Commission Website: National Inquiry into Children in Immigration Detention
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Submission to National Inquiry
into Children in Immigration Detention from
the Western Australian Government
state perspective
The provisions made by Australia to implement its international human
rights obligations regarding child asylum seekers, including unaccompanied
minors.
The mandatory detention of child asylum seekers and other children arriving
in Australia without visas, and alternatives to their detention.
The adequacy and effectiveness of the policies, agreements, laws, rules
and practices governing children in immigration detention or child asylum
seekers and refugees residing in the community after a period of detention.
The impact of detention on the well-being and healthy development of children,
including their long-term development.
The additional measures and safeguards which may be required in detention
facilities to protect the human rights and best interests of all detained
children.
The additional measures and safeguards which may be required to protect
the human rights and best interests of child asylum seekers and refugees
residing in the community after a period of detention.
STATE PERSPECTIVE
The Commonwealth
Government has jurisdiction for immigration policy matters through its
powers under the Migration Act 1958 and the Immigration (Guardianship
of Children) Act 1946 Act. The Commonwealth is therefore fully responsible
for current immigration policy settings, including the mandatory detention
of 'on-shore' child asylum seekers and restricted access for Temporary
Protection Visa (TPV) holders to Commonwealth-funded settlement services
on release from detention.
The Western Australian
Government is obliged to operate within the parameters imposed by Commonwealth
immigration policy. WA Government service provision responsibilities affected
include the care and protection of children; law and order; education;
and health services delivery. Under the WA Child Welfare Act 1947,
for instance, the WA Department for Community Development (DCD) is responsible
for investigating and responding to allegations of child maltreatment
involving children held in immigration detention facilities or released
into the community that are brought to DCD's attention by the Department
of Immigration and Multicultural and Indigenous Affairs (DIMIA) or members
of the community. DCD also provides a variety of support services to unaccompanied
children released from detention as a consequence of its role as guardian
for unaccompanied children .[1]
It is the WA Government's
view that the provision of services by WA Government agencies to 'on-shore'
asylum seekers, including children, should be based on memoranda of understanding
(MOUs) negotiated with DIMIA.
The WA Government's
broad position on matters relating to all families and children, including
people held in immigration detention facilities, family groups holding
TPVs and unaccompanied children living in the community, is based on the
following principles:
- The best interest
of the child is the primary consideration in all actions regarding children.
- Children must
be able to live in a safe environment and to be protected from significant
harm in an environment where their physical, intellectual, cultural
and psychosocial needs are addressed.
- Family care is
the most appropriate form of care for children, and families should
be helped to care for and protect their children.
- Institutional
care is the least preferred option for providing support to children.
The provisions made by Australia to implement its international human
rights obligations regarding child asylum seekers, including unaccompanied
minors.
INTERNATIONAL
CONVENTIONS
The 1951 United Nations
Convention Relating to the Status of Refugees was ratified by Australia
on 22 January 1954, and the 1967 Protocol Relating to the Status of Refugees
was accepted by Australia on 13 December 1973. A refugee is defined in
Article 1A(2) as a person who:
owing to well-founded
fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside
the country of his nationality and is unable or, owing to such fear,
is unwilling to avail himself of the protection of that country, or
who not having a nationality and being outside the country of his former
habitual residence as result of such events, is unable or, owing to
such fear, is unwilling to return to it.
An asylum seeker
is someone who is awaiting the determination of his/her claims for refugee
status. Once a person's claim has been accepted he or she is described
as a refugee. The United Nations Convention and the 1967 Protocol relating
to the Status of Refugees do not require asylum seekers to obtain a visa
to enter a country in which they seek recognition of their status as refugees.
The United Nations
Convention on the Rights of the Child (CROC) embodies the world community's
view of the minimum standards that governments should adopt in the treatment
of all children, regardless of nationality or immigrant status. It is
the most widely accepted of all the United Nations Human Rights instruments
and has been by 191 countries, including Australia on 17 December 1990.
