Submission to the National Inquiry into Children in Immigration Detention from
Action for Children, South Australia
Part II - THE MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENT OF IMMIGRATION AND MULITCULTURAND AND INDIGENOUS AFFIARS (DIMIA) AND THE SOUTH AUSTRALIAN DEPARMENT OF HUMAN SERVICES (DHS) RELATING TO CHILD PROTECTION NOTIFICATIONS AND CHILD WELFARE ISSUES PERTAINING TO CHILDREN IN IMMIGRATION DETENTION IN SOUTH AUSTRALIA
Action for Children, South Australia is a community-based organisation that focuses on the rights and interests of children. One aspect of its mandate is to put forward suggestions for changes in government policy that will improve the health and well being of children. The organisation supports the use of the Convention on the Rights of the Child as the basic framework document for seeking to improve the status of children in Australian society.
During January 2002 the Chair of the organisation had an opportunity to visit the Woomera detention Centre. Several families were interviewed in an effort to gain a better understanding of the situation facing children and their families. In addition the Chair and another member of the Coordinating Committee had an opportunity to interview families who had been released on Temporary Protection Visas. The information contained in the first section of this Submission is based on those interviews. In addition to providing HREOC with our observations about the conditions in Woomera, we also set out the views of the detainees about how their situation could be improved.
The second part of our Submission focuses on the Memorandum of Understanding between the government of South Australian and the Minister for Immigration with respect to the protection of children from abuse and neglect. We believe that it is impossible for the Department of Human Services of the State of South Australia to carry out its statutory obligations with respect to the protection of children in light of the powers granted to the Minister. This is particularly true with respect to unaccompanied minors where there is a conflict of interest between the Minister's role as guardian of these children and young people while at the same time being responsible for the policy decisions that lead to their detention.
A third issue addressed below is the failure of the Minister to ensure that the rights of the girl-child are protected and promoted in Woomera. This section of our submission relies on the UNHCR Guidelines for the Protection of Refugee Women.
The final part of our submission is designed to increase awareness of the human rights situation that gave rise to the flight of asylum seekers. In order to understand the nature of the trauma experienced by those seeking our protection, it is necessary to gain a better understanding of the nature of the persecution they have faced. Australia's policy with respect to asylum seekers should be based, at least in part, on recognition that this group is a particularly vulnerable population group.
- The mandatory detention of asylum seekers for prolonged periods of time will inevitably lead to conditions of detention that will harm the physical and psychological well being of children and young people. Therefore we urge HREOC to recommend that mandatory detention of asylum seekers be abolished.
- We recommend that steps be taken to ensure that asylum seekers are properly informed of their rights under Australian law immediately after their arrival and before they file their claim for refugee status.
- We recommend that measures be taken to ensure that asylum seekers have access to legal representation from the initial stages of their detention in line with the views put forward by the UNHCR.
- We endorse the recommendation of the South Australia Coalition for Refugee Children that the privative clause in the Migration Act be removed because it denies asylum seekers access to a fair trial and is a denial of due process. These are rights required to be accorded to refugees and asylum seekers in accordance with international law.
- We recommend that immediate steps be taken to ameliorate the conditions in Woomera and that specialists in child development be employed to advise on and oversight this work. Families should be consulted about their desires and needs before any work commences. Women and girls should be included in decision-making processes.
- We recommend that non-government organisations and individual community members wishing to donate their time to work with asylum seekers be given access to Woomera. We endorse the views put forward on this issue by the South Australian Coalition for Refugee Children.
- In line with the recommendations of the UNCHR with respect to racism and intolerance we believe the government has a responsibility to put in place a public relations campaign to promote public opinion favourable to the asylum seekers.
- HREOC should recommend that some controls be placed on the power of the Minister to make final determinations in the area of abuse and neglect. An independent body with the power to oversight the implementation of recommendations should be created. The Minister should cede authority in the area of abuse and neglect to this body.
- HREOC should recommend that a procedure be put in place to ensure that all unaccompanied minors have a legal advisor who is in close geographic proximity to the child.
- Gender advisors should be appointed for each detention facility in Australia in keeping with the UNCHR Guidelines on the Protection of Refugee Women (the Guidelines apply to the girl child).
- In keeping with the recommendations of the UNHCR guards who are in contact with refugee women should receive training on the rights of women.
- Structures should be put in place in all detention facilities to ensure that women are able to participate in decision-making and planning.
- We recommend that cultural awareness programmes be put in place for all medical staff, whether at Woomera, the Woomera hospital or the medical specialists located at Port Augusta and Adelaide.
- We recommend that measures for cross-cultural training for adjudicators be put in place. Such programmes should include information about the situation faced by women in their countries of origin as well as the specific forms of persecution experienced by women. Women interviewers should be utilised at all stages of the claim determination process.
- We recommend that better procedures be put in place to ensure that the Refugee Tribunal has all pertinent information with respect to the countries of origin of the asylum seekers appearing before it. Migration agents may need training in accessing relevant United Nations documents.
- DIMIA should ensure that ACM management receives appropriate background information about the human rights situation in asylum seekers' countries of origin. This will assist in the proper training of guards and other personnel. All service providers, particularly counsellors, educators and health professionals should receive suitable information about asylum seekers' countries of origin so that they can better understand the backgrounds and needs of their clients.
A - The Conditions in Woomera
- One of the issues most frequently raised by families was the lack of sufficient leisure and recreational activities. Parents of younger children indicated that there was a dire shortage of toys and play equipment. There is very little access to art supplies.
Adolescent girls complained about their inability to pursue hobbies such as sewing and tapestry work. Young men stated their frustration at not being able to play sports such as basketball. Adult families members were interested in having access to board games such as chess.
Parents were very aware that the paucity of leisure and recreational activities meant their children had no physical release for their pent-up energy and that the lack of access to hobby and craft materials meant there was little ability for children to develop their creativity. All of the parents interviewed expressed concern for their children's ability to develop intellectually, physically as well as emotionally.
One young man observed: All you can say is that you are alive, but this isn't life."
