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Submission to National Inquiry
into Children in Immigration Detention from
Commonwealth Ombudsman
MAJOR INVESTIGATIONS UNDERTAKEN BY THE OMBUDSMAN RESULTING IN RECOMMENDATIONS
REGARDING CHILDREN IN DETENTION
ISSUES ARISING FROM COMPLAINTS TO THE OMBUDSMAN ABOUT CHILDREN IN DETENTION
DRAFT IMMIGRATION DETENTION STANDARDS
1. MAJOR INVESTIGATIONS UNDERTAKEN
BY THE OMBUDSMAN RESULTING IN RECOMMENDATIONS REGARDING CHILDREN IN DETENTION
1.1 Own Motion
investigation into DIMIA's Immigration Detention Centres
This Office issued
a formal report on Immigration Detention Centres in March 2001 which contained
a number of recommendations to DIMIA for improvements in arrangements
for children. The investigation was conducted following complaints and
a number of reported incidents including escapes and allegations of assault
on detainees. It revealed evidence at every immigration detention facility
of self-harm, damage to property, fights and assaults which suggested
that there were systemic deficiencies in the management of detainees,
including women and children. Overall, it was my view at that time that
DIMIA should have been more sensitive to the need for special provision
to be made to better cater for the needs of women and children and others
at risk living in a communal detention environment.
Two of the investigation
report recommendations addressed particularly the needs of children.
Recommendation
3: DIMIA reassess the accommodation and conditions in IDCs to avoid
overcrowding and provide appropriately for families, women and children
and individuals with special needs, to ensure that they are not exposed
to harm.
In response DIMIA
advised, inter alia, the following:
" A
range of facilities and programs for families, women and children is in
place in detention facilities and their review is ongoing. ACM has been
asked to review as a matter of urgency all support programs for children,
and for women and children. In newer centres in particular, programs and
facilities continue to be developed and enhanced.
Completion of
upgrades to facilities at Villawood and Woomera over the next two to three
months will provide further flexibility to respond to the needs of women
and children. An area within the Port Hedland centre for recreational
use by women and children only will be established.
To the extent
possible, DIMIA will continue to take steps to ensure that infrastructure
development at each of the centres takes account of the desirability of
having separate facilities available for women and children, recognising
that there are cost implications, both infrastructural and operational.
These issues will also be taken into account in the development of new
centres."
The Office has sought
an update from DIMIA on progress in implementing these plans. Informally,
advice has been received about improvements in infrastructure in detention
facilities. These include the establishment of a specific area for children's
educational and play activities within the Woomera centre; and a "kindergym"
for mothers and toddlers at the Port Headland detention facility.
Recommendation
4: DIMIA pursue alternatives to detention for families; women at risk;
children, and individuals with special needs, outside the major detention
centres.
DIMIA's response
to this recommendation was as follows:
"Minister
Ruddock has announced that he proposes to trial some different detention
arrangements than those which currently exist for women and children with
a view to implementing such arrangements on a larger scale if they prove
effective. Priority is being given to consultations with the Woomera town
community."
A three to six month
trial project offering alternative accommodation for women and children
in detention was announced by Minister Ruddock in August 2001. It involved
25 women and children being housed in a cluster of four, three-bedroom
houses in Woomera. Participants were selected against criteria such as:
- Having a family
member remaining at the Woomera centre;
- Having an application
for asylum under consideration; and
- Posing no character
or management risks.
Although the families
are able to live in a relatively stable family environment, participants
are still in detention and subject to 24 hour supervision by ACM, including
being escorted by ACM officers when attending local facilities including
the pool, movie theatre or shopping centre. The children either attend
the local school or participate in detention facility educational activities.
They are also able to visit other family members still housed in the Woomera
detention facility.
The trial is a positive
response by DIMIA to the concerns already raised in response to complaints
and investigations by my office, as well as independent inquiries such
as the Flood Report. Access to such family living arrangements would be
of benefit to all detained adults with children who have satisfactorily
completed necessary health and character checks, regardless of the status
of their applications for protection. It is arguable that those children
facing long periods of detention, perhaps because their parent's application
for refugee status is proving difficult to determine or is the subject
of appeal following initial rejection, are most likely to be in need of
the secure environment offered by the family accommodation arrangement.
The project is currently
being evaluated by DIMIA.