Relevant provisions
of the CROC include:
- States shall take
all appropriate measures to ensure that children are protected against
all forms of discrimination or punishment on the basis of the status,
activities, expressed opinions or beliefs of the child's parents, legal
guardians, or family members [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, except when
competent authorities determine that such separation is necessary for
their best interests [Article 9];
- States shall
take all appropriate measures to protect children from physical or mental
violence, abuse and neglect [Articles 19 & 34] and to promote
recovery and social reintegration of children subject to neglect, exploitation,
abuse, torture or armed conflict [Article 39];
- All asylum seeking
and refugee children, unaccompanied or accompanied, should receive appropriate
protection, humanitarian assistance [Article 22] and education
[Article 28];
- Mentally or physically
disabled child should enjoy a full and decent life and should be given
special care and assistance [Article 23];
- All children are
to be provided with a standard of living adequate for their physical,
mental, spiritual, moral and social development [Article 27];
- Detention of
children should be used only as a measure of last resort and for the
shortest appropriate period of time [Article 37].
In ratifying the
CROC, Australia accepted that it had legally binding international obligations
with respect to the treatment of children. Although the CROC has not been
incorporated into Australian legislation, the effect of ratification of
international instruments in general was raised in Minister for Immigration
v Teoh (1995), in which the High Court held that:
ratification
of a treaty by the State's Executive, while not amounting to a binding
rule of law, does create a legitimate expectation that the Government
and government agencies will act in accordance with that treaty.
The provisions of
the CROC are implemented in Australia through the implementation of the
Commonwealth's Human Rights and Equal Opportunity Act 1986, which
refers to the Convention as a 'relevant international instrument'.
Western Australian
Government Position
The right of every
sovereign nation to protect its borders is unquestioned. The State Government
supports measures to protect Australia's borders against people smugglers,
including the establishment of a proper coast guard facility to patrol
our coastline, as well as the policy of mandatory detention to discourage
the trade in the trafficking of people. However, there is also a need
to get the correct balance between this border protection and compassion.
Compassion should start at once and most obviously with both accompanied
and unaccompanied child asylum seekers, who should be accorded their fundamental
rights in keeping with the CROC. Children should not have to suffer as
a result of the Commonwealth Government's legitimate efforts to protect
its borders. In particular:
- The dehumanisation
of asylum seekers by the Commonwealth Government to create a climate
of fear in the Australian community using factually inaccurate and emotionally
charged claims should cease, in line with the resolution of the Ministerial
Council on Immigration and Multicultural Affairs in April this year.
The Council resolved (Agenda Item 4.1) to discourage the use of inflammatory
and discriminatory language, and encourage the use of positive language
that promotes community harmony and, as agreed during the debate, particularly
by senior levels of Government.
- Although mandatory
detention is required to enable identity, security and health checking,
and ensuring that those who have failed the test of being a refugee
and at high risk of absconding do not abscond, the Government should
promote community understanding of the facts about asylum seekers and
children in particular.
- It is inappropriate
to discriminate against children on the basis of their method of arrival
in Australia.
2. The mandatory
detention of child asylum seekers and other children arriving in Australia
without visas, and alternatives to their detention.
PRINCIPLES
As referred to above,
Article 37 of the CROC states that detention of a child must be used only
as a measure of last resort and for the shortest appropriate period of
time.
Western Australian
Government Position
The Western Australian
Government's position can be summarised as follows:
- As a general
rule, children should be held in detention only as last resort, with
the best interests of each child being foremost in any decision.
- Children should
be held in detention centres for the minimum period possible in line
with the following principles, as announced by the Federal Leader of
the Opposition on 26 January 2002:
- Where children
seeking asylum are unaccompanied by family members, they should
be fostered out in the community as quickly as possible.
- Where children
are accompanied, they should be allowed with their mothers to be
released from the centres into ordinary style housing under appropriate
supervision.
- Where for
some reason a more formal detention setting is required for a child's
family, those families should be separated from the other asylum
seekers and housed in more appropriate conditions.
