL:

I think it is more that we recognise that the facilities at Baxter

are designed to accommodate families and the large proportion of unauthorised

boat arrival families that remain in Australia are now there and that

that would be an appropriate place for these other families to also

be located.

MR WIGNEY:

Yes. I have nothing further on that topic.

DR OZDOWSKI:

Thank you very much. I think we have finished mental health; certainly

it is one example of many others which were not fully considered during

these four days. We possibly would require many more days to go in

such a detail over a full range of areas. At least I think we could

conclude that people get stressed in detention. Some of them even

get mentally ill. The issue of causes, of course, is an issue which

the Department was unwilling or most reluctant to admit that detention

may be causing a link to mental illness, over and above any other

single cause.

We acknowledge

that certainly there are other causes and especially visa considerations

are very important. Another issue which we were looking at, was certainly

the issue of the handling of people by DIMIA and ACM who are either

developing mental illness or who already acquired mental illness in

detention. But there is possibly a whole range of other issues, yes,

we could have looked at. What I'm proposing to do now is to move to

that question about division of responsibility for DIMIA and - between

DIMIA and ACM.

It will be again

a very short issue but if I could perhaps make a bit of an opening

statement. I understand that DIMIA is responsible for monetary payments

and DIMIA is responsible for immigration status, but not necessarily

for the people who are in detention centres, and that properly speaking

ACM is responsible for the day to day operations. So this distinction

tends to suggest that DIMIA is not getting involved with the day to

day operations, or if it gets involved with day to day operations,

it is happening only on the margins.

However, going

to my visits to different detention centres, I formed an opinion that

the situation, is a bit different in every one of the detention centres

and that different factors do play a role as to what extent DIMIA

is getting involved with day to day operations. I, for example, was

told in evidence that - and I'm using it as example - that DIMIA decisions

are required when it is coming to more expensive medical procedures,

that DIMIA decisions are required when it is coming to the use of

hand cuffs when people are going for outside visits, say, to a dentist.

I have also been

told that DIMIA decisions are required when it comes to schooling,

whether the detainees will be taught in the centres or have access

to outside education, or in another instance, the use of isolation

detention for a particular detainee. But basically I'm still having

a lack of clarity in my mind about how it works on a practical level.

So what I would like to ask you, Mr Frencham, who possibly has got

the most of this operational experience, would it be possible, would

it be fair, to ask you for a list of decisions where the DIMIA Manager

in the centre is getting involved, or has been consulted? Is it the

fact that making a decision - or perhaps such a list does not exist,

and it depends more on situations on day to day judgment?

MR FRENCHAM:

I think such a list does not exist. It could be very extensive. When

I - I can only speak for Woomera but when I started at Woomera, my

view was that the ACM and DIMIA were all in one partnership. I attended

meetings with ACM three mornings a week and spoke to their manager

and their other executive people every day of the week. My doors were

always open to them and vice versa. In day to day, everyday activities

we weren't involved. On a consistent basis though, for example, we

would be monitoring food and every few months there would be a nutritionist

report.

Probably every

week or so, one or another of my staff would eat with the detainees

in the compounds. Every day, no, but on a regular and ongoing basis

over time we would monitor things. In terms of transfers in and out,

I would wish to be involved if there were a need, for example, to

use their own phrase, where there was some urgent medical problem.

I would be aware, made aware anyway. I didn't need to give a formal

authority to ACM to take someone into the hospital, for example, or

to take someone to the dentist. We did understand that more routine

kinds of things would happen.

DR OZDOWSKI:

What would be your expectations concerning the issues you must

be consulted on before they take place? What kind of issues, at least

would you expect that before other persons you would be consulted

before ACM does take any action?

MR FRENCHAM:

Well, normally I would expect to be consulted if people needed

to be removed, for example, by ambulance, if there was any need for

hospitalisation. I would need to be informed of any significant incidents

in the place. But in terms of transfers out, I think urgent hospitalisation

is possibly the only one.

DR OZDOWSKI:

We quite often heard in evidence that any substantial medical procedure

which costs money was always referred to the DIMIA Manager. Is that

correct?

MR FRENCHAM:

Well, I think I was always made aware, yes, but not for approval.

DR OZDOWSKI:

Not for approval?

MR FRENCHAM:

No.

DR OZDOWSKI:

So you were not deciding whether the person will get ---

MR FRENCHAM:

No.

DR OZDOWSKI:

--- treatment or not?

MR FRENCHAM:

No.

DR OZDOWSKI:

There was a similar situation in all other centres?

MR FRENCHAM:

I could only speak for Woomera. I was in touch with managers in other

centres and as far as I was aware, we were doing things on a reasonably

consistent basis but I really couldn't speak for them.

DR OZDOWSKI:

If somebody had to go, because of behaviour management reasons, to

an isolation cell, whose decision ---

MS McPAUL:

To the management unit.

MR FRENCHAM:

We didn't have a management unit in Woomera whilst I was there.

DR OZDOWSKI:

Well, I know you have got a new one just now. What were you doing

in the past if there were problems with behavioural management?

MR FRENCHAM:

If there was a medical background ---

DR OZDOWSKI:

No, not medical. If somebody was giving, let us put it, a hard time

to the people who were providing services ---

MS McPAUL:

Perhaps, Commissioner - sorry, it might be helpful I think just

in your opening remarks in relation to this, you made reference to

apart from the isolation cell which I think is not the way we would

characterise the facilities at the centre, I think you also made reference

to meaning to seek the DIMIA Manager's approval for the use of hand

cuffs.

DR OZDOWSKI:

Yes.

MS McPAUL:

Quite clearly the detention services contract specifies that those

sorts of operational decisions will be made by the services provider

based on their judgments about how to handle those circumstances.

DR OZDOWSKI:

So in all cases, all decisions belong to ACM ---

MS McPAUL:

Operational ---

DR OZDOWSKI:

--- as far as it relates to operation?

MS McPAUL:

Operational matters. That is right. We would, of course, be -

expect them and require them to advise us of these matters, that most

of those things that you have mentioned, in fact, would be the subject

of an incident report of some kind to the Department as part of that

normal reporting process, which is not to say that there may not be

advice on the ground between the services provider to our Manager

but certain events might be occurring in the centre.

But basically

the way that the contract is structured and our expectation around

that is that operational decisions are within the purview of the detention

services provider. The issue about transfer to other centres I think,

as we discussed this morning, the Department would be involved in

some decisions regarding the actual location but that would include

a range of operational factors which I alluded to this morning, including

seeking some advice from the services provider about the logistics

and the appropriateness in their view about managing those cases in

a particular location.