1.2 Own Motion
Investigation into Incident Reporting in Immigration Detention Centres
(November 2001 - no formal report but opinions provided to DIMIA)
This investigation
arose from the own motion investigation into the management and operation
of immigration detention centres and focuses on the processes and systems
for identifying, reporting, follow up and systemic analysis of incidents
ranging from riots and self harm incidents to complaints about conditions
in the centres and breaches of centre rules. Incident reporting is a major
source of information for DIMIA in assessing the performance of ACM in
its management of the centres.
While the investigation
did not proceed to a formal report, the Ombudsman wrote to the Secretary
of DIMIA setting out his opinions on the reporting processes used by ACM.
One of these opinions made particular reference to children.
Opinion 9:
ACM staff should ensure that all staff are fully aware of the requirements
of its new Children Detention Policy staff instruction. This requirement
should form a component of all induction and refresher training courses.
DIMIA responded:
"ACM and
DIMIA submit that the issues raised here were addressed comprehensively
following the findings of the Flood Report. Closer consultation with all
State Government authorities now occurs as a matter of course. Further,
ACM staff at Woomera have received training from (the SA Dept of) Family
and Youth Services in relation to child abuse issues. The requirement
for training for ACM staff at other centres is included in draft MOUs
currently being negotiated with relevant State Government agencies."
This Office has maintained
an ongoing interest in the progress of DIMIA's negotiations with various
State and Territory agencies in the areas of health, education and child
welfare. The most recent advice from DIMIA (February 2002) is that the
DIMIA has concluded an agreement with the South Australian Department
of Human Services (formerly Family and Youth Services) and that it is
in the process of negotiating similar agreements with other States and
Territories. This is the only agency of any of those with a possible involvement
with IDCs to have formally settled an agreement with DIMIA. In relation
to agreements with police, negotiation between various agencies is continuing.
The development of agreements between DIMIA and health and education authorities
appears to be less advanced.
The investigation
into incident reporting brought to light other issues relevant to the
HREOC inquiry and on which I would like to comment.
The investigation
involved the analysis of a number of incident reports which provided insight
into the conditions affecting children held in detention. Of the 1,979
incident reports examined, seven concerned allegations of child abuse
and while the number of cases is small, any instance of alleged child
abuse in detention facilities is significant and must be taken seriously.
In relation to those allegations which were the subject of incident reports
by ACM, my office examined several in detail, focusing on action taken
by ACM and DIMIA. There was evidence that DIMIA Central Office did not
always become involved in following up the issues raised in the reports.
More serious incidents to which DIMIA staff appear not to have responded
include:
- A 16 year old
male detainee claimed he was being sexually harassed by a male detainee.
This had allegedly been going on for some time and he was afraid he
would be hurt;
- A 17 year old
male detainee claimed that another detainee had inappropriately touched
him. The accused detainee had previously been the subject of allegations
about inappropriate behaviour to two female children. Police were not
called; and
- A female detainee
was observed punching and kicking her 11 year old son. The woman was
considered to be suffering from psychological stress.
Child abuse allegations
considered by the Flood report (the Report of the inquiry into Immigration
Detention Procedures) for calendar year 2000 (a period roughly similar
to that of the incident report investigation) included a significant proportion
of alleged incidents which were not the subject of incident reports
and were not notified to State child welfare agencies nor to State police.
Among these were the following, although I note that none has been investigated
by this office and I am therefore unable to comment on their substance:
- A nurse suspected
a 12 year old boy had been abused and raped. The nurse created a medical
report but an incident report was never produced.
- There were rumours
that a 16 year old girl was involved in prostitution in the centre.
- A seven year
old boy fell from a tree and injured himself. His older brother was
his sole carer. It was questioned whether the brother was capable of
performing the carer role.
- A father complained
that his 16 year old son had been assaulted by an ACM staff member.
- A mother claimed
that she and her daughters were being verbally harassed by two male
detainees.
In my opinion the
non-reporting of incidents creates a definite risk in potential child
abuse cases and a suspicion of abuse should be sufficient to generate
an incident report for DIMIA in all cases. I note that in a number of
the instances cited by Flood, there was no more than a rumour or a suspicion
that abuse might have been occurring. However, in my opinion ACM staff
should not be attempting to assess the merits of such information and
making decisions as to what should or should not be reported. ACM Head
Office and DIMIA should always be given the opportunity to make their
own evaluations of such information and consider appropriate responses.