- Where children
- On arrival, immigration
authorities should identify children promptly, and their general wellbeing,
health and cultural needs assessed. This applies particularly to unaccompanied
children, who may be in detention without siblings or extended family.
- Conditions in
detention centres must meet the special needs of children.
- Decisions about
child placement must relate to the particular circumstances of each
child on a case-by-case basis.
The decision-making
process regarding determination of refugee status and any subsequent appeals
must be expedited to minimise the time children spend in detention. Children
should be out in the community where they can live more normal lives and
not be subjected to further trauma and stress, above that experienced
prior to arrival in Australia. Minimised detention time is particularly
important for unaccompanied children, where consideration of their best
interests on a case by case basis must include decisions based on maintaining
any links the child may have with siblings, more distant relatives or
adults in their cultural group. Where an unaccompanied child has no siblings
or distant relatives in detention, particular attention is required to
ensure that their needs are addressed.
With respect to allegations
of child maltreatment in detention facilities, separation of a child from
his or her family should only be considered when there is no other way
of ensuring the safety of the child concerned. Where this occurs, the
WA Department for Community Development will continue to work with the
child, family members, DIMIA and service providers to ensure the safe
return of the child to the family, where appropriate.
The Commonwealth
Government is tending to deny children seeking asylum their rights under
the CROC by treating them as unauthorised arrivals without documentation
first, and only secondarily as children.
3. The adequacy
and effectiveness of the policies, agreements, laws, rules and practices
governing children in immigration detention or child asylum seekers and
refugees residing in the community after a period of detention, with particular
- the conditions
under which the children are detained;
- health, including
mental health, development and disability;
- education;
- culture;
- guardianship issues;
and
- security practices
in detention.
CONDITIONS UNDER
WHICH CHILDREN ARE DETAINED
Few Western Australian
government agencies are familiar with the conditions in detention centres
in Western Australia. State agencies have no right of access and must
be invited to the centre. It is therefore not possible to assess the general
conditions in the centres, although some comment is made below on specific
issues.
Child Protection
DIMIA maintains the
ultimate duty of care for all people held in immigration detention facilities,
including children. As indicated above, the WA Department for Community
Development (DCD), which has statutory responsibility for child protection,
has no right of entry to the detention centres which are on Commonwealth
land, and must be invited to visit.
DCD has a key role
in assessing and investigating child maltreatment notifications relating
to all children in detention. This includes determining the case classification
and priority of response for such notifications, and providing recommendations
to DIMIA to ensure the safety and best interests of children. DCD assesses
the situation on a case-by-case basis and responds as it would to the
notification of maltreatment of a child living in the community.
Responsibility for
acting on recommendations made by DCD to secure the care and protection
of children rests with DIMIA. DCD does not have the authority to remove
a child from a Commonwealth immigration detention facility. The authority
for such a decision rests entirely with the Commonwealth, following DCD
advice.
In the 2001/02 financial
year to date, DCD has responded to 13 notifications (not individual children)
of child maltreatment in immigration detention facilities in Western Australia.
Three of these referrals were substantiated. In this same period DCD has
responded to 25 referrals to assess and recommend as to the general welfare
of children including unaccompanied minors. Nine of these related to a
request from DIMIA to assess the emotional status of all unaccompanied
children in detention. The remainder related to advice on parenting issues.
To assist DIMIA and
Australian Correctional Management staff to recognise maltreatment when
it has occurred, or to recognise when a child may be at risk of maltreatment,
DCD is able to provide training on these issues. Currently DCD is investigating
the feasibility of providing a Positive Parenting Program for the parents
of children in detention.
Negotiations are
progressing on an MOU that involves clarification of DCD and DIMIA child
protection roles and responsibilities in immigration detention facilities.
Western Australian
Government Position
The Western Australian
Government welcomes the progress being made on the MOU relating to child
protection. It is concerned, however, about the discrepancy between DCD's
statutory responsibility for child protection and its lack of authority
within detention centres. In particular, detention centre staff may lack
the skills and abilities required to identify children in need of protection
and to notify DCD.
