Commission Website: National Inquiry into Children in Immigration Detention
Click here to return to the Submission Index
Submission to the National
Inquiry into Children in Immigration Detention from
Council of Social Service
of NSW (NCOSS)
May 2002
Council of Social
Service of NSW (NCOSS), 66 Albion Street, Surry Hills, 2010
ph: 02 9211 2599, fax: 9281 1968, email: info@ncoss.org.au
1. Background
2. The
policy of mandatory detention
3. Conditions
in the detention centres
4. Services
for children and young people residing in the community after detention
1.
Background
1.1 About NCOSS
The Council of Social
Service of NSW (NCOSS) is an independent non-government organisation and
is the peak body for the social and community services sector in NSW.
NCOSS works with its members on behalf of disadvantaged people and communities
towards achieving social justice in New South Wales. It was established
in 1935 and is part of a national network of Councils of Social Service
which operate in each State and Territory and at Commonwealth level.
NCOSS membership
is composed of community organisations and interested individuals. Through
current membership forums, NCOSS represents more than 7,000 community
organisations and over 85,000 consumers and individuals. Member organisations
are diverse, including unfunded self-help groups, children's services,
emergency relief agencies, chronic illness organisations, local Indigenous
community organisations, church groups, and a range of population-specific
consumer advocacy agencies.
1.2 About this submission
This submission deals
with children in detention and on their release into the community. While
NCOSS is extremely concerned at current approaches to refugees and humanitarian
settlement more broadly, these are not within the scope of this inquiry
and will not be addressed in this submission.
This submission is
based on discussions with a number of community organisations and a small
number of individuals who have experienced detention in the Woomera Detention
Centre.
Most of the organisations
contacted by NCOSS were prepared to discuss issues for this submission
on a confidential basis only. Concerns were expressed about loss of Commonwealth
funding for the organisation, reduced capacity to effectively advocate
with the Commonwealth Government, and loss of visiting rights at the detention
centres. Individuals asked not to be named. As a result, many of the comments
made in this submission are not formally attributed to organisations or
individuals.
While this situation
affects the nature of the submission, NCOSS is extremely concerned at
that fear of retribution of various forms is preventing Australians from
finding out what is happening in detention centres. It is also profoundly
affecting the capacity of community organisations to perform their traditional
role of advocating for disadvantaged individuals and communities.
2. The
policy of mandatory detention
This section relates
to terms of reference 1 and 2
2.1 Breach of human rights
NCOSS considers it
manifestly obvious that mandatory detention of children is in breach of
Australia's human rights obligations. These are not obligations which
have been imposed by external bodies, but exist as a result of Australia
voluntarily becoming a signatory to international treaties. These obligations
apply to all people within Australia's jurisdiction without regard to
their immigration status.
These breaches include:
- Article 9 of the
International Covenant on Civil and Political Rights and article 37
of the Convention on the Rights of the Child, which prohibit arbitrary
detention
- Article 10 of
the International Covenant on Civil and Political Rights and article
37 of the Convention on the Rights of the Child, which require that
detained persons be treated with humanity and respect for human dignity
- Article 37 of
the Convention on the Rights of the Child which prohibits detention
of children except as a last resort and for the shortest appropriate
period of time
- Article 9 of the
International Covenant on Civil and Political Rights and article 37
of the Convention on the Rights of the Child, which recognise a right
to take legal proceedings to challenge detention
- Article 2 of the
International Covenant on Civil and Political Rights and article 2 of
the International Covenant on Economic, Social and Cultural Rights,
which prohibit all discrimination on the basis of status in the enjoyment
of human rights
- Article 23 of
the International Covenant on Civil and Political Rights, article 10
of the International Covenant on Economic, Social and Cultural Rights,
and article 18 of the Convention on the Rights of the Child, which protect
the right of parents to found a family, the right of families to state
care and support and the rights of children to the care of their parents
- Article 22 of
the Convention on the Rights of the Child, which requires the state
to provide appropriate protection and humanitarian assistance to refugee
and asylum seeker children, especially in relation to family reunion
- Articles 13 and
15 of the International Covenant on Economic, Social and Cultural Rights
and article 28 of the Convention on the Rights of the Child, which recognise
children's rights to education. [1]
- Article 9 of the
International Covenant on Civil and Political Rights provides that anyone
deprived of liberty by arrest or detention is entitled to seek a review
of the lawfulness of their detention.
