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HREOC Website: National Inquiry into Children in Immigration Detention


Comments on Transcripts of the Public hearings for DIMIA and ACM

by Philippa Goodwin, Deputy

Secretary DIMIA

Comments

on Transcript of the Public Hearing held in Sydney on 2 December 2002

Page 19:

  • To clarify this

    section of the record, I note that the department's Detention Services

    Provider, Australasian Correctional Management (ACM), was not involved

    in production of documents for Notices 4 and 5. This is referred to

    in a later part of the transcript by Ms McPaul (page six, 5 December

    02).

  • As Notices 4

    and 5 were served on the department, and not ACM, documents in the

    possession of the department only were supplied.

Comments

on Transcript of the Public Hearing held in Sydney on 3 December 2002

Pages 19 - 28:

  • I would like

    to make some general comments on matters relating to the Woomera Residential

    Housing Project. These comments also serve as a response to the questions

    taken on notice on this issue.

  • The decision

    to investigate alternative arrangements for the women and children

    in detention was taken by the Minister for Immigration and Multicultural

    Affairs in early December 2000. The issue arose because, in late 2000,

    a number of people and organisations had called for arrangements for

    women and children similar to elements of the Swedish model.

  • When established,

    the Woomera Residential Housing Project was a trial of alternative

    arrangements for women and children. It was intended as a project

    to focus on approaches for the management of diverse populations within

    detention centres.

  • By early 2001,

    broad parameters for a trial of alternative arrangements for women

    and children had been agreed to by the Minister. The trial was intended

    to look at ways in which alternative detention arrangements could

    be made which would provide a more 'normal' existence for children

    with their mother or guardian, whilst still abiding by the terms of

    the Migration Act 1958 (the Act).

  • In relation

    to the exclusion of men and older boys, as described above, this needs

    to be considered in the context that the project was a trial of alternative

    detention arrangements for women and children. The department's submission

    to the Sex Discrimination Commissioner for an exemption under the

    Sex Discrimination Act 1984 notes that it was considered that

    women and children, as minority groups within the detention centre

    environment, may feel vulnerable in a largely single adult male population.

    In addition, from a practical viewpoint, the small number of houses

    involved would create difficulties if adult males were involved. The

    overall capacity of Residential Housing Projects are relatively small,

    compared to the number of people in immigration detention. The need

    to provide separate facilities for males would further reduce the

    number of participants overall who could take part in the arrangements.

  • In relation

    to the participation of older boys, as identified by Ms McPaul in

    her evidence, a key element of the trial was that participation was

    voluntary. As explained by Ms McPaul, for cultural reasons having

    males involved was expected to significantly influence the decisions

    of females who might otherwise wish to participate. Female immigration

    detainees who would be eligible to participate might decide not to

    when they became aware that there might be male detainees accommodated

    at the project. There was also a general reluctance evident during

    discussions with detainees for family members to agree to a housing

    environment in which female family members were living in such close

    proximity to non-familial male detainees. In this way, the participation

    of males and older boys was expected to affect the success of the

    alternate arrangements.

  • An important

    consideration for the Minister and the department in meeting obligations

    under the Act is the requirement to maintain immigration detention.

    Matters such as security necessarily form part of any management decision

    when detaining an individual. Consistent with this position, a history

    of management difficulties or participation in escapes in detention

    facility are relevant factors when considering the participation of

    any women and children.

  • It is not valid

    to make a comparison between detention arrangements in a large detention

    facility and those developed for the Residential Housing Project,

    as Counsel for Commission was seeking to do during the discussion

    of this issue. The circumstances and factors influencing decision

    making in the establishment of accommodation arrangements at Woomera

    IRPC and the Residential Housing Project were and remain markedly

    different.

  • With regard

    to consultation on the trial, including determining an appropriate

    age limit for the participation of boys in the project, the Minister

    and the department undertook a comprehensive consultation process

    from early to mid 2001. This included discussions with detainees,

    the Immigration Detention Advisory Group (IDAG), Family and Youth

    Services (FAYS), relevant ACM staff and the local Woomera community.

  • The level of

    formality in those consultations varied, and records of consultation

    with detainees are not available. Consultations with women as part

    of the Inquiry into Immigration Detention Procedures undertaken by

    Philip Flood AO, included possible alternative arrangements for women

    and children. Feedback from those discussions is included in the report

    of this Inquiry (page 30).

