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Submission to National Inquiry
into Children in Immigration Detention from
the Australian Federation
of University Women Inc.
of Australia's detention regime on children
of child asylum seekers: A right protected by Article 28 of the Convention
on the Rights of the Child
Introduction
The Australian Federation
of University Women is one of seventy-one national affiliates of the International
Federation of University Women. Founded in 1922, it pursues educational
initiatives to advance of the status and well-being of women and girls
privately and publicly, nationally and internationally, and it attempts
to further peace and international co-operation through the development
of understanding and friendship between women of the world irrespective
of race, nationality, religion or political opinion. Membership is open
to any woman residing in Australia who holds a degree from a recognised
university or college worldwide.
While concerned with
general issues of human rights, AFUW has a particular commitment to supporting
the human rights of women and girl children, and interventions it has
taken to date on immigration and refugee issues have tended to concentrate
on the situation of women and children.
Examples of representations
made by AFUW concerning asylum seekers are attached in Appendix A to demonstrate
that it has for some time been our belief that the policies pursued by
the Australian government in dealing with asylum seekers are inconsistent
with its obligations under various international treaties and instruments
that require it to respect the human rights of those seeking asylum and
refugee status. In particular, AFUW believes that the human rights of
asylum seekers in general are abrogated by the following aspects of the
immigration policies and practices:
- Mandatory detention,
justified in part by the wrongful description of asylum seekers as 'illegal'
and hence meriting treatment as criminals;
- Detention under
conditions which by their harshness and isolation constitute a form
of punishment;
- Detention under
off-shore arrangements where supervision of the physical and mental
health of refugees cannot be guaranteed and where access to legal assistance,
education, and community support is effectively denied;
- Detention for
periods of time well in excess of what might be regarded as reasonable
for the screening asylum seekers both for a prima facie case for refugee
status and for their health situation.
AFUW has been strengthened
in these opinions by the eight background papers provided by Human Rights
and Equal Opportunity Commission. We submit that the information in these
papers makes it abundantly clear that Australia's treatment of asylum
seekers in general is in breach of a number of international treaties,
rules and guidelines to which Australia is a signatory.
We would also like
to draw attention to an aspect of Australia's stance on the definition
of a refugee which impacts upon the treatment of children. Australia refuses
to accord refugee status to women who have fled from, or been displaced
from, their home country by domestic violence or sexual violence resulting
from armed conflict. While persecution and threat to life on the grounds
of gender is not specified as one of the grounds of systemic persecution
used to establish refugee status, many would argue that persecution on
the grounds of gender is indeed systemic in certain societies and situations,
and that the demonstrated inability of an applicant to gain protection
within the social context from which she has fled should be grounds for
asylum. Women fleeing from sexual and domestic violence are likely to
be accompanied by their children, who are thus cast into the same limbo
as their mothers.
Effects
of Australia's detention regime on children
With respect to the
focus of the present inquiry, AFUW would submit that the adverse effect
of the breaches of human rights involved in Australia's detention practices
is especially intense in the case of children. The Convention on the Rights
of the Child attempts to ensure that children lead lives in which their
physical, mental and emotional health are protected from violence, abuse
and neglect, and in which their developmental potential can be realised.
Detention of child
refugees and asylum seekers is specified in Article 37 (b) of the Convention
as a matter of last resort. Australia makes it a matter of automatic resort,
even for the most vulnerable of groups of children, unaccompanied minors.
Children are being
detained in an abnormal physical environment; they are surrounded by adults
who are either in effect prison guards or fellow refugees who are often
in states of psychological and emotional distress that make it unlikely
that they can provide the nurturing required for children's social and
mental development. These child detainees are also deprived of normal
social relationships with other children and of adequate facilities for
physical and mental development.
This situation must
have serious consequences, especially when prolonged. And prolonged may
mean something quite different with regard to a child as against an adult.
Twelve months in the life of a child (as reported in the case of an infant
girl born in the Maribyrnong Detention Centre and still there for her
first birthday) constitute a major developmental period which can be irreparably
stunted by the socially and intellectually impoverished environment of
Australia's detention centres. Reports of visits to detention centres
provide evidence that these centres are indeed socially and intellectually
impoverished (See the Report of the Human Rights Commissioner's Visit
to Curtin Detention Centre in July 2000, the Flood Inquiry into Immigration
Detention Procedures of February 2001, and the February 2002 Report of
the Visit of HREOC Officers to the Woomera Detention Centre). And it must
be of concern that evidence in statistics available from reputable sources
show that
- at 20 November
2001 by far the greatest number of refugees classed as minors were in
the most remote and harsh detention centres-117 at Port Hedland and
293 at Woomera (Dept of Immigration figures);
- between 2000 and
2001, the percentage of children detained for periods in excess of 12
months increased from 2.8% to 14.3% (Flood Report)
We would submit that
it is in essence the mandatory and prolonged nature of detention that
leads to child asylum seekers being deprived of a wide range of the human
rights accorded them by the Convention on the Rights of the Child. That
such deprivation is extended in some cases by the conditions of the 'temporary
protection visa' accorded to those children who do achieve refugee status
is outside the scope of the present inquiry, but we would recommend it
for further investigation by HREOC.