- There is a cycle of frustration and depression developing in many families. Parents feel frustrated at the situation of their children and are upset at their inability to improve the situation. This lack of control leads to a sense of hopelessness and then to depression. Children and young people are aware of their parent's feelings. They then try to protect their parents by not letting on that they are feeling upset. Parents are aware that children are trying to act brave in an attempt to make them feel better. To the parents it feels as if they are caught in a black vortex that is dragging them constantly downward.
- Connected to the above is parents' sense of guilt at not being able to protect their children from the negative effectives of being in detention. One mother observed that her "children have lost the opportunity to be brought up in the innocence of childhood." One set of parents said they were worried that their youngest child's only memory so far was of a detention centre.
Many of these children have witnessed acts of self-harm, riots, acts of violence committed in attempts to subdue the riots, the use of water cannons, hunger strikes and lip sewing. Parents are acutely aware that witnessing such events is detrimental to their children's emotional and psychological well-being. They expressed their frustration at not being able to protect their children from these events.
- A problem not often discussed is the tensions that can arise among families when they come from such different backgrounds. For some families their children have to face taunts from individuals of the very groups that may have persecuted them back home. For women and girls whose families do not follow strict Muslim dress codes they are being forced to change their habits in order to avoid being the subject of abusive comments. Little effort is made in the detention centre to discuss these difficult issues and no effort has been made to find workable solutions for what is an obvious source of stress. This issue is discussed in greater detail in Part III below.
- When families live in close quarters there can also be strained relationships over matters such as the appropriate level of discipline for children. At times some of the sole mothers have had to protect their children from what they consider inappropriate disciplinary measures from non-relatives. Some single males have smacked children even when they were aware that the child's parents did not consider this acceptable. We recognise that this is a matter that requires extensive discussion and negotiation but remain concerned that little is being done to resolve these matters to the satisfaction the children and their parents.
- There was also some disquiet about the behaviour of a small number of guards who either humiliated parents in front of their children or who made inappropriate comments about a child's behaviour directly to the child concerned sometimes in front of the child's parents. This nature of the behaviour makes it emotionally abusive.
- Several of the children interviewed were on anti-depressant drugs. One adolescent girl, an unaccompanied minor, was suicidal at the time of the interview. This interview was particularly distressing as this young woman continuously asked both the interviewer and the interpreter to assist her to kill herself. It took 45 minutes to calm this young woman. She found it impossible to believe that she had any real future. She had not been given any information about the processing of her claim or efforts to trace family members.
Two of the families interviewed indicated that their children, ages 11 and 12, were bed-wetting.
One child's parents were very disturbed by their child's artwork. Their child had made a coffin from play-doh. When asked to explain the significance of the coffin, the child said that if placed into the coffin this would mean that the child would be taken out of the centre to be buried. This would be a chance for the child to run away. The parents are understandably concerned that the child's symbol for escape is a coffin.
Some parents expressed concern about the fact that children see illness as the only way of getting out of the Centre. On occasion some children have had to be taken to outside doctors and the children view these trips as an opportunity to have a brief escape from detention.
- A few of the parents indicated that their children had expressed their anger to them about the situation and accused their parents of being responsible for what was happening to them. If is difficult for younger children to understand their parents reasons for seeking to flee their country of origin. One child told their mother: "You promised me many things. Why did you tell me lies if you knew we were coming here?"
- The amount and quality of education provided to children was another major source of frustration for those interviewed. Many children had had little formal education since arriving at Woomera. Some had had two hours per day in the period preceding the 2001 riots. Parents and older children indicated that the lessons were not always well organised. Classes did not cater for the needs of different groups. Some children had received a high quality education in their country of origin while others had had little access to formal education. The differing needs of these groups had to be addressed. Parents and older children who had had access in their countries of origin to English language classes were very disappointed in the quality of the instruction they received at Woomera stating that the lessons did little more than cover the alphabet. Many children stopped going because of this. One adolescent observed that she thought the teacher did not understand that the children's failure to participate was caused by the fact that the lessons were "too simple."
Older children expressed their worry about the fact that the lack of schooling will affect their future prospects in life. They want to be in school and they want the chance to succeed in life.
- A common complaint was the inability to access appropriate medical care when needed. One mother of three realised she was having a miscarriage, but was told by a nurse that she was mistaken and that she should take a Panadol. The mother did in fact have a miscarriage. There is a sense among the parents that they are not being listened to and that they are being treated as if they have no understanding about their own health. There is often a delay in telling detainees about the results of medical tests they have undertaken.
Some of those interviewed wondered whether the failure of ACM management to carry out recommended tests was a cost saving measure. They expressed the view that if tests were postponed until after their release, then ACM would not be responsible for the cost. (This proposition was not put to ACM management and we do not suggest that it is a fact, rather we report it here as it indicates the views held by the detainees.)
Another view expressed by some detainees was that the government did not want to pay for complicated medical procedures until it was clear that the person would be granted refugee status. One person was very angry about the failure to provide her with appropriate treatment and said she felt as if the government didn't care if she lived or died. (Again no attempt was made to discuss this situation with government representatives. The information is being recounted in order to give HREOC information about the state of mind of the detainees.)
A few of those interviewed expressed their disquiet at the behaviour of the guards who they claimed sometimes delayed their access to medical treatment. They felt as if the guards were using access to the medical centre as a measure of control.
- Another area of concern was the lack of transparency in the visa application process. Those interviewed indicated that they were given very little assistance in putting forward their claims. Some of the interviewees questioned the process by which the government obtained country information. They felt their countries of origin were being asked to supply information about their particular situation, and observed, what country would admit that it intended to persecute someone if they were returned to that country. One interviewee stated: "How could anyone believe a government would give information showing that it violated people's rights?
Another couple stated that they found the visa processing system illogical. They are being asked to supply proof about their treatment in their country of origin, in particular proof about the treatment of their religious group, yet the only proof they could get is from the government. They pointed out that the government is unlikely to admit that it would hang them or stone them if they returned.
It appears that few of the interviewees had had a full explanation of the visa application process and that there was a real lack of understanding about the criteria the Refugee Tribunal used to make its decisions. One family could not understand how some members of their family had been granted Temporary Protection Visas while other members of the family had been refused visas.