Given their extreme
vulnerability, all unaccompanied children in detention should have a guardian
who can ensure that the full range of their needs (relating to education,
health, legal status, safety and general welfare) is met. Such a guardian
must have the authority and capacity to fulfil the role in the best interests
of the child. Since children are being detained in centres under Commonwealth
control, State government officers are not in a position to exercise guardianship
responsibilities effectively.
HEALTH
Public Health
In general, the management
in Western Australia of the prevention and control of communicable diseases
in the detention centre environment for children has been effective and
well coordinated. Children are screened for symptomatic infections and
brought up-to-date with the Australian Standard Vaccination Schedule soon
after arrival. Western Australian Government Public Health Units assist
with immunisation and provide public health advice at their own cost.
The protocols for screening for infections and immunising against diseases
for detainees were drawn up in collaboration between DIMIA, the Commonwealth
Department of Health and Ageing and State and Territory Health Departments.
These protocols provide for a high standard of immunisation and infection
control.
In addition, there
is no indication that the food and water supplied to the detainees has
resulted in any outbreaks of food or water-borne disease.
In summary, the provision
of medical services for the prevention and control of infectious diseases
in the detention centre environment appears to be satisfactory.
Mental Health
The Port Hedland
Detention Centre employs a psychiatric nurse, general practitioner and
clinical psychologist with child and adolescent experience to meet the
mental health needs of children and adolescents and their parents. The
staff consult with the State Mental Health Service at Port Hedland at
their discretion about individuals.
While it is possible
for services such as the Transcultural Psychiatry Unit and the specialist
treatment service for people who have experienced torture or other severe
trauma, located in Perth, to liaise with personnel at the detention centre,
the opportunity for direct referral where required is limited.
Parental mental health
is also important for child and adolescent development. Concern about
the availability of assessment of and treatment for psychiatric illness
in adults and their children in detention has been consistently raised
with the Western Australian Government by the Royal Australian and New
Zealand College of Psychiatrists. Concerns include the lack of routine
screening for mental disorder by detention centre staff, reluctance (based
on cost considerations) of detention centre management to use appropriate
treatment, lack of confidentiality of medical records, and the potential
for selective referral to mental health professionals.
The WA Department
of Health understands that the Port Hedland Detention Centre does not
routinely screen for mental disorder, but relies on individual or staff
referral for an assessment. Staff referral is likely to be biased towards
observable behaviour that presents management problems. Parents may be
reluctant to refer themselves or their children for fear of jeopardising
their refugee status.
The mental health
staff employed by the detention centre are also seen as biased by some
of the detainees. It is known that records are made available to DIMIA
and this is likely to deter help-seeking. The lack of confidentiality
of mental health records has also been reported to the Mental Health Division
of the WA Department of Health.
The North-West Mental
Health Service has experienced at least one incident where recommended
treatment has been questioned on the basis of cost by the Detention Centre's
general practitioner and a less expensive but unsuitable substitute proposed.
Fortunately, it was agreed between the State-employed psychiatrist and
the general practitioner that the prescribed medication would be used.
However, this example indicates the potential for cost considerations
to adversely influence clinical decisions.
Western Australian
Government Position
Extended periods
of detention of children suffering trauma and stress through fleeing their
home country compounds this trauma and stress. A detention centre is clearly
an inappropriate environment for child and adolescent development. For
mental health reasons, it is reiterated that children should be held in
detention centres for as short a time as possible.
The provision of
mental health services to families and children in detention services
is a Commonwealth responsibility. At present, the WA Department of Health
provides a number of services, including psychiatric services, to the
detention centres in WA on request from centre management, without reimbursement
from the Commonwealth and on an ad hoc basis.
Formal arrangements
should be developed between the WA Health Department and DIMIA to ensure
the provision of adequate mental health services to families and children
in detention, and appropriate reimbursement to the State.
EDUCATION
Children Residing
in Detention Centres
In addition to Article
28 of the CROC, referred to above, Article 22 of the UN Convention Relating
to the Status of Refugees requires States to provide the same elementary
education as is provided to residents and other education that is as favourable
as possible.