For the remainder
of this submission we wish specifically to address issues of access to,
and quality of, education, this being a core concern of our organisation.
Education
of Child Asylum Seekers: A Right Protected by Article 28 of the Convention
on the Rights of the Child
AFUW submits that
it is only situations of community release (or at least Open Detention
in a suitably resourced location) that can meet the rights of child refugees
to have access to an education that is both of a comparable quality to
that afforded to Australian children and responsive to the special needs
resulting from their situation as refugees (e.g. special language services,
recognition of cultural identity, counselling for behavioural problems
resulting from traumatic experiences and social dislocation) . Such a
system of community release is achieved by a number of other countries,
and we do not believe that its management is beyond the capacity of the
Australian government and the Australian education system.
For legislative and
regulatory proposals as to how these systems could work we recommend the
Alternative Detention Model document prepared by the Refugee Council of
Australia and available on their website at http://www.refugeecouncil.org.au/alternative1.htm
The Australian government,
through immigration standards developed by DIMA and the Commonwealth Ombudsman,
would appear to give assent in a general way to the propriety of providing
education to detained child asylum seekers However the dispersal of responsibility
for educational provision between State and local government authorities
as well as the contracted bodies administering detention centres makes
it very easy for decision-making to be shunted from one body to another.
It also makes it very difficult for interested parties to obtain accurate,
adequate and systematic information as to what educational programs are
in fact provided on a continuing basis in any or all of the detention
centres.
Since the detention
programs are the policy of the Federal government, we submit that it is
the responsibility of the Federal government to issue clear and transparent
guidelines requiring that systematic programs of education for minors
be instituted across all detention centres. The programs should be monitored
on a regular and publicly reported basis by an independent committee of
educational experts, including members qualified in the areas of the special
needs of children who are emotionally disturbed or disabled physically
or mentally. Monitoring should not take place on an ad hoc basis as part
of general and occasional reports such as those cited above.
Such a program would
undoubtedly be expensive. Its expense would be much reduced if refugee
children were made part of the normal school population, where there are
existing mechanisms for providing and monitoring educational programs
and the support services needed to ensure that all children can access
and take advantage of them. This is a practical argument for releasing
these children into the general community. A further practical argument
springs from the fact that a majority of asylum seekers do eventually
gain refugee status, even if only under a temporary protection visa. These
children will therefore become resident in communities where education
is not only a right, but compulsory. The sooner steps are taken to prepare
them for transition into an Australian school, the smoother the transition
will be for both children and schools. Schools might however with advantage
adopt a program to educate Australian children on issues relating to refugees,
for example the program for Years Six and Seven devised by Australian
Against Racism and available on their website http://www.australiansagainstracism.org.au
AFUW knows of
no report that suggests child asylum seekers have access, either in the
detention centres or in local schools, to adequate pre-school, primary,
secondary, higher and vocational education, as outlined in the HREOC Background
Paper 6 (Education).
Such reports and
anecdotal evidence as it does have tend to be to the contrary. The Report
of the Human Rights Commissioner's visit to Curtin Detention Centre in
July 2000, for example, describes the primary school education then offered
at Curtin as basic but adequate, provided time in detention is short
(italics supplied). But time in detention is not necessarily short -according
to the figures provided by the Refugee Council of Australia as at June
2001 not one of Australia's six detention centres released a significant
proportion of detainees within 6 months.
The Report cited
above also comments on the unsatisfactoriness of the programs provided
for older children. The impression that this is a significant area of
failure is strengthened by the reported case of a family of three children
detained with their mother at Maribyrnong. The youngest of these was allowed
to attend the local school, although under escort of a Centre guard, a
condition hardly conducive to normal social relationships. The two children
of secondary school age were, however, refused local schooling on the
grounds that their attendance would be disruptive.
Certainly it would
be disruptive to the schools of communities such as Port Hedland and Woomera
to have to cope with number of child detainees involved at those localities
(respectively 117 and 293 as at 20 November 2001 according to DIMA figures).
This is not an argument for denying these children access to community
education. It is an argument for changing the location of the children.