MS GREAVES:

And also for transfer, moving to outside education. That is something

that obviously we are involved in also in terms of providing arrangements

with the states to enable that to happen.

DR OZDOWSKI:

But do you have a right so to say in terms of your authority to deny

if, for example, ACM would decide that somebody will go to a certain

school and the school is willing to receive that person, can DIMIA

Manager say: no, for some reason I don't think it is appropriate for

that man or woman or child to go to that school?

MS GREAVES:

As I think we pointed out when we were talking about education, Commissioner,

there would be an assessment made of the risks of having a person,

a child, attending an outside school in terms of risks of such things

as absconding.

DR OZDOWSKI:

Who makes that assessment ---

MS GREAVES:

That would be an assessment ---

MS McPAUL:

An operational ---

MS GREAVES:

An operational decision.

DR OZDOWSKI:

So again ACM makes that assessment?

MS McPAUL:

About the risk assessment?

DR OZDOWSKI:

Yes.

MS McPAUL:

Yes, that is a professional judgment made by the detention staff

employed by ACM.

DR OZDOWSKI:

ACM. Yes. It is possible ---

MS McPAUL:

I mean, we would expect possibly to be advised of what view they

had formed. If it looked like an outcome contrary to something that

we would otherwise perhaps expect to happen, but it is - the assessment

itself is their job.

DR OZDOWSKI:

Let us put is this way. I won't be pursuing it much further but it

is certainly not consistent with what I had earlier from other witnesses

and I would welcome ACM, if ACM has any comments on the issue, to

say a few words now or maybe to let us know later.

MS GREAVES:

Commissioner, could I just add one point which is obviously in

relation to things like risk assessment, there are some elements of

that that would be known to us that might not be known to the services

provider. For example, their particular status ---

MS McPAUL:

Immigration status.

MS GREAVES:

Immigration status. So we would be involved in that decision.

DR OZDOWSKI:

So you would be making a decision? Do you have a better power?

MS McPAUL:

Look, it is my understanding that the risk assessments are, as I said

before, the responsibility of the service provider. We may feed some

information into that process if we thought it was pertinent for that

consideration. It may still be possible to move a difficult detainee

from one location to another but they would - the services provider

who would be undertaking that escort, would need to know, for example,

that they may need two officers to escort rather than one and so on.

So we may feed into that process but ultimately it would be their

decision as to how it was handled.

DR OZDOWSKI:

So basically what you are saying that you may get involved but basically

and principally you are hands off and you only deal with ACM by way

of monitoring and liaison?

MS McPAUL:

Just to be clear on how that has been characterised. As Mr Frencham

said, we have a partnering relationship with the services provider

and day to day in the centres as you have heard there is a range of

meetings and forums in which the DIMIA staff and the services provider

staff might address jointly some issues that are arising at the centre

at that time. But the operational matters in the centre are something,

whether it is the provision of food or welfare or programs or all

of those sorts of things, are part of the detention services contract.

DR OZDOWSKI:

Dealing with hunger strike, dealing with riots?

MS McPAUL:

Those are particular things that happen from time to time in the

centres. From an operational point of view, again we would expect

the services provider to be taking all necessary steps to ensure the

immediate needs of the detainees in those circumstances were dealt

with. For example, if people claimed to be on hunger strike, we would

expect the services provider to be providing medical support, welfare

support, water and food and so on to the detainees. But the Department

would obviously have a role in monitoring that situation, reporting

to our senior staff and to the minister's office about the progress

of the particular circumstances of that incident.

DR OZDOWSKI:

Using the example of the riots in Woomera this year in which this

group was lip sewing and all the kinds of problems after which a group

of minors from the same compound were released, my understanding is

that a significant role in settling this riot was played by the ministerial

advisory committee or IDAG as it is known.

MS McPAUL:

I believe IDAG did visit the centre.

DR OZDOWSKI:

So how did it work. Were they advising ACM on what to do, or were

they advising the minister and the Department how to resolve the matter.

MR FRENCHAM:

The IDAG group?

DR OZDOWSKI:

Yes.

MR FRENCHAM:

The IDAG group reported to the minister after their visit.

DR OZDOWSKI:

So the final decisions were made on this occasion by the minister?

MR FRENCHAM:

Well, I think the resolution was that processing would recommence

and that was done in liaison with - discussions with the Department

that the group did, in fact, report also to the minister.


DR OZDOWSKI: Yes. I don't have any more questions in this area.

Mr Wigney, would you like to ask any questions?

MR WIGNEY:

It is on a slightly different topic and I would like to direct a question

to Mr Frencham. We have heard some evidence, I think, yesterday. There

were some questions directed to the role of the DIMIA Manager at respective

detention facilities, including Woomera. As a delegate of the minister's

powers of guardian in respect of unaccompanied minors, can you please

tell us as a practical matter what, if anything, you did on a daily

basis after January of this year in respect of the duties or powers

as a delegate of the minister in that respect?

MR FRENCHAM:

Yes. I could probably take you back a little earlier than that.

I think the group of unaccompanied minors has always been recognised

as a group that deserves some special attention and there has been,

since prior to my arrival, a staff member who was designated to particularly

oversight the care that was being offered them. There was a weekly

meeting from - well, certainly prior to May last year which my staff

would attend.

There was, I

think going back to that stage but I'm not 100 per cent sure, a weekly

meeting with program or ACM staff about the individuals. Picking up

from January this year, I had a more senior person designated to -

be an unaccompanied minors officer if you like - and she attended

meetings with minors and with ACM staff. That was on a weekly basis.

MR WIGNEY:

Well, what you have referred to there is, I suppose, some fairly

formal things. Can I just pick them up one by one? First you say there

was a staff member designated to oversee the unaccompanied minors.

Was that an officer of the Department or of ACM?

MR FRENCHAM:

Of DIMIA.

MR WIGNEY:

What - my question is really directed at you being the person

who receives the delegation as guardian. What did you do as a practical

matter in relation to going ---

MR FRENCHAM:

Well, the Deputy Manager was also delegated and she was the one

who, from January this year, assumed that role.

MR WIGNEY:

I see. As the person with - that would oversee the unaccompanied minors.

Is that right?

MR FRENCHAM:

Yes.

MR WIGNEY:

What did she do as a practical matter in relation to her powers as

a delegate of the minister?