It remains of concern
that such fundamental issues as reporting of child abuse or child neglect,
the circumstances in which local police become involved in disturbances
at IDCs, and the responsibility and role of State/Territory educational,
health and police authorities, are still not covered by formal arrangements.
2. ISSUES ARISING FROM COMPLAINTS
TO THE OMBUDSMAN ABOUT CHILDREN IN DETENTION
The Office has received
an increasing number of complaints from, on behalf of or about detainees
in Immigration detention facilities over each of the last three years:
Complaints regarding
detainees in Immigration detention facilities
Calendar Year
Total complaints Number specifically re children
1999 42 3 2000 89 6 2001 102 4
Very few complaints
relate specifically to the situation of children, although concerns about
the impact of detention on children have also been raised in the context
of complaints received about other detention matters. While I acknowledge
that the number of complaints to this office specifically about children
is small, the issues raised give weight to concerns about the effects
of detention on children.
Areas covered by
complaints about children are summarised below with illustrative case
studies.
2.1 Impact of
detention on children
The significant day-to-day
limitations which detention places on the normal developmental opportunities
for children have been highlighted in several complaints, including:
- a lack of access
to normal play opportunities required for healthy development;
- limited opportunities
for education;
- avoidable separation
from immediate family members; and
- insecurity caused
by exposure to an environment where adults, and sometimes other children,
may be engaged in acts of self-harm, damage to property, fights and
assaults.
A complaint recently
received eloquently describes the limitations of detention from a child's
perspective. Ostensibly from a two-year-old child detained with his parents
and young siblings, the letter in fact was written by one of the child's
parents. It nevertheless identifies the concerns of detainees about these
limitations. I note that a copy of this letter was also provided to HREOC.
One complaint has
been received about the processing arrangements for a parent and children
in detention where the other parent has already been granted refugee status
and released into the community. It came from an Iraqi father who had
been living in Sydney on a Temporary Protection Visa for two years and
was concerned that his wife and 3 year old son had been in detention in
Port Hedland for 9 months. His wife had asked that her son be released
into his father's care. On investigation it emerged that DIMIA considered
the child's status to be dependent on that of his mother and responded
negatively to her request that her son be released to his father. The
mother and child were finally released 4 months after the complaint was
made. This complaint is consistent with the experiences of other applicants
for split family humanitarian visas which have been reported in the media
over recent months.
While it is Government
policy to differentiate between onshore and offshore split family humanitarian
visa applications - typically onshore split family applications are processed
separately from other family members who are already in Australia as a
means of deterring asylum seekers from seeking unauthorised entry - the
complaint suggests that the children of such families can be adversely
affected.
2.2 Psychological
and social well-being
Several complainants
raised concerns about apparent stress symptoms suffered by children in
detention, specifically depressive behaviours such as refusing food and
regressing to behaviours more appropriate to earlier stages in the child's
development, such as wanting to sleep with a parent.
One complaint, on
behalf of an Iranian woman and her two sons who had been in detention
for about 8 months, stated that the elder son, aged 11, had apparently
stopped talking properly and was wetting his bed. He was also having trouble
eating and presented with large dark circles under his eyes. The younger
son was also having difficulty eating and had lost weight. In this case
the complainant had already raised the matter with DIMIA and the office
exercised discretion not to investigate the matter further. However, the
office was advised by DIMIA that medical and psychological health services
were being provided for both children.
Another complaint
was received about the treatment of a detainee and his young son, who
was the subject of allegations of abuse. The ACM's response to the child
abuse allegations was considered in detail by the Flood Report. The complaint
to this office focussed primarily on the treatment of the detainees when
ACM decided to act on the allegations. The father and son were abruptly
removed from a detention facility and transferred separately to Adelaide
where they were kept apart for about one week, the child being installed
in a hospital while the father stayed elsewhere. The father was apparently
not advised why he and his son had been removed from Woomera, nor the
nature of the allegations against him. Subsequently both detainees were
twice moved to other accommodation, apparently to avoid media attention,
and on one occasion were forced to lie on the floor of a van when leaving
a restaurant, again to avoid the media.
The complaint included
allegations of failure by ACM to explain to either the father or the child
what was happening and why, and to take account of barriers to effective
communication in this context; poor handling by ACM of the privacy of
the child where there was obviously considerable media interest; and concerns
about the facilitation by ACM and DIMIA of police inquiries into the allegations.