It has also been
suggested that Australia may also be breaching other human rights obligations:
- Article 6 of the
International Covenant on Civil and Political Rights, article 37 of
the Convention on the Rights of the Child and the Convention Against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,
which prohibits torture and all cruel, inhuman and degrading treatment
and punishment.
- Article 2 of the
International Covenant on Civil and Political Rights and article 2 of
the International Covenant on Economic, Social and Cultural Rights,
which prohibit all discrimination on the basis of religion and race
in the enjoyment of human rights and the Convention on the Elimination
of All Forms of Racial Discrimination. [2]
2.2 Alternatives to mandatory
detention
NCOSS strongly supports
an alternative approach to mandatory detention which would consist of
a short period of detention, and for those who pass basic threshold tests
in relation to public health, public safety, public security and identification,
placement in the community during processing of their claim for refugee
status.
NCOSS emphasises
that even the shorter detention period should not be under the present
detention arrangements. Conditions within the detention centres are wholly
unsatisfactory, as discussed below, and the location of detention centres
in remote areas is not acceptable.
There are a number
of models for this alternative approach to mandatory detention. These
include the proposal contained in the Human Rights and Equal Opportunities
Commission report, Those who've come across the seas: detention of
unauthorised arrivals; the Conference of Leaders of Religious Institutes
(NSW) document, Policy proposal for adjustments to Australia's asylum
seeking process; the Justice for Asylum Seekers document, Transitional
Processing and Reception Model; the model based on the Charter
of Minimum Requirements for Legislation Relating to the Detention of Asylum
Seekers which was endorsed by the Australian Council of Churches and
16 other community and statutory organisations [3]; the
Independent Education Union document, Refugee and Asylum Seeker Policy
in Australia. [4]
NCOSS notes that
Australia is the only Western nation which has a policy of mandatory detention
of asylum seekers pending resolution of refugee status. [5]
3.
Conditions in the detention centres
This section relates
to terms of reference 3 and 5.
3.1 Sources of information
There is limited
information available on the conditions in which detainees are held.
There have been a
small number of official visits to the centres. The media has been a primary
source of the reports of these visits. The reports are very strongly worded
in their criticism, including comments that the facilities are 'subhuman'
and that 'some asylum seekers were cooped up in filthy cells with overflowing
toilets'. [6]
Independent organisations
seeking to inspect conditions at the detention centres are commonly refused
access. NCOSS was part of a delegation which sought to inspect the education
facilities at Villawood Detention Centre on April 26, 2002. The delegation,
convened by the NSW Teachers Federation, had contacted the Minister for
Immigration and Multicultural Affairs, Phillip Ruddock, a month beforehand
but received no formal response to their letter and was refused access
when they attended at Villawood at the date and time advised.
People visiting individual
detainees at the centres have provided some reports. The visitors to the
centres generally have access only to a limited area. NCOSS has found
that visitors to the centres are often prepared to speak on a confidential
basis only, or not at all, out of concern that their future access to
the detention centres would be jeopardized.
There are few reports
from detainees or former detainees. Former detainees whose claim for asylum
was successful, are provided with temporary visas only. As these visas
require renewal, there is a strong disincentive for former detainees to
speak publicly about their experience. One detainee who provided information
on the experience in the detention centres was Dr Aamer Sultan, who co-authored
an article on the mental health of detainees. [7] Dr
Sultan had been refused asylum prior to writing the article.
Freedom of Information
laws are of minimal assistance in obtaining information on conditions
in the detention centres. While these laws would provide access to information
about the correctional system in NSW, the Commonwealth Government has
contracted out the management of the detention centres and, as a result,
key information on the conditions in the detention centre is held by a
private company rather than the Commonwealth Government. Access to information
about management and performance of Australian Correctional Management
held by the Commonwealth Government is also constrained by claims of 'commercial
in confidence'.
The limited sources
of information available on conditions in the detention centres itself
raises serious concerns about those conditions.