  • In mid 2001,

    departmental and ACM staff held a large meeting with the detainee

    women in Woomera IRPC. At that meeting, there was a discussion of

    the proposed parameters of the trial. The detainee consultative committee

    also discussed the proposed Residential Housing Project. Discussions

    identified that in the Middle Eastern cultures, older boys are considered

    men at approximately age 15 years. In light of the cultural sensitivities

    of including adolescent boys who were approaching adulthood, eligibility

    for the trial was limited to boys up to the age of 12 years.

  • Having considered

    the information and advice from all relevant parties, the Minister

    determined that, for the reasons outlined above, it was not in the

    interests of the project to extend eligibility to adolescent boys

    over the age of 12 years at that stage.

  • Initial community

    consultation meetings were facilitated and held by the Minister's

    Office. While no records of those meetings were made, the attached

    document, a copy of responses to questions raised at consultations

    between the community and Minister in early March 2001, provides a

    summary of issues raised at those meetings.

Pages 55 - 78

  • This section

    of the transcript has dealt with, among other things, the department's

    response to general recommendations by child welfare authorities.

    My colleagues have indicated that there are some complexities in meeting

    general recommendations by State authorities. I would like to make

    some additional comments on these complexities.

  • The focus of

    State authorities is principally on responding to child protection

    matters for individuals in their State, subject to their State's legislation.

    Understandably, such officers are not necessarily familiar with or

    experienced in the interaction of Commonwealth and State law and,

    more specifically, the requirements of the Migration Act 1958

    (the Act) and other relevant Commonwealth Acts. Given this, State

    authorities may make recommendations that press for options that are

    not legally available to the department or fall outside of the parameters

    for effective administration and operation of the detention program

    (such as the release of all or many families from a detention facility).

    Nevertheless, as advised by my colleagues, the department works with

    the State authority to develop suitable options that focus on the

    needs of the individuals and take account of the legal framework.

  • Notwithstanding

    this, there are times when general recommendations are made that do

    seek to take account of the particular legal and policy framework

    of immigration detention. For example, the department is increasingly

    using alternative detention arrangements for detainees with special

    needs (such as women and their children, and unaccompanied minors)

    and State authorities have begun to include such options in recommendations.

    Understandably, organisations not directly involved in the detention

    program can perceive that such arrangements are easy to establish

    and implement, while failing to understand the range of constraints

    on such options under the Act. I described these constraints in more

    detail on 3 December 2002.

  • My colleagues

    have also referred to the documents demonstrating that the department

    is working actively to manage the complex situations described.

  • When an individual

    or family is of concern to the department and the services provider,

    a range of responses take place. This includes regular liaison by

    DIMIA Managers with relevant ACM staff; discussions by phone with

    Central Office, the relevant DIMIA Manager and/or other DIMIA Managers;

    the involvement of State child welfare authorities for assessment

    and recommendations; meetings between ACM and/or relevant experts

    to discuss and explore appropriate options; close monitoring of incident

    reports; holistic review of health of the individual or family, visa

    processing and other issues by Detention Operations Section in Central

    Office; and considerations by senior departmental staff of issues

    and options relevant to the individual or family.

  • All of these

    activities would be taking place within an environment of increased

    observation of the individual or family within the centre, consultation

    with the family (as possible and appropriate) and implementation of

    agreed strategies.

Comments

on Transcript of the Public Hearing held in Sydney on 4 December 2002

Page 34:

  • Under subsection

    235(3) of the Migration Act 1958, it is an offence for unlawful

    non-citizens to engage in work in Australia. For this reason, work

    opportunities and, it follows, professional career or trade qualifications

    are not available to unlawful non-citizens.

  • In relation

    to minors, Articles 28 and 29 of the Convention on the Rights of the

    Child (CROC) do not require State Parties to provide accreditation

    or recognised certificates of completion or attendance. For detainee

    minors, Ms Lumley provided evidence on reports provided to parents

    regarding progress and completion of studies in immigration detention

    centres.

Page 84:

  • I support the

    comments made by my colleagues regarding the issue of payment of costs

    and fees in relation to external schooling of children. The issues

    raised in relation to Maribyrnong IDC are indicative of the difficulties

    associated with accessing external State schooling, particularly at

    the early phase of negotiations. The department, however, has continued

    to focus on this issue with significant achievements evident over

    the course of 2002.