If children are to
be held in detention, even temporarily, appropriate educational facilities
must be provided. The WA Department of Education has minimal contact with
children while they are in immigration detention centres. The Western
Australian Government is therefore not in a position to comment on any
education programs that may be offered by the Commonwealth within the
detention centres. It seems clear, however, that most children in detention
centres are not receiving the same broad education as other children in
Australian schools.
Some children in
detention are attending school in Western Australia. In 2001 three school-aged
detainees were enrolled in Derby District High School. The students were
released each day from the Curtin Detention Centre and returned in the
afternoon. This year, 16 detainees, five primary and 11 secondary, are
being released each day from the Centre to attend school. The criteria
used by Derby District High School when considering accepting the detainees
are: adequate mastery of English; a medical clearance; and that they are
of school age. Effective English as a Second Language programs within
the Centre are therefore clearly required.
The only Commonwealth
funding provided to the Western Australian Government for the children's
schooling is the General Recurrent Grant of $479 for a primary school
child and $711 for a secondary school student, well below the actual cost
of providing such schooling.
Some of the children
released from immigration detention centres have had little or no formal
education prior to coming to Australia. Those who have attended school
may have been taught in very large classes, by rote, and with very few
resources. The educational environment in Australia is, in most cases,
totally different from their experience.
In the Community
Children who are
granted a Temporary Protection Visa (TPV) and released into the community
are eligible to enrol in a government school.
The Commonwealth,
through the General Recurrent Grant, provides funding for children on
TPVs to attend mainstream classes. They are not, however, entitled to
access the Commonwealth New Arrivals program, which provides targeted
per capita funding for students who are newly arrived in Australia, whose
first language is not English, and who require intensive English language
assistance to enable them to participate fully in mainstream educational
programs. For students to attract this per capita funding they must hold
Australian residency status.
Schools are required
to enrol children on TPVs without the funding support traditionally provided
to refugees under the New Arrivals program. These children are at risk
of not achieving the major learning outcomes of schooling to levels that
would enable them to achieve their potential because they have very low
levels of English. The number of TPV holders that presented for enrolment
in 2002 in Western Australia is not yet established.
In the face of the
Commonwealth's refusal to accept responsibility for providing the funding
required to meet the educational needs of TPV children, the Western Australian
Government has undertaken a number of initiatives:
- The Western Australian
Department of Education has worked with the Conference of Churches (WA),
the Office of Multicultural Interests and the Association of University
Women in an attempt to provide support and services, in particular English
as a Second Language (ESL) tuition.
- A special English
as a Second Language centre, funded by the Western Australian Government,
has been established at Balga Senior High School for unaccompanied minors
residing in close proximity to the school. As of 11 April 2002 there
are 11 students attending this centre.
- Intensive Language
Centres (ILCs) have been requested to accept TPV children on a spare
capacity basis once eligible students have been accommodated.
In addition, all
WA government schools are required to establish and implement procedures
to plan for and provide appropriate educational programs to any children
who have been identified as being at risk of not achieving their educational
potential. Western Australian Government funding is provided to support
the Students at Educational Risk (SAER) Making the Difference strategy.
Any child released from a detention centre and enrolled in a government
school who was experiencing the effects of trauma and detention would
be included in programs provided by the school. As schools are not required
to report to the Central Office of the Department on such programs it
is difficult to ascertain how many children previously held in detention
centres are included in SAER programs.
Western Australian
Government Position
The sooner that children
in detention centres can be engaged in meaningful educational programs
the better, as this will ensure a smoother transition into Australian
schools. The WA Department of Education would be willing to provide or
assist in the provision of appropriate educational programs to children
in detention centres (particularly effective English as a Second Language
programs) should the Commonwealth be prepared to fund such an initiative.