AFUW submits that
Australia is failing to meet the requirement of the Convention to provide
for the educational rights of child asylum seekers. It believes that this
failure, along with the failure to meet other rights protected under the
Convention, is an inevitable consequence of the policy of mandatory detention
and of policy implementation that involves the imposition of punitive
conditions, often involving isolation and undue prolongation of the period
required for processing refugee claims.
It therefore makes
the following recommendations
Recommendations
1. That Australia
honour its obligations under the Convention on the Rights of the Child
to use detention of child asylum seekers arriving in Australia without
authorisation as a method of last resort, not as mandatory;
2. That this policy
be extended to family groups arriving with children;
3. That the norm
for all asylum seekers should be release, as soon as possible, into local
communities, or at the very least a system of Open Detention such as proposed
in the Alternative Detention Model published by the Refugee Council of
Australia;
4. That any period
of that detention necessary for health screening and the establishment
of refugee status not exceed three months;
5. That detention
centres not be maintained in remote localities such as Woomera and Port
Hedland,
6. Failing this recommendation,
that unaccompanied minors and family groups with children not be placed
in such detention centres;
7. That Australia
honour its obligation under Article 28 of the Convention on the Rights
of the Child to provide child asylum seekers with an education which is
both comparable in quality with that provided to Australian children and
cognisant of the special needs of refugee children for support services
such as special language skilling and counselling for emotional or behavioural
problems resulting from traumatic experiences in their past history;
8. That wherever
possible the education of child asylum seekers take place within local
schools which have been adequately resourced to meet any special needs.
Such resourcing may need to include special programs to educate Australian
schoolchildren in refugee issues and cultural diversity.
9. That where children
are present in detention centres and unable to access local schools educational
programs be available to them which are comparable in curriculum design
and in delivery to those enjoyed by Australian children
10. That the delivery
of educational programs for children in detention be monitored regularly
by a panel of suitably qualified education experts and that the reports
of such panels be published in a form accessible to the general public.
Signed:
(Dr) Jennifer Strauss
President, Australian Federation of University Women Inc.
14 March 2002
Appendices
Letter of 17 December, 2000, to the Hon. Philip Ruddock, Minister for
Immigration
of 23 February 2001 to the Minister for Immigration and others
Appendix One:
Documents illustrating the position of the Australian Federation of University
Women on the treatment of asylum seekers.
Letter of 17 December, 2000, to the Hon. Philip Ruddock, Minister for
Immigration
Dear Mr Ruddock,
I write to express
the mounting concern of my organisation about the conditions imposed upon
asylum seekers held under mandatory detention at Woomera, Port Hedland
Curtin and Maribyrnong. This concern is, I assure you, not simply a reaction
to the more alarming allegations of abuses of human rights that have appeared
recently in the media. There has in fact been for some time a growing
a body of very reasonable and carefully expressed press material that
addresses the fundamental human rights issue that these people, many of
them fleeing from appallingly oppressive regimes, are effectively imprisoned
in Australia. Imprisoned moreover for prolonged periods in remote places
under harsh physical and psychological conditions which, I believe, Australians
would not tolerate for our own citizens who have actually been convicted
by due process of criminal offences.
As an example of
such reasoned and principled objections to the current treatment of asylum
seekers, I would draw your attention to the enclosed article by Professor
Tay, President of the Human Rights and Equal Opportunity Commission. I
would also point out that public concern at reports of abuses in these
detention centres is exacerbated by the general refusal to open them to
public scrutiny. This does not only extend to resisting visits by external
UN committees. There seems to be an unreasonable delay in publishing the
report of the Australian Commission's visits in 2000 to Woomera and Curtin,
and today in Melbourne we had the unedifying spectacle of the Maribyrnong
centre refusing to allow the press to witness Amnesty International giving
Christmas presents to the children imprisoned there.
According to the
report of this incident there are some two hundred children currently
in detention at the various centres-and of course a number of children
now in the Australian community who had to spend an unconscionable time
in detention before their parents were accepted as meeting the very stringent
criteria for being accepted as a refugee. This is a situation so appalling
that I find it hard to believe: I would be grateful therefore if you could
provide me with accurate figures of the number of children currently held
in all detention centres.
It is particularly
the situation of women and children that calls for urgent remedial action.
The Australian Federation of University Women has as its core purpose
the advancement of the welfare of women and girl children through education,
but we have had, from our foundation, a commitment to working to ensure
an environment for women and children which is free of both political
oppression and domestic violence. Apart from the apparent denial of educational
and health rights to children under the current conditions of detention,
there is an abundance of material from the experience of refugee and detention
(concentration?) camps around the world that demonstrates that women and
children in such circumstances are highly vulnerable to emotional and
sexual abuse.