Our investigation
established that the matter was, ultimately, handled appropriately by
ACM in removing the child from the situation. However, it also revealed
that ACM's handling of the removal from the detention centre and subsequent
events was deficient in some respects. ACM protocols for protecting individuals
in the handling of such high profile cases did not appear to be well established
or communicated to staff, and this shortcoming contributed to problems
with media exposure which are likely to have exacerbated any trauma from
which the child might have been suffering as a consequence of the alleged
abuse.
The issues raised
by this complaint highlighted again flaws in ACM policies on handling
child abuse matters which have been raised in the Flood report, including
reporting requirements in relation to State authorities. DIMIA has provided
comments on this complaint and the matter is still under consideration.
2.3 Education
While Immigration
Detention Standards specify that all child detainees should be provided
with education programs based on State/Territory curricula, there are
significant qualitative and quantitative differences between facilities
in the arrangements made for the education of children in detention. DIMIA
has advised that arrangements range from lessons provided within the detention
facility to attendance of children at local area schools. Complaints have
focused on the hours of schooling available, the ages of the children
who are able to attend, and provision of culturally appropriate educational
opportunities.
One complaint, which
illustrates the importance of a flexible approach to educational arrangements
and good communication between detention centre and State education department/school
authorities, was received from the father of a 10 year old Muslim boy
who was attending a local Catholic School. The child had been taught in
Christian religious education classes despite his mother's objection:
the school refused to allow the boy to be taken out of religious classes
on the ground that no other arrangements could be made for his care during
classes. When ACM offered to provide a custodial officer to care for the
child during religious education lessons the Principal of the school refused.
The local State school would not accept children who were non-residents
of Australia. The matter was finally resolved by the school's agreeing
to the child's attending two full days and three mornings of school per
week. He would be collected from the school by ACM prior to religious
education classes on those three days and would miss afternoon classes.
The issue of appropriate
arrangements for the education of children in detention was also raised
in the recommendations of the June 2001 report of the Joint Standing Committee
on Foreign Affairs, Defence and Trade on its Visits to Immigration Detention
Centres. The Committee recommended that DIMIA negotiate agreements with
State/Territory governments and non-government schools to facilitate access
to local schools. Some progress has been made. As at the writing of this
submission, DIMIA has advised that it has received legal advice on its
obligations under the Convention on the Rights of the Child and
has commenced the process of negotiating memoranda of understanding with
relevant States/Territory agencies.
Education arrangements
for children in the Woomera detention facility appear to have improved:
DIMIA has advised that since December 2001, children between the ages
of 5 and 16 years have been attending classes for half a day, 4 days a
week, in an empty Catholic school, and class hours have recently been
extended to 5 mornings per week.
2.4 Legal and
administrative framework issues unaccompanied minors
No complaints have
been received from or about unaccompanied children. However, based on
the office's experience, unaccompanied minors, many of whom do not speak
English, are likely to be a particularly disadvantaged group in terms
of their capacity to access the complaints system. It is therefore possible
that the lack of complaints from unaccompanied minors reflects a lack
of knowledge of, or difficulty in accessing, the complaints system. The
issues relating to children in detention generally are likely to apply
equally to unaccompanied minors.
Unaccompanied minors
have particular obligations owed to them in the context of detention.
These obligations are defined in the Immigration (Guardianship of Children)
Act 1946 (Cth). Section 6 of that Act states that the Minister shall
be the guardian of the person of every unaccompanied minor who arrives
in Australia and "shall have, as guardian, the same rights, powers,
duties, obligations and liabilities as a natural guardian of the child."
The Act permits the Minister to place a child in the custody of a person
who, under the Immigration (Guardianship of Children) Regulations
2001 (Cth), "must provide for the welfare and care" of the child
(reg 9(1)) and who has duties and obligations "the same as those
of a person in relation to a child who is placed in his or her care, or
of whom he or she becomes the guardian or foster parent, under the laws
of the State in which the custodian lives"(reg 9(2)).
DIMIA has advised
that case management plans have been developed for all unaccompanied minors
in detention.
- child detainee
held in adult correctional facility
A complaint was received
about the holding of a child in an adult correctional facility. The case
has been included here because it highlights the duty of care due to children
and the potential for detention to exacerbate difficulties that children
may already be experiencing.