In terms of funding
provided to children in the community, the Commonwealth should not discriminate
between TPV holders and those with Australian residency status. In particular,
intensive English language assistance should be provided on the basis
of educational need. The failure to provide this assistance can impact
not only on the children holding a TPV in achieving educational outcomes
through an inability to fully participate or requiring additional teacher
assistance, but also other children in the class.
SETTLEMENT SERVICES
FOR UNACCOMPANIED CHILDREN
The WA Department
for Community Development (DCD) provides settlement services to unaccompanied
children released from immigration detention in Western Australia. As
of April 2002, the Department has open cases involving 66 unaccompanied
children. The average age of unaccompanied children released in Perth
at present is approximately 16 years.
DCD arranges (typically
on extremely short notice from DIMIA) for children to be met on arrival
in Perth after their release from detention and provided with emergency
accommodation leased by DCD for this purpose. The children are provided
with information and assistance to access community resources, such as
the Association for Services to Torture and Trauma Survivors, Centrelink,
education and training facilities and longer term accommodation. Where
necessary, they are assisted with bond money for rental. DCD also provides
counselling and payments for expenses such as school fees and clothing.
Unfortunately, little
progress has been made on an MOU regarding support services for unaccompanied
children released from detention into the community that is currently
being negotiated multilaterally by DIMIA and a State and Territory working
group.
At present, DCD is
operating according to the terms of a draft MOU with the Commonwealth
dating from 1996, but never signed by the Commonwealth Minister for Immigration.
The draft MOU compensates the Western Australian Government for approximately
29% of the salaries and related costs of DCD field staff working with
unaccompanied children released from detention. No provision is made for
important settlement services such as on arrival accommodation, clothing
and incidentals.
As well as providing
material support and counselling, DCD has developed a number of strategies
to reduce the social isolation unaccompanied children experience following
release from detention. In doing so, the Department is seeking to build
networks with other organisations that provide services to unaccompanied
children through mechanisms such as frequent face-to-face discussions,
e-mail groups and community networking.
DCD strategies include
the following:
- To make it easier
for unaccompanied children to contact DCD staff and to avoid misunderstandings
in DCD reception areas, special purpose message cards to be left for
staff have been designed.
- In addition to
liaising with schools about individual refugee students, DCD staff also
visit schools to provide information to small groups of unaccompanied
children. Where appropriate, teachers attend the discussion to improve
follow-up and reinforce the advice provided.
- A newsletter
that provides practical information about Centrelink and other issues
is produced for unaccompanied children. The newsletter, available in
English and translated into Dhari, is also distributed to schools, DIMIA
and other agencies in contact with TPV holders.
Western Australian
Government Position
There is an urgent
need for completion of the MOU regarding support services to unaccompanied
children released from detention into the community, to ensure adequate
service provision to these vulnerable young people.
The continuing failure
of the Commonwealth Government to meet its responsibilities in relation
to funding these services continues to impact detrimentally on the WA
Government. The MOU should provide for full cost recovery to the Western
Australian Government.
COMMONWEALTH-STATE
ADMINISTRATIVE ARRANGEMENTS
The discussion above
makes it clear that in a number of areas, including education, health
and settlement services for unaccompanied TPV children, there is an urgent
need for formal arrangements between the Commonwealth and State agencies
to ensure adequate service provision to children.
Western Australian
Government Position
Children in detention
centres
The Commonwealth
is responsible for children in Commonwealth detention centres. The Western
Australian Government is willing to provide services according to administrative
and funding arrangements set out in memoranda of understanding. The State
has a role in assessing child maltreatment allegations relating to children
in detention centres that are reported from within or outside the detention
centres; the State will continue to perform that assessment role as part
of its child protection function. In all other matters, there should be
full cost recovery to the State for any services it provides.
Unaccompanied
children in the community
Although the Western
Australian Government has guardianship responsibility for unaccompanied
children released into the community under a delegation from the Minister
for Immigration, ultimate responsibility for the children's welfare remains
with the Commonwealth.