- The failure of ACM to try to accommodate the interviewee's desires to have some culturally appropriate food was commented upon by a number of the interviewees. While recognising that they could not have familiar foods on a regular basis, the interviewees wondered why it would not be possible to have special meals from time to time. It was obvious that all of the interviewees are experiencing elements of homesickness. There are many things they miss about their former lives and having the occasional special meal would help alleviate some of their longing for things familiar. Related to this is the desire some families expressed to be able to cook some of their meals in their living quarters. This would give them some sense of control over aspects of their lives.
- There is no effective complaints mechanism at Woomera. Interviewees indicated that there were few opportunities to make their views and concerns known. Occasionally DIMIA officials asked some asylum seekers if they had any problems but little changed when people did complain. There was never any feedback about the steps that had been taken to bring their concerns to the attention of ACM.
- Some of those interviewed expressed their belief that they were being punished without being given any reasons for that punishment. One of those interviewed said he felt that there was a lack of justice in the Australian legal system
B. The Need to put a human face to asylum seekers
It appears from reports in the media and the comments made on some talkback radio programmes that parts of the Australian community have a negative impression of the asylum seekers. HREOC when drafting its final report should make an attempt to put a human face to the asylum seekers. We believe that the Australian community needs to be made aware of the dire situation many of the asylum seekers faced in their countries of origin. Furthermore it is important that we learn more about the individual life experiences of the asylum seekers.
Many in the Australian community would not appreciate that some of the asylum seekers come from backgrounds that are not dissimilar to their own. These were middle class families whose children went to school, played in parks, learned to work with computers and engaged in sporting activities. They were families who shared holidays together, went on excursions on their days off from school and work and enjoyed being with their extended families.
These families did not leave their countries of origin because they wanted a better life. Most of them will not be able to achieve the economic prosperity here they had in their countries of origin. Some left because their efforts to have their countries of origin become more democratic led to them being bashed and/or arrested. A number of the families interviewed had had their passports confiscated by the security police in their countries of origin. In some families, children witnessed parents being beaten by the security police.
Other families left because they faced acts of persecution as a result of their religious beliefs. With respect to two of the families interviewed it was the children of those families that suffered particularly heinous acts of persecution. Families had to endure watching their children being targeted by schoolmates. These families lived in circumstances where they could not rely on the legal system to protect them.
Some of the asylum seekers came from rural backgrounds and had little access to the comforts we take for granted. They had to endure years of persecution from the Taliban who viewed them as cannon fodder.
None of these families had any knowledge of Australia's policy with respect to asylum seekers. They were desperate to leave and those organising their trips told them that Australia was a country that respected diversity. In their desperation these families wanted to believe the positive things they were hearing about Australia.
During their voyage they endured horrendous conditions. Some were in boats that had not been stocked sufficiently with food and water. One family indicated that during their voyage they did not have water for the final 4 days they were at sea. Others were in boats that leaked so badly that they had to sit in seawater for the entire trip. Conditions on these boats were unsanitary. A number of the children developed gastroenteritis.
These families feel as if they are being punished because they had faith in Australia's willingness to treat them fairly. As a society we need to ask ourselves whether this is the way we want to treat desperate people seeking relief from persecution, the majority of whom will one day become our fellow citizens.
C. Recommendations for Improving the Conditions at Woomera - the Voice of Asylum Seekers
During the interviews conducted by the Chair of our organisation, the interviewees were asked their views about how the situation at Woomera could be improved. Below are the suggestions they made.
1. An investigation should be undertaken with respect to the conditions at Woomera.
2. Detainees should be treated with respect.
3. Children should be given more toys and items such as bicycles.
4. There is a need for more activities to be available for younger children. A pre-school should be established for children under 5.
5. Children should have access to a proper playground.
6. Child should not be detained in a place where there is no access to nature. Children need to see plants, trees and flowers during the early stages of their development.
7. There should be swimming facilities and movies; asylum seekers should be taken out of Woomera in small groups for picnics and other outings.
8. Efforts should be made by groups working for asylum seekers to give positive pictures of them, as the government is only giving negative pictures of them.
9. ACM should not be in charge of the delivery of health care services or education. These services should be delivered by people with expertise in the management of health care and education.
10. ACM's management of Woomera should be more carefully monitored.
11. Adult asylum seekers should have access to employment or some other form of constructive activity. People came prepared to work hard and they find it frustrating that they spend their days with nothing to do.
D. Messages to the Australian People from the Asylum Seekers
Asylum seekers were asked what they would say to the Australian people if they had a chance to speak directly to them. Their responses are set out below:
- "I will tell them I came for peace and human rights. Have a look at my room. I have a row of pictures. I can see nothing else. It is like a dog's house. If I were to get of here I would serve this society. I am very disappointed with the government."
- "What we have encountered at Woomera is a terrible human rights situation. We regret our decision to come to Australia."
- "We were persecuted because of our religion in (country of origin). We escaped and wanted to start a new life. We came to you and your government is persecuting us. We are persecuted because of our religion. People in our country think we are untouchables. Why do you suggest we go back when we would have not right to breathe there?"
- "Many of the problems people see on the TV screens are the result of detainee frustration. Counselling is needed to help people cope with the loss of self-esteem and self-respect. The frustration is agonising. Please save detained families. We came from families, good families. We are suffering."
- "How can the Australian government say this is a lifestyle choice when we gave up everything to come to Australia? I believe you (referring to Australians) are nice people, peace seekers, you support unity. If you come to see us behind the fence, think about how you would feel. Are you aware of what happens here? Come to see our life."
- "When I left my country I was ready to be loyal to Australia, now I am disappointed in this country. I would like to go somewhere else, like New Zealand."
- The mandatory detention of asylum seekers for prolonged periods of time will inevitably lead to conditions of detention that will harm the physical and psychological well being of children and young people. Therefore we urge HREOC to recommend that mandatory detention of asylum seekers be abolished.
- Steps should be undertaken to ensure that asylum seekers are properly informed of their rights under Australian law immediately after their arrival and before they file their claim for refugee status. 
- Measures should be taken to ensure that asylum seekers have access to legal representation from the initial stages of their detention in line with the views put forward by the UNHCR. 