The complaint concerned
the alleged incarceration of a child detainee in the local police station
for two weeks and the imposition of inappropriate punishments (deprivation
of air-conditioning and chilled water). Investigation revealed that a
14 year old male was one of seven detainees (the others were adults) transferred
from a detention facility to a local police station because of fears they
may have been planning disruptive activities. The minor was detained in
the station watch house for two weeks and subsequently claimed to be experiencing
psychological problems as a result of his experiences.
DIMIA advised that
transfer of detainees to correctional facilities occurred primarily when
ACM has concerns about the security of the detention centre, ACM or DIMIA
staff. Our investigation confirmed that the child had been held in the
watch house for two weeks but those aspects of the complaint relating
to the alleged punishment of the child could not be determined. However,
there was evidence that problems the child experienced in detention had
been exacerbated by incarceration in the watch house.
The child came from
a family that had a history of disruptive behaviour while in immigration
detention. The child was not attending school and was restless and frustrated,
although DIMIA noted that he could have attended English classes with
other detainees had he been willing to do so. DIMIA advised the child
was not attending school because local State secondary facilities were
not permitted to accept unlawful persons. DIMIA advised that in any event,
children of secondary age are considered to be at high risk of absconding.
In DIMIA's view, even if community-based schooling were available, it
would not have been appropriate for this child in view of the behaviours
he exhibited. The child was offered counselling, but DIMIA noted that
a number of factors other than imprisonment in the local watch house could
have contributed to his stress symptoms, citing particularly his family's
involvement in lip-sewing and hunger strikes.
2.5 Children in
detention overseas
The complaints discussed
above relate to children held in detention in facilities within Australia.
No complaints have been received concerning the circumstances of the children
who are currently in detention in Pacific island countries. DIMIA advised
that as at 23 April 2002 there were 367 children including 30 unaccompanied
minors in detention on Nauru and Manus Island. Nor am I in a position
to make informed comments on the conditions under which the detainees
are held. However, regardless of whether complaints from these detainees,
if received, would be within my jurisdiction, in my opinion, the detainees
are there at the behest of the Australian Government and Australia has
a moral duty of care in relation to any children detained in these circumstances.
As far as I can understand, DIMIA is under no legal obligation towards
detainees on these islands.
There is some evidence
that DIMIA can influence at least some of the conditions under which detainees
are being held offshore. For example, recent media reports suggested that
detainees who had been recognised as refugees and were awaiting placement
in a receiving country would have more flexible access to recreational
activities than detainees still awaiting a decision on their status. In
my view, it is arguable that as far as possible children held in detention
offshore receive access to services and facilities to a standard similar
to that received by their counterparts in onshore detention facilities.
3. DRAFT IMMIGRATION DETENTION
DIMIA has promulgated
a set of standards, the Immigration Detention Standards (IDS) that govern
the conditions required to be observed by the Service Provider in the
provision of detention services. Written comments were provided to DIMIA
on its proposed revised IDS in October 2001 in the context of DIMIA's
preparation of its Request for Tender for the new Service Provider contract.
On 5 December 2001 DIMIA released an exposure draft of its Request for
Tender for provision of detention services, incorporating further revisions
of the IDS, and invited comment from the Ombudsman on both the standards
and performance measures detailed in that document. Representatives of
the Ombudsman met with DIMIA on 13 December 2001 to provide oral feedback
on the standards and performance measures included in the exposure draft.
The oral comments
to DIMIA included our overall impression that there was insufficient detail
about the level of evidence required to establish that performance standards
were being met. For example, this office indicated a concern that performance
measures in relation to the provision of health services did not prescribe
minimum standards of care and that it was not incumbent upon the Service
Provider to provide actual evidence of practice. DIMIA has hitherto resisted
the suggestion in our written response in October 2001 that a defined
ratio between the number of inmates and medical staff be enshrined in
the IDS. The concern that performance measures do not, generally, prescribe
minimum standards to be observed can be applied to a number of other provisions
of the IDS.
The draft IDS state
that "The Department takes seriously, consistent with its responsibility
under the UN Convention of the Rights of the Child, its duty of care to
all children in immigration detention. The IDS requires the Service Provider
to pay particular attention to the welfare and protection of children
in detention and their educational and developmental needs." Similarly,
the IDS make specific reference to the position of unaccompanied minors
in detention, acknowledging that "a special duty of care is owed
to unaccompanied minors because of the Minister's guardianship responsibilities
for these children" and that "[a]rrangements need to be in place
to ensure that these children are treated appropriately, understand their
situation and what is happening to them and whom they can approach for
assistance while in detention."