3.2 Conditions in the detention
centres
Former detainees,
now resident in NSW, spoke to NCOSS about conditions in Woomera Detention
Centre during the time they were resident there. The detainees' names
and the time they were in detention has been kept confidential, at their
request.
The following is
a summary of the information provided by the former detainees.
Education
Initially, no classes were available for the children, so the other
residents organised classes and taught them themselves. Later, there was
a teacher, but classes were not structured and age-appropriate.
There were
young people and adults who wanted to learn English, but there was no
teacher. Some detainees who knew English, taught others what they knew.
While the managers knew that this was happening, they did not provide
books and they did not help.
Play
The children didn't play. There were no green areas, just rocks, and they
did not have toys.
The children
were sometimes taken on excursions, but their parents did not come with
them. Because their parents were left behind, the children were scared
about the excursions.
There was a
single room with a video. Adults and children used the room at the same
time, so there was conflict about what video was shown. There was not
a separate time for children to watch cartoons or other children's shows.
Food
There was only one type of food, so there was no choice about what to
eat. Many people would leave their food behind because they did not like
it.
The food was sometimes dirty and smelly. Despite reporting to Australian
Correctional Management (ACM) that food was bad, the problem continued.
It was not possible to ask for only part of the meal, such as salad. Everyone
was required to take the standard meal. If there was any discussion or
argument, the ACM staff would take the detainee's number. This was scary.
If a child was sick and wanted to eat in their own room, they needed to
get special authorisation. This was provided only when the person was
very sick. If a child or adult did not attend the mess for a meal, then
they did not get fed.
If anyone turned up late for a meal, they did not get fed. This was the
case even if people were still sitting at the table and eating inside
the mess.
People were confident that the food was halal, as they had asked for and
seen the certification.
Health care
There were few drugs available. Whenever anyone reported feeling ill,
they were told to drink more water. There were no antibiotics or Panadol
available from the nurses.
The nurses decided which detainees saw a doctor. While many were very
kind, some were not.
Obtaining dental care was very difficult. There was often two or three
weeks' wait for a dentist to visit the detention centre. People were sometimes
screaming with pain from their teeth. When this happened, they were given
Panadiene Forte, but this was not enough.
Lots of people had depression. Some of these people went mad.
Some people left the detention centre with diabetes, even though they
had not been sick beforehand
Culture
and religion
Initially,
the management did not understand about religion, but later tried to provide
religious material to encourage people to cooperate.
Initially, there were problems with breaking the fast after Ramadan. At
the end of the day in Ramadan, ACM would do a headcount. People had been
without food and drink all day, and were forced to wait for up to two
hours before they could eat or drink.
Security
practices
A higher security area existed within the detention centre. Initially,
there was no communication between the people in this area and those in
the main part of the detention centre. Later, letters were allowed to
pass between these areas and people from the main area were occasionally
allowed to visit the higher security area.
When the higher security area was built, the detainees were told that
it was for bad people and that these people would be deported or go to
prison. People were very afraid of going there.
When ACM took people to the higher security area, they would come at night
and wake the person up to take them away. This really scared the people.
People were always demonstrating and asking for freedom. On one occasion,
ACM sent a message that the demonstrators would be taken to the higher
security area that night. The detainees were so frightened that they slept
outside that night, even though it was very cold.
ACM would do headcounts at night. People would be woken up with lights
in their faces, which was very frightening.
The centre management sent two men to prison. The other detainees did
not think the two men had done anything wrong, and saw it as a way of
frightening the others. Some detainees heard that the guards had beaten
the detainees who went to jail.
A consistent
theme in the comments of the detainees was the way that they were spoken
to by the ACM staff, which they hated: "The way they talk to you,
your dignity is broken", "They let people feel they are a beggar."
3.3 Improving conditions in
the detention centres
In recommending improvements
to the conditions in detention centres, NCOSS is placed in a quandary.
On the one hand, NCOSS is appalled at the conditions of the detention
centres and can only advocate in the strongest terms for the release of
both adults and children detained there. On the other hand, given the
apparent strength of Commonwealth Government commitment to the policy
of mandatory detention, NCOSS is keen to see any improvement that is possible
in the quality of life of the detainees. It is of enormous concern to
NCOSS that children and young people who are asylum seekers may be in
detention for years, with a consequentially huge impact on their long
term education, development, and physical and mental health.