It has been reported
that you are considering taking steps to provide group homes where women
and children could be housed. We urge you most strongly to proceed immediately
with this proposal. It would be at least a temporary step on the way to
a more just and humane system for all asylum seekers,
Yours Sincerely
(Dr) Jennifer Strauss,
President, Australian Federation of University Women
Letter of 23 February 2001 to the Minister for Immigration and others
Dear Mr Ruddock,
At its Annual General
Meeting of 16 February, the Australian Federation of University Women
passed (nem con.) the following motion:
That the Australian
Federation of University Women Inc. requests the Minister for Immigration,
Multicultural Affairs and Aboriginal Affairs, the Hon. Philip Ruddock,
to bring an immediate end to the incarceration of women and children under
harsh conditions in remote and isolated localities as a result of the
current government policy of mandatory detention of unauthorised refugees
and asylum seekers.
AFUW has an obligation,
both through its own policies and through those of its international body,
the International Federation of University Women, to endeavour to protect
the welfare of all women and children, and in particular to strive for
the fulfilment of the various United Nations Conventions on the treatment
of women and children who are victims of war, civil unrest, oppressive
regimes or domestic violence. As Australian citizens, we are saddened
to have to conclude that Australia's treatment of unauthorised asylum
seekers breaches such conventions, both in the very fact of automatic
detention, as well as in its nature and its often lengthy duration. A
year is a very long time in the life of a child. And what is a child to
make of the country that guards them so closely that they are not even
permitted to see the faces or hear the voices of its citizens who come
to bring them Christmas gifts, as was the case at the Maribyrnong detention
centre last Christmas?
We do not oppose
Australia's right to screen those seeking residence or temporary refuge
in this country. We had hoped, however, that your recent visit to Sweden
would convince you of the feasibility as well as the desirability of systems
whereby unauthorised immigrants were released into appropriate communal
settings-or at the very least, in the cases of women and children, the
most vulnerable of these often severely traumatised groups, were separately
accommodated in normal housing rather than camp conditions. We would point
to the recent example of the French government in releasing into the general
community (during processing of residence applications) the shipwrecked
Kurdish victims of the unquestionably deplorable traffic in those desperate
to escape from oppressive regimes.
We have also noted
a recent media report that a very large percentage of Iraki and Afghan
unauthorised entrants into Australia do in fact ultimately gain refugee
status. If this is the case, it seems that their preceding detention may
be of dubious cost benefit and must surely not be the ideal preparation
for their becoming well-adjusted residents, whether temporary or permanent,
in our community.
Immigration has always
been a divisive issue in Australian history, but our members believe that
we speak for a very solid body of public opinion which would support a
more generous, compassionate and ultimately more intelligently self-interested
policy than that currently pursued. We urge you to listen to that voice,
Yours
sincerely,
(Dr) Jennifer Strauss
President, Australian Federation of University Women
cc:
The Prime Minister, the Hon. John Howard
The Leader of the Opposition, the Hon. Kim Beazley
The Minister Assisting the Prime Minister on Women's Affairs, The Hon.
Amanda Vanstone
Ms Murielle Joye, Secretary General, International Federation of University
Women, Geneva
3. Resolution
on Refuges at the 28th Conference of the International Federation of University
Women held in Ottawa, August 2001.
Delegates from over
70 countries voted unanimously in support of a motion proposed by the
Australian Federation. It resolved to re-affirm earlier resolutions calling
for the protection of the human rights of refugee women and girls; and
further to encourage all national associations (a) to urge their governments
to find considerate and humanitarian solutions to the problems of refugees
and asylum seekers arriving in their countries; and to monitor the situation
both nationally and locally and render appropriate assistance where possible;
and (b) to ensure that their own members are appropriately informed or
educated on the issues of refugees and asylum seekers.
4. Motion passed
unanimously by Council of the Australian Federation of University Women
at its Meeting of 27 October, 2001
That Australia should
process unauthorised asylum seekers within Australia;
That the process
should be as expeditious as possible to ensure that the validity of refugee
status can be established and refugees settled with the Australian community;
That the Government
should ensure that education programs are available to all those held
in detention pending finalisation of their claim. Such programs should
be available to adults and children;
That educational
programs should continue to be available once refugees have been released
into the community, in particular that specific funding should be provided
to meet the costs of education for children in refugee families;
That the provisions
of the temporary protection visa should be revised so that refugees are
not deprived of the rights to education, access to health care and the
freedom of movement available to Australian citizens and their children."
Last
Updated 9 January 2003.