The standards themselves
contain, for the most part, detailed provisions as to what is appropriate
to provide to children in detention. However, the performance measures
are structured in a way that does not prescribe minimum standards but
typically require 'no substantiated instance' of a particular standard
not being met. Further, that part of the IDS which relate to what is required
to be addressed in a tender are often silent as to what particular
provision will be made for children in detention.
While the Statement
of Requirements and the Overview specifically refers to the need to pay
particular attention to the needs of unaccompanied minors, children, families
and women, few of the performance standards/measures specifically refer
to these individual needs. Consequently, reporting and measurement of
performance may not reflect the need to weight performance in these areas
appropriately.
These standards are
reaching finalisation and it is presently unclear the extent to which
the comments that I have made have been incorporated into the final version.
Whilst the following expansion on our observations have not been specifically
made to DIMIA, they form part of a more general concern regarding the
lack of basic requirements contained in the IDS performance measure which
has been conveyed to the Department and I hope will be taken into account
in relation to the following areas.
3.1 Separation
detention
The notion of separation
detention refers to the placement of new arrivals in IDCs into a separate
area of a facility in order to provide DIMIA "with the assurance
that any claims by unlawful non-citizens to remain in Australia are put
forward by detainees without the embellishment or coaching of others."
Whilst in separation
detention, detainees are not permitted to make telephone calls or to correspond
with people in the Australian community. In consultation with the Department,
detainees in separation detention may have access to bodies such the Ombudsman
and HREOC. However, the IDS and performance measures remain silent as
to the circumstances in which an unaccompanied minor in detention can
gain access to external bodies. Further, the tenderer is not required
to provide any specific information on how they will deal with children
in separation detention. Unaccompanied minors would be extremely vulnerable
during separation detention and consequently specific support should be
provided. The current standards do not highlight these special needs.
3.2 Health care
The basic standard
of care outlined in the IDS is that "the level of primary health
care services to detainees in detention facilities should sit broadly
with the norms of primary health care available to members of the Australian
community through a general practitioner ". Specific reference
is made to unaccompanied minors, in that in light of the Minister's "particular
guardianship responsibilities", "arrangements need to be in
place to ensure that such children are accessing and receiving appropriate
health care." Health care extends to psychiatric and psychological
services.
There is no precise
specification of the manner in which health services are to be provided.
As noted above, DIMIA did not agree with this office's recommendation
that a particular ratio of medical staff to detainees be incorporated
into the IDS. Whilst the performance measures require that detainees have
access to timely and effective primary health care, including psychological
and psychiatric services, the ultimate measure is that there must be "no
substantiated instance of a detainee not having access to health care
of this nature." Rather than placing a positive obligation on the
Service Provider to ensure appropriate services are available, the performance
measure is reactive and may result in particular health services becoming
available in response to a substantiated instance where they have not
been available.
3.3 Special care
A further example
of this office's general concern in relation to performance measures not
prescribing minimum standards is found in the area of 'special care'.
The broad requirements for care of minors in detention are specified in
the IDS. The Service Provider "is required to address the special
needs of minors in detention, particularly their psychological wellbeing
and developmental needs, taking into account the best interests of each
child. Given the particular guardianship responsibilities of the Minister
for unaccompanied minors, arrangements are required to ensure that such
children are accessing and receiving appropriate, individual care."
The performance
measures require that the special care needs of detainees be identified,
assessed and responded to and these include minors, particularly unaccompanied
minors, detainees in need of psychiatric or psychological treatment, and
detainees at risk. The performance measures require that the Department
be provided with evidence, on a monthly basis, that the special care needs
of detainees are being met. There are specific performance measures in
relation to children which require that the "safety, care, welfare
and well-being of detainee children, in particular unaccompanied minors,
are managed effectively and appropriately in accordance with:
- their age, family
circumstances, gender, background (cultural, linguistic, religious),
personal history and physical/mental health;
- the law;
- relevant memoranda
of Understanding and other agreements between the Department and State/Territory
agencies; and
- relevant departmental
procedures or instructions.
Further, the performance
measures requires that "there is to be no substantiated instance
of detainee children not being managed according to this Standard and
linkages an unaccompanied minor may have formed with members of his or
her extended family or other care-givers not being taken into account."