In principle, NCOSS
would like to see children and young people in detention provided with
the same services available to children and young people in the broader
community. Given the nature of the environment, there are questions about
whether some of these services would be effective.
(i) Child protection
In NSW, there is
at present no Memorandum of Understanding (MOU) between the Commonwealth
and the State in relation to child protection services and the Villawood
Detention Centre. The NSW Department of Community Services (DoCS), which
is the agency charged with implementing the Children and Young Persons
(Care and Protection) Act (1998) has no jurisdiction in relation to
the detention centres, and, in the absence of a MOU, is able to pursue
child protection reports only at the discretion of the DIMA.
NCOSS notes that
the Minister for Immigration and Multicultural Affairs stated on 27 February
2000 that negotiation of protocols with state authorities involved with
immigration detention was a priority for the Department. [8]
NCOSS understands
that DoCS has received notifications of children at risk in the detention
centre and has gained permission from DIMA to conduct investigations.
NCOSS also understands that there have been significant delays in DIMA
responses to DoCS recommendations. As DoCS has no jurisdiction in this
area, it has no power to enforce these recommendations, as would be the
case elsewhere in NSW.
NCOSS is extremely
concerned about the delays in resolving the MOU as it contributes to an
extremely unsatisfactory system of investigation and response to child
protection notifications. The MOU would also a provide a mechanism to
require detention centre staff to provide notifications of children at
risk, as is currently the case for a vast array of professionals and staff
engaged in the human services industry elsewhere in NSW.
Even with the resolution
of relationships between State and Commonwealth, implementing child protection
arrangements in relation to children in detention raises major ethical
difficulties. There are powerful arguments that the environment of a detention
centre is innately abusive to children. As a result, child protection
authorities seeking to protect children from the abuse of the detention
centre are left with the choice of removing children from an abusive environment
and from their parents, or leaving them with their parents in an abusive
environment.
The obvious response
would be to transfer the entire family of parents and children to the
community. This would require not merely the extension of the current
child protection regime to the detention centre, but a shift in Commonwealth
policy and practice. NCOSS is well aware of the past practice of DIMA
and the Minister for Immigration of refusing such requests.
(ii) Education
NCOSS strongly advocates
for children and young people in detention to be supported to attend early
childhood services, primary and secondary school, and TAFE classes. This
would require appropriate, specialist staff in pre-schools, schools and
TAFEs. NCOSS emphasises the importance of early childhood services in
preparing children for attending primary school, and in promoting their
development at what is recognised at a key period in childhood.
NCOSS notes that
following its inspection of detention centres, the Joint Standing Committee
on Foreign Defence and Trade recommended that DIMA negotiate with State
and Territory governments and non-government schools to enable children
in detention centres to access nearby schools. [9]
NCOSS notes that
the NSW Government is supportive of this approach for school and TAFE
students. In a letter to the NSW Teachers Federation, the Director General
of Education and Training, Ken Boston AO, indicated that the NSW Department
of Education and Training would provide appropriate ESL and counselling
resources to public schools which welcomed these children, and that the
Department supported the inclusion of the children and young people in
Villawood into NSW public schools and colleges. [10]
Ken Boston stated that he had advised the Department of Immigration and
Multicultural Affairs of these positions.
NCOSS also notes
that the Villawood Detention Centre is located across the street from
the Chester Hill Public School which provides specialist English language
classes.
(iii) Health
The mental health
of children in detention was described in an article by Dr Aaman Sultan,
a medical practitioner and detainee at Villawood Detention Centre, and
Kevin Sultan, a psychologist who provided treatment to detainees at Villawood.
