Commission Website: National Inquiry into Children in Immigration Detention
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Submission to the National
Inquiry into Children in Immigration Detention from
the Department of the Premier
and Cabinet - Division of Multicultural Affairs - South Australia
INTRODUCTION
This submission provides
information relevant to the treatment of children in detention for the
Human Rights and Equal Opportunity Commission's national inquiry into
the situation of children in immigration detention.
The submission covers
a range of relevant issues, including international covenants on the rights
of children, the emotional health and well-being of children in detention,
educational and recreational opportunities of child detainees, unaccompanied
humanitarian minors, alternatives to detention, as well as the post-detention
needs of asylum seekers. The submission concludes with a number of recommendations
for HREOC to consider.
At present (early
May 2002), there are approximately 1000 unauthorised boat arrivals in
immigration detention centres in Australia and approximately 1700 in off-shore
processing centres (Nauru, Cocos Islands and elsewhere). In the Woomera
Immigration Reception and Processing Centre in South Australia, there
are 220 detainees, of whom 44 are children. An additional 17 women and
children are in an alternative detention trial in the Woomera township
(referred to in the Alternative Detention section).
ISSUES
International Covenants
on Children in Immigration Detention
The United Nations
High Commissioner for Refugees (UNHCR) Guidelines on Applicable Criteria
and Standards Relating to the Detention of Asylum Seekers (February
1999) indicate that the detention of asylum seekers is undesirable and
- in many instances - contrary to the principles of international law.
Specific guidelines on various matters are highlighted, including Guideline
2 (the general principle that asylum seekers should not be detained),
Guideline 3 (the exceptional grounds for detention), and Guideline
6 (relating to the detention of persons under the age of 18 years).
According to Guideline 6, children who are asylum seekers should
"not be detained".
Although the UNHCR
guidelines and international human rights conventions do not constitute
domestic law, they should affect decision-making and are central to the
functioning of a democratic society. In ratifying the United Nations
Convention on the Rights of the Child, Australia has indicated its
support for the rights of children and for children to have access to
resources that provide them with the best possible developmental outcomes.
The Convention
stipulates that:
- States take all
measures appropriate to ensure that children are protected from all
forms of discrimination or punishment (Article 2);
- The best interests
of the child shall be a primary consideration (Article 3);
- Children should
not be separated from their parents against their will (Article 9);
- Child asylum
seekers are to be protected from violence (Articles 19 & 34) and
given the opportunity for recovery from the effects of neglect, exploitation,
abuse, torture and armed conflict (Article 39);
- All child asylum
seekers, whether accompanied or not, should receive appropriate protection,
assistance and education (Article 22);
- Child asylum
seekers are to be provided with a standard of living adequate for their
physical, mental, spiritual, moral and social development (Article 27);
- The detention
of all child asylum seekers ought to be used only as a measure of last
resort and for the shortest possible period (Article 37).
The conditions for
children in immigration detention in Australia are not congruent with
the rights stipulated in the UN Convention and the UNHCR Guidelines.
Emotional Health and Well
Being of Children in Detention
Children in immigration
detention are a vulnerable group in view of their ages, stages of development,
health, well-being and social support needs.
Any children moving
from one culture to another are likely to face adjustment problems, particularly
if the new environment is different from their parents' own culture and
country of origin. However, child asylum seekers are likely to face additional
factors that compound their adjustment difficulties, including abuse,
trauma or armed conflict that they may have witnessed and/or suffered
themselves, inadequate living standards, and difficult circumstances that
they may have encountered during their voyage to Australia.
The emotional health,
as well as physical and intellectual development of children, require
environments that are safe, nurturing and socially and intellectually
stimulating, and conducive to advancing social and emotional development.
Physical environments that restrict free movement, and contain limited
opportunities for education and social interaction, are likely to have
adverse impact on the emotional health and well-being of children and
youth. Child asylum seekers in detention are expected to co-exist with
adults who are strangers to them and many of whom have not been granted
asylum and face removal from Australia. When child asylum seekers remain
in detention centres for extended periods, these situations are exacerbated.
Recent events in
the Woomera detention centre demonstrate that detention facilities are
dangerous places for children. Since there is no separate accommodation
for families, children of all ages have been exposed to adult violence
and conflict within the centre, frequently witnessing powerlessness and
despair, in some instances from their own parents.