MR FRENCHAM:

She was the contact person for all the unaccompanied minors if they

wished to raise anything at all with DIMIA or ACM. There was also

an ACM officer who was specifically designated to look after the group

but as I say, she met once a week at the minimum with the group and

met separately with ACM operational staff who were responsible for

looking after that group.

MR WIGNEY:

Was there any one on one contact between the Deputy Manager and

unaccompanied minors in terms of advice or assistance or support?

MR FRENCHAM:

If they sought to see anyone at all, they would ask for her. She

was known to all the minors there as their contact person and she

would be out there on a regular basis, yes.

MR WIGNEY:

What about in the interview, the screening or induction interview,

and secondly I suppose the refugee status determination interview.

Did the Deputy Manager or yourself have any role to play in those

interviews?

MR FRENCHAM:

I think it has already been made clear that there was no involvement

of the DIMIA staff on site in the actual refugee determination process,

in the application process.

MS GREAVES:

Bearing in mind, of course, that at that time, January this year,

we weren't seeing new arrivals. I mean, we are talking about a group

that have already been in detention. So those are issues of the initial

stage of their processing.

MR WIGNEY:

Well, what happened before January 2002?

MS GREAVES:

I think we talked about this yesterday.

MR WIGNEY:

Yes, but I - the fact is that I want to ask Mr Frencham because,

of course, he is there.

MR FRENCHAM:

There was no involvement of the DIMIA office staff on site in

the application process, no.

MR WIGNEY:

That includes the screen interview and various interviews.

MR FRENCHAM:

If minor children wished to speak and ask advice, we would provide

general advice in terms of - this is the IAAAS provider, he is here

to help you. All we can suggest is that you be up front and honest

with him. Just tell the truth basically.

MR WIGNEY:

I just want to ask one more question, not on the topic of guardianship

but as a practical matter, who was in charge at these facilities,

that is, was the deputy - was the Manager from the Department or the

ACM Manager in charge and let me give you an example to try and make

it a bit more specific and put it in context. What if, for example,

the DIMIA staff and the DIMIA Manager in particular observed that,

to take one example, a hunger strike or a lip sewing episode was being

dealt with in an inappropriate way by ACM staff officers? Was the

DIMIA Manager empowered to stop what was going on or how did that

- how was that sort of situation resolved?

MR FRENCHAM:

If there was any behaviour at all in a detention environment that

we thought was inappropriate, we would make use of the contract.

MR WIGNEY:

In that context, were there ever any, if I can use the phrase, demarcation

disputes between the ACM Manager and the DIMIA Manager, that is, who

ultimately has the final say on such matters?

MR FRENCHAM:

I'm not sure what kind of situation you are envisaging.

MR WIGNEY:

Well, can I just again envisage the situation relating to inappropriate

dealing with a hunger strike or a lip sewing episode or something

like that. Who had the ultimate ---

MS McPAUL:

Perhaps ---

MR WIGNEY:

I'm asking Mr Frencham.

MS McPAUL:

Yes, but I think it is useful to put just this in some context,

that the contract is for provision of services to DIMIA. The contract

is to us and while we have a partnering relationship, ultimately the

provision of those services are to our satisfaction, whether that

is being monitored at a central level or on site.

MR WIGNEY:

Yes, well, that is why I'm asking the question.

MR FRENCHAM:

In that - I think in that circumstance as soon as it is apparent that

there is a minor becoming involved in an incident like that, the reports

are made immediately to FAYS and in that situation in January, FAYS

was there, I think, within 24 hours.

MR WIGNEY:

Yes, I have nothing further. Thank you.

DR OZDOWSKI:

In a way it is - I can understand on a theoretical level but I

have a problem with somehow combining all the evidence in a workable

comprehensive whole. But perhaps it is one of these mysteries: when

I was much younger I was born in East Poland and we had a communist

party which was not taking any responsibility about how the Government

acted and basically all the ruling of the country was delegated to

the Government and the Government got the blame for all those things

that went wrong. But really when it came to the crunch, the communist

party was able to pull the strings. But anyhow, I know it is irrelevant

in this context.

MS McPAUL:

I think just for the record it is important to state that the

Department acknowledges its duty of care and responsibility for all

detainees and its contract management and monitoring responsibilities

in relation to the services provider.

DR OZDOWSKI:

Thank you. Will we have any contribution from ACM counsel in this

area? No.

MR RUSHTON:

No comment.

DR OZDOWSKI:

No comment. Thank you. Now, basically what we would like to do

now, maybe for next half hour or maybe shorter, is to go through a

few outstanding questions the counsel may have for DIMIA. It is basically

mopping up and then we will come to the final statement. As a matter

of fact, he may be able to start with just a few questions. For example,

it was confirmed that the minister delegated his guardianship role

to DIMIA Managers and the ACM Managers in January 2002. Who had responsibility

in the detention facilities prior to that time before the delegation?

MS GREAVES:

The DIMIA Managers also had responsibility. It was just that -

and obviously as part of our duty of care, DIMIA staff in the facilities

carried out that responsibility. It was just that in January we felt

it was preferable to have that delegation made absolutely clear.

DR OZDOWSKI:

I see.

MS GREAVES:

So that, for example, if there were decisions about intrusive

medical procedures, there was no question about the ability for the

DIMIA Manager to approve that.

DR OZDOWSKI:

Sure. So there was more or less a legal point?

MS GREAVES:

Yes.

DR OZDOWSKI:

Yes. It was a - now, Ms Godwin had described that there are nine

compounds at Baxter.

MS GREAVES:

Yes.

DR OZDOWSKI:

She described them as community-oriented and comparable to a village

square concept. As you know I'm going after next week. What should

I expect?

MS McPAUL:

Commissioner, I've been to the centre on a number of occasions.

Ms Godwin is right. There are nine compounds. The compounds at Baxter

are organised a little differently, I think, to the ones that you

will be familiar with at Port Hedland or at Woomera. Basically there

are a number of individual accommodation units that are aligned around

the outside of each of the individual compounds so that they face

into the grassed area in the middle of the compound, something like

a village square sort of concept, I suppose.

Within that compound

there are shade structures, some small trees that are planted and

obviously just growing at the moment. Some playground equipment for

the children. I think some of the compounds may have like picnic benches

and so on. So it is - it has got a - there is a communal dining room

and so on. Those sorts of recreational rooms are also attached as

part of each compound. So it is not the wide expanse that you may

have seen at some of the some centres but a more self contained ---

DR OZDOWSKI:

So how do the size of compounds in Baxter compare, for example,

with the size of compounds in Woomera?