They reported:
A wide range of
psychological disturbances are commonly observed among children in the
detention centre, including separation anxiety, disruptive conduct,
nocturnal enuresis, sleep disturbances, nightmares and night terrors,
sleepwalking, and impaired cognitive development. At the most severe
end of the spectrum, a number of children have displayed profound symptoms
of psychological distress, including mutism, stereotypic behaviours,
and refusal to eat or drink. Children of parents who reach the tertiary
depressive stage appear to be particularly vulnerable to developing
a range of psychological disorders. [11]
NCOSS understands
the Service for the Treatment and Rehabilitation of Torture and Trauma
Survivors (STARTTS) does not provide services within the detention centres
as they do not consider that it would be effective or appropriate.
NCOSS is at a loss
to make recommendations which would ameliorate the mental health condition
of children and young people in detention.
In relation to the
general health of detainees, NCOSS can only reiterate the importance of
speedy access to appropriate health services. The reports received by
NCOSS about conditions at Woomera Detention Centre indicated that this
was not the case, and that oral health was particularly poorly served.
(iv) Other services
In principle, NCOSS
would seek to have asylum seekers able to access the full range of services
available to people living in the community. This would include services
such as family support services, women's health, specialist family counsellors,
disability support services, and others. As discussed above, given the
nature of the environment, there are questions about whether some of these
services would be able to be effective.
4.
Services for children and young people residing in the community after
detention
This section relates
to terms of reference 3 and 6.
The Commonwealth
Government response to the needs of refugees and other humanitarian entrants
settling in Australia is contained in the Integrated Humanitarian Settlement
Strategy (IHSS). Many of the services in this strategy are not available
to holders of a Temporary Protection Visa (TPV), which is the visa provided
to successful asylum seekers who have been subject to mandatory detention.
TPV holders are entitled
to a health assessment, Medicare card, torture and trauma counselling,
the right to work, and employment assistance which is limited to the 'touch
screen' job-matching service. TPV holders are eligible for Special Benefits,
Rent Assistance, Maternity and Family Allowance, and the Family Tax Payment.
Unlike TPV holders,
refugees and humanitarian entrants who have a '200-class visa', are entitled
to free tuition under the Adult Migrant English Program and the Advanced
English for Migrants Program. They have full access to all employment
assistance programs. They are eligible for settlement services including
orientation, accommodation, household formation, and for assistance from
Migrant Resource Services.
Unlike TPV holders,
the '200-class' visa holders are also eligible for the full range of social
security benefits and they are eligible for the Higher Education Contribution
Scheme (HECS) for tertiary education.
Both TPV and '200-class'
visa holders are entitled to access the full range of State funded human
services. NCOSS notes that the ineligibility of TPV holders to the case
management services of Migrant Resource Centres means that many TPV holders
may not be aware of the services which are available to them.
NCOSS also notes
that a number of agencies are delivering services to TPV holders on a
voluntary basis, however there is a manifestly inadequate network of services
for refugees with TPV.
NCOSS
May 2002
C. Sidoti, Refugee policy: is there a way out of this mess?, speech
to Racial Respect Seminar, Canberra, 21 February 2002
C. Sidoti, Refugee policy: is there a way out of this mess?
C. Sidoti, Refugee policy: is there a way out of this mess?
Independent Education Union, Refugee and asylum seeker policy in Australia,
2002
Independent Education Union, Refugee and asylum seeker policy in Australia
US Committee for Refugees, Sea Change: Australia's new approach to
asylum seekers, 2002 p23
A. Sultan, and K. O'Sullivan, 'Psychological disturbances in asylum seekers
held in long term detention: a participant observer account', Medical
Journal of Australia Vol 175:593-595, 2001
Report of Inquiry into Immigration Detention procedures, Statement by
the Minister for Immigration and Multicultural Affairs, Immigration Detention
Procedures, 27 February 2000 at <http://minister.immi.gov.au/detention/inquiry_response.htm>
Parliament of the Commonwealth of Australia, Joint standing committee
on foreign defence and trade, Reports on visits to Immigration Detention
Centres, Canberra, June 2001
Letter from Ken Boston AO, Managing Director of TAFE NSW and Director
General of Education and Training, to Barry Johnson, General Secretary,
NSW Teachers Federation, 24 April 2002
A. Sultan, and K. O'Sullivan, 'Psychological disturbances in asylum seekers
held in long term detention: a participant observer account'
Independent Education Union, Refugee and asylum seeker policy in Australia
Last
Updated 9 January 2003.