It is arguable that,
despite the laudable requirement that particular attention be provided
to the needs of minors, both accompanied and unaccompanied, the IDS do
not specify the basic threshold standards of education, recreation and
health and that as such, Service Providers are given too great discretion
in deciding how they will meet these requirements.
3.4 Education
Education has been
referred to above, in the context of the complaints received. The IDS
require that all children should regularly attend educational classes,
that such classes should be based on State/Territory curricula. The standards
also require that there should be after-school activities and school holiday
programmes in addition to normal unstructured play opportunities. The
standards further require that children have access to safe, secure areas
where they can play and that sporting and recreational activities are
to be available.
The performance measures
require that the Department be provided with evidence, on a monthly basis
that such educational services are available. Phrases such as 'reasonable
period' and 'regular basis' are arguably, too imprecise to ensure the
adequate provision of education, particularly in light of the fact that
such matters are stringently defined in State/Territory curricula. Moreover,
the IDS and concomitant performance measures are silent as to the type
of educational services to be provided to children with learning difficulties,
children who suffer from trauma and mental illness and to children with
behavioural problems. Similarly, the performance measures which refer
to after-school and school holiday programmes require that there be evidence
provided that such programmes/materials are available. They do not specify
the regularity with which such programmes are to be made available.
Further, there are no minimum standards prescribed in relation to the
provision of sporting, leisure and recreational facilities. The performance
measures merely require that the DIMIA be provided with "evidence
that strategies are developed and implemented to ensure children's sporting,
leisure and recreational needs are met."
3.5 Communication
and visits
Whilst the IDS acknowledge
the role of HREOC and the Ombudsman in investigating individual written
complaints and in visiting the centres, this office regularly receives
complaints in oral form. There appears to be a direct conflict between
this and section 7(1) of the Ombudsman Act 1976 (Cth) which permits
complaints to be made orally. However, we have been informed by DIMIA
that when the IDS are settled and released, they will be amended to reflect
the fact that this office is empowered to receive complaints in oral form.
The performance measures
require, inter alia, that detainees be informed of the services available
to them for the making of complaints, that the Department is provided
with evidence that such information is provided within 5 days of arrival,
that it is current and comprehensive, that it is available to detainees
through written and oral communication and is regularly communicated.
However, no reference is made to any special measures that should be in
place to ensure that unaccompanied minors are aware of the avenues through
which they may pursue complaints that they have, nor is there any indication
of any special assistance to be provided to unaccompanied minors in voicing
complaints they may have.
3.6 Security and
order
This portion of the
IDS addresses the use of force or instruments of restraint, and punishment
for non-compliance with orders and directions. Again, our general concern
is that performance measures are not specific. For example, it is of significant
concern that, with the exception of the use of instruments of restraints
(which are not to be used on minors under the age of 10), no specific
reference is made to the circumstances in which force and restraint can
be used against minors. Therefore, the full scope of the IDS in relation
to the use of force would appear to apply equally to children and adults.
In the absence of any specific provision, it appears that the minors could
be subject to the use of force, and placement in isolation detention.
The IDS do not overtly mention the possibility of isolation detention
or the severe restriction of movement, but it is clearly implicit. The
performance measure refers to a requirement that there be "no substantiated
instance of a detainee whose movements in the facility are restricted:
- not being seen
daily by qualified medical staff; and
- not being the
subject of adequate, detailed records."
Given that it is
an extreme measure to use force against a child, it is of concern that
the IDS are largely silent as to the nature of and the circumstances in
which force may be used against children.
Issues of child abuse
have been canvassed above, but it is pertinent to note that whilst the
IDS require that "any allegations or reasonable suspicions of assault,
including sexual assault, of minors are referred promptly to the appropriate
authorities, in accordance with the law and relevant understanding with
State/Territory agencies, and to the Department's managers", DIMIA
has informed us that such understandings with appropriate agencies have
only been settled with the South Australian Department of Human Services.
In circumstances where a decision is made to separate a detainee for a
specific reason, for any period of time, it is essential that immediate
arrangements are made for dependent children who may be without alternative
support within the detention centre. It is not appropriate for children
to be held in secure compounds with groups of detainees who have been
separated on the basis of their aggressive behaviour, anger, violence
etc as was the case during the riots in Woomera in mid 2000. In such circumstances
it will normally be appropriate for the assistance of the relevant State
authorities to be immediately sought.
Last
Updated 30 June 2003.