MS McPAUL:

Well, they do vary a little. Mr Kelly might be able to provide some

more specific details.

DR OZDOWSKI:

Thank you.

MR KELLY:

Sorry, Commissioner.

DR OZDOWSKI:

Thank you.

MR KELLY:

The compounds range in size from approximately 80 persons through

to 168 persons in size.

DR OZDOWSKI:

So they would be much smaller?

MR KELLY:

Much smaller. One of the issues that the Department has recognised

and certainly in discussions with our service provider, that some

of the compounds that we do have in Woomera which range in size of

up to over 400 persons, it is very difficult to manage on a detainee

basis. So the Department, in constructing the Baxter facility, chose

to take some of that advice and take advice from other experts in

the field to come up with much smaller size compounds and compounds

that might provide much more amenity in terms of individuals.

There has been

criticism in relation to the lack of grass, as you know, in the Woomera

facility. The facility at Baxter is - we've had turf laid in every

one of the compounds. We have a watering system that enables the compounds

to remain green, the grass remain green. We have each of the accommodation

units provided for a double bed with an above single bed in a bunk

arrangement so that we can accommodate small families in the one room.

Each room has its own en-suite facilities as opposed to communal ablutions

that we have in other facilities.

Some of the accommodation

units have inter-connecting doors which allows us to be able to have

much larger families live in two bedroom facilities as opposed to,

you know, much larger dormitory-style arrangements in some of the

facilities.

DR OZDOWSKI:

Is there freedom of movement between different compounds?

MR KELLY:

There can be freedom of movement between adjacent compounds but not

between all nine compounds.

DR OZDOWSKI:

And the ---

MR KELLY:

Sorry?

DR OZDOWSKI:

Go ahead.

MR KELLY:

There is also the ability for people to move out of the compounds

to undertake various activities. As an example, the children go off

to school each morning. They are picked up by a school bus, for want

of a better term. They are taken to the educational facility and they

will spend the full day in the educational facility, much the same

as we would expect in the normal community situation. They are provided

with a small uniform, backpack for their school books, etcetera, and

a lunch is provided for them at the facility and then they return

to the facility - return to their compound later in the day.

For adults, the

opportunity of being able to get out, we have set up in a large, I

guess for want of a better terminology, a warehouse that existed on

the site and an ability for indoor recreational facilities, including

a gymnasium, etcetera, and there is an opportunity for people to go

through that at various times during the day.

DR OZDOWSKI:

Thank you. Now, changing the topic and in a while I will be able

to see the detention centre in Baxter, I think, on the 12th and 13th,

or something like that.

MS McPAUL:

I think that is correct, yes.

DR OZDOWSKI:

Also Ms Godwin has said in her opening statement that there are

still five UAMs who are currently held in detention centres. Would

you know whether under the new MSI of this week they will be immediately

released. What is happening here?

MS GREAVES:

Not all of the children are IGOC Act children, and I think the ---

MS GREAVES:

--- numbers - sorry, the numbers of children do vary a little

bit and I'm not sure whether it is actually five today because we

have had in Villawood some unaccompanied minors come in quite recently

from student visa cancellations but not all of the children are wards

of the minister. I think - I'm just getting the number. These are

two or three.

DR OZDOWSKI:

I think it was five in the opening statement.

MS GREAVES:

Sorry, five unaccompanied minors because there are a number of

children that we referred to as unaccompanied.

DR OZDOWSKI:

No. I'm talking only about unaccompanied minors.

MS GREAVES:

But there are some that we treat as unaccompanied minors for the

purposes of care, but were not wards of the minister.

DR OZDOWSKI:

Okay.

MS McPAUL:

Look, I can just provide you with a very brief synopsis of our

understanding of those children. One of the children at Villawood

is in the care of other family members at Villawood so - well, not

the immediate parents. I believe it is a related aunt and so on.

DR OZDOWSKI:

I understand.

MS McPAUL:

Two of the children, as Ms Greaves said, were very recent compliance

cases that had been identified in the community. They are of nationalities

that we would expect to be removed very quickly and in fact it may

well be that they have since been removed from Australia. There is

one further child at Villawood. It is my understanding that we are

presently seeking an assessment from the New South Wales Department

of Community Services with a view to considering whether or not this

child could be placed elsewhere or released on a bridging visa.

There is one

other child at Woomera who, up until recently, had claimed to be an

adult and has recently undergone one of the wrist X ray assessment

processes and while the evidence is a little equivocal, we have given

that person the benefit of the doubt that they are a minor which they

will be for another couple of months, but they are very close to being

18 even so. We are actively discussing with Family and Youth Services

what considerations we can look at for the possible placement of that

person but there are a number of factors including their previous

participation and involvement in certain other incidents at the centre

which need to be taken into account in finding an appropriate placement.

MS GREAVES:

All of that is consistent with the new MSI.

DR OZDOWSKI:

Just to clarify some numbers. I understand in July 2001, there

were about 628 children in detention.

MS McPAUL:

We will just find our statistics folder and we might be able to

assist you. So you are looking ---

DR OZDOWSKI:

Yes, and my question is how many of them were unaccompanied minors?

MS McPAUL:

Okay.

DR OZDOWSKI:

I think 200.

MS McPAUL:

July 2000, July 2001?

DR OZDOWSKI:

July 2001.

MS McPAUL:

I'm sure that that statistic is available, Commissioner. The data

we have with us today appears to just provide the total number of

minors, not UAMs but we can certainly provide that for you.

DR OZDOWSKI:

Would you - okay. Would you also be able to give me the number of

unaccompanied minors ---

MS McPAUL:

In July.

DR OZDOWSKI:

--- in July 2001?

MS McPAUL:

Sure.

DR OZDOWSKI:

Then what I would like to know is the figure which are alleged

to be unaccompanied minors, find out how many of them were in foster

care in the community.

MS McPAUL:

At that time?

DR OZDOWSKI:

At that time, or maybe now it would be unrealistic to establish

that. It would be better to go to a later time, whenever you have

to verify things, yes, because ---

MS McPAUL:

Well, I think it is certainly within our means to ---

DR OZDOWSKI:

--- it is really after January this year.

MS McPAUL:

Yes. A couple of things I guess I would say. I think we can certainly

find you the figure of the number of unaccompanied minors in July

2001. I think that that is obviously something the Department can

provide. As to whether they were in community care at that time or

not, we would need to check. My understanding would be that the main

movement of children into community care occurred in January this

year and since that time that ---

DR OZDOWSKI:

Yes. Since January, yes.