- We endorse the recommendation of the South Australia Coalition for Refugee Children that the privative clause in the Migration Act be removed because it denies asylum seekers access to a fair trial and is a denial of due process. These are rights required to be accorded to refugees and asylum seekers in accordance with international law. 
- That immediate steps be taken to ameliorate the conditions in Woomera and that specialists in child development be employed to advise on and oversight this work. Families should be consulted about their desires and needs before any work commences. Women and girls should be included in decision-making processes.
- That non-government organisations and individual community members wishing to donate their time to work with asylum seekers be given access to Woomera. We endorse the views put forward on this issue by the South Australian Coalition for Refugee Children.
- In line with the recommendations of the UNCHR on racism and intolerance we believe the government has a responsibility to put in place a public relations campaign to promote public opinion favourable to the asylum seekers. As stated by the UNHCR "[p]olitical will and resolute leadership are needed to de-dramatize and de-politicize the essentially humanitarian challenge of protecting refugees and to promote better public understanding of refugees and their right to seek asylum." 
Part II - THE MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENT OF IMMIGRATION AND MULITCULTURAND AND INDIGENOUS AFFIARS (DIMIA) AND THE SOUTH AUSTRALIAN DEPARMENT OF HUMAN SERVICES (DHS) RELATING TO CHILD PROTECTION NOTIFICATIONS AND CHILD WELFARE ISSUES PERTAINING TO CHILDREN IN IMMIGRATION DETENTION IN SOUTH AUSTRALIA
The MOU was signed at the behest of DHS because of its desire to fulfil its statutory mandate to protect children from abuse and neglect. The second recital paragraph states that DIMIA and DHS agree to:
"Ensure appropriate notification and referral of all cases of possible child abuse or neglect which occur at places of immigration detention in South Australia to the DHS."
Such notification and referral can only take place if guards and other personnel at places of detention such as Woomera are properly trained and are willing to report their co-workers. It cannot be assumed that all cases of child abuse and neglect will be brought about through the actions of parents. Yet it is difficult to imagine that ACM personnel will report their co-workers for inappropriate behaviour such as the use of excessive discipline or engaging in acts that would fall under the Children's Protection Act definition of emotional abuse. The information obtained from some asylum seekers suggests that there are guards, albeit a small minority, who are engaging in forms of behaviour that would fall under the purview of the Children's Protection Act.
A major hurdle to effective action by DHS is Section 4 of the MOU that gives DIMIA definitive authority in these matters. This section sets out the roles and responsibilities of the two agencies. The relevant paragraphs are as follows:
4.1 DIMIA maintains the ultimate duty of care for all immigration detainees. That is, the ultimate responsibility for the welfare of unlawful non-citizens in immigration detention remains with DIMIA. The day-to-day operations of detention services have been contracted out by DIMIA to a private detention services provider.
4.2 DHS has a legal responsibility to investigate child protection concerns for children in immigration detention in South Australia. However, any interventions undertaken to secure the care and protection of detainees must be actioned by DIMIA. DIMIA will consider carefully DHS recommendations to ensure that the best interests of the child are protected.
Given these essential terms of the agreement there is no possibility of ensuring that when abuse or neglect is occurring as a result of the actions of either ACM or DIMIA that steps will be taken to stop the abuse or neglect.
Of great concern is the role of the Minister as guardian of unaccompanied minors. There is a conflict of interest between the Minister's role as guardian and his position as the detaining authority of the same minor. It would be impossible for the Minister to make decisions in the best interests of an accompanied minor that conflicted with a Ministerial policy. Further these dual and contradictory roles mean that unaccompanied minors have no effective recourse when the acts of DIMIA or ACM put their lives or health at risk. If a guardian other than the Minister were responsible for a situation that pushed children to acts of self-harm and suicide we would have no difficulty in saying that the guardian should be dealt with under the Children's Protection Act. We would also use the law to protect children whose parents denied them an education or access to health services.
Because these children are in asylum detention there is no effective control over the acts of the Children's guardian both because the Minister is a Commonwealth officer  and because Commonwealth legislation gives the Minister absolute authority over the lives of these children. This is not a situation that should be allowed to continue.
HREOC should recommend that some controls be placed on the power of the Minister to make final determinations in the area of abuse and neglect. An independent body with the power to oversight the implementation of recommendations should be created. The Minister should cede authority in the area of abuse and neglect to this body.
The UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999) state, "minors who are asylum seekers should not be detained." The accompanying notes to this Guideline state "[a] legal guardian or adviser should be appointed for unaccompanied minors." This is not done in Australia. HREOC should recommend that a procedure be put in place to ensure that all unaccompanied minors have a legal advisor who is in close geographic proximity to the child. This advisor should be able to provide the unaccompanied minor with advice about their claim for asylum as well as their rights under Australian law.
With respect to the children detained with their families, there is another issue to be considered by HREOC. Although these children are nominally under the control of their parents the situation of the family means that it is in fact the Minister who has the daily control over the lives of the children. If this were a school, juvenile detention facility or some other institution for children state criminal and child protection laws would come into play. Again, the status of the Minister makes it difficult for DHS and the South Australian police to carry out their responsibilities to children who are asylum seekers. From the information available in the public domain it is clear that children's lives and well-being are being placed at risk because of the conditions of asylum detention. Children are suicidal, engaging in acts of self-harm and experiencing severe levels of depression. The conditions of detention are the cause of development delay in a significant number of children. If any other institution's behaviour were such that it caused a child to be suicidal we would have no hesitation in saying that those acts amounted to child abuse. Similarly parents who failed to send their children to school or who denied them access to appropriate medical treatment would have action taken against them for abuse and neglect. In this situation because it is DIMIA that is engaging in these acts neither the parents nor DHS have any recourse.
Recent events in South Australia have highlighted the lack of any effective remedy for children and young people in asylum detention. A review of Woomera was undertaken by experts in the field of child protection who found the conditions at this facility to be unacceptable. The Minister responded by saying the allegations were exaggerated. Given the Minister's powers it is now impossible for DHS to pursue negotiations with the Minister and DIMIA. Having an independent body, as recommended above, that could properly assess the status of children and order remedial action is necessary if we wish to protect children asylum seekers from abuse and neglect.