Educational and Recreational
Opportunities for Children
According to the
UNHCR guidelines and the Convention on the Rights of the Child, all child
asylum seekers have a right to the same educational opportunities as all
other children in Australia.
At present, education
services to children inside detention centres are the responsibility of
the Australasian Correctional Management (ACM) with guidelines provided
by the Commonwealth Department of Immigration, Multicultural and Indigenous
Affairs (DIMIA). Education services, in terms of curriculum, formal instruction
and other services to children inside detention centres are unlikely to
constitute a comprehensive and formal schooling program that is equal
to that provided to Australian children. In addition, vocational education
and training specifically for senior secondary school-age children in
detention have not been adequately addressed.
Formal communication
between the SA Department of Education, Training and Employment, ACM and
DIMIA could facilitate access to the State school system for children
in detention and would help ensure that education services to children
in detention centres are equal to those provided to other children in
Australia, consistent with UN guidelines and the Convention on the
Rights of the Child. Such discussions have recently commenced.
Unaccompanied Humanitarian
Minors
As a result of intervention
by the State's child protection officers, unaccompanied minors have been
removed from the Woomera detention centre and placed into foster home
care. This was undertaken following an agreement between SA welfare authorities
and DIMIA in December 2001, based on the Federal-State child protection
Memorandum of Understanding.
Another two Memoranda
of Understanding - about the care for unaccompanied minors and alternative
detention arrangements - are still to be finalised.
Emotional Health and Well-being
of Families
Family care can be
promoted through the development of appropriate primary health care education.
An additional focus on the provision of support services, including interpreter
services, is also needed to help detainees manage emotional problems,
including stress, anger, grief and depression. In particular, such support
services are of enormous importance in view of research that suggests
refugees generally experience very high rates of emotional and psychological
problems (Royal Australian and New Zealand College of Psychiatry, Statement
#46).
A new Memorandum
of Understanding is being sought by the SA Department of Human Services
about the provision of health services in the Woomera Immmigration Reception
and Processing Centre, in particular with respect to mental health, public
health and communicable diseases.
In addition, improved
health care for pregnant women requires heightened attention. Pregnancy
monitoring and care, including culturally appropriate and sensitive care
and food are of paramount importance.
Alternative Detention
An alternative detention
trial, called the Residential Housing Project, has been in progress for
several months. The trial involves the relocation of selected women and
their children from the Woomera detention centre to the Woomera township
- whilst their husbands remain in the detention centre. There are 17 persons
(5 women and 10 children) participating in the trial at present, and the
trial is yet to be evaluated.
Unaccompanied child
asylum seekers removed from the Woomera detention centre have been placed
in foster homes. Under the provisions of the Federal Migration Act, foster
families' homes are deemed to be alternative places of detention, with
guardians designated 'directed persons'. The Family and Youth Service
(FAYS) of the SA Department of Human Services has responsibility for this
group.
Federal-State discussions
have commenced regarding schooling for child detainees. The Woomera Immigration
Reception and Processing Centre's management (ACM) has requested consideration
by SA authorities of a possible teaching trial involving junior primary
school-aged detainees. Such a trial would enable child detainees to attend
the Woomera Area School, and negotiations have been initiated regarding
the cost of this activity to the State Department of Education, Training
and Employment.
Transition to community life
A majority of asylum
seekers are granted protection visas and, therefore, children and families
need to be well-prepared for leaving detention facilities. In cases where
parents and children have been apart, counselling is helpful in the re-unification
of families and their transition into the community. In addition to family
re-unification, post-detention life skills programs that focus on employment,
schooling and education for children, accommodation and financial management
are vital to the successful settlement of humanitarian immigrants to Australia.
RECOMMENDATIONS
The conditions for
children in detention in Australia need to concur with the United Nations
Convention on the Rights of the Child and the UNHCR guidelines. In
this regard, it is recommended that:
- Consideration
be given to children and their parents being placed in alternative,
community based accommodation and environments that are safe and provide
them with adequate educational and social interaction;
- Australian State,
Territory and Federal authorities establish agreements to ensure the
best interests of child asylum seekers are upheld in terms of the delivery
of health and welfare services, and that schooling and developmental
opportunities are available to all;
- Pregnant women
be given access to high quality antenatal and perinatal care and services;
- Children and families
be well-prepared for leaving detention facilities through adequate counselling
and post-detention life skills support, which are essential to successful
settlement.
Last
Updated 9 January 2003.