MS McPAUL:

Yes.

MS GREAVES:

I take it you mean still in detention but in community care?

DR OZDOWSKI:

Yes.

MS GREAVES:

Yes.

DR OZDOWSKI:

Yes, yes.

MS GREAVES:

If we make that for ---

DR OZDOWSKI:

If you could, yes. Basically, give me current numbers in terms

of the kids in community care, I think would be the best one.

MS McPAUL:

The current figure for children in community care?

DR OZDOWSKI:

Yes.

MS McPAUL:

Well, look, I can provide some information about that to you today.

DR OZDOWSKI:

Okay. So maybe ---

MS McPAUL:

Just in relation to the question about the number of unaccompanied

minors in July 2001, we can say that for that particular financial

year, 2000 to 2001, there were, as I understand it, 191 unaccompanied

minors that arrived in Australia.

DR OZDOWSKI:

I was very close.

MS McPAUL:

Yes, at that time, in that time period. So they were new unaccompanied

minor arrivals for that financial year out of a total of 1313 children

that came to Australia in that period.

DR OZDOWSKI:

Thank you. Perhaps the last thing, are you aware of any unaccompanied

minors in detention centres currently and the limited number of them

who have family members living in the community and are willing to

foster them?

MS McPAUL:

Well - and are willing to foster might be the difficult part. There

is one, as I understand it, one female child at Villawood who may

have some other family members in the community as part of the overall

assessment being made by Department of Community Services in New South

Wales. Those sorts of issues, I think, will also be considered.

DR OZDOWSKI:

There is also a different case which is a case of children with

their mother in Woomera Detention and their father living in Sydney.

Why did you ---

MS McPAUL:

Well, that is not an unaccompanied minor.

DR OZDOWSKI:

Yes, I know, I know, I know, but they are still children and basically

we've got a situation where one parent is in detention, one parent

is free. Why can't the kids be with parent who is free?

MS McPAUL:

Well, look, that is a - as I said, it is not an unaccompanied

minor. The children are in the care of their mother, as I understand

it, if we are referring to the same family unit.

DR OZDOWSKI:

Yes, there is only one ---

MS McPAUL:

I believe there are some other family members also accommodated at

that particular immigration facility as well. So we ---

DR OZDOWSKI:

Wouldn't it be in best interest of a child to be free with one

- with father in the circumstances?

MS McPAUL:

I think there is a number of different - yes, a number of complex

issues about that particular case. It may be something you might wish

to raise outside this forum.

DR OZDOWSKI:

They were all the questions I had during that time. I don't know

whether the Counsel Assisting ---

MR WIGNEY:

I don't have any specific comments - questions. I have some comments

I want to make just in closing in due course but I don't have any

questions.

DR OZDOWSKI:

Okay.

MS GREAVES:

Commissioner, I can give you the number of unaccompanied minors

that are in foster care at present and it is 12. It is 12.

DR OZDOWSKI:

12.

MS GREAVES:

12, plus - in alternative care arrangements with South Australia.

DR OZDOWSKI:

At the moment?

MS GREAVES:

Plus two children who were formerly unaccompanied minors, recently

formerly.

MS McPAUL:

Who remain in the foster care arrangements that were put in place

while they were unaccompanied minors.

DR OZDOWSKI:

Perhaps the last question which relates to this area. It is about

lip sewing. Did you receive or are you in possession of any evidence

which would positively suggest that parents were involved in the lip

sewing of children?

MS McPAUL:

Commissioner, as I understand it, there was some assessment made -

as I understand it, the South Australian welfare authorities indicated

that they had concerns that adults and specifically parents may have

been sewing children's lips together at Woomera and I believe that

was one of the bases upon which they came to make some assessments

about what was happening there. An assessment was undertaken in accordance

with the MOU between DHS and DIMIA and it is my understanding that

we were subsequently advised that there was no evidence either to

confirm or deny.

DR OZDOWSKI:

Thank you. It is what my understanding is. Thank you. Now, perhaps

it would be an opportunity for DIMIA and ACM to put any other matters

on the public record if you would like to do it but before I will

ask you to speak, perhaps I need to mention that it is the job of

Human Rights and Equal Opportunity Commission to inquire into acts

and practices of Commonwealth departments from the point of view of

their compliance with the human rights as is stated in our legislation,

and part of the definition includes the Convention on the Rights of

the Child.

Basically this

what this Inquiry is about, we are trying to find out whether the

acts and practices of the Department of Immigration are compliant

with the Convention on the Rights of the Child and some other instruments.

The Human Rights Commission Act also gives us quite wide ranging powers

how to conduct the Inquiry and the method of this Inquiry is very

much a reflection of these wide ranging powers which we used. Possibly

this flexibility which the legislation gave us requires that we give

you consideration to all evidence which is put before us.

The purpose of

this hearing was to test the evidence provided so far and in particular

to give DIMIA an opportunity to address all the allegations which

were put forward to us during the hearings where other organisations

and individuals participated, and to provide further evidence from

DIMIA in addition to their written submission which we received some

time ago. I must say that their submission wasn't as helpful as I

would have anticipated and it wasn't helpful mainly because it was

referring to one particular point in time and as we have seen over

the last four days, there was a process of change and of significant

change.

Consequently,

their submission didn't show us that. It, I think it should have shown

this.. But in four days I understand it is very difficult to respond

to all allegations so basically you do have this final opportunity

to address the issues if you would like to provide any additional

submission or any additional materials. For example, if you would

like to provide us with materials you prepared for this hearing, maybe

you prepared statistics or diagrams or other materials which would

be useful for us writing the final report.

I would welcome

very much for you to table these materials or to provide them to us

at a later date. As you know, your minister has paid enormous attention

to detail and most of the reports dealing with immigration detention

centres in Australia were criticised by the minister because there

were some errors of fact. So it is consequently my firm commitment

to deliver a report which will have as few errors of fact as is humanly

possible and therefore I need as much of your views on the material

which was provided to us from other sources so I could form a fair

and balanced judgment.

So having said

that, I would like perhaps to invite first the Department of Immigration

to address any outstanding issues which, in your view, are important

and then I will ask ACM to do the same. Thank you.

MS GREAVES:

Thank you, Commissioner. I just observed that not all of the allegations

raised in the many, many submissions that were made to this Inquiry

are capable of being addressed during the four days of this hearing.