Commonwealth funding
is an area of particular concern. According to the Commonwealth, the Grants
Commission provides the States with funding sufficient to the children's
needs. However, although the Grants Commission potentially redistributes
GST revenue from States where the children's needs are lower than average
to States where the needs are higher than average, the Commission provides
no additional funding in aggregate to cover the additional costs of meeting
Commonwealth responsibilities. While there are other specific sources
of funding, in practice this funding falls far short of the need eg. no
provision for intensive English assistance and only 29% of the cost of
settlement services, as explained above.
The Commonwealth
must recognise the special needs of these children and provide funding
for all the services required to meet them rather than shifting these
costs on to the State. One way of achieving this end would be for DIMIA
to assess needs and purchase State services as required.
4. The impact
of detention on the well-being and healthy development of children, including
The potential negative
impact of the refugee experience upon children is well documented.
Children in detention,
by nature of displacement, are generally deprived of their normal social,
economic and cultural environment, which has the potential to disrupt
their natural development. Many children lose role models in a detention
and refugee situation, their role in the family may change, and the continuity
of experience required for normal development may be further undermined
when the children come into contact with different cultures.
The emotional and
psychological well-being of children in detention is particularly jeopardised
when they are exposed to adult distress, self harming behaviours and violence
[2]. Children are made even more vulnerable by distress
and psychological disorder in their parents, and by the inappropriate
burden of supporting parents and caring for siblings. The trauma experienced
by many children in detention may manifest itself in withdrawal reactions,
muteness, food refusal and sleep disturbance. Newman suggests that trauma
has long-lasting effects on children and is likely to influence the children's
capacity for trust, empathy and attachment. Traumatised young children
are likely to suffer from depression, anxiety and post-traumatic stress
symptoms.
More broadly, research
into early brain development [3] suggests that trauma
experienced during early childhood may increase the likelihood of complex
problems emerging during adolescence and young adulthood, including drug
abuse and anti social behaviour. Clearly the State Government is concerned
about such long-term problems being evidenced in children granted refugee
status, both in relation to the individuals themselves as well as the
impact on the wider community.
As noted by the Federal
Leader of the Opposition in his Australia Day address this year, Australians
are becoming increasingly distressed with the plight of the children held
in detention. All children, regardless of their family background, should
have the chance to be happy and healthy and get a good education.
A detention centre
is an impoverished social, educational and physical environment for child
and adolescent development. There is also the risk of physical and sexual
abuse and for the experience of further trauma due to rioting and other
expressions of adult frustration. The likelihood that children in detention
have experienced extreme stress prior to arrival can be expected to compound
the effects of living in a detention centre.
Western Australian
Government Position
The manner in which
the Commonwealth Government holds children in detention is not meeting
their basic needs and therefore clearly contravening the CROC provisions.
The detention of children for indefinite periods of time is of particular
concern. It is not in the best interests of children to be held in immigration
detention facilities. At the very least, every effort should be made to
minimise the period of time in detention, and conditions within detention
facilities should be conducive to the safe care and protection of all
detainees, particularly children.
If the Commonwealth
is to continue to hold child asylum seekers in immigration detention facilities,
DIMIA has a duty of care to ensure that conditions are not prison-like,
that they meet the psycho-social, educational, health and cultural needs
of children and protect them from exposure to harm. DIMIA also has an
obligation to collaborate with Western Australian Government departments
to achieve these objectives and to advise agencies with statutory responsibilities
for the protection of children when children are considered to have suffered
harm or to be at risk of harm.
In addition, the
importance of accommodating a child in detention with their family must
also be considered including, in relation to unaccompanied children, their
siblings, extended family or more distant relatives in detention with
them.
Because of the impact
of detention on children's development, every effort should be made by
the Commonwealth to minimise the time children spend in detention. The
extended length of detention for some children makes their rehabilitation
post-release very difficult, imposing a heavy and ongoing burden on State
service provision.
5. The additional
measures and safeguards which may be required in detention facilities
to protect the human rights and best interests of all detained children.
The conditions in
detention facilities, the experience of detention and other factors make
it difficult to undertake effective assessments of the well-being of individual
children held in immigration detention facilities.