Women and girl children have been recognised by the UNHCR as a particularly vulnerable group. They may have special needs in line with the particular forms of persecution they had to endure or because they are travelling alone and may have had to endure persecution or harassment during their flight.  Gender advisors are considered essential if the needs of refugee women and girls are to be met.  We are of the view that gender advisors should be appointed for each detention facility in Australia.
A key reason for having designated staff members focus on the needs of women and girl children is to ensure that their voices are heard both within their communities and by centre management. Women refugees no longer have access to traditional structures that allowed them to express their views. Their understanding of the needs of their families, particularly their children, are crucial if services are to be delivered in the most effective manner.
According to the Guidelines issued by the UNHCR women are to be consulted both about their protection needs and the types of services that would best meet those needs. The underlying reason for this is that "[p]rogrammes which are not planned in consultation with the beneficiaries, nor implemented with their participation, cannot be effective."  Also of importance is the role participation has in overcoming feelings of isolation and frustration. Refugees no longer belong to structured communities and they lack a sense of control over their own lives. Therefore it is vital that structures be put in place in all detention facilities to ensure that women are able to participate in decision-making and planning.
One of the issues noted by the UNHCR is the potential for tension when groups with different social outlooks are housed in close proximity. This has particular relevance to Woomera where girl children from religious minorities who suffered harassment in their countries of origin are put in a situation where they have no choice but to have daily contact with members of the majority group who may share the prevailing attitudes in their societies towards the group.
The cultural backgrounds of some girl children have not been taken into account by ACM management in the housing of unaccompanied minors. One adolescent female unaccompanied minor was housed in a predominantly male compound despite her repeated requests to be moved. She was subjected to daily taunts from the males in the compound because of their own cultural prejudices against unaccompanied women. This situation should never have taken place. UNHCR has recommended that guards who are in contact with refugee women receive training on the rights of women. We believe that such a programme should be implemented at all detention facilities in Australia.
Another issue of importance to women is the provision of appropriate health services that are culturally sensitive. Counselling and gynaecological services must be provided in manner that makes them accessible and non-threatening. It does not appear that training is offered on a routine basis to all medical staff having contact with asylum seekers with respect to the cultural dimensions of their work. We recommend that cultural awareness programmes be put in place for all medical staff, whether at Woomera, the Woomera hospital or the medical specialists located at Port Augusta and Adelaide.
The UNHCR has also noted the importance of providing adequate training to adjudicators with respect to the rights and problems of refugee women. Such training should include information about the status of women in their countries of origin and the various forms of persecution they face. Adjudicators should also receive training with respect to cross-cultural issues in interviewing refugee women. Further at the initial stages of assessing a family's claim for refugee status women should be interviewed separately to ensure their claims are properly assessed. Women interviewers should be used throughout the determination process. None of these recommendations have been meaningfully implemented by the Australian government. We therefore recommend that measures for cross-cultural training for adjudicators be put in place and that women interviewers be utilised at all stages of the claim determination process.
There are a range of other issues addressed by the Guidelines on the Protection of Refugee Women that are pertinent to this inquiry and we urge HREOC to consider the Guidelines carefully when making its final report.
Accurate country information is necessary for several reasons. Firstly to gain a better understanding of the situation asylum seekers endured in their countries of origin in order to better address their psychological needs. Secondly to ensure that migration agents are assisting asylum seekers to put before the Refugee Tribunal all relevant material so that the Tribunal can make a realistic appraisal of their case. Thirdly to allow those affected by the decision-making process of the Tribunal to have faith in the validity of its decisions. Fourthly to ensure that even if a claim for asylum is rejected that Australia's obligation of non-refoulement is met. This obligation is nonderogable.
It is not clear to us that the country information being relied upon by the Tribunal accurately reflects the situation in the countries of origin. Many of the families we spoke with were anxious about the quality of the material being considered. They also had concerns about the Tribunal's ability to assess the information. In particular a number of families had serious concerns about the Tribunal's understanding of the concept of persecution and its ability to relate specific abuses to a climate of impunity that may exist in an asylum seeker's country of origin.
The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has stated that States have an obligation to conduct exhaustive and impartial investigations into allegations of human rights violations, to identify and bring to justice the perpetrators, to grant adequate compensation to the victims or their families and to take effective measures to avoid the recurrence of such violations. 
The Special Rapporteur further noted that in most of the countries where violations of human rights were committed and particularly those of the right to life, authorities have failed in their duty to bring perpetrators to justice, which in some countries has led to a climate of impunity.  The Special Rapporteur stated that she considers impunity to be the principal cause of the perpetration and encouragement of human rights violations. Moreover, the Special Rapporteur emphasised that "the manner in which a Government reacts to human rights violations committed by its agents, through action or omission, clearly shows the degree of its willingness to ensure effective protection of human rights". 
The Special Rapporteur has commented that in most situations, impunity is the result of a weak and inadequate justice system, which is either reluctant or unable to investigate and prosecute cases of human rights violations.  She has stated that "while in some countries the judiciary is strongly influenced by or directly subordinate to the executive authorities, in others court decisions are flatly overruled or ignored by the law enforcement authorities or the armed forces".  The Special Rapporteur further mentioned that human rights violations might also go unpunished because the sex religious belief, ethnicity or sexual orientation of the victim is used as a justification of the crime.  Moreover the Special Rapporteur noted that in certain cases impunity is the direct result of laws or other regulations explicitly exempting public officials or other State agents from accountability or prosecution.  The Special Rapporteur explained "in certain countries the law allows the heirs of a murder victim to "forgive" the perpetrator, thereby allowing impunity for the crime. The offender instead pays compensation to the heirs of the victim. This law that follows the Islamic principles of qisas and diyat, operates in favour of the more powerful party, thus allowing perpetration of violations of human rights impunity. Often the victim's heirs are intimidated into a compromise and to "forgive" the accused party." 