DR OZDOWSKI:

I fully agree.

MS GREAVES:

I guess we might want to come back on some of them to you if we feel

a need. In a short period ---

DR OZDOWSKI:

Okay. You would like to have more public hearings?

MS GREAVES:

No. No, thank you, but if there is anything in particular that we

want to draw to your attention ---

DR OZDOWSKI:

Please do.

MS GREAVES:

--- I think we will endeavour to do that in the shortest possible

time. There was just one other matter that I wanted to mention, Commissioner,

and that was just referring to your summing up of our position on

mental health. I don't think that anything that we said was to deny

that the loss of liberty can be stressful for some people and some

families and all we were trying to say, I think, was that it is not

necessarily the only contributing factor.

But whatever

the cause, what we attempt to do in the detention centres is to provide

assistance, to identify the problems and to provide medical assistance,

including assistance from mental health experts including external

specialists for detainees in that situation. I guess the other just

general comment that I would make in relation to our international

obligations is that the Government is of the view that the legislature,

both Commonwealth and State, the law, the administrative procedures

that we have in place and policy documents that we have in place,

do together meet our international obligations under the CROC.

That is not to

say that in individual circumstances there might not be a situation

where an individual acts not in accordance with those requirements

but we have attempted in Government to put in place a system which

is compliant with our international obligations and we believe, the

Government believes that we are, in putting that in place, we have

aimed to meet our obligations under the CROC.

DR OZDOWSKI:

Thank you, Ms Greaves.

MR BROMWICH:

Commissioner, there was one earlier point. Ms Godwin, as you are aware,

was unwell and I think you had made an offer that she could review

the transcript to see if she had any particular further comments to

make. I think it is the Department's wish to take you up on that offer.

It is not that we particularly anticipate anything but we are just

not sure.

DR OZDOWSKI:

Not the exactly - I think you said. My understanding is that the transcript

will be provided to her and that if she wishes she can provide any

comments. However, it is not to say that I will be editing the transcript

or changing it and so on, just to make it clear.

MR BROMWICH:

I took it to be making comments on that as arising particular matters

either arising in her absence or when perhaps she was unwell and not

fully composed as to what was - the implications of something that

was being said. I wasn't talking in terms of a review of the transcript

in that sense. I meant a review in terms of issues raised.

DR OZDOWSKI:

That is fine. Yes, I'm open to additional submissions, comments or

additional materials and I would welcome the Department to - and as

well as ACM - to provide any materials within a reasonable timeframe

here because the issue is we need to finish the report. It is already

overrun its timeframe so I will be trying to finish it as early as

possible.

MR BROMWICH:

Commissioner, a number of questions on notice have arisen during the

past four days. If I could indicate this. The questions that have

arisen fall into three broad categories. Some that we are in a position

to answer now. Some which we believe we will be able to answer within

- or by the end of next week and a small number of questions which

we can't be 100 per cent sure of how quickly they can be answered

because inquiries are still being made to gauge the size of the task

involved.

The most telling

one in that regard is in relation to dealings with state welfare authorities

and what they have sought in relation to particular cases. That is

likely to involve a review of individual files and it is just not

easy to determine in the abstract how time consuming or difficult

that will be. What I propose to do, Commissioner, is to ask, I think,

Ms McPaul if she can deliver the answers to some of the questions

immediately and they are a couple of the matters that were of concern

during the past four days. It won't take very long, if that is a convenient

course..

DR OZDOWSKI:

I don't see a problem but I would like to ask Counsel Assisting

MR WIGNEY:

No, no, I don't see any problem.

DR OZDOWSKI:

You don't? Okay. Yes, okay, we can go and answer the questions

which could be responded to.

MS McPAUL:

There were, as I understand it, a number of different questions

but some of them we can give an update on today. I think there was

a question asked about the number of single men in the compound at

Woomera, currently accommodated in the compound at Woomera with some

of the family groups who are there. I'm advised that today there are

a total of 85 people in that compound, of which 62 are single men.

The remainder are family groups.

DR OZDOWSKI:

Thank you.

MS McPAUL:

I think Mr Kelly is just rightly reminding me that I should put

that in context, that the compound is a very large compound, able

to accommodate some hundreds of detainees and it is my understanding

that the family groups have their own accommodation unit for each

family group within that compound and a separate - and the single

men are accommodated in separate accommodation units. I think there

was also a question asked on the 2nd of December about the rates of

absconding for individuals and families who have been unsuccessful

in receiving a protection visa application.

I have here a

document that I'm prepared to table but in summary it is indicating

that in the 2001-2002 program year, the number of failed protection

visa applicants totalled 6255 and of these failed applicants, 2243

or roughly 36 per cent remained as unlawful overstayers in the Australian

community.

DR OZDOWSKI:

What I was particularly interested is the issue of family groups and

absconding behaviour at different stages of processing, because my

understanding is (from some evidence I have got during my recent visits

to the United States) that family groups during the first stage of

processing before the decision is made, are very unlikely to abscond.

MS McPAUL:

Well, I think that that is probably consistent with the view that

Ms Godwin expressed the other day which is that at the beginning of

the process, people are more likely to make themselves available rather

than at the end of the process when it is known that the outcome that

they were seeking, that is to be able to remain in Australia, is one

that is not likely to be achieved. So there is a correlation there

between, I think, the risk of absconding and ---

DR OZDOWSKI:

Yes, it is exactly the kind of analysis that I'm looking for.

MS McPAUL:

But I think the capacity for the Department to desegregate these

figures to specify family groups is not likely. But I am prepared

to provide this information formally.

DR OZDOWSKI:

Now, your figures relate to the Australian situation?

MS McPAUL:

Yes, they do.

DR OZDOWSKI:

And to authorised arrivals?

MS McPAUL:

To failed protection visa applicants.

DR OZDOWSKI:

But who are authorised arrivals, who arrive here with visas and

---

MS McPAUL:

If they were in the community, it is likely that they were authorised

arrivals ---

DR OZDOWSKI:

Yes, authorised ---

MS McPAUL:

--- as the unauthorised arrivals would, of course, have been detained.

DR OZDOWSKI:

Exactly. Yes.

MS McPAUL:

So we are willing to

DR OZDOWSKI:

So it is a different category again?

MS McPAUL:

Well, it is indicative if you ask for some figures ---

DR OZDOWSKI:

No, no, fine, fine. I'm grateful.

MS McPAUL:

--- in the time frames we can provide that particular piece of information.