Recent WA Department
for Community Development (DCD) psychological assessments of the best
interests of individual unaccompanied children held in immigration detention
facilities resulted in the following recommendations to DIMIA:
- Children in immigration
detention facilities should have improved access to psychiatric services
or be transferred elsewhere to receive specialist mental health treatment.
- Immigration detention
facilities should not be 'prison- like'.
- A more personal
relationship between detainees and staff than currently exists would
reduce the 'prison-like' atmosphere for children.
- Minimising processing
time for visa applications and providing regular updates concerning
status would lessen the anxiety of children.
- Increased contact
between unaccompanied children still in detention and the outside community
through outside visits or increased community visits to centres.
- Communication
by unaccompanied children still in detention with their family or other
people in Australia or from their country of origin should be facilitated.
- Improved access
to education services, translators and computer and internet access
within centres.
- Increased access
to counselling provided by people of a similar cultural orientation.
- An independent
advocate should be appointed for unaccompanied children to ensure their
needs are met and their rights upheld.
Western Australian
Government Position
The Western Australian
Government supports the Commonwealth Government taking responsibility
for acting on the above recommendations.
Other measures and
safeguards needed to protect the human rights and best interests of children
in detention are raised under Terms of Reference 3 and 4.
6. The additional
measures and safeguards which may be required to protect the human rights
and best interests of child asylum seekers and refugees residing in the
community after a period of detention.
The current Commonwealth
policy of restricting access to post-arrival services effectively creates
two classes of refugees living in the community:
- those who enter
Australia via United Nations Human Rights processes off-shore have full
access to a comprehensive range of settlement services, including education;
- TPV holders, both
family groups and unaccompanied children, are denied access to many
settlement services. This is a source of additional stress to people
who are often already traumatised as a result of events in their native
land, the journey to Australia and a prolonged period in detention.
It also shifts the financial burden for providing these services to
the State.
Western Australian
Government Position
The Commonwealth
must take responsibility for the consequences of its immigration policies
in this area.
The failure to provide
access to services places significant demands upon community volunteer
groups and Western Australian Government service providers in the absence
of DIMIA-funded settlement services. It also makes it more difficult for
TPV holders to adjust following release from detention with potential
long-term impacts on the State.
The Commonwealth
must recognise the need to collaborate more effectively with Western Australian
Government and community agencies to enable TPV holders to settle into
the community. In doing so, the Commonwealth should:
- ensure that realistic
funding levels are provided to the States and Territories for the extensive
services required to support refugees, particularly both accompanied
and unaccompanied children, as they leave detention and enable them
to become contributing members of the community
- ensure TPV holders
have access to the full range of Commonwealth settlement supports.
One specific issue
of concern is the level of reimbursement DIMIA provides to DCD for support
services to unaccompanied children. Currently this meets only a fraction
of the costs incurred, a matter that requires urgent attention through
completion of an MOU. Another is the lack of provision for intensive English
language assistance.
The Commonwealth
should also consider funding community groups that support TPV family
groups and individuals, such as the Coalition Assisting Refugees After
Detention in WA.
CONCLUSION
In this submission
the Western Australian Government has identified a number of concerns
about the adequacy and appropriateness of the Commonwealth's treatment
of child asylum seekers and other children who are, or have been, held
in immigration detention.
The Western Australian
Government welcomes the opportunity to work with the Commonwealth to ensure
that children who are, or have been, in immigration detention are enabled
to develop their potential and contribute to society.
of the Commonwealth Immigration (Guardianship of Children) Act 1946 empowers
the Minister for Immigration and Multicultural and Indigenous Affairs
to delegate all guardianship powers, functions and duties regarding unaccompanied
children to State and Territory child welfare departments.
L. (2001) Children in Detention - the Burden of Trauma in Developing Practice,
Summer, 2001/2002.
J. & Watt, P. (1999) Child Behaviour Problems A Literature Review
of the Size and Nature and Prevention Interventions. Perth Western Australia:
The Interagency Committee on Children's Futures.
Last
Updated 9 January 2003.