The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions observes that "one of the root causes of the occurrence of serious human rights violations, including extrajudicial summary or arbitrary executions, is the deeply entrenched culture of impunity which continues to plague the legal system in many of the countries struggling with serious human rights problems. The inability or reluctance on the part of the authorities to bring an end to impunity for human rights offenders seriously undermines the rule of law, which is one of the most fundamental principles of a democratic and functioning society".  The Special Rapporteur went on to say that "a culture of impunity widens a gap between those close to the power structures and others, who are vulnerable to human rights abuses".  Moreover the Special Rapporteur states, "human rights protection and respect for the rule of law are central to lasting peace and stability". 
Evidence featured in Thematic Reports of consistent human right violations occurring in Iran, Iraq and Afghanistan indicates that impunity for these serious abuses has become systematic and institutionalized in these countries.
In Iran, impunity is encouraged by problems related to the functioning of a non-independent judiciary that is subject to government and religious influence. The US Department of State has commented that "the Government uses the judiciary to stifle dissent and obstruct progress on human rights"; and that the court system "serves as the principal vehicle of the State to restrict freedom and reform in the society". Impunity in Iran is also the product of laws and systems of justice, which allow perpetrators of human rights abuses to avoid accountability and escape prosecution. The UK Home Office has reported that a system of qisas (retribution) and diyat (religious penalty/ "blood money") has been institutionalised in the Iranian legal system.  Although retribution in kind and vendetta are allowed under qisas and forms of compensation paid to victims or their families permitted by diyat, the Iranian penal code nevertheless recommends forgiveness - as the act of forgiveness pleases God. Nevertheless as the Special Rapporteur on Extrajudicial Summary or Arbitrary Execution has stated, "there should and can be no impunity for serious human rights abuses, particularly violations of the right to life". 
In the case of Iraq, the Special Rapporteur on Iraq has spoken frequently on the systematic abuses of power that occurs in this country.  The Special Rapporteur has observed that the security apparatus and members of the Baath Party have been allocated elevated and protected status essentially making them immune from prosecution. The Special Rapporteur has commented that impunity, even for serious assaults and extrajudicial killings, encourages the abuse of power and ultimately results in widespread violations of the rights to liberty and to respect for personal security. The Special Rapporteur has stated "such serious abuses of power over a period of decades, along with the effective proscription of dissenting opinion, expression, association or assembly have acted to render Iraqis essentially compliant. In sum, the essence of human rights, i.e. respect for the dignity of the individual human being, has been and continues to be systematically and completely violated in Iraq". 
In regards to Afghanistan, the Special Rapporteur on Afghanistan has spoken of a "crisis of impunity" occurring within the country.  The Special Rapporteur has observed that the continued armed conflict "is marked by a recurrent pattern of massacres which constitute gross human rights violations and breaches of international humanitarian law, in some cases amounting to crimes against humanity".  Furthermore the Special Rapporteur has commented that the warring parties repeatedly committed serious violations of human rights and humanitarian law, including large-scale killing of civilian, summary executions of prisoners, aerial bombardment of civilian targets, indiscriminate bombing, rocket and other artillery attacks on areas populated by civilians, rape and torture, burning of houses, looting and destruction of sources of livelihood and property which, in a number of cases, reflect an intention to impose collective punishment".  The Special Rapporteur acknowledged that "it is now increasingly recognized that the impunity enjoyed by those who have been responsible for ordering and carrying out the massacres and summary executions and the absence of accountability for such gross violations of human rights and grave breaches of humanitarian law has contributed to the repeated occurrence of such violations". 
If as the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has suggested and the manner in which a Government reacts to human rights violation committed by its agents clearly represents the degree of its willingness to ensure effective protection of human rights;  then the Governments of Iran, Iraq and Afghanistan have clearly shown a high degree of unwillingness to ensure the protection of human rights.
Religious Intolerance and Minorities- Iran
What follows is an overview of the situation in Iran as gleaned from various UN reports over the past five years. We have highlighted this issue, as a number of those awaiting status determinations are members of religious minorities. This information has to be understood in light of the climate of impunity that exists in Iran. Members of certain religious minorities in Iran are not protected under Iranian law. Ordinary citizens feel able to attack members of these groups because they are aware of the reluctance of police and courts to provide group members with adequate protection.
Religious freedom is Iran exists only for those following the Shi'ite faith and nominated Islamic schools. Under the Iranian Constitution recognised religious minorities, Zoroastrians, Jews and Christians, are able to preform their religious rites and ceremonies.  Both the UN Special Representative on Iran and the US Department of State have observed that religious and ethnic minorities face varying degrees of officially sanctioned discrimination, particularly in the areas of employment, education and housing. At times the treatment amounts to persecution.  They also suffer discrimination in the legal system. The UN Special Rapporteur on religious intolerance in 1996 reported "especially at the lower levels of public courts, minority plaintiffs are usually discriminated against by judges, who treat them as members of a minority and not as Iranian citizens, applying their brand of Islam and taking decisions that are very often in favour of Muslims." 
Sabeans (Mandeans or Christians of Saint John the Baptist) are a small religious minority in Iran. In 1995, C. Chaqueri of Encyclopaedia Iranica indicated that Sabeans are 'ill-treated and discriminated against by the Iranian authorities, given that they fall into the category of undesirables." 
The Special Rapporteur of the Commission on Human Rights on the freedom of religion or belief was established in 1986.  The mandate of the Special Rapporteur is to examine incidents and governmental actions in all parts of the world inconsistent with the provisions of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and to recommend remedial measures.
The Special Rapporteur in his 1998  and 1999  Reports - on the implementation of the Declaration, and again in his 1998 interim report to the General Assembly,  noted that communications received - disclosed that members of the Baha'i community in Iran had allegedly been the victims of violations: of freedoms of thought, conscience and religion/belief religion; of freedoms to manifest one's religion or belief; and of physical integrity and health of person (religious figures and the faithful).  The Special Rapporteur drew attention to the risk that certain members of the Baha'i faced in being arrested, detained and executed because of their religious belief.  Moreover it was reported that actual incidents occurred where Baha'i were hanged for converting Muslims.  The Special Rapporteur also spoke of the alleged policy of intolerance and discrimination against the Sunni community involving: obstacles to the construction of mosques and schools; the closing of mosques and the execution/murder of Sunni religious officials and intellectuals. 