MS GREAVES:

Commissioner, we also have just a two page run down of the material

that we have pulled together on the experience of other countries

in terms of absconding rates. You will appreciate that a lot of countries

don't publish this information on the rates of absconding asylum seekers

but we have got some indicative figures from a number of countries.

The United Kingdom, United States, France, Switzerland, Norway, Ireland

and Germany and we thought that may be of interest to you.

DR OZDOWSKI:

Thank you.

MS McPAUL:

In addition, I think you asked on the 2nd of December for some additional

information about the nature of the training courses provided to our

Deputy Managers in preparation for them attending their functions

in the centre. I have here as well a two page summary of the key areas

that the course covers and indicates the key subject areas that those

managers are provided with training on. It includes things relating

to immigration processing and status, importantly, the monitoring

and assessment of ACM's service delivery obligations, contract management

concepts, some practical action that our staff are expected to take,

the role of our staff in the detainee contact and liaison role within

the centre and outside, and some further material on the management

of assets and finances in the centre. So I'm prepared to provide that

as well for the assistance of the Inquiry.

DR OZDOWSKI:

Thank you.

MS McPAUL:

Further, I think there were some questions of a general nature raised

yesterday about the nature of the educational qualifications for some

of the ACM staff presently at the Woomera centre and I'm advised that

on the 30th of September this year, there were, in fact, five teachers

available for the centre and the children in the housing project.

These teachers - I will just call them teachers 1 through 5. The first

teacher I have listed here has a Bachelor of Education and a Graduate

Certificate of Educational Management.

The second teacher

has a Certificate of Registration in Primary Teaching and an Infants

Teachers Certificate. The third teacher has a Bachelor of Education

and a Diploma of Teaching. The fourth teacher has a Bachelor of Education,

a Diploma of Teaching and a Master of Education with a TESL component.

The fifth teacher has a Master of Education, Bachelor of Education

and a Diploma of Teaching, as I understand it. We could, on notice,

provide what we know to be the educational qualifications of ACM staff

at other centres if that would be of assistance to you.

I think it is

important also to say that we've been monitoring the qualifications

of the teachers delivering education for some time now and you might

be aware that on the Department's web site, there has periodically

been placed an updated amenities table that I believe contains some

of this material which you could refer to but we are happy to provide

you with an update if that would be of assistance. I think that is

probably all of the questions that we understand to be on notice and

which we can provide a concrete answer here today.

As Mr Bromwich

said, there is obviously a number of other questions which people

are either working on now or which will take us a few days next week

to compile in a state that is sensible and can be presented to you

so we will undertake to do that.

DR OZDOWSKI:

Yes, please. Please exercise some judgment there, in the area and

in the light of other evidence where you didn't have a chance or didn't

make, or chose not to make initially, your own contribution, to put

your own side of the story because possibly you have got most time

as a single organisation and in terms of public hearings, no other

organisation would have four days but it is about your problems, your

policies and you possibly know best as how to respond to allegations

made.

MS GREAVES:

Commissioner, as we say, we will try to give you an indication

next week if there is anything - any of the questions where a more

complicated answer is required and more research to be done and searches

through documents to be done and if it looks as though it will be

longer than next week, then we will let you know next week, if that

is all right.

DR OZDOWSKI:

I would intend at this stage as to have a draft report ready possibly

some time close to end of February/March and we still need to review

a whole lot of materials but if we receive your materials prior to

Christmas, or most of them, you can be assured they will be considered

in preparation of the report. Now, do we have any other issues, Counsel

Assisting?

MR WIGNEY:

I simply had three largely procedural matters to raise. Firstly,

and it really follows from what has already been discussed this afternoon,

it will have been obvious that not all of the relevant topics that

have been dealt with, for example, in the Department's submissions,

have been dealt with in the course of this public Inquiry. The fact

that we have not specifically, in the course of this public hearing,

addressed a particular topic, or the fact that we have addressed it

briefly, or the fact that we have not, for example, challenged a particular

submission in the Department's written submissions, should not be

taken as any indication or expectation that the Commission does not

take issue with that topic or the submission made by the Department.

No doubt when

the draft report is provided in due course, the Department will have

an opportunity to comment on other matters that have not been raised

in the course of this public Inquiry. Secondly, just in relation to

two matters that have been raised and particularly in relation to

the documentation, firstly in relation to the comment made about the

late notice of the case studies, can I assure the Department that

there has been no attempt to disadvantage the Department in the public

hearing in dealing with those case studies.

The fact is that

the Commission received a large number of documents, as you know,

over the course of the last few days as the red eyes of those that

instruct me will be testimony to, and we've obviously been working

hard to endeavour to put those together in some form that we can deal

with during the public hearing. So there was no - obviously no intention

to disadvantage the Department in that respect and likewise in relation

to the suggestion that a list of documents that would be the topic

of evidence be provided.

Again, there

has been a huge quantity of documents produced and the Commission

staff have spent a considerable amount of time going through them

and there really was no concrete decision as to what documents would

or would not form the, part of evidence and cross examination. So

again there was no intention whatsoever to make things difficult for

the Department in addressing the questions that were put. Rather really

the intention of putting together the bundles of documents was to

make it easier to address the topics in evidence.

They were the

only matters that I wished to raise, Mr Commissioner, other, of course,

to thank the Department for their cooperation and assistance.

MR BROMWICH:

Commissioner, I've been asked to just give a very short form submission

and when I say short, I mean measured in minutes. Just by way of a

wrap up of the Department's position in relation to the public Inquiry

over all. So with your leave that is what I seek to do now. Commissioner,

in addition to Ms Godwin's opening statement, the Department wishes

to submit that, with respect, it is neither valid nor logical to point

to perceived problems or shortcomings with individual cases and conclude

that this applies to most or even any other cases. It's a process

of example, but it does not necessarily apply across the spectrum.

Secondly, the

Department submits that judgments ought not be made about what has

occurred in isolation or out of context. The Department was dealing

with an unprecedented influx of boat people, a fourfold plus increase

and a substantial change in composition from mostly single adult males

to include large numbers of family groups and unaccompanied minors.

A telling statistic in that regard, Commissioner, is that in the 1999-2000

year, a total of 790 temporary protection visas were granted. That

is not processed or people arriving. That is the grant of visas. That

figure, the grant of protection visas, leapt in 2000 to 2001 to 4382.