  • As I described

    in my opening statement, arrangements had been put in place to access

    external primary schooling for children in the Maribyrnong IDC since

    1999. This was at a local non-government school.

  • In March 2001,

    a detainee child of secondary school age entered the centre. Initially,

    the child required English as a Second Language (ESL) training. This

    was provided within the centre by ACM.

  • It was determined

    that the child would benefit from transitioning into secondary schooling

    externally, as there were no other children in the same peer group

    within the centre. While continuing to provide ESL training, ACM sought

    to negotiate access to a State secondary school. This was unsuccessful.

  • In August 2001,

    departmental staff became involved in the negotiations with the Victorian

    Department of Education and Training (DET) and approval for access

    was granted. During these discussions with DET, a request for funding

    at the overseas student rate was made. This was the first such request

    for fees to the department or ACM.

  • In September

    2001, while issues relating to duplication of funding provided by

    other Commonwealth agencies and requirements of the detention services

    contract were being resolved, the child in question was released from

    detention. It is important to note that while these discussions were

    held within the department, the child continued to participate in

    educational programs within the centre.

  • The issue of

    educating detainee children in the Victorian State school system arose

    again in relation to particular families in mid 2002. More generally,

    issues related to access to State schooling and appropriate fees to

    be charged have continued to be actively explored and progressed,

    in particular through the development of Memoranda of Understanding

    (MOU) with State education authorities. MOUs with the New South Wales,

    South Australian and Victorian education authorities have since been

    signed. A copy of the MOU with the Victorian Department of Education

    & Training (DET) is attached.

Page 98:

  • I would like

    to make some general comments about separation detention. Separation

    detention is a management tool through which the integrity of Australia's

    visa determination process is maintained. It is an area or areas in

    a detention facility in which new arrivals are kept separate from

    other detainees. Effective separate detention provides the Department

    with the assurance that any claims by unlawful non-citizens to remain

    are put forward without the embellishment or coaching of others.

  • Unauthorised

    arrivals who, after their initial entry interview do not prima facie

    engage Australia's protection obligations or do not make a visa application

    remain in separation detention.

  • Where the department

    requires that detainees be kept in separation detention, the services

    provider ensures that this is achieved so long as there are appropriate

    facilities available within the detention centre. Detainees in separation

    detention continue to have reasonable access to the full range of

    facilities and services, and ready access to departmental staff. In

    reception and processing centres, such as Woomera IRPC, separation

    detention is usually achieved by putting in place arrangements for

    a designated compound. This means that detainees are not isolated

    while in a separation compound.

  • The length of

    time in which a detainee remains in separation detention can vary.

    In my evidence on 2 December 2002, I stated that it is usually for

    a number of days. This is accurate, in particular for the current

    caseload of detainees. Those detainees who arrive at a centre and

    do not raise claims which, prima facie, may engage Australia's

    protection obligations are available for removal and can remain in

    separation detention for extended periods before they are able to

    be removed from Australia. This may occur where there are large numbers

    of people arriving unlawfully, such as occurred in 2000 and 2001.

Comments

on Transcript of the Public Hearing held in Sydney on 5 December 2002

Page 43:

  • This part of

    the transcript raises issues related to the movement of detainees

    to other centres. As indicated by my colleagues, this is only considered

    if the needs of an individual or family cannot be adequately met within

    a particular facility.

  • It is not usual

    practice to consider moving a detainee or detainee family to another

    centre. Such a move would be considered only where compelling reasons

    existed for transfer, such as access to and availability of services

    specific to their needs or circumstances.

  • Transfers are

    administratively and logistically challenging and costly. In considering

    any move to a different place of detention, relevant factors include

    the available places of detention, infrastructure and support services,

    capacity to meet visa processing and reception requirements, and management

    of diverse detainee populations.

  • Detainees may

    sometimes seek a transfer on the basis of having family or friends

    in areas close to other detention facilities (such as Villawood IDC).

    It is not administratively practical, cost effective or equitable

    to move detainees for that reason alone. Such issues, however, may

    sometimes be relevant in consideration of management options for detainees

    with particular needs that cannot be adequately addressed in another

    facility.

Last

Updated 27 March 2003.