In the 1999 interim report , the Special Rapporteur spoke of an urgent appeal concerning 13 members of the Jewish community including rabbis and religious teachers in the cities of Shiraz and Ispahan. Reportedly accused of spying, it was suggested that the real reason they were arrested was the fact they were Jewish. 
In the 2000 interim report,  again the Special Rapporteur referred to further information on the arrest, detention and sentencing to death of certain Baha'i members for taking part in Baha'i activities. Moreover in the 2001 interim report,  the Special Rapporteur noted claims that properties belonging to Baha'is in Tehran, Istahan and Shiraz had been confiscated; and that shops in Tehran belonging to Baha'is had been allegedly shut down by force and the issuance of trading licenses for Baha'is were being delayed.
General Human Rights Assessment - Iraq
We have included this information to assist HREOC to understand the nature of the society that produces many of our asylum seekers. Service provision for this group will not be effective unless providers are aware of the general climate of fear and intimidation.
The Human Rights Committee established by the 1966 United Nations International Covenant on Civil and Political Rights (ICCPR) is a monitoring body comprised of 18 experts. The general comments of the Committee provide authoritative guidance on interpretation of the ICCPR; and monitor the implementation of the ICCPR and its two optional protocols. In its 1998 Report to the General Assembly the Human Rights Committee  adopted inter alia the following observations in regards to the continuing violations of human rights in Iraq:
- The Committee voiced its deep concern that all government power in Iraq is concentrated in the hands of an executive, which is not subject to scrutiny or accountability, either politically or otherwise. Furthermore the Committee noted that it operates without any safeguards or checks and balances designed to ensure the proper protection of human rights and fundamental freedoms in accordance with the ICCPR. 
- The Committed noted with grave concern reports from many sources concerning the high incidence of: summary executions; arbitrary arrest and detention; torture and ill-treatment by members of security and military forces; disappearances of many named individuals and of thousands of people in northern Iraq and in the southern marshes; and forced relocations. In this respect the Committee expressed its regret at the lack of transparency on the part of the Iraqi Government in responding to these concerns. 
- The Committed also observed that a number of temporary decrees enacted by the Iraqi Revolutionary Command Council have adversely affected the implementation of certain non-derogable Covenant rights namely - the right to life, the prohibition of torture and the principle of non-retroactivity of criminal laws. 
- The Committee expressed its concern that Iraq has resorted to the imposition of cruel, inhuman and degrading punishments, such as amputation and branding. Furthermore the Committee noted that procedural guarantees are not provided for in criminal court proceedings. 
- The Committee also reported on the arbitrary restrictions imposed by the authorities on the right to freedom of movement within Iraq and freedom to leave the territory. Similarly the Committee voiced its concern about the severe restrictions on the right to express opposition to or criticism of the Government or its policies;  and on the restrictions, prohibitions and censorship imposed on the creation and functioning of independent broadcasting media. 
- The Committee also voiced its particular concern on the imposition of oppressive measures directed against members of religious and ethnic minorities - in particular the Shi'ite people in the southern marshes and the Kurds. 
Human rights in Afghanistan
Despite the overthrow of the Taliban in most parts of Afghanistan there continue to be widespread and systematic violations of human rights. It is important that the Australian community understand the true dimensions of the problems faced by asylum seekers from this region. It is also imperative that asylum seekers believe that decisions affecting their lives will be made on the basis of accurate information and not on assumptions based primarily on government press releases and media supplied information. The government has suggested that representatives of the asylum seeker community may be allowed to accompany them to Afghanistan in order to assess the situation. If this occurs it is vital that women be included in any such delegation in accordance with the Guidelines on the Protection of Refugee Women.
Given the widespread nature of the abuses occurring prior to the overthrow of the Taliban it is impossible to believe that life has returned to normal. In late September 2001 the High Commissioner for Human Rights referred to a humanitarian crisis of 'stunning proportions' occurring in Afghanistan.  Many areas of the country were subjected to the indiscriminate use of landmines and bombing. Families were decimated by the forcible taking of children and able-bodied males by the Taliban.
It is unconscionable that people who have been subjected to such horrors should be left in asylum detention for an indefinite period of time while the world waits to see if their country can return to some semblance of normalcy. The UNCHR has stated that the overriding purpose of refugee policy should be the treatment of refugees with dignity and respect. Australia's policies do not further the human dignity of asylum seekers. Our reputation as a humane and just society is being tested. It is vital that we find a more durable and just solution to the plight of asylum seekers.
Observations and Recommendations of Action for Children
The information set out above is a small fraction of that available through he UN system for the protection of human rights. We are aware that the Tribunal sometimes refers to information collected by the US State Department as well as the UK Foreign Office. We believe a more effective procedure for the collection of information must be put in place so that asylum seekers and the general public can be certain that the decision-making process is transparent and is based on a reasonable understanding of the human rights situation in a particular country.
Further DIMIA should ensure that ACM management receives appropriate background information about the human rights situation in asylum seekers' countries of origin. This will assist in the proper training of guards and other personnel. All service providers, particularly counsellors, educators and health professionals should receive suitable information about asylum seekers' countries of origin so that they can better understand the backgrounds and needs of their clients.
Submitted by Tina Dolgopol, on behalf of Action for Children, SA
Address for Correspondence: PO Box 114, Unley SA 5061
Telephone: (08) 8201 3880
Acknowledgements: The information contained in Part I of this submission would not have been available without the cooperation of the Woomera Legal Outpost. The views expressed are solely those of Action for Children and should not be attributed to the Outpost or any of its members.
Part IV of the Submission is based on the research and writings of Tania Steinmuller an SJD student at the Australian National University and Michael Paes a law student at The Flinders University of South Australia.
1. Executive Committee of the High Commissioner 's Programme, Note on International Protection, A/AC.96/951, 13 September 2001 at para 54.
2. Id. at para. 53.
4. Global Consultations on International Protection, Reception of Asylum-Seekers, including standards of Treatment, in the Context of Individual Asylum Systems, AC/GC/01/17 (4 September 2001)
5. Executive Committee, above n 1 at para. 42.
6. If a Minister of the Crown had undertaken these acts in his/her private capacity as guardian or parent of a child State child protection laws would apply.