That means that the Department dealt with, processed and granted 4382

protection visas in the 2000-2001 year alone. That reflects very substantially

where the efforts of the Department were being invested. Moreover,

what the Department was dealing with had to be dealt with in a particular

legal framework so it wasn't as though that volume of work was being

done in some loose or light fashion. It was a very detailed exercise.

Having regard

to the available physical and human resources to the Department, the

Department submits that its performance was reasonable in all the

circumstances, particularly in responding to those rapidly changing

circumstances as they emerged. Commissioner, the Department's approach,

as reflected in its written submissions and opening statement, is

to look to the present and the future with the past being used in

aid to that objective and I noted a short while ago, Commissioner,

you stated that the object of the Inquiry was to see whether the acts

and practices of the Department are compliant with its obligations.

We take that

as a form of encouragement that - to the extent the future is referred

to. It is being referred to in aid of assessing the current compliance.

It should be noted in that regard, Commissioner, that the submission

by the Department in particular was reflecting the state of affairs

in April/May 2002 which was reflecting what the Department saw as

its current compliance with its obligations. That is not to say history

is unimportant but that is the proper use to be put to it.

Finally, Commissioner,

in each of the four case studies we have considered this week, it

needs to be remembered that the great bulk of the period in detention

occurred after the detainees were found not to be refugees. The Department

submits that issues concerning immigration status and removal cannot

and should not be ignored, either as a matter of law or as a practical

and relevant consideration in the approach taken by the Department.

Those are the submissions the Department wishes to make at this time.

Thank you, Commissioner.

DR OZDOWSKI:

Thank you very much. Unfortunately, we can't go home because I just

forgot - I just reminded myself that I didn't ask questions about

food and children so I would like to return to that one. I know you

are ready to go but allow me. It won't take very long. There are a

few issues I would like to ask. First issue is the evidence we got

some time ago that in the year 2000, there was $4 allocation per person

in detention centre for food per day. Is it correct? I heard the figures

six and seven [dollars] in terms of the context of the special housing

project. If you can answer this one now ---

MS McPAUL:

Do you mean money paid to detainees for food or you mean money allocated

for the purposes of providing ---

DR OZDOWSKI:

No. In terms of allocation for purchase of food or allowance for

purchase of food for detainees, it was $4 per day per person.

MS McPAUL:

With respect, I'm not sure that that is a question that is best

put to the Department, mainly because the Department pays a detention

services fee that encompasses a number of components. That fee is,

I think we have mentioned, designed to cover nutrition and other things.

It may be something that ACM may be ---

DR OZDOWSKI:

Yes, I accept your argument.

MS McPAUL:

--- to respond to.

DR OZDOWSKI:

Could I put that question to ACM?

MR RUSHTON:

Can I take that on notice, Commissioner? I don't have the answer here.

DR OZDOWSKI:

Thank you. If you perhaps - if there were changes but my understanding

is that the amount was allocated in the year 2000. So if there were

any changes since then, if you could say. The second issue is special

meals for children. Regularly there was in evidence put to us that

the special dietary needs of children were not catered for both in

terms of quality of food and in terms of timing of availability of

food. I would like to have your point of view about it and possibly

I think ACM possibly would be better in terms of responding to that

questions because you were delivering it.

MS McPAUL:

For which period and for which centres? All of them?

DR OZDOWSKI:

Basically in all centres I heard that complaint. Maybe less, yes,

maybe less in Villawood and Maribyrnong and in Perth but certainly

yes, Curtin, Port Hedland and Woomera.

MS McPAUL:

And the time period?

DR OZDOWSKI:

I beg your pardon?

MS McPAUL:

The time period.

DR OZDOWSKI:

Times were different but the issue is where the special meals

provided for children and if so, during what - in which periods of

time.

MS McPAUL:

I guess just - we could just say something general about that which

is that is my understanding that special food for children and infants

is available in the centres. This includes access to milk for children

and special food is available on request and readily and easily available

on request. So if I can just put that context around it, I'm sure

ACM can provide you with some specifics.

DR OZDOWSKI:

If you look on the transcript and on other evidence, we received

certainly it was not the view of parents who were in the detention

centres. The last one was, to question if special formula milk - which

again we were told on a number of occasions that it was available

but not always -and one of the mothers told us that she had to go

four days without access to formula milk for her baby and that she

had to feed the baby with water and sugar during that time.

MS McPAUL:

Can I just say that in general I am not aware of such an instance

having occurred and it might be of assistance to the Commission to

understand the general arrangements that I understand to be in place

for provision of formula in the centres. As I understand it, the IDS

require that facilities, equipment and professional support to enable

detainee mothers to care for a nursing infant be provided and that

mothers are provided with information and support to encourage them

to breast feed their children.

But where this

is not possible or the mother decides against breast feeding, baby

formula and sterilised bottles are available for detainee infants

and children at all times. To ensure that the formula is prepared

to an acceptable health and sterilisation standard, infants - and

that infants are provided with the correct amount of formula, and

that regular contact is maintained between the health staff and the

parent or parents of the infant - it is our understanding that the

services provider has adopted the following process for providing

instant formula at the centres.

This process

is that health staff sterilise all the equipment required for the

provision of infant formula. The formula is prepared in individual

bottles according to the feeding requirements of the infant or infants

at the IDF health centre. All the bottles are clearly labelled to

avoid mis identification. They are refrigerated at the health centre

or in a similar convenient location in the centre and that parents

or detention officers are able to collect the bottles from the health

centre staff as required.

So that is my

understanding of what the process is generally in the centre. That

is not to say that there may not have been an individual case but

---

DR OZDOWSKI:

You have a theoretical description or a standard description.

MS McPAUL:

But which reflects what ---

DR OZDOWSKI:

What I was hearing in terms of hygiene, accessibility are the issues.

The picture is different and I draw it to your attention to give you

an opportunity to eventually ready the evidence and comment on it.

MS McPAUL:

Look, Commissioner, if you - yes. If you have got the particular

details that were raised with you, we would be happy to hear about

that, perhaps outside this direct forum and provide you with further

advice, if we can, about those cases.

DR OZDOWSKI:

Thank you. Now, I finish with the outstanding questions. So possibly

I would like to put on the record thank you to the Department of Immigration

for providing the thousands of pages under the subpoena. I know the

exercise was very time consuming and staff demanding for you but I

think it was an exercise which will benefit the future work of your

Department. Thank you very much. I officially close this hearing.

Thank you.

ADJOURNED

INDEFINITELY [3.30pm]

Last

Updated 30 January 2003.