7. Guideline 6: Detention of Persons under the Age of 18 Years. The accompanying note makes this the general rule although recognising that detention may occur for a brief period at airports or others places of disembarkation. If detention does take place it is to be "a measure of last resort and for the shortest period of time."
8. Executive Committee, above n 1 at paras. 68-73 and Guidelines on the Protection of Refugee Women, EC/SCP/67, July 1991.
9. Executive Committee, above n 1 at paras. 68-73.
10. Guidelines on the Protection of Refugee Women, EC/SCP/67, July 1991at paras 11-14.
11. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, E/CN.4/1998/68, 23 Dec 1997 at section J, para 1.
14. Ibid, at section B, para 2.
15. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, E/CN.4/2000/3, 25 Jan 2000, para 89.
18. Ibid. The Special Rapporteur commented, "Such regulations are often resorted to in countries facing internal unrest, and where the security forces are given wide-ranging powers to counter a real or perceived threat to national security".
20. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, E/CN.4/2000/3, 25 Jan 2000, para 87.
22. Interim Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, A/55/288, 11 August 2000 at para 50.
23. USDOS, 2000 Country Reports on Human Rights Practices - Iran, Feb 2001 at pages 3, 13 and 14.
25. United Kingdom, Immigration and Nationality Directorate, Country Assessment - Iran, 1 Oct 2000 para 4.14. Furthermore they highlighted that "blood money" is only awarded if the aggrieved party is a man; and that families of female victims of violent crimes are reported to have to pay for an assailant's court costs: para 6.7.
26. Nader Entessar Ph.D, "Limits of Change: Legal Constraints to Political Reform in Iran" <http://www.mevic.org/papers/limits-of-change.html>.
27. Interim Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, A/55/288, 11 August 2000 at para 48.
28. Reports of the Special Rapporteur on Iraq: E/CN.4/1994/58; E/CN.4/1995/56; E/CN.4/1996/12; E/CN.4/1997/57; 1999 Interim Report - A/54/466.
29. Report of the Special Rapporteur on Iraq, E/CN.4/1997/57 21 Feb 1997 at para 8. The Special Rapporteur in the 1995 Report (E/CN.4/1995/56, 15 Feb 1995 at para 42) reported that "provisions of a Revolution Command Council Decree of 21 December 1992 which guarantee impunity for members of the Baath Party in their efforts to combat enemies of the regime in the course of which they may damage property, cause bodily injury and even death. Given the prevailing economic circumstances in Iraq, conferring such enormous powers on so many clearly encourages arbitrary punishments, confiscations and other acts for personal gain. In sum, such decrees underline the absence of the rule of law in Iraq".
30. Report of the Special Rapporteur on Iraq, E/CN.4/1997/57 21 Feb 1997 at para 8.
32. Interim Report of the Special Rapporteur on Afghanistan: A/56/409, 26 Sept 2001 page 11.
33. Ibid, para 57.
35. Report of the Special Rapporteur on Afghanistan: E/CN.4/2000/43/Add.1 27 March 2001 at para 10. The Special Rapporteur went on to say that "there is thus a growing opinion that in order to deter and prevent the occurrence of such atrocities, an effective international initiative is called for not only to document, denounce and then cut the sinews of war (arms supplies, external financial support, linkages with drug warlord) but also to expose and hold to account those responsible for war crimes, breaches of international humanitarian law and gross violations of human rights. International cooperation would be needed to deny impunity and enforce accountability by developing mechanisms to undertake full investigation to gather evidence and to identify those responsible in order that they may be brought to justice".
36. Ibid, at section B, para 2.
37. UNHCR 1998 and 2001 Background Papers and United States Department of State Country Report on Iran.
38. Report of the Special Representative, 1999 Interim Report on the Violation of Human Rights and Fundamental Freedoms, A/54/365 and US Department of State above n 37.
39. Special Rapporteur on Religious Intolerance in Iran, E/CN.4/1996/95/Add.2, 9/2/96.
40. UNHCR 1998 Background Paper.
41. Pursuant to the Commission on Human Rights resolution 1986/20 of 10 March 1986. Mr. Abdelfattah Amor from Tunisia has been the Special Rapporteur since 1993.
42. Report of the Special Rapporteur on the Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, E/CN.4/1998/6, 22 Jan 1998.
43. Report of the Special Rapporteur on the Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, E/CN.4/1999/58 para 66.
44. Interim Report on the elimination of all forms of intolerance and of discrimination based on religion or belief: A/53/279, 24 Aug 1998.
45. See the Report of the Secretary-General on the elimination of all forms of intolerance and of discrimination based on religion or belief: A/54/303, para 18 - providing a summary of the 1999 communications received by the Special Rapporteur on religious intolerance.
46. Ibid. See also note 14.
49. Interim Report on the elimination of all forms of intolerance and of discrimination based on religion or belief: A/54/386, 23 Sept 1999 para 63.
50. In this incident the Special Rapporteur recorded that the Government of Iran replied that "the suspects arrested for spying included both Christian and Muslim, that the investigation and the arrest had taken place without regard for their religious beliefs and were instead a matter of safeguarding national security" (para 64).
51. Interim Report on the elimination of all forms of intolerance and of discrimination based on religion or belief: A/55/280, 8 Sept 2000 para 34.
52. Interim Report on the elimination of all forms of intolerance and of discrimination based on religion or belief: A/56/253, 31 July 2001.
53. 1998 Report of the Human Rights Committee to the General Assembly: A/53/40.
54. Ibid, para 96.
55. Ibid, para 97.
56. Ibid. paras 98 -100.
57. Ibid., para 101.
58. Ibid, para 104.
59. Ibid, para 103.
60. Ibid, para 105. Specifically the Committee noted its concern that the law imposes life imprisonment for insulting the President of the Republic, and in certain cases death. It also imposes severe punishments for vaguely defined crimes, which are open to wide interpretation by the authorities, such as writings detrimental to the president.
61. Ibid, para 106.
62. Ibid, para 108.
63. Report of the UN High Commissioner for Human Rights, 28 September 2001. A/56/36.
Last Updated 